A Right to Smile?

No such right is clearly established when it comes to booking mugshots, says a federal district court.

|The Volokh Conspiracy |

[Photo by Harris County, copied from the Houston Chronicle article.]

From Johnson v. Harris County, decided in July of last year, but only posted to Westlaw yesterday:

As part of the routine booking process [for his DUI arrest], Plaintiff was asked to pose for a jail intake photograph, commonly called a mugshot. While taking approximately ten photographs, Plaintiff smiled for the camera. According to Plaintiff, Phillips ordered him to "Stop smiling!" and asked "What are you smiling for?" Phillips also told Plaintiff, "Take the picture right."

Plaintiff claims that he responded to Phillips by saying, "This is how I always take my pictures. I have a beautiful family at home and I'm a successful business owner and I'm going to beat this case. Why wouldn't I smile, I have nothing to be mad about." …. Phillips [allegedly] told Plaintiff, "Well I'll tell you what! If you don't stop smiling, we gon' to make you stop smiling." At this point, Plaintiff contends that Phillips and Hollis each placed a hand on his neck and held Plaintiff's head before the camera. Plaintiff's official photograph from Harris County Jail shows two officers placing their hands on the front and back of Plaintiff's neck as he continues to smile.

The court rejects plaintiff's First Amendment claim against the officers, on qualified immunity grounds:

Plaintiff contends that Defendant Hollis violated his clearly established right to freedom of expression under the First Amendment. According to Plaintiff, smiling in a jail photograph constitutes protected speech. Plaintiff also asserts that being forced not to smile is humiliating, degrading, and causes him to "look like a criminal" in a publicly available photograph….

Although the First Amendment protects nonverbal and "symbolic speech" in general, a constitutional right for purposes of overcoming qualified immunity [in damages cases against individual government employees] must be defined "with a high degree of particularity." … Thus, it is not sufficient for Plaintiff to assert that people generally have a protected free speech interest in the right to smile. Instead, Plaintiff must show that any reasonable officer in Defendant Hollis's position would have known that the right to smile in a jail photograph was clearly established..

Several courts have recognized that jail photographs and mugshots are imposed on pretrial detainees "in the vulnerable and embarrassing moments immediately after [an individual is] accused, taken into custody, and deprived of most liberties." "A booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt." The Sixth and Eleventh Circuits have noted the recent trend of websites that post people's mugshots indefinitely and charge money to remove them..

Despite the enduring consequences of jail booking photographs, none of these cases discuss an individual's right to decide his or her facial expression in such a photograph. Instead, the case law only considers whether federal agencies must disclose such photographs under the Freedom of Information Act …. Moreover, none of the cases discuss the possibility that the pretrial detainee may determine the manner or means of the photograph, including the ability to smile.

Based on the prevalence of websites that collect and post jail photographs—including those that charge money to remove them—it would certainly be beneficial if pretrial detainees had the right to smile for the camera…. The question is not, however, whether pretrial detainees should be allowed to smile when they are booked into jail. The question is whether there was a clearly established constitutional right to smile at the time that Plaintiff was booked. See Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (nothing that in order to establish a clearly established right, the plaintiff "must be able to point to controlling authority—or a 'robust consensus of persuasive authority'—that defines the contours of the right in question with a high degree of particularity"). Here, Plaintiff has not cited any authority—let alone controlling or robust authority—that clearly establishes a constitutional right to smile in a jail photograph.

Because Plaintiff has not demonstrated a clearly established constitutional right to smile in a jail booking photograph, the doctrine of qualified immunity bars Plaintiff's claim for violations of the First Amendment.

But the plaintiff's excessive force claim could go forward:

Plaintiff asserts a claim against Defendant Hollis for using excessive force in holding his head in place during the intake photograph. Plaintiff also brings a claim against Defendant Quellhorst for failing to intervene to prevent or stop the application of excessive use of force. Defendants Quellhorst and Hollis move for summary judgment on these claims by asserting the defense of qualified immunity..

Because Plaintiff was a pretrial detainee at the time that he alleges excessive use of force, his claim arises under the due process clause of the Fourteenth Amendment. In Kingsley v. Hendrickson, the Supreme Court endorsed four factors to determine whether the intentional use of force "crosse[s]" the "constitutional line":

"(1) The need for the application of force;

"(2) The relationship between the need and the amount of force that was used;

"(3) The extent of injury inflicted; and

"(4) Whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." …

Plaintiff contends that there was no need for any application of force because it was unconstitutional for Defendants to force him to stop smiling and because he was calm, handcuffed, and nonviolent. Defendants assert that Plaintiff was belligerent, argumentative, and highly intoxicated, and that the detention officers had to hold his head in place "because Plaintiff kept walking away from the wall" as the booking photograph was being taken.

At the summary judgment stage, the Court must view all evidence in the light most favorable to Plaintiff. Although Defendants have submitted sworn affidavits to the contrary, Plaintiff testifies that: (1) there was no need for any application of force; (2) the force used against him was grossly excessive; and (3) he experienced severe pain and injury from such force. Plaintiff also points the Court to his official jail intake photograph, which shows him trying to smile as two officers hold the front and back of his neck. Because it is impossible to tell how much force is being applied, the Court assumes Plaintiff's testimony to be true and finds that Plaintiff's affidavit and photograph create a genuine issue of material fact as to whether Defendant Hollis's use of force was objectively unreasonable. Summary judgment is therefore DENIED on Plaintiff's excessive force claim against Defendant Hollis.

It appears that the case was settled three weeks later.

NEXT: California Prosecutors Move to Clear Old Pot Convictions

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  1. Qualified immunity is a joke, and has no place in a free society.

    Abolish it now.

    1. Says every superficial know-it-all who hasn’t spent more than 30 seconds thinking about the issue.

      1. Obviously, everyone who disagrees with you simply hasn’t thought about the issue, so the only thing for you to do is SHOUT LOUDER UNTIL THEY UNDERSTAND.

        1. All of them should certainly be forced to wipe the smiles off their faces, especially any recalcitrant prisoners who engaged in criminal “parody.” If they are heard “chuckling” in their cells, they should be placed in solitary confinement until they learn how to stay appropriately serious. For anyone who tries to poke a little “fun” at our nation’s unfairly maligned criminal justice system, flogging should also be considered. See the documentation of America’s leading criminal “satire” case at:

          https://raphaelgolbtrial.wordpress.com/

      2. It looks like we have a bona fide cop succor with us.

        Michael W. Towns is a lousy cop succor.

        1. Do consult some specially made thesaurus for the deranged for your comments?

      3. Where is the harm in a pre-trial detainee smiling for a photograph?

        And more importantly, where is the benefit to society that some jailers threaten him for smiling?

        1. The question is not whether the jailer should be allowed to choke prisoners to make them stop smiling. They aren’t and that’s why the excessive force complaint is going forward.

          The question is the prisoner has a First-Amendment right to smile, and if so, whether that right is well-established, so the jailer can be punished for violating it.

          1. That is the question if and only if you presume that qualified immunity is a good thing and a valid social policy. The premise of this thread is that presumption is not valid.

      4. Also says every thoughtful knows-enough who has spent more than 30 seconds thinking about the issue.

    2. We just need to flip it on its head. Cops love to say “if you haven’t done anything wrong, what do you have to hide?” How about, “if they haven’t done anything wrong, why do they need qualified immunity?”

  2. Me: What about the right not to be choked?

    Volokh: But the plaintiff’s excessive force claim could go forward

    Me: Okay, I’m fine with that analysis.

  3. Welcome to the Police States of America, komrades. Just don’t smile about it, or else.

  4. What this case really illustrates is how broken the notion of qualified immunity is.

    They tell civilians that “ignorance of the law is no excuse.” If that maxim has any moral validity at all, then it needs to apply at least twice as strongly to those whose JOB is to interpret and enforce the laws upon others. And that goes for judges and prosecutors as well as cops.

    The right answer is to end all immunity and instead add a sentence enhancement when an official violates the constitutional rights of others, because as professionals they should be setting an example.

    1. You want to “end all immunity”? Have you really thought about what you would replace it with?

      1. Giving the local courthouse gang the same treatment they give the citizens?

      2. Why should any public official have immunity just for getting a government paycheck?

        1. If you want cops — who are duty-bound to use force to arrest uncooperative persons, to place themselves in harm’s way, to use deadly force to protect themselves and others, and who often must decide what to do in a split-second — to do their jobs rather than avoid doing their jobs as much as they possibly can, you’d better give them some sort of immunity.

          1. Lord knows what would have happened if that guy had been allowed to smile.

          2. Too bad that same split-second grace period isn’t allowed for civilians in self-defense.

            Too bad that cop split-seconds are so much longer than civilian split-seconds.

            Too bad that cops get to be excessively sadistic and vengeful in pursuit of their own personal drama and use the cover of the State in clearly unconstitutional ways, knowing that the State will cover their ass in all but the most extreme cases, and even then, they stand a good chance of retiring early, with a full tax-free disability pension based on the stress of framing people and beating up the homeless and throwing flash-bangs into cribs and making up search warrants out of thin air.

            Too damned bad.

            1. Don’t forget about how stressful it is shooting dogs for kicks.

          3. Yeah. I can see from the photograph how risky the situation was for them.

          4. You know what? No.

            I mean, I understand the argument. Cops have to make complex decisions in moments of great uncertainty and stress. If they decide wrongly, people, including themselves, might die; even if they decide rightly, people might die.

            The idea of qualified immunity was to not add to their burden, to only pursue flagrant errors, and essentially say of other case, “Well, it was a close call. You get a mulligan.”

            But the reality is, that idea didn’t work out. In fact, we have a culture of police bullying. Which is not a huge shock: some people are going to act badly when they aren’t held accountable.

            You only had a split-second to make a decision? It wasn’t absolutely clear what the law is? You can make that argument at your trial.

            You don’t like that? Become a fireman. Or a garbageman. If you find the law too vague and abstruse for you to obey it, we don’t want you to be the one enforcing it.

            1. Essentially, you want to make it impossibly hard to be a cop.

              1. Because it was impossibly hard before QI existed and then was extended to everything?

              2. You see this in a lot of policy discussions. A policy appears for the first time, is put into effect, ten or twenty years later somebody proposes getting rid of it, and the policy’s defenders predict horrific consequences from doing so, as though they’ve completely forgotten that things weren’t actually all that bad before the policy was implemented.

                Millions of deaths are predicted if the ACA is struck down.

                Relegalizing drugs would result in a whole generation going through their lives a drugged zombies.

                And, without unqualified immunity, nobody would be willing to be a cop.

                Why is it that people make these outlandish claims, and then get mad if their opponents refuse to pretend the past didn’t exist?

                1. “And, without unqualified immunity, nobody would be willing to be a cop.”

                  No, the argument is they’ll keep collecting their salary for hanging out at the station eating donuts.

              3. You say that like it’s a bad thing.

                1. Donuts are unhealthy.

              4. If that meets your standard of “impossibly hard to be a cop”, SKofNJ, then by all means, don’t be a cop. Leave the job to those who have more than two brain cells still firing.

      3. Accountability?

      4. That’s easy. Replace it with giving every individual the right to sue and/or prosecute the person who violated his rights. If the victim dies, then or later, let his claim be heritable.

      5. Less police misconduct because of greater accountability.

      6. How ’bout we treat the employees of society EXACTLY the same way that society will treat it’s members in a similar situation?

        If I were to shoot someone in self defense, the state will not spend any appreciable effort in clearing me. I would not get paid time off from work, or a presumption of innocence in court. Should I lose a civil suit, the taxpayers don’t pay the bill.

      7. You want to “end all immunity”? Have you really thought about what you would replace it with?

        Just like the income tax, we can replace it with nothing.

    2. I have the same attitude to appeals court non-unanimous decisions. If juries have to be unanimous, and jurors are ordinary people, how can it be fair that learned judges, who take months to come to decisions, don’t have to be unanimous? Far as I’m concerned, anything less than unanimous should fall back on individual liberty — questionable laws thrown out in their entirety (no severability), defendants freed, etc.

  5. Fuck those cops costing taxpayers for their arrogance! If dude wants to smile for a booking photo, then it’s no concern to them.

  6. Courts should be required to decide on the constitutional issue when they rule for qualified immunity. QI means that the officers are not liable because no court has decided that that specific action was illegal. But if courts grant QI without deciding if it was illegal, then the next case concerning the same type of action will also result in QI.

    1. Deciding the constitutional issue was mandatory from 2001-2009, until SCOTUS made it optional again in Pearson v. Callahan.

    1. I’ve always been mystified by people smiling for mugshots. If you’ve just been arrested for something you didn’t do, annoyance and anger are entirely appropriate emotions.

      (I’m not sure what the appropriate emotion is if you’ve been arrested and are guilty as sin – I suppose it would depend on the crime – but smiling still seems odd.)

      1. That’s what I’d think, but there are two contrary pieces of evidence for me:

        -When I saw Sen. Edwards’ mug shot I was impressed at his self-confident attitude – I didn’t know if he was guilty but he looked like he had a fighting spirit.

        -In the original post, the cops who tried the stop the guy from smiling obviously didn’t have his interests at heart, a smiling suspect somehow got under their skin. If you’re innocent, I think you’d want to get under your persecutors’ skin.

  7. This being a legal blog and everything, here is a lawyer who recommends *against* smiling for one’s mug shot:

    “I think a smiling mugshot sends the wrong message. I think it says you are not taking your arrest seriously. I think if you are in the unfortunate position of needing a mugshot, you should just look straight at the camera and not smile. Don’t frown, but maintain a neutral look on your face. This expression sends a message (if anyone ever sees that photo) that you are taking your arrest seriously and you are not getting any pleasure out of being arrested or receiving potentially negative publicity. The local newspapers can find out that you were arrested, and they might run the story. What picture do you think they use? It’s almost always your mugshot picture that goes into the story.”

    1. I’m a lawyer too. I, respectfully, disagree. I think smiling shows confidence in your innocence. I think most people in mugshots who are not smiling look guilty because of their unsmiling demeanor. I don’t think you should grin like you’re at your birthday party. But a, shall we say, polite, smile, is a better look.

    2. I practice civil, not criminal, trial law, so I don’t regularly deal with mug shots. With that substantial caveat:

      I emphatically instruct, and re-instruct regularly, all of my clients to be as poker-faced in front of the jury as they possibly can. Same advice whether they’re plaintiffs or defendants, same advice whether it’s a slip-and-fall or securities fraud.

      I don’t dispute that in some circumstances, some smiles, on some faces, might be perceived as humanizing, as warm, as self-confident ? as a “winning” strategy, in other words.

      I think the risks of the opposite happening are so substantial, however, and the prejudice on those occasions when it does, far, far outweighs any of the prospective benefits. When facing risks in a courtroom, one should eliminate all the risks which can be eliminated without substantial cost, and mitigate the rest to the extent possible. This is a risk that can’t be entirely eliminated, but it can and should be aggressively suppressed.

      1. I would note, for what it’s worth, that it is rare that an arrestee’s mug shot is put in evidence at that person’s trial.

    3. I am suspicious of any law firm that has the same name more than once in the firm name.

      1. Way back in my college days, a bulletin board in the prelaw department featured a letter from the firm Lefkowitz, Lefkowitz, Lefkowitz & Lefkowitz. On it, someone had written, “What do you think the odds are of making partner with this firm?”

        1. I want to speak to Lefkowitz. Sorry, he’s in a meeting. Well then, how about Lefkowitz? On vacation. Lefkowitz? With a client. Lefkowitz? Speaking.

        2. Now it’s Lefkowitz, Lefkowit, Lefkowitz, Lefkowitz and Riley.

  8. Also, anyone who doesn’t think it’s obvious that people have a right to smile, needs a whack upside the head.

    1. Well, at the very least I would like to see a reason the government does not want you to smile, say, that it’s tied the use of the mug shot in recognizing you, and not just that the officers wanna learn ya!

  9. A “right to smile” another first world problem.

  10. For what it’s worth, I renewed my passport last year. They now prohibit smiling in passport photos.

    I assume it’s because they need to recognize you after you’ve been interacting with the TSA.

    1. The State Dep’t passport forms say a “neutral facial expression” is preferred but “a natural smile” is also allowed. Where do you see that smiling is prohibited?

      1. That’s what they told me at CVS when I got the passport photo taken. They didn’t require frowning, but said that if I smiled, they’d just have to take the photo over again.

        Maybe just their interpretation, but I don’t think that came out of nowhere.

    2. I always smile when I am getting a free genital massage.

    3. Brett, I was told the same thing for my kids at the local county courthouse when we got their passports.

    4. Passports are also a luxury item that you’re choosing to acquire, not something being forced on you at gunpoint.

      Which is to say, if you object strongly enough to not-smiling for a passport photo, you can walk away. Someone being booked cannot.

  11. If I don’t have the right to smile, why do the police have the right to force me to not smile?

    1. Because reasons.

  12. FWIW, I don’t think the relevant portion of the Constitution is the First Amendment. When law enforcement authorities compel someone to present to the public, and potentially to a jury, the facial expression selected by law enforcement authorities, that’s a compulsory self-incrimination, in violation of the Fifth Amendment. It’s also arguably an impingement upon the presumption of innocence protected by the Fifth, Sixth, and Fourteenth Amendments. Cf. Estelle v. Williams, 425 U.S. 501 (1976)(“the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes”).

    Harris County ? of which I’ve been a citizen since 1980 ? was smart to settle.

  13. This claimant should have asserted that his religion directed him to smile. A religious claim is a plaintiff’s new super(stition)power, perhaps mighty enough to overcome qualified immunity with many judges.

  14. I think qualified immunity doctrine flips the consideration, which should go on when government actors are deciding whether to take a given action, on its head.

    They shouldn’t be asking: Is it at all possible that I – acting as the government – am allowed to do this.

    They should, instead, be asking: Is it at all possible that I – acting as the government – am not allowed to do this.

    Instead of a yes to the former being enough for them to feel safe in taking a given action (i.e. in taking the risk of doing so), a no to the latter should be required for them to feel that way.

    In other words, government actors generally shouldn’t act in a given way unless they are pretty sure that, in acting that way, they aren’t violating someone’s rights. Or, at least, they shouldn’t act without understanding that they are, in acting without that surety, taking significant personal risks.

    Generally speaking I would say that anyone unwilling to accept that condition applying to their wielding of government power isn’t fit to wield government power.

    1. I don’t believe that Estelle is a Fifth amendment-based case. Second, the case law is clear that a defendant has no Fifth Amendment right to prevent the State from requiring a defendant to show his physical characteristics to the jury. For example, if the victim claimed that the assailant had a tattoo on his back, the defendant could be required to show his back to the jury, or could be required to allow the State to photograph his back.

    2. Good luck getting anyone to sign up for anything other than clerical work under those conditions.

      1. I have a novel idea. How about we abolish QI as a judge made innovation that has no basis in either the Constitution or in statute, and if a balancing approach is required to keep enough cops on the force, we let our elected representatives debate and set that policy. That’s their job, not the job of judges. If the policy the Congress comes up with isn’t sufficiently respectful of our rights, then the judges can intervene.

      2. If being held responsible for your illegal actions would push someone to not be a cop, that person probably shouldn’t be a cop in the first place.

        That said, qualified immunity has not been with us since the dawn of a police force. We got by fine before it. And if it’s eventually struck down, we’ll continue fine after it.

  15. Based on the prevalence of websites that collect and post jail photographs?including those that charge money to remove them

    This part is outrageous. No reason that jail photographs should be released, unless the prisoner escapes. That some websites post such pictures as a form of extortion is even worse.

    This is certainly an area that needs reform. Take the picture and keep it confidential in the prison system, unless it is needed for some purpose, like in an escape or to identify someone at trial.

  16. Not long ago, it was pretty standard in appeals cases, especially in the notoriously conservative 5th Circuit, that someone suing the police or prison guards had to have more evidence than the plaintiff’s own “self-serving” (the common adjective) testimony to pass summary judgment. Plaintiffs’ testimony was routinely discounted, and police officers’ credited, as a matter of course.

    In this case, a Texas district judge treated the plaintiffs uncorroborated testimony as being in the same league as the prison guards’, sending the matter to a jury to decide whom to believe. That alone represents a huge sea change from how things were done a only a short while ago. The possibility a jury might believe a prisoner over prison guards would once have been simply unthinkable. Today, it is thinkable.

  17. Plaintiff must show that any reasonable officer in Defendant Hollis’s position would have known that the right to smile in a jail photograph was clearly established

    Ok, fine

    Because Plaintiff has not demonstrated a clearly established constitutional right to smile in a jail booking photograph, the doctrine of qualified immunity bars Plaintiff’s claim for violations of the First Amendment

    So then how can the right become clearly established if we dismiss cases on the grounds that the right is not clearly established?

    Why not find that Plaintiff has a right to smile, but Defendants are covered by qualified immunity because they had no reasonable way of knowing this. That way, going forward, it becomes less and less reasonable for officer not to know this

  18. Hence, above, Contempt of Cop.

  19. I’m surprised Prof. Volokh didn’t pick up on another Houston Chronicle story about the 2nd Amendment (spaces added): https://www.chron .com/news/texas /article/Prosecutors- drop-all-charges-in- deadly-Waco-biker- 13735914.php

  20. God. Fuck this stupid “clearly established” bullshit for QI.

  21. Because Plaintiff has not demonstrated a clearly established constitutional right to smile in a jail booking photograph […]

    And that’s the problem with white-listing vs. black-listing, folks!

    In a black-list context, we would assume he does have the right unless there is a “clearly established” constitutional basis to strip him of it.

    In the white-list context we have, we assume he does not have the right unless there is a “clearly established” constitutional right to start with.

    Which is bizarre, as the criminal code generally works in a black-list context. We assume something is legal unless there is a law making it illegal. So the judge deciding to go with the reverse, that he assumes cops have the authority and right to force people to make particular expressions for the camera until proven otherwise, is very odd.

  22. That photograph would be perfect for a campaign advertisement — Republican or Democratic, equally useful.

  23. I tried to find out what the guy’s shirt said. Looks like it might be “Keep It Official”. That is sort of like getting arrested wearing a Cops shirt and ending up on the TV show Cops (and yes that did happen…check it out on Youtube).

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