Brenda Marsh v. County of San Diego

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDA L. MARSH, 
Plaintiff-Appellant, No. 11-55395
v. D.C. No.
COUNTY OF SAN DIEGO; JAY S.  3:07-cv-01923-
COULTER; DOES, 1 to 100, JLS-AJB
inclusive, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted
January 18, 2012—Irvine, California
Filed May 29, 2012
Before: Alex Kozinski, Chief Judge, Kim McLane Wardlaw
and Richard A. Paez, Circuit Judges.
Opinion by Chief Judge Kozinski
5891
MARSH v. COUNTY OF SAN DIEGO 5895
COUNSEL
Paul W. Leehey (argued), Law Office of Paul W. Leehey,
Fallbrook, California, and Donnie R. Cox and Dennis B.
Atchley, Law Office of Donnie R. Cox, Oceanside, Califor-
nia, for the plaintiff-appellant.
Deborah A. McCarthy (argued), Asst. County Counsel,
Thomas E. Montgomery, County Counsel, County of San
Diego, San Diego, California, for the defendants-appellees.
OPINION
KOZINSKI, Chief Judge:
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 con-
victed 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
5896 MARSH v. COUNTY OF SAN DIEGO
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
the medical personnel who conducted Phillip’s autopsy. Dur-
ing this proceeding, Marsh’s attorneys deposed Jay S.
Coulter, the San Diego Deputy District Attorney who had
prosecuted Marsh for murder in 1983. Coulter disclosed that,
while he was Deputy District Attorney, he photocopied six-
teen autopsy photographs of Phillip’s corpse. Coulter also
mentioned that, after he retired, he kept one of these as a “me-
mento of cases that I handled.” Coulter eventually gave a
copy of this photograph, along with a memorandum he wrote
titled “What Really Happened to Phillip Buell?”, to a newspa-
per and a television station.
Brenda Marsh sued Coulter and the County of San Diego
under 42 U.S.C. § 1983 alleging that the copying and dissemi-
nation of Phillip’s autopsy photographs violated her Four-
teenth Amendment Due Process rights. Defendants moved to
dismiss the claims relating to Coulter’s conduct after he
retired, which the district court granted. The parties then
cross-moved for summary judgment, which the district court
granted in favor of defendants. Marsh appeals. We review de
novo. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th
Cir. 2001) (motion to dismiss); Smolen v. Deloitte, Haskins &
Sells, 921 F.2d 959, 963 (9th Cir. 1990) (summary judgment).
II. ANALYSIS
To prevail under 42 U.S.C. § 1983, a plaintiff must prove
that he was “deprived of a right secured by the Constitution
or laws of the United States, and that the alleged deprivation
was committed under color of state law.” Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). A plaintiff must
also show that the federal right was “clearly established” at
the time of the violation, otherwise government officials are
MARSH v. COUNTY OF SAN DIEGO 5897
entitled to qualified immunity. See Davis v. Scherer, 468 U.S.
183, 191 (1984).
A. Federal Right
Marsh claims she has a federal right to control the autopsy
photographs of her child. She can’t point to a federal statute
guaranteeing this right, but she argues that such a right exists
as a matter of substantive due process and also as a state-
created liberty interest protected by procedural due process.
1. Substantive Due Process
[1] The Supreme Court has recognized that “one aspect of
the ‘liberty’ protected by the Due Process Clause of the Four-
teenth Amendment is ‘a right of personal privacy, or a guar-
antee of certain areas or zones of privacy.’ ” Carey v.
Population Servs. Int’l, 431 U.S. 678, 684 (1977) (quoting
Roe v. Wade, 410 U.S. 113, 152 (1973)). This right to privacy
protects two kinds of interests: “One is the individual interest
in avoiding disclosure of personal matters, and another is the
interest in independence in making certain kinds of important
decisions.” Whalen v. Roe, 429 U.S. 589, 599-600 (1977)
(footnote omitted). With respect to the latter, we’ve held that
the right encompasses the “most basic decisions about family
and parenthood . . . .” California v. F.C.C., 75 F.3d 1350,
1361 (9th Cir. 1996); see also Roe, 410 U.S. at 152-53 (noting
that the constitutional right to privacy extends to marriage,
procreation, contraception, family relationships, child rearing
and education).
[2] No court has yet held that this right encompasses the
power to control images of a dead family member, but the
Supreme Court has come close in a case involving the Free-
dom of Information Act. In National Archives and Records
Administration v. Favish, 541 U.S. 157, 170-71 (2004), the
Court held that death scene photographs fell under an exemp-
tion to FOIA’s general requirement of public access to gov-
5898 MARSH v. COUNTY OF SAN DIEGO
ernment information, which carved out “law enforcement
records or information . . . [that] could reasonably be expected
to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). The Court found that the right to “per-
sonal privacy” included the “surviving family members’ right
to personal privacy with respect to their close relative’s death-
scene images.” 541 U.S. at 170.
The Court had little difficulty “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.” Id. at 167. “Family members have a per-
sonal stake in honoring and mourning their dead and object-
ing to unwarranted public exploitation that, by intruding upon
their own grief, tends to degrade the rites and respect they
seek to accord to the deceased person who was once their
own.” Id. at 168.1 Finding the right grounded in the common
law, the Court had no need to determine whether it is also
grounded in the Constitution. See id. at 170 (“It would be
anomalous to hold in the instant case that the statute provides
even less protection than does the common law.”).
[3] Other courts have also recognized family members’
privacy right in a decedent’s death images. See Melton v. Bd.
of Cnty. Comm’rs of Hamilton Cnty., 267 F. Supp. 2d 859,
865 (S.D. Ohio 2003) (“[F]amilies have a right not to be
embarrassed or humiliated by the outrageous display or expo-
sure to public view of the remains of a loved one.”); Cat-
souras v. Dep’t of Cal. Highway Patrol, 181 Cal. App. 4th
856, 874 (2010) (recognizing a violation of a right to privacy
1
This privacy right belongs, not to the deceased, but to the survivors:
“ ‘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.’ ” Favish, 541 U.S. at 168-69
(citing Schuyler v. Curtis, 147 N.Y. 434, 447 (1895)).
MARSH v. COUNTY OF SAN DIEGO 5899
over death images where “publicity ceases to be the giving of
information to which the public is entitled, and becomes a
morbid and sensational prying into private lives for its own
sake, with which a reasonable member of the public, with
decent standards, would say that he had no concern”) (internal
citations and quotation marks omitted). However, like Favish,
these cases described the well-established common law right,
not a constitutional right. So far as we are aware, then, 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 pro-
tected. We conclude that it is.
[4] A common law right rises to the level of a constitu-
tional right if it is “deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty.”
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)
(internal citations and quotation marks omitted). The Favish
Court considered our history and traditions, and found that
“th[e] 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.” Favish,
541 U.S. at 168. For precisely the same reasons, we conclude
that this right is also protected by substantive due process.
[5] The long-standing tradition of respecting family mem-
bers’ privacy in death images partakes of both types of pri-
vacy interests protected by the Fourteenth Amendment. First,
the publication of death images interferes with “the individual
interest in avoiding disclosure of personal matters . . . .”
Whalen, 429 U.S. at 599. Few things are more personal than
the graphic details of a close family member’s tragic death.
Images of the body usually reveal a great deal about the man-
ner of death and the decedent’s suffering during his final
moments—all matters of private grief not generally shared
with the world at large.
[6] Second, a parent’s right to control a deceased child’s
remains and death images flows from the well-established
5900 MARSH v. COUNTY OF SAN DIEGO
substantive due process right to family integrity. See Rosen-
baum v. Washoe County, 663 F.3d 1071, 1079 (9th Cir. 2011)
(“The substantive due process right to family integrity or to
familial association is well established.”). The interest of par-
ents “in the care, custody, and control of their children . . . is
perhaps the oldest of the fundamental liberty interests . . . .”
Troxel v. Granville, 530 U.S. 57, 65 (2000). A parent’s right
to choose how to care for a child in life reasonably extends
to decisions dealing with death, such as whether to have an
autopsy, how to dispose of the remains, whether to have a
memorial service and whether to publish an obituary. There-
fore, we find that the Constitution protects a parent’s right to
control the physical remains, memory and images of a
deceased child against unwarranted public exploitation by the
government.
[7] To violate substantive due process, the alleged conduct
must “shock[ ] the conscience” and “offend the community’s
sense of fair play and decency.” Rochin v. California, 342
U.S. 165, 172-73 (1952). Given that burial rites “have been
respected in almost all civilizations from time immemorial”
and “are a sign of the respect a society shows for the deceased
and for the surviving family members,” the Favish Court rea-
soned that unwarranted public exploitation of death images
degrades the respect accorded to families in their time of
grief. Favish, 541 U.S. at 167-68. Mutilation of a deceased
family member’s body, desecration of the burial site and pub-
lic display of death images are the kind of conduct that is
likely to cause the family profound grief and therefore
“shocks the conscience” and “offend[s] the community’s
sense of fair play and decency.” Rochin, 342 U.S. at 172-73.
[8] Marsh claims that when she learned that Coulter sent
her son’s autopsy photograph to the press, she was “horrified;
and suffered severe emotional distress, fearing the day that
she would go on the Internet and find her son’s hideous
autopsy photos displayed there.”2 Marsh’s fear is not unrea-
2
The Favish Court noted the decedent’s sister suffered similar distress
in its underlying case. She was “horrified and devastated by [a] photo-
MARSH v. COUNTY OF SAN DIEGO 5901
sonable given the viral nature of the Internet, where she might
easily stumble upon photographs of her dead son on news
websites, blogs or social media websites. This intrusion into
the grief of a mother over her dead son—without any legiti-
mate governmental purpose—“shocks the conscience” and
therefore violates Marsh’s substantive due process right.3
2. Procedural Due Process
[9] The Due Process Clause of the Fourteenth Amendment
protects individuals against deprivations of “life, liberty, or
property.” “A liberty interest may arise from the Constitution
itself, by reason of guarantees implicit in the word ‘liberty,’
or it may arise from an expectation or interest created by state
laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005) (internal citations and quotation marks omitted). Like
property rights, liberty interests can be defined by state law.
“States may under certain circumstances create liberty inter-
ests which are protected by the Due Process Clause.” Sandin
v. Conner, 515 U.S. 472, 483-84 (1995). Once a state creates
a liberty interest, it can’t take it away without due process.
See Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). A state
official’s failure to comply with state law that gives rise to a
liberty or property interest may amount to a procedural (rather
than substantive) due process violation, which can be vindi-
cated under 42 U.S.C. § 1983. See Carlo v. City of Chino, 105
F.3d 493, 497-500 (9th Cir. 1997).
graph [already] leaked to the press,” and wrote “I have nightmares and
heart-pounding insomnia as I visualize how he must have spent his last
few minutes and seconds of his life” and “[r]eleasing any photographs . . .
would constitute a painful unwarranted invasion of my privacy, my moth-
er’s privacy, my sister’s privacy, and the privacy of [the decedent’s
widow], her three children, and other members of [his] family.” Favish,
541 U.S. at 167 (internal citations and quotation marks omitted).
3
Only Coulter’s attempt to publish the autopsy photograph is suffi-
ciently shocking to violate Marsh’s substantive due process right. We
address Coulter’s other instances of copying separately under procedural
due process. See pp. 5903-04, infra.
5902 MARSH v. COUNTY OF SAN DIEGO
Not every state law respecting privacy will create a liberty
interest protected by the Constitution. “State law can create a
right that the Due Process Clause will protect only if the state
law contains ‘(1) substantive predicates governing official
decisionmaking, and (2) explicitly mandatory language speci-
fying the outcome that must be reached if the substantive
predicates have been met.’ ” James v. Rowlands, 606 F.3d
646, 656 (9th Cir. 2010) (quoting Bonin v. Calderon, 59 F.3d
815, 842 (9th Cir. 1995)). In order to contain the requisite
“substantive predicates,” “the state law at issue must provide
more than merely procedure, it must protect some substantive
end.” Bonin, 59 F.3d at 842 (internal citations and quotation
marks omitted).
California Code of Civil Procedure § 129 states:
[N]o copy, reproduction, or facsimile of any kind
shall be made of any photograph, negative, or print,
including instant photographs and video tapes, of the
body, or any portion of the body, of a deceased per-
son, taken by or for the coroner at the scene of death
or in the course of a post mortem examination or
autopsy made by or caused to be made by the coro-
ner, except for use in a criminal action or proceeding
in this state which relates to the death of that person,
or except as a court of this state permits, by order
after good cause has been shown and after written
notification of the request for the court order has
been served, at least five days before the order is
made, upon the district attorney of the county in
which the post mortem examination or autopsy has
been made or caused to be made.
This section shall not apply to the making of such a
copy, reproduction, or facsimile for use in the field
of forensic pathology, for use in medical, or scien-
tific education or research, or for use by any law
MARSH v. COUNTY OF SAN DIEGO 5903
enforcement agency in this or any other state or the
United States.
Cal. Civ. Proc. Code § 129.
[10] The Legislative Counsel’s Digest explained that the
law serves California’s policy of protecting “individuals and
families against unconscionable invasions of their privacy”
and that “[t]he reproduction, for unrelated or improper pur-
poses, of any photograph of the body of a deceased person
taken in the course of a post mortem examination or autopsy
is contrary to such policy.” The sponsoring Assemblymem-
ber, F. James Bear, described the purpose of section 129 as
vindicating “the family of a deceased person[’s] . . . right of
privacy to limit reproduction of gruesome autopsy photo-
graphs.” Thus, it’s clear that this law was intended to create
a liberty interest in a family member’s death images. But to
determine whether it is a liberty interest protected by the Con-
stitution, we must look for the required substantive predicates
and mandatory language. James, 606 F.3d at 656.
[11] Section 129 meets the first requirement because it
contains substantive limits on official discretion. The law pro-
vides that no copy of an autopsy photograph may be taken
except for use in a criminal action or a proceeding related to
the death of that person. Cal. Civ. Proc. Code § 129. The law
thus provides substantive criteria—whether an action is crimi-
nal or related to the death of the person—that cabins an offi-
cial’s discretion. See Carlo, 105 F.3d at 498-99.
[12] Section 129 also satisfies the second requirement of
explicit and mandatory language limiting an official’s discre-
tion: “[N]o copy, reproduction, or facsimile of any kind shall
be made of any [autopsy photograph] . . .” unless court
approval is obtained or other specific exemptions apply. Cal.
Civ. Proc. Code § 129 (emphasis added). These exceptions
limit the protected liberty interest by allowing the use of
autopsy images in criminal trials relating to the decedent, with
5904 MARSH v. COUNTY OF SAN DIEGO
court approval, for use by law enforcement, or for medical
and scientific education and research. Id.Coulter’s initial use of the autopsy photographs in the sec-
tion 1983 case against Kenneth Marsh was clearly “for use in
a criminal action or proceeding . . . which relates to the death
of that person,” Cal. Civ. Proc. Code § 129, and is therefore
exempted. Marsh argues that Coulter’s later instances of
copying and distribution were not for permissible purposes
under the statute. Coulter argues that he was entitled to access
the autopsy photographs after the trial concluded because
Kenneth Marsh brought successive habeas petitions and so the
photographs might be necessary for any re-trial.
[13] It’s debatable whether Coulter’s retention of Phillip
Buell’s autopsy photograph after he retired is a violation of
section 129. He had no need for the photograph for any crimi-
nal trial once he was no longer a prosecutor. But Coulter
claims that the photograph was part of his training materials
for child abuse detection seminars, and therefore falls under
section 129’s exemption “for use in medical, or scientific edu-
cation or research.” Cal. Civ. Proc. Code § 129. Marsh at least
raises a triable issue of fact on whether Coulter had a valid
educational purpose in keeping the photograph after he
retired.
[14] It’s clear that Coulter’s submission of the autopsy
photograph to the press after he retired was not for legitimate
law enforcement, criminal investigation or educational pur-
poses. Rather, it appears Coulter was frustrated that Kenneth
Marsh’s conviction was overturned, and wanted to prove that
Marsh was in fact guilty by publishing his story, “What really
happened to Philip Buell?”, along with what he thought was
a damning photograph. Coulter’s interest in being vindicated
in the court of public opinion is not the type of use that sec-
tion 129 exempts. Marsh sufficiently alleges a violation of
section 129 and, therefore, a deprivation of a state-created lib-
erty interest.
MARSH v. COUNTY OF SAN DIEGO 5905
The district court held that section 129 does not give rise
to a state-created liberty interest because it believed that con-
stitutionally protected interests are limited to core prisoners’
rights. The court relied on Sandin, where the Supreme Court
explained that state-created liberty interest, “will be generally
limited to freedom from restraint which . . . imposes atypical
and significant hardship on the inmate in relation to the ordi-
nary incidents of prison life.” Sandin, 515 U.S. at 484. But
this limitation only applies to cases involving prisons. Sandin
doesn’t speak to liberty interests created by generally applica-
ble laws because the facts didn’t present that issue. The Court
in Sandin acknowledged that it wasn’t performing the “ordi-
nary task of construing a statute defining rights and remedies
available to the general public.” Id. at 481. Although the dis-
trict court cited Campbell v. Burt, 141 F.3d 927 (9th Cir.
1998), which suggested that “[t]he Supreme Court has
recently limited the doctrine to a certain core of prisoners’
rights,” id. at 930, we’ve recognized elsewhere that “the
Sandin test appears to apply specifically to prisoners who
have been convicted.” Carlo, 105 F.3d at 498; see also Picray
v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998) (distinguishing
Sandin from “other contexts [where] a state statute can create
a liberty interest protected by the due process clause”). We
know that statutory laws of general applicability can create a
liberty interest that is constitutionally protected. See, e.g.,
Hicks v. Oklahoma, 447 U.S. 343, 346 (1980); Brittain v.
Hansen, 451 F.3d 982, 999-1000 (9th Cir. 2006); Carlo, 105
F.3d at 493, 498-99; Meador v. Cabinet for Human Res., 902
F.2d 474, 477 (6th Cir. 1990); Taylor ex rel. Walker v. Led-
better, 818 F.2d 791, 798-99 (11th Cir. 1987).
[15] In enacting section 129, California consciously and
deliberately gave its citizens the right not to have government
officials engage in unwarranted reproduction of autopsy pho-
tographs or other death images of deceased relatives. Once a
state law creates that right, the Constitution steps in to protect
it against deprivations without due process of law. Therefore,
5906 MARSH v. COUNTY OF SAN DIEGO
Coulter’s violation of section 129 provides an additional basis
for Marsh’s section 1983 claim.
B. Under Color of State Law
[16] In addition to proving the existence of a federal right,
Marsh must show that Coulter was acting under color of state
law at the time of the alleged violation. See Long v. County
of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Coulter
retired six years before he sent Phillip’s autopsy photograph
to the press. Marsh offered no evidence that Coulter jointly
engaged with state officials in his conduct. See Adickes v.
S.H. Kress & Co., 398 U.S. 144, 152 (1970). In his deposi-
tion, Coulter testified that he didn’t ask for permission of the
DA because he was acting as a private citizen. As a private
citizen, Coulter’s conduct isn’t attributable to the state and
can’t form the basis of a section 1983 claim. “[T]he under-
color-of-state-law element of § 1983 excludes from its reach
merely private conduct, no matter how discriminatory or
wrongful.” Am. Mfrs. Mut. Ins. Co., 526 U.S. at 50 (internal
quotation marks omitted).
Marsh claims that Coulter was acting under color of state
law because he used his position as a state official to obtain
the autopsy photographs. The actions of a former government
employee, without more, cannot amount to state action.
Rather, there must be some evidence of involvement by cur-
rent government officials in the offending conduct. Other-
wise, a state could be held liable for the misdeeds of all its
former employees, expanding the scope of section 1983
beyond all reasonable bounds.
[17] Because Marsh has not alleged any misconduct by
any person who, at the time of the alleged misconduct, was
a government official, she fails to state a claim under section
1983 for Coulter’s actions after he retired from public service.
However, Marsh’s allegation of improper photocopying prior
to Coulter’s retirement still stands because Coulter was
MARSH v. COUNTY OF SAN DIEGO 5907
clearly acting “under color of state law” in his capacity as a
state prosecutor. This would include Marsh’s decision, while
still employed by the County, to take the photograph out of
the office and “give” it to himself as a private individual.
C. Qualified Immunity
[18] Even if Coulter violated Marsh’s constitutional rights
under color of state law, he’s entitled to qualified immunity
because the right wasn’t “clearly established” at the time of
his conduct. See Scherer, 468 U.S. at 191. Qualified immunity
creates a balance between “the interests in vindication of citi-
zens’ constitutional rights and in public officials’ effective
performance of their duties.” Carlo, 105 F.3d at 500 (internal
quotation marks omitted). This encourages officials to exer-
cise their discretion without fear of liability when the state of
the law is unclear. They can, therefore, be held liable only if
“[t]he contours of the right [are] sufficiently clear that a rea-
sonable official would understand that what he is doing vio-
lates that right.” Id.Marsh claims that the right was “clearly established,” rely-
ing on Favish, 541 U.S. 157 (2004), Melton, 267 F. Supp. 2d
859 (S.D. Ohio 2003), and Catsouras, 181 Cal. App. 4th 856(2010). But these cases were decided after Coulter retired
from his government position in 2000. Therefore, they were
not established at the time Coulter was acting under color of
state law.
Even including Coulter’s later conduct, these decisions are
insufficient to “clearly establish” a federal right to control dis-
semination of death images. Because Favish was decided in
the FOIA context, a reasonable officer wouldn’t have been on
notice that the right applies outside the statutory context, as
a separate constitutional right. Although the Catsouras court
found a state privacy right over death images, it found no
clearly established federal right and dismissed the section
1983 claim on qualified immunity grounds. 181 Cal. App. 4th
5908 MARSH v. COUNTY OF SAN DIEGO
at 896. In any event, the opinions by a federal district court
and an intermediate state court are insufficient to create a
clearly established right. Cf. Wilson v. Layne, 526 U.S. 603,
616 (1999) (finding no clearly established law where the only
cases cited were a state intermediate court decision and two
unpublished district court decisions).
[19] Marsh also relies on California Code of Civil Proce-
dure § 129, enacted in 1968, to demonstrate that the right was
clearly established at the time of Coulter’s conduct. But it was
not clear, prior to today, that the statute created a federally
protected right. For a section 1983 claim, “[i]t is not enough
to say simply that the right was clearly established by the Cal-
ifornia statute.” Carlo, 105 F.3d at 501. It must be clear that
the state law created a right protected by the Constitution. The
state statute, on its own, could not do that.
[20] As already noted, this is the first case to address the
federal privacy interest in death images. While we believe the
right is sufficiently grounded in federal law, we can’t fault a
state actor for failing to anticipate our ruling. Because it
wouldn’t have been “clear to a reasonable officer that his con-
duct was unlawful in the situation he confronted,” Saucier v.
Katz, 533 U.S. 194, 202 (2001), Coutler is entitled to quali-
fied immunity.
D. Monell Claim
[21] Marsh’s claim against the County of San Diego also
fails. Monell creates liability under section 1983 for munici-
palities where “the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regula-
tion, or decision officially adopted and promulgated by that
body’s officers.” Monell v. Dep’t of Soc. Servs. of New York,
436 U.S. 658, 690 (1978).
[22] Even if Coulter violated Marsh’s constitutional rights
while he was still employed as a prosecutor, his isolated
MARSH v. COUNTY OF SAN DIEGO 5909
instance of photocopying is insufficient evidence of a “policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by” the County. Id.; see Oklahoma
City v. Tuttle, 471 U.S. 808, 823-24 (1985) (finding a single
alleged violation insufficient for Monell liability).
Marsh argues that the County is liable under a “failure to
train” theory. Although a failure to train can be a “policy”
under Monell, there’s no evidence that prosecutors—active or
retired—often photocopy and distribute autopsy photographs
for illegitimate purposes without the consent of the family.
Thus, the county had no notice that training was necessary.
Nor is a showing that a single employee was inadequately
trained sufficient; there must be a “widespread practice.”
Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir.
1989).
Furthermore, Marsh hasn’t demonstrated that the absence
of training on the handling of autopsy photographs constitutes
“deliberate indifference” to her rights, or that the inadequate
training “actually caused” the deprivation of her rights. Mer-
ritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir.
1989).
III. CONCLUSION
Marsh has a constitutionally protected right to privacy over
her child’s death images. But, because Coulter wasn’t acting
under color of state law when he sent the autopsy photograph
to the press, that claim must be dismissed. And, because there
was no “clearly established” law to inform him that any of his
earlier conduct was unlawful, Coulter is entitled to qualified
immunity. Therefore, we affirm the district court’s judgment.
AFFIRMED. Each party shall bear its own costs on
appeal.