WEST virginia legislature

2024 regular session

Committee Substitute

for

House Bill 4621

By Delegates Foster, Garcia and Kump

[Originating in the Committee on the Judiciary; January 17, 2024]

A BILL to amend and reenact §62-1-5 of the Code of West Virginia, 1931, as amended, relating to criminal procedure; preliminary procedure; and when a booking photograph of an accused person may be made public or published by the West Virginia Division of Corrections and amends to provide that booking photographs are not public records and amends to provide that law enforcement agencies and the Division of Corrections and Rehabilitation shall not be held liable for release of booking photographs and amends to provide that a defendant is entitled to a copy of their booking photograph and amends to require “remove for pay publications or websites” to remove a booking photograph and establishes civil liability for remove for pay publications or websites” when they do not remove.

Be it enacted by the Legislature of West Virginia:

ARTICLE 1. PRELIMINARY PROCEDURE.

§62-1-5. Same — Delivery of prisoner before magistrate; complaint for person arrested without warrant; return; photographs or booking photos and when they may be published or made public; defendant entitled to copy of booking photograph; requirements relating to booking photographs when authorized to be released; no civil liability for law enforcement agencies or the Division of Corrections and Rehabilitation in specific instances; requirements for removal and civil liability relating to remove for pay publications or websites.

(a)(1) An officer making an arrest under a warrant issued upon a complaint, or any person making an arrest without a warrant for an offense committed in his or her presence or as otherwise authorized by law, shall take the arrested person without unnecessary delay before a magistrate of the county where the arrest is made.

(2) If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith in accordance with the requirements of rules of the Supreme Court of Appeals.

(3) An officer executing a warrant shall make return thereof to the magistrate before whom the defendant is brought.

(b)(1) Notwithstanding any other provision of this code to the contrary, if a person arrested without a warrant is brought before a magistrate prior to the filing of a complaint, a complaint shall be filed forthwith in accordance with the requirements of rules of the Supreme Court of Appeals, and the issuance of a warrant or a summons to appear is not required.

(2) When a person appears initially before a magistrate either in response to a summons or pursuant to an arrest with or without a warrant, the magistrate shall proceed in accordance with the requirements of the applicable provisions of the rules of the Supreme Court of Appeals.

(c) As used in this section, a “booking photograph” means a photograph or still, non-video image of an individual generated by the West Virginia Division of Corrections and Rehabilitation for identification purposes after arrest or while in the Division of Corrections and Rehabilitation’s custody.

(d) "Remove-for-pay publication or website" means a publication that requires the payment of a fee or other valuable consideration in order to remove or delete a booking photograph from the publication or which utilizes the publication of booking photographs for profit or to obtain advertising revenue.

(e) Notwithstanding any other provision of this code to the contrary, photographs of a person for identification purposes taken by the Division of Corrections and Rehabilitation or any other county or state jail facility upon booking into the facility are not public records and shall not be disclosed to the public pursuant to §29B-1-1 et seq. of this code or published online.  These booking photographs shall not be published or disseminated to the public except:

(1) The individual is a fugitive, and the Division of Corrections and Rehabilitation determines that releasing or disseminating the booking photograph will assist in apprehending the individual.

(2) The Division of Corrections and Rehabilitation determines that the individual is an imminent threat to an individual or to public safety and determines that releasing or disseminating the booking photograph will assist in reducing or eliminating the threat.

(3) A judge of a court of competent jurisdiction orders the release or dissemination of the booking photograph based on a finding that the release or dissemination is in furtherance of a legitimate interest.

(4) The individual is convicted of or pleads guilty or nolo contendere to a crime, lesser crime, or lesser included offense in response to the same crime for which he was arrested.

(f) Notwithstanding the provisions of this section, the Division of Corrections and Rehabilitation shall provide a copy of a booking photograph to the individual who is the subject of the booking photograph or to the counsel of record for the individual upon request.

(g) A booking photograph published, released, or disseminated by a law enforcement officer or the Division of Corrections and Rehabilitation, except after the subject of the booking photograph being found guilty or pleading guilty or nolo contendere as provided in this section, shall include a disclaimer that states "all persons are presumed innocent until proven guilty".

(h) Neither the Division of Corrections and Rehabilitation nor any law enforcement agency, nor any person in the employ thereof, shall be subject to civil action or be held liable when the publication, release, or dissemination was made by mistake of fact or error, or was inadvertent and made in good faith.

(i) A remove-for-pay publication or website shall remove and destroy a booking photograph of an individual who submits a request for removal and destruction within seven calendar days from the day that the individual makes the request if both of the following conditions exist:

(1) The individual in the booking photograph was acquitted of the criminal charge or not prosecuted, or the individual had the criminal charge expunged, vacated, or pardoned.

(2) The individual submits, in relation to the request, evidence of a disposition described in subdivision (1) of this subsection.

(3) The booking photograph was published or disseminated to the public in error and not for a reason set forth in subsection (e) of this section.

(j) A remove-for-pay publication or website shall not require payment for removal or destruction of the booking photograph.

(k) A remove-for-pay publication or website shall remove a booking photograph pursuant to this code provision regardless of whether the booking photograph pre-dates or post-dates the passage of this code section.  

(l) If the remove-for-pay publication or website does not remove and destroy the booking photograph, the remove-for-pay publication or website shall be liable for all costs, including reasonable attorney fees, resulting from any legal action that the individual brings in relation to the failure of the remove-for-pay publication or remove-for-pay website to remove and destroy the booking photograph.

NOTE: The purpose of this bill is to prohibit release mug shots of persons arrested for a crime unless certain exceptions exist.  It also provides for civil liability for websites that disseminate these mugshots.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.