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"The Constitution protects a parent's rights to control the physical remains, memory and images of a deceased child against unwarranted public exploitation by the government."

Brenda Marsh brought suit against the County of San Diego (“the County”), alleging that the County violated her due process rights when a former Deputy District Attorney gave autopsy photos of her son to news media. Marsh appealed the district court’s grant of summary judgment in favor of the County. In this case of first impression, the Court held that “the Constitution protects a parent’s rights to control the physical remains, memory and images of a deceased child against unwarranted public exploitation by the government.” The Court based this ruling on Supreme Court precedent on similar common law rights, and the finding that such right is “deeply rooted in this nation’s history and tradition” as it relates to the two privacy rights under the 14th Amendment. However, the Court affirmed the grant of summary judgment in favor of the County, because Marsh failed to allege “any misconduct by any person who, at the time of the alleged misconduct, was a government official.” Because she failed to prove that the right was violated under the color of state law, her § 1983 claim failed. Additionally, because the constitutional right at issue was not “clearly established” before this ruling, the former Deputy District Attorney accused of violating Marsh’s right to privacy over her child’s death images was entitled to qualified immunity. AFFIRMED.