Recently, the Third Circuit ruled that a police officer sharing a photo of a man who leaped to his death, while "deplorable," did not violate the family's constitutional right to privacy—a ruling that some experts say was an exercise in hair-splitting and a missed opportunity to clarify an important area of law.

The majority ruling drew a dissent from U.S. Circuit Judge Jane Richards Roth, who reasoned that plaintiff Karen Brookins, the mother of the deceased, did have a constitutional privacy right to control the images of her late son.

Judge Roth said that the Constitution grants families the right to mourn loved ones in peace, free from fear of exploitation.

Her dissent touched on important points and highlighted the need for more specificity in the law, according to Eric Breslin, a Duane Morris LLP partner focusing on complex litigation and white-collar investigations.

"It's difficult to see this kind of gratuitous cruelty go unpunished and unredressed," he said.

The intersection of what is morally "monstrous" and what constitutes a constitutional violation was in need of further clarification, Breslin added, especially in the context of an officer sharing death scene images.

"If under these facts there's not a basis for a claim here, then I do think there has to be some degree of clarification," he said, noting that there is "a lot of law that seems to be not quite on the point, buzzing close to the point."

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