FRESNO, Calif. (CN) — Part of a suit filed over the killing and mutilation of a man by a “psychopath” in a California prison will advance after a Thursday ruling by a federal judge.
U.S. District Court Judge Jennifer Thurston ruled that the suit can proceed against Officer Joseph Burnes and other prison guards on a substantive due process claim, expressing that it does “shock the conscience.”
However, the judge also granted a part of Burnes’ motion to dismiss, writing that a law cited by Dora Solares — the deceased man’s mother — works against her argument.
At issue is the March 9, 2019, death of Luis Romero — which happened two days after he was transferred to Corcoran State Prison. Solares says Jaime Osuna, his cellmate, desecrated her son’s body. Guards, including Burnes, took unauthorized pictures of the scene on their cellphones. They then shared those photos with others.
“Due to defendants’ actions, many of the photographs were ‘ultimately leaked to online media platforms,’ and plaintiff endured ‘the horrific experience of witnessing the photographs and in knowing that these photographs of her mutilated son had been seen by the general public, a severe disrespect to his mortal remains,’” Thurston wrote.
Burnes argued the judge should dismiss the case, as his actions didn’t “shock the conscience” — a phrase Thurston uses throughout her Thursday decision.
Substantive due process means the government can’t perform acts that shock the conscience. Thurston points to a Ninth Circuit case, Marsh v. County of San Diego, which noted the right to non-interference with a family member’s body is ingrained in tradition, making it constitutionally protected.
Publishing the images isn’t required for a violation, the judge wrote. The issue is whether Burnes’ actions deprived Solares of her rights. In her amended complaint, Solares points to what Burnes did, how he got the photos and with whom he shared them.
“Thus, plaintiff has alleged sufficient facts to link Burnes’ conduct to the alleged deprivation and allow the court to reasonably infer that Burnes deprived plaintiff of her constitutional right, as Mr. Romero’s mother, to control the death images of her deceased son,” the judge wrote.
Pivoting to an argument of qualified immunity, Thurston said that law enforcement officers have that immunity in civil suits. However, it ceases when their conduct violates certain rights that any reasonable person would know.
“Taking the allegations as true at this stage, defendants, motivated by ill-will and morbid gossip, took photographs of Mr. Romero’s mutilated remains and shared them with others not involved in the murder investigation.” the judge wrote.
She added later: “At this stage, this supports a claim that the officials’ conduct violated a clearly established constitutional right.”
However, Thurston disagreed with Solares’ argument about breach of mandatory duty, ruling it didn’t pass muster. Solares pointed to a law that establishes photos of a deceased person — taken by or for a coroner during an examination — can’t be disseminated. However, the judge noted that Solares in her own complaint states that the photos weren’t for the coroner.
"Though the court appreciates that the goal of section 129 would be furthered by extending its prohibitions to all photographs taken of decedents, this is a question for the Legislature," the judge wrote. "Consequently, because the photographs at issue were not 'taken by or for the coroner at the scene of death' and were not taken 'in the course of a post-mortem examination or autopsy,' on its face section 129 does not apply."
The judge dismissed that claim without leave to amend.
Burnes has a month to file an answer. The case now proceeds to a magistrate judge, who will schedule the next court hearing.
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