Federal appeals court finds right to privacy over death images constitutionally protected

A federal appeals court ruled for the first time that the right to privacy over death images is protected under the U.S. Constitution.

Despite finding that a mother has a federal privacy right to control the dissemination of her 2-year-old son's autopsy photo, a three-judge panel of the U.S. Court of Appeals in San Diego (9th Cir.) stopped short of deciding in her favor. The court unanimously ruled on Tuesday that a former government official who distributed the autopsy photo to the media cannot be held liable because the law was never “clearly established.”

In 1983, Phillip Buell died from a severe head injury while in the care of his mother’s then-boyfriend Kenneth Marsh. Marsh, who later married the boy's mother, was convicted of second-degree murder but was released from prison almost two decades later after it could not be proven beyond a reasonable doubt that the toddler was the victim of child abuse, according to court documents.

Upon his release, Marsh sued the County of San Diego and the medical personnel who performed the boy’s autopsy.

Former San Diego Deputy District Attorney Jay S. Coulter testified in court that after Marsh's initial conviction, Coulter, who prosecuted the murder case, photocopied 16 autopsy photographs of the boy’s corpse. When Coulter retired, he kept a photo as a memento, and as a private citizen — not a prosecutor — eventually distributed a copy of the photo to the media along with a memo he wrote titled “What Really Happened to Phillip Buell?”

Buell’s mother, Brenda Marsh, then sued Coulter and the County of San Diego for violating her constitutional right of privacy, which is the basis of the privacy right that extends to contraception, abortion and other basic decisions about family and parenthood.

Marsh claimed that she suffered severe emotional distress because she feared she’d stumble upon her son’s autopsy photo on the Internet.

The court found the fear “not unreasonable given the viral nature of the Internet.”

“This intrusion into the grief of a mother over her dead son — without any legitimate governmental purpose — 'shocks the conscience' and therefore violates Marsh’s [constitutional right of privacy],” according to the opinion.

However, the court did not hold Coulter liable.

“Marsh has a constitutionally protected right to privacy over her child’s death images. But, because Coulter wasn’t acting under color of state law when he sent the autopsy photograph to the press, that claim must be dismissed. And, because there was no 'clearly established' law to inform him that any of his earlier conduct was unlawful, Coulter is entitled to qualified immunity,” according to the opinion.

Qualified immunity shields government officials from civil liability if their conduct did not violate clearly established rights of which a reasonable person would have known.

One of Marsh’s attorneys, Donnie Cox, said the decision is “a victory for anyone who comes after Ms. Marsh” and the case has “broad significance.”

“With the Internet as ubiquitous as it is now, this will have a huge impact,” he said. “This is the first case of its kind that I know of. It lets people know they can’t post pictures like this without consequences.”

Cox said the court “got the law correct,” but he plans to pursue related state law claims “vigorously.” Those include a claim for infliction of emotional distress under state law, he said.

A California appellate court held in 2010 that the relatives of a deceased woman whose death images were widely circulated online had an emotional distress claim under state law.

“We are certainly happy with 95 percent of [the ruling],” he said. “It was fair in that the court pointed out the constitutional right in death images.”

Counsel for the County of San Diego could not be reached for comment.

Related Reporters Committee resources:

· Police, Protesters and the Press: The immunity issue