FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRENDA L. MARSH, 

Plaintiff-Appellant, No. 11-55395

v. D.C. No.  3:07-cv-01923- COUNTY OF SAN DIEGO; JAY S.

JLS-AJB COULTER; DOES, 1 to 100,

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
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, California, 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 thenboyfriend, 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 convicted 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

MARSH v. COUNTY OF SAN DIEGO 5895
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. During 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 sixteen autopsy photographs of Phillip’s corpse. Coulter also

mentioned that, after he retired, he kept one of these as a “memento 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 newspaper 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 dissemination of Phillip’s autopsy photographs violated her Fourteenth 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

5896 MARSH v. COUNTY OF SAN DIEGO
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 statecreated 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 Fourteenth Amendment is ‘a right of personal privacy, or a guarantee 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 Freedom 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 exemption to FOIA’s general requirement of public access to govMARSH v. COUNTY OF SAN DIEGO 5897
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 “personal privacy” included the “surviving family members’ right

to personal privacy with respect to their close relative’s deathscene 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 personal stake in honoring and mourning their dead and objecting 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 exposure to public view of the remains of a loved one.”); Catsouras v. Dep’t of Cal. Highway Patrol, 181 Cal. App. 4th

856, 874 (2010) (recognizing a violation of a right to privacy

1This 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)). 

5898 MARSH v. COUNTY OF SAN DIEGO
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 protected. We conclude that it is. 

[4] A common law right rises to the level of a constitutional 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 members’ privacy in death images partakes of both types of privacy 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 manner 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

MARSH v. COUNTY OF SAN DIEGO 5899
substantive due process right to family integrity. See Rosenbaum 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 parents “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. Therefore, 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 reasoned 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 public 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 unrea2The Favish Court noted the decedent’s sister suffered similar distress

in its underlying case. She was “horrified and devastated by [a] photo5900 MARSH v. COUNTY OF SAN DIEGO
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 legitimate 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 interests 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 vindicated 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 mother’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). 

3Only Coulter’s attempt to publish the autopsy photograph is sufficiently 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. 

MARSH v. COUNTY OF SAN DIEGO 5901
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 specifying 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 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, 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 scientific education or research, or for use by any law

5902 MARSH v. COUNTY OF SAN DIEGO
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 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 policy.” The sponsoring Assemblymember, 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 photographs.” 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 Constitution, 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 provides 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 criminal or related to the death of the person—that cabins an official’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 discretion: “[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

MARSH v. COUNTY OF SAN DIEGO 5903
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 section 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 criminal 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 education 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 purposes. 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 section 129 exempts. Marsh sufficiently alleges a violation of

section 129 and, therefore, a deprivation of a state-created liberty interest. 

5904 MARSH v. COUNTY OF SAN DIEGO
The district court held that section 129 does not give rise

to a state-created liberty interest because it believed that constitutionally protected interests are limited to core prisoners’

rights. The court relied on Sandin, where the Supreme Court

explained that state-created liberty interests, “will be generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the

ordinary 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

applicable laws because the facts didn’t present that issue.

The Court in Sandin acknowledged that it wasn’t performing

the “ordinary task of construing a statute defining rights and

remedies available to the general public.” Id. at 481. Although

the district 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. Ledbetter, 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 photographs 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,

MARSH v. COUNTY OF SAN DIEGO 5905
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 deposition, 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 undercolor-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 current government officials in the offending conduct. Otherwise, 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

5906 MARSH v. COUNTY OF SAN DIEGO
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 citizens’ 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 exercise 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 reasonable official would understand that what he is doing violates that right.” Id.

Marsh claims that the right was “clearly established,” relying 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 dissemination 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

MARSH v. COUNTY OF SAN DIEGO 5907
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 Procedure § 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 California 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 conduct was unlawful in the situation he confronted,” Saucier v.

Katz, 533 U.S. 194, 202 (2001), Coutler is entitled to qualified immunity.

D. Monell Claim

[21] Marsh’s claim against the County of San Diego also

fails. Monell creates liability under section 1983 for municipalities where “the action that is alleged to be unconstitutional

implements or executes a policy statement, ordinance, regulation, 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

5908 MARSH v. COUNTY OF SAN DIEGO
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; it 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. Merritt 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.

MARSH v. COUNTY OF SAN DIEGO 5909