Petition for Writ of Certiorari — Christopher Glenn White, Petitioner v. Donald T. Sloan, Sheriff, Lynchburg, Virginia, et al.

Supreme Court briefJul 10, 2024

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No. 24In THE

Supreme Court of tt|e Mmtzb States

CHRISTOPHER G. WHITE,

Petitioner,

DONALD T. SLOAN, SHERIFF OF LYNCHBURG,

VIRGINIA; RYAN ZUIDEMA, CHIEF OF POLICE,

LYNCHBURG, VIRGINIA; KRISTEN BORAK,

FREEDOM OF INFORMATION OFFICER,

BLUE RIDGE RE-GIONAL JAIL AUTHORITY;

CITY OF LYNCHBURG VIRGINIA,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Christopher G. White

Petitioner Pro Se

P.O. Box 246

Forest, VA 24551

(434) 660-9701

Chriswhitelawyer@gmail.com

130102

COUNSEL PRESS

(800)274-3321 • (800)369-6869

QUESTION PRESENTED

In the United States today, law enforcement acting

on their own accord engaging in arbitrary government

decision making, can destroy an individual’s personal life

and, constitutionally protected employment prospects. A

booking photo is the photo that is taken by authorities

when an individual is arrested. Under many state laws

and, Virginia Statute § 2.2-3706 an individual arrested

automatically has their booking photo released to the

public on the internet without a fair opportunity to

cross-examine the evidence against them in a full and

final hearing. This destroys personal lives and Un

constitutionally protected employment prospects in the

internet age. Does due process require a meaningful

opportunity to be heard, before the release of booking

photos absent guilty plea, conviction or a fugitive of

justice?

PARTIES TO THE PROCEEDING

Petitioner Christopher G. White was the Appellant/

Petitioner below in the United States Court of Appeals

for the Fourth Circuit.

Respondents Donald T. Sloan, Sheriff of Lynchburg,

Virginia; Ryan Zuidema, Chief of Police, Lynchburg,

Virginia; Kristen Borak, Freedom of Information Officer,

Blue Ridge Regional Jail Authority; City of Lynchburg

Virginia were the Appellees/Respondent below in the

United States Court of Appeals for the Fourth Circuit.

Respondent The Commonwealth of Virginia was the

Appellee/Intervenor below in the United States Court of

Appeals for the Fourth Circuit.

STATEMENT OF RELATED PROCEEDINGS

Court Name : United States District Court for the

Western District of Virginia, Lynchburg

Division

Trial Court Case : 6:23-CV-00007-NKM

Case Name : Christopher G. White; Plaintiff v.

Devon Key, Allison Maher a/k/a Marie

Smith, Tucows Inc., Cloudflare, Inc.,

Robert Wiggen d/b/a Arrest.org, Chelsea

Webster, Crystal Stevenson, Donald

T. Sloan, Ryan Zuidema, Kristen Borak,

City of Lynchburg Virginia; Defendants

and Commonwealth of Virginia, Intervenor.

Date of Opinion/: June 8, 2023 (That Order is attached

Order

at Appendix (“App.”) 1-2)

Court Name : United States Court of Appeals for the

Fourth Circuit.

Case No.

: 23-1683

Case Name : Christopher G. White; Petitioner/Plaintiff

v. Devon Key, Allison Maher a/k/a

Marie Smith, Tucows Inc., Cloudflare, Inc.,

Robert Wiggen d/b/a Arrest.org, Chelsea

Webster, Crystal Stevenson, Donald

T. Sloan, Ryan Zuidema, Kristen Borak,

City of Lynchburg Virginia; Defendants/

Appellees and Commonwealth of Virginia,

Intervenor/Appellee.

Date of Opinion/: April 15, 2024 (Affirming by

unpublished per curiam opinion)

Order

and is attached at App. 3-6

Counsel/Pro Se litigant is unaware of any related

proceedings arising from the same trial court and

appellate case as this case than those proceedings

appealed here.

TABLE OF CONTENTS

Page

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

STATEMENT OF RELATED PROCEEDINGS ... iii

TABLE OF CONTENTS

TABLE OF APPENDICES

TABLE OF CITED AUTHORITIES

Vll

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL/STATUTORY PROVISIONS

INVOLVED...................................................

STATEMENT OF THE CASE

REASON FOR GRANTING THE PETITION

Automatically releasing a booking photo

prior to a proper due process hearing is

an unconstitutional due process violation

under the fourteenth amendment.............

The Background of “booking photos”,

Table of Contents

a. Legitimate state purposes

Page

b. Illegitimate purposes

Damages

Freedom of Information Act (FOIA) and

Virginia Statute § 2.2-3706 ..............

a. Background of FOI A and Virginia

Statute § 2.2-3706 ......................

b. Privacy Analysis and FOIA

United States Constitution

a. Background of Due Process

b. Analysis of Due Process to Booking

photos.........................................

c. Analysis Competing Opinions

The Supremacy Clause

a. Federal Law Enforcement Standard.. 18

CONCLUSION

TABLE OF APPENDICES

Page

APPENDIX A OPINION IN THE UNITED

STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

(APRIL 15,2024) .......................................... App. 1

APPENDIX B ORDER IN THE UNITED

STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF

VIRGINIA (JUNE 8,2023)........................... App. 3

Vll

TABLE OF CITED AUTHORITIES

Page

CASES:

Dep’t of the Air Force v. Rose,

425 U.S. 352 (1976)............

Detroit Free Press, Inc. v. United States DOJ,

829 F.3d 482 (6th Cir. 2016)......................... 4,14,19

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022)....... .............

Karantsalis v. United States DOJ,

635 F.3d 497(2011)..................

Marbury v. Madison,

5 U.S. 137(1803).

17,18

Mathews v. Eldridge,

424 U.S. 319 (1976)

6,13

Paul v. Davis,

424 U.S. 693 (1976)

7,15,16,17,19

Roe v. Wade,

410 U.S. 113 (1973)

Times Picayune Publ’g. Corp. v. United States DOJ,

37 F. Supp. 2d 472 (E.D. La. 1999)..................

Washington v. Glucksberg,

521 U.S. 702 (1997)....

Vlll

Cited Authorities

Page

World PubPg Co. v. United States DOJ,

672 F.3d 827 (2012).........................

9,10,18

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND RULES

U.S. Const., Amend. VI

13,14

U.S. Const., Amend. XIV

1,12

VA. Code § 2.2-3706

1, 7,8,11

Fed. R. App. P. 25(a)

Fed. R. Bankr. P. 9037

Fed. R. Civ. P. 5.2

Fed. R. Crim. P. 49.1

OTHER SOURCES

George C. Christie, Injury to Reputation

and the Constitution: Confusion Amid

Conflicting Approaches, Michigan L. Rev.

Vol. 75 No. 1 pp. 43-67 (November 1976).........

Kathryn Shephard, Mug Shot Disclosure Under

FOI A: Does Privacy or Public Interest Prevail?,

Northwestern Univ. L. R. Vol. 108, No. 1, 350

(2014).............................................................

Cited Authorities

Page

CUS-SEP/OCT 01, pp. 48-50 and JCUS-SEP 03,

pp. 15-16; Fed. R. App. P. 25(a), Fed. R. Bankr. P.

9037, Fed. R. Civ. P. 5.2, and Fed. R. Crim. P.

49.1

Belinda Palmada, Man’s life destroyed after

woman falsely accused him of rape, News.com.

au, (January 18, 2023) at https://www.news.

com.au/world/europe/mans-life-destroyedafter-womanfalsely-accused-him-of-rape/

news-story/9d5cd767fc69ab526c97d5cfd26cadc0.. .11

Rachel Mahoney, Jury Finds Lynchburg

Man Not Guilty Thursday, The News

& Advance, (December 19,2019)....................

The Associated Press, After more than 70 years,

4 Black men wrongly accused of rape have

been exonerated, NPR (November 22, 2021)

at https://www.npr.org/2021/ll/22/1058169726/

groveland-four-exonerated;........................... .

Cindy E. Rodriguez, Woman Who Falsely

Accused Duke Lacrosse Players of Rape

Charged With Stabbing Boyfriend, ABC

News, (April 4, 2011) at https://abcnews.

go.com/US/woman-accused-dukelacrosse-teammembers-rape-charged/story?id=13295161...

Eugene J. Kanin, False Rape Allegations,

Polygrah Vol. 30 Issue 3 163-171 (2001)...........

Cited Authorities

Page

Borger, JohnP., etal., RECENT DEVELOPMENTS

IN MEDIA, PRIVACY, AND DEFAMATION

LAW, Tort Trial & Insurance Practice

Law Journal, vol. 39, no. 2 (2004).................... 12,16

Leonard G. Ratner, The Function of the Due

Process Clause, University of Pennsylvania

Law Review 116, no. 6 1048-1117 (1968).........

Kuckes, Niki. Civil Due Process, Criminal

Due Process, pp.1-61 Yale Law & Policy

Review, vol. 25, no. 1, (Fall, 2006)..................

David Cotriss, Keep It Clean: Social Media

Screenings Gain in Popularity, Business News

Daily (January 23, 2023) at https://www.

businessnewsdaily.com/2377-social-mediahiring.html........................... .........................

Alan Dershowitz, Guilt by Accusation: The

Challenge of Proving Innocence in the Age of

#MeToo, (Skyhorse Publishing, 2019)..............

Karlyn Borysenko, The Dark Side of #MeToo:

What Happens When Men Are Falsely Accused,

Forbes (February 12, 2020) at https://www.

forbes.com/sites/karlynborysenko/2020/02/12/

the-dark-side-of-metoo-whathappens-whenmen-are-falsely-accused/?sh=358cc6b0864d..

Cited Authorities

Page

Harold J. Berman, Faith and Order,

The Reconciliation of Law and Religion,

p.12 (John Witte, Jr. 1993)...............................

Abner S. Greene, Checks and Balances in an Era

of Presidential Lawmaking, The University

of Chicago Law Review, vol. 61, no. 1, 123-96

(1994).................................................. ..........

OPINIONS BELOW

The United States Court of Appeals for the Fourth

Circuit’s opinion is an unpublished per curiam opinion

and attached herein at App. 1-2. Other Opinions below

are attached herein at App. 3-6.

JURISDICTION

The United States Court of Appeals for the Fourth

Circuit issued its opinion on April 15, 2024, which is an

unpublished per curiam opinion. Petitioner Christopher

G. White invokes this Court’s jurisdiction under 28 U.S.C.

§ 1257(a), having timely filed this petition for writ of

certiorari within ninety (90) days of the Federal Appellate

Court Order.

CONSTITUTIONAL/STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States

Constitution and relevant portions of the Virginia Code

are reproduced here.

United States Constitution

Fourteenth Amendment, Section 1—

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Virginia Statute

Virginia Code §2.2-3706—

Sec. 2.2-3706. Disclosure of law-enforcement

and criminal records; limitations.

A. Records required to be released. All public

bodies engaged in criminal law-enforcement

activities shall provide the following records

when requested in accordance with the

provisions of this chapter: 1. Adult arrestee

photographs taken during the initial intake

following the arrest and as part of the routine

booking procedure, except when necessary

to avoid jeopardizing an investigation in

felony cases until such time as the release of

the photograph will no longer jeopardize the

investigation; 2. Information relative to the

identity of any individual, other than a juvenile,

who is arrested and charged, and the status of

the charge or arrest; and ...

STATEMENT OF THE CASE

Petitioner Christopher G. White lost is his business

as an attorney as a direct result of the unconstitutional

release of his booking photo, was harassed in the

community and, to this day faces decreased personal life

and negatively affected employment prospects. If a solo

practitioner of a legal services business has a booking

photo released on the internet described by a sex crime,

business stops. There is no legitimate state purpose to

release a booking photo absent a fugitive of justice, guilty

plea, or conviction. Petitioners case was a shame in general

lacking foundational basis for the proceedings.

The prosecutor in the case committed various acts

that display ethical violations, court room fraud and, just

gets away with it because of some whole sale unwarranted

immunity. The Police officer in the case falsely arrested

petitioner after no due diligence and utter incompetence.

The allegations against the petitioner were derived from

arbitrary government decision making and a false accuser

prescribed anti-psychotics. There is no reasonable grounds

to release a booking photo absent due process because the

fact is there will always be people in power that should not

be. Waiting for a hearing before the government destroys a

Citizens name, image and reputation is a small price to pay

to make sure they are doing the right thing before they do

it. And, in concurrence with the case law, in a reputation

based business this affects employment, most certainly.

When a U.S. Citizen has there booking photo released

their employment prospects for the rest of their natural

life is diminished, that is undeniable in the internet age.

This is true for any charge but, certainly a sex crime

charge. The booking photos are never taken off the

internet and, an expungement proceeding upon a finding

of innocence does absolutely nothing to change that. This

is an unconstitutional, due process violating, taking from

the government and must stop.

REASON FOR GRANTING THE PETITION

I. Automatically releasing a booking photo prior to a

proper due process hearing is an unconstitutional

due process violation under the fourteenth

amendment.

Injustice and utter disregard for some of the most

basic U.S. Constitutional rights is continually infringed

upon by state and local law enforcement. The automatic

disclosure of booking photos is a U.S. Constitutional Due

Process Clause violation and therefore unconstitutional.

Booking photos are the photographs taken during the

intake process of arrestees by law enforcement. Upon

arrest, most U.S. state governments immediately release

booking photos on the internet. Anything released on the

internet is permanent and never taken down. The U.S.

federal government no longer releases booking photos of

arrestees unless, there are extenuating circumstances (i.e.

fugitive from justice) because they are “the vulnerable

and embarrassing moments immediately after [an

individual is] accused, taken into custody, and deprived

of most liberties and jit squarely within this realm of

embarrassing and humiliating information-”1

The Background of “booking photos”

Legitimate state purposes:

Whenever the government seeks to impose its power

or interfere in the lives of natural born United States

citizens, it must do so within the bounds of the U.S.

1. Detroit Free Press, Inc. v. United States DOJ, 829 F.3d 482

Constitution, and that requires laws be “rationally related

to legitimate government interests.”2 Objectively, it is a

legitimate government interest for the authorities to take

a booking photo during the intake process of an arrestee.

The sole purpose of which must be for release if an accused

absconds or is generally a fugitive from justice. There is no

other legitimate state purpose in the pre-hearing release

of booking photos, none. To the contrary, in a charge

anyone for anything without even basic probable cause

atmosphere, the prehearing release of booking photos

only serves an abhorrent agenda, or equally as worse the

local incompetent law enforcement officer’s personal bias.

If there is a conviction and the nature of the charge

warrants notice to the public, then it would be a legitimate

state interest to release a booking photo after the

conviction, but not before United States Constitutional

Due Process has taken place.

Illegitimate purposes:

The illegitimate purposes related to the pre-hearing

release of booking photos are insurmountable and

undeniable. Today, there are people working within

our federal, state and local governments that would

utilize their citizen entrusted power to harass others

and engage in arbitrary government decision making.

What is immensely important with that assertion is that

there really is no legitimate state purpose in the prehearing release of booking photos because the motives of

authorities in our nation is not always legitimate.

2. Washington v. Glucksberg, 521 U.S. 702, 728 (1997)

Damages:

The definition of “what damages are?” related to

mugshots can be straightforward and at the same time,

elusive.3 The Supreme Court of the United States has

examined damages in multiple defamation suits and,

as part of that analysis utilizes all of the facts and

circumstances surrounding a case. For example, the

application of a “malice standard.”4 If an official state

actor, like a law enforcement officer, is acting without

diligence or worse under an unconstitutional “I don’t like

this person” analysis, gross incompetence, there is malice.

And, certainly arbitrary government decision making.

In any event, the pre-hearing release of booking

photos amounts to an extreme defamation and taking by

state governments. The monetary economic damages of

which are astronomical and permanent. Most employers

do a background check of some sort on new employees

today. Or, at least a quick internet search. If a booking

photo of a potential employee pops up regardless of

innocence, they are less likely to get hired. That fact

is undeniable. For that sole purpose, there serves little

legitimate argument that there is no “government taking”

when there is a pre-hearing release of a booking photo. A

“government taking,” is what triggers the right to United

States Constitutional Due Process.5

3. George C. Christie, Injury to Reputation and the

Constitution: Confusion Amid Conflicting Approaches, Michigan

L. Rev. Vol. 75 No. 1 pp. 43-67 (November 1976).

4. Supra Note 4 at 59

5. Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

Affecting someone’s employment prospects, certainly

permanently, is a matter the Supreme Court of the United

States recognizes as a Constitutional Right.6 Because, it

is not the governments place to take from U.S. citizens

without a hearing. Government taking without an

opportunity to be heard, is a general usurpation of the

Due Process Clause of the Fourteenth Amendment.

Freedom of Information Act (FOIA) and

Virginia Statute § 2.2-3706

Legislatures rest their analysis on the reasoning

of government transparency as to why a prehearing

release of booking photos is warranted. However, this is

a false analysis, because booking photos are minimally

related to the government conduct at the center of FOIA’s

reasoning. FOIA was enacted to shed light on government

conduct, not to harass, embarrass and permanently affect

employment prospects of natural born United States

Citizen.

Background of FOIA and Virginia Statute

§ 2.2-3706:

The Freedom of Information Act was enacted so that

concerned citizens could monitor government conduct.

Previous to FOIA government agencies had a tendency

not to disclose requested information to the public.7

The Freedom of Information Act was meant to change

6. Paul v. Davis, 424 U.S. 693 (1976)

7. Kathryn Shephard, Mug Shot Disclosure Under FOIA:

Does Privacy or Public Interest Prevail?, Northwestern Univ. L.

R. Vol. 108, No. 1,350 (2014).

that. Upon the enactment of FOIA, state legislatures

followed suit and some had already enacted their own

form of FOIA. In Virginia, the FOIA Statute is § 2.23706. Unfortunately, this conflagration of different FOIA

regulations has resulted in disjointed interpretations by

Federal Courts regarding FOIA and a whole separate

analysis for State Courts. But any way the laws are

interpreted, the United States Constitution’s due process

clause is violated with respect to automatic booking photo

disclosure.

FOIA has an exemption to disclosure that mentions

privacy. This exemption directly, references that which

would “... constitute an unwarranted invasion of personal

privacy.”8 Since the establishment of this exemption to

FOIA disclosure, only one of the four Supreme Court of

the United States cases have favored disclosure over non

disclosure.9 The Court in the unfavorable non-disclosure

case of Department of the Air Force v. Rose, relied on the

legislative history for statutory interpretation.10

Privacy Analysis and FOIA:

The Court in World Publ’g Co. v. United States DOJ

asserted that there is a test in order to determine if there

is an unwarranted invasion of personal privacy in favor

of non-disclosure. “A court must (1) determine if the

information was gatheredfor a law enforcement purpose;

8. Supra Note 7 at 343

9. Supra Note 7 at 346

10. Supra Note 7; Dep’t of the Air Force v. Rose, 425 U.S.

352 (1976)

(2) determine whether there is a personal privacy interest

at stake; and if there is (S) balance the privacy interest

against the public interest in disclosure.”11

The first prong of this test is satisfied, for there is little

dispute that booking photos are taken for a legitimate

law enforcement purpose. For example, if an accused

absconds, becomes a fugitive from justice or is convicted of

a crime warranting notice to the public. For those reasons

a booking photo should be taken to later release to the

public if the condition arises. Therefore, it is reasonable

that law enforcement take booking photos.

For the second prong of the test, the Court found

that “the fact that an event is not wholly private does

not mean that an individual has no interest in limiting

disclosure or dissemination of the information. ” A

“booking photo is intendedfor use only by a specific and

small group of people—further reason for a court to

protect an individual's privacy interest in that photo. m2

Just because there is a legitimate government interest

rationally related to booking photos, does not mean the

government should be disclosing these booking photos

publicly to just anyone automatically.

An analogy to this assertion is that in all jurisdictions

a litigant or person of subject in litigation has a right that

their social security number not being disclosed publicly,

why should a booking photo be any different absent

11. World Publ’g Co. v. United States DOJ, 672 F.3d 827,2012.

12. Id. at 828.

purpose and circumstance?13 If you have a right to privacy

in your social security number, a number on a piece of

paper, then in what realm does logicality proffer that you

have no right to privacy in a photo forced on you? In one of

the most vulnerable moments after your rights have been

stolen from you, something that is later used for nothing

short of extortion, harassment and Unconstitutional

conduct? Through very basic reason, we see that there is

a foundational privacy interest.

The third and final prong of the test dictated is the

balance of the first two. The Court opines that release of

a booking photo:

“is not fostered by disclosure of information

about private citizens that is accumulated in

various governmental files but that reveals

little or nothing about an agency’s own

conduct. In this case—and presumably in

the typical case in which one private citizen

is seeking information about another—the

requester does not intend to discover anything

about the conduct of the agency that has

possession of the requested records.”u

In most of the cases surrounding automatic prehearing

disclosure, it is the media that is the proponent of

automatic disclosure. Congress did not intend for those

that run the national media’s schadenfreude departments

13. CUS-SEP/OCT 01, pp. 48-50 and JCUS-SEP 03, pp. 1516; Fed. R. App. P. 25(a), Fed. R. Bankr. P. 9037, Fed. R. Civ. P.

5.2, and Fed. R. Crim. P. 49.1.

14. Supra, note 14 at 830.

to be served by FOI A, to sully the good names of United

States Natural Born Citizens whom may themselves be

the victim of some setup, predatory act, or lack of law

enforcement diligence.15 Not everyone who has had their

booking photo taken has been the subject of proper cause,

objective law enforcement action or general fairness and

reason. Some have actually been the subject of a predatory

act of the accuser.16

In sum, we see by careful examination of the case law

surrounding privacy and the Freedom of Information Act,

that controlling Courts recognize a legitimate privacy

interest in booking photos and, in favor of non-disclosure.

Courts have had this issue presented to them numerous

times throughout the history of FOI A and more often than

not they find in favor of the individual’s privacy interest.

The issue is no longer at the federal level but at the state

level. Virginia Statute § 2.2-3706 must be reigned in

because at its foundation, there is a legitimate privacy

15. Belinda Palmada, Man’s life destroyed after woman

falsely accused him of rape, News.com.au, (January 18, 2023)

at https://www.news.com.au/world/europe/mans-life-destroyedafter-woman-falsely-accused-him-of-rape/news-story/9d5cd767f

c69ab526c97d5cfd26cadc0

16. Rachel Mahoney, Jury Finds Lynchburg Man Not Guilty

Thursday, The News & Advance, (December 19, 2019); The

Associated Press, After more than 70 years, 4 Black men wrongly

accused of rape have been exonerated, NPR (November 22,

2021) at https://www.npr.org/2021/ll/22/1058169726/grovelandfour-exonerated; Cindy E. Rodriguez, Woman Who Falsely

Accused Duke Lacrosse Players of Rape Charged With Stabbing

Boyfriend, ABC News, (April 4,2011) at https://abcnews.go.com/

US/woman-accused-duke-lacrosse-team-members-rape-charged/

story?id=13295161; Eugene J. Kanin, False Rape Allegations,

Polygrah Vol. 30 Issue 3 163-171 (2001).

interest in the non-disclosure of booking photos taken of

natural born United States Citizens.

United States Constitution

Due process is a basic requirement under the

Fourteenth Amendment of the U.S. Constitution.17 It

is well founded that your name, image and likeness (a

photo of you) is your property and especially if a person

or entity attempts to use it for commercial purposes or if

the government seeks to deprive you of your property.18

Your employment prospectus is your property.

Background of Due Process:

The Due Process Clause of the United States

Constitution provides foundational protection against

arbitrary decisions by legislatures, law enforcement

and institutional injustice.19 Due process is a basic

requirement under the U.S. Constitution that “a person

may not constitutionally be deprived of “life, liberty or

property ” by governmental action without notice and a

meaningful opportunity to be heard. ”20 The following case

17. Amendment 14, USCS Const. Amend. 14 (1868).

18. Borger, John P., et al., Recent Developments In Media,

Privacy, and Defamation Law, Tort Trial & Insurance Practice

Law Journal, vol. 39, no. 2 (2004)

19. Leonard G. Ratner, The Function of the Due Process

Clause, University of Pennsylvania Law Review 116, no. 6 10481117 (1968).

20. Kuckes, Niki. Civil Due Process, Criminal Due Process,

pp.1-61 Yale Law & Policy Review, vol. 25, no. 1, (Fall, 2006).

is controlling law to determine if the Due Process Clause

of the U.S. Constitution applies to a government taking.

In Mathews v. Eldridge, the court prescribes a test

as to whether a matter is a Due Process violation.21 The

factors that are described by the court for due process

are essential to our understanding of what due process

protects. Due Process protects against erroneous

deprivations by the government. The Court described

the following test:

“ . . . due process generally requires

consideration of three distinct factors: First',

the private interest that will be affected by

the official action; second, the risk of an

erroneous deprivation ofsuch interest through

the procedures used, and the probable value,

if any, of additional or substitute procedural

safeguards; and finally, the Government’s

interest, including the function involved

and the fiscal and administrative burdens

that the additional or substitute procedural

requirement would entail. ”22

Analysis of Due Process to Booking

photos:

When applying the Mathews test we look at each

factor. With the first factor, it becomes clear that the

private interest affected by law enforcement charging

and arresting a citizen; and then releasing a booking

21. Mathews v. Eldridge, 424 U.S. 319,334 (1976).

22. Supra Note 24.

photo without a hearing is an erroneous and capricious

deprivation. The systemic inherent effect on the future

trajectory of a person who has had their booking photo

released is obvious, and certainly so in the internet age.

In other words, there is a clear taking by the government

when they post these photos on the internet. For anytime

something is posted on the internet, it is there in perpetuity

permanently. It is there for any future employer, associate,

third party or those that would seek to defame but for the

sole purpose of their own salaciousness. The first prong

of the Due Process Clause test is violated, unequivocally.

Next, we turn to the Courts second factor in Mathews,

which is far simpler to address. This factor, when

evaluating booking photo releases, is clearly violated and

requires little discussion because there is no hearing or

procedure whatsoever. Currently, there is no hearing

before the government releases a booking photo to

the public. Unless a citizen is arrested by the Federal

Government or two states in the U.S., their booking photo

is released.23 They have achieved this by disregarding the

right to cross-examine evidence in an open public court.24

Finally, we address the Courts last prong of the

Mathews test as to whether a matter violates Due Process.

The Government has no legitimate interest in the pretrial,

pre-hearing release of booking photos. To the contrary,

this has economic implications on those that are falsely

accused and matters that are generally unfounded.

Unless a person is convicted or a fugitive from justice

23. Detroit Free Press, Inc. v. United States DOJ, 829 F.3d

478

24. Amendment 6, USCS Const. Amend. 6 (1791).

there serves no legitimate state interest in the release

of booking photos. And, let’s say hypothetically for some

unclear reason that the government interest were served

by releasing these booking photos pre-conviction. The

burden of including a hearing on the matter is de minimis

and could easily be addressed at the first hearing related

to matters (i.e. bond hearing, arraignment, preliminary

hearing). Our judicial system in general is a slow engine,

there serves no legitimate purpose in expeditiously

releasing booking photos as opposed to waiting for a

proper hearing. In any event, the burden would not be

great for courts but, that’s only if you get to that prong of

the test, which we do not because of the former.

Analysis Competing Opinions:

The United States Supreme Court has addressed the

issue of booking photo disclosure and Due Process in Paul

v. Davis in 1976. In a Split decision the Court asserted

that a person does not have a Due Process interest in

that “The words “liberty” and “property” as used in

the Fourteenth Amendment do not in terms single out

reputation as a candidate for special protection over

and above other interests that may be protected by state

law.”25 But, we must bear in mind that Justice Rehnquist

wrote this opinion well over forty eight years ago in 1976,

decades before the public use of the internet and therefore

the permanent employment effects of these acts were not

fully recognized as herein today. To the contrary, in 1976

TV’s were large cub boxes, most got their news from a

piece of paper and phones were tied to wires.

25. Paul v. Davis, 424 U.S. 693 (1976).

The employment discussion is important, because

today you will be looked over for employment based

solely on things like internet booking photos.26 In Justice

Rehnquist’s opinion he specifically cited employment as a

reasonable Due Process applicable right in that the “drastic

effect of the “stigma” which may result from defamation

by the government in a variety of contexts, this line of

cases does not establish the proposition that reputation

alone, apart from some more tangible interests such

as employment.” Today the internet is used to harass

on a level not cognizable in 1976, nefarious groups can

incessantly molest others through its maleficent use, and

the authorities do little to curb this.27 In 1976, it just was

not the case as today.

Within Paul v. Davis, the Court specifically references

privacy law and this is a vital consideration because the

evolution of privacy law since 1976 has been substantial.28

The Supreme Court of the United States, over the decades

has increasingly recognized privacy interest since it issued

the Davis opinion.

Furthermore, three Justice’s Brennan, Marshall

and White dissented in Paul v. Davis. The distinguished

26. David Cotriss, Keep It Clean: Social Media Screenings

Gain in Popularity, Business News Daily (January 23, 2023) at

https://www.businessnewsdaily.com/2377-social-media-hiring.

html

27. Alan Dershowitz, Guilt by Accusation: The Challenge of

Proving Innocence in the Age of #MeToo, (Skyhorse Publishing,

2019); Karlyn Borysenko, The Dark Side of #MeToo: What/

28. Borger, John R, et al., RECENT DEVELOPMENTS IN

MEDIA, PRIVACY, AND DEFAMATION LAW” Tort Trial &

Insurance Practice Law Journal, vol. 39, no. 2 (2004)

dissenting justices with Brennan writing, opined that

“The Court accomplishes this result by excluding a

person’s interest in his good name and reputation from

all constitutional protection, regardless of the character

of or necessity for the government’s actions. The result,

which is demonstrably inconsistent with our prior

case law and unduly restrictive in its construction of

our precious Bill of Rights, is one in which I cannot

concur.. ”29 As with a lot of matters in the law, often it

becomes necessary to reexamine issues that have been

presented in the past.30 Otherwise old and generally

antiquated opinions and analysis would remain in effect

indefinitely, even when the circumstances of the world

have changed. At its foundation, Davis no longer applies

because the analysis used in Davis is antiquated and has

been changed by the Court.

The Supremacy Clause

The U.S. Constitution, because it is the supreme law

of the land has in its inherent ability and applicably the

authority to invalidate state law. Because, “the court

is “bound” by the statute; the legislature is “bound”

by the constitution.”31 The Court can invalidate state

statutes when they are found to violate the United States

Constitution.32 This is known as judicial review. Judicial

29. Paul v. Davis, 424 U.S. 693 (1976)

30. Roe v. Wade, 410 U.S. 113 (1973); Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228 (2022)

31. Harold J. Berman, Faith and Order, The Reconciliation

of Law and Religion, p.12 (John Witte, Jr. 1993).

32. Marbury v. Madison, 5 U.S. 137 (1803)

review is a tool used by courts and is a part of the basic

notion of checks and balances in the government.33

Because, when we think about our rights as U.S. citizens,

we should not be thinking about one branch of government

over the other. The Founders intended for each branch

of government, the legislature, the executive, and the

judiciary to protect our rights as natural born United

States Citizens.

Nothing is safe while legislature is in session and the

U.S. Supreme Court understood this over two hundred

years ago when it issued its opinion in Marbury v.

Madison. In Marbury, the Court first established that

it had the power to overturn an act of legislation when it

violated the U.S. Constitution.34

Federal Law Enforcement Standard:

After significant opposition from only media

organizations, Federal law enforcement no longer

automatically releases booking photos of arrestees.

Today, if you are arrested by federal law enforcement

your booking photo will not be released automatically.35

This is also true in two states, but not most. United States

Federal Courts have directly addressed this issue, and

33. Abner S. Greene, Checks and Balances in an Era of

Presidential Lawmaking, The University of Chicago Law Review,

vol. 61, no. 1,123-96 (1994).

34. Marbury v. Madison, 5 U.S. 137 (1803)

35. Karantsalis v. United States DOJ, 635 F.3d 497, 2011;

World Publ’g Co. v. United States DOJ, 672 F.3d 825,2012; Times

Picayune Publ’q. Corp. v. United States DOJ, 37 F. Supp. 2d 472,

477 (E.D. La. 1999).

since the last time the Supreme Court of the United States

has addressed this in Paul v. Davis, the privacy analysis

has changed substantially:

“In the vulnerable and embarrassing

moments immediately after an individual is

accused, taken into custody, and deprived of

most liberties, fit squarely within this realm of

embarrassing and humiliating information.

More than just vivid symbols of criminal

accusation, booking photos convey guilt to the

viewer. Indeed, viewers so uniformly associate

booking photos with guilt and criminality

that we strongly disfavor showing such photos

to criminal juries. The Sixth Circuit has

condemned the practice of showing ‘mug shot’

evidence to a jury as effectively eliminating

the presumption of innocence and replacing

it with an unmistakable badge of criminality.

This alone establishes a non-trivial privacy

interest in booking photos. ”36

We can easily draw the analytical chain to a multi

day jury using a basic google search to find a booking

photo of accused persons on the internet. A booking

photos mere image projects guilt on to the viewer, this

is undisputable prejudicial conduct. Even without any

evidentiary indication, a viewer is likely to perceive an

accused as guilty even though they themselves may be

the victim of a crime perpetuated by the local medically

diagnosed psychiatric patient filing false police reports, a

36. Detroit Free Press, Inc. v. United States DOJ, 829 F.3d 478,

482 (6th Cir. 2016)

law enforcement officers lack of even basic due diligence,

or prosecutorial arbitrary government decision making

and court room fraud. This is a permanent employment

effecting due process triggering event by the government.

CONCLUSION

The United States Constitution was signed on

September 17th, 1787. Due Process of law is a basic

principle that is triggered and violated by automatic

booking photo disclosure. A small but at the same time

significant secession from the powers that be incessant

and generally cruel befuddlement of releasing their

harassing booking photos is but little price to pay to make

sure they are doing the right thing before they do it.

Respectfully submitted,

Christopher G. White

Petitioner Pro Se

P.O. Box 246

Forest, VA 24551

(434) 660-9701

Chriswhitelawyer@gmail.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.