An Internet “Wall of Shame” publicizing DWI arrests might have been an excessive response to the drunk driving problem, but a New York judge may have erred by ruling that it satisfies the “stigma plus” test for a due process violation.

The DWI arrest records which had been posted on the Nassau County website since May included the alleged offender's name and mugshot. In an Oct. 20 decision, Nassau County Supreme Court Justice William R. LaMarca ordered the county to remove Alexandra Bursac's record from the site.

The posting of such information on the Internet, “which results in limitless and eternal notoriety, without any controls, is sufficient to be the 'plus' in the 'stigma plus' due process analysis in the case at bar,” he said.

As framed by the U.S. Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), the “stigma plus” test requires that a plaintiff suing the government for a due process violation arising out of injury to reputation show an “additional injury” such as loss of employment or the foreclosure of future employment opportunities.

Bursac, 27, sued Nassau County Executive Thomas R. Suozzi on Sept. 30, alleging her inclusion in the highly-publicized “Wall of Shame” had caused her public humiliation and the potential loss of employment.

Since LaMarca's decision, Suozzi has removed all DWI arrestees from the website, saying he will now only post the names and photos of those convicted of drunk driving. But he also vowed to appeal.

“He's saying it's public information, but that the Internet is too good public information,” Suozzi told Newsday.

The “stigma plus” test has been applied to other kinds of government databases. In Lee TT v. Dowling, 664 N.E.2d 1243 (1996), the New York Court of Appeals found that the placement of a psychologist on a register of alleged incidents of child abuse “severely jeopardized future employment prospects in his chosen field.”

“Not only is the information that he is the subject of an indicated report available to all child care providers, future employers must consult the list before hiring petitioner and if they choose to hire him they are required by law to state in writing their specific reasons for doing so,” the court added.

Relying on Lee TT and a companion case, LaMarca concluded that “publication of an arrest picture and identifying information is permissible under certain circumstances -– except when the circumstances amount to 'stigma plus.'” The posting of “specific identifying information on the Internet, with its endless implications,” amounts to that additional injury, he said.

But courts have found no “general right to private employment” and LaMarca cited no evidence that the “Wall of Shame” would have anything like the same direct impact on Bursac's “future employment prospects” as the child abuse register.

By arguing that LaMarca mistakenly focused on the medium of Bursac's alleged stigma rather than its substance, Suozzi may eventually be able to rebuild his “Wall of Shame.”

Bursac was arrested June 10 for driving while intoxicated and driving while impaired by drugs. Her name and photo were posted online a week later, but the drug charge was dismissed in August and the DWI charge is still awaiting disposition.

By Matthew Heller
10/24/08