# Petition — Sanchez v. McFadden > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0424%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 961 ## Text IN THE F L ED SUPREME COURT OF THE UNITED STAT PS SEP 12 1983 October Term, 1983 ALEXANDER L STEVAS, CLERK No. DETECTIVE JUAN SANCHEZ, SERGEANT ROBERT PEZZANO, and POLICK OFFICERS MICHAEL CIRAVOLO and PATRICIA HEAR, Petitioners, V.—- IVY McFADDEN, as Administratrix of the Estate of GREGORY ISIAH McFADDEN a/k/a GREGORY McFADDEN and ABDUL HADI, Deceased, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT FREDERICK A. O. SCHWARZ, JR. Corporation Counsel of the City of New York, Attorney for Petitioners, 100 Church Street, New York, New York 10007. (212) 566-4338 or 4375 LEONARD KOERNER, EDWARD F. X. HART, of CounseL QUESTION PRESENTED Whether the New York State survival statute, which prohibits the award of punitive damages, must be applied strictly and in accordance with its terms pursuant to 42 U.S.C. §1988 and this Court's decision in Robertson v. Wegmann, 436 U.S. 584 (1978), in an action commenced pursuant to 42 U.S.C. $1983 against police officers of the City of New York? TABLE OF CONTENTS QUESTION PRESENTED....ccssscssseseseeeee TABLE OF AUTHORITIES,....cssssssessseeees OUI, BUR accccensccecacebacessncicnces SN a I ed er ARGUMENT - THE NEW YORK STATE SURVIVAL STATUTE, ESTATES, POWERS AND TRUSTS LAW, §11-3.2, APPLICABLE AT THE TIME THIS ACTION ACCRUED PUNITIVE DAMAGES, SINCE 42 U.S.C. $1988 REQUIRES THAT STATE LAW BE ADOPTED WHERE FEDERAL LAW IS DEFICIENT, THE NEW YORK SURVIVAL STATUTE SHOULD HAVE BEEN ADOPTED AND THE PUNITIVE DAMAGES CLAIM DISMISSED. THE SECOND CIRCUITS HOLDING THAT THE NEW YORK SURVIVAL STATUTE WAS INCONSISTENT WITH FEDERAL LAW INSOFAR AS IT BARRED PUNITIVE DAMAGES IS CONTRARY TO THIS COURT'S DECISION IN ROBERTSON V. WEGMANN, 436 U.S. Bee ccicinesteslareetabidenstbiencees eoccccees CONCLUSION......00000 seeeeeee seeeeeeere seeeeee ii ll TABLE OF AUTHORITIES Cases: Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)... Brazier v. Cherry, 293 F. 2d 401 5th Cir. 196 | Eee ane seeeeeeeersee Carey v. Piphus, 433 US.S, 247 (1978)... Carlson v. Green, 446 U.S. 14 (1980)...... Pritchard v. Smith 2 9 7 2d 15 8th Cir. |} | Robertson v. Reet 436 . . 584 l 8 SSCS eeeeeSEeSEF ESSE Ee SEE EEe Tomanio v. Board of Regent 446 U.S. 478 1980 Seeeeeeeeeeeeeeeeeeeeeeeeeeeee Statutes: 42 U.S.C. § De peccecnisansescdestedsennsestabannds 42 U.S.C. § BOD Gcctsrercccedapesncsteoceusesscunsia iii Page TABLE OF AUTHORITIES New York Estates, Powers and Trusts Law, $11-3.2....ccccccccscscscscccescsese iv IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 No. DETECTIVE JUAN SANCHEZ, SERGEANT ROBERT PEZZANO, and POLICE OFFICERS MICHAEL CIRAVOLO and PATRICIA HEAR, Petitioners, ~v.- IVY McFADDEN, as Administratrix of the Estate of GREGORY ISIAH McFADDEN a/k/a GREGORY McFADDEN and ABDUL HADI, Deceased, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Petitioners, four police officers of the Police Department of the City of New York, seek a writ of certiorari to review a judgment of the United States Court of Appeals for the Second Circuit, reversing a judgment of the District Court for the Southern District of New York for $200,000 in punitive damages and remanding for further proceedings. The Secong Circuit, by refusing to dismiss the punitive damage claim on the ground that the New York State survival statute (Estates, Powers and 1 Trusts Law ["EPTL"], §11-3.2) did not allow an award for punitive damages, disregarded both the clear direction of 42 U.S.C. §1988 to apply the state law where federal law is deficient and the decision of this Court in Robertson v. Wegmann, 436 U.S. 584 (1978). Additionally, the Second Circuit erred by refusing to dismiss the complaint insofar as it sought punitive damages since the amendment of the pre-trial order near the conclusion of the trial to include such damages was severely prejudicial to defendants, requiring dismissal pursuant to the Federal Rules of Civil Procedure, Rule 16. Rather, the Second Circuit refused to reach the issue on the ground that, since the jury instructions on punitive damages were erroneous, it would remand for a new trial on the issue. OPINION BELOW The opinion of the Court of Appeals (as yet unreported) is annexed as Appendix A. On the issue of the applicability of the New York survival statute to a $1983 action, the Second Circuit stated in "In v. W 436 Cs * me Court, applying 42 U.S.C. 31988, permitted a state survival statute to limit the class of relatives entitled to bring an action under section 1983 on behalf of a decedent. However, the Court carefully noted that it was not deciding whether state survival Statutes could totally preclude section 1983 claims on behalf of a decedent and pointedly distinguished a section 1983 claim for a deprivation of federally protected rights that caused the decedent's death. Id. at 594. Subsequently the Court declined to apply a state statute that would have barred survival of a Bivens claim for a death allegedly caused by federal officials. Carlson v. Green, supra, 446 U.S. at 23-25, again noting that Robertson v. Wegmann had not involved a denial of rights resulting in death, id. at 24. Prior to Robertson and Green we had a given effect to New York law to bar a claim for punitive damages in a section 1983 suit brought on behalf of a decedent in circumstances where the alleged denial of constitutional rights was unrelated to the death. Duchesne v. Sugarman, 566 F. 2d 817, 821 n. 2 (2d Cir. 1977). Whether or not our ruling in Duchesne has been impaired by Robertson and Green, we have no doubt that limitations in a state survival statute have no application to a section 1983 suit brought to redress a denial of rights that caused the decedent's death, See Heath v. City of Hialeah, 560 F. Supp. 840 (S.D. Fla. 1983); O'Connor v. Several Unknown Correctional Officers 523 F. Supp. 1345 (E.D. Va. 1981). To whatever extent section 1988 makes state law applicable to section 1983 actions, it does not require deference to a _ survival statute that would bar or limit the remedies available under section 1983 for unconstitutional conduct that causes death. State law that would preclude a claim for punitive damages in a case like the present one is manifestly ‘inconsistent' with federal law within the meaning of section 1988." JURISDICTION The judgment of the Court of Appeals was entered on June 14, 1983. This Court's jurisdiction is invoked pursuant to 28 U.S.C. §1254(1) and $1331. STATEMENT OF THE CASE Plaintiff is the administratrix of the estate of her son, Gregory McFadden, who died on February 18, 1980, as a result of a gunshot wound received that day while struggling with two New York City police officers for possession of the gun of one of the officers which McFadden had seized during an attempt to arrest him. She commenced this action against the City of New York and four New York City police officers pursuant to 42 U.S.C. §1983 for deprivation of McFadden's civil rights by reason of the officers’ use of excessive force in attempting to arrest him. The City of New York was dismissed as a defendant by consent of plaintiff during trial. On April 27, 1982, a pre-trial order was entered which Stated that compensatory damages were being sought in the action. Punitive damages, initially claimed in the complaint, were not sought pursuant to this pre-trial order. The trial was commenced on May 24, 1982. At the close of testimony on the second day of this three day trial, after two of defendants had testified and in the midst of a third defendant's testimony, plaintiff requested that a claim for punitive damages be submitted to the jury, although his claim had been abandoned in the pre-trial order. The trial court, while stating that punitive damages had been dropped from the case, agreed to charge the jury on the issue. Defendants timely objected to the submission of the issue of punitive damages to the jury. Defendants, in their post-trial motion for judgment notwithstanding the verdict and, in the alternative, for a new trial, argued that a new trial should be granted because of the substantial prejudice which they suffered as a result of the modification of the pre-trial order. The Court denied the motion, perceiving no prejudice to defendants in connection with the defense of the case. * *While we do not raise this issue as a ground for granting a writ of certiorari, we note that the Second Circuit erroneously refused to decide defendant's appeal on this issue. The Second Circuit recognized that "it would normally not be appropriate to remedy a_é truly _ prejudicial amendment by affording a plaintiff a retrial on an omitted claim." Although admitting that "it would be a close question whether the late amendment of the pre-trial order created undue prejudice," the Second Circuit attempted to avoid deciding defendants' appeal of this issue on the ground that, since there was error in the jury charge on punitive damages, it would order a new trial on that issue without deciding whether punitive damages should have been presented to the jury in the first place. We submit that this decision denied defendants their day in court and was, therefore, clearly erroneous. If the amendment of the pre-trial order was prejudicial to defendants, the claim must be dismissed. The fact that the District Court erroneously instructed the jury on a claim that should not have been presented to it does not alter this fact. It is ironic that the defendants should have fared better had a correct instruction been given the jury, thereby requiring the Second Circuit to decide their appeal, than they in fact did because the jury received erroneous instructions favorable to the plaintiffs. ARGUMENT THE NEW YORK STATE SURVIVAL STATUTE, ESTATES, POWERS AND TRUSTS LAW, §11-3.2, APPLICABLE AT THE TIME THIS ACTION ACCRUED AND AT THE TIME OF TRIAL, PROHIBITED THE AWARD OF _ PUNITIVE DAMAGES, SINCE 42 U.S.C. $1988 REQUIRES THAT STATE LAW BE ADOPTED WHERE FEDERAL LAW IS DEFICIENT, THE NEW YORK SURVIVAL STATUTE SHOULD HAVE BEEN ADOPTED AND THE PUNITIVE DAMAGES CLAIM DISMISSED. THE SECOND CIRCUITS HOLDING THAT THE NEW YORK SURVIVAL STATUTE WAS INCONSISTENT WITH FEDERAL LAW INSOFAR AS IT BARRED PUNITIVE DAMAGES IS CONTRARY TO THIS COURT'S DECISION IN ROBERTSON V. WEGMANN, 436 U.S. 584 (1978). The New York State ESTATES, POWERS and TRUSTS LAW, McKinney's EPTL, section 11-3.2(b), provides for the survival of a cause of action after the death of the party in whose favor it existed. The statute is in derogation of the common law which requires that a cause of action abate upon the death of the injured party. Since federal law does not provide for survival or wrongful death actions and since 42 U.S.C. $1988 directs federal courts to adopt state law in civil rights actions where federal law is deficient, survival actions could not be maintained pursuant to 42 U.S.C. $1983 absent state survival statutes. See, Moor v. County of Alameda, 411 U.S. 693, 702-703 n. 14 (1973); Brazier v. Cherry, 293 F. 2d 401 (5th Cir. 1961); Pritchard v. Smith, 289 F. 2d 153 (8th Cir. 1961). Since the instant action could not be maintained except pursuant to EPTL, section 11-3.2, and since that section prohibits claims for punitive damages, it was fundamental error to allow the jury to consider the punitive damage claim. In concluding that the New York survival statute's prohibition against punitive damage awards is inconsistent with federal law, the Second Circuit cited this Court's decisions in Robertson v. Wegmann, 425 U.S. 584 (1978) and Carlson v. Green, 446 U.S. 14 (1980). We submit that the Second Circuit's decision is, in fact, in conflict with both cases. In Robertson v. Wegmann, this Court held that the District Court was required to adopt as federal law a state survival statute, although the adoption resulted in the total abatement of a §1983 action since the state survival statute was not inconsistent with the Constitution and laws of the United States. As this Court stated therein (436 U.S. at 563): "That a federal remedy should be available, however, does not mean that a §1983 plaintiff (or his representative) must be allowed to continue an action in disregard of the state law to which $1988 refers us. A state statute cannot be considered ‘inconsistent’ with federal law merel, because the statute causes the plaintiff to lose the litigation." The result in Robertson, a total abatement, was more severely prejudicial to the plaintiff's interests than the result sought herein, a prohibition solely against punitive damages. Moreover, while punitive damages may normally be awarded in a section 1983 action, the basic purpose of a section 1983 damage award is to compensate an injured plaintiff and, by reason of the defendant's liability for such compensatory damages, to deter the defendants from such action in the future. Carey v. Piphus, 433 U.S. 247, 254-255 (1978). In view of the fact that adoption of the New York survival statute by the District Court in this section 1983 action does not interfere with the basic purpose to be achieved by the civil rights suit since the action survives and full compensatory damages are permitted pursuant to the statute, it cannot be considered inconsistent with the Constitution, federal law, or Congressional intent. Carlson v. Green, supra, 446 U.S. 14, is not to the contrary. First, the Indiana survival statute adopted by the District Court iii Carlson provides that a personal injury claim does not survive where the acts complained of caused the victim's death. In addition, the Indiana wrongful death statute severely limits compensatory recovery. However, the New York survival statute provides for full compensation with no limitations. Only punitive damages are prohibited. Second, unlike the instant case which was commenced pursuant to 42 U.S.C. $1983 against City police officers acting under color of state law, Carlson involves an action in the nature of Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), a cause of action against federal officials arising directly under the Constitution. In statutory civil rights actions such as the instant section $1983 suit, Congress has specifically directed adoption of state statutes where federal law is deficient pursuant to 42 U.S.C. §1988. However, "Bivens actions are a creation of federal law and, therefore, the question whether respondent's action survives [decedent's] death is a question of federal law." Carlson v. Green, supra, 446 U.S. 23. Since Carlson concerned in "Bivens" cases federal action by federal officials, this Court stated that the courts are free to fashion a federal rule of survivorship which it deems appropriate, "[wlhatever difficulty we might have resolving the question were the federal involvement less clear..." 446 U.S. 23. In the instant case, there is absolutely no federal involvement. Third, the Court in Carlson adopted a uniform federal rule of survivorship in Bivens-type actions because of a need to treat federal officials in a uniform manner regardless of where the alleged violation of constitutional rights occurred. 446 U.S. at 23-24. In actions brought pursuant to section 10 1983, this Court has indicated a contrary philosophy. This Court has specifically held that uniformity of treatment for liability for deprivation of civil rights in the various states should not be a consideration in section 1983 actions. Tomanio v. Board of Regents, 446 U.S. 478, 486 (1980). See also, Johnson v. Railway Express Agency, 421 U.S, 454, 464 (1975). Since there exists no inconsistency between the New York survival statutes prohibition of punitive damage awards and the Constitution or federal laws, the statute should have been adopted in the instant case, pursuant to 42 U.S.C. $1988. CONCLUSION FOR THESE REASONS, A WRIT OF CERTIORARI SHOULD BE GRANTED, September 12, 1983 Respectfully submitted, FREDERICK A, O. SCHWARZ, JR. Corporation Counsel of the City of New York, Attorney for Petitioners. LEONARD KOERNER, EDWARD F., X. HART, of CounseL ll APPENDIX UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT we Nos. 993, 1150—August Term, 1982 (Argued March 14, 1983 Decided June 14, 1983) Docket Nos. 82-7714, 82-7744 > Ivy MCFADDEN, as Administratrix of the Estate of Grea- ORY ISIAH MCFADDEN a/k/a GREGORY MCFADDEN and ABDUL Hani, Deceased, Plaintiff-A ppellee-Cross-Appeillant, _Vo— DETECTIVE JUAN SANCHEZ, ETAL., Defendants-A ppellants-Cross-A ppellees, —and— THE City OF NEW YorK, Defendant. Before: MANSFIELD, MESKILL, and NEWMAN, Circuit Judges. —————— ee ee . ——— eee . ew ere ee + me eee e Appeal from a judgment of the District Court for the Southern District of New York (Robert J. Ward, Judge) in an action brought under 42 U.S.C. § 1983 (Supp. V 1981) awarding plaintiff compensatory and punitive dam- ages for the shooting death of plaintiff's son, and cross- appeal by the plaintiff challenging the adequacy of the District Court’s award of attorney’s fees. The judgment is vacated in part, the order awarding attorney’s fees is affirmed, and the case is remanded for retrial of the claim for punitive damages. -_ EpwarbD F.X. Hart, New York, N.Y. (Fred- erick A.O. Schwarz, Jr., Corporation Counsel of the City of New York, Leonard Koerner, New York, N.Y., on the brief), for defendants-appe!lants- cross-appellees. HAROLD F. GOLDWASSER, New York, N.Y.,_/or plaintiff-appellee-cross-appellant. > NEWMAN, Circuit Judge: In this appeal four New York City police officers challenge a. $200,000 punitive damage award assessed against them-jointly in the June 1, 1982, judgment of the District Court for the Southern District of New York (Robert J. Ward, Judge). The $200,000 punitive damages award was levied by a jury after it found that the four officers had violated the constitutional rights of Gregory dep Fess ‘a _— 20 ee ey: nono — = ——— ee ee | %..3 a me male +e. . . ae e* ¢ 3 eS LNs RCE ey : ' ’ .** c a ee eee .. : .* . ’ : ee ee 3-A McFadden in an attempted arrest that resulted in McFad- den’s death. This suit was filed by Ivy McFadden, Greg- ory McFadden’s mother and administratrix, pursuant to 42 U.S.C. § 1983 (Supp. IV 1980). Because we conclude that in section 1983 actions liability for punitive damages and their amount must be determined on an individual basis, we vacate the award of punitive damages and remand for a new trial limited to punitive damages. On February 18, 1980, several New York City police officers conducted a “decoy operation” at a busy inter- section in the Bronx. Officer Patricia Hear, while making a telephone call in an open booth, wore a shoulder bag that was left open revealing a wallet containing several dollar bills. Gregory McFadden approached Officer Hear, pretended to make a phone call in the next booth, and then snatched the wallet from her bag. As McFadden walked away from the telephone booths, Officer Michael Ciravolo and Detective Juan Sanchez, two plainclothes- men who were stationed in nearby stores, intercepted him. Ciravolo grabbed McFadden’s right arm, Sanchez his left. They identified themselves as police officers and asked McFadden to accompany them away from the intersection to be arrested. At this point, the witnesses’ versions of the episode differ. According to the police officers, McFadden began to struggle as Sanchez was handcuffing him. Despite the two Officers’ efforts to restrain their suspect, McFadden continued to fight. Officer Hear, seeing the struggle develop, ran over to the three men and attempted to hit McFadder with her shoulder bag and handcuffs, but was knocked away by the group, which was spinning in a - Oe ee el a circle. Sergeant Robert Pezzano, the senior police officer supervising the operation, then entered the fray and grabbed McFadden’s head. By bending down, McFadden broke Pezzano’s grip. As he bent over, McFadden caught sight of Officer Ciravolo’s gun. McFadden grabbed the gun and pointed it at Ciravolo’s groin. Ciravolo yelled, “He has my gun,” and jammed his hand between the gun’s hammer and cylinder to prevent it from firing. After a few moments, Ciravolo’s grip on the gun loosened, as McFadden raised the weapon to Ciravolo’s chest. Ciravolo screamed, “I can’t hold on any more,” and Sergeant Pezzano fired his gun into McFadden’s back. McFadden was taken to Union Hospital, where he died. The plaintiff's main witness gave a markedly different version of the shooting. The witness testified that he first saw McFadden accompanied by three men who the wit- ness did not realize were police officers since they were in plain clothes. Ten to twelve feet away from where the witness was standing, the officers stopped McFadden and grabbed his arms. About a half a minute later one of the officers said, “You tore my jacket,” and a brief tussle ensued. The officers forced McFadden up against a wall, with one officer on either side of McFadden holding his arms and another officer in front of McFadden. The officer in front of McFadden, whom the witness identi- fied as Officer Ciravolo, hit McFadden in the face for three or four minutes. According to the witness, up to this point, McFadden did not try to resist or escape the punches, but when he was about to be kneed in the groin, he said, “The hell with this” and “Kill me.” The struggle between McFadden and the officers then resumed, and the next thing the witness heard was one of the officers saying either “He had my pistol” or “He has a gun.” At pee _