Family Privacy Rights in Death-Scene Images of the Deceased

CHP.gifIn Newsweek, Jessica Bennett tells the tragic story about a family being harassed by the spread of death-scene images of their daughter, who was killed in an automobile accident. The photos of Nikki Catsouras were particularly gruesome — Nikki was decapitated in the crash. According to the article, soon after the crash, photos taken by the California Highway Patrol started circulating on the Internet:

Two weeks later, Lesli’s brother, Geoff, got a call from a neighbor. “Have you seen the photos?” he asked. Apparently, photos of the crash scene were circulating around town, via e-mail. Soon they showed up on Web sites, many of them dedicated to hard-core pornography and death. A fake MySpace page was set up in Nikki’s name, where she was identified as a “stupid bitch.” “That spoiled rich girl deserved it,” one commenter wrote. “What a waste of a Porsche,” announced another.

The family filed a formal complaint about the photos’ release, and three months later, they received a letter of apology from the California Highway Patrol. An investigation had revealed that the images, taken as a routine part of a fatal accident response, had been leaked by two CHP dispatchers: Thomas O’Donnell, 39, and Aaron Reich, 30. O’Donnell, a 19-year CHP veteran, had been suspended for 25 days without pay. Reich quit soon after—for unrelated reasons, says his lawyer. Both men declined requests for comment, but Jon Schlueter, Reich’s attorney, says his client sent the images to relatives and friends to warn them of the dangers of the road. “It was a cautionary tale,” Schlueter says. “Any young person that sees these photos and is goaded into driving more cautiously or less recklessly—that’s a public service.”

Apparently, the two California Highway Patrol officers took the pictures and improperly circulated them to others. The photos then started spreading like a virus around the Internet.

The conduct of the anonymous people spreading the photos over the Internet was despicable. From the complaint:

An individual sent an e-mail to Christos Catsouras with the subject line “Woo Hoo Daddy,” whereupon Christos Catsouras opened it, only to read the e-mail message stating “Hey Daddy I’m still alive,” with the graphic and horrific images of Decedent’s uncovered decapitated remains displayed immediately next to the message. . . .

An individual sent an e-mail to Plaintiffs with the subject line “Fletcher Jones,” which is a Mercedes-Benz dealer in Orange County, California, whereupon Christos Catsouras opened it, only to see the graphic and horrific images of Decedent’s uncovered decapitated remains displayed on the e-mail message. . . .

Over 2,500 Internet websites have been identified throughout in the United States and the United Kingdom which have posted the graphic and horrific images of Decedent’s uncovered remains, and all of them have done so without the permission, authority or consent of any of the Plaintiffs.

The family brought suit against the California Highway Patrol, alleging, among other things, that it violated the family’s constitutional right to information privacy. In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court stated that the constitutional right to privacy protected two “different kinds of interests” — (1) “the individual interest in avoiding disclosure of personal matters” and (2) “the interest in independence in making certain kinds of important decisions.” The first interest has become known as the constitutional right to information privacy. Most federal circuit courts have recognized the constitutional right to information privacy, including the 9th Circuit.

But the trial court threw out their claim. In a pithy order, the court declared that no duty exists between the highway patrol officers and the family members. The case is currently on appeal.

This reasoning strikes me as incorrect. I’m quoted in the Newsweek article, but here’s an elaboration of my argument as to why the court got it wrong.

The California Highway Patrol owes a duty to all citizens to not violate their constitutional rights. This includes the Catsouras family’s constitutional right to information privacy.

The constitutional right to information privacy provides protection if a person has a privacy interest, if government officials violated that interest by disclosing personal information, and if the privacy interest isn’t outweighed by the government’s interest in disclosure. All of these elements are met.

Families have a privacy interest in death-scene photos of deceased relatives. In National Archives and Records Admin. v. Favish, 541 U.S. 157 (2004), a Freedom of Information Act case, the U.S. Supreme Court declared:

We have little difficulty . . . in finding in our case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member’s remains for public purposes. . . .

In addition this well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased has long been recognized at common law. Indeed, this right to privacy has much deeper roots in the common law. . . . An early decision by the New York Court of Appeals is typical:

It is the right of privacy of the living which it is sought to enforce here. That right may in some cases be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased. Schuyler v. Curtis, 147 N.Y. 434 (1895). . . .

As the Supreme Court notes, many courts have held that families have a privacy interest in photos of deceased relatives in cases involving common law privacy torts. Given the extensive legal recognition of such a privacy interest, it is reasonable to conclude that such an interest would exist in the context of the constitutional right to information privacy.

Once a privacy interest is identified, the government has a duty to avoid unwarranted disclosure of personal information unless there is a countervailing interest that outweighs the privacy interest. In the Catsouras case, the disclosure of the photos was clearly unwarranted. The police department punished the dispatchers for the disclosure, indicating that the disclosure was not condoned. These facts indicate to me a rather compelling case under existing law that the California Highway Patrol is liable for violating the Catsouras’s constitutional right to information privacy.

The Catsouras family has only sued the California Highway Patrol, but I believe that they would also have a case for intentional infliction of emotional distress against some of the individuals who engaged in some of the more egregious behavior such as targeting the family with emails with the pictures (as described in the complaint above). To be liable under this tort, a defendant’s conduct must be “extreme and outrageous” and cause “severe emotional distress.”

It is clear that people cannot be punished merely for disseminating the photos, since they were leaked by the government. See Cox Broadcasting v. Cohn, 420 U.S. 469 (1975). But some of the conduct alleged in this case — people deliberately contacting members of the Catsouras family and assaulting them with the images — goes beyond the umbrella of First Amendment protection in Cox.

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7 Responses

  1. I understand that these photos were taken by CHP and then leaked. Would CHP have been within its proper authority to ban 3rd party photos had some photographers attempted to take them? Does the purpose behind the release of the photos matter as to the Catsouras family’s interests? How far do their interests stray from those families whose relatives return to Dover AFB if wannabe groups want to use those photos to whip up anti-war sentiments?

  2. Bruce Boyden says:

    I agree with the post.

  3. Jonathan says:

    Interesting to compare this with European law, where the analysis would be that the police as a public authority were acting in breach of the Catsouras’ family’s rights to privacy under Article 8 of ECHR. US privacy law might benefit from closer attention to the recent European developments in this field. There’s a good example, applied in the context of a man’s attempt to access social work records relative to his deceased mother, in the decision of the Scottish Information Commissioner at He says this:

    “33. I will first consider whether the disclosure of the information in Mrs S’s social work file would constitute an unjustified interference with the right contained in

    Article 8(1). As noted in the guidance issued by the Information Commissioner and referred to above, a number of matters may be relevant: the more recent the death and the more sensitive the information, the more likely that disclosure would have an adverse effect on the rights of the surviving people closely connected to the deceased.

    34. However, a public authority must consider all the other requirements of Article 8(2) including whether or not disclosure would be proportionate in relation to the harm that may be caused. Article 8(2) provides:

    There shall be no interference by a public authority with the exercise of this right [the right to respect for private and family life, home and correspondence] except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

    35. Having reviewed the information contained in the social work file, I am satisfied that the disclosure of the information contained in the social work files would be an intrusion on the privacy of surviving relatives and would amount to a real and definite breach of their private or family life. I have also considered whether Article 8(2) would allow disclosure and whether or not the disclosure would be proportionate in relation to the harm that may be caused. I do not consider that the disclosure would be allowed by Article 8(2) or would be proportionate in the circumstances, particularly given that release of the information in response to Mr S’s information request under section 1 of FOISA would result in the social work file being in the public domain. “.

    And see the answer to Maryland Conservatarian’s important first question in von Hannover v. Germany, [2004] ECHR 294.

  4. What is Solove’s connection to Reputation Defender?

  5. I have no affiliation with Reputation Defender.

  6. Ok, I must have mis-read something. Glad I asked. Moving on…

    Lets start where we agree.

    But some of the conduct alleged in this case — people deliberately contacting members of the Catsouras family and assaulting them with the images — goes beyond the umbrella of First Amendment protection in Cox.

    Amen. The Newsweek article says:

    Just days after Nikki’s death, her father, a local real-estate agent, clicked open an e-mail that appeared to be a property listing. Onto his screen popped his daughter’s bloodied face, captioned with the words “Woohoo Daddy! Hey daddy, I’m still alive.”

    The reporting is tabloid-level at best, so I’m taking everything in it with a grain of salt. Nevertheless, lets presume this is true. This smells like pure IIED to me, and I see very little First Amendment protection for that email. There may be some, but not enough to fend off an IIED claim.

    However, with respect to the “information privacy” claim – I can’t agree. If you do something in public, whether it is peeing on the sidewalk, flashing, tripping over stick, or dying in a horrible gruesome manner — that makes it public.

    One would hope that fellow members of society would have some decency and not republish the photos. However, there was no similar outrage when ice-packed Iraqi corpses were displayed for all the world to see. To this day, we can find photos of burned victims of Little Boy and Fat Man.

    But this is different to many because it was a wealthy, young, gorgeous, white, girl.

    I don’t think this is as much about privacy as it is about privilege. Just as Brandeis and Warren penned their Right to Privacy because the rabble was daring to report on the excesses of the Boston Brahmins, there seems to be a similar shriek from the walls that protect the new Brahmins.

    The cops who leaked this photo claim to have done so to scare kids into being careful behind the wheel. But, lets presume that it was, at least in part, mere “barbecuestopper” stuff. The failures of the wealthy and privileged have always been the stuff of lower-class gossip and glee. A hundred kids get left on the street by an inattentive parent every day, but when it is a big law firm wealthy white woman, it becomes a newsworthy event. Had this been a beat up Chevy Lumina with duct tape on the fenders, it wouldn’t have been forwarded three times. A big shiny Porsche and a beautiful young pilot with cocaine in her system — now it is a parable for how the rich and their decadence will destroy them — or at least make those who drive that Chevy Lumina feel better about their condition.

    I’m sad that the Catsourases are collateral damage in this perpetual play. I got chest pains reading about their plight. I’ve been there. My best friend died in a rather spectacular manner, and the douchebag who did it is regularly profiled in magazines and TV spots — and he rubs my friend’s death in my face every time he does it. My wife has gone so far as to forbid me to enter the guy’s home state, lest my Sicilian heritage rear its head.

    But, I’m not prepared to turn my pain into the suppression of the dissemination of lawful material, nor do I want a new law named after my best friend. Shit happens. Sometimes, when shit happens, there is a camera, a witness, a compelling story, and then those of us who were just minding our own business have to suffer the feeling of an ice pick into our hearts every time the needle skips on the vinyl of life. But, if we all turned each of those experiences into a lawsuit or legislative action, we would have a patchwork of laws created by the outlier incidents, pushed for by only the overprivileged like you, me, and the Catsourases. Then, the 99.99% of other incidents that happen in daily life would be governed by these outlier incidents. That is not a result I want to see.