*1 JONES v. HILDEBRANT et al. Argued April 26,
No. 76-5416. 1977 Decided June David K. Rees argued petitioner. the cause for him With on the briefs was Walter Gerash. L.
Wesley H. Doan argued the cause for respondents. With him on the brief was Robert Goodwin.* E.
Per Curiam. 15-year-old
Petitioner is the mother who boy was shot by respondent respondent and killed while Hildebrant, capacity acting police his as a Denver officer. Petitioner in her brought Respondent own behalf state court. defended on the son ground that he shot as a flee- ing felon no using reasonably more than was necessary. force complaint amended asserted three relief: bat- claims tery; negligence; and intentional of federal con- Murphy, Kohn,
*Robert Chachkin, A. Richard S. Norman J. William E. Caldwell, S. Martinez, Bailer, Vilma J. Morris and Nathaniel R. Jones Lawyers’ filed Rights a brief Committee for Under Civil Law et urging as amici curiae al. reversal. first pleaded, specifically Although not rights.
stitutional wrongful- admittedly based on the claims were two *2 (1973),1 13-21-202 Rev. Ann. Stat. Colo. statute, death alleged While on 42 U. S. C. the third, her a reduction stipulated to $1,500,000, damages of claims, first two since to the respect for relief with prayer her maxi- admittedly limited statute 13-21-203 Rev. Stat. Ann. recovery $45,000, Colo. mum 1983 petitioner’s § also ruled that The trial court (1973). accordingly, her first claim “merged” and, into claim was claims went remaining claim. The dismissed for $1,500.2 returned a jury, which verdict of Colorado Supreme Court petitioner’s appeal, On (1976). P. 2d 339 Her affirmed. Colo. 1, for review here: single question a for certiorari who 15-year-old child black mother of a “Where the intentionally policeman killed a white shot and brings the color of state law a acting under 13-21-202: Section act, by wrongful neglect, person is caused death of a a “When the would, if act, neglect, as another, and the or default default of such injured an to maintain ensued, party entitled the had have death not every then, damages respect thereof, and in action and recover liable, if corporation been case, person who which would have or the ensued, notwith- had shall be liable an action death injured.” standing party the death jury in a action The had been instructed 110, loss, Russell, Herbertson v. 160 Colo. were limited to net see by petitioner 2d 422 This loss is the financial loss sustained 371 P. any son, the value of death of her and would include as result might earnings might have made he have rendered and he services that minor, support might provided after as well as he have while adult, becoming expenses petitioner an would have incurred less apparently included, case, expenses. raising him. The award in this funeral award, upheld Court of Colorado and the instructions issues, course, n. at 341 at 3 n. 1. These except they might petitioner’s not before us claim. bear on pursuant to U. what is §C. the measure of damages? Particularly, can measure damages cancel and displace an brought pursu- action ant to 42 § 1983?” U. S. C. granted
We to consider what was explicitly thus presented as a question of whether State’s damages in a wrongful-death statute would control an action brought pursuant §to 1983. 429 1061 (1977). U. S.
The majority opinion in Court of Colorado proceeds assumption on the the Colorado wrongful- applied statute recovery claim, be limited to $45,000. It held that this limitation apply did even the one count petitioner’s complaint based on *3 S. C. 1983. U.
A necessary assumption for position would seem to be suing injuries recover for under by § 1983 which injuries were the same as are covered the state wrongful-death question presented action. The the for very susceptible is at the least interpretation. But at oral we argument, were advised by counsel for that her sole claim of constitutional deprivation was one of from pecuniary resulting not loss son’s the wrongful death, by her such as would be covered wrongful-death personal on her statute, but one based liberty. Her argument claim was described con- at oral as a stitutional to raise her child without from interference State; nothing “wrongful the it has to do with action for an 4-5; death” as defined the state law. Tr. of Oral Arg. id., see also at 8-13.
An action for Colorado is an death, law, brought by action which certain named survivors pecuniary upon decedent loss who sustain direct property It is “classified as tort action decedent. 'for done to cannot be classified as a tort action ” Liley, 156, 163, 208 P. 2d person,’ Fish v. Colo. dif quite articulates here a Petitioner, however, (1949).3 does not fit into ferent constitutional claim which claim constitutional petitioner’s mold. While own not on deprivation rights, her alleged is on an based is deprivation son’s,4 the asserted of those of of a rather, for the “property but, loss,” not fit.5 child’s mother to raise the child as sees not complaint,6 was not forth This claim set briefs even hinted at opinion to in only casually is referred Colorado, and as a majority held that insofar opinion that court. right conferred property loss was a claim actual statute, upon petitioner the State’s by the under it were limited terms damages recoverable 2, supra. n. See argument not explicitly acknowledged at that she had Petitioner oral essence, rights; an action brought a claim for vindication of son’s clear, as Arg. 17-18, This is on his behalf. See of Oral 20. Tr. drafted, complaint as as the well, from manner in which the well parties’ perception the closest available state is the Colorado statute statute, survivorship wrongful-death statute, rather than the Colorado Arg. (1973). 17-18, Tr. of Colo. Rev. Stat. Ann. 13-20-101 Oral See (1935); Harper 2 F. & generally McCormick, Damages 336 See C. Law of James, F. indi The Law of Torts Petitioner sued §§24.1-24.3 vidually as mother of the the administratrix decedent the decedent’s estate. *4 Meyer Nebraska, apparently Petitioner relies v. S. 390 on U. progeny depriva (1923), and for her its as the basis asserted constitutional argument, petitioner’s appears As articulated contention to tion. oral at parent be: has held on that a consti several occasions “[T]his right child, tutional to raise their that be from and that child cannot taken process Arg. them without the due of Oral 4-5. law.” Tr. of alleged complaint Her that of life; right Her “a. child’s to coercion, right physical abuse, The to child’s
“b. freedom from intimidation, death; physical and and right equal protection App. Her
"c. to her children’s of the laws.” allege Nowhere does she her asserted constitutional to raise her child. majority that statute. The opinion passing also refers to a liberty right constitutional but its herself, prin- is cipal petitioner's presented thrust that liberty claims, as to “really of not court, son,” those and claims personal subsequent to to her.7 This which occurs discussion, Court of portion opinion of in which the were Colorado concluded that remedies civil violations incorporated into 1983 to vindicate § limita- that similar death,” “that result does not intimate alleged depriva- would exist in a 1983 action where tions suing wrong for a liberty living plaintiff tion was that of to a Supreme Court Colo- not know how the done to her. We do question ruled rado would have on the deprivation found 1983 claim to be that had it to the child. the mother’s raise the ease such posture here then a shift We have for is all in the question that the argument. oral but mooted by a recovery damages imposed a limitation whether is where death applied statute U. S. from a violation C. said have resulted only where appear to make sense same, assump- is the injuries.8 This upon claim is based quoted complaint, referring in the the assertions The court argument in the raised, rejected, follow 6, swpra. It another n. then ing passage: attempt her own “Furthermore, to restrict directly state did not child-rearing contraception, relating procreation,
personal decisions Connecticut, U. . . . S. 479 involved in Griswold v. which are Although the death Meyer Nebraska, 262 . . . U. S. 390 v. nonetheless, her, we, are of family represents a loss member compensate these collateral designed opinion that 1983 was at resulting losses from to others.” at 345. rejects are based on the same the claims the view Petitioner injuries: key is that ... “The *5 tion which Supreme proceeded Court of Colorado on discussing wrongful- whether the 1983 “merged” claim a decide, claim. court does not intimate, alleged deprivation petitioner claim based on an such as cognizable asserts here —if the claim were otherwise —would require wrongful-death from the remedial assistance limited statute or that recovery on such a claim would that statute. underly- question presented
Petitioner’s assumes ing necessary support §a constitutional violation only question her claim on behalf is and that undisputed, upon petitioner majority of the which takes issue with the Supreme is on the amount Court Colorado the limitation recovery. probable, that But it seem if not possible, presented had to the Court of court’s claim argument, same here in oral opinion application would not have turned on the recovery statute as a limitation underlying damages, since the claim — underlying a at all the same raise children —is not recom- provides claim for which the action liberty claim pense. constitutional Whatever the merits not intimate we do an right, question her own on which subject damages to a opinion, would not seem to be logically it survivors to permitting limitation contained in the statute In of theirs. interest wrongs property recover for done to solely presenting petition Court in her this wholly preter- nature, petitioner issue has been de- underlying mitted the of whether she question result of liberty as a prived of constitutional interest son. respondent’s shooting presents which sum, only tip iceberg. in her for certiorari Plaintiff-Appellant Brief Reply death.” civil for—not of Colorado
189 question The of whether she of a constitutional liberty alleged interest of own was in neither her com- plaint in in the Colorado trial court, fairly certiorari nor question subsumed Court, presented. See this Rule 23 (l)(c). Court’s writ dismissed as improvidently is therefore granted. Stengel, Belcher 429 118 (1976). v. S.U.
It is so ordered. Me. Justice White, with whom Mr. Justice Brennan and Mr. Justice Marshall dissenting. join,
Physical
by police
may
abuses
under color
state law
some
circumstances
a constitutional
constitute
giving
liability
rise
under the civil
even
criminal
laws,
if the abuses
victim,
result
Screws United
v.
States,
(1945);
Petitioner complaint included in her the trial filed claim relief S. C. 1983.2 That U. cause *8 action was dismissed on ground that it was merged state complaint. action also included Supreme rejected The Colorado Court claim that § “her 1983 claim should not have been dismissed,” 191 Colo. 550 P. 2d 1, 5, 342 and 339, rejected in so doing of each distinct “four theories support her” [advanced] § 1983 of cause 191 action. at 342. Colo., 5, 550 2d, at P.
2 grounded Petitioner's first two claims for relief were on state law. The third claim for relief stated : “During all Douglas times mentioned in Complaint, Hildebrant acting law, intentionally while under color deprived the Plaintiff of her
rights, security liberty and secured to her the Constitution of the States, including United but not limited to: life;
“a. Her right child’s right “b. The to her physical abuse, coercion, child's freedom from in- timidation, physical death; and Her equal protection App.
“c. to her children’s of the laws.” 3. 1983 and §§ was that arguments petitioner's One wrong- 1983 in reliance § permit suits together free recovery damages but authorize ful-death statutes Colorado law. The of state from the limitations incorporation of permits the “§ agreed Court statutes death wrongful statutes states’ non-abatement effectually implement in order to actions § into P. 343- 2d, 6, at at legislation,” Colo., policies of that “Colora- federal suit and that (footnotes omitted), a 1983 into engrafted § death wrongful do's with disagreed But it Id., at 344. 7, at 550 P. 2d, action.” any remedy, holding on the of state limitations subject 1983 action was wrongful limiting recovery rule the Colorado law—-here because survivors; and pecuniary to direct loss to the death merged with court, 1983 case brought in state dismissed. properly action and was the state Pringle saying Justice Groves Justice dissented, Chief of net judicial they did not “believe that Colorado’s death wrongful loss as a measure .” . . . 42 U. C. applies upon to actions founded at at 550 P. 345-346. Colo., 9, 2d, Colorado of arriving conclusion, In the course at this rejected grounds the other offered expressly First, to sustain her 1983 claim. because the permitted petitioner bring statute suit, process civil “without due the Colo- Second, law.” at at contrary rejected congressional rado intent, . “theory wrongful remedy impliedly . . that a federal independent death rem- exists *9 Id., 2d, P. 345.3 edies.” at at emphatic: “Though the Supreme 3 The Colorado Court was United reme States Court has ruled that federal impliedly law, exist in areas we do believe that such dies some “separate
Petitioner also claimed
she was
to
entitled
that
recovery under her
§ 1983 claim”
“she was
because
of her own constitutional
child’s
to
rights”
right
that “her
life,
to
right
physical
his
freedom from
abuse
intimida-
and
tion,
equal protection
and his
were
right
of the laws
violated.”
Ibid.
held that
rejecting
claim,
deprivations
.
really
.
. are
those of her son” and
“[t]hese
that a 1983 action
did not
for
to another. Peti-
lie
tioner could not “sue in her
for
right
deprivations
own
son’s rights,”
such
to life.
Colo-
as his
Ibid. The
rado court thus treated
claim as a survivor’s
based on the
that
action, holding
deceased’s cause
provide
does not
independently
such an action
state law.
Finally,
expressly rejected
notion
“directly attempted]
[peti-
State
restrict
personal
own
relating to procreation,
decisions
tioner’s]
contraception,
child-rearing which
involved
Connecticut,
Griswold v.
Meyer Nebraska, (1923).” v. Colo., 262 U. . . . S. 390 at 9, 550 P. at death of 2d, conceding 345. While “the represents member family petitioner, a loss” to the court held that the State had not child with her interfered rearing, designed compensate “§ was not these collateral losses from resulting injuries to Ibid. others.” Accordingly, parents sufficiently were vindicated by the statutory recovery of direct losses re- sulting from the death of their children.
It is obvious from the proceedings in the Colorado courts the dismissal of petitioner’s § 1983 claim and associ- with exists perceived 1983 claims. This belief is based on the Congressional pre-empt carefully wrought intent wrong- not to the states’ remedies, ful death adequacy in a death case of state remedies rights violation, vindicate a civil overwhelming acceptance and the state remedies in the federal courts.” at at (footnotes omitted). *10 challenged unsuccessfully ruling were damages ated just men- grounds Court on the Supreme Colorado in the were grounds me that these also seems tioned. It and certiorari, granted which we preserved by the following questions: presented the which child who 15-year-old of a black mother “Where the policeman killed by and a white intentionally shot suit in state brings a the color of law acting under state measure the § to 42 U. C. what is pursuant measure can damages? Particularly, brought pursuant displace and an action cancel damages 1983?” to U. S. C. questions damages” “what is the measure displace cancel and “can a state measure fairly pose the correct- brought pursuant §to 1983”
an action no 1983 rulings (1) ness of the Colorado (2) survivor law; independently action exists deceased; suffered not under sue limited recoverable (3) “col- do not loss and reach Colorado law direct by the injuries. directly These were addressed lateral” issues I misun- that that court Court, doubt scope of reached and litigation before derstood it fairly presented by appeal. issues decided I oral do even when read Nor think argument, sup- pleading style, ineluctably common-law majority’s any of ports conclusion has abandoned At argument, petitioner’s parent oral claim as a these claims. times: “a to not have her was articulated several “liberty chil- taken”; child she raise child”; had the and the dren”; raise “[t]o infringement violation was “constitutional Arg. light Tr. Oral 8-10. parent.” these state- throughout argument it ments and similar ones cannot oral be said that her claim, abandoned expressly- *11 rejected by the Colorado Court, that 1983 affords a petitioner to capacity wholly her parent as a independent of state law.
Similarly, petitioner’s counsel made his view clear even that 1983 action for the death of petitioner’s child was dependent on state law, petitioner’s it was error to restrict recovery to her direct pecuniary pursuant losses Colo- rado Recovery include, rule. should it was urged, damages for loss parent’s of a own rights” “civil punitive as well as for wrongful killing. Tr. Arg. of Oral 45. it appears
Finally, preserved me claim 1983 affords a action survivor’s for the invasion of right to Although petitioner’s child’s life. seems counsel to have his characterized claims in the state courts being as solely related to the mother’s as a the Colorado parent, Supreme Court understood them part to consist claims on behalf of son I and, expressly held have indicated, these claims not cognizable under § 1983. at 8, at 345. At oral for argument, counsel conceded that he pressed had not survivorship his client’s claim, because he felt constrained apparently by certain lower court opinions, since or peti- reversed articulate overruled, tioner’s claims in the Colorado courts terms of the mother’s (cid:127) rights alone. But he made it clear that “in hindsight” he
would assert the survivorship Garrison, claim, citing Shaw v. 545 F. (CA5 2d 980 independ- 1977), proposition ently of state law a action survives the death of the victim. Tr. of Oral Arg. 17-18, Because the Colorado Court understood submission as including a survivorship claim injury based on to the son and because the issue petitioner’s petition for cer- fairly tiorari, hypertechnical it is to hold that survivorship issue is not here. Of the Court is not bound course, concessions argument counsel oral open as whether a legal issue is Corvallis Land Board v. Oregon ex rel. State in this Court. Cf. 429 U. Co., n. 3 & Gravel Sand I loss to under- am at a any event, light record, with writ of certiorari dismissing basis stand fairly sub- expressly raised respect questions other petition. These presented in the questions in the sumed I respect- them. should decide important we issues fully judgment from the of dismissal. dissent