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About The Funeral of Sgt. Brinlee

[By James Kilpatrick] Kyle Adam Brinlee, a sergeant in the Oklahoma National Guard, died in action in Iraq on May 11, 2004. The government returned his body for burial in his hometown of Pryor (pop. 8,327), some 40 miles east of Tulsa. The funeral would not have been a happy occasion under the best of circumstances. An intrusive photographer made it even less so. The resulting lawsuit is now pending in the Supreme Court.

Some of the facts are in dispute, but the essential elements are clear. On learning of Sergeant Brinlees death, members of his family set about arranging for his funeral. Brinlee was the first serviceman from Pryor to die in action since the Korean War 50 years before. In a small town it was a big story. Gov. Brad Henry would be a prominent mourner. More than ,200 persons would attend. The small Stephens Memorial Chapel would never hold the crowd. Finally the high school auditorium was reserved for Brinlees final rites. By happenstance, in the spring of 2004 Peter Turnley, a contributing editor of Harpers Magazine, was working on a photo assignment. To illustrate a pictorial essay on The War on Terrorism, he was attending the funerals of several soldiers in different parts of the United States. While shooting in Texas he learned of Brinlees death. He thought it offered an opportune photo-op. Thus Turnley obtained permission to attend the funeral in Pryor. He agreed to certain conditions: He was not to approach the grieving family during the service; he was not to work outside a press section in the back of the auditorium; and he was not to take pictures of the open casket. Turnley denies that he agreed not to photograph the open casket. In any event, Harpers published one of Turnleys open-casket photos in its August 2004 edition. Subsequently the photo was published in the French magazine Le Monde.

for a newsworthy article, granted summary judgment to the magazine. In the 0th Circuit, U.S. District Judge Julie A. Robinson, sitting by designation, ruled in Turnleys favor. His conduct was not so extreme in degree as to go beyond all possible bounds of decency and to be utterly intolerable in a civilized community. Moreover, said Judge Robinson, Turnleys photo accurately depicted the exact image that plaintiffs chose to expose to approximately ,200 people who attended the funeral. The published photo did not involve a gruesome death image. Brinlees funeral was a matter of public interest. It could be argued that Harpers photo spread was in poor taste, said the judge, but poor taste is not an actionable offense. In their appeal to the Supreme Court, the familys lawyers rely chiefly upon the Supreme Courts opinion three years ago in the Vince Foster case. Many readers will recall the story: Vince Foster, deputy counsel to President Clinton, was found shot to death on a parkway just east of the capital. It appeared to be suicide. Half a dozen investigators agreed that it was suicide. Doubt nevertheless persisted. Demands continued for new disclosures. Finally a Freedom of Information petition led to Justice Anthony Kennedys opinion for a unanimous court, upholding the familys residual right to privacy. That right, said Kennedy, extends to the

contribute to an unwanted invasion of privacy. Members of Fosters family were entitled to refuge from a sensation-seeking culture. Kennedy added: We have little difficulty in finding in our own case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceaseds family members remains for public purposes. Moreover, Family members have a personal stake in honoring and mourning their dead and objecting to unwanted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own. My own feeling is that Harpers insensitive photographer had a right to photograph a public event in a public building. His pictures contributed to an understanding of the costs of war. All the same, Kyle Brinlee had paid the ultimate price. Something is surely wrong when his grieving family must pay a little more. (Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.) COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE This feature may not be reproduced or distributed electronically, in print or otherwise without the written permission of uclick and Universal Press Syndicate.

The offended family sued Harpers for invasion of privacy, emotional distress and unjust enrichment. A federal judge, ruling that the photo was taken in a public place

memory of the deceased held by those tied closely to him by blood or love. Photos of Fosters bloody corpse could be suppressed if they could be reasonably expected to

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