## Facts

- Scott Tully Kalish, a Selective Service registrant, was ordered to report for induction into the U.S. Army on May 1, 1967, after previously receiving a student deferment.
- After receiving the induction notice, Kalish was accepted to law school and asserted that he timely requested reopening and reclassification, or at least a hearing, under Selective Service regulations; he alleged the Local Board refused.
- On May 1, 1967, Kalish reported to the induction station while counsel filed a habeas petition challenging the induction; Kalish refused to step forward to be inducted on advice of counsel and was released.
- Kalish was later criminally charged for failing to submit to induction.
- The parties reached an accommodation under which Kalish would pursue Selective Service review and, if unsuccessful, report for induction; the criminal matter was effectively held pending that process.
- Kalish later reported for induction and was fingerprinted and photographed by the Army; the criminal charges were ultimately dismissed.
- Despite dismissal, U.S. Marshals arrested Kalish when he appeared in court and created an arrest record, including fingerprints and photographs, which were transmitted to and maintained in federal repositories under the Attorney General/FBI.
- Kalish moved in the dismissed criminal case for an order requiring expungement and destruction of the marshals’ fingerprints and photographs; after the government objected that the Attorney General was an indispensable party, Kalish refiled and served the Attorney General and the U.S. Attorney.

## Issues

1. Whether a federal district court, exercising ancillary/equitable authority after dismissal of criminal charges, should order expungement and destruction of federal fingerprints and photographs taken in connection with the arrest.
2. Whether dismissal of charges, without a showing of illegality or exceptional hardship, makes continued retention of routine arrest identification records inequitable.

## Decision

- The court denied the motion to expunge and destroy the fingerprints and photographs.
- The court accepted that federal courts may, in limited circumstances, order expungement as an equitable remedy ancillary to a criminal case.
- The court held that dismissal of charges, standing alone, did not justify expungement.
- The court concluded Kalish failed to show exceptional circumstances, such as clear illegality, bad faith prosecution, or extreme injustice, sufficient to outweigh the government’s law-enforcement interests in retaining identification records.

## Legal Principles

- Federal courts have a limited equitable/ancillary power to order expungement of arrest records, exercised only in unusual cases.
- Expungement is an extraordinary remedy; the movant bears the burden to show that retention of the records is so inequitable as to warrant judicial intervention.
- Dismissal or non-conviction does not, by itself, require destruction of fingerprints or photographs maintained for legitimate law-enforcement purposes.
- Courts balance the individual’s claimed harms (stigma, future adverse consequences) against the government’s interests in maintaining accurate identification and criminal justice records.

## Conclusion

The court refused to order expungement of Kalish’s fingerprints and photographs after dismissal of draft-related charges, holding that expungement is reserved for exceptional situations and that routine retention of arrest identification records remains permissible absent a strong showing of illegality or extreme inequity.


United States v. Kalish, 271 F. Supp. 968 (D.P.R. 1967)