Appeals Court Finds Constitutionally Protected Privacy Right Over Autopsy Pix

(Photo credit: Wikipedia)The United States Circuit Court of Appeals for the Ninth Circuit has ruled that a mother's privacy right of control over autopsy photos of her two-year-old son is protected by the U.S. Constitution.

In Marsh v. County of San Diego et al. (Case No. 11-55395), 2012 WL 1922193 (9th Cir. 5/29/12), Chief Judge Alex Kozinski's opinion marks the first time a federal court has recognized the U.S. Constitution as conferring a privacy right over death images.

Two-year-old Phillip Buell died of severe head trauma in 1983 while being cared for by Kenneth Marsh, then-boyfriend of the toddler's mother. Marsh served nearly 20 years on a second-degree murder conviction, but subsequently was released when it could not be shown beyond a reasonable doubt that the youth was a victim of child abuse.

Jay S. Coulter, a former deputy district attorney in San Diego whose office prosecuted Kenneth Marsh, took autopsy photos of the toddler as a memento of his years in public service. Ultimately, he distributed one of the photos to the news media along with a memo he wrote entitled "What Really Happened to Phillip Buell?"

The child's mother, Brenda Marsh (who had since married Kenneth Marsh), sued San Diego County and Coulter under 42 U.S.C. Section 1983, alleging her 14th Amendment Substantive Due Process Rights were violated by the former government official's copying and dissemination of the toddler's autopsy photos.

The appellate court found a constitutionally protected right of privacy for the plaintiff, but said the defendant was not liable because of qualified immunity, a doctrine that balances citizens' constitutional rights and the interest in public officials effectively being able to perform their duties.

Additionally, the court found that the defendants violated the plaintiff's procedural due process rights by their actions, which ran afoul of Calif. Code of Civil Procedure Sec. 129, which limits the use of autopsy photos to criminal proceedings absent permission from the court.