Why the Gianforte mugshot matters 

On Aug. 25, Montana Congressman Greg Gianforte had his mugshot taken at the Gallatin County Detention Center. The photo was taken after a protracted legal battle ended with Justice Court Judge Rick West ordering Gianforte to submit to the same booking process as other people charged with a crime. Rather than settle the issue, however, that mugshot launched another round of judicial wrangling when Gallatin County Attorney Marty Lambert declined to release it to the press, leaving its dissemination as a matter for District Judge Holly Brown to decide.

Seven media outlets petitioned the court for the mugshot, and the Bozeman Daily Chronicle quoted court clerks Aug. 28 saying that a ruling from West would take at least two weeks. Lambert told the Indy on Oct. 2 that Gianforte's attorneys had filed responses to all seven petitions and did not object to the mugshot's release. Brown received the requests Oct. 3. As of press time, no ruling on the mugshot's release had been issued.

If and when Gianforte's booking photo is made public, it will doubtless wind up as fodder for attack ads in his 2018 re-election campaign. Newspapers across the state will certainly run it, if for no other reason than to complete the story of the congressman's election-eve assault on Guardian reporter Ben Jacobs and subsequent conviction. But the battle to secure the photo's release has underscored a bigger issue in Montana, one that many thought was resolved more than a year ago. When it comes to mugshots, which portion of the state Constitution prevails: the individual's right to privacy or the public's right to know?

In fall 2015, District Judge Jon Oldenburg came down on the side of the latter, ruling that Park County must release the booking photo of a registered violent offender charged with aggravated assault. Oldenburg's order set the precedent on the issue in Montana, and prompted Gallatin County's Lambert to request an opinion from Attorney General Tim Fox declaring mugshots confidential criminal justice information. Fox declined to do so in December 2015.

click to enlarge Rep. Greg Gianforte is at the center of a public-records fight in Gallatin County. This is not his mugshot. - PHOTO BY ALEX SAKARIASSEN
  • photo by Alex Sakariassen
  • Rep. Greg Gianforte is at the center of a public-records fight in Gallatin County. This is not his mugshot.

The issue isn't unfamiliar to Jim Rickman, president of the Montana Newspaper Association. MNA and several other organizations, including the Montana Association of Chiefs of Police, sought a solution during the 2017 Legislature, lobbying for House Bill 236, which would have codified Oldenburg's decision and added booking photos to the list of criminal justice information that state law considers public. Rickman says the bill was "hijacked" by House Judiciary Chairman Alan Doane, who amended it to bar the release of mugshots without a court order or the permission of the mugshot subject. Doane explained his amendment in committee by comparing booking photos to revenge porn, claiming that mugshots can ruin lives.

"There's a person at home, I don't even know him, but I would know him if he walked in the door," Doane said Jan. 25, "because I've seen his picture plastered all over the Billings Gazette and the local newspaper at home. And then a couple months later, he was found not guilty of all the charges against him."

The bill was voted down 45 to 55 in February.

Rickman today says the Legislature is just one avenue for definitive guidance. An opinion from the attorney general would offer a solution, as would a court case directly addressing the issue. Rickman cites an MNA survey of state newspapers that revealed roughly 85 percent of counties and municipalities already release booking photos to the media. Still, the issue remains unsettled.

"In some ways this is such an outlier," says Montana Standard editor David McCumber, whose paper is among those seeking Gianforte's mugshot. "How often do you get a situation where the mugshot involves a congressman? But the issue to us is the same as with any mugshot taken after a felony arrest or even a misdemeanor arrest. We feel like those should be a matter of public record."

As for why journalists would work so hard for a single photo, Rickman says the answer goes to the core of what the press does, regardless of Gianforte's political status.

"The photo helps tell the story," Rickman says. "Photography in journalism is essential. It always has been. ... That's why it's important to us."

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