Florida court questions restrictions on autopsy photos
By The Associated Press
03.06.02
FORT LAUDERDALE, Fla. — A judge said yesterday he was concerned about the constitutionality of a state law restricting public access to autopsy photos.
The law was passed a year ago after the death of race car driver Dale Earnhardt during the Daytona 500.
Circuit Judge Leroy Moe, hearing arguments in a news media challenge to the law, said the state's open-records statute may trump a family's pain in having the photos made public.
"That might be the price we pay for a free society," he said.
The law makes it a felony, punishable by up to five years in prison and a $5,000 fine, for unauthorized people to view or copy autopsy photos without a court order.
The statute was upheld by Volusia County Circuit Judge Joseph Will last year. That case was appealed to the 5th District Court of Appeal in Daytona Beach.
Yesterday's hearing came in a lawsuit by the Orlando Sentinel and the Sun-Sentinel of South Florida against the Broward County medical examiner. The Tribune Co. newspapers sued after the medical examiner refused to allow access to photos of people who died in 2000 without identification or in car accidents and correctional facilities.
Attorneys for the newspapers argued the law should be struck down because it is too broad.
Sentinel attorney David Bralow said not all autopsy photos are disturbing or will hurt families if made public. Plus, the law restricts not only the copying of photos, but the viewing of them, he said.
But state Solicitor General Tom Warner said the law protects the privacy rights of family members.
"I'm not sure the (state) constitution protects hurt feelings," Moe said.
The law also is being challenged by The Tampa Tribune, its television affiliate, WFLA-TV, and four newspapers owned by the New York Times Co. — the Gainesville Sun, The Ledger of Lakeland, the Sarasota Herald-Tribune and Ocala Star-Banner.
Attorneys for the Earnhardt family were allowed to argue in support of the law, although the family is not an official party to the lawsuit.
Earnhardt lawyer Jon Mills said the law doesn't restrict individuals from seeing autopsy photos if they have good cause. He also said the Legislature adequately justified the need for the law when it said releasing the photos could cause trauma, sorrow and humiliation to the family.
"That's persuasive, particularly in conjunction with Will's opinion," Moe replied.
But later, when state Solicitor General Tom Warner approached to make the final argument in support of the law, Moe asked him, "What can you do to convince me to save this legislation?"
In their filing, the Sentinel attorneys said the law could hinder criminal investigations and effectively prohibits the state's medical examiners from giving medical education lectures.
But Assistant Attorney General Scott Masel said medical examiners told the state that sometimes they would delay handing over the photos until relatives got a court order sealing them, such as in the 1997 murder of Gianni Versace in Miami Beach.
"This is a commonsense approach to a difficult and terrible problem," he said.
Moe said he would announce his ruling in the next few weeks.
After Earnhardt's crash on Feb. 18, 2001, the Sentinel sought a review of his autopsy photos by a safety expert to determine whether better equipment could have prevented the racer's death.
That request prompted the Legislature to act quickly to bar access to the photos and led to the ensuing legal battles.