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March 2014

Who is Bredo Morstoel? Colorado’s Coolest Grandpa

Earlier this month, about 15,000 people gathered together in Nederland, Colorado, for a weekend of live music, swimming, volleyball, obstacle course races, contests, a parade, and even a gala.  But what were they celebrating?  

A frozen dead guy.

Bredo Morstoel, or “Grandpa Bredo” as he is lovingly called in Nederland, died of a heart condition on Nov. 6, 1989, in Norway.  Soon thereafter, his grandson, Trygve Bauge, brought Grandpa Bredo’s body from Norway to the United States.  Trygve and his mother, Aud Morstoel (Grandpa Bredo’s daughter), were—and, by all accounts, still are—devout believers in cryonics.  According to Trygve and Aud, although Grandpa Bredo died of a heart attack 25 years ago, “cryonic suspension” (staying frozen) will allow him to later be revived once a cure for his heart condition is developed. 

Upon his arrival in the U.S., Trygve stored Grandpa Bredo’s body in liquid nitrogen at a California cryonics facility until 1993, when he moved Grandpa Bredo to his home in Nederland, Colorado.  Grandpa Bredo’s body stayed in cryonic suspension in a small shed behind Trygve’s home.  Meanwhile, Trygve was deported from the U.S. due to visa complications, while Aud remained in the home without electricity or plumbing—violations of local ordinances which eventually led to her eviction.  What was going to happen to Grandpa Bredo’s body?  Aud feared that the body would soon thaw out.  But the town of Nederland had a different concern: what had been happening?  

Well, nothing illegal had been happening.  But, in response to this chilling discovery, the city of Nederland added to its Municipal Code §7-34(16), declaring that the “keeping of bodies”—specifically, any place “at which the owner or occupant keeps, stores or permits to be kept or stored the whole or any part of the person, body or carcass of a human being . . . which is not alive upon any property”—constitutes a public nuisance affecting public peace and safety.  Accordingly, Grandpa Bredo’s shed was in violation of the law.  But as publicity heated up, the city cooled down: they made an exception for Grandpa Bredo under—you guessed it—a grandfather clause.  

Now, thanks to the community of Nederland, and to is own family, Grandpa Bredo continues to rest in pieces of dry ice to this day. His -60°F cryonic state is maintained by caretakers and volunteers who deliver 1,600 - 1,800 pounds of dry ice to the shed every month.

Photo: Boulder Daily Camera 

Indeed, Grandpa Bredo is the frozen dead guy, the honoree of Colorado’s “most frigidly fun festival,” the Frozen Dead Guy Days.  This annual celebration, which started in 2002, includes coffin races, a “polar plunge” into the icy Colorado River, a snow sculpture contest, a frozen T-shirt contest, brain freeze contests, snow volleyball, bowling with frozen turkeys, and a parade of hearses.  He is the star of documentaries Grandpa's in the Tuff Shed and Grandpa's Still in the Tuff Shed.  He is a beacon of hope for his family, who, in their unwavering faith in cryonics, support the Frozen Dead Guy Days festival “until a time in the future when medical advances will allow his body to be warmed and ‘reanimated.’”  He is a symbol of unanswered questions about the legal rights of, and regarding, the deceased. 

Should the cryonic “keeping of bodies” be outlawed?  Who has custody of the remains?  Does anyone owe an obligation to maintain the cryonic suspension of another?  Do Trygve and Aud have any rights in this story?  How can I be sure that I’m frozen when I die?  How can I be sure that I’m not?  Most people do not believe that Grandpa Bredo can ever be revived, but some people do—do we owe anything to what some consider the “temporarily” dead?  Is it ethically “right” to keep Grandpa Bredo frozen?  Would it be right to let him thaw?  If cryonics is legitimate, what legal rights do the revived have?  What would the legal status of the frozen be?  If cryonics is not legitimate, should we protect the public by banning the sale of the service?  Should we prohibit the practice entirely?     

Regardless of one’s own belief in, or suspicion of, cryonics, more than 200 people are currently in cryonic suspension throughout the U.S., and an estimated 2,000 people have already made pre-need arrangements for cryonics upon their deaths.  Thus, the legal and ethical issues surrounding cryonics do, and will continue to, matter.  Indeed, though many questions of science remain, we cannot afford to put the legal issues on ice while we wait for the answers.  

If you’re hoping to chill with Grandpa Bredo, next year’s Frozen Dead Guy Days is scheduled for March 6-11, 2015.

Catherine M. Hammack

Always Think Before You Instagram

Spc. Terry Harrison, a member of the Wisconsin National Guard has been suspended indefinitely from the funeral honors detail after she posted two pictures of military funerals to her Instagram account. In its terms of use Instagram prohibits violent, nude, discriminatory, unlawful, hateful or pornographic content as well content that may harass, threaten or contain private or confidential information. The pictures Harrison posted do not violate any of Instagram’s terms of use nor do they violate any state or federal laws. However, her postings sparked outrage from her fellow soldiers as well the community as a whole. The comment “we put the FUN in funerals” has caused Harrison to receive death threats and the Guard is taking measures in order to protect her.

Harrison may not have violated any state or federal laws but she is under investigation, along with other members of the Guard in the photos, and may receive punishment under the Uniform Code of Military Justice. Major Paul Rickert, Wisconsin National Guard’s director of public affairs, said that the photos and comments do not portray any misconduct during the performance of actual military funeral honors. Rickert added that the Guard expects all soldiers who carry out this detail to handle it with professionalism and honor and these photos and comments do not appear to align with those values.

Maj. Gen. Donald Dunbar, the Wisconsin adjutant general who ordered the investigation, said he was “appalled” by the photos. Gen. Frank Grass, the Chief of the National Guard Bureau at the Pentagon, has directed the Army National Guard to conduct its own investigation of the matter. 

Samantha Davis

‘Til Death Do Us Part (or At Death Do Us Join?)

In Ohio, same-sex couples who are not recognized as legally married by the state while both are living are now recognized as legally married in death. On December 23, 2013, a federal judge ruled that the state’s prohibition on same-sex marriage, at least in one context, violates the Fourteenth Amendment of the United States Constitution.

A same-sex couples brought suit to force the Ohio Department of Health to include the healthy partner’s name as spouse on his dying partner’s death certificate to ensure that the dying man would be able to be buried in his husband’s family cemetary plot. The other plaintiffs to the suit were another same-sex couple and a gay funeral director in the state.

Southern District of Ohio Judge Timothy Black issued an order requiring the Directory of the Ohio Department of Health to acknowledge same-sex spouses who were married in a jurisdiction that legally allows same-sex marriage as “married” and “widow/widower” on death certificates it issues. He was also charged with giving notice to all those who issue death certificates in the state.

The court further ruled that no administrative or criminal action could be taken against the funeral director for issuing death certificates for individuals in a same-sex marriage in a manner consistent with the order in this case.

Judge Black determined that Ohio not recognizing same-sex marriage violates a fundamental liberty interest under the Due Process Clause of the Constitution. Though his decision was limited to the context of death certificates only, Judge Black recognized that further rights and recognition of same-sex couples are very likely to stem from this order. Five other federal judges have also struck down state bans on gay marriage since June of last year, when the Supreme Court held that the federal definition of marriage could not be restricted to heterosexual couples in U.S. v. Windsor.

The decision was appealed by the state on January 22, 2014.

Katelyn McCombs

Iowa Pet Cemetery Prohibited from Burying Horses


Given the strong connection that humans feel with their pets, it’s not surprising that many individuals want to provide the same type of burial services for their four legged companions as they would for their family members. In fact, many organizations across the United States exist solely to provide pet burials and cremations. One such organization is Pet Memories. Located in De Moines, Iowa, Pet Memories and its owner, Steve Johnson, offer the unique service of horse burials. On September 13, 2012, however, the Iowa Department of Natural Resources issued an administrative order against Pet Memories, imposing a $10,000 fine and ordering Johnson to stop burying horses.

As it stands, very few states actually have laws addressing pet burials. Instead, rules vary from state to state , and those rules that do exist offer very little guidance. In Iowa, for example, Iowa Code §167.18 imposes a duty upon a person who has been caring for an “animal that has died” to dispose of the carcass by “composting, cooking, burying, or burning.” What the Iowa Code does not do, however, is adequately define “animal.” With this in mind, the Iowa Department of Natural Resources opted to to define dead horses as “solid waste” under Iowa Code § 455B.301, thereby requiring horse owners to dispose of their horses in a landfill instead of a burial site. In its administrative order, the Iowa Department of Natural Resources rationalized that decomposing horses buried underground could pose a significant threat to Iowa’s groundwater.

This decision is troublesome for two reasons. First, the administrative order treats Johnson and other companies that provide horse burials differently than Farmers. Under Iowa Administrative Rule 567 IAC 100.4(2), farmers are allowed to bury horses on their property, so long as the animal “result[s] from an operation on the premises.” Therefore, individuals who raised horses for farm operations are provided burial options,  while individuals who raised horses as companions are not. Second, the agency’s reasoning, though tailored to horses, could potentially encompass all types of animals. Since Iowa has yet to consider the burial of other companion animals, it could easily be argued that the burial of any type of animal would pose a significant threat to Iowa’s groundwater, irrespective of the animal’s size. Under such a  decision, all pet owners could be denied the right to bury their faithful companions.

Therefore, Iowa, and other states alike, could avoid this situation by enacting legislation that more adequately defines the scope of animals and more heavily regulates pet cemeteries and their burials. In the case of Pet Memories, Johnson plans to appeal the fine to the Iowa Environmental Protection Commission, which will issue its decision in the following months.

 W. Nicolas Harper

Pennsylvania Funeral Industry Laws Avoid the Deathbead; Trade Names Banned

In 1952, Pennsylvania enacted the Funeral Directors Law (the “FDL”), 63 Pa. Stat. Ann. § 479.1 et seq., to protect both the life and health of Pennsylvanians through the regulation, licensure, and registration of individuals and corporations in the funeral industry. On February 19, 2014, however, the United States Court of Appeals for the Third Circuit overturned a lower court ruling that invalidated 10 provisions of the FDL on the basis of their constitutionality. In the opinion, which can be accessed here, the court explained that the lower court likely found “certain provisions of the FDL [to be] antiquated in light of how funeral homes now operate,” which the Third Circuit explained does not a constitute a “constitutional flaw.”

At trial, plaintiff members of the funeral industry argued that the FDL’s provision authorizing the warrantless searches and inspections of funeral homes violated the Fourth Amendment; that provisions restricting the ownership of funeral homes to licensed funeral directors, limiting the number of funeral homes an individual or corporation could own, requiring funeral establishments to have a “preparation room,” prohibiting food service in funeral establishments, and regulating monies advanced pursuant to pre-need contracts for merchandise violated the dormant Commerce Clause, the Contracts Clause, and the Substantive Due Process clause of the 14th Amendment; and that provisions prohibiting the use of trade names and prohibiting commission payments to unlicensed agents or employees violated the First Amendment.

In it’s decision, the Court reversed all but the provision prohibiting the use of trade names. In deciding that warrantless searches and inspections did not violate the Fourth Amendment, the court noted that warrantless searches of highly regulated industries are generally permissible, and reasoned under standards set forth by New York v. Burger that Pennsylvania has a legitimate interest in regulating the funeral home industry through the use of warrantless searches.

In holding that the provisions restricting the ownership of funeral homes to licensed funeral directors, limiting the number of funeral homes an individual or corporation could own, requiring funeral establishments to have a “preparation room,” prohibiting food service in funeral establishments, and regulating monies advanced pursuant to pre-need contracts for merchandise did not violate the dormant Commerce Clause, Contracts Clause, and the Substantive Due Process clause of the 14th Amendment, the court reasoned that the FDL does not discriminate against interstate commerce in either purpose or effect. In analyzing the substantive due process claim, the court applied the rational basis test and concluded that any burden placed on interstate commerce by the FDL does not outweigh the local benefits provided to Pennsylvania citizens by the FDL. In support of its conclusion that the FDL was rationally related to serving the legitimate interests of Pennsylvania, the court reasoned that the state’s citizens have an interest in maintaining the health and safety of funeral homes, ensuring that funeral homes are owned and operated by qualified individuals, and ensuring that grieving customers of funeral homes receive proper service for their needs. In upholding the prohibition against commissions for unlicensed agents and employees, the court reasoned that Pennsylvania has a reasonable interest in preventing funeral home clients from being taken advantage of by employees working on commissions. Lastly, in striking down the FDL’s provision prohibiting the use of trade names and finding that it violates First Amendment protections of commercial speech, the court reasoned that the FDL only adds to customer confusion and vulnerability. It explained that the confusion results from funeral home owners being forced to use the name of former owners, thereby providing patrons with no knowledge of the quality of ownership or change in ownership.

Opponents of the court’s decision argue that it unjustly protects large funeral homes from competition by enforcing high barriers to entry in the Pennsylvania funeral home industry. Alternatively, the ruling is a strong victory for those individuals and companies that are already licensed, and for individuals seeking services from the funeral home industry. From a legal standpoint, the court’s decision seems to imply that it will uphold outdated and poorly drafted regulation so long as it passes constitutional scrutiny. From a practical standpoint, individuals and companies seeking to change the laws are left with only one option—changing the law through the state legislature. However, in 2008, funeral directors tried to change the law through the legislature, but failed as a result of opposition from large funeral homes. Therefore, if history is any indication of the future, it seems that Pennsylvania will find itself with a consolidated, albeit highly regulated, funeral home industry for the upcoming years. 

William Nicolas Harper

Cybercriminals Reach New Low by Emailing Fake Funeral Notices


Every day, Americans check millions of emails.  The messages range from work emails to shopping deals to party invitations.  Naturally, receiving an email about a friend’s death would come as a shock, and would cause many people to click on the link to find out more information about the reported deceased and upcoming services.  Unfortunately, clicking on this link has serious consequences.

Cybercriminals have hijacked Eubank Funeral Home's identity in a “worldwide phishing scam.”  Over the past month, inboxes across the United States and other countries have been flooded with funeral notices that appear to be sent from Eubank Funeral Home, located in Canton, Texas.  These notices invite the recipient to a friend’s funeral, and provide a link to find “more detailed information about the farewell ceremony.”

This link, however, leads to a domain where malware is downloaded onto the user’s computer.  Malware, short for “malicious software,” includes viruses, worms, and spyware.  In this case, the malware provides criminals access to information stored on the user’s computer, including financial records, passwords, and other personal and sensitive information. 

The FTC recognizes that scammers are constantly tempting people to click on harmful links, but believe this phishing scheme is a new low.  The scheme is effective because scammers are using the names, logos, and addresses of real funeral homes.  According to the assistant director of consumer and business education with the FTC's Bureau of Consumer Protection Nathaniel Wood,  the emails have not been personalized with names of actual deceased people (at least not yet).  Wood further stated that millions of these emails are being sent, and corresponding complaints have increased in the last few weeks.  Eubank Funeral Home has received 50 to 100 complaints per day since January 2014 alone, with complaints coming in  from computer users as far away as South Korea and Finland.  With the government and police unable to find the culprits, Eubank has attempted to prevent the scamming by posting disclaimers on its website.

Wood understands that people click these particular links out of concern for their friends, or even due to general curiosity, but stresses that computer users must overcome this urge.  The FTC has also listed tips on its website to protect computers from malware.  In addition, the Better Business Bureau has released a nationwide warning, hoping to educate the public.

Unfortunately, this scam comes at a time when the funeral industry is attempting to deliver more information via social media and the Internet.  For example, Eubank sends death notices to email subscribers, alerting the subscribers of upcoming funerals scheduled at its funeral home.  With the expansion of social media and email use within the funeral industry, the FTC and BBB will have to continue to monitor ever-changing scammer strategies.

Garin Scollan

Destroying Evidence Through Cremation?


Nathan Middleton, 29, of Evansville, Wisconsin, was recently charged with hiding and mutilating a corpse after he supposedly burned the body of a missing teenager in a fire pit.  Rock County Court records indicate Middleton reported to police that he met Aprina Paul, 18, of nearby Dane County, through a Craigslist ad on October 27th, 2013.  That night, Middleton paid her for sex and claims to have seen Paul use an “unknown drug.” According to Middleton, when he awoke the next morning Paul was dead. 

Middleton hid Paul’s body in his backyard before burning it in a fire pit.  Paul’s remains were sent to a Texas laboratory.  Police have said they do not know when or even if evidence of how Paul died will be discovered.  Sheriff Robert Spoden is trying to keep expectations realistic.  “At this time, we just don’t have the evidence we believe would meet the criteria of a homicide charge . . . I’m trying to be realistic that there’s a chance we might not ever know,” Spoden said. 

Deputies arrested Middleton on six charges.  The charges include hiding a corpse, mutilating a corpse, and failure to notify the coroner of a death.  Two of the charges, for mutilating and hiding a corpse, are felonies.  However, if convicted on all charges, the maximum sentence Middleton could face is 25 years in prison.  The effectiveness of burning bodies to hide evidence, that many criminals take advantage, of suggests that the minimum and maximum sentences for such crimes should be increased. 

While many avenues to identify burned bodies remain, such as dental records, few options are available to determine how an individual died.  Further complicating the problem is that it is becoming more common for officers to arrive at a crime scene only to find the body of the victim burned.  Nevertheless, investigators can often recover meaningful evidence of how a victim was killed.  An average fire started by a criminal will typically reach between 800 and 900 degrees centigrade.  However, temperatures in a crematorium are considerably higher.  Thus, fires started by non-professional means may leave some evidence behind. 

Chris Wasson

Jumping the Gun on Death

In the well-known early 1990's movie "Cool Runnings," characters Derice Bannock and Sanka Coffie repeatedly asked one another, "You dead mon?" after many bobsled accidents they were involved in. Although the lines in the movie were meant for humor, perhaps we might once again incorporate such simple methods of reassurance into our practices of declaring whether or not people are deceased.

Fox News recently brought forth the story of a man who had  been pronounced dead after nurses and a coroner failed to detect any pulse on the man.  This is not much of a headline, but for the fact that the man woke up while in the funeral home and inside of a body bag! His own body bag! The story involves Walter Williams, a seventy-eight-year-old man, who on February 28 woke up in a body bag after already having been pronounced dead by the county coroner.  The story took place near Williams' home in Mississippi.  Not only had Williams been pronounced dead, but he was at the funeral home being preppared for embalming when he woke up and started kicking about in his body bag.  Not many of us can say we will ever see the inside of our own body bag, nor would many people ever want to. Even with the mess up, Williams' family simply praised the event as a miracle and said "Hallelujah."

The story ended well for the Williams family, but their story only sparks a simple question: What might we do to ensure another person doesnt wake up in their own body bag?  In earlier times, before our current advanced level of medicine, people used to stay near the body of an alleged deceased to ensure the person was actually deceased.  Although not needed in every circumstance, this might be a practice that should be reinstated for certain circumstances where a person is declared dead.  There are circumstances where one is most certainly dead, but there are other circumstances where persons may only appear dead.  

Outside the context of the issue of varying methods for declaring persons legally dead, perhaps there is another issue of what to do after one is legally dead.  A simple yet reassuring method of making sure people aren't mistakenly declared dead only to "become" alive some time later might need to be considered.  As in Williams' case, his apparent death was possibly the result of a malfunctioning pacemaker which all of the sudden worked again. Some persons, especially in the elderly population, can have such low blood pressure or heart rates that it is not unthinkable for a live person to seem dead. What would lead one to believe an incorrect pronouncement of death couldn't happen again? I would advocate that certain groups such as doctors, lawyers, politicians, lobbyists, etc., should form a method by which a deaceased body may be monitored post declaration of death. Again, this method would only need to be utilized in certain circumstances where one has been declared dead.  Preferably, a system could be developed by which different periods of temporal supervision could be established corresponding to the circumstances of the death by which one was declared dead.  Although most declarations of death presumably need no post declaration supervision, even a few instances of saving lives might be enough incentive to take on the additional costs of utilizating such methods.  

Brett Becker

Unfortunately, Walter Williams did pass away after his story broke and before this article was posted.

Fugitive Banker Caught Dead and Alive?

On June 16, 2012, Aubrey Lee Price disappeared.  A Georgia banker wanted by the FBI for misappropriating more than $21 million, Price vanished leaving behind only a series of suicide notes. In his notes, Price indicated that he planned to kill himself after riding the Key West Express in the Gulf of Mexico. Credit card records indicated that Price purchased weights and a dive belt a few days prior, and a recovered surveillance video showed him boarding the Key West Express Ferry, but not getting off. Presented with this information, the Coast Guard attempted a search costing $173,000 but came up empty handed.

Under Florida Statute § 731.103(3), an individual is presumed dead when they have been absent from their last known last known domicile for a continuous period of five years, and a diligent search and inquiry has been performed. However, evidence showing that the absent person was exposed to a specific peril of death may be sufficient evidence for a court to determine that the individual died less than 5 years after the date on which his or her absence commenced. Unlike other states, though, Florida recognizes that the presumption of death of a person after a five-year absence may be rebutted by the person’s reappearance.

In the case of this missing banker, Price’s wife petitioned a Florida court to declare her husband dead eighty-one days after his apparent suicide, which the court did on December 31, 2013.  Relying on Florida Statute § 731.103(3), the court found the evidence sufficient enough to determine that Price drowned at sea, and consequently died less than 5 years after the date on which his absence commenced. As a result of the court’s decision, Price’s wife has been allowed to collect survivor’s benefits from the Social Security Administration.

Then, exactly one year later, a legally deceased Price was pulled over in Brunswick, Georgia for having windows that were too dark. One week later, his death certificate was vacated, brining him back to life from a legal death.

The implication of Price being brought back to life is that his wife, Rebekah Price, may no longer collect the survivor benefits from the Social Security Administration. Generally, when an individual receives more benefits than they should have, or when they receive benefits that were not due, the individual must return the money to the Social Security Administration.  In certain cases, though, the individual may request a waiver if they can show that the overpayment was not their fault and that repayment would cause a financial hardship. In this case, Rebekah Price was only paid one-year’s worth of benefits, but it remains to be seen whether she will be forced to return the benefits to the Social Security Administration. In any event, the legal death and rebirth of Aubrey Lee Price has tested the Florida law, and will certainly to test the regulations of the Social Security Administration.

Nick Harper

SCI Cemetery Groundsmen Desecrate and Damage Burials

As one of the largest Service Corporation International ("SCI") cemeteries in Los Angeles, California serving the Jewish community, Eden Memorial Park faces current public scrutiny due to allegations of a mass grave disturbance on its property. Proponents behind the allegations comprise of nine named Plaintiffs a part of a class action suit against the cemetery. The Plaintiffs range from Eden clients to family members that have spent a colossal amount of money on services provided through Eden over an extensive period of time. Much of the basis for the allegations made by the Plaintiffs rest on the belief that the groundsmen at Eden Memorial Park, over a period of twenty five years, routinely "broke burial vaults to make room for new graves and were instructed to throw the bones and human remains that fell out into a dump on the property."

Interestingly, state officials investigating the allegations of the class action suit have been unable to identify evidence to substantiate the claims. However, this will not be the first time that SCI faced attacks on its cemeteries' operation strategies and personnel. The company's December 31, 2009 annual report, containing the Eden proceedings, in its notes to consolidated financial statements includes an exorbitant listing of legal proceedings against the company. For several of the proceedings listed, including the Eden Memorial Park class action suit, the company guilefully asserted "we cannot quantify our ultimate liability, if any, for the payment of damages."

During an interment verification training program ran by SCI, four groundsmen at Eden mentioned they did certain things at the cemetery based on instructions they received from management. These tasks included instructions to make sure all deals were closed and  "make vaults/caskets fit regardless of the size of the grave. . . .[which included] breaking the vaults or caskets to allow room for the new interment."3 These statements were included in an internal memo used by attorneys representing the Plaintiffs. Although SCI maintains its position that these allegations are false, the company ironically entered a settlement with the Plaintiffs worth over 35 million dollars to save money and time. It seems strategic on SCI's behalf to settle given the fact that within the period of the Eden Memorial Park class action suit, the typhoon company has faced several other legal proceedings. On the other hand, considering the large amount of suits against the company, the conception to settle such cases in order to conserve resources seems impolitic considering the settlement award outcome in the given case.  

Ashley White