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PHILADELPHIA – The mother of a man who died by suicide during a mental health episode two years ago has opposed efforts from the City of Philadelphia to dismiss her litigation, which alleged an unidentified local police officer photographed her son’s lifeless body and distributed it online.
Karen Brookins of New Jersey first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 31 versus the City of Philadelphia and John Doe No. 1.
“On March 18, 2022, Marcus Boone was suffering from a severe mental health episode. On that day, he went to the Knights Road overpass off I-95 near Academy Road, and expressed his serious mental health concerns. Philadelphia Police responded, created a perimeter and interacted with Mr. Boone for approximately three hours. Despite the interactions, Mr. Boone tragically jumped from the bridge, taking his own life. After Mr. Boone’s death, John Doe No. 1 took pictures on his personal phone of Mr. Boone’s body lying on the street below. These photos were not taken for the purposes of any investigation, but rather were taken as a spectacle to be shared with gore-seeking individuals. John Doe No. 1 then proceeded to share the photographs via text message, Facebook and the Citizen app,” the suit said.
“John Doe No. 1’s actions were not taken for any legitimate purpose, but were instead the result of a callous, reckless, and malicious effort to share salacious death photographs. The photographs taken and shared by John Doe No. 1 were widely viewed and shared across text messages and social media, collecting thousands of views. The circulation was so broad that plaintiff was shown the picture by a Sunoco gas station attendant named ‘Frank’ who did not know the deceased was plaintiff’s son. As a result of John Doe No. 1’s conscience-shocking behavior, plaintiff Karen Brookins has suffered severe emotional distress, including sleeplessness, anxiety, depression and post-traumatic stress disorder. John Doe No. 1’s actions caused pain and debilitating worry to plaintiff that other family members may see the photographs as well. Plaintiff has sought the treatment of both a therapist and a grief counselor to deal with her mental anguish. That treatment continues to present day.”
The defendants filed a motion to dismiss the complaint on Feb. 28 for failure to state claims upon which relief could be granted, seeking to have the Monell liability and intentional infliction of emotional distress counts thrown out with prejudice.
“Plaintiff suffered a tragic loss and experienced further suffering by the actions of unknown individuals, who posted and callously shared the photo described in the complaint. Although the actions of the individual who took the photo and the individuals who shared the photo are rightfully subject to criticism, those actions do not rise to the level of a constitutional violation. A photograph of a crime scene depicting the image of an individual’s deceased son is not the type of confidential information that is protected by the Fourteenth Amendment. The individual privacy interest here is too far attenuated to be considered an ‘intimate fact of one’s life.’ The image described in plaintiff’s complaint is not of her own body or personal information, it is of the image of another person’s deceased body,” per the dismissal motion.
“This is simply not the type of information that is contemplated as private by the constitutional jurisprudence discussed above. Moreover, there is no reasonable expectation of privacy for this type of image, which was taken in a public place. There is no doubt that plaintiff has suffered indignity from the facts alleged in her complaint, but the injury she suffered is not attributable to a constitutional protection and therefore not recoverable against the City. As a result, the complaint fails to allege a cognizable constitutional injury, which is required to properly plead a municipal liability claim against the City.”
The motion continued that the plaintiff’s complaint includes “no allegations that imply the City was the moving force behind a constitutional violation”, thus removing it from liability under Monell, and that the Political Subdivision Tort Claims Act immunizes it from the plaintiff’s intentional infliction of emotional distress claim, under state law.
UPDATE
In a March 27 opposition response to the motion, the plaintiff challenged the grounds by which the City argued for dismissal of her case.
“The photographing and dissemination of pictures of Marcus Boone’s body lying on the street immediately following his suicide was a violation of plaintiff’s Fourteenth Amendment right to privacy.
Precedent of this circuit has long established that an individual has a constitutional privacy right in avoiding disclosure of personal matters. The Third Circuit has noted that ‘the right not to have intimate facts concerning one’s life disclosed without one’s consent in a venerable right whose constitutional significance’ is well-recognized. This right, however, is not absolute and public policy or public health concerns may justify disclosure. In this matter, it is not argued, nor can it be, that there is any public benefit or justification for the dissemination of a photograph of Mr. Boone’s body lying on the street. Rather, defendant argues that there is no Fourteenth Amendment protection for plaintiff in the dissemination of photographs of her son because it ‘is not her own body or personal information’ and is ‘simply not the type of information contemplated as private by constitutional jurisprudence.’ This argument is simply wrong,” the plaintiff’s response filing stated, in part.
“For more than two decades, federal courts throughout the country have recognized this privacy interest as deeply rooted in our country’s history and tradition. In 2004, the Supreme Court held that the unwarranted public exploitation of death images invades privacy and degrades the respect afforded to families in their time of grief. The Supreme Court held the release of pictures of a decedent who committed suicide invades the privacy of his immediate family members, stating ‘we have little difficulty…in 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.’ In so finding, the Supreme Court went on to explain that the right to privacy in death images of the deceased has long and deep roots in our common law. Since National Archives & Records Admin. v. Favish, the federal courts of this country have routinely upheld a Fourteenth Amendment right of immediate family members in death photographs of the deceased. It is clear then, that the dissemination of the photograph of Mr. Boone violated plaintiff’s Fourteenth Amendment substantive due process privacy rights.”
Brookins also reiterated her Monell claim under a failure-to-train theory.
“Here, the City failed to equip officers with the tools to handle a recurring situation – namely failing to train officers that they may not take and circulate death scene photographs. According to the Philadelphia Police Department, there were 562 homicides in 2021, 514 in 2022 and 410 in 2023. Philadelphia police officers are responding to every one of these homicides. Additionally, officers are regularly responding to suicides and accidents that result in death. All told, it is reasonable to assume PPD officers are responding to a death scene at least twice per day and usually multiple officers are responding,” the response filing said.
“Despite the regularity of these responses, the City has no training whatsoever instructing officers that they cannot photograph and disseminate death-scene pictures – a shocking shortcoming given the prevalence of social media in the modern age. It is clear that it was more than predictable that officers would encounter these recurring situations and the City’s failure to train officers constitutes deliberate indifference to the rights of families of decedents. Therefore, plaintiff has presented adequate facts to permit a court to draw the reasonable inference that the City has violated the law.”
For counts of violation of privacy interest under the Fourteenth Amendment to the U.S. Constitution, Monell liability and intentional infliction of emotional distress, the plaintiff is seeking damages, jointly and severally, pursuant to state law including interest, delay damages, costs of suit, compensatory and punitive damages, and any other remedies legally appropriate.
The plaintiff is represented by Mark V. Maguire and John Joseph Coyle III of McEldrew Purtell, in Philadelphia.
The defendants are represented by Kathryn Faris of the City of Philadelphia Law Department’s Civil Rights Unit.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-00470
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com