Arrest Records

An arrest is the first thing that happens in a criminal case, and in a large share of cases it is the only thing that happens. The FBI's Uniform Crime Reporting program counts millions of arrests a year, and a large share of them never become a conviction: the prosecutor declines, the charge is dismissed, the jury acquits, or nobody ever files anything at all. In the Bureau of Justice Statistics' long-running study of felony defendants in the 75 largest counties, roughly a third of felony cases ended without a conviction, and those are the cases that were serious enough to be filed. Every one of those arrests produced a record at booking, before a prosecutor read the file, before a judge saw the person, before anyone proved anything. That record, and the photograph taken with it, is the most public document in the whole criminal system, and it is the one that keeps circulating after the case is dropped. This page is about that record: where it is made, who copies it, why it does more damage than a conviction, and how it comes down.

An arrest makes three records on the day it happens, and a fourth only if the case goes on.

The booking record is made at the jail: the name, the date of birth, the charges as booked, the bail, the custody status, and the booking photograph. This is the record on the jail roster and the daily booking log, and in most states it is public by statute the day it is made.

The arrest report is made at the agency that made the arrest: the officer's narrative, the witnesses, the evidence. This one is mostly not public. What the public sees of it is the log entry.

The public log is what the agency releases: the daily arrest log at the counter or on the website, the press release for a notable arrest, the post on the department's social media page, and the copy the local newspaper prints from it. In California, for one, Government Code section 7923.610 says a law enforcement agency "shall make public" for every arrest "the full name and occupation of every individual arrested by the agency," the "physical description including date of birth, color of eyes and hair, sex, height, and weight," "the time and date of arrest," "the time and date of booking," "the location of the arrest," "the factual circumstances surrounding the arrest," "the amount of bail set," where the person is held or how they were released, and "all charges the individual is being held upon," with the only exception being danger to a person or to an investigation. That is why every sheriff in the state can publish a booking log, and why most do. Notice what is on that list and what is not: the date of birth is public at the jail door, on the day of arrest, and is stripped out of the court index later by the rule described on the criminal records page, so the arrest record is the one copy that carries the identifier the court record lacks.

The court file starts only if a prosecutor files a charge. Many arrests never get that far, and for those there is no case number, no docket, no court index entry, and nothing for the court to seal or dismiss, because nothing was ever filed. The arrest exists only in the jail's record, the agency's report, the public log and every copy that was made of it.

There is one more copy, and it is the one that matters most for the future. The fingerprints taken at booking go to the state's criminal history repository, and the arrest is entered on the person's record there with the disposition pending. That entry is updated only if the court or the prosecutor reports what happened next, and a great many never do. The federal government has said so itself: the Equal Employment Opportunity Commission's guidance on criminal records notes that "as of 2010, many state criminal history record repositories still had not recorded the final dispositions for a significant number of arrests," and that "a 2006 study by the DOJ/BJS found that only 50% of arrest records in the FBI's III database were associated with a final disposition." An arrest with no disposition on a rap sheet looks, to anyone reading it, like an open case, and half of them are.

A conviction lives in a court index. It has no photograph. Nobody issues a press release about it, no newspaper prints the day's convictions, and nobody finds it unless they search the index of the county where it happened. A conviction is a serious record that is hard to find.

An arrest is the opposite. It is published by the police the same day, with a photograph, in a log that is built to be copied. It is picked up by the local paper, posted on the department's social media page, scraped into the national databases, reposted on the mug shot sites, and indexed by the search engines under the person's name, with the face attached. An arrest is a record of nothing proven that is easy to find.

For the person who was never charged, or whose case was dismissed, that is the whole injury. The outcome is never published with the same energy as the arrest. No agency issues a press release saying the person was released without charge, no newspaper prints the dismissal on the page where it printed the booking, and no scraper goes back to the log to note that the case ended. The web holds the accusation and not the answer. The person is stained by a record that says only that a police officer once thought there was reason to hold them, and that record outranks, in every practical sense, the conviction of the person in the next cell, because the conviction was never photographed.

The photograph is the worst of it. A name can be someone else's. A face cannot. A booking photograph is taken under lights designed to identify, at the worst hour of a person's life, and everyone who has ever seen one reads it as guilt. That is why the mug shot sites exist, why they can charge for removal, and why so many states have had to pass laws about them.

The copies do not come from the courts, and mostly they do not come from the police selling anything. They come from scraping. Crews run software against every police, sheriff and jail website in the country that publishes a booking log, a roster or a feed, pulling every new entry and every photograph, day after day. It is not easy work. The agencies use different systems, some publish a feed, some a page, some an interface built for their own software, so the scraper has to speak to each one in its own way, through its own interface, its own feed or its own page, and keep up when the agency changes it. The volume is millions of records and millions of photographs, which takes racks of machines and a lot of bandwidth. And the agencies' web security, the rate limits, the blocks and the firewalls, treat a scraper as an attack, so the scrapers spend much of their effort getting around them. The result is a national arrest database assembled from thousands of local logs, and that database is what is sold to the background check companies, the data brokers, the people search sites and the mug shot sites. Every "nationwide arrest search" is one of those piles, whatever name is on the screen.

That pipeline has holes, and they are permanent. Most agencies and most newspapers publish the day's arrests only. Yesterday's log is replaced by today's, the roster shows who is in custody now, and the feed holds a day or a week. If the scraper misses that day, because it was blocked, because the agency's page changed, because a machine was down, the record is gone from the copies, and nobody goes back for it. If the agency's own data is deleted by mistake, the same. If an agency's site cannot be scraped at all, because it publishes nothing, or publishes only on paper at the counter, or blocks everything, then no arrest made by that agency is in any national database. Where you were arrested decides whether your arrest is online: an arrest by a sheriff whose log is scraped every hour is on the web for good, and the same arrest by a department the scrapers never reached is nowhere.

Two things follow from that. The innocent person arrested in a scraped county carries the record forever, and the person arrested in an unscraped one does not, for no reason except geography. And a background check "arrest search" is full of holes that no one can see, because a missing record and a clean record look exactly the same on the screen.

One thing has changed in the past few years. The search engines used to put the mug shot sites and the arrest pages at the top of a search on a person's name. They now push those pages down, and a person's arrest that once came up first now takes digging to find. The record is still there, and a background check company that searches by name still finds it, but the casual search by a neighbor or a date no longer surfaces it the way it did. That is a real improvement for the innocent, and it changes nothing about the copies themselves.

The law has been trying to catch up with the copies for twenty years, and the rules are in three places.

Federal law limits what a background check may report. Under the Fair Credit Reporting Act, 15 U.S.C. 1681c, a consumer report may not include "records of arrest that, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period." Convictions have no such limit. An arrest that did not end in a conviction drops out of a background check after seven years by federal law, and a company that reports one older than that is breaking it. The same law's requirement that public record information be "complete and up to date," in 15 U.S.C. 1681k, means an arrest reported for employment must carry its current status, so a dismissed arrest reported as an arrest, with no disposition, is a record that is not up to date and can be disputed.

Federal enforcement guidance says what an arrest proves, which is nothing. The Equal Employment Opportunity Commission's guidance on arrest and conviction records, in force since April 2012, states: "The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity." The same guidance describes the copies in one sentence: "even if public access to criminal records has been restricted by a court order to seal and/or expunge such records, this does not guarantee that private companies also will purge the information from their systems or that the event will be erased from media archives." The Department of Housing and Urban Development's guidance on criminal records in housing, issued April 4, 2016, says the same for landlords: because arrest records "do not constitute proof of past unlawful conduct" and are often incomplete, "the fact of an arrest is not a reliable basis upon which to assess the potential risk to resident safety or property posed by a particular individual," and "arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification" under the Fair Housing Act.

State law goes further in the states that have acted. California's Labor Code section 432.7 forbids an employer to "ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction," and to "seek from any source whatsoever, or utilize, as a factor in determining any condition of employment," any such record. Its Civil Code section 1786.18 tells the background check companies that records of arrest "shall no longer be reported if at any time it is learned that ... a conviction did not result." Other states have similar bans, and each state page on this site names its rule.

The mug shot sites forced a second set of laws, because the sites did something the background check companies never did: they charged the person in the photograph to take it down. Paying for removal is now illegal, or removal is now free on request, in a growing list of states, and every one of these is the state's own statute.

California forbids charging for removal. Civil Code section 1798.91.1 makes it "unlawful practice for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph," counts "each payment solicited or accepted" as "a separate violation," and lets the person sue for "the greater of one thousand dollars ($1,000) per violation or the actual damages," plus attorney's fees. Penal Code section 13665 adds that "a police department or sheriff's office shall not share, on social media, booking photos of an individual arrested on suspicion of committing" a nonviolent crime, outside the exceptions it lists, and requires posted photographs to come down on request. And in May 2018 the California Attorney General charged the four alleged owners and operators of a mug shot site with extortion, money laundering and identity theft, saying they had "extracted more than $64,000" from people who paid to have their photographs taken down.

Florida's section 901.43 says that "any person or entity engaged in the business of publishing through a publicly accessible print or electronic medium or otherwise disseminating arrest booking photographs of persons who have previously been arrested may not solicit or accept a fee or other form of payment to remove the photographs," gives the person the right to "make a request, in writing, for the removal of an arrest booking photograph to the registered agent" of the publisher, requires removal "within 10 calendar days after receipt of the written request," and sets a penalty for every day the photograph stays up after that.

Georgia, in the words of its Attorney General's consumer protection division, requires a mug shot website to remove the photograph "at no charge" and "within thirty (30) days of the date the individual sends a written request to the company" when the case ended without a conviction, under O.C.G.A. 35-1-19, which also bars law enforcement agencies from handing booking photographs to anyone who will charge for their removal.

Texas requires a business that publishes criminal record information to remove an arrest record on request when the arrest did not lead to a conviction or the record is wrong, within the time set by chapter 109 of the Business and Commerce Code and without a fee.

New York removed booking photographs from its public records law in 2019: under Public Officers Law section 89 releasing a booking photograph is treated as an unwarranted invasion of personal privacy unless releasing it serves a specific law enforcement purpose, so New York agencies no longer publish them as a matter of course.

Utah, under section 17-22-30 of its code, keeps most booking photographs out of the public record until there is a conviction and forbids sheriffs from giving them to anyone who will charge for removal.

Colorado's section 24-72-305.5 makes anyone who obtains a booking photograph from a records custodian sign a statement that it "will not be placed in a publication or posted to a website that requires the payment of a fee or other exchange for pecuniary gain in order" to remove it. Oregon's ORS 646A.806 is titled for what it does, "website with photographs and information about arrested persons; requirement to remove photographs and information upon request; penalty." Illinois makes charging for removal an unlawful practice under its consumer fraud act.

Federal booking photographs are a separate case. The United States Marshals Service, which books federal defendants, states in its booking photograph disclosure policy that it "has consistently taken the position that booking photographs implicate personal privacy and should not be released under the FOIA unless a countervailing public interest" outweighs it, and in Detroit Free Press v. Department of Justice, decided by the full Sixth Circuit on July 14, 2016, the court held that "individuals have a privacy interest in preventing disclosure of their booking photos under Exemption 7(C)" of the Freedom of Information Act. A federal arrest therefore usually has no photograph in circulation at all, which is one reason federal defendants are far less visible online than people arrested by a county sheriff.

California is the state where most of these rules exist at once, and the state whose arrest records draw the most searches on this site.

The arrest itself is public. Government Code section 7923.610, quoted above, requires every agency to release the arrestee's name, description and date of birth, the charges, the time, date and place of arrest and booking, the bail and the custody status. That is why the county sheriffs publish booking logs and inmate rosters, and why the newspapers print them.

The photograph is limited. Under Penal Code section 13665 a police department or sheriff's office may not share on social media the booking photograph of a person arrested on suspicion of a nonviolent crime, outside the exceptions the section lists, and must remove a posted photograph on request when the case ended without a conviction. Under Civil Code section 1798.91.1 no one may charge to remove one.

The record can be sealed, in three ways. Penal Code section 851.91 begins: "A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed," and once sealed the arrest is treated as never having occurred for most purposes. Penal Code section 851.8 covers the case "where a person has been arrested and no accusatory pleading has been filed," and lets a person who can show factual innocence have the arrest records destroyed. And Penal Code section 851.93 makes the relief automatic: "On a monthly basis, the Department of Justice shall review the records in the statewide criminal justice databases" and grant arrest record relief, with no petition, for arrests that never led to a charge once the time to file has run. A sealing order is also the document that forces the copies to catch up, because a background check company reporting a sealed arrest is reporting a record that is not complete and up to date.

Removing an arrest record is not one job, because the arrest is not in one place. How hard it is depends on how far the arrest traveled, and the first step is the same in every case: get the paper. A letter from the prosecutor that no charge was filed, a certified copy of the dismissal or the acquittal from the clerk, or the sealing order. Nothing comes down without it, and everything comes down faster with it.

If the arrest stayed with the agency, on its booking log or its roster, it usually disappears on its own within a day or a week, because the log is replaced by the next day's. A photograph posted on the department's social media page is removed on request in the states that require it, and on a polite written request in most others.

If the arrest was scraped into the national databases, it is now held by every company that bought the pile, and each one has to be dealt with. Under the Fair Credit Reporting Act each of those companies must give you a copy of what it holds on you and must investigate a dispute. The dispute, with the paper attached, is the tool: the arrest must be reported with its current status, and an arrest that ended without a charge is not reportable at all after seven years. The state pages on this site name the state's own rules on top of the federal one.

If the arrest is on a mug shot site, the state statutes above are the lever in the states that have them: a written request with the disposition attached, removal within the statutory days, no fee, and a penalty if the site ignores it. Never pay. Paying is illegal for the site to accept in several states, it marks you as a person who pays, and the same photograph reappears on the next site run by the same people.

If the arrest was printed by a newspaper, that is the hardest copy to remove, because the paper published a true fact on the day it was true and most papers will not rewrite the past. Many papers now have a process for updating or removing old arrest stories when the case ended without a conviction, and a request with the disposition attached, sent to the editor, is the way in. Where the paper refuses, ask that the story be updated with the outcome, which most will do, and which changes what a search shows.

The search engines come last, and they only follow. They no longer put an arrest page at the top of a name search the way they once did; the page is still there, but you have to dig for it. Once the page is down or changed, a request to the search engine to refresh or remove the outdated result clears the search. Requesting removal from a search engine while the page is still up does nothing lasting.

Through all of it, the thing that works is persistence. The sites, the databases and the papers each have a person behind them, and that person removes a record when removing it is less trouble than hearing from you again. Write to the address on the site, then to the owner of the domain, then to the company's registered agent. Call the number on the site, and when there is none, the number on the domain registration or the registered agent's filing. Send the letter, then send it again with the statute quoted. A request that arrives once is filed. A request that arrives every week, from someone who has the paper and knows the law, gets the record taken out to save the company the headache. That is how most arrest records actually come down, not by a form, but by being more work to keep than to remove.

If you want to know whether a person was arrested recently, the booking log or the inmate roster of the county where it would have happened answers it, for the days the agency keeps online. The state pages on this site link every sheriff and jail that publishes one.

If you want to know whether an arrest led to a charge, the court index of the county answers it, and an arrest with no court case is an arrest that was never charged.

If you want to know what a background check will show about an arrest, the answer is the company's copy, subject to the seven year rule, and you are entitled to see and dispute it.

If you want to know what the state holds, the state repository has the arrest with or without a disposition, and the state decides who may see it, which is the subject of the criminal records page.

And if you were arrested and never convicted, the answer to what remains is: whatever copies were made, until you take them down, with the paper in hand.