Golden Gate University Law Review


In Marsh, the Ninth Circuit held that a prosecutor who photocopied and kept a child's autopsy photograph (and after retirement gave the copy to the press) was entitled to qualified immunity. The court reasoned that there was no "clearly established" law to inform the prosecutor that his earlier conduct in making and keeping the photocopy was unlawful. In so holding, the Ninth Circuit relied on American Manufacturers Mutual Insurance Co. v. Sullivan, which held that a plaintiff must prove that he or she was "deprived of a right secured by the Constitution or laws of the United States."' Moreover, a plaintiff must show that the federal right was "clearly established" at the time of the violation; otherwise government officials are entitled to qualified immunity. The Ninth Circuit should have adopted a broader approach in finding a "clearly established" right to control a family member's death images when addressing the prosecutorial misconduct at issue.