Privacy Law

9th Circuit: Mother Has Privacy Right in Son's Autopsy Photo, But Prosecutor Has Immunity


A federal appeals court based in San Francisco has ruled a mother has a privacy right in photos of her deceased child that is protected by the 14th Amendment’s due process clause.

The ruling (PDF) by the 9th U.S. Circuit Court of Appeals found no liability, however, for the former prosecutor who sent an autopsy photo of a toddler to the press. The appeals court said former San Diego Deputy District Attorney Jay Coulter had qualified immunity because the constitutional right was not yet clearly established. Courthouse News Service and the San Francisco Chronicle have stories.

Coulter was the prosecutor who obtained a second-degree murder conviction against Kenneth Marsh in the death of his girlfriend’s 2-year-old child. Marsh served 21 years in jail before new prosecutors agreed to set aside the conviction because of new evidence suggesting the death was an accident, the Chronicle says.

A state compensation board awarded damages for wrongful imprisonment, spurring Coulter to send an autopsy photo of the child to the media along with an essay supporting the conviction. The boy’s mother, Brenda Marsh, sued for a privacy violation. She is now married to Kenneth Marsh.

Chief Judge Alex Kozinski wrote the opinion for the court. “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,” he wrote. “We conclude that it is.”

Hat tip to How Appealing.

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