Mom of Murdered California Prisoner Defeats Motion to Dismiss Lawsuit by Guard Who Posted Pics of Corpse Online
by David M. Reutter
On March 28, 2024, the U.S. District Court for the Eastern District of California largely denied a motion to dismiss a civil rights action filed by the surviving mother of a murdered state prisoner whose corpse was photographed by a guard and posted online. The complaint accused Sgt. Joseph Burnes and other state Department of Corrections and Rehabilitation (CDCR) guards of snapping pictures of Luis Romero’s remains and posting them on the internet.
Romero was brutally murdered at Corcoran State Prison on March 9, 2019, by cellmate Jaime Osuna. After killing him, Osuna used “what appeared to be a razor wrapped in string to remove Romero’s right ear,” according to the complaint filed by the dead man’s mother, Dora Solares. But that was only the beginning of the heinous mutilation of her son’s corpse. As the complaint continued, Osuna “forcibly detached his eyes, removed portions of his ribs and lungs, and decapitated him,” before he finally “used Romero’s blood to write ‘hahahahaha’ on the walls.” When guards found him, Osuna was “wearing a necklace made of Romero’s body parts.”
Immediately after the murder was discovered, Burnes and other guards allegedly took unauthorized pictures of the scene with their cellphone cameras. The guards subsequently showed the pictures to other prisoners and shared them with other guards and civilians. Solares claimed that she was traumatized after seeing the photos posted “to online media platforms.” Her civil rights complaint alleged a Fourteenth Amendment violation for emotional, mental, and physical pain as a result of the public posting of the pictures; it named 17 defendants, but only Burnes was served summons.
He then moved to dismiss the suit, claiming qualified immunity (QI). Taking up that claim, the Court said that due process “prevents the government”—or a government actor like Burnes—“from engaging in conduct that ‘shocks the conscience,’ or interferes with rights ‘implicit in the concept of ordered liberty,’” pointing to U.S. v. Salerno, 481 U.S. 739 (1987). The standard of what “shocks the conscience” includes “the common law right to non-interference with a family’s remembrance of a decedent,” the Court said, calling that right “so ingrained in our traditions that it is constitutionally protected” by substantive due process, also citing for support Marsh v. Cnty. of San Diego, 680 F.3d 1148 (9th Cir. 2012).
While taking and possessing the photographs may shock the conscience, the Court continued, the right is clearly violated by any attempt to publish or actual publication of them—something Burnes denied doing. But that was beside the point, the Court said; “the relevant question is not whether the publication of the photographs caused Plaintiff’s damages, but rather, whether Burnes’ conduct caused the deprivation of the Plaintiff’s rights.” So Burnes’ conduct when he took and shared photos of Romero’s remains constituted unconstitutional conduct that allowed Plaintiff state a claim.
“Whether Plaintiff can prove causation,” or that Burnes’ conduct “shocks the conscience,” the Court said were questions “for a later time.” At this stage of the proceeding, it was enough to determine that the right at issue was clearly established at the time of the events in question, which was sufficient to deny Burnes QI. The court dismissed with prejudice a state-law claim asserting that autopsy photographs cannot be published under California statute; since the photographs in question were not from an autopsy, no cause of action under that law ensued. Thus the motion to dismiss was only partly denied and largely granted. See: Solares v. Burns, 2024 U.S. Dist. LEXIS 56694 (E.D. Cal.).
The case remains active, and PLN will update developments as they are available. Solares is represented in her suit by Los Angeles attorney Erin Darling and Encino attorney Justin E. Sterling. See: Solares v. Burns [Burnes], USDC (E.D. Cal.), Case No. 1:21-cv-01349. As PLN reported, the attorneys are representing Solares in a separate lawsuit filed in the Court against Burnes and other CDCR officials, including former CDCR Secretary Ralph Diaz, seeking damages for causing Romero’s death. [See: PLN, Oct. 2020, p.42.] Developments in that suit will also be updated as they are available. See: Solares v. Diaz, USDC (E.D. Cal.), Case No. 1:20-cv-00323.
Osuna, 36, is facing a murder charge for the killing in King County. He is still serving a term of life without parole, plus seven years to life, plus another 20 years, for the gruesome 2011 murder of Yvette Pena, a down-at-the-heels mother of six, at a Bakersfield motel.
Additional source: KGET