comparing varying reasons given by the government for decision not to prosecute different arrestees, some of which were indicative of innocence
How later courts described this case
- comparing varying reasons given by the government for decision not to prosecute different arrestees, some of which were indicative of innocence
- requiring “an official, and hence authoritative, explanation of the erroneous basis for the arrest”
- arrestee must show by clear and convincing evidence that “no crime had in fact been committed [by him] at the time of his arrest”
- including fingerprints and photographs as “record[s]”
Written by the judges who cited it.
The opinion
MACK, Associate Judge,
with whom KELLY, Associate Judge, joins, concurring:
I question the conclusion that sealing is the more appropriate remedy. I reject the rationale advanced in support of that conclusion. I favor expungement as a remedy being less cumbersome, more trustworthy, and certainly more satisfactory, psychologically, in making a movant whole. In a complex society where computers go awry, and where an inquiry regarding arrests may have the effect of violating federal law, (see Gregory v. Litton Systems, Inc., 316 F.Supp. 401 (C.D.Cal.1970), aff’d and modified on other grounds, 472 F.2d 631 (9th Cir. 1972)), * I see nothing wrong with permitting an innocent victim of an erroneous apprehension or record to say he has not been arrested.
Because, however, I strongly believe that an equitable remedy is sorely needed for cases of this kind, I concur in the majority opinion.
See also Green v. Missouri Pacific Ry. Co., 523 F.2d 1290 (8th Cir. 1975).