Sadly, there is an inexhaustible supply of things that are beyond heart-breaking to a parent.  Having your daughter strip searched by an unduly officious school administrator is one.  Having death-scene photos of your decapitated daughter spread around the internet for fun by some California Highway Patrol officers is another.

From Dan Solove at Co-Op,

In Newsweek, Jessica Bennett tells the tragic story about a family being harassed by the spread of death-scene images of their daughter, who was killed in an automobile accident. The photos of Nikki Catsouras were particularly gruesome — Nikki was decapitated in the crash. According to the article, soon after the crash, photos taken by the California Highway Patrol started circulating on the Internet.

Apparently, the two California Highway Patrol officers took the pictures and improperly circulated them to others. The photos then started spreading like a virus around the Internet.

I can think of no better word than “diseased” to describe the conduct of these officers.  This is just fundamentally sick.  There has got to be a special place in hell for people who would do something like this.

So the family sued the CHP, alleging, inter alia, that the release of the crime-scene photos was a violation of their right to informational privacy under Whalen v. Roe, 429 U.S. 589 (1977).

But the trial court threw out their claim. In a pithy order, the court declared that no duty exists between the highway patrol officers and the family members.

Solove isn’t buying.

The California Highway Patrol owes a duty to all citizens to not violate their constitutional rights. This includes the Catsouras family’s constitutional right to information privacy.

The constitutional right to information privacy provides protection if a person has a privacy interest, if government officials violated that interest by disclosing personal information, and if the privacy interest isn’t outweighed by the government’s interest in disclosure. All of these elements are met.

Once a privacy interest is identified, the government has a duty to avoid unwarranted disclosure of personal information unless there is a countervailing interest that outweighs the privacy interest. In the Catsouras case, the disclosure of the photos was clearly unwarranted.

This goes to one of the fundamental problems that stands between the firmly-held expectation of the citizenry and the institutional protectionism of government, particularly law enforcement.  Since there are so many possible ways in which cops can fail to perform their duties, or actively cause harm to others, because they think it’s funny, or are inherently venal human beings hiding behind shields, or just aren’t smart enough to avoid doing something so inherently wrong as post photos of a decapitated young woman on the internet, government feels the need to protect itself from the citizens who it exists to serve and are simultaneously harmed by its failure to serve.

If nothing else, the distinction between failed duties, such as arriving timely, handling a situation properly, actually doing all the fine things that are shown on the multitude of TV cops shows to capture the love of the public, and affirmative harms done to people by diseased cops like these two wannabe-Ponches, should comprise the dividing line between protectionism and obvious, and well-deserved, liability.

My brightline test would be simple: If it makes you want to puke, then liability exists.  Do we really need to engage in deep analysis to know that this is just so very wrong?