HELENA – A bill to clarify that mug shots are public information – but was then amended to do the opposite – appears set to be killed by the House at the request of the bill's sponsor.

“My grandpa was a farmer and I loved him dearly. He told me a long time ago, ‘If you’ve got a horse with a broken leg, you’ve got to be prepared to put it down,’” Rep. Frank Garner, R-Kalispell, said upon introducing HB 236 to the House floor Friday. “I’m actually going to ask you today to vote against it.”

Garner, a former Kalispell police chief, introduced his bill with the support of law enforcement leaders and media organizations, who sought to clarify a portion of state law that is unclear about whether mug shots taken upon arrest are public information.

Current law mentions photos as an example of confidential criminal justice information, although most police agencies interpret that to mean photos with evidentiary value such as images taken at crime scenes or pictures of victim injuries. Some, erring on the side of caution, also have not released mug shots to the public, which are sometimes shared by investigators when they are seeking more information from the public about a suspect or are requested by media organizations for publication.

In 2015, a district court judge ruled that booking photos are indeed public information. The Gallatin County attorney then asked Attorney General Tim Fox to weigh in, but he declined to issue an opinion, citing the court decision.

Last week, the House Judiciary committee voted to amend the bill to ban the release of mug shots until after someone has been convicted. This week the 11 Republicans on the committee voted to send the amended bill to the House floor while the eight Democrats opposed it.  

Chairman Alan Doane, R-Bloomfield, defended the amendment Friday as protecting the rights of citizens to be considered innocent until proven guilty. He noted the amendment allowed two exceptions: if a judge deemed it necessary or if person photographed allows for its release.

“Are we gonna be guilty without due process? Or are we gonna be guilty  in a court of public opinion or are we going to wait until a person is guilty in a court of law before their mug shot is stuck on the front page of the newspaper?” he said.

Garner argued that if legislators support the committee’s amendment, they should kill HB 236 and reintroduce it as a new bill so that it could again receive a public hearing. He noted that because the amendments were made days after the hearing with no indication at that time about an intent to change it, law enforcement and media organizations did not have a chance to speak to the new version.

The House appears set to kill the bill as Garner requests. In a preliminary vote, 17 Republicans and 39 Democrats opposed the measure as amended by the committee while 42 Republicans and 3 Democrats supported it, meaning it's opposed by a 55-42 margin. It will face a final vote Monday.

John MacDonald, a lobbyist for the Montana Newspaper Association, said in a statement that he had mixed feelings about Friday's vote.

"No one ever likes to kill a bill they helped craft and spent a lot of time working on, along with a lot of other groups, so we are disappointed from that perspective,” he said. “But the bill had been turned in to something entirely different than what we, and the sponsor, were trying to accomplish, so there wasn't much choice."

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