Marsh

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…