JONATHAN TURLEY

Umatilla Fire Chief Richard Shirk has resigned after he took photos of a 26-year-old woman being treated by emergency workers, including seminude photos of the victim — who later died. The resignation may not end the controversy if the family sues, as did the family of Nicole “Nikki” Catsouras after pictures of her decapitated body were sent around the Internet by emergency officials. The claims of the two cases could be very similar. Nikki’s parents are claiming negligence, intentional infliction of emotional distress and libel. The photos are now on thousands of websites.These cases present a fascinating claim that a public scene should have been kept private. Anyone who was in the area could have legitimately photographed the scene and presumably could not be sued. Yet, the police closed off the scene for the purposes of the photographs, which are detailed and graphic. Their use of their authority to take the pictures and then release them is the heart of this novel action. For negligent infliction of emotional distress in California, the plaintiffs must normally show: In California, “[a] cause of action for negligent infliction of emotional distress requires that a plaintiff show “(1) serious emotional distress, (2) actually and caused by (3) [the] wrongful conduct (4) [of] a defendant who should have foreseen that the conduct would cause such distress.’” However, in a bystander case, the standard is more stringent as a general rule. The plaintiff in such cases must be (1) closely related to the injury victim; (2) present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress.The cases raise some of the issues from past reality program lawsuit. Police have been sued for bringing along camera crews on high-speed chases and home entry on the theory that, if they can witness a scene, the public can see the same scene. In Wilson v. Layne, a unanimous Court held that it is unconstitutional under the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant as witnesses — as on Top Cop shows. This litigation will explore the civil liability of exposing individuals to public view.The greatest defense for Umatilla is that Shirk was acting outside of his scope of employment and against city guidelines. However, there can still be negligence claims about the control of the scene and failure to bar such photographs. He has also suggested that such photographs were standard and connected to his job.For the full story, click here