Where petitioner's counsel informed this Court at oral argument
that petitioner's sole claim of constitutional deprivation
resulting from her minor son's being shot and killed by respondent
police officer was one based on her personal liberty, and not one
of pecuniary loss such as would be covered by Colorado's wrongful
death statute, but that contention was neither alleged in her
complaint (which included claims based on the state wrongful death
statute and a claim under 42 U.S.C. § 1983), presented in her
petition for certiorari, nor fairly subsumed in the question that
was presented as to whether the wrongful death statute's limitation
on damages controlled in a § 1983 action, the writ of certiorari is
dismissed as improvidently granted.
Certiorari dismissed. Reported below: 191 Colo. 1,
550 P.2d
339.
PER CURIAM.
Petitioner is the mother of a 15-year-old boy who was shot and
killed by respondent Hildebrant, while respondent was acting in his
capacity as a Denver police officer. Petitioner brought suit in her
own behalf in state court. Respondent defended on the ground that
he shot petitioner's son as a fleeing felon using no more force
than was reasonably necessary. The amended complaint asserted three
claims for relief: battery; negligence; and intentional deprivation
of federal constitutional rights.
Page 432 U. S. 184
Although not specifically pleaded, the first two claims were
admittedly based on the Colorado wrongful death statute,
Colo.Rev.Stat.Ann. § 13-21-20 (1973), [
Footnote 1] and the third, on 42 U.S.C. § 1983. While
petitioner alleged damages of $1,500,000, she stipulated to a
reduction of her prayer for relief with respect to the first two
claims, since the Colorado wrongful death statute admittedly
limited her maximum recovery to $45,000, Colo.Rev.Stat.Ann. §
13-21-203 (1973). The trial court also ruled that petitioner's §
1983 claim was "merged" into her first claim and, accordingly,
dismissed her § 1983 claim. The remaining claims went to the jury,
which returned a verdict for $1,500. [
Footnote 2]
On petitioner's appeal, the Supreme Court of Colorado affirmed.
191 Colo. 1,
550 P.2d 339
(1976). Her petition for certiorari presented a single question for
review here:
"Where the black mother of a 15-year-old child who was
intentionally shot and killed by a white policeman acting under the
color of state law brings a suit in state
Page 432 U. S. 185
court pursuant to 42 U.S.C. § 1983, what is the measure of
damages? Particularly, can the state measure of damages cancel and
displace an action brought pursuant to 42 U.S.C. § 1983?"
We granted certiorari to consider what was thus explicitly
presented as a question of whether a State's limitation on damages
in a wrongful death statute would control in an action brought
pursuant to § 1983. 429 U.S. 1061 (1977).
The majority opinion in the Supreme Court of Colorado proceeds
on the assumption that, if the Colorado wrongful death statute
applied to petitioner's claim, her recovery would be limited to
$45,000. It held that this limitation did apply even to the one
count of petitioner's complaint based on 42 U.S.C. § 1983.
A necessary assumption for this position would seem to be that
petitioner was suing to recover damages for injuries under § 1983
which were the same injuries as are covered by the state wrongful
death action. The question presented in the petition for certiorari
is, at the very least, susceptible of that interpretation. But at
oral argument, we were advised by counsel for petitioner that her
sole claim of constitutional deprivation was not one of pecuniary
loss resulting from her son's wrongful death, such as would be
covered by the wrongful death statute, but one based on her
personal liberty. Her claim was described at oral argument as a
constitutional right to raise her child without interference from
the State; it has nothing to do with an action for "wrongful death"
as defined by the state law. Tr. of Oral Arg. 4-5;
see also
id. at 8-13.
An action for wrongful death, under Colorado law, is an action
which may be brought by certain named survivors of a decedent who
sustain a direct pecuniary loss upon the death of the decedent. It
is "classified as a property tort action and cannot be classified
as a tort action
for injuries done to the person,'" Fish v.
Liley, 120 Colo. 156, 163, 208 P.2d 930,
Page 432 U. S. 186
933 (1949). [
Footnote 3]
Petitioner, however, articulates here a quite different
constitutional claim which does not fit into the Colorado wrongful
death mold. While petitioner's constitutional claim is based on an
alleged deprivation of her own rights, and not on deprivation of
those of her son's, [
Footnote
4] the asserted deprivation is not for any "property loss,"
but, rather, for the right of a child's mother to raise the child
as she sees fit. [
Footnote
5]
This claim was not set forth in the complaint, [
Footnote 6] was not even hinted at in
petitioner's briefs to the Supreme Court of Colorado, and is only
casually referred to in the opinion of that court. The majority
opinion held that, insofar as a claim for actual pecuniary loss was
a property right conferred upon petitioner by the State's wrongful
death statute, the damages recoverable under it were limited by the
terms of
Page 432 U. S. 187
that statute. The majority opinion also refers in passing to a
constitutional liberty right in petitioner herself, but its
principal thrust is that petitioner's liberty claims, as presented
to that court, are "really those of her son," and not claims
personal to her. [
Footnote 7]
This discussion, which occurs subsequent to that portion of the
opinion in which the Supreme Court of Colorado concluded that state
wrongful death remedies were incorporated into § 1983 to vindicate
civil rights violations "that result in death," does not intimate
that similar limitations would exist in a § 1983 action where the
alleged deprivation was that of liberty to a living plaintiff suing
for a wrong done to her. We do not know how the Supreme Court of
Colorado would have ruled on the damages limitation question had it
found the § 1983 claim to be that of the deprivation of the
mother's right to raise the child.
We have here then a shift in the posture of the case such that
the question presented in the petition for certiorari is all but
mooted by petitioner's oral argument. The question of whether a
limitation on recovery of damages imposed by a state wrongful death
statute may be applied where death is said to have resulted from a
violation of 42 U.S.C. § 1983 would appear to make sense only where
the § 1983 damages claim is based upon the same injuries. [
Footnote 8] This is the assumption
Page 432 U. S. 188
on which the Supreme Court of Colorado proceeded in discussing
whether the § 1983 claim "merged" in the wrongful death claim. The
court does not intimate, or decide, that a § 1983 claim based on an
alleged deprivation such as petitioner asserts here -- if the claim
were otherwise cognizable -- would require remedial assistance from
the state wrongful death statute, or that recovery on such a claim
would be limited by that statute.
Petitioner's question presented assumes that the underlying
constitutional violation necessary to support a § 1983 claim on her
behalf is undisputed, and that the only question upon which
petitioner takes issue with the majority of the Supreme Court of
Colorado is the limitation on the amount of recovery. But it would
seem possible, if not probable, that, if petitioner had presented
to the Supreme Court of Colorado the same claim she presented here
in oral argument, that court's opinion would not have turned on the
application of the state wrongful death statute as a limitation on
recovery of damages, since the underlying § 1983 claim --
deprivation of a right to raise children -- is not at all the same
underlying claim for which the wrongful death action provides
recompense. Whatever the merits of her constitutional liberty claim
in her own right, a question on which we do not intimate an
opinion, it would not seem logically to be subject to a damages
limitation contained in the statute permitting survivors to recover
for wrongs done to a property interest of theirs. In presenting to
this Court in her petition for certiorari solely a damages issue of
this nature, petitioner has wholly pretermitted the underlying
question of whether she has been deprived of any constitutional
liberty interest as a result of respondent's shooting of her
son.
In sum, the damages question which petitioner presents in her
petition for certiorari is only the tip of the iceberg.
Page 432 U. S. 189
The question of whether she was deprived of a constitutional
liberty interest of her own was neither alleged in her complaint in
the Colorado trial court, presented in the petition for certiorari
in this Court, nor fairly subsumed in the question that was
presented.
See this Court's Rule 23(1)(c). The writ of
certiorari is therefore dismissed as improvidently granted.
Belcher v. Stengel, 429 U. S. 118
(1976).
It is so ordered.
[
Footnote 1]
Section 13-21-202:
"When the death of a person is caused by a wrongful act,
neglect, or default of another, and the act, neglect, or default is
such as would, if death had not ensued, have entitled the party
injured to maintain an action and recover damages in respect
thereof, then, and in every such case, the person who or the
corporation which would have been liable, if death had not ensued,
shall be liable in an action for damages notwithstanding the death
of the party injured."
[
Footnote 2]
The jury had been instructed that damages in a wrongful death
action were limited to net pecuniary loss,
see Herbertson v.
Russell, 150 Colo. 110, 371 P.2d 422 (1962). This loss is the
financial loss sustained by petitioner as a result of the death of
her son, and would include the value of any services that he might
have rendered and earnings he might have made while a minor, as
well as any support he might have provided after becoming an adult,
less the expenses petitioner would have incurred in raising him.
The award apparently included, in this case, funeral expenses. The
Supreme Court of Colorado upheld the instructions and the award,
191 Colo., at 3 n. 1, 550 P.2d at 341 n. 1. These issues, of
course, are not before us except as they might bear on petitioner's
§ 1983 claim.
[
Footnote 3]
See n 2,
supra.
[
Footnote 4]
Petitioner explicitly acknowledged at oral argument that she had
not brought a claim for vindication of her son's rights; in
essence, an action on his behalf.
See Tr. of Oral Arg. 6,
17-18, 20. This is clear, as well, from the manner in which the
complaint is drafted, as well as the parties' perception that the
closest available state statute is the Colorado wrongful death
statute, rather than the Colorado survivorship statute,
Colo.Rev.Stat.Ann. § 13-20-101 (1973).
See Tr. of Oral
Arg. 17-18, 20.
See generally C. McCormick, Law of Damages
336 (1935); 2 F. Harper & F. James, The Law of Torts §§
24.1-24.3 (1956). Petitioner sued individually as the mother of the
decedent, and not as the administratrix of the decedent's
estate.
[
Footnote 5]
Petitioner apparently relies on
Meyer v. Nebraska,
262 U. S. 390
(1923), and its progeny as the basis for her asserted
constitutional deprivation. As articulated at oral argument,
petitioner's contention appears to be:
"[T]his Court has held on several occasions that a parent has a
constitutional right to raise their child, and that that child
cannot be taken from them without the due process of law."
Tr. of Oral Arg. 4-5.
[
Footnote 6]
Her complaint alleged that she was deprived of
"a. Her child's right to life;"
"b. The right to her child's freedom from physical abuse,
coercion, intimidation, and physical death; and"
"c. Her right to her children's equal protection of the
laws."
App. 3. Nowhere does she allege her asserted constitutional
right to raise her child.
[
Footnote 7]
The court was referring to the assertions in the complaint,
quoted in
n 6,
supra.
It then raised, and rejected, another argument in the following
passage:
"Furthermore, the state did not directly attempt to restrict her
own personal decisions relating to procreation, contraception, and
childrearing which are involved in
Griswold v.
Connecticut, 381 U. S. 479 . . . (1965), and
Meyer v. Nebraska, 262 U. S. 390 . . . (1923).
Although the death of a family member represents a loss to her, we,
nonetheless, are of the opinion that § 1983 was not designed to
compensate for these collateral losses resulting from injuries to
others."
191 Colo., at 9, 550 P.2d at 345
[
Footnote 8]
Petitioner rejects the view that the claims are based on the
same injuries: "The key is that the remedy . . . is for the
deprivation of civil right -- not for wrongful death." Reply Brief
for Plaintiff-Appellant in the Supreme Court of Colorado 7.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE
MARSHALL join, dissenting.
Physical abuses by police under color of state law may, in some
circumstances, constitute a constitutional deprivation giving rise
to criminal liability under the civil rights laws, even if the
abuses result in the death of the victim,
Screws v. United
States, 325 U. S. 91
(1945), and, if the victim survives such abuses, it is now clear
that he may recover damages under 42 U.S.C. § 1983 for the injuries
that he has sustained.
See Monroe v. Pape, 365 U.
S. 167 (1961);
Johnson v. Glick, 481 F.2d 1028
(CA2),
cert. denied sub nom. John v. Johnson, 414 U.S.
1033 (1973);
Howell v. Cataldi, 464 F.2d 272 (CA3 1972);
Tolbert v. Bragan, 451 F.2d 1020 (CA5 1971);
Jenkins
v. Averett, 424 F.2d 1228 (CA4 1970);
Collum v.
Butler, 421 F.2d 1257 (CA7 1970);
Allison v. California
Adult Authority, 419 F.2d 822 (CA9 1969). There remains the
question whether, independently or in conjunction with state law, §
1983 affords parents a cause of action for a wrongful killing of
their child by a state law enforcement officer and, if it does, the
further question as to the measure of damages in such case.
This Court has never addressed these issues. [
Footnote 2/1] Beginning
Page 432 U. S. 190
with
Brazier v. Cherry, 293 F.2d 401 (CA5),
cert.
denied, 368 U.S. 921 (1961), however, the Courts of Appeals
have permitted survivor suits under § 1983, at least where such
actions are maintainable under state law.
See, e.g., Spence v.
Staras, 507 F.2d 554 (CA7 1974);
Hall v. Wooten, 506
F.2d 564 (CA6 1974).
See also Hampton v. Chicago, 484 F.2d
602, 607 (CA7 1973) (Stevens, J.),
cert. denied, 415 U.S.
917 (1974). In
Brazier, the Fifth Circuit held that an
action by a widow against a police officer for the wrongful killing
of her husband was maintainable under § 1983. There, the Court of
Appeals found that in enacting 42 U.S.C. § 1988, "Congress adopted
as federal law the currently effective state law on the general
right of survival." 293 F.2d at 405. The same court has now ruled
that a § 1983 action survives the death of the victim, despite
state law to the contrary.
Shaw v. Garrison, 545 F.2d 980
(1977).
It is thus apparent that the availability of § 1983 in wrongful
death actions is a recurring issue, and that it is far from evident
that the Colorado Supreme Court was correct in ruling that a § 1983
death action is tied to state law. It is clear that, by enacting §
1983, Congress intended to create a federal right of action
separate and independent from any remedies afforded under state
law.
See Monroe v. Pape, supra. State law may be relevant
where a trial court is seeking to fix a remedy under § 1983,
cf. Moor v. County of Alameda, 411 U.
S. 693,
411 U. S.
702-703 (1973), but it is by no means clear that state
law may serve as a limitation on recovery where the remedy provided
under state law is inadequate to implement the purposes of § 1983.
Thus, "both federal and state rules on damages may be utilized,
whichever better serves the policies expressed in the federal
statutes.
Cf. Braier v.
Page 432 U. S. 191
Cherry, 293 F.2d 401. The rule of damages, whether
drawn from federal or state sources, is a federal rule responsive
to the need whenever a federal right is impaired."
Sullivan v.
Little Hunting Park, 396 U. S. 229,
396 U. S. 240
(1969). The Courts of Appeals have taken a similar approach by
allowing recovery of punitive damages in suits brought under § 1983
even if state law would not have permitted them.
See Caperci v.
Huntoon, 397 F.2d 799 (CA1),
cert. denied, 393 U.S.
940 (1968);
Basista v. Weir, 340 F.2d 74, 84-88 (CA3
1965).
See also Spence v. Staras, supra at 558;
Gill
v. Manuel, 488 F.2d 799, 801-802 (CA9 1973); Annot., 14 A.L.R.
Fed. 608 (1973).
Despite the importance of the question whether § 1983 is
available when a state officer wrongfully takes a life, the Court
dismisses the writ of certiorari as improvidently granted because,
in its view, the critical issues are not properly before us. I
disagree.
Petitioner included in her complaint filed in the trial court a
claim for relief under 42 U.S.C. § 1983. [
Footnote 2/2] That cause of action was dismissed on the
ground that it was merged in the state wrongful death action also
included in the complaint. The Colorado Supreme Court rejected
petitioner's claim that "her § 1983 claim should not have been
dismissed," 191 Colo. 1, 5,
550 P.2d 339,
342 (1976), and, in so doing, rejected each of the "four distinct
theories [advanced] to support her" § 1983 cause of action. 191
Colo. at 5, 550 P.2d at 342.
Page 432 U. S. 192
One of petitioner's arguments was that §§ 1983 and 1988 together
permit suits under § 1983 in reliance on state wrongful death
statutes but authorize recovery of damages free from the
limitations of state law. The Colorado Supreme Court agreed
that
"§ 1988 permits the incorporation of the states' non-abatement
statutes and wrongful death statutes into § 1983 actions in order
to effectually implement the policies of that legislation,"
191 Colo. at 6, 550 P.2d at 343-344 (footnotes omitted), and
that, in a federal suit "Colorado's wrongful death remedy would be
engrafted into a § 1983 action."
Id. at 7, 550 P.2d at
344. But it disagreed with petitioner on the question of remedy,
holding that any such § 1983 action was subject to the damages
limitations of state law -- here the Colorado rule limiting
recovery for wrongful death to direct pecuniary loss to the
survivors; and because suit was brought in state court, the § 1983
case merged with the state wrongful death action and was properly
dismissed. Chief Justice Pringle and Justice Groves dissented,
saying that they did not
"believe that Colorado's judicial limitation of net pecuniary
loss as a measure of damages for wrongful death applies to actions
founded upon 42 U.S.C. § 1983. . . ."
191 Colo. at 9, 550 P.2d at 345-346.
In the course of arriving at this conclusion, the Colorado
Supreme Court expressly rejected the other grounds offered by
petitioner to sustain her § 1983 claim. First, because the Colorado
statute permitted petitioner to bring her suit, she was not
deprived of any civil right "without due process of law." 191 Colo.
at 6, 550 P.2d at 343. Second, the Colorado court rejected as
contrary to congressional intent, the "theory . . . that a federal
wrongful death remedy impliedly exists in § 1983, independent of
state wrongful death remedies."
Id. at 8, 550 P.2d at 345.
[
Footnote 2/3]
Page 432 U. S. 193
Petitioner also claimed that she was entitled to a "separate
recovery under her 1983 claim" because "she was deprived of her own
constitutional rights" in that "her child's right to life, his
right to freedom from physical abuse and intimidation, and his
right to equal protection of the laws were violated."
Ibid. In rejecting this claim, the court held that
"[t]hese deprivations . . . are really those of her son," and that
a § 1983 action did not lie for injuries to another. Petitioner
could not "sue in her own right for the deprivations of her son's
rights," such as his right to life.
Ibid. The Colorado
court thus treated petitioner's claim as a survivor's suit based on
the deceased's cause of action, holding that § 1983 does not
provide for such an action independently of state law.
Finally, the Colorado Supreme Court expressly rejected any
notion that the State
"directly attempt[ed] to restrict [petitioner's] own personal
decisions relating to procreation, contraception, and childrearing
which are involved in
Griswold v. Connecticut,
381 U. S.
479 . . . (1965), and
Meyer v. Nebraska,
262 U. S.
390 . . . (1923)."
191 Colo. at 9, 550 P.2d at 345. While conceding that "the death
of a family member represents a loss" to petitioner, the court held
that the State had not interfered with her right to childrearing,
and "1983 was not designed to compensate for these collateral
losses resulting from injuries to others."
Ibid.
Accordingly, the rights of parents were sufficiently vindicated by
the state statutory recovery of direct pecuniary losses resulting
from the death of their children.
It is obvious from the proceedings in the Colorado courts that
the dismissal of petitioner's § 1983 claim and the associated
Page 432 U. S. 194
damages limitation ruling were unsuccessfully challenged in the
Colorado Supreme Court on the grounds just mentioned. It also seems
to me that these grounds were preserved by the petition for
certiorari, which we granted and which presented the following
questions:
"Where the black mother of a 15-year-old child who was
intentionally shot and killed by a white policeman acting under the
color of state law brings a suit in state court pursuant to 42
U.S.C. § 1983, what is the measure of damages? Particularly, can
the state measure of damages cancel and displace an action brought
pursuant to 42 U.S.C. § 1983?"
The questions "what is the measure of damages" in a § 1983 suit
and "can a state measure of damages cancel and displace an action
brought pursuant to § 1983" fairly pose the correctness of the
Colorado Supreme Court rulings that (1) no § 1983 action exists
independently of state law; (2) a survivor may not sue under § 1983
for injuries suffered by the deceased; and (3) the damages
recoverable under § 1983 are limited by Colorado law to direct
pecuniary loss, and do not reach "collateral" injuries. These
issues were addressed directly by the Colorado Supreme Court, and I
doubt that that court misunderstood the scope of the litigation
before it or reached and decided issues not fairly presented by the
appeal.
Nor do I think that the oral argument, even when read in the
majority's common law pleading style, ineluctably supports any
conclusion that petitioner has abandoned any of these claims. At
oral argument, petitioner's claim as a parent was articulated
several times: "a right to not have her child taken"; she was
deprived of the "liberty to raise children"; she had the right
"[t]o raise her child"; and the "constitutional violation was the
infringement of her rights as a parent." Tr. of Oral Arg. 8-10. In
light of these statements and similar ones throughout the oral
argument, it cannot
Page 432 U. S. 195
be said that petitioner has abandoned her claim, expressly
rejected by the Colorado Supreme Court, that § 1983 affords a
remedy to petitioner in her capacity as a parent wholly independent
of state law.
Similarly, petitioner's counsel made his view clear that, even
if the § 1983 action for the death of petitioner's child was
dependent on state law, it was error to restrict petitioner's
recovery to her direct pecuniary losses pursuant to the Colorado
rule. Recovery should include, it was urged, damages for loss of a
parent's own "civil rights," as well as punitive damages for the
wrongful killing. Tr. of Oral Arg. 45.
Finally, it appears to me that petitioner has preserved her
claim that § 1983 affords a survivor's action for the invasion of
her child's right to life. Although petitioner's counsel seems to
have characterized his claims in the state courts as being related
solely to the mother's rights as a parent, the Colorado Supreme
Court understood them to consist in part of claims on behalf of the
son and, as I have indicated, expressly held these claims not
cognizable under § 1983. 191 Colo. at 8, 550 P.2d at 345. At oral
argument, counsel for petitioner conceded that he had not pressed
his client's survivorship claim, apparently because he felt
constrained by certain lower court opinions, since reversed or
overruled, to articulate petitioner's claims in the Colorado courts
in terms of the mother's rights alone. But he made it clear that,
"in hindsight," he would assert the survivorship claim, citing
Shaw v. Garrison, 545 F.2d 980 (CA5 1977), for the
proposition that independently of state law a § 1983 action
survives the death of the victim. Tr. of Oral Arg. 17-18, 20, 22.
Because the Colorado Supreme Court understood petitioner's
submission as including a survivorship claim based on injury to the
son, and because the issue is fairly presented by petitioner's
petition for certiorari, it is hypertechnical to hold that the
survivorship issue is not here. Of course, the Court is not bound
by concessions of counsel in oral argument as to whether a legal
issue is open
Page 432 U. S. 196
In any event, in light of the record, I am at a loss to
understand the basis for dismissing the writ of certiorari with
respect to the other questions expressly raised or fairly subsumed
in the questions presented in the petition. These issues are
important, and we should decide them. I respectfully dissent from
the judgment of dismissal.
[
Footnote 2/1]
At least one case in this Court has involved such an action. In
Scheuer v. Rhodes, 416 U. S. 232
(1974), personal representatives of students killed in the 1970
slayings at Kent State University brought a § 1983 action alleging
the wrongful killing of the victims. The Court held that state
officials were not absolutely immune from such suits. Although the
question whether the personal representatives' action could be
maintained under § 1983 was not before the Court, it did not
disapprove of such actions in remanding the case to the lower
courts.
[
Footnote 2/2]
Petitioner's first two claims for relief were grounded on state
law. The third claim for relief stated:
"During all times mentioned in this Complaint, Douglas
Hildebrant while acting under color of law, intentionally deprived
the Plaintiff of her rights, security and liberty secured to her by
the Constitution of the United States, including but not limited
to:"
"a. Her child's right to life;"
"b. The right to her child's freedom from physical abuse,
coercion, intimidation, and physical death; and"
"c. Her right to her children's equal protection of the
laws."
App. 3.
[
Footnote 2/3]
The Colorado Supreme Court was emphatic:
"Though the United States Supreme Court has ruled that federal
wrongful death remedies impliedly exist in some areas of the law,
we do not believe that such a remedy exists with § 1983 claims.
This belief is based on the perceived Congressional intent not to
preempt the states' carefully wrought wrongful death remedies, the
adequacy in a death case of the state remedies to vindicate a civil
rights violation, and the overwhelming acceptance of such state
remedies in the federal courts."
191 Colo., at 8, 550 P.2d at 345 (footnotes omitted).