November 2019 Millar's JurisDiction - Tattoo Removal

by Richard W. Millar, Jr.

If asked, my kids or grandkids would be quick to tell you that I am not a fan of tattoos. It is, I suppose, a result of my upbringing. Whenever the subject came up when I was growing up, my mother sternly informed me that “only drunken sailors in San Diego” got tattoos.

She seemed to be corroborated, at least geographically, because San Diego was, in those days, a Navy town, and the main drag was populated by somewhat unsavory looking tattoo parlors. But, to be truthful, corroboration, or the lack of it, never affected the certainty of her pronouncements.

The only tattoos I ever got were the kind that wash off, so I never dealt with a removal process more complicated than a bar of Ivory soap.

Tattoos have now become “body art” and are sported by all sorts of people. So, as a matter of curiosity, I researched the removal process since I’m thinking the aging process may cause tattoos to, shall we say, lose their original shape.

It is more expensive and complicated than getting the tattoo in the first instance. It can include laser surgery, surgical removal, and dermabrasion—all of which sounds painful.

However, it turns out there is a workaround I hadn’t thought of.

It is called photoshop.

The Portland police and the FBI had been looking for a bank robber who had held up several banks in Oregon in 2017 and who had been dubbed “The Foul Mouth Bandit” because of his penchant for profanity. (I wonder if there is some repository for all the nicknames police or the press adopt for serial, but uncaught, criminals. That might make a column all by itself, but I digress.)

Acting on a tip, the police arrested a fellow who will remain nameless since, at this point, he has only been arrested and also because he looks mean.

In his car they found a number of sweat ensembles with hoods and a gray ski mask, all of which matched the clothing worn by “The Foul Mouth Bandit.” Interestingly, there is no account of his vocabulary upon arrest and whether he did, or did not, live up to his moniker.

But it is safe to say they thought they got their man.

According to The Washington Post, this fellow’s forehead was “covered in a delicate script, reaching from his eyebrows to his hairline . . . ” and “a single teardrop appears under his left eye, while his right cheek is unmistakably inked with a looping design.”

In other words, he had tattoos on his face.

“Ok,” you ask. “Why is that a problem?”

The one-word answer is “witnesses.”

None of the tellers who had been robbed noticed any tattoos and none were shown on the surveillance videos.

To deal with this picayune anomaly, the police decided to show a photo lineup to the tellers in which this fellow’s tattoos were digitally removed. That was a “bingo” from at least two of the tellers who identified the suspect sans tattoos.

Predictably, his federal public defender has filed a motion to bar these identifications based on the photoshopped photographs arguing, essentially, to allow this would permit the arresting agency to make all kinds of digital alterations so that the face would match the victim’s description which, in turn, would give the victim a leg up, so to speak, in the photo identification process.

The prosecution equally predictably disagreed, but less predictably argued that the suspect could have used makeup during the robberies and the alteration was the digital equivalent of makeup.

As I write this, the court has not ruled so I don’t know what the result will be. But, despite the fact that there is no evidence this fellow was ever a drunken sailor in San Diego, my mother on seeing his “real” face would have unhesitatingly said, “See, I told you so.”

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.