BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 957 (Wagner)
As Amended April 16, 2013
Hearing Date: June 4, 2013
Fiscal: No
Urgency: No
RD
SUBJECT
Postmortem Photographs
DESCRIPTION
Existing law prohibits a copy, reproduction or facsimile of any
kind being made of a photograph, negative, or print, as
specified, of the body or any portion of the body of a deceased
person taken by or for the coroner at the scene of death or in
the course of post mortem examination or autopsy, except for
certain limited purposes.
This bill would explicitly shield coroners from personal
liability for monetary damages for any act, or failure to act,
in compliance with that law.
BACKGROUND
Section 129 of the Code of Civil Procedure expressly precludes
the dissemination of any photographs of a deceased person's
body, notwithstanding any other law and with very limited
exceptions. Those exceptions generally allow the use of autopsy
images in the following circumstances: in criminal trials
relating to the decedent; with court approval; for use by law
enforcement; or for medical and scientific education and
research. This section effectively recognizes that a veil of
privacy surrounds these photographs, but for limited purposes.
When Section 129 was enacted in 1968, the urgency clause
reflected that the section services this state's policy of
protecting "individuals and families against unconscionable
(more)
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invasions of their privacy" and that "[t]he reproduction, for
unrelated and improper purposes, 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 a policy." The
co-author of that original legislation described the purpose of
that section as vindicating "the family of a deceased person['s]
. . . right to privacy to limit reproduction of gruesome autopsy
photographs." (Marsh v. County of San Diego (2012) 680 F.3d
1148, 1156; see also AB 4 (Bear and Unruh, Ch. 6, Stats. 1968).)
This bill would amend Section 129 to provide for greater clarity
to existing exceptions, and to ensure that a coroner could not
be held personally liable for lawful release of images in
accordance with existing law.
CHANGES TO EXISTING LAW
Existing law provides that, notwithstanding any other provision
of law, no copy, reproduction, or facsimile of any kind shall be
made of any photograph, negative, or print, including instant
photographs and video recordings, of the body, or any portion of
the body, of a deceased person, 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 coroner.
Existing law recognizes the following limited exceptions to this
rule:
for use in a criminal action or proceeding in this state that
relates to the death of that person; and
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. (Code Civ. Proc. Sec. 129.)
Existing law , among other things, provides that the above
prohibition does 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 scientific education or
research, or for use by any law enforcement agency in this or
any other state or the United States. (Code Civ. Proc. Sec.
129.)
This bill would revise the above exceptions to authorize the use
by a coroner for investigative purposes including identification
and identification confirmation, and to clarify that the
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existing exception for use by law enforcement applies only to
investigative purposes including identification and
identification confirmation.
This b ill would specify that a coroner is not personally liable
for monetary damages in a civil action for any act, or failure
to act, in compliance with the requirements of Section 129.
This bill would make other technical, clarifying amendments.
COMMENT
1. Stated need for the bill
According to the author:
With the increase in social media and the immediate nature of
posting media and making it available to millions of people
almost instantly, Coroner's are concerned about the liability
of properly released coroner case photos that subsequently end
up on websites or in the public arena for purposes other than
originally intended as a result of hacking, illegal sales of
such photographs or the careless custody of such photographs
by individuals or agencies who the coroner originally released
the photos to pursuant to [Code of Civil Procedure Section]
129. These instances have resulted in court cases brought
against corners, and although [they] ended in summary
judgment[s] in favor of the department, [they] cost
significant time, money, and staff resources from the county
to address these legal matters.
This bill seeks to clarify that coroners shall not be held
personally liable for monetary damages in a civil action for
any act, or failure to act in compliance with this section.
[It further] clarifies that coroners may use images for
investigative purposes to include identification and
identification confirmation.
2. This bill would ensure coroners who have complied with the
law are immune from personal liability for the acts of others
Section 129 of the Code of Civil Procedure generally prohibits
the dissemination or reproduction of postmortem photographs of a
body or any part of the body of a deceased person, taken by or
for the coroner at the scene of death or in the course of a post
mortem examination or autopsy. This bill would amend that
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section to make clarifying amendments to the exceptions and to
explicitly state that a coroner is not personally liable for
monetary damages in a civil action for any act, or failure to
act, in compliance with the general prohibition against the
dissemination or reproduction of postmortem photographs of a
body or any part of the body of a deceased person.
Generally, under existing law, everyone is responsible, not only
for the result of his or her willful acts, but also for an
injury to another caused by his or her lack of ordinary care or
skill in the management of his or her property or person. (Civ.
Code Sec. 1714(a).) Given the emotional trauma that can be
caused to family after the postmortem photographs of their loved
one have been publically shared, and that any violation of the
general prohibition on disclosure could be a violation of the
family's privacy rights or a parent's fundamental right to
control the body and death images of a deceased child, it is not
unforeseeable that lawsuits may arise out of violations of this
section. (See e.g. Marsh v. County of San Diego (2012) 680 F.3d
1148; Catsouras v. Department of California Highway Patrol
(2010) 181 Cal.App.4th 856.) The proponents of the bill contend
that they are aware of at least one case in San Bernardino in
which a coroner was sued after the lawful release of
photographs. That case was reportedly dismissed on summary
judgment.
As a matter of public policy, it is rarely preferable to shield
a party from liability where their acts or omissions cause
injury to another person. However, insofar as a coroner has
personally complied with these provisions and it is another
party who improperly disseminates them, it is unclear why a
coroner would be held liable under existing law for the
violations of this law by another person. As a result, this
bill would appear to merely add clarity to existing law as
opposed to relieving a coroner of liability that may otherwise
exist.
3. Amendment to avoid inadvertent immunization of coroners who
violate the law
This bill would provide that a coroner is not personally liable
for monetary damages in a civil action for any act, or failure
to act, in compliance with existing law. By applying the
immunity in cases where a coroner fails to act in compliance
with the law, this bill could inadvertently immunize a coroner
who, for example, improperly provides the photographs of a
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deceased individual to a tabloid magazine or posts those
photographs on the Internet. As this is not an intended
application of the bill, the author provides the following
amendment to address this drafting issue:
Suggested Amendment
On page 2, strike lines 29-21 and insert: "A coroner is not
personally liable for monetary damages in a civil action for
any act or omission in compliance with this section."
Support : California State Sheriffs' Association
Opposition : None Known
HISTORY
Source : California State Coroners' Association
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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