Parent Has a Constitutional Right of Privacy in Child's "Death Image": Ninth Circuit | Practical Law

Parent Has a Constitutional Right of Privacy in Child's "Death Image": Ninth Circuit | Practical Law

On May 29, 2012, the US Court of Appeals for the Ninth Circuit ruled that a parent has a federal constitutional right to privacy in her child's death images. The court reasoned that this right of privacy is protected both by Fourteenth Amendment substantive and procedural due process because of its dual roots in common and statutory law. However, because the challenged disclosure was not made by a person who was a public official at the time of disclosure, the Ninth Circuit affirmed the district court's order of summary judgment dismissing the plaintiff's Section 1983 claim.

Parent Has a Constitutional Right of Privacy in Child's "Death Image": Ninth Circuit

Practical Law Legal Update 5-519-7150 (Approx. 3 pages)

Parent Has a Constitutional Right of Privacy in Child's "Death Image": Ninth Circuit

by PLC Intellectual Property & Technology
Published on 31 May 2012 • USA (National/Federal)
On May 29, 2012, the US Court of Appeals for the Ninth Circuit ruled that a parent has a federal constitutional right to privacy in her child's death images. The court reasoned that this right of privacy is protected both by Fourteenth Amendment substantive and procedural due process because of its dual roots in common and statutory law. However, because the challenged disclosure was not made by a person who was a public official at the time of disclosure, the Ninth Circuit affirmed the district court's order of summary judgment dismissing the plaintiff's Section 1983 claim.

Key Litigated Issue

The key litigated issue before the US Court of Appeals for the Ninth Circuit was whether a parent has a federal constitutional right to privacy in her child's death images.

Background

Plaintiff-appellant, Marsh, had sued the former San Diego Deputy District Attorney, Jay Coulter, and the County of San Diego claiming that Coulter's unauthorized public disclosure of images of her deceased son's remains violated Section 1983 of the Civil Rights Act of 1871 (42 U.S.C. § 1983). Coulter was the prosecutor in the murder case of Marsh's two-year-old son. While he was the deputy district attorney, Coulter photocopied 16 autopsy photographs of the child's corpse. After retiring, Coulter kept one of these photographs and later gave a copy of the photograph to a newspaper and television station.
Marsh claimed she had a federal civil right to control the death images of her child.

Outcome

In its May 29, 2012 decision, a case of first impression, the Ninth Circuit ruled that a parent has a federal privacy right to control the public dissemination of herchild's death images. The Ninth Circuit observed that this right protects two kinds of privacy interests:
  • The individual interest in avoiding disclosure of personal matters.
  • The interest in independence in making important personal and family-related decisions.
The Ninth Circuit ruled that Fourteenth Amendment substantive due process protects both of these privacy interests by giving effect to the "deeply-rooted" common law tradition of respecting family members' privacy in death images. The court reasoned that the unwarranted government public dissemination of such depictions of family members both:
  • Interferes with the parent's interest in avoiding disclosure of personal matters.
  • Infringes the parent's right to choose how to care for a child, which extends, in death, to a right to control such images.
The court also ruled that Marsh had a protectable Fourteenth Amendment procedural due process right against the challenged reproduction and disclosure of the deceased child's photograph. Chief Judge Kozinski reasoned that Coulter's submission of the child's autopsy photo to the press violated Section 129 of the California Code of Civil Procedure, which prohibits reproducing such images other than for law enforcement, educational and similar restricted purposes. The court observed that, because the state statute imposes mandatory, substantive limits on the acts of state officials, it creates a constitutionally-protected liberty interest that individuals cannot be deprived of without due process of law.
However, although the Ninth Circuit recognized Marsh's federal due process rights to control the dissemination of the photos of her son's remains, the court affirmed the lower court's order of summary judgment dismissing her Section 1983 claim for two reasons:
  • Coulter was retired and therefore not acting under color of state law when he sent one of these photographs for publication.
  • Before the court's decision, there was no "clearly established" law informing Coulter that this conduct was unlawful, a fact that entitled Coulter to qualified immunity.

Practical Implications

This case of first impression is notable for highlighting the grounds on which common law and state statutory rights of privacy can be elevated into a constitutionally-based, federal civil rights claim. While the subject matter of the decision is narrow, the Ninth Circuit's reasoning provides a road map to the federalization of other privacy rights that may be protected against infringement under color of state law.

Court Documents