Qualified Immunity for Officers Who Disseminate Death-Scene Images Absent Clearly Established Fourteenth Amendment Privacy Right

Case: Karen Brookins v. City of Philadelphia (3d Cir. May 29, 2026) (not precedential)
Court: United States Court of Appeals for the Third Circuit
Panel: Hardiman, Montgomery-Reeves, and Roth, JJ. (Roth, J., concurring in part, dissenting in part)

1. Introduction

This appeal arises from a deeply troubling episode following the death of Marcus Boone, the adult son of Karen Brookins. In March 2022, Boone died after jumping from an overpass. Philadelphia Police Officer Christopher Culver, stationed at the scene to hold back onlookers, took a photograph—using his personal cell phone—of Boone’s body lying on the roadway below. Culver’s conduct violated Philadelphia Police Department policy barring personal-phone crime-scene photography absent exigent circumstances. Culver later circulated the image to members of his unit as a misguided attempt at “humor,” and the image ultimately reached social media; strangers then sent it to Brookins.

Brookins sued under 42 U.S.C. § 1983 alleging a Fourteenth Amendment substantive due process violation, and under Pennsylvania law for intentional infliction of emotional distress (IIED). The district court granted summary judgment for Culver. On appeal, the central legal issues were:

• Qualified immunity: Was Brookins’s asserted liberty/privacy interest in controlling dissemination of a close relative’s death-scene images “clearly established” at the time?
• IIED proof at summary judgment: Did Brookins sufficiently cite record evidence that her distress was caused by Culver’s photo-taking/circulation (as opposed to grief from her son’s death itself), as required by Rule 56?

2. Summary of the Opinion

The Third Circuit affirmed summary judgment for Officer Culver on both claims.

• § 1983 / substantive due process: The panel assumed—without definitively deciding—that Brookins had articulated the liberty interest at an appropriate level of specificity (citing Rivera v. Redfern), but held the asserted right was not clearly established. As a result, Culver was entitled to qualified immunity under the “clearly established” prong (citing Clark v. Coupe).
• IIED: The panel held summary judgment was appropriate because Brookins failed to comply with Rule 56’s requirement to support factual assertions with citations to record evidence (Fed. R. Civ. P. 56(c)(1)(A)). The district court was not obliged to sift through roughly 1,500 pages of medical records (citing Fed. R. Civ. P. 56(c)(3), 56(e)).

Judge Roth agreed that Brookins’s IIED claim failed, but dissented from the majority’s qualified-immunity ruling. Roth would have held (i) Brookins does have a constitutional privacy interest in a family member’s death images and (ii) Culver’s conduct was so obviously wrongful that qualified immunity should not apply even absent on-point precedent.

3. Analysis

3.1 Precedents Cited (and How They Drove the Result)

A. Qualified immunity framework and “clearly established” law

• Clark v. Coupe, 55 F.4th 167 (3d Cir. 2022): Provided the standard qualified-immunity formulation—officers are shielded unless they violated “clearly established” law.
• District of Columbia v. Wesby, 583 U.S. 48 (2018): Reinforced the anti-generality rule—plaintiffs must identify a legal principle that “clearly prohibit[s] the officer’s conduct in the particular circumstances.”
• Egolf v. Witmer, 526 F.3d 104 (3d Cir. 2008): Emphasized that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law,” underscoring the court’s reluctance to demand legal creativity from officers.
• Elder v. Holloway, 510 U.S. 510 (1994): Used to insist the “clearly established” inquiry must track the federal right actually asserted; statutory or other rights do not automatically translate.
• Rivera v. Redfern, 98 F.4th 419 (3d Cir. 2024): The majority “assume[d]” Brookins defined the asserted interest at a proper specificity level—then still found no clear establishment.

B. Statutory privacy (FOIA) vs constitutional privacy/substantive due process

• National Archives and Records Administration v. Favish, 541 U.S. 157 (2004): The linchpin authority invoked by Brookins and heavily discussed. Favish held that “personal privacy” in a FOIA exemption encompassed a family’s interest in limiting public exploitation of death images. The majority found it unavailing because it was statutory interpretation, not recognition of a constitutional right. The dissent treated Favish as a “pathway” to constitutional recognition given its common-law and cultural tradition discussion.
• Sikes v. U.S. Dep't of Navy, 896 F.3d 1227 (11th Cir. 2018); Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120 (D.C. Cir. 1999); Prison Legal News v. Exec. Off. for U.S. Att'ys, 628 F.3d 1243 (10th Cir. 2011): Additional FOIA authorities cited by Brookins. The majority rejected them for the same reason as Favish: they speak to FOIA disclosure exemptions, not Fourteenth Amendment substantive due process.

C. “Analogous case” disputes: why the cited constitutional cases were deemed too far afield

• Wilson v. Layne, 526 U.S. 603 (1999): Brookins argued it should have put officers on notice that non-law-enforcement photography dissemination is unconstitutional. The majority held it addressed a distinct Fourth Amendment problem (media ride-alongs during home warrant execution), not a Fourteenth Amendment liberty interest concerning death-scene images.
• Kane v. Barger, 902 F.3d 185 (3d Cir. 2018): Recognized “an individual's right not to be sexually fondled and illicitly photographed.” The majority rejected it as not sufficiently analogous because it involved sexualized exploitation and photographing the plaintiff, not a third-party death scene involving a family member.
• Donohue v. Hoey, 109 F. App'x 340 (10th Cir. 2004); York v. Story, 324 F.2d 450 (9th Cir. 1963); Ioane v. Hodges, 939 F.3d 945 (9th Cir. 2018); Poe v. Leonard, 282 F.3d 123 (2d Cir. 2002): Nude-body/nonconsensual viewing cases Brookins cited. The majority treated them as materially different from a family’s interest in a decedent’s death-scene image—hence inadequate to clearly establish Brookins’s asserted right.
• Vargas v. City of Philadelphia, 783 F.3d 962 (3d Cir. 2015): Used mainly for the elements of a non-legislative substantive due process claim: deprivation of a protected interest in a “conscience-shocking” manner. The panel noted Culver (sensibly) did not dispute “conscience-shocking,” leaving only whether a protected liberty interest existed and whether it was clearly established.

D. “Robust consensus” and the few death-image substantive due process cases

• Marsh v. Cnty. of San Diego, 680 F.3d 1148 (9th Cir. 2012); Melton v. Bd. of Cnty. Comm'rs of Hamilton Cnty., Ohio, 267 F. Supp. 2d 859 (S.D. Ohio 2003); Chesher v. Neyer, 2004 WL 7401873 (S.D. Ohio July 29, 2004): The core “closest-fit” cases. The majority held that one circuit decision plus two district court cases are not a “robust consensus of persuasive authority.”
• Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416 (3d Cir. 2020): The majority relied on it to calibrate what counts as “robust consensus” (noting that unanimity among three circuits is not enough, while six may be).
• Roberts v. Bell, 281 F. Supp. 3d 1074 (D. Mont. 2018); Solares v. Burns, 2024 WL 1332501 (E.D. Cal. Mar. 28, 2024): Discounted—Roberts only assumed the right; Solares post-dated the conduct.

E. “Obviousness” pathway (rare cases without precedent)

• Urda v. Sokso, 146 F.4th 311 (3d Cir. 2025): Cited for the proposition that “obviousness” cases are “rare circumstances.”
• Taylor v. Riojas, 592 U.S. 7 (2020) (per curiam): Provided the template for obviousness—some conduct is so egregious that existing general constitutional rules clearly cover it even without a case on all fours.
• Hope v. Pelzer, 536 U.S. 730 (2002): Mentioned both by the majority (policy may be relevant but not dispositive) and in dissent’s reasoning by analogy (officials had time to reconsider).
• Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010): Addressed (and rejected) Brookins’s argument that qualified immunity should weaken where there is no time pressure; the majority stated the doctrine is not limited to split-second decision contexts.

F. Common-law heritage and qualified immunity

• Chiaverini v. City of Napoleon, Ohio, 602 U.S. 556 (2024) and Thompson v. Clark, 596 U.S. 36 (2022): Used to rebut Brookins’s suggestion that qualified immunity cannot apply to rights with common-law heritage; many constitutional rights overlap with common-law torts, yet qualified immunity still applies.
• Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022): Invoked for the “deeply rooted” substantive due process test (history and tradition; ordered liberty). The majority assumed arguendo that the asserted right could satisfy that test, yet still found no clear establishment for qualified immunity purposes.

G. Summary judgment and record-citation obligations

• Jean-Paul Weg LLC v. Dir. of New Jersey Div. of Alcoholic Beverage Control, 133 F.4th 227 (3d Cir. 2025): Standard of review and summary judgment framing.
• Fed. R. Civ. P. 56(c)(1)(A), 56(c)(3), and 56(e): The core procedural basis for affirming the IIED ruling—courts may consider uncited materials but are not required to do a party’s record work.

H. The dissent’s privacy “zones” line and additional authorities

• Carey v. Population Servs., Int'l, 431 U.S. 678 (1977) and Whalen v. Roe, 429 U.S. 589 (1977): The dissent anchored the asserted right in the constitutional “zones of privacy,” especially the interest in “avoiding disclosure of personal matters.”
• C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005): Cited by the dissent for the “venerable” nature of the constitutional right against disclosure of intimate facts.
• Washington v. Glucksberg, 521 U.S. 702 (1997) and Michael H. v. Gerald D., 491 U.S. 110 (1989): Used by the dissent to argue the family’s interest in death images is “deeply rooted” historically and thus capable of constitutional recognition.
• Schneyder v. Smith, 653 F.3d 313 (3d Cir. 2011) and Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023): The dissent’s “obviousness” scaffold—broad principles can clearly establish unlawfulness where the wrong is apparent.
• DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989) and Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575 (3d Cir. 2003): Cited in dissent by analogy (duty-based Fourteenth Amendment obligations) within the Thomas discussion.

3.2 Legal Reasoning

A. The majority’s path: assume the interest, decide qualified immunity

The majority strategically avoided a definitive constitutional pronouncement. It assumed—without holding—that Brookins’s asserted interest (control over dissemination/exploitation of close relatives’ death-scene images) was framed with sufficient specificity, and it did not contest “conscience-shocking” conduct (noting Vargas v. City of Philadelphia). That left the dispositive question: whether the right was “clearly established.”

The majority then ran through the three principal channels by which a right becomes clearly established in Third Circuit practice:

• Controlling authority: No Supreme Court or Third Circuit case placed the constitutional right “beyond debate.” Favish was framed as FOIA statutory interpretation, not Fourteenth Amendment doctrine, and thus failed Elder v. Holloway’s requirement to match the right asserted.
• Robust consensus: The best Brookins had was Marsh v. Cnty. of San Diego plus two Southern District of Ohio cases (Melton, Chesher), which the majority deemed insufficient under Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist.
• Obviousness: The majority rejected “obvious constitutional violation” framing, distinguishing the extreme facts of Taylor v. Riojas and emphasizing that it is not enough that conduct is reprehensible; it must be clearly proscribed by an already-identified constitutional rule.

On the “policy notice” argument, the majority treated the Philadelphia Police Department directive as incapable of clearly establishing a federal constitutional right—particularly given that the policy was a general personal-phone prohibition, not an explicit constitutional warning. The majority invoked Hope v. Pelzer to acknowledge policy can be relevant, but found the analogy insufficient.

B. The dissent’s path: recognize the right, deny immunity on obviousness

Judge Roth’s dissent advanced two positions the majority declined:

• Merits holding: Roth would have held “precedentially” that a family has a Fourteenth Amendment privacy interest in death images, fitting within the Whalen v. Roe “avoid disclosure of personal matters” zone. Roth drew on Favish’s common-law/historical discussion and the “deeply rooted” test associated with substantive due process analysis (citing Washington v. Glucksberg and discussing the post-Dobbs landscape).
• Qualified immunity: Roth agreed the right was not clearly established by existing Supreme Court/Third Circuit holdings, but would deny qualified immunity because the wrongfulness was obvious under Schneyder v. Smith and by analogy to Taylor v. Riojas and Thomas v. City of Harrisburg. Roth treated longstanding mourning traditions plus the Philadelphia directive as providing fair warning.

3.3 Impact

• Third Circuit remains formally undecided on the right’s existence: The majority’s assumption-only approach leaves litigants without a precedential Third Circuit holding that a family’s interest in death-scene images is (or is not) a protected Fourteenth Amendment liberty/privacy interest. Future plaintiffs will likely continue to cite Marsh v. Cnty. of San Diego and press for adoption, while defendants will rely on this case’s “not clearly established” reasoning.
• Qualified immunity remains a substantial barrier: Even if district courts within the circuit are receptive to recognizing a protected interest, damages claims against individual officers will still face the “clearly established” hurdle unless and until controlling precedent develops or a robust multi-circuit consensus emerges.
• Policy violations are not constitutional substitutes: The decision underscores that internal department directives—standing alone—generally do not clearly establish federal constitutional rights, though they may affect discipline, municipal liability theories, or “obviousness” arguments in the right case.
• Procedural rigor at summary judgment: The IIED ruling is a practical warning: plaintiffs must cite record evidence of causation and severity of distress tied to the challenged conduct, not simply rely on the court to mine voluminous records.
• Doctrinal pressure point (privacy after Dobbs): The dissent’s reliance on “zones of privacy” and historical tradition highlights an emerging fault line: whether death-image privacy is best conceptualized as informational privacy (Whalen) or substantive due process tradition (Dobbs/Glucksberg), and how that framing affects both merits and immunity.

4. Complex Concepts Simplified

• Substantive due process (Fourteenth Amendment): Protects certain fundamental liberty interests against egregious executive action. In the Third Circuit, non-legislative substantive due process typically requires (i) deprivation of a protected liberty interest and (ii) conscience-shocking conduct (see Vargas v. City of Philadelphia).
• Qualified immunity: Even if an officer violated the Constitution, the officer is not liable for damages unless the violated right was “clearly established” at the time—meaning existing precedent placed the unlawfulness beyond debate.
• “Clearly established” sources: Usually comes from Supreme Court or controlling circuit precedent; sometimes from a “robust consensus” of other circuits; rarely from “obviousness” where general constitutional principles clearly cover extreme misconduct (see Taylor v. Riojas).
• FOIA privacy vs constitutional privacy: Favish concerns whether federal agencies must disclose records under FOIA; it recognizes family privacy as a reason to withhold images. That does not automatically establish that the Constitution itself forbids an officer’s conduct—hence the majority’s separation of statutory and constitutional rights (see Elder v. Holloway).
• Summary judgment record-citation duty (Rule 56): Parties must cite specific materials in the record to support factual assertions (Rule 56(c)(1)(A)). Courts may consider uncited materials (Rule 56(c)(3)) but are not required to hunt through the record; if a party fails to properly support an assertion, the court may disregard it (Rule 56(e)).
• IIED causation problem in this posture: Where the plaintiff suffers profound distress from an underlying tragedy (here, the death), the plaintiff must still identify evidence that the defendant’s additional misconduct (photo circulation) caused severe distress beyond—or distinct from—the baseline grief.

5. Conclusion

Brookins v. City of Philadelphia affirms qualified immunity for an officer who photographed and circulated a death-scene image because, in the majority’s view, no Supreme Court or Third Circuit authority—and no robust consensus—clearly established a Fourteenth Amendment liberty/privacy right allowing families to control dissemination of a relative’s death-scene images at the time of the conduct. The court also reaffirmed strict Rule 56 practice by rejecting an IIED claim where the plaintiff failed to cite record evidence tying her distress to the photo itself.

The dissent frames the case as an opportunity to constitutionalize family death-image privacy and to deny immunity on “obviousness” grounds. The split illustrates the next battleground: whether courts will (i) formally recognize such an informational/familial privacy right in the Third Circuit and (ii) treat certain exploitative death-image disclosures as so self-evidently unlawful that qualified immunity cannot apply even before controlling precedent exists.