Marsh v. Cnty. of San Diego

• Decision Date: 29 May 2012
• Docket Number: No. 11–55395.,11–55395.
• Citation: 12 Cal. Daily Op. Serv. 5802,2012 Daily Journal D.A.R. 7032,40 Media L. Rep. 2007,680 F.3d 1148
• Parties: Brenda L. MARSH, Plaintiff–Appellant, v. COUNTY OF SAN DIEGO; Jay S. Coulter; Does, 1 to 100, inclusive, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

680 F.3d 1148

40 Media L. Rep. 2007

12 Cal. Daily Op. Serv. 5802

2012 Daily Journal D.A.R. 7032

Brenda L. MARSH, Plaintiff–Appellant,

v.COUNTY OF SAN DIEGO; Jay S. Coulter; Does, 1 to 100, inclusive, Defendants–Appellees.

No. 11–55395.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 18, 2012.

Decided May 29, 2012.

Paul W. Leehey (argued), Law Office of Paul W. Leehey, Fallbrook, CA, and Donnie R. Cox and Dennis B. Atchley, Law Office of Donnie R. Cox, Oceanside, CA, for the plaintiff-appellant.

Deborah A. McCarthy (argued), Asst. County Counsel, Thomas E. Montgomery, County Counsel, County of San Diego, San Diego, CA, for the defendants-appellees.

Appeal from the United States District Court for the Southern District of California,Janis L. Sammartino, District Judge, Presiding. D.C. No. 3:07–cv–01923–JLS–AJB.

Before: ALEX KOZINSKI, Chief Judge, KIM McLANE WARDLAW and RICHARD A. PAEZ, Circuit Judges.

OPINION

KOZINSKI, Chief Judge:

When tragedy strikes and a family member suffers a violent death, we try to remember our dearly departed as they were in life, not as they were at the end. But suppressing gruesome mental images of their demise becomes difficult when autopsy or crime scene photographs are published for the world to see. We consider whether individuals have a federal privacy right to control public dissemination of a family member's death images.

I. FACTUAL BACKGROUND

In 1983, Brenda Marsh's two-year-old son, Phillip Buell, died from a severe head injury while in the care of her then-boyfriend, Kenneth Marsh. Charged with Phillip's death, Marsh claimed that Phillip was injured when he fell off the couch and landed on the fireplace hearth. Marsh was convicted of second-degree murder and imprisoned. Almost two decades later, he filed a second habeas petition, which the San Diego County Superior Court granted at the request of the San Diego District Attorney. The DA's recently-consulted expert couldn't conclude beyond a reasonable doubt that Phillip was the victim of child abuse. Marsh's conviction was set aside and he was released.

After his release, Marsh sued the County of San Diego and the medical personnel who conducted Phillip's autopsy. During this proceeding, Marsh's attorneys deposed Jay S. Coulter, the San Diego Deputy District Attorney who had prosecuted Marsh for murder in 1983. Coulter disclosed that, while he was Deputy District Attorney, he photocopied sixteen autopsy photographs of Phillip's corpse. Coulter also mentioned that, after he retired, he kept one of these as a “memento of cases that I handled.” Coulter eventually gave a copy of this photograph, along with a memorandum he wrote titled “What Really Happened to Phillip Buell?”, to a newspaper and a television station.

Brenda Marsh sued Coulter and the County of San Diego under 42 U.S.C. § 1983 alleging that the copying and dissemination of Phillip's autopsy photographs violated her Fourteenth Amendment Due Process rights. Defendants moved to dismiss the claims relating to Coulter's conduct after he retired, which the district court granted. The parties then cross-moved for summary judgment, which the district court granted in favor of defendants. Marsh appeals. We review de novo. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001) (motion to dismiss); Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir.1990) (summary judgment).

II. ANALYSIS

To prevail under 42 U.S.C. § 1983, a plaintiff must prove that he was “deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). A plaintiff must also show that the federal right was “clearly established” at the time of the violation, otherwise government officials are entitled to qualified immunity. See Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).

A. Federal Right

Marsh claims she has a federal right to control the autopsy photographs of her child. She can't point to a federal statute guaranteeing this right, but she argues that such a right exists as a matter of substantive due process and also as a state-created liberty interest protected by procedural due process.

1. Substantive Due Process

The Supreme Court has recognized that “one aspect of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment is ‘a right of personal privacy, or a guarantee of certain areas or zones of privacy.’ ” Carey v. Population Servs. Int'l, 431 U.S. 678, 684, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (quoting Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)). This right to privacy protects two kinds of interests: “One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599–600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (footnote omitted). With respect to the latter, we've held that the right encompasses the “most basic decisions about family and parenthood....” California v. F.C.C., 75 F.3d 1350, 1361 (9th Cir.1996); see also Roe, 410 U.S. at 152–53, 93 S.Ct. 705 (noting that the constitutional right to privacy extends to marriage, procreation, contraception, family relationships, child rearing and education).

No court has yet held that this right encompasses the power to control images of a dead family member, but the Supreme Court has come close in a case involving the Freedom of Information Act. In National Archives and Records Administration v. Favish, 541 U.S. 157, 170–71, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004), the Court held that death scene photographs fell under an exemption to FOIA's general requirement of public access to government information, which carved out “law enforcement records or information ... [that] could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). The Court found that the right to “personal privacy” included the “surviving family members' right to personal privacy with respect to their close relative's death scene images.” 541 U.S. at 170, 124 S.Ct. 1570.

The Court had little difficulty “finding in our case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member's remains for public purposes.” Id. at 167, 124 S.Ct. 1570. “Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.” Id. at 168, 124 S.Ct. 1570.¹ Finding the right grounded in the common law, the Court had no need to determine whether it is also grounded in the Constitution. See id. at 170, 124 S.Ct. 1570 (“It would be anomalous to hold in the instant case that the statute provides even less protection than does the common law.”).

Other courts have also recognized family members' privacy right in a decedent's death images. See Melton v. Bd. of Cnty. Comm'rs of Hamilton Cnty., 267 F.Supp.2d 859, 865 (S.D.Ohio 2003)(“[F]amilies have a right not to be embarrassed or humiliated by the outrageous display or exposure to public view of the remains of a loved one.”); Catsouras v. Dep't of Cal. Highway Patrol, 181 Cal.App.4th 856, 874, 104 Cal.Rptr.3d 352 (2010) (recognizing a violation of a right to privacy over death images where “publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern”) (internal citations and quotation marks omitted). However, like Favish, these cases described the well-established common law right, not a constitutional right. So far as we are aware, then, this is the first case to consider whether the common law right to non-interference with a family's remembrance of a decedent is so ingrained in our traditions that it is constitutionally protected. We conclude that it is.

A common law right rises to the level of a constitutional right if it is “deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 720–21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal citations and quotation marks omitted). The Favish Court considered our history and traditions, and found that “th[e] well-established cultural tradition acknowledging a family's control over the body and death images of the deceased has long been recognized at common law.” Favish, 541 U.S. at 168, 124 S.Ct. 1570. For precisely the same reasons, we conclude that this right is also protected by substantive due process.

The long-standing tradition of respecting family members' privacy in death images partakes of both types of privacy interests protected by the Fourteenth Amendment. First, the publication of death images interferes with “the individual interest in avoiding disclosure of personal matters....” Whalen, 429 U.S. at 599, 97 S.Ct. 869. Few things are more personal than the graphic details of a close family member's tragic death. Images of the body usually reveal a great deal about the manner of death and the decedent's suffering during his final moments—all matters of private grief not generally shared with the world at large.

Second, a parent's right to control a deceased child's remains and death images flows from the well-established substantive due process right to family integrity. See Rosenbaum v. Washoe County, 663 F.3d 1071, 1079 (9th Cir.2011) (“The substantive due process right to family integrity or to familial...