Family Has Constitutional Right to Autopsy Photos: 9th Cir.

By Stephanie Rabiner, Esq. on May 31, 2012 | Last updated on March 21, 2019

Not only are autopsy photos private, but the deceased's family has a constitutional right to bar the release of such photos even when taken as part of a criminal investigation. Or so says the Ninth Circuit Court of Appeals in Marsh v. County of San Diego.

The court was tasked with deciding whether a former San Diego prosecutor violated Brenda Marsh's constitutional right to privacy when he released autopsy photos of her 2-year-old son. He did.

Marsh's story begins in 1983, when her son sustained a head injury while being cared for by her then-boyfriend. He was convicted of murder despite claiming the toddler had fallen off the couch. In 2006, this conviction was set aside in light of new medical evidence.

Upset, the prosecuting attorney wrote an article and sent it, along with copies of the boy's autopsy photos, to the media. Brenda Marsh sued, arguing that the dissemination of these photos violated her 14th Amendment right to privacy.

Citing the "long-standing tradition of respecting family members' privacy in death," the court agreed. Family members have a constitutional right to protect the "memory and images of a deceased child against unwarranted public exploitation by the government."

Though Marsh now affirmatively has a right to keep these autopsy photos private, she still can't sue the city or former prosecutor. Government officials are immune from suits when the underlying constitutional right was not clearly established at the time of the alleged violation.

Because this was the first time the Ninth Circuit considered such questions, whether Marsh had a constitutional right was previously unknown. However, the government has now been officially put on notice. Families can now sue should prosecutors and investigators fail to keep autopsy photos private.

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