BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 957|
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CONSENT
Bill No: AB 957
Author: Wagner (R)
Amended: 6/10/13 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 6/4/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Walters
ASSEMBLY FLOOR : 78-0, 4/22/13 (Consent) - See last page for
vote
SUBJECT : Postmortem photographs
SOURCE : California State Coroners Association
DIGEST : This bill prohibits the dissemination of a copy,
reproduction, or facsimile of a photograph of a body of a
deceased person taken by or for a coroner, except as provided.
This bill excludes from application of this provision the making
or dissemination of a copy, reproduction, or facsimile for use
in the field of forensic pathology, in medical or scientific
education or research, and by a coroner or any law enforcement
agency for investigative purposes, including identification and
identification confirmation. This bill provides that a coroner
is not personally liable for monetary damages in a civil action
for any act, or omission, in compliance with these provisions.
ANALYSIS :
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Existing law:
1. 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 of
Civil Procedure (CCP) Section 129)
1. 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. (CCP Section 129)
This bill:
1. Revises the above exceptions to authorize the use by a
coroner for investigative purposes including identification
and identification confirmation, and to clarify that the
existing exception for use by law enforcement applies only to
investigative purposes including identification and
identification confirmation.
2. Specifies that a coroner is not personally liable for
monetary damages in a civil action for any act, or omission,
in compliance with the requirements of CCP Section 129.
3. Makes other technical, clarifying amendments.
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Background
CCP Section 129 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
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, Chapter 6, Statutes
of 1968))
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/10/13)
California State Coroners' Association (source)
California State Sheriffs' Association
ARGUMENTS IN SUPPORT : 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, Coroners 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
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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."
ASSEMBLY FLOOR : 78-0, 4/22/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway,
Cooley, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hernández, Holden,
Jones, Jones-Sawyer, Levine, Linder, Logue, Maienschein,
Mansoor, Medina, Melendez, Mitchell, Morrell, Mullin,
Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea,
V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner,
Stone, Ting, Torres, Wagner, Waldron, Weber, Wieckowski, Wilk,
Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Lowenthal, Vacancy
AL:k 6/11/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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