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A Section 1983 Primer (12B): Survival and Wrongful Death–What Happens When a Section 1983 Plaintiff Dies or Has Been Killed
The immediately preceding post addressed the section 1988 background of survival and wrongful death claims based on section 1983. It included a discussion of Robertson v. Wegmann, the leading Supreme Court decision dealing with survival of section 1983 claims.
This follow-up post primarily deals with wrongful death.
While both state survival statutes and state wrongful death statutes reverse contrary common law rules, their purposes are different. Survival statutes allow the cause of action to survive regardless of the death of the plaintiff (or defendant). Wrongful death statutes, by contrast, provide for causes of action to arise in and for the benefit of certain designated persons in order to compensate them for pecuniary losses resulting from a decedent’s death. Furthermore, for wrongful death actions the defendant’s conduct must necessarily be the cause of death; this is not required for survival.
The Leading Case of Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961)
In a leading decision on survival and wrongful death, the Fifth Circuit, in Brazier v. Cherry, drew no distinction for section 1983 and section 1988 purposes between the applicability of Georgia’s survival statute and its wrongful death statute. The case concerned allegations that police brutality had caused decedent’s beating and death. In concluding that section 1988 required the application of Georgia law in favor of the plaintiff, who was both the surviving widow and the administratrix of the decedent’s estate, the court treated survival and wrongful death concepts alike. Focusing on the “suitable remedies” language of section 1988, after dealing earlier with the “party injured” language of section 1983, the Fifth Circuit stated:
The term “suitable remedies” … comprehends those facilities available in local state law but unavailable in federal legislation, which will permit the full effectual enforcement of the policy sought to be achieved by the statutes. And in a very real sense the utilization of local death and survival statutes does not do more than create an effective remedy. … To make the policy of the Civil Rights Statutes fully effectual, regard has to be taken of both classes of victims.
Thus far, the Supreme Court has not addressed the issue of wrongful death and section 1983. As noted in the preceding post, it simply commented in Robertson, a survival case, that abatement of a section 1983 cause of action where the defendant’s conduct caused the plaintiff’s death was a different issue from that in case before it where death was not so caused. Still, as a matter of section 1983 policy, Brazier‘s approach to the use of wrongful death statutes seems sound and has been generally followed in the circuits. Consider: if a wrongful death statute could not be used for section 1983 actions, it would follow that where a defendant’s unconstitutional conduct immediately caused the death of the decedent, the typical survival statute would also not be applicable. The absurd result would be no vindication at all of the section 1983 claim. Thus, the Fifth Circuit appropriately observed in Brazier:
“[I]t defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death.”
Significantly, Brazier‘s reasoning can apply to the use of state survival law as well. Indeed, because the claim in such cases is for the decedent’s loss of his or her life and related damages,the “fit” between survival law and section 1983 may even be better than that between wrongful death law and section 1983. That may be why some circuit court decisions tend in fact to use state survival law in section 1983 cases and confront the “inconsistency” issue–addressed below–regarding damages limitations head on.
The general rule is that state wrongful death statutes can be used to vindicate a decedent’s constitutional deprivations caused by the conduct of section 1983 defendants that caused his or her death.
In addition–and this is important–to the extent that state wrongful death statutes (and survival statutes) limit the recovery of compensatory and punitive damages, those limitations have been held to be inconsistent with the policies underlying section 1983 and thus found inapplicable to section 1983 wrongful death claims. See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), overruled in part on other grounds, Russ v. Watts, 414 F.3d 783 (7th Cir. 2005), and Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). Both of these cases soundly hold that federal damages rules for compensatory and punitive damages govern for both survival and wrongful death claims brought under section 1983.
I discuss these and other cases in section 4:69 of Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016)(West).
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A Section 1983 Primer (12A): Survival and Wrongful Death–What Happens When a Plaintiff Dies or Has Been Killed?
There are times when a potential section 1983 plaintiff dies for reasons unrelated to his or her claim . There are other times when a potential section 1983 plaintiff may have a claim against the person or entity responsible for his or her death. It is crucial to distinguish between the two situations.
In the first, the question is whether the section 1983 claim survives the decedent‘s death so that the decedent’s legal representative can proceed with the section 1983 lawsuit. This raises a survival issue. In the second situation, the question is whether the decedent’s legal representative can bring a section 1983 claim for the decedent’s death. This raises a wrongful death issue.
Interestingly, the answers to these questions are based, as a matter of federal law, on the survival and wrongful death law of the forum state.
The Relevance of 42 U.S.C. sec. 1988 and the Silence of Federal Law on Survival and Wrongful Death
Section 1988 provides in relevant part that the jurisdiction of federal district courts must be exercised in conformity with federal law “so far as such laws are suitable to carry the same into effect.” However, section 1988 goes on to say that when federal law is deficient in the provision of suitable remedies, state statutory or common law applies, unless it is inconsistent with the Constitution or federal law, in which case that state statutory or common law is not to be applied.
Because federal law is silent on the questions of survival and wrongful death, and therefore “deficient,” section 1988 requires that the survival and wrongful death law of the forum state must be applied unless it is “inconsistent” with the Constitution or federal law.
Robertson v. Wegmann, 436 U.S. 584 (1978): Survival of Section 1983 Claims
In its only section 1983 survival case, Robertson v. Wegmann, the Supreme Court dealt with the meaning of section 1988’s “inconsistent” language in the course of explaining how survival applies to section 1983 claims.
In Robertson, plaintiff Clay Shaw sued district attorney Jim Garrison and others under section 1983 for their alleged bad faith prosecution attempts against him in connection with the assassination of President Kennedy. Shaw obtained an injunction but, before a trial on damages could be held, he died. The executor of Shaw’s estate was then substituted as plaintiff, prompting defendants’ motion to dismiss on the ground that the section 1983 action had abated. Under Louisiana law, Shaw’s action only survived in favor of certain close relatives, none of whom was alive when Shaw died. The district court refused to apply state law because it was thought to be inconsistent with federal law. Instead, the court created “a federal common law of survival in civil rights actions in favor of the personal representative of the deceased.” The Fifth Circuit affirmed, emphasizing the inconsistency between Louisiana law and the broad remedial policies of section 1983, as well as the need for uniformity in civil rights actions.
However, the Supreme Court reversed. Applying section 1988, it found that Louisiana survival law generally was both reasonable and not inconsistent with the compensation and deterrent purposes of section 1983, despite the fact that the section 1983 action abated in this unusual case. It said:
A state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation. . . . § 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby.
The Court added that its decision was to be read narrowly because Louisiana law generally was not “inhospitable” to survival of § 1983 actions and the particular result here had “no independent adverse effect on the policies underlying § 1983.” Significantly, it also observed that the case before it was far different from one in which the unconstitutional conduct actually caused the death; that is, this was not a wrongful death action.
Robertson indicates that state survival law will almost always govern the survival of section 1983 actions except in extreme situations as where, for example, state law significantly discriminates against those types of actions, including section 1983 actions, that do not survive.
The general rule, then, is that section 1983 damages actions that are intended to redress the constitutional deprivations of the decedent while he or she was alive survive the death of the plaintiff if such survival would be the result under applicable state law.
I collect circuit court decisions dealing with survival in section 4:66 of CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016; West).
Next Post: Section 1983 Wrongful Death Claims
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I’ve been out of town for over a month but expect to be back next week and to resume blogging on section 1983, constitutional law and other good stuff.
Kinsgley v. Hendrickson: What Standard Governs Pretrial Detainee Due Process Excessive Force Claims?
The Supreme Court granted certiorari and then reversed the Seventh Circuit in Kingsley v. Hendrickson, 135 S. Ct. – (2015)(No. 14-6368), revg Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014)(Judge Hamilton dissenting), a case involving the proper excessive force standard applicable to pretrial detainee claims brought under substantive due process. In this case, the plaintiff pretrial detainee alleged that the use of a taser against him constituted excessive force in violation of due process.
The Question Presented was “[w]hether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”
The Court’s Opinion
In an opinion by Justice Breyer, the Court rejected the subjective inquiry used by the district court—that there must be “an actual intent to violate [the plaintiff’s] rights or reckless disregard for his rights”–and affirmed by the Seventh Circuit. Instead, the Court declared that the proper standard in such pretrial detainee substantive due process cases was one of objective reasonableness, the same standard required by the Fourth Amendment for police officers making arrests in Graham v. Connor, 490 U.S. 386 (1989). The Court did not accept the defendant correctional officers’ contention that because this was a prison setting, under Bell v. Wolfish, 441 U.S. 520 (1979), the plaintiff pretrial detainee was required to prove that he was “punished” by them, meaning that at the least the defendants must have been subjectively aware that their use of force was unreasonable.
The Court went on to explain why this objective reasonableness standard would not unduly burden corrections officers. For one thing, the use of force must be determined from the perspective of a reasonable corrections officer at the time. For another, the objective reasonableness standard was workable and consistent with the pattern jury instructions used in several Circuits. For a third, the standard adequately protected corrections officers who acted in good faith because jail circumstances, including security and order, must be taken into account in making the objective reasonableness determination. Finally, the availability of qualified immunity to corrections officers provided an additional margin for error. See Chapter 8 of NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2014)(West).
Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, dissented, arguing that “punishment” was required under due process and that the infliction of objectively unreasonable force, standing alone, was not sufficient for this purpose. They also questioned whether a pretrial detainee had a liberty interest in freedom form objectively unreasonable force. Justice Alito also dissented, maintaining that certiorari was improvidently granted. In his view, the Court should first determine whether a pretrial detainee can bring a Fourth Amendment excessive force claim before reaching the substantive due process claim involved in Kingsley.
Kingsley is a sound decision. It finally puts to rest the split in the circuits regarding the proper excessive force standard for pretrial detainees, an issue that had been percolating in the circuits for some time.
In addition, so long as relevant security factors are plugged into the objective reasonableness inquiry, pretrial detainees are not being unduly advantaged to the detriment of the need to maintain security and order.
Perhaps most important, it would have been fundamentally unfair for pretrial detainees, who by definition have not been convicted of anything, to be governed by a subjective inquiry of the sort the governs excessive force claims brought under the Eighth Amendment by those already convicted. Kingsley property treats pretrial detainees as free citizens in this context.
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In Carroll v. Carman, 135 S. Ct. 348 (2014)(per curiam), revg, Carman v. Carroll, 749 F.3d 192 (3rd Cir. 2014), a police officer was sued under § 1983 and the Fourth Amendment for entering plaintiffs’ property in July 2009 by going into their backyard and onto their deck without a warrant. The police officer argued that his entry was lawful under the “knock and talk” exception to the warrant requirement because he stayed on that portion of plaintiffs’ property that the general public was allowed to go on.
The Third Circuit held that the officer violated the Fourth Amendment since he did not go first to the front door as required (so the Third Circuit read its own precedent as saying) by the “knock and talk” exception. It also ruled that the officer violated clearly established Fourth Amendment law.
Reversing, the Supreme Court held that the officer was entitled to qualified immunity because clearly settled law did not exist at the time. Even assuming that a single Third Circuit decision could suffice for this purpose, the decision that the Third Circuit cited did not stand for the proposition that the Third Circuit said it did.
The Court went on: “The Third Circuit’s decision is even more perplexing in comparison to the decisions of other federal and state courts, which have rejected the rule the Third Circuit adopted here.” However, the Court emphasized that it was not deciding the constitutional merits here but only qualified immunity.
What is interesting to me about this decision is the Court’s non-deferential approach to the Third Circuit’s understanding of its own precedent. The Court may also have signaled that it disagreed with the Third Circuit’s rule on the merits, although it said that it did not decide the constitutional merits.
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San Francisco v. Sheehan: New Supreme Court Qualified Immunity Decision Dealing with Shooting the Mentally Disturbed (ADA Issue Not Reached)
In its 2014 Term, the Supreme Court handed down a qualified immunity decision dealing with the shooting of a mentally disturbed woman. As has become the norm in recent qualified immunity cases before the Court, the police officers prevailed.
San Francisco v. Sheehan, 135 S. Ct. 1765 (2015), involved the near-fatal shooting of a mentally disturbed woman in a group home in August 2008. When the officers initially entered her room, she grabbed a kitchen knife and told them to leave, which they did. After conferring, they then re-entered her room by forcing open the door and blinding her with pepper spray. However, she continued to resist with her knife, so they shot her repeatedly.
Although the Supreme Court had granted certiorari to decide whether the Americans with Disabilities Act required the officers to “accommodate” the plaintiff’s disability, the Court did not address that question because it was not properly raised by San Francisco. Instead, reversing the Ninth Circuit, the Court ruled that the officers were protected by qualified immunity from § 1983 Fourth Amendment liability because there was no clearly established law prohibiting this conduct.
The Court rejected the Ninth Circuit’s contrary qualified immunity holding that its precedents would have placed “any reasonable, competent officer on notice that it is unreasonable to forcibly enter the home of an armed, mentally ill suspect who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry.”
But even assuming that was true, the Court continued, no precedent clearly established that there was not “an objective need for immediate entry” here. “[A]n officer could not know that reopening [plaintiff’s] door to prevent her from escaping or gathering more weapons would violate the Ninth Circuit’s test, even if all the disputed facts are viewed in respondent’s favor.”
The Supreme Court did not defer to the Ninth Circuit’s understanding of its own Fourth Amendment precedents as to the general rule in such cases.
Similarly, the Court did not defer to the Ninth Circuit’s application of its “objective need for immediate entry” criterion.
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Happy New Year to all of my readers.
WordPress sent me this summary of 2014 views of nahmodlaw.com.
One thing I found of interest was the fact that many views were of older posts on First Amendment, constitutional law and section 1983. I intended this blog to have educational durability and that seems to be the case, which is gratifying.
I thank you all.
The WordPress.com stats helper monkeys prepared a 2014 annual report for this blog.
Here’s an excerpt:
Madison Square Garden can seat 20,000 people for a concert. This blog was viewed about 66,000 times in 2014. If it were a concert at Madison Square Garden, it would take about 3 sold-out performances for that many people to see it.