Appendix — City of Fontana v. Smith

Supreme Court brief1987

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No. ind 46 AUG 3 gz

JOSEPH ESB ani, JR

CLERK

IN THE \

Supreme Court of the United States

OCTOBER TERM, 1987

THE CITY OF FONTANA, a Municipal Corporation;

ROBERT MEJIA, LARRY SMITH, NATHAN A. SIMON,

CHARLES A. KOEHLER, BEN ABERNATHY, BILL

FREEMAN, DONALD F. DAY, WILLIAM KRAGNESS,

JACK RATELLE, JOHN M. RAGER, and KATHY

WILSON,

Petitioners,

VS.

SONJA RENEE SMITH, as Administratrix of the Estate of

RUFUS A. SMITH, SR., Deceased, as Guardian Ad Litem for

the Minor Children of the Deceased, and Individually; RUFUS

ANTHONY SMITH, JR., Individually; and MARCUS

SMITH, a Minor; NETRA SMITH, a Minor; ANTHONY

SMITH, a Minor; JARREN SMITH, a Minor; SHERRI

SMITH, a Minor; ARKILLIUS SMITH, a Minor; and

TASHIEKA SMITH, a Minor,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX FOR

PETITION FOR WRIT OF CERTIORARI

COTKIN, COLLINS & FRANSCELL

BRADLEY C. WITHERS*

PAUL N. PAQUETTE

Suite 1300

550 South Hill Street

Los Angeles, California 90013

(213) 627-2696

Attorneys for Petitioners

*Counsel of Record

Lawyers Brief Service / Legal Publishers / (213) 383-4457 / (714) 720-1510

D F_ APPENDICES

APPENDIX A

Order of the Ninth Circuit

Court of Appeal Amending the

Amended Opinion,

Filed July 7, 1987

APPENDIX B

Order and Amended Opinion of

the Ninth Circuit,

Filed January 6, 1987;

Amended May 5, 1987

APPENDIX C

Petition for Rehearing En Banc

to the Ninth Circuit Court of

Appeal, by Petitioners,

Filed January 20, 1987

APPENDIX D

Opinion of the Ninth Circuit

Court of Appeal,

Filed January 6, 1987

APPENDIX E

Appellees’ Supplemental Brief

to the Ninth Circuit Court of

Appeal, by Petitioners,

Filed May 27, 1986

APPENDIX F

Plaintiffs-Appellants’

C-1

Supplemental Brief to the Ninth

Circuit Court of Appeal, by

Respondents,

Dated February 25, 1986

-i-

Fo}

APPENDIX G

Appellees’ Brief to the Ninth

Circuit Court of Appeal, by

Petitioners,

Dated February 17, 1983 G-1

APPENDIX H

Appellants’ Opening Brief to

the Ninth Circuit Court of

Appeal, by Respondents,

Dated January 14, 1983 m~2

APPENDIX I

Order Re Dismissal of the

United States District Court

for the Central District of

California I-1

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, as

Administratrix of the Estate of

RUFUS A. SMITH, SR., Deceased,

as Guardian Ad Litem for the

minor children of the Deceased,

and individually; and MARCUS

SMITH, a minor; NETRA SMITH, a

minor; ANTHONY SMITH, a minor;

JARREN SMITH, a minor; SHERRI

SMITH, a minor; ARKILLIUS SMITH,

a minor; and TASHIEKA SMITH,

a minor,

Plaintiffs-Appellants,

Vv.

THE CITY OF FONTANA, a municipal

corporation; ROBERT MEJIA;

LARRY SMITH; NATHAN A. SIMON;

CHARLES A. KOEHLER; BEN ABERNATHY

BILL FREEMAN; DONALD F. DAY;

WILLIAM FRAGNESS; JACK RATELLE;

JOHN M. RAGER; and KATHY WILSON,

Defendants~Appellees.

ee ee ee ee ee ee ee ee te ee ee ee ee ee ee eee ee ee ee See”

FILED ~ JULY 7, 1987

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

No. 82-5896

D.C. No. CV 82-3262-WPG

ORDER

Before: TANG, * ALARCON and NORRIS,

Circuit Judges

The Amended Opinion filed on May 5,

1987, is hereby amended as follows:

Footnote 18 at page 24 of the slip

opinion is deleted in its entirety.

* Judge Tang was selected to sit on this

panel following the death of the

Honorable William G. East, Senior United

States District Judge for the District

of Oregon, originally sitting by

designation.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, as Administratrix of

the State of RUFUS A. SMITH, SR.,

Deceased, as Guardian Ad Litem for the

minor children of the Deceased, and

individually; and MARCUS SMITH, a minor;

NETRA SMITH, a minor; ANTHONY SMITH, a

minor; JARREN SMITH, a minor; SHERRI

SMITH, a minor; ARKILLIUS SMITH, a

minor; and TASHIEKA SMITH, a minor,

Plaintiffs-Appellants,

Vv.

THE CITY OF FONTANA, a municipal

corporation; ROBERT MEJIA; LARRY SMITH;

NATHAN A. SIMON; CHARLES A. KOEHLER; BEN

ABERNATHY; BILL FREEMAN; DONALD F. DAY;

WILLIAM FRAGNESS; JACK RATELLE; JOHN M.

RAGER; and KATHY WILSON,

Defendants-Appellees.

No. 82-5896

ites BOw

C.V. 82-3262-WPG

ORDER AND AMENDED OPINION

Submitted July 7, 1983*

Pasadena, California

Resubmitted May 27, 1986

Filed January 6, 1987

Amended May 5, 1987

Before: Thomas Tang,** Arthur L. Alarcon

and William A. Norris, Circuit Judges.

Opinion by Judge Norris; Concurrence

and Dissent by Judge Alarcon

Appeal from the United States

District Court for the

Central District of California

William P. Gray,

District Judge, Presiding

*The panel finds this case appropriate

for submission without oral argument

pursuant to Ninth Circuit Rule 3(f) and

Fed.R.App.P.34(a).

**k*Judge Tang was selected to sit on this

panel following the death of the

Honorable William G. East, Senior United

States District Judge for the District

of Oregon, originally sitting by

designation.

SUMMARY

Civil Rights

Appeal from dismissal of action.

Reversed and remanded.

This action arises from the death of

appellant Rufus A. Smith at the hands of

Appellees Mejia and Larry Smith,

officers of appellee City of Fontana

Police Department, during an investiga-

tion of an alleged domestic quarrel.

Appellants brought suit claiming that

appellees’ conduct violated the first,

fifth and eighth amendments and both the

due process and equal protection clauses

of the fourteenth amendment. Appellant

Sonja Smith-stiled as administratrix of

the decedent’s estate to vindicate

Smith’s civil rights, and with the other

appellants sue in their capacities as

adult or minor children of Smith to

vindicate their own rights. Relying on

two recently decided eandieaits: Meesie

decisicns, the district court dismissed

the action in its entirety for failure

to state a claim on the ground that

California’s post-deprivation remedies

for violations of state tort law were

adequate to protect appellants from

suffering any cognizable constitutional

injury.

[1] A recent Supreme Court decision

has determined when a state’s post-

deprivation remedies are adequate to

protect a victim’s procedural due

process rights. [2] Substantive due

process bars certain arbitrary govern-

ment actions regardless of the fairness

B-4

of the procedures used to implement

them. [3] Dismissal of appellants’

civil rights claims was improper to the

extent that the complaint state valid

claims for relief for violations of

substantive rather than procedural

constitutional rights.

[4] An allegation that force used

during a personal seizure was excessive

states a claim for relief under the

civil rights laws predicated upon the

fourth amendment. [5] A civil rights

claim that accrued before death survives

the decedent when state law authorizes a

survival action as a suitable remedy not

inconsistent with the Constitution of

the United States. [6] The Supreme

Court has held that fourth amendment

rights are personal rights which may not

5-5

be vicariously asserted. The children

were not directly subjected to the use

of state force and therefore cannot

maintain personal causes of action in

reliance on this fourth amendment

theory.

[7] The district court erred in

construing this claim as alleging only

in the form of excessive and brutal use

of physical force constitutes a viola-

tion of substantive due process. The

complaint clearly alleges that the

decedent’s substantive due process

rights were violated and hence the

estate pleads a valid due process claim.

[8] This court has held that parents can

challenge a state’s severance of a

parent-child relationship as interfering

with their substantive liberty interests

B-6

in the companionship and society of

their children. [9] This court recog-

nizes that the Supreme Court cases

relied upon to define the substantive

liberty interest in a parent-child

relationship involved suits by parents

of minor children. [10] This court

holds that a child’s interest in her

relationship with a parent is suffi-

ciently weighty by itself to constitute

a cognizable liberty interest. [11] If

the facts in the complaint are proved,

Mr. Smith was personally denied equal

treatment solely because of his member-

ship in a disfavored group. Accord-

ingly, the estate may maintain a

survival action for damages suffered by

Mr. Smith as a result of the shooting

incident. [12] It is clear in this case

that the children have failed to

B-7

a oil

demonstrate that threat of future injury

is both real and immediate with respect

to either their claim for injunctive

relief against the officers or their

claim for declaratory relief against the

City. [13] However, it is not clear

from the record that the children could

not plead facts showing credible threat

of future injury from Fontana police

officers. Therefore, this court grants

the children leave to amend their

complaint on remand. [13] The first,

fifth, and eight amendment claims were

all properly dismissed because appel-

lants fail to state a claim for relief

with respect to these rights.

COUNSEL

Andrena G. Dancer, Upland, California,

for the plaintiffs-appellants.

Cotkin, Collins & Koltz, Bradley Cc.

Withers and David L. Shain, Los Angeles,

California, for the defendants.

ORDER

The panel, as constituted above, has

unanimously voted to deny the petition

for rehearing and to reject the sugges-

tion for a rehearing en banc.

The full court has been advised of the

suggestion for en banc rehearing and no

judge of the court has requested a vote

on the suggestion for rehearing en banc.

Fed. R. App. P.35(b).

The petition for rehearing is DENIED,

and the suggestion fcr a rehearing en

banc is REJECTED.

The Opinion filed on January 6, 1987

is hereby replaced by the following

Amended Majority and Concurring and

Dissenting Opinions.

OPINION

NORRIS, Circuit Judge:

Plaintiffs filed this civil rights

action under 42 U.S.C. § 1983 (1982) and

other provisions of the Civil Rights

Act. The district court dismissed their

complaint for failure to state a claim

on the ground that relief under section

1983 was barred by Parratt v. Taylor,

451 U.S. 527 (1981), and Rutledge v.

Arizona Bd. of Regents, 660 F.2d 1345

(9th Cir. 1981), aff’d on other grounds

sub nom. Kush v. Rutledge, 460 U.S. 719

(1983). We reverse on the basis of

B-10

eT |

recent Supreme Court and Ninth Circuit

authority holding that Parratt and its

progeny are inapplicable to civil rights

actions asserting substantive as opposed

to purely procedural due process

violations.2/

FACTS AND PROCEDURAL HISTORY

According to the plaintiffs’

complaint, City of Fontana police

officers Robert Mejia and Larry Smith

responded to a call concerning a

domestic quarrel at the apartment of

1/We temporarily vacated submission of

the plaintiffs’ appeal in order to await

the decision of the Supreme Court in

Daniels v. Williams, 106 S.Ct. 662

(1986), and the decisions of an en banc

panel of this court in Piatt v.

MacDougall, 773 F.2d 1032 (9th Cir.

1985) (en banc), Bretz v. Kelman, 773

F.2d 1026 (9th Cir. 1985) (en banc), and

Haygood v. Younger, 769 F.2d 1350 (9th

Cir. 1985) (en banc), cert. denied sub

nom. Cranke v. Haygood, 106 S.Ct. 3333

(1986).

B-11

Rufus A. Smith, Sr. on May 27, 1982.

Encountering Mr. Smith in his parking

lot, the officers asked him to place his

hands on his head and detained him in

order to discuss the alleged incident.

As Mr. Smith attempted to comply,

Officer Smith without provocation

clenched him from behind in a chokehold

and began to drag him backwards. While

Mr. Smith was thus being held, Officer

Mejia without provocation began to knee

him in the groin and strike him in the

face. Though Mr. Smith was unarmed and

offered only instinctive resistance

against the blows to his groin and face,

Officer Smith drew his duty revolver and

shot Mr. Smith in the back. Mr. Smith

died approximately one and a half hours

later during emergency surgery.

Mr. Smith was a black man.

B-12

Plaintiffs brought suit in federal

district court under 42 U.S.c. §19832/

against officers Mejia and Smith, the

City of Fontana, and various city

officials,2/ claiming that the defen-

dants’ conduct violated the First,

2/42 U.S.C. § 1983 provides in pertinent

part:

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State .. . subjects,

or causes to be subjected, any citizen

of the United States ... to the

deprivation of any rights, privileges,

or immunities secured by the Constitu-

tion and laws, shall be liable to the

party injured in an action at law, suit

in equity, or other proper proceeding

for redress.

3/These city officials include the

Mayor, Mayor Pro-Tem, Chief of Police,

City Manager, City Attorney, City

Personnel Director, and members of the

City Council. The complaint alleges

that they all are responsible either for

developing and enforcing adequate

standards for the hiring, training, and

supervising of police officers or for

rendering legal advice to other offi-

cials charged with such supervision.

B-13

Fourth, Fifth, and Eighth Amendments and

both the due process and equal protec-

tion clauses of the Fourteenth Amend-

ment. Plaintiff Sonja Smith, suing in

her capacity as administratrix of the

decedent’s estate, seeks to vindicate

Mr. Smith’s personal civil rights. She

and the other plaintiffs also sue in

their capacities as adult or minor

children of Mr. Smith, seeking to

vindicate their own personal rights.

Relying on the then recently-decided

Parratt v. Tavlor and Rutledge v.

Arizona Bd. of Regents, the district

court dismissed the action in its

entirety for failure to state a claim on

the ground that California’s post-

deprivation remedies for violations of

state tort laws were adequate to protect

B-14

the plaintiffs from suffering any

cognizable constitutional injury.4/

LIMITATIONS ON PARRATT AND ITS PROGENY

{1] In Parratt v. Taylor, the Supreme

Court held that when a state actor

negligently deprived a prisoner of a

minor property interest through a

"random and unauthorized" act, the

state’s provision of an adequate post-

deprivation remedy satisfied the

4/The plaintiffs also asserted claims

for relief under 42 U.S.C. §§ 1981,

1985(2) and 1985(3) and joined several

pendent state claims. The district

court treated separately the section

1985 claims, holding that based on the

facts alleged in the complaint the

plaintiffs "can[not] state a cause of

action with respect to conspiracy." The

plaintiffs apparently do not appeal this

part of the district court’s ruling, and

hence we do not review it. The district

court dismissed the pendent state claims

as well.

B-15

constitutional requisite of procedural

due process. 451 U.S. at 541-44. The

district court apparently understood

Parratt to preclude any section 1983

action based on an official’s "random

and unauthorized" deprivation of a

constitutional right when a state

provides adequate post-deprivation

remedies. However, Parratt and its

progeny merely determine when a state’s

post-deprivation remedies are adequate

to protect a victim’s procedural due

process rights. The Parratt line of

cases does not focus on the relevance of

procedural protections to alleged

violations of substantive constitutional

rights. As Justice Stevens recently

noted in his concurrence in Daniels v.

Williams, 106 S.Ct. 662 (1986), the due

process clause of the Fourteenth

B-16

Amendment "is the source of three

different kinds of constitutional

protection. First, it incorporates

specific provisions defined in the Bill

of Rights." 106 S.Ct. at 677 (separate

opinion of Stevens, J., concurring in

the judgment). Actions which violate

these specific substantive protections

of the Bill of Rights lie outside the

scope of Parratt because the constitu-

tional violation is complete at the

moment the action or deprivation occurs,

rather than at the time the state fails

to provide requisite procedural safe-

guards surrounding the action. Hence,

Parratt is inapplicable to alleged

violations of one of the substantive

provisions of the Bill of Rights, such

as the Fourth Amendment. See Daniels,

106 S.Ct. at 678 (separate opinion of

B-17

Stevens, J.)("If the claim [concerns a]

. . + Violation of one of the specific

constitutional guarantees of the Bill of

Rights[], a plaintiff may invoke § 1983

regardless of the availability of a

state remedy."); see also Robins v.

Harum, 773 F.2d 1004, 1009 (9th Cir.

1985) (Parratt’s focus on post-depriva-

tion remedies simply "is not applicable

to a claim, such as the instant exces-

sive use of force claim, brought under

the Fourth Amendment").

[2] The due process clause also

"contains a substantive component,

sometimes referred to as ‘substantive

due process,’ which bars certain

arbitrary government actions ’regardless

of the fairness of the procedures used

to implement them.’" Daniels, 106 S.Ct.

B-18

Wiliss o.

at 678 (separate opinion of Stevens, J.)

(citation omitted). Writing for the

Court in Daniels, Chief Justice

Rehnquist recently reaffirmed this

understanding that the due process

secures both procedural and substantive

constitutional protections:

By requiring the government to

follow appropriate procedures

when its agents decide to

"deprive any person of life,

liberty, or property," the Due

Process Clause promotes

fairness in such decisions. And

by barring certain government

actions regardless of the

fairness of the procedures used

to implement them, it serves to

prevent governmental power from

being "used for purposes of

oppression."

Id. at 665 (citations omitted). Like

specific provisions of the Bill of

Rights, "substantive due process is

violated at the moment the harm occurs

[and therefore] the existence of a post-

B-19

deprivation state remedy should not have

any bearing on whether a cause of action

exists under § 1983." Rutherford v.

City of Berkeley, 780 F.2d 1444, 1447

(9th Cir. 1986). See Shah v. County of

Los Angeles, 797 F.2d 743, 746 (9th Cir.

1986); McRorie v. Shimoda, 795 F.2d 780,

785-86 (9th Cir. 1986); Gaut v. Sunn,

792 F.2d 874, 876 (9th Cir. 1986); Mann

v. City of Tucson, 782 F.2d 790, 792-93

(9th Cir. 1986); see also Daniels, 106

S.Ct. at 678 (separate opinion of

Stevens, J.).

Only claims lying within the third

category of constitutional protections -

procedural protections against wrongful

deprivations of life, liberty or

property - fall within the scope of the

Parratt doctrine. Constitutional

B-20

violations of procedural due process

occur not at the moment of the depriva-

tion, but only when the State fails to

provide adequate procedures to protect

against wrongful deprivations. Id. at

678-79.

[3] Dismissal of the plaintiffs’

section 1983 claims was therefore

improper to the extent that the

complaint stated valid claims for relief

for violations of substantive rather

than procedural constitutional rights.2/

5/Liability under section 1983 lies

where (1) "the conduct complained of was

committed by a person acting under color

of state law; and (2) .. . this conduct

deprived a person of rights, privileges,

or immunities secured by the Constitu-

tion or laws of the United States."

Parratt, 451 U.S. at 535. There is no

dispute here that the alleged conduct by

officers Mejia and Smith satisfies the

"under color of state law" requirement,

as they "were clothed with the legiti-

(continued...)

B-21

We address each of the constitutional

claims asserted by each of the plain-

tiffs in turn, reviewing the claims de

novo. Guillo Vv ty o Pay yy

F.2d 1379, 1381 (9th Cir. 1984). In

conducting this review we presume that

the facts alleged in the complaint are

true and construe them in the light most

favorable to the appellant. North Star

Intern. v. Arizona Corp. Comm’n, 720

F.2d 578, 580 (9th Cir. 1983). Dismissal

is improper "’unless it appears beyond

doubt that the plaintiff can prove no

set of facts in support of his claim

which would entitle him to relief.’"

Franklin v. Oregon, 662 F.2d 1337, 1343

5/(...continued)

macy of the government and were

purporting to act thereunder." Haygood,

769 F.2d at 1354. We thus focus solely

on whether the plaintiffs have been

deprived of any constitutional rights.

B-22

(9th Cir. 1981) (quoting Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974)).

Iit

FOURTH AMENDMENT CLAIMS

[4] The estate’s first legal theory is

that the officers’ actions and the

City’s policies violated Mr. Smith’s

Fourth Amendment rights. In Tennessee v.

Garner, the Supreme Court held that

"apprehension by the use of deadly force

is = seizure subject to the reasonable-

ness requirement of the Fourth Amend-

ment."§/ U.S. 1, 7 (1985). Where a

victim of a seizure alleges that

officers unreasonably employed excessive

6/The Fourth Amendment made applicable

to the states through *he Fourteenth

Amendment in Wolf v. Colorado, 338 U.S.

25 (1949), states in part that the

"right of the people to be secure in

their persons . .. against unreasonable

searches and seizures, shall not be

violated. . . ." U.S. Const. amend. IV.

B-23

force under the circumstances in order

to detain or subdue her, the

"reasonableness of force should be

analyzed in light of such factors as the

requirements for the officers’ safety,

the motivation for the arrest [or deten-

tion], and the extent of the injury

inflicted." McKenzie v. Lamb, 738 F.2d

1005, 1011 (9th Cir. 1984). Hence, an

allegation that force used during a

personal seizure was excessive as

measured by these factors states a claim

for relief under section 1983 predicated

upon the Fourth Amendment. See Garner,

471 U.S. at 9 (use of deadly force to

prevent escape constitutes an

unreasonable seizure unless the officer

has probable cause to believe that the

suspect poses a threat of serious harm

to the officer or others); Robins, 773

B-24

F.2d at 1008-10 (allegation that police

used excessive force while transporting

plaintiffs to police station after

arrest states a section 1983 claim for a

Fourth Amendment violation); MacDonald

v. Musick, 425 F.2d 373, 377 (9th Cir.)

(defendant asserting that his arrest was

unlawful, that he had a right to resist,

and that he sustained injuries as a

result of his resistance stated claim

under section 1983), cert. denied, 400

U.S. 852 (1970); see also Gilmere v.

City of Atlanta, 774 F.2d 1495, 1502

(11th Cir. 1985) (alleged beating and

killing of suspect during process of

detention stated a section 1983 claim

for Fourth Amendment violation), cert.

denied, 106 S.Ct. 1970 (1986). The

defendants candidly concede that under

this case law the complaint’s allega-

B-25

tions that the decedent was "unarmed and

helpless, and in no way posed a threat

to the safety of [the officers or] any

other persons," Complaint, at 4 30, and

that the ‘defendants’ acts were

"unwarranted, cruel, inhuman, unjusti-

fiable, and excessive," id., at § 33,

are sufficient to state a claim under

the Fourth Amendment. See Appellees’

Supplemental Brief, at 2.

[5] The estate can assert this claim

on Mr. Smith’s behalf. Under section

1988, a section 1983 claim that accrued

before death survives the decedent when

state law authorizes a survival action

as a "Suitable remed[y] ... not

inconsistent with the Constitution and

laws of the United States ... ." 42

U.S.C. §1988 (1982). ee Robertson v.

B-26

Wegmann, 436 U.S. 584, 588-90 (1978).

Under California’s survival statute, "no

cause of action [is] lost by reason of

the death of any person but may be

maintained by ...his...

administrator." Cal. Prob. Code §573

(West Supp. 1986) .2/ Therefore,

Mr. Smith’s Fourth Amendment claim

survives his death and can be maintained

by plaintiff Sonja Smith in her capacity

as administratrix of his estate.8/

7/As an exception to this rule, survival

actions may not be brought in California

if the decedent’s death is instantaneous

with her legal injury; see Pease v.

Beech Aircraft, 38 Cal.App.3d 450, 459-

60, 113 Cal.Rptr. 416, 422-23 (1974),

but the complaint here alleges that Mr.

Smith died approximately one and one-

half hours after he was shot.

8/we express no view here as to whether

the remedies authorized by California’s

survival statute, pecuniary and punitive

damages but not damages for pain and

suffering, are too limited to be

"consistent" with the Civil Rights Act’s

(continued...)

B27

[6] Mr. Smith’s children, suing in

their individual capacities, also assert

a claim for relief under the Fourth

Amendment. However, the Supreme Court

has held that "Fourth Amendment rights

are personal rights which. . . may not

be vicariously asserted." Alderman v.

United States, 394 U.S. 165, 174 (1969).

g/(...continued)

statutory scheme and whether federal

law, therefore, provides an independent

source of recovery for a broader array

of damages. See generally Robertson, 436

U.S. at 594 (explicitly holding question

open); Guyton v. Phillips, 532 F.Supp.

1154, 1165-67 (N.D.Cal. 1981) (inter-

preting federal law as allowing estate

to recover compensation for decedent’s

pain and suffering and for his loss of

life itself even though such compensa-

tion is unavailable under California’s

survival statute); Bass by Lewis v.

Wallenstein, 769 F.2d 1173, 1187-90 (7th

Cir. 1985) (holding Illinois’ limited

recovery under survival and wrongful

death statutes inconsistent with federal

law and authorizing awards of damages

beyond those expressly provided); Bell

v. City of Milwaukee, 746 F.2d 1205,

1235-41, 1250-53 (7th Cir. 1984) (same

conclusion with respect to Wisconsin law).

B-28

The children were not directly subjected

to the excessive use of state force and

therefore cannot maintain personal

causes of action under section 1983 in

reliance on this Fourth Amendment

theory.

SUBSTANTIVE DUE PROCESS CLAIMS

A. The Estate’s Substantive Due Process

Claim

[7] The estate asserts a section 1983

claim under the due process clause of

the Fourteenth Amendment. The district

court erred in construing this claim as

alleging only a procedural due process

violation because egregious government

conduct in the form of excessive and

brutal use of physical force constitutes

a violation of substantive due process.

See Rutherford, 780 F.2d at 1446

B-29

(allegation of unprovoked assault and

battery by police officers states a

claim for violation of substantive due

process); see also Shah, 797 F.2d at 746

("’intentional unjustified, [and]

unprovoked’ assault by a prison guard on

a prisoner may be a violation of

substantive due process") (citation

omitted); McRorie, 795 F.2d at 785

(allegation of intentional prison guard

brutality states cause of action for

substantive due process violation) ;

Gaut, 792 F.2d at 875 (prison beatings

which "shock the conscience" are

actionable as substantive due process

violations); Meredith v. Arizona, 523

F.2d 481, 482-84 (9th Cir. 1975)

(assault and hattery by prison guard

violates the right to liberty). As with

the Fourth Amendment claim, resolving a

B-30

substantive due process claim requires

courts to balance several factors

focusing on the reasonableness of the

officers’ actions given the circum-

stances. In Rutherford, we held that

"in determining whether the

constitutional line has been

crossed, a court must look to

such factors as the need for

the application of force, the

relationship between the need

and the amount of force that

was used, the extent of the

injury inflicted, and whether

force was applied in a good

faith effort to maintain and —

restore discipline or

maliciously and sadistically

for the very purpose of causing

harm."

780 F.2d at 1446 (quoting Johnson v.

Glick, 481 F.2@ 1028, 1033 (24. Cir.

1973)). Given its focus on these

factors, the complaint clearly alleges

that Mr. Smith’s substantive due process

rights were violated and hence the

estate pleads a valid due process claim

under section 1983.

B. The Children’s Personal Substantive

Due Process Claim

The children also plead that the

defendants violated their personal

"rights not to be deprived of the life

of their father and not to be deprived

of his love, comfort, and support

- « « -" Complaint, at paragraph 40.

This claim raises the threshold question

whether the children’s interest in the

continued companionship and society of

their father is a cognizable liberty

interest under the due process clause.

{[8] The Supreme Court has yet to

address whether and when the govern-

ment’s act of taking the life of one

family member deprives other family

members of a cognizable liberty interest

B-32

in continued association with the

decedent. Our court, however, has held

that parents can challenge under section

1983 a state’s severance of a parent-

child relationship as interfering with

their liberty interests in the

companionship and society of their

children. In Morrison v. Jones, 607 F.2d

1269 (9th Cir. 1979), cert. denied, 445

U.S. 962 (1980), we held that when

county officials removed a mentally ill

boy from his mother’s custody on the

ground that she could not adequately

care for him, the mother could bring a

section 1983 action for damages to

vindicate her “substantive familial

rights that have long been considered

the ‘basic civil rights of man.’" Id. at

1276 (quoting Skinner v. Oklahoma, 316

U.S. 535, 541 (1942)). More recently, in

B-33

Kelson v. City of Springfield, 767 F.2d

651 (9th Cir. 1985), we held that

parents who alleged that school

officials negligently allowed their son

to commit suicide could maintain a

section 1983 action to vindicate "their

fundamental parental rights guaranteed

by the Ninth Amendment ...and..

their right to association with their

son guaranteed by the First Amendment."

Id. at 653. After examining a long line

of Supreme Court cases stressing "the

importance of familial bonds" and

identifying the many times the Supreme

Court has interpreted the due process

clause to protect the interests of

parents "in maintaining a relationship

with their children," id. at 654, we

concluded that "a parent has a constitu-

tionally protected liberty interest in

B-34

the companionship and society of his or

her child." Id. at 655.2/

We now hold that this constitutional

interest in familial companionship and

society logically extends to protect

children from unwarranted state inter-

ference with their relationships with

their parents. The companionship and

nurturing interests of parent and child

in maintaining a tight familial bond are

reciprocal, and we see no reason to

accord less constitutional value of the

9/After Kelson was decided, the Supreme

Court ruled that the "Due Process Clause

is simply not implicated by a negligent

act of an official causing unintended

loss of or injury to life, liberty or

property. Daniels, 106 S.Ct. at 663.

Although Daniels overrules Kelson’s

implicit holding that a section 1983

claim can be based on mere negligence,

Kelson’s determination that parents have

a constitutionally protected liberty

interest in their continued association

with their children remains good law.

B-35

child-parent relationship than we accord

to the parent-child relationship. +22/

Cf. Roberts v. United States Jaycees,

468 U.S. 609, 619-20 (1984) ("Family

relationships, by their nature, involve

deep attachments and commitments to the

necessarily few other individual with

whom one shares not only a special

community of thoughts, experiences, and

beliefs but also distinctively personal

aspects of one’s life.").

[9] We recognize that the Supreme

Court cases on which Morrison and Kelson

relied to define the liberty interest in

10/ Indeed, if any distinction can be

drawn, one might even argue that a child

has a greater interest in the continued

life of a biological parent than vice

versa because often the parent has or

can have other biological children,

whereas a child can never replace a

biological parent.

B-36

a parent-child relationship involved

suits by parents of minor children. The

state’s interference with the parent-

child relationship therefore threatened

not only the parents’ interest in the

companionship of their children, but

also the parents’ constitutionally

protected interest in raising their

children. See, e.g., Santosky v. Kramer,

455 U.S. 745 (1982) (natural parents

entitled to procedural due process at a

state-initiated parental rights termina-

tion proceeding); Lassiter v. Dep’t of

Social Services, 452 U.S. 18 (1981)

(parents entitled to procedural due

process prior to state termination of

parental status on grounds of unfit-

ness); see also Pierce v. Society of

Sisters, 268 U.S. 510, 534-35 (1925)

(requirement that children attend public

B-37

————

school unreasonably interferes with

parents’ liberty "to direct the

upbringing and education of children

under their control").

[10] When, as in this case, a child

claims constitutional protection for her

relationship with a parent, there is no

custodial interest implicated, but only

a companionship interest. This distinc-

tion between the parent-child and the

child-parent relationships does not,

however, justify constitutional protec-

tion for one but not the other. We hold

that a child’s interest in her relation-

ship with a parent is sufficiently

weighty by itself to constitute a

cognizable liberty interest. Our view

finds support in Strandberg v. City of

Helena, 791 F.2d 744 (9th Cir. 1986),

B-38

where parents brought a section 1983

claim against the state for negligently

allowing their son to commit suicide in

jail. The parents’ interest in directing

the upbringing of their son was not

implicated because the son was twenty-

two years old and no longer a minor; the

parents therefore "had not been deprived

of any constitutional right to parent."

Id. at 748 n.1 (emphasis added).

However, the parents were able to "claim

a violation of their fourteenth amend-

ment due »*rocess rights in the

companionship and society of the

decedent." Id. at 748. Thus, the

familial relationship, and not the more

narrow custodial interest of the

parents, gave rise to the due process

action. See also Bell, 746 F.2d at 1245

(parent can assert personal due process

B-39

Claim for death of adult child because

the "Supreme Court’s decisions protect

more than the custody dimension of the

parent-child relationship"); cf. Moore

v. City of East Cleveland, 431 U.S. 494

(1977) (extending Supreme Court

principles protecting the parental role

in raising children to protect a broader

set of relationships within the family

structure and invalidating under

substantive due process a zoning

ordinance preventing grandmother and

grandson from living together in certain

circumstances) .11/

11/We intimate no view as to whether the

familial relationship between siblings

is sufficiently constitutionally

protected as to allow one sibling to

assert a section 1983 action based on

the death of the other. Compare Trujillo

v. County Commissioners, 768 F.2d 1186

(10th Cir. 1985) (siblings can bring

section 1983 claims alleging that

wrongful death interfered with liberty

(continued...)

B-40

Our conclusion also finds compelling

support in the legislative history of

section 1983’s precursor, the Ku Klux

Klan Act of 1871. Representative Butler

described the Act "as a remedy for

wrongs, arsons, and murders done. This

is what we offer to a man whose house

has been burned, as a remedy; to the

woman whose husband nas been murdered,

as a remedy; to the children whose

father has been killed, as a remedy."

Cong. Globe, 42nd Cong., lst Sess. 807

(1871) (emphasis added). Indeed, the

"legislative history makes a clearer

case for recovery to the child due to

loss of support or loss of society and

companionship of a parent .. . [than

for) the parent’s rights [for recovery]

11/(...continued)

interest in companionship), with Bell,

746 F.2d 1205 (siblings cannot do so).

B-41

vis-a-vis the loss of a child." Bell,

746 F.2d at 1244 (emphasis added). Both

case law and legislative history thus

lead us to the conclusion that

Mr. Smith’s adult and minor children had

a cognizable liberty interest in their

relationship with their father.

This leaves us with the question of

whether the alleged interference with

the children’s protected liberty

interest rises to the level of a

substantive, as opposed to a procedural,

due process violation. As we have

already noted, whether a particular

interference with a liberty interest

constitutes a substantive or a proced-

ural due process violation depends on

whether the interference was "for

purposes of oppression," Daniels, 106

B-42

S.Ct. at 665 (citation omitted), rather.

than for the purpose of furthering

legitimate state interests. When the

state has a legitimate interest in

interfering with a parent-child

relationship, for example, where the

best interest of the child arguably

warrants termination of the parent’s

custodial rights, the state may legiti-

mately interfere so long as it provides

"fundamentally fair procedures." Kramer,

455 U.S. at 754 (emphasis added).

However, the state has no legitimate

interest in interfering with this

liberty interest through the use of

excessive force by police officers. Such

an action constitutes the very sort of

affirmative abuse of government power

which the substantive protections of the

due process clause are designed to

B-43

prevent. Therefore, the same allegation

of excessive force giving rise to

Mr. Smith’s substantive due process

claim based on his loss of life also

gives the children a substantive due

process claim based on their loss of his

companionship.+2/ Because on these facts

12/one circuit has imposed a special

state-of-mind requirement for a due

process violation when the liberty

interest giving rise to the section 1983

action is the interest in continued

familial companionship. In Trujillo, the

Tenth Circuit likened this liberty

interest to the First Amendment interest

in free association and noted that to

state a claim for interference with this

First Amendment interest, a plaintiff

must allege that the challenged statute

or official action was directed at

discouraging protected expression or

association. 768 F.2d at 1189-90. The

court then held that plaintiffs who

bring a section 1983 claim based on

interference with familiar companionship

similarly must allege that the state

official acted with the specific motive

of severing the parent-child relation-

ship in some manner, for example,

terminating a parent’s custodial rights.

See Trujillo, 768 F.2d at 1190. However,

(continued...)

B-44

their claim invokes the protections of

substantive due process, the claim falls

outside the scope of the Parratt

doctrine.

12/(...continued)

Trujillo imposed this requirement of

specific intent on a claim of inter-

ference with the familial relationship

in order to avoid throwing open the

judicial floodgates to claims based on

merely negligent acts. Id. Now that

Daniels has closed this potential

floodgate by requiring the act causing

the deprivation to have been more than

simply negligent, see supra note

, Trujillo’s additional

focus on the state actor’s motivation is

no longer necessary to serve its

purpose. We therefore decline to follow

Trujillo. As long as the state offi-

cial’s action which deprived the

plaintiffs of their liberty was more

than merely negligent, the plaintiffs

can state a section 1983 claim without

further alleging that the official was

trying to break up their family. We note

that we did not adopt a specific intent

requirement in Kelson. See also Bell,

746 F.2d 1205 (not imposing specific

intent state-of-mind requirement).

B-45

EQUAL PROTECTION CLAIMS

[11] The complaint alleges that

officers Smith and Mejia used excessive

force to subdue decedent Mr. Smith

because he was black. The complaint

further alleges that the officers acted

pursuant to an unwritten City policy

authorizing the use of excessive force,

particularly against black persons, and

that the City also had a policy of

failing to train and supervise police

officers concerning the use of deadly

force.13/ If these facts are proved,

13/Specifically, the two unwritten

policies averred in the complaint are

the failure of the institutional

defendants to enforce departmental

regulations, thereby creating an

"atmosphere of lawlessness," and the

"failure of the defendants to provide

training, instruction and supervision

regarding the lawful use of an officer’s

service revolver and the use of exces-

(continued...)

B-46

ee |

Mr. Smith was "personally denied equal

treatment solely because of [his]

membership in a disfavored group."

Heckler v. Mathews, 465 U.S. 728, 740

(1984). Accordingly, the estate may

maintain a survival action against all

defendants for damages suffered by

Mr. Smith as a result of the shooting

incident.14/

13/(...continued)

Sive and deadly force." Complaint, at

qq 49-50. Both of these allegations are

sufficient to satisfy the definition of

an "official policy" giving rise to

municipal liability as articulated by

the Supreme Court in Monell v. Dep’t of

Social Services, 436 U.S. 658, 694

(1978). See Bergquist v. County of

Cochise, 806 F.2d 1364, 1370 (9th Cir.

1986) ("policy of gross negligence in

training or supervision gives rise to

§ 1983 liability").

14/The complaint sufficiently alleges a

causal relationship between the City’s

unconstitutional policies and the

officers’ actions to satisfy the Supreme

Court’s requirement that plaintiffs

allege (and later prove) an "affirmative

(continued...)

B-47

The children also assert an equal

protection challenge, focusing not on

the shooting incident itself,15/ put

rather on the possibility that similar

race-based incicents will occur in the

future. Specifically, the children

allege that the propensity of officers

Mejia and Smith to employ excessive

force against black residents in the

future and the City’s and supervisory

14/(...continued)

link between the occurrence of the

police misconduct and the adoption of

any policy or plan by... [the

officials] - express or otherwise -

showing their authorization or approval

of such misconduct." Rizzo v. Goode, 423

U.S. 362, 371 (1976).

15/We do not address the difficult

question whether the children could

state a claim for damages under the

equal protection clause based on the

police shooting of their father. We do

not interpret their complaint as

pleading this claim, and they have not

raised it in their briefs filed with

this court.

‘A

officials’ sanction and encouragement of

such a practice by all City police

officers threaten the physical security

of all black people within the jurisdic-

tion of the Fontana Police Department.

Fearing future injury at the hands of

the Fontana police because of their

race, the children seek injunctive

relief against the continued employment

of officers Mejia and Smith in any

capacity where the officers would be

armed and seek a declaratory judgment

that the City’s discriminatory policy is

unconstitutional.

[12] We do not reach the question

whether these facts, if proved, would

state a claim under the equal protection

clause, for we find ourselves without

jurisdiction to consider such a claim.

B-49

In City of Los Angeles v. Lyons, 461

U.S. 95 (1983), the Supreme Court

explained that Article III’s "case or

controversy" requirement precludes

federal courts from considering claims

for equitable relief unless the plain-

tiffs can demonstrate that their threat

of future injury by the defendants is

"both ‘real and immediate,’ not ‘’conjec-

tural or hypothetical.’" 461 U.S. at 102

(citations omitted) .28/ It is difficult

16/We note that the Supreme Court, both

in Lyons and other opinions, has

characterized this Article III require-

ment in several different ways. See,

e.g., Lyons, 461 U.S. at 101 ("case or

controversy" requirement); id. at 105

("standing" to seek injunction); id. at

111 ("prerequisite of equitable

relief"). See also Kolender v. Lawson,

461 U.S. 352, 355 n.3 (1983) (referring

separately to the "propriety of declara-

tory and injunctive relief" and

"standing to seek such relief") but

concluding that both are satisfied by

plaintiff’s showing of "credible threat"

of recurring injury). Despite this

(continued...)

B-50

to characterize the point at which a

threat of future injury becomes

"credible," and the caselaw defies easy

generalization. See, e.g., Sample v.

Johnson, 771 F.2d 1335, 1340-43 (9th

Cir. 1985) (canvassing cases). Neverthe-

less, it is clear in this case that the

children have failed to meet this burden

with respect to either their claim for

injunctive relief against officers Smith

and Mejia or their claim for declaratory

relief against the cCity.4//

16/(...continued)

confusion of terminology, however, it is

clear that the Court considers a

satisfactory allegation of a credible

threat of future injury to be a prere-

quisite to the exercise of federal

jurisdiction over a claim for injunctive

relief.

17/While Lyons itself concerned a claim

for injunctive and not merely declara-

tory relief, 461 U.S. at 98-99, the

Supreme court seems to employ the same

threshold test of likelihood of

(continued...)

B-51

The Supreme Court has held that

plaintiffs seeking equitable relief from

assertedly unconstitutional police

practices can satisfy this case or

controversy requirement by alleging

enough specific instances of past

unconstitutional behavior to establish a

"persistent pattern of police miscon-

duct" from which a future threat can be

inferred. Allee v. Medrano, 416 U.S.

802, 815 (1974). Here, however, the

complaint cites no examples of police

abuse other than the one causing the

death of Mr. Smith. Rather, the

complaint merely alleges that black

17/(...continued)

recurring injury when evaluating claims

for declaratory relief as it does when

evaluating claims for injunctive relief.

See, e.g., Ash v. Mattis, 431 U.S.

171, 172 & n.2 (1977) (per curiam) ;

Golden v. Zwickler, 394 U.S. 103, 108-10

(1969).

B-52

citizens "have consistently been the

targets of unpunished, arbitrary, and

discriminatory use of excessive and

deadly force by Fontana police

officers." Complaint, at 4 49. This

statement is too conclusory to

adequately establish a prior pattern of

misconduct from which we can infer a

credible threat of future injury at the

hands of Fontana police officers. A

fortiori, it fails to establish a

credible threat of recurrent injury

inflicted specifically by officers smith

and Mejia. See Lyons, 461 U.S. at 100

(claim of future injury too speculative

where complaint alleged that police

policy of applying chokeholds had

resulted in twelve deaths and five more

deaths occurred after complaint was

filed).

The Supreme Court has held that

plaintiffs seeking equitable relief can

alternatively satisfy this case or

controversy requirement of likely future

injury by both alleging the existence of

an unconstitutional policy and "credibly

alleg{ing] that [they] faced a realistic

threat from the future application of

the City’s policy." Lyons, 461 U.S. at

107 n.7. In Lyons, for example, the

Supreme Court indicated that Lyons would

have to allege that he was likely to

engage in some act bringing him into

contact with the police in a situation

where the City’s policy would lead the

policy to apply a chokehold. Id. at 105-

108 & n.7. Here, the plaintiffs do make

the general allegation that the City’s

unconstitutional policies authorize and

encourage all police officers to use

B-54

excessive force, especially against

black persons. They further allege that

the continued employment of officers

Smith and Mejia "presents a clear and

present danger to all citizens of the

City of Fontana and could result in the

further illegal use of force and

violence by the defendants." Complaint,

at 4 91. However, nowhere do they

specify under what circumstances the

City’s policy authorizes police officers

unjustifiably to employ deadly force

against black persons, nor do they

explain why they likely will find

themselves in such circumstances. They

do not even suggest that they are likely

to be involved in the same type of

family quarrel which led officers Smith

and Mejia to approach and restrain their

father. We therefore cannot find in

B-35

their allegations a sufficiently

credible threat of future injury to

establish an Article III "case or

controversy" under the guidelines

established by the Supreme Court.

We have previously held that Lyons and

its progeny does not preclude the

exercise of federal jurisdiction when a

plaintiff brings both a claim for

damages and a related claim for

equitable relief in the same lawsuit. In

Giles v. Ackerman, 746 F.2d 614 (9th

Cir. 1984), a woman who was subject to a

strip search after being arrested for

failure to pay several outstanding

parking tickets brought a section 1983

claim against several county defendants

based on their alleged violation of her

fourth amendment rights. She sought

B-56

damages for her actual privacy invasion,

a declaratory judgment that the county’s

policy of strip searching was constitu-

tional, and injunctive relief against

the policy’s continued enforcement. In

response to the suggestion that she

could not credibly assert that she again

would be subjected to a strip search and

that therefore she had no standing to

seek declaratory or injunctive relief,

we reasoned as follows:

"In Lyons the plaintiff’s

damages claim had been severed

from his claim for injunctive

relief. The [Supreme] Court was

thus required to consider

whether his request for an

injunction, standing alone,

presented a case or

B-57

controversy. In contrast, it is

clear that Giles has standing

to bring her damages action,

and there is no question that a

live controversy exists between

her and the County. The only

question in her case is whether

relief in addition to damages

is appropriate.

746 F.2d at 619 (citations omitted).

We have concluded here that the

children can maintain an action for

damages against the City defendants

based on their alleged violation of the

children’s substantive due process

rights. Ante, at . However,

we do not believe that our reasoning in

Giles leads to the conclusion that this

due process claim for damages allows us

B~-SS

Bia...

to exercise federal jurisdiction over

the children’s equal protection claim

for equitable relief. In Giles, the

plaintiff’s claims for damages and

equitable relief were predicated on a

single legal theory requiring develop-

ment of the exact same set of facts -

that her strip search after arrest for a

minor crime violated her Fourth Amend-

ment rights. Giles had to establish all

of the facts necessary to support her

claim for equitable relief in order to

win her damages claim, and therefore she

"“demonstrate[d] a ’personal stake in the

outcome’" of her claim for equitable

relief sufficient to "’assure that

concrete adverseness’ necessary for the

proper resolution of constitutional

questions." Lyons, 461 U.S. at 101

(citations omitted).

B-59

In contrast, for the children to win

their claim for equitable relief based

on the City’s alleged violation of the

equal protection clause, the children

would have to prove facts additional to

those sufficient to win their due

process claim for damages. The children

can establish the City’s liability for

damages by showing that the City’s

official policy authorizes the use of

excessive force and that this policy was

causally related to their father’s death

at the hands of officers Smith and

Mejia. To win their claim for equitable

relief, however, the children would have

to prove that the City’s policy concern-

ing the use of force discriminates

against black citizens. Unlike in Giles,

therefore, the plaintiffs’ damages claim

does not by itself guarantee the

B-60

ane ashe,

requisite adverseness with respect to

the equal protection claim to satisfy

the requirement of a "live controversy"

Giles, 746 F.2d at 619. Interpreting

Giles in light of Lyons, we believe that

we must limit the exception established

in Giles - that plaintiffs need not

allege a credible threat of future

injury in order to maintain a claim for

equitable relief as long as they also

have a claim for damages - to situations

where the two claims involve the same

operative facts and legal theory. The

children here therefore cannot use their

due process claim for damages to satisfy

the independent "case or controversy"

requirement governing their claims for

equitable relief.18/

18/To be sure, the estate has a valid

claim for damages against the City

(continued...)

B-61

[13] Although the allegations

presently contained in the complaint

fail to establish a "case or contro-

versy" permitting the exercise of

federal jurisdiction over the children’s

equal protection claims for equitable

relief, it is not clear from the record

that the children could not plead facts

showing a credible threat of future

injury at the hands of officers Smith

and Mejia or other Fontana police

officers. Because the complaint was

18/(...continued)

defendants based on the equal protection

clause, see ante at , and

therefore the City defendants must be

prepared to defend themselves against

the equal protection challenge. However,

just as each individual plaintiff ina

lawsuit joining several plaintiffs must

independently satisfy constitutional

standing requirements, so must each

individual seeking injunctive relief

satisfy the Article III "case or

controversy" requirement to seek such

relief.

B-62

filed before Lyons was decided, and

because the district court never reached

this question, we believe that the

interests of justice require granting

the plaintiffs leave to amend their

complaint on remand. Cf. Kelson, 767

F.2d at 656 (plaintiffs afforded

opportunity to amend complaint on remand

to allege existence of official policy

or custom when Supreme Court decided

case refining definition of official

policy after plaintiffs filed original

deficient complaint); Hirst v. Gertzen,

676 F.2d 1252, 1264-65 (9th Cir. 1982)

(plaintiff afforded opportunity to amend

complaint on remand to allege section

1983 claim against municipal defendants

when Supreme Court decided case creating

municipal liability after municipal

B-63

defendants had been dismissed from the

action) .29/

19/If on remand the district court

permits the plaintiffs to amend their

complaint to plead a claim for damages

under the equal protection clause based

on the shooting of their father, and if

that claim can survive a motion to

dismiss for failure to state a claim

according to applicable equal protection

law, a question we do not each here, see

supra note , then Giles

would control and the court could

exercise jurisdiction over the

children’s equal protection claim for

equitable relief.

Judge Alarcon’s concern that the

preceding discussion “appears to offer

advice to the plaintiffs to assist them

upon remand in curing the deficiencies

in their pleadings," post, at

, is misplaced. Our discussion

of Supreme Court and Ninth Circuit case

law concerning the pleading requirements

for establishing federal court jurisdic-

tion over claims for equitable relief is

intended and indeed is necessary to

explain what constitutes adequate

allegations as a matter of law in order

to justify our conclusion that the

children’s allegations in this

particular case are legally deficient.

B-64

REMAINING CONSTITUTIONAL CLAIMS

The plaintiffs also alleged violations

of their First, Fifth, and Eighth

Amendment rights. Because these rights

are all substantive in nature, Parratt’s

focus on post-deprivation remedies is

inapposite. However, these claims were

all properly dismissed because the

plaintiffs fail to state a claim for

relief with respect to these rights.

Except insofar as the First Amendment

right to intimate association is

relevant to the children’s ability to

assert a substantive due process claim,

ante at , the complaint

alleges no action of the officers or the

city defendants that could conceivably

implicate First Amendment concerns. The

plaintiffs do not allege that the

B-65

officers’ action or the City’s policy

was designed to or had the effect of

interfering with the decedent’s or the

children’s ability to exercise their

rights of free speech or association.

Because the Fifth Amendment claim must

rest either on that Amendment’s due

process clause or its implicit equal

protection clause, any Fifth Amendment

claim is merely duplicative of the

Fourteenth Amendment claims. The Eighth

Amendment protects only those who have

been convicted of a crime, see Bell v.

Wolfish, 441 U.S. 520, 535 n.16 (1979),

and therefore none of the plaintiffs can

claim its protection here.29/

20/The district court did not treat

separately the plaintiffs’ claim that

the defendants violated 42 U.S.C. § 1981

by denying them "the full and equal

benefit of all laws and proceedings for

the security of persons .. . as is

(continued...)

B-66

Vil

CONCLUSION

We hold that Mr. Smith’s estate has

properly stated a section 1983 claim for

damages against all defendants for

violations of his Fourth Amendment

rights, against all defendants for

violations of his Fourteenth Amendment

substantive due process rights, and

against all defendants for violations of

his Fourteenth Amendment equal protec-

tion rights. We also hold that

Mr. Smith’s chiidren have stated a

section 1983 claim for damages against

20/(...continued)

enjoyed by white citizens ...."

Because Parratt places limitations only

on procedural due process actions under

section 1983, Parratt does not justify

dismissal of the section 1981 claim.

Because the issue was not briefed on

appeal, we do not address the question

whether the plaintiffs state cause of

action under section 1981.

B-67

—

all defendants for violations of their

substantive due process rights and a

cause of action for injunctive relief

but not damages against all defendants

for violations of their Fourteenth

Amendment equal protection rights. The

district court’s dismissal of the

plaintiffs’ action is therefore

reversed.

REVERSED AND REMANDED.

ALARCON, Circuit Judge, concurring and

dissenting:

I concur in the judgment, and in Parts

EL, 43, 2aey BOs Vee Tees Oe Vases 2

dissent from that portion of Part V

which appears to offer advice to the

plaintiffs to assist them upon remand in

B-68

BSD EE ROE NEG SEE SS Ee

atin gt AIS

curing the deficiencies in their

pleading. These suggestions are unneces-

sary to the opinion. They will also

present clearly avoidable problems for

the district court, and this court, in

the event of a further appeal, in

distinguishing the law of this case from

gratuitous obiter dictum.

APPENDIX C

No. 82-5896

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, as )

Administratrix of the Estate of)

Rufus A. Smith, Sr., deceased, )

as guardian ad litem for the )

minor children of the deceased, )

and individually; RUFUS ANTHONY)

SMITH, JR., individually; )

MARCUS SMITH, minor; NETRA )

SMITH, a minor; ANTHONY SMITH, )

a minor; JARREN SMITH, a minor;)

SHERRI SMITH, a minor;

ARKILLIUS SMITH, a minor; and

TASHIEKA SMITH, a minor,

Plaintiffs/Appellants,

CITY OF FONTANA, a municipal

corporation, ROBERT MEJIA,

LARRY SMITH, NATHAN SIMON,

CHARLES A. KOEHLER, BEN

)

vs. )

)

ABERNATHY, BILL FREEMAN, DONALD)

F. DAY, WILLIAM KRAGNESS, JACK

RATELLE, JOHN M. RAGER, and

KATHY WILSON,

)

Defendants/Appellees. )

)

RECEIVED OFFICE OF THE CLERK

U.S. COURT OF APPEALS

1987 JANUARY 20 PM 4:21

Docketed

Date Initial

APPEAL FROM THE UNITED STATES

DISTRICT COURT, CENTRAL DISTRICT

OF CALIFORNIA

HONORABLE WILLIAM P. GRAY,

JUDGE PRESIDING

PETITION FOR REHEARING EN BANC

COTKIN, COLLINS &

FRANSCELL

BY: BRADLEY C. WITHERS &

PAUL N. PAQUETTE

550 South Hill Street,

Ste.1300 Los Angeles, CA

90013

(213) 627-2696

Attorneys for Petitioners/

Appellees CITY OF FONTANA,

et al.

TOPICAL INDEX

PAGE

TABLE OF AUTHORITIES ...... . 4

INTRODUCTION . «© «© «© ee: e+ © © we eo 6

GROUNDS FOR REHEARING ...... . 8

III

THE COURT OVERLOOKED MATERIAL

LEGAL PRINCIPLES IN

DETERMINING THE ADEQUACY

OF THE CHILDREN’S

EQUAL PROTECTION CLAIMS . . 8

THE COURT’S RULING WITH

RESPECT TO THE SUBSTANTIVE

DUE PROCESS CLAIMS OF THE

CHILDREN IS OVERLY

BROAD AND UNWARRANTED ... 22

CRG EON 2 6 te lt ltl tll tl Ce

TABLE OF AUTHORITIES

PAGE

Ashcroft vs. Mattis 431 U.S.

171, 32 ke @@. 2G 219,

97 @.C.i Aiee Chere s 6 6 14

Baker vs. Carr, 369 U.S. 186,

204, 7 L. Ed. 2d 663,

62 &.C. GOL €i9G2Z) «© « ew we ow 11

Citv of Los Angeles vs. Lyons, 461 U.S.

95, 75 L. Ed. 24

S75, 105 B.6: 49003) « « 2 17-

City of Oklahoma City vs. Tuttle, 471

U.S. , 8 Le. Ea. 24

791, 105 $.C. [29en) «© « « 22

Flast vs. Cohen, 392 U.S. 83

94 - 101, 20 L. Ed. 2d

947, 88 S.C. 1942 (1968) ... . 10

Golden vs. Zwickler, 394 U.S. 103,

19 - 110, 22 L. Ed. 2d 113,

So @cGs- Bees 2.6) 4 6 ee 4 ew ZAp ao

Harrod vs. Pacific Southwest Airlines,

Inc,., 118 Cal. Rep. 34 155, i73 Cal.

Rptr. 68 ( ne er a en ee en ae ee

Kelson vs. City of Springfield, 767

F.2d 651 (9th Circ. 1985) ..... 26

Lassiter vs. Department of Social

Services,452 U.S. 18 (1981) .... . 26

GSR AOE lit a RE Cali tie iE SARE PIAL YORI DARE AAAS NLR LS RARE DURE Tce a Cg aR aR ea

Monell vs. New York City Department of

Social Services, 436 U.S. 658, 56 L.

EG. 24 Gil, 98 &.C. 2018 . . « « 21

Morrison vs. Jones, 607 F. 2d 1269

fe ee Es 5 lk es ks fe

O’Shea vs. Littleton, 414 U.S. 488,

38 L. Ed. 2d 674,

94 S.C. 669 (1974) . ~. «© «© « « « 12,16

Pierce vs. Society of Sisters,

268 U.S. paw tewanws &« + &s ee 8 26

Rizzo vs. Goode, 423 U.S. 362, 46

L. Ed. 2d 561, 96 S.C.

oe Lae sa se ee ek ee 25,26

Santosky vs. Kramer, 455 U.S.

7a nee oe Se wk 26

Strandberg vs. City of Helena, 791

F. 2d 744 (9th Circ. 1986) ... 25,26

Warth vs. Seldin, 422 U.S. 490,

45 L. Ed. 2a

243m 93 S.C. 2397 (1975) . « 2 6 21

82-5896

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, et al.,

Plaintiffs/Appellants,

vs.

CITY OF FONTANA, et al.,

Defendants/Appellees.

INTRODUCTION

Appellees CITY OF FONTANA, et

al., respectfully petition this court

for a rehearing of this appeal en banc.

The opinion in favor of appellants is

erroneous on several grounds.

ey Sete eer

baatiry b aakidcts AS

First, it is respectfully

submitted that the court, in

determining the adequacy of appellants’

equal protection claims, should have

performed the requisite legal analysis

in order to determine whether said

allegations presented an actual case or

controversy under Article 3 of the

United States Constitution. Absent this

analysis, the court was unable to

properly make this determination.

Second, the court, in

determining the adequacy of the

children’s substantive due process

claims based upon a deprivation of

purely companionship and associational

interests, erred in not limiting its

holding to those instances in which the

alleged unconstitutional conduct

deprived the decedent-parent of his or

her life.

As will be demonstrated in the

following points and authorities, these

crucial errors deprived the defendants

of a fair hearing. A rehearing is thus

necessary in order to avoid opening the

floodgates to spurious and unfounded

civil rights claims in the future.

As noted by the court, the

equal protection challenge asserted on

behalf of the children focuses not on

the shooting incident itself, but

rather, on the possibility that similar

race-based incidents will occur in the

future. This assertion is premised on

C-8

their allegation that officers MEJIA and

SMITH exhibit a propensity to employ

excessive force against black residents

in the future, and that the City’s

supervisory officials sanction the

encouragement of such a practice which

threatens the security of all black

people within the jurisdiction of the

Fontana Police Department. Based

thereon, the children seek injunctive

relief against the officers and a

declaratory judgment that the City’s

discriminatory policy is

unconstitutional.

On Page 19 of its opinion, this

court held that the above allegations

are sufficient to assert a valid cause

of action under the equal protection

Clause stating that:

"The question of whether a

litigant has a cause of action

C-9

is analytically distinct and

prior to the question of what

relief, if any, a litigant may

be entitled to receive." (See,

Footnote 14.)

The court reaches this conclusion

without performing the required

threshold legal analysis and cites no

authority whatsoever in support of this

position.

On the contrary those who seek

to invoke the jurisdiction of the

federal courts must satisfy the

threshold requirement imposed by Article

3 of the Constitution, by alleging an

actual case or controversy. Flast vs.

Cohen 392 U.S. 83, 94 = 101, 20 L. Ed.

2d 947, 88 S.C. 1942 (1968). In order

to do so, a plaintiff must demonstrate a

personal stake in the outcome in order

to assure that concrete adverseness

Shah SEE Re!

which sharpens the presentation of

issues necessary for the proper

resolution of constitutional questions.

Baker vs. Carr, 369 U.S. 186, 204, 7 L.

Ed. 2d 663, 82 S.C. 691 (1962). Mere

allegations of an abstract injury are

insufficient. The plaintiff must show

that he either has sustained or is

immediately in danger of sustaining some

direct injury as a result of the

challenged official conduct and the

injury or threat of injury must be both

real and immediate not conjectural or

hypothetical. Golden vs. Zwickler, 394

U.S. 103, 19 - 130, 22 Le. Ed. 24 113, 89

S.C. 956.

Thus, contrary to the court’s

opinion, the question or whether a valid

cause of action has been stated is not

separate from, but is instead integral

C-i2

to, the question of whether, if the

facts alleged in the complaint are

proved, the children would necessarily

be entitled to injunctive or declaratory

relief.

In, O’Shea vs. Littleton, 414

U.S. 488, 38 L. Ed. 2d 674, 94 S.C. 669

(1974), the United States Supreme Court

dealt with a case brought by a class of

plaintiffs claiming that they had been

subjected to discriminatory enforcement

of the criminal law. Specifically, they

alleged that a county magistrate and a

judge habitually engaged in

discriminatory conduct such as

sentencing members of plaintiff’s class

more harshly than other defendants. The

court dismissed these claims for failure

of th complaint to allege a case or

controversy. dad. at 493. In so doing,

C-12

;

thie: 2a 2AM BAC

the court noted that although it was

claimed that particular members of

plaintiff’s class had actually suffered

from the alleged unconstitutional

practices, past exposure to illegal

conduct does not in and of itself show a

present case or controversy regarding

injunctive relief if unaccompanied by

any continuing present adverse effects.

It was further observed that

the "case or controversy" considerations

obviouslv shade into those determining

whether the complaint states a sound

basis for equitable relief. Id. at 499.

(Emphasis supplied.)

The Supreme Court reached the

same conclusion in Golden vs. Zwickler,

394 U.S. 103, 22 L. Ed. 2d 113, 89 S.C.

956 (1969). Therein, Zwickler sought a

declaratory judgment that a New York

C-13

statute prohibiting anonymous handbills

directly pertaining to election

campaigns was unconstitutional.

Although Zwickler had once been

convicted under the statute, his sole

concern related to a congressman who had

left the House of Representatives for a

place on the Supreme Court of New York

and who would not likely be a candidate

again. A unanimous court held that

because it was most unlikely that

Zwickler would again be subject to the

statute, no case or controversy of

sufficient immediacy and reality was

present to allow a declaratory judgment.

Id. at 109.

Moreover, in those cases

involving allegations of police

misconduct, the court has reached the

same result. In Ashcroft vs. Mattis,

C-14

‘ ’

‘wes

eh)

BRS

s >

ERAS EEN Berne D

BRAS

Beas ots

b>)

431 U.S. 171, 52 L. Ed. 24 219, 97 S.C.

1739 (1977), the father of a boy who had

been killed by the police sought damages

and a declaration that the Missouri

statute which authorized police officers

to use deadly force in apprehending a

person who committed a felony was

unconstitutional. The plaintiff alleged

that he had another son who "if ever

arrested or brought under an attempt at

arrest on suspicion of a felony, might

flee or give the appearance of fleeing

and would therefore be in danger of

being killed by these defendants or

other police officers . .." Id. at 172.

The court ruled that such speculation is

insufficient to establish the existence

of a present live controversy.

Indeed, directly on point is

Rizzo vs. Goode, 423 U.S. 362, 46 L. Ed.

C-i5

2d 561, 96 S.C. 598 (1976), a case in

which the plaintiffs allege widespread

illegal and unconstitutional police

conduct aimed at minority citizens and

against city residents in general. In

finding these allegations insufficient,

the court reiterated its holding in

O’Shea that past wrongs do not in

themselves amount to that real and

immediate threat of injury necessary to

make out a case or controversy. It was

further noted that the claim of injury

rested upon "what one or a small,

unnamed minority of policemen might do

to them in the future because of that

unknown policeman’s perception of

departmental procedures." Id. at 372.

The court also! held that plaintiff’s

showing at trial of a relatively few

instances of violations by individual

C-16

Pacts fost

police officers, without any showing of

a deliberate policy on behalf of the

named defendants, did not provide a

basis for equitable relief.

In the instant case, of course,

plaintiffs do not even allege there have

been other wrongful shootings, and

merely allege a "propensity" on the part

of the involved officers.

In fact, even had the minor

plaintiffs alleged similar instances of

unconstitutional conduct, those

allegations would be insufficient upon

which to predicate their equal

protection claims. In City of Los

Angeles vs. Lyons, 461 U.S. 95, 75 L.

Ed. 2d 675, 103 S.C. 1660 (1983),

plaintiff sought a preliminary and

permanent injunction against the City

barring the use of allegedly

C-17

unconstitutional bar arm control holds.

The plaintiff’s first amended complaint

alleged that ten chokehold related

deaths had occurred. The Supreme Court

dismissed these claims holding that no

extension of O’Shea and Rizzo was

necessary to hold that respondent Lyons

had failed to demonstrate a case or

controversy that would justify the

equitable relief sought.

During the course of its

opinion, the Lyons court engaged in a

lengthy analysis of the case or

controversy requirements under Article 3

of the Constitution. In this

connection, it was noted that Lyons,

standing to seek the injunction

requested depended on whether he was

likely to suffer future injury from the

use of the chokehold by police officers.

C-18

= 4

fest

¥ a”

fae

Further, while Lyons may have been

illegally choked on one previous

occasion, thus giving him standing to

claim damages against the individual

officers and perhaps the City, that fact

alone did nothing to establish a real

and immediate threat that he would again

be stopped for a traffic violation, or

for any other offense, by an officer or

officer who would illegally choke him

into unconsciousness without any

provocation or resistance on his part.

Id. at 105.

The majority in Lyons supra,

went on to state that in order to

establish an actual controversy in that

case, plaintiff would have had not only

to allege that he would have had another

encounter with the police, but also,

would have had to make the incredible

c-19

assertion either (1) that all police

officers in Los Angeles always choke any

citizen with whom they happen to have an

encounter, whether for the purpose of

arrest, issuing a citation, or for

questioning, or, (2) that the City

ordered or authorized police officers to

act in such manner.

Further, even assuming that

Lyons would again be stopped for a

traffic or other violation in the

reasonably near future, it was untenable

to assert that strangleholds are applied

by the Los Angeles Police to every

citizen who is stopped or arrested,

regardless of the conduct of the person

stopped. The court could not agree that

the odds of both contingencies occurring

were sufficient to make out a federal

case for equitable relief. Id. at 108.

C-20

SPs shape ie eis Aik Peres Caan anaes

z: |

Thus, Lyons was no more

entitled to an injunction than any other

citizen of Los Angeles and a federal

court may not entertain a claim by any

or all citizens who no more than assert

that certain practices of law

enforcement officers are

unconstitutional. Id. at 111 (citing,

Warth vs. Seldin, 422 U.S. 490, 45 L.

Ed. 2d 343, 93 S.C. 2197 [1975]}).

Finally, as noted above,

plaintiff’s equal protection claims do

not involve the allegation that similar

shooting incidents had occurred in the

past. A single isolated incident of the

use of excessive force by a police

officer is insufficient to establish an

official policy or practice of a

municipality as required by the decision

in Monell vs. New York Citv Department

C-21

of Social Services, 436 U.S. 658, 56 L.

Ed. 2d 611, 98 S.C. 2018; City of

Oklahoma City vs. Tuttle, 471 U.S. P

85 L. Ed. 2d 791, 105 S.C. (1985).

Petitioners respectfully submit

that it was incumbent upon the court to

perform the above legal analysis when

construing the children’s equal

protection claims, and accordingly to

have dismissed the claims as

insufficient to state a cause of action.

At Page 17 of its opinion, the

court holds that the children’s

allegations that they were wrongfully

deprived of support or loss of society

and companionship of a parent states a

C-22

Tisicssccacicintenn ciciisaeecseniehieaeacuesiieaiiuemmuaalils

Ine Ah Rita ead & 0a eet ela g

ered Se

Reeth Valk

valid cause of action for deprivation of

their substantive due process rights.

This holding is apparently not limited

to those instances in which the alleged

unconstitutional conduct itself resulted

in the death of the parent decedent. As

such, the ruling is overly broad and

will serve to open the floodgates to a

multitude of civil rights claims brought

by claimants whose family members have

sustained nothing more than minor

transitory injuries (either physical or

psychological) as a result of the

alleged unconstitutional conduct, thus

depriving them, albeit temporarily, of

the companionship and society thereof.

If not properly limited, this ruling

will have the effect of encouraging

spurious claims and endless litigation

by numerous claimants as a result of but

C-23

one allegedly unconstitutional

occurrence.

At the outset, the opinion

points out that the Supreme Court has

not yet. addressed the question of

whether and when the government’s act of

taking the life of one family member

deprives other family members of a

cognizable liberty interest in the

continued association with the decedent.

Defendants acknowledge this to be the

state of the law and believe that

the issue is ripe for consideration.

Nonetheless, the opinion cites several

9th Circuit cases holding that a parent

may challenge under Section 1983 a

states severance of a parent-child

relationship as interfering with their

substantive liberty interests in the

companionship and society of their

C-24

children. Morrison vs. Jones, 607 F. 2d

1269 (9th Circ. 1979); Kelson vs. Citv

of Springfield, 767 F. 2d 651 (9th Circ.

1985); Strandberg vs. City of Helena,

791 F. 2d 744 (9th Circ. 1986). The

court further acknowledges that in those

cases involving the parent-child, as

opposed to the child-parent

relationships, a custodial, as well as a

companionship interest is usually at

stake, but finds that this distinction

does not justify constitutional

protection for one but not the other.

(Opinion, Page 15.) The distinction the

court fails to make, however, is that in

each of the cases relied upon wherein

the alleged unconstitutional conduct

resulted in something less than the

death of the close family member, the

alleged deprivation was either that of

C-25

denial of substantive due process

rights, or one that implicated the

custodial interests of the parents.

Morrison vs. Jones, 607 F. 2d 1269 (9th

Circ. 1979), supra; Kelson vs. City of

Springfield. 767 F. 2d 651 (9th Circ.

1985); Santosky vs. Kramer, 455 U.S. 745

(1982); Lassiter vs. Department of

Social Services, 452 U.S. 18 (1981);

Pierce vs. Societv of Sisters, 268 U.S.

510 (1925).

Indeed, Strandberg vs. City of

Helena, 791 F. 2d 744 (9th Circ. 1986),

is the lone 9th Circuit case relied upon

for the proposition that a parent may

bring an action for violation of

substantive due process rights based

upon the deprivation of companionship

and society of their son when no

custodial interest was implicated.

C-26

However, that case also involved an

instance in which the alleged

unconstitutional conduct resulted in the

death of the child. Petitioners

recognize that in terms of precedential

value the instant opinion is limited to

the facts of the case. However, they

express grave concern that the opinion

is overly broad and contains unwarranted

dictum, the net result of which will be

a deluge of spurious and unfounded civil

rights actions.

III CONCLUSION

For the reasons stated herein,

petitioners CITY OF FONTANA, et al.

respectfully request that a rehearing en

banc be granted pursuant to Rules 35 and

40 and that the order be modified as

addressed herein.

Respectfully submitted,

COTKIN, COLLINS &

FRANSCELL

BY BRADLEY C. WITHERS &

PAUL N. PAQUETTE

Attorneys for Petitioners &

Appellees CITY OF FONTANA, et al.

Attorneys for Petitioners &

Appeliees CITY OF FONTANA, et al.

APPENDIX D

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, as )

Administratrix of the Estate of)

RUFUS A. SMITH, SR., Deceased, )

as Guardian Ad Litem for the )

minor children of the Deceased, )

and individually; and MARCUS

SMITH, a minor; NETRA SMITH, a

minor; ANTHONY SMITH, a minor;

JARREN SMITH, a minor; SHERRI

SMITH, a minor; ARKILLIUS

SMITH, a minor; and TASHIEKA

SMITH, a minor, RUFUS ANTHONY

SMITH, JR., individually,

Plaintiffs-Appellants,

Vv.

THE CITY OF FONTANA, a

municipal corporation; ROBERT

MEJIA; LARRY SMITH; NATHAN A.

)

SIMON; CHARLES A. KOEHLER; BEN )

ABERNATHY; BILL FREEMAN; DONALD)

F. DAY, WILLIAM FRAGNESS; JACK )

RATELLE; JOHN M. RAGER; and )

KATHY WILSON, )

)

Defendants~-Appellees.

FILED

January 6, 1987

Cathy A. Catterson, Clerk

U.S. Court of Appeals

No. 82-5896

D.C. No. CV 82-3262-WPG

OPINION

Appeal from the United States

District Court for the Central

District of California

William P. Gray, District Judge,

Presiding

Submitted July 7, 1983*

Pasadena, California

Resubmitted May 27, 1986

*The panel unanimously finds this case

appropriate for submission and

disposition without oral argument

pursuant to Ninth Circuit Rule 3(f) and

Fed.R.App. 34(a).

Before: TANG**, ALARCON and NORRIS,

Circuit Judges

NORRIS, Circuit Judge:

**Judge Tang was selected to sit on this

panel following the death of the

Honorable William G. East, Senior United

States District Judge for the District

of Oregon, originally sitting by

designation.

Plaintiffs filed this civil

rights action under 42 U.S.C. § 1983

(1982) and other provisions of the Civil

Rights Act The district court dismissed

their complaint for failure to state a

claim on the ground that relief under

section 1983 was barred Parratt v.

Tavlor, 451 U.S. 527 (1981), and

Rutledge v. Arizona Bd of Regents, 660

F.2d 1345 (9th Cir. 1981), aff’d on

other grounds sub nom. ush v.

Rutledge, 460 U.S. 719 (1983). We

reverse on the basis of recent Supreme

Court and Ninth Circuit authority

holding that Parratt and its progeny are

inapplicable civil rights actions

asserting substantive as opposed to

purely procedural due process

violations.2/

FACTS AND PROCEDURAL HISTORY

According to the plaintiffs’

complaint, City of Fontana police

officers Robert Mejia and Larry Smith

responded to a call concerning a

domestic quarrel at the apartment of

Rufus A. Smith, Sr. on May 27, 1982.

1/We temporarily vacated submission of

the plaintiffs’ appeal in order to await

the decision of the Supreme Court in

Daniels v. Williams, i106 S. Ct. 662

(19861, and the decisions of an en banc

panel of this court in Piatt v.

MacDougall, 773 F.2d 1032 (9th Cir.

1985) (en banc), Bretz v. Kelman, 773

F.2d 1026 (9th Cir. 1985) (en banc), and

Haygood v. Younger, 769 F.2d 1350 (9th

Cir. 1985) (en banc), cert. denied sub

nke v ood, 106 S.Ct. 3333

(1986) .

Encountering Mr. Smith in his parking

lot, the officers asked him to place his

hands on his head and detain him in

order to discuss the alleged incident.

As Mr. Smith attempted to comply,

Officer Smith without provocation

clenched him from behind in a chokehold

and began to drag him backwards. While

Mr. Smith was thus being held, Officer

Mejia without provocation began to knee

him in the groin and strike him in the

face. Though Mr. Smith was unarmed and

offered only instinctive resistance

against the blows to his groin and face,

Officer Smith drew his duty revolver and

shot Mr. Smith in the back. Mr. Smith

died approximately one and a half hours

later during emergency wreney. Mr.

Smith was a black man.

Plaintiffs brought suit in

federal district court under 42 U.S.C.

§19832/ against officers Mejia and

Smith, the City of Fontana, and various

city officials3/, claiming that the

2/42 U.S.C. § 1983 provides in pertinent

part:

Every person who, under color

of any statute, ordinance, regulation,

custom, or usage, of any State...

subjects, or causes to be subjected, any

citizen o the United States .. . to the

deprivation of any rights, privileges,

or immunities secured by the

Constitution and laws, shall be liable

to the party injured in an action at

law, suit in equity, or other proper

proceeding for redress.

3/These city officials include the

Mayor, Mayor Pro-Tem, Chief of Police,

City Manager, City Attorney, City

Personnel Director, and members of the

City Council. The complaint alleges

that they all are responsible either for

developing and enforcing adequate

standards for the hiring, training, and

supervising of police officers or for

rendering legal advice to other

officials charged with such supervision.

defendants’ conduct violated the First,

Fourth, Fifth, and Eighth Amendments

and both the due process and equal

protection clauses of the Fourteenth

Amendment. Plaintiff Sonja Smith, suing

in her capacity as administratrix of the

decedent’s estate, seeks to vindicate

Mr. Smith’s personal civil rights. She

and the other plaintiffs also sue in

their capacities as adult or minor

children of Mr. Smith, seeking to

vindicate their own personal rights.

Relying on the then

recently-decided Parratt v. Taylor and _

Rutledge v. Arizona Bd. of Regents, the

district court dismissed the action in

its entirety for failure to state a

claim on the ground that California’s

post-deprivation remedies for

violations of state tort law were

D-8

adequate to protect the plaintiffs from

suffering any cognizable constitutional

injury .4/

LIMITATIONS ON PARRATT AND ITS PROGENY

In Parratt v. Taylor, the

Supreme Court held that when a state

actor negligently deprived a prisoner of

a minor property interest through a

"random and unauthorized" act, the

state’s provision of an adequate

4/The plaintiffs also asserted claims

for relief under 42 U.S.C. §§ 1981,

1985(2) and 1985(3) and joined several

pendent state claims. The district

court treated separately the section

1985 claims, holding that based on the

facts alleged in the complaint the

plaintiffs "cannot state a cause of

action with respect to conspiracy." The

plaintiffs apparently do not appeal this

part of the district court’s ruling, and

hence we do not review it. The district

court dismissed the pendent state claims

as well.

post-deprivation remedy satisfied the

constitutional requisite of procedural

due process. 451 U.S. at 541-44. The

district court apparently understood

Parratt to preclude any section 1983

action based on an official’s "random

and unauthorized" deprivation of a

constitutional right when a state

provides adequate post-deprivation

remedies. However, Parratt and its

progeny merely determine when a state’s

post deprivation remedies are adequate

to protect a victim’s procedural due

process rights. The Parratt line of

cases does not focus on the relevance of

procedural protections to alleged

violations of substantive constitutional

rights. As Justice Blackmun noted in

his concurrence in Parratt "there are

certain governmental actions that, even

D-10

if undertaken with a full panoply of

procedural protection, are, in and of

themselves, antithetical to fundamenta

notions of due process." 451 U.S. at

545. Such actions violate the

substantive protections of the

Constitution and lie outside the scope

of Parratt because the constitutional

violation is complete at the moment the

action or deprivation occurs, rather

than at the time the state fails to

provide requisite procedural safeguards

surrounding the action. Hence, Parratt

is inapplicable to alleged violations of

one of the substantive provisions of the

Bill of Rights, such as the Fourth

Amendment. See Robins v. Harum, 773

F.2d 1004, 1009 (9th Cir. 1985)

(Parratt’s focus on post-deprivation

remedies simply "is not applicable to a

D-11

claim, such as the instant excessive use

of force claim, brought under the Fourth

Amendment"); see also Daniels v.

Williams, 106 S. Ct 662, 678 (1986)

(separate opinion of Stevens, J.,

concurring in the judgment) ("[W]jhen the

Fourth Amendment is violated... the

provision of an independent federal

remedy under section 1983 is necessary

to satisfy the purpose of the

statute."™).

In addition, though the

Fourteenth Amendment speaks in terms of

"due process," the Supreme Court has

consistently maintained that the due

process clause "contains a substantive

component, sometimes referred to as

‘substantive due process,’ which bars

certain arbitrary government actions

‘regardless of th fairness of the

D-12

id . 9 haa ait fi last a! ah

Fie ge Or ree ee ae Oe ep ee NS i, le he

;

procedures used to implement them.’"

Daniels , 106 S. Ct. at 678 (Stevens,

J., concurring) (citation omitted). We

have therefore repeatedly concluded that

"([b]ecause the substantive due process

is violated at the moment the harm

occurs the existence of a

post-deprivation state remedy should not

have any bearing on whether a cause of

action exists under § 1983." Rutherford

v. City of Berkeley, 780 F.2d 1444, 1447

(9th Cir. 1986). See Shah v. County of

Los Angeles. 797 F.2d 743, 746 (9tb Cir.

1986); McRorie v. Shimoda, 795 F.2d 780,

785-86 (9th Cir. 1986) Gaut v. Sunn, 792

F.2d 874, 876 (9th Cir. 1986); Mann v.

Citv of Tucson. 782 F.2d 790, 792-93

(9th Cir. 1986).

D-i3

Dismissal of the plaintiffs’

section 1983 claims was therefore

improper to the extent that the

complaint stated valid claims for relief

for violations of substantive rather

than procedural constitutional rights.2/

We address each of the constitutional

claims asserted by each of the

plaintiffs in turn, reviewing the claims

de novo. Guillory v. County of Orange,

5/ Liability under section 1983 lies

where (1) "the conduct complained of was

committed by a person acting under color

of state law; and (2) .. . this conduct

deprived a person of rights, privileges,

or immunities secured by the

Constitution or laws of the United

States." Parratt, 451 U.S. at 535.

There is no dispute here that the

alleged conduct by officers Mejia and

Smith satisfies the "under color of

state law" requirement, as they "were

clothed with the legitimacy of the

government and were purporting to act.

thereunder." Haygood, 769 F.2d at 1354.

We thus focus solely on whether the

plaintiffs have been deprived of any

constitutional rights.

D-14

731 F.2d 1379, 1381 (9th Cir. 1984). In

conducting this review we presume that

the facts alleged in the complaint are

true and construe them in the light most

favorable to the appellant. North Star

Intern. v. Arizona Corp. Comm’n, 720

F.2d 578, 580 (9th Cir. 1983).

Dismissal is improper "’unless it

appears beyond doubt that the plaintiff

can prove no set of facts in support of

his claim which would entitle him to

relief’" Franklin v. Oregon, 662 F.2d

1337, 1343 (9th Cir. 1981) (quoting

Scheuer v. Rhodes, 416 U.S. 232, 236

(1974)).

Iit

FOURTH AMENDMENT CLAIMS

The estate’s first legal theory

is that the officers’ actions and the

D-15

City’s policies violated Mr. Smith’s

Fourth Amendment rights. In Tennessee

v. Garner, the Supreme Court held that

"apprehension by the use of deadly force

is a seizure subject to the

reasonableness requirement of the Fourth

Amendment."§/ 471 U.S. 1, 7 (1985).

Where a victim of a seizure alleges that

officers unreasonably employed excessive

force under the circumstances in order

to detain or subdue her, the

"reasonableness of force should be

analyzed in light of such factors as the

requirements for the officers’ safety,

the motivation for the arrest [or

6/The Fourth Amendment, made applicable

to the states through the Fourteenth

Amendment in Wolf v. Colorado, 338 U.S.

25 (1949), states in part that the

"right of the people to be secure in

their persons . .. against unreasonable

searches and seizures, shall not be

violated ... ." U.S. Const. amend. IV.

D-16

detention], and the extent of the injury

inflicted." McKenzie v. Lamb. 738 F.2d

1005, 1011 (9th Cir. 1984). Hence, an

allegation that force used during a

wernstia’ seizure was excessive as

measured by these factors state a claim

for relief under section 1983 predicated

upon the Fourth Amendment. See Garner

471 U.S. at 9 (use of deadly force to

prevent escape constitutes an

unreasonable seizure unless the officer

has probable cause to believe that the

suspect poses a threat of serious harm

to the officer or others); Robins, 773

F.2d at 1008-10 (allegation that police

used excessive force while transporting

plaintiffs to police station after

arrest states a section 1983 claim for a

Fourth Amendment violation); MacDonald

v. Musick, 425 F.2d 373, 377 (9th Cir.)

D-17

(defendant asserting that his arrest was

unlawful, that he had a right to resist,

and that he sustained injuries as a

resuit of his resistance stated claim

under section 1983), cert. denied, 400

U.S. 852 (1970); see also Gilmere v.

Citv of Atlanta, 774 F.2d 1495, 1502

(llth Cir. 1985) (alleged beating and

killing of suspect during process of

detention stated a section 1983 claim

for Fourth Amendment violation), cert.

denied, 106 S. Ct. 1970 (1986). The

defendants candidly concede that under

this case law the complaint’s

allegations that the decedent was

"unarmed and helpless, and in way posed

a threat to the safety [of the officers

or] any other persons," Complaint at 4

30, and that the defendants’ acts were

"unwarranted, cruel, inhuman,

D-18

unjustifiable, and excessive," id. at 4

33, are sufficient to state a claim

under the Fourth Amendment. See

Appellees’ Supplemental Brief, at 2.

The estate can assert this

claim on Mr. Smith’s behalf. Under

section 1988, a section 1983 claim that

accrued before death survives the

decedent when state law authorizes a

survival actio as a "suitable remed[y] .

- » not inconsistent with the

Constitution and laws of the United

States ...." 42 U.S.C. § 1988 (1982).

See Robertson v. Wegmann. 436 U.S. 584,

588-90 (1978). Under California’s

survival statute, "no cause of action is

lost by reason of the death of any

person but may be maintained by...

his .. . administrator." Cal. Prob.

D-19

Code §573 (West Supp. 1986) .2/

Therefore, Mr. Smith’s Fourth Amendment

claim survives his death and can be

maintained by plaintiff Sonja Smith in

her capacity as administrator of his

estate. 8/

7/As an exception to this rule, survival

actions may not be brought in California

if the decedent’s death is instantaneous

with her legal injury, see Pease v.

Beech Aircraft, 38 Cal. App. 3d 450,

459-60, 113 Cal. Rptr. 416, 422-23

(1974), but the complaint here alleges

that Mr. Smith died approximately one

and one-half hours after he was shot.

8/We express no view here as to whether

the remedies authorized by California’s

survival statute, pecuniary and punitive

damages but not damages for pain and

suffering, are too limited to be

"consistent" with the Civil Rights Act’s

statutory scheme and whether federal

law, therefore, provides an independent

source of recovery for a broader array

of damages. see generally Robertson,

436 U.S. at 594 (explicitly holding

question open); Guyton v. Phillips, 532

F.Supp. 1154, 1165-67 (N.D.Cal. 1981)

(interpreting federal law as allowing

estate to recover compensation for

(continued...)

D-20

Mr. Smith’s children, suing in

their individual capacities, also assert

a claim for relief under the Fourth

Amendment. However, the Supreme Court

has held that "Fourth Amendment rights

are personal rights which . .. may not

be vicariously asserted." Alderman v.

United States, 394 U.S. 165, 174 (1969).

The children were not directly subjected

to the excessive use of state force and

8/(...continued)

decedent’s pain and suffering and for

his loss of life itself even though such

compensation is unavailable under

California’s survival statute); Bass by

Lewis v. Wallenstein, 769 F.2d 1173,

1187-90 (7th Cir. 1985) (holding

Illinois’ limited recovery under

survival and wrongful death statutes

inconsistent with federal law and

authorizing awards of damages beyond

those expressly provided); _Bell v. Citv

of Milwaukee, 746 F.2d 1205, 1235-41,

1250-53 (7th Cir. 1984) (same conclusion

with respect to Wisconsin law).

D-21

therefore cannot maintain personal

causes of action under section 1983 in

reliance on this Fourth Amendment

theory.

SUBSTANTIVE DUE PROCESS CLAIMS

As The Estate’s Substantive Due

Process Claim

The estate asserts a

section 1983 claim under the due process

clause of the Fourteenth Amendment. The

district court erred in construing this

claim as alleging only a procedural due

process violation because egregious

government conduct in the form of

excessive and brutal use of physical

force constitutes a violation of

substantive due process. See

Rutherford, 780 F.2d 1446 (allegation of

unprovoked assault and battery by police

D-22

officers states a claim for violation of

substantive due process); see also Shah,

797 F.2d at 746 ("“’intentional

unjustified, [and] unprovoked’ assault

by a prison guard on a prisoner may be a

violation of substantive due process")

(citation omitted); McRorie, 795 F.2d at

785 (allegation of intentional prison

guard brutality states cause of action

for substantive due process violation) ;

Gaut, 792 F.2d at 875 (prison beatings

which "shock the conscience" are

actionable as substantive due process

violations); Meredith v. Arizona, 523

F.2d 481, 482-84 (9th Cir. 1975)

(assault and battery by prison guard

violates the right to liberty). As with

the Fourth Amendment claim, resolving a

substantive due process clai. requires

courts to balance several factors

D=-23

focusing on the reasonableness of the

officers’ actions given the

circumstances. In Rutherford, we held

that

"in determining whether

the constitutional line

has be crossed, a court

must look to such factors

as the need for the

application of force, the

relationship between the

need and the amount of

force that was used, the

extent of the injury

inflicted, and whether

force was applied in a

good faith effort to

maintain and restore

discipline or maliciously

and sadistically for the

very purpose of causing

harm."

780 F.2d at 1446 (quoting Johnson v.

Giick, 481 F.2a@ 1028, 1033 (2d Cir.

1973)). Given its focus on these

factors, the complaint clearly alleges

that Mr. Smith’s substantive due process

rights were violated and hence the

estate pleads a valid due process claim

D-24

under section 1983.

B. The Children’s Personal

Substantive Due Process Claim

The children also plead that

the defendants violated their personal

"rights not to be deprived of the life

of their father and not to be deprived

of his love, comfort, and support. . .

." Complaint, at 4 40. We conclude

that based on this allegation the

children state a claim for violation of

their substantive due process rights.

The Supreme Court has yet to

address whether and when the

government’s act of taking the life of

one family member deprives other family

members of a cognizable liberty interest

in continued association with the

decedent. Our court, however, has held

that parents can challenge under section

D-25

1983 a state’s severance of a

parent-child relationship as interfering

with their substantive liberty interests

in the companionship and society of

their children. In Morrison v. Jones,

607 F.2d 1269 (9th Cir. 1979), cert.

denied, 445 U.S. 962 (1980), we held

that when county officials removed a

mentally ill boy from his mother’s

custody on the ground that she could not

adequately care for him, the mother

could bring a section 1983 action for

damages to vindicate her "substantive

familial rights that have long been

considered the ’basic civil rights of

man.’" Id. at 1276 (quoting Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942)).

More recently, in Kelson v. City of

Springfield, 767 F.2d 651 (9th Cir.

1985), we held that parents who alleged

D-26

4) nae

that school officials negligently

allowed their son to commit suicide

could maintain a section 1983 action to

vindicate "their fundamental parental

rights guaranteed by the Ninth Amendment

s+ « MRR. . «. their right to

association with their son guaranteed by

the First Amendment." Id. at 653. After

examining a long line of Supreme Court

cases stressing "the importance of

familial bonds" and identifying the many

times the Supreme Court has applied both

substantive and procedural due process

to protect the interests of parents "in

maintaining a relationship With their

children," id. at 654, We concluded that

"a parent has a constitutionally

protected liberty i:ziterest in the

companionship and society of his or her

child." Id. at 655.

D-27

We now hold that this

constitutional interest in familial

companionship and society logically

extends to protect children from

unwarranted state interference with

their relationships with their parents.

The companionship and nurturing

interests of parent and child in

maintaining a tight familial bond are

reciprocal, and we see no reason to

accord less constitutional value to the

child-parent relationship than we accord

to the parent-child relationship. 2/ ee:

Roberts v. United States Jaycees, 468

U.S. 609, 619-20 (1984) ("Family

9/ Indeed, if any distinction can be

drawn, one might even argue that a child

has a greater interest in the continued

life of a biological parent than vice

versa because often the father has or

can have other biological children,

whereas a child can never replace a

biological parent.

iy ee ee ee EY (Cee ee

Rds ter de a Rte 8 a

relationships, by their nature, involve

deep attachments and commitments to the

necessarily few other individuals with

whom one shares not only special

community of thoughts, experiences, and

beliefs but also distinctively personal

aspects of one’s life.").

We recognize that the Supreme

Court cases on which Morrison and Kelson

relied to define the substantive liberty

interest in a parent-child relationship

involved suits by parents of minor

children. The state’s interference with

the parent-child relationship therefore

threatened not only the parents’

interest in the companionship of their

children, but also the parents’

constitutionally-protected interest in

raising their children. See, e.g.,

Santosky v. Kramer, 455 U.S. 745 (1982)

D-29

(natural parents entitled to procedural

due process at a state-initiated

parental rights termination proceeding) ;

Lassiter v. Dep’t of Social Services,

452 U.S. 18 (1981) (parents entitled to

procedural due process prior to state

termination of parental status on

grounds of unfitness); see also Pierce

v. Society of Sisters, 268 U.S. 510,

534-35 (1925) (requirement that children

attend public school unreasonably

interferes with parents’ liberty "to

direct the upbringing and education of

children under their control").

When, as in this case, a child

claims constitutional protection for her

relationship with a parent, there is no

custodial interest implicated, but only

a companionship interest. This

distinction between the parent-child and

D-30

Pe (or — pees “a

Sy ie ins AS a] Ties , }

the child-parent relationships does not,

however, justify constitutional

protection for one but not the other.

We hold that a child’s liberty interest

in the companionship and support of a

parent is sufficiently weighty by itself

that interference with this interest may

trigger a violation of substantive due

process. Our view finds support in

Strandberg v. City of Helena, 791 F.2d

744 (9th Cir. 1986), where parents

brought a section 1983 claim against the

state for negligently allowing their son

to commit suicide in jail. The parents’

interest in directing the upbringing of

their son was not implicated because the

son was twenty-two years old and no

longer a minor; the parents therefore

"had not been deprived of any

constitutional right to parent." Id. at

D-31

748 n.1 (emphasis added). However, the

parents were able to "claim a violation

of their fourteenth amendment due

process rights in the companionship and

society of the decedent. Id. at 748.

Thus, the familial relationship, and not

the more narrow custodial interest of

the parents, gave rise to the

substantive due process action. See

also Bell, 746 F.2d at 1245 (parent can

assert personal substantive due process

Claim for death of adult child because

the "Supreme Court’s decisions protect

more than the custody dimension of the

parent-child relationship"); cf. Moore

v. City of East Cleveland, 431 U.S. 494

(1977) (extending Supreme Court

principles protectinia the parental role

in raising children to protect a broader

set of relationships within the family

D-32

i aaceeeaieiaceiiaiiiliaiaiiaaeilil

eat 2 Aiba ie haa agehdS DAL SNR LK AE wc GA

2 te aS Goad MRS AMR ren aa,

structure and invalidating under

substantive due process a zoning

ordinance preventing grandmother and

grandson from living together in certain

circumstances) .10/

Our conclusion also finds

compelling support in the legislative

history of section 1983’s precursor, the

Ku Klux Klan Act of 1871. Representative

Butler described the Act "as a remedy

for wrongs, arsons, and murders done.

This is what we offer to man whose house

10/We intimate no view as to whether the

familial rela*ionship between siblings

is sufficientiy constitutionally

protected as to allow one sibling to

assert a section 1983 action based on

the death of the other. Compare

Trujillo v. County Commissioners, 768

F.2d 1186 (10th Cir. 1985) (siblings can

bring section 1983 claims for

substantive due process violations

resulting from wrongful death), with

Bell, 746 F.2d 1205 (siblings cannot do

SO).

has been burned, as a remedy; to the

woman whose husband has been murdered,

as a remedy; to the children whose

father has been killed, as a remedy."

Cong. Globe, 42d Cong., ist. Sess. 807

(1871) (emphasis added). Indeed, the

"legislative history makes a clearer

case for recovery to the child due to

loss of support or loss of society and

companionship of a parent .

[than for) the parent’s rights [for

recovery] vis-a-vis the loss of a child.

Bell, 746 F.2d at 1244 (emphasis

added). Both case law and legislative

history thus lead us to the conclusion

that Mr. Smith’s adult and minor

children all state valid section 1983

claims for violations of their personal

oat

Ee er FI

substantive due process rights under the

Fourteenth Amendment.+1/

EQUAL PROTECTION CLAIMS

The complaint alleges that the

City had an unwritten policy authorizing

excessive force against blacks and that

pursuant to that policy officers Smith

and Mejia used excessive force to subdue

decedent Mr. Smith because he was black.

If these facts are proved, Mr. Smith was

"personally denied equal treatment

11/We recognize that at least one

circuit has held that plaintiffs must

allege an intentional interference with

a parent-child relationship to state a

claim under this substantive due process

theory. See Trujillo, 768 F.2d at 1190.

However, our circuit has not adopted

such a state of mind requirement. See

Kelson, 767 F.2d at 652 (substantive due

process claim stated where state’s

interference with parent-child

relationship result from negligence).

p35

solely because of [his] membership in a

disfavored group." Heckler v. Mathews,

465 U.S. 728, 740 (1984). Accordingly.

the estate may maintain a survival

action against all defendants for

damages suffered by Mr. Smith as a

result of the shooting incident.+2/

12/We reach this conclusion subject to

one important caveat: the complaint may

be deficient with respect to its

allegation that the City adopted an

"official policy" giving rise to

municipal liability under Monell v.

Dep’t of Social Services, 436 U.S. 658,

694 (1978). The unwritten "policy"

averred in the complaint is the "failure

of the defendants to provide training,

instruction and supervision regarding

the lawful use of an officer’s service

revolver and the use of excessive and

deadly force" and the failure to enforce

departmental regulations creating an

"atmosphere of lawlessness." Complaint,

at 44 49-50. Because the district court

did not reach the issue and the parties

did not brief it on appeal, we do not

consider whether the facts alleged in

the complaint, if proved, would

establish municipal liability under

Monell and its progeny. See generally

City of Oklahoma City v. Tuttle, 471

(continued...)

D-36

The children also assert an

equal protection challenge, focusing not

on the shooting incident itself,43/ but

12/(...continued)

U.S. 808 (1985) (raising but not

resolving the question whether a

"policy" of inadequate police training

meets the Monell standard). This issue

is appropriately left for initial

resolution by the district court upon

remand. See Kelson, 767 F.2d at 656.

We also note that the

individual City supervisory officials

are liable only if the plaintiffs

demonstrate an “affirmative link between

the occurrence of the . .. police

misconduct and the adoption of any

policy or plan by... [the officials]

-- express or otherwise -- showing their

authorization or approval of such

misconduct." Rizzo v. Goode, 423 U.S.

362, 371 (1976). Whether such a link

exists here of course depends on whether

anyone adopted a plan or policy

cognizable under Monell, and hence this

question is also appropriately left for

the district court upon remand.

13/We do not address the difficult

question whether the children could

state a claim for damages under the

(continued...)

D-37

rather on the possibility that similar

race-based incidents will occur in the

future. Specifically, the children

allege that the propensity of officers

Mejia and Smith to employ excessive

force against black residents in the

future and the City’s and supervisory

officials’ sanction and encouragement of

such a practice by all City police

officers threaten the physical security

of all black people with the

jurisdiction of the Fontana Police

Department. Fearing future injury at

the hands of the Fontana police because

of their race, the children seek

13/(...continued)

equal protection clause based on the

police shooting of their father. We do

not interpret their complaint as

pleading this claim, and they have not

raised it’in their briefs filed with

this court.

injunctive relief against officers Mejia

and Smith barring them from active

street duty and seek a declaratory

judgment that the City’s discriminatory

policy is unconstitutional. We agree

with the children that the alleged

individual propensities and

institutional practice, if proved, would

deny them the same protection against

abuse by law enforcement officers that

white residents enjoy. Therefore, the

children assert a valid cause of action

under the equal protection clause to

challenge all defendants’ ongoing

practice of discriminating against black

residents. Dismissal of this claim

under Fed. R. Civ. P. 12(b)(6) was

therefore improper.14/

14/We do not address the question

whether, if the facts alleged

(continued...)

D-39

REMAINING CONSTITUTIONAL CLAIMS

The plaintiffs also alleged

violations of their First, Fifth, and

Eighth Amendment rights. Because these

rights are all substantive in nature,

Parratt’s focus on post-deprivation

remedies is inapposite. However, these

claims were all properly dismissed

because the plaintiffs fail to state a

claim for relief with respect to these

rights. Except insofar as the First

14/(...continued)

in the complaint are proved, the

children would necessarily be

entitled to either injunctive or

declaratory relief. See Davis v.

Passman, 442 U.S. 228, 239 (1979)

("([T]he question whether a litigant has

a ‘cause of action’ is analytically

distinct and prior to the question of

what relief, if any, a litigant may be

entitled to receive.").

D-40

Amendment right to intimate association

is relevant to the children’s ability to

assert a substantive due process claim,

ante at __, the complaint alleges no

action of the officers or the city

defendants that could conceivably

implicate First Amendment concerns. The

plaintiffs do not allege that the

officers’ action or the City’s policy

was designed to or had the effect of

interfering with the decedent’s or the

children’s ability to exercise their

rights of free speech or association.

Because the Fifth Amendment claim must

rest either on that Amendment’s due

process clause or its implicit equal

protection clause, any Fifth Amendment

claim is merely duplicative of the

Fourteenth Amendment claims. The Eighth

Amendment protects only those who have

D-41

been convicted of a crime, see Bell v.

Wolfish, 441 U.S. 520, 535 n.16 (1979),

and therefore none of the plaintiffs can

claim its protection here. 15/

VII

CONCLUSION

We hold that Mr. Smith’s estate

has properly stated a section 1983 claim

for damages against all defendants for

violations of his Fourth Amendment

rights, against all defendants for

15/The district court did not treat

separately the plaintiffs’ claim that

the defendants violated 42 U.S.C. § 1981

by denying them "the full and equal

benefit of all laws and proceedings for

the security of persons ... as is

enjoyed by white citizens... ."

Because Parratt places limitations only

on procedural due process actions under

section 1983, Parratt does not justify

dismissal of the section 1981 claim.

Because the issue was not briefed on

appeal, we do not address the question

whether the plaintiffs state a cause of

action under section 1981.

D-42

violations of his Fourteenth Amendment

substantive due process rights, and

against all defendants for violations of

his Fourteenth Amendment equal

protection rights. We also hold that

Mr. Smith’s children have stated a

section 1983 claim for damage against

all defendants for violations of their

substantive due process rights and a

cause of action for injunctive relief

but not damages against all defendants

for violations of their Fourteenth

Amendment equal protection rights. The

district court’s dismissal of the

plaintiffs’ action is therefore

reversed.

REVERSED AND REMANDED.

D-43

Ema iw

APPENDIX E

No. 82-5896

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, as Administratrix

of the Estate of RUFUS A. SMITH, SR.

Deceased, as Guardian ad Jitem for

the Minor Children of the Deceased,

and Individually; RUFUS ANTHONY

SMITH, JR., Individually; and

MARCUS SMITH, a Minor; NETRA SMITH,

a Minor; ANTHONY SMITH, a Minor;

JARREN SMITH, a Minor; SHERRI SMITH,

a Minor; ARKILLIUS SMITH, a Minor;

and TASHIEKA SMITH, a Minor,

Plaintiffs-Appellants,

vs.

THE CITY OF FONTANA, a Municipal

Corporation, ROBERT MEJIA,

LARRY SMITH, NATHAN A. SIMON,

CHARLES A. KOEHLER, BEN ABERNATHY,

eee ee ee eee ee ee ee ee ee eo

BILL FREEMAN, DONALD F. DAY,

WILLIAM KRAGNESS, JACK RATELLE,

JOHN M. RAGER, and KATHY WILSON,

Defendants~-Appellees.

ee ee ee ee ee ee

FILED MAY 27, 1986

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

Appeal From the United States

District Court

Central District of California

Honorable William P. Gray,

Judge Presiding

APPELLEES’ SUPPLEMENTAL BRIEF

COTKIN, COLLINS, KOLTS &

FRANSCELL

By: Bradley C. Withers

David L. Shain

Suite 1300

550 South Hill

Street, Suite 1300

Los Angeles,

California 90013

(213) 627-2696

Attorneys for Defendants-

Appellees

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, as Administratrix

of the Estate of RUFUS A. SMITH, SR.

Deceased, as Guardian ad litem for

the Minor Children of the Deceased,

and Individually; RUFUS ANTHONY

SMITH, JR., Individually; and

MARCUS SMITH, a Minor; NETRA SMITH,

a Minor; ANTHONY SMITH, a Minor;

JARREN SMITH, a Minor; SHERRI SMITH,

a Minor; ARKILLIUS SMITH, a Minor;

and TASHIEKA SMITH, a Minor,

Plaintiffs-Appellants,

vs.

THE CITY OF FONTANA, a Municipal

Corporation, ROBERT MEJIA,

LARRY SMITH, NATHAN A. SIMON,

CHARLES A. KOEHLER, BEN ABERNATHY,

ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee”

BILL FREEMAN, DONALD F. DAY,

WILLIAM KRAGNESS, JACK RATELLE,

JOHN M. RAGER, and KATHY WILSON,

Defendants~-Appellees.

NO. 82-5896

(CENTRAL CALIFORNIA-JUDGE GRAY)

APPELLEES’ SUPPLEMENTAL BRIEF

COTKIN, COLLINS, KOLTS &

FRANSCELL

By: Bradley C. Withers

David L. Shain

550 South Hill

Street, Suite 1300

Los Angeles,

California 90013

(213) 627-2696

Attorneys for Defendants-

Appellees

TABLE OF CITED AUTHORITIES

STATEMENT OF LEGAL ISSUE ..

STATEMENT OF RELEVANT FACTS

ARGUMENT .....

Il.

III.NO EIGHTH AMENDMENT DEPRIVATION

PAGE

APPELLEES CONCEDE THAT APPELLANT

STATES A VALID FOURTH

AMENDMENT CLAIM .......

RECENT DECISIONS OF THIS CIRCUIT

EXCEED SUPREME COURT

GUIDELINES

IS PROPERLY ASSERTED ..

IV. AN ACTION UNDER THE CIVIL

RIGHTS ACT

IN NATURE

CONCLUSION

IS PERSONAL

B OF ¢ HORITIES

PAGE

Bell v. Wolfish

441 U.S. 520, 99 S.Ct. 1861,

SO Cie 847 CEO7S) oan a 23,24

Bretz v. Kelman

773 F.2a 1026

(00 Cari S985) wssscees 12,22

Daniels v. Williams

No. 84-5872

(U.S. January 21, 1986).. i2,i5

Dohaish v. Tooley

670 F.2d 934 (10th Cir., 1982);

cert denied, 459 U.S. 826,

1603 &.Ce. 60, 74 L.Ed.2d

G2 CIE iiss he xs aide wks eee 27

Estelle v. Gamble

429 U.8.. 37; 37 8.Ct. 285,

SO L.B@.2G 252 (1976) wceces 26

Haygood v. Younger

769 F.2d 1350 (9th Cir.,

2963) (GM DANG) oes ce ccesces passim

Hudson _v. Palmer

‘ae Sis... 104 8.Ct.

3194, 82 L.Ed.2d

Se EE, ac oda ea a bs

Ingraham v. Wright

430 U.S. 651, 97 S.Ct. 1401,

Si EbeBG+2G Fil (1977) ...20-

Kelson v. City of Springfield

767 F.2d 651

(90 Cie. , EORS) «2.505.

Parratt v. Taylor

451 U.S. 5327, 101

S.Ct. 1908, 68 L.Ed.2d

SAG SEa. Bese cevecenes

Piatt v. MacDougall

773 F.2d 1032 (9th Cir.,

LOGS) Cee MEN) ce ce acens

Robins v. Harum

773 F.2d 1004

ae)

Solem v. Helm

463 U.S. 277, 103 S.Ct. 3001,

7) Geen 697 £16805) «.....

Trop v. ulles

sae Gans G6, FO &.Ct. 590,

2 Gimecae 630 (1958) .......

Statutes

42 U.S.C. § 28962 ciscevsevsjecseviee BB,aR

United States Constitution

Fourth Ae 6k i as Ch Kea ee Oe é bee 13

Eighth Amend@ment ...csccssccecses 23-

Fourteenth Amendment............ passim

No. 82-5896

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, etc., et al.,

Plaintiffs-Appellants,

vs.

THE CITY OF FONTANA, etc., et al.,

Defendants-Appellees.

CERTIFICATION OF INTERESTED

PARTIES AS REQUIRED BY NINTH CIRCUIT

RULE 13(b) (3)

We, the undersigned, counsel of record

for The City of Fontana, Robert Mejia,

Larry Smith, Nathan A. Simon, Charles A.

Koehler, Ben Abernathy, Bill Freeman,

E-9

Donald F. Day, William Kragness, Jack

Ratelle, John M. Rager, and Kathy

Wilson, hereby certify that there are no

known interested parties other than

those participating in this case.

We certify and declare the foregoing to

be true and correct.

DATED: May 20, 1986, at Los Angeles,

California.

COTKIN, COLLINS, KOLTS

& FRANSCELL

By:

BRADLEY C. WITHERS

By:

DAVID L. SHAIN

Attorneys for Defendants-

Appellees

No. 82-5896

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, as Administratrix

of the Estate of RUFUS A. SMITH, SR.,

Deceased, as Guardian ad litem for

the Minor Children of the Deceased,

and Individually; RUFUS ANTHONY

SMITH, JR., Individually; and

MARCUS SMITH, a Minor; NETRA SMITH,

a Minor; ANTHONY SMITH, a Minor;

JARREN SMITH, a Minor; SHERRI SMITH,

a Minor; ARKILLIUS SMITH, a Minor;

and TASHIEKA SMITH, a Minor,

Plaintiffs-Appellants,

vs.

THE CITY OF FONTANA, a Municipal

Corporation, ROBERT MEJIA, LARRY SMITH,

NATHAN A. SIMON, CHARLES A. KOEHLER,

BEN ABERNATHY, BILL FREEMAN, DONALD F.

DAY, WILLIAM KRAGNESS, JACK RATELLE,

JOHN M. RAGER, and KATHY WILSON,

Defendants-Appellees.

STATEMENT OF LEGAL ISSUE

1. In what respect do the

holdings in Daniels v. Williams, No.

84-5872 (U.S. January 21, 1986); Haygood

v. Younger, 769 F.2d 1350 (9th Cir.

1985) (en banc); Piatt v. MacDougall,

773 F.2d 1032 (9th Cir. 1985) (en banc);

and Bretz v. Kelman, 773 F.2d 1026 (9th

Cir. 1985) (en banc) affect the

appellants’ claims under 42 U.S.C.

§1983.

STATEMENT OF RELEVANT FACTS

Appellees incorporate by

reference herein, the STATEMENT OF

RELEVANT FACTS set forth in their

Opening Brief, on file herein, as if

fully set forth.

A_VALID FOURTH AMENDMENT CLAIM

According to the clear dictates

of Robins v. Harum, 773 F.2d 1004 (9th

Cir. 1985), a Fourth Amendment claim

under 42 U.S.C. § 1983 states a cause

of action where police are alleged to

have used excessive force in the course

of an arrest.

Therefore, although not raised

by appellants, appellees concede that

the appeal should be allowed with

respect to this issue. However, this

cause of action should only be allowed

as to appellant SONJA RENEE SMITH, as

Administratrix of the Estate of RUFUS A.

SMITH, SR. See IV, infra.

E-13

Recent decisions of this Circuit

have exceeded Supreme Court guidelines

regarding Fourteenth Amendment Due

Process causes of action, brought under

42 U.S.C § 1983.

In Parratt v. Taylor, 451 U.S.

527, 101 S.Ct. 1908, 68 L.Ed.2d 420

(1981), the Supreme Court held that §

1983 liability may not be predicated

upon a government deprivation arising

from a negligent,"random and

unauthorized act". Id. at 541. Where

the questioned act does not occur as the

"result of some established state

procedure", meaningful state

post-deprivation remedies will satisfy

E-14

due process requirements. Id. at 541.

Parratt was recently overruled by

Daniels only as to its conclusion "that

mere lack of due care by a state

official may ‘deprive’ an individual of

life, liberty or property under the

Fourteenth Amendment." Daniels v.

Williams, No. 84-5872 (U.S. January 21,

1986). (Emphasis added.)

Thus, although mere negligence

does not state a claim under the

Fourteenth Amendment, it does not follow

that allegations of intentional conduct

will automatically suffice.

Hudson v. Palmer, 468 U.S. ,

104 S.Ct. 3194, 82 L.Ed.2da 393 (1984)

and other cases were cited by Daniels

for the proposition that the guarantee

of due process, historically, “has been

applied to deliberate decisions of

E-15

government officials to deprive a person

of life, liberty or property." In

Hudson, an inmate plaintiff alleged a

property deprivation after a "shakedown"

search of his prison cell. In its

decision, the Court found:

"no logical distinction

between negligent and

intentional deprivations of

property insofar as the

‘practicability’ of

affording pre-deprivation

process is concerned. The

State can no more

anticipate and control in

advance the random and

unauthorized intentional

conduct of its employees

than it can anticipate

similar negligent conduct.

Arguably, intentional acts

are even more difficult to

anticipate because one bent

on intentionally depriving

a person of his property

might well take affirmative

steps to avoid signalling

his intent."

82 L.Ed.2d at 407.

The Hudson court found the

Parratt decision to be limited to a

E-16

negligent deprivation of property;

however, Parratt’s logical underpinnings

rendered it applicable to life and

liberty denials as well. The

conclusions of Parratt did not turn on

the type and extent of deprivation.

Rather, that case focused on the

inability to provide a pre-deprivation

hearing where a negligent, "random and

unauthorized" act is concerned. The

Hudson court expanded Parratt to include

an intentional deprivation, since, in

this context, there was no logical basis

to draw a distinction among state of

mind gradations. It is similarly

illogical to limit the analysis to

allegations of property deprivation. 2/

1/In his concurring opinion in Daniels

v. Williams, supra, Justice Stevens

wrote: "’Deprivation’, it seems to me,

identifies not the actor’s state of

(continued...)

E-17

In the case at bar, toc the

extent that police officers used

excessive force in their contact with

Rufus A. Smith, Jr., said force was

unauthorized by the City of Fontana.

Appellants have not alleged the

existence of any statute, regulation or

course of practice which authorized the

use of excessive force.

Appellants argue that the

randomness of an action is irrelevant

where a deprivation of life is involved.

By this reasoning, no due process herein

could possibly be adequate, in that a

1/(...continued)

mind, but the victim’s infringement or

loss." He added: "It is true that

Parratt involved an injury to ’property’

and that Daniels’ case involved an

injury to ’liberty’, but, in both cases,

the plaintiff claimed nothing more than

a ‘procedural due process’ violation.

In both cases, a pre-deprivation hearing

was definitionally impossible."

E-18

life, once taken, can never be restored.

The irretrievability of a human

life is indisputable. Yet, is must be

said that a deprivation of liberty

frequently creates a similar loss. See

Haygood v. Younger, 769 F.2d 1350 (1985)

(An inmate was imprisoned well beyond

his actual release date. This time was

lost and could never be recovered).

Appellants herein seek money

damages, which are available under both

federal and state causes of action.

Unless appellants can allege that the

City of Fontana pursued a course of

conduct which sought to deprive persons

of their civil rights, state wrongful

death remedies will suffice.

Haygood eschewed a liberty -

property dichotomy, holding that "the

inquiry more appropriately focuses on

E-19

the gravity of the effect of government

conduct on protected interests". Id. at 4

1356. Haygood set forth a "continuum"

concept to reflect that determination,

while affirming the validity of the

Parratt “random and unauthorized"

standard. Id. at 1357.

Other recent decisions of this

Circuit have attempted to minimize the

impact of Parratt and Hudson. In Piatt

v. MacDougall, 773 F.2d 1032, 1036

(1985), this Circuit held that "(T)he

considerations underlying Parratt are

simply inapplicable to deliberate,

considered, planned, or prescribed

conduct by state officials, whether or

not such conduct is authorized."

The holding in Parratt does not

support this conclusion. Parratt drew a

clear distinction between authorized and

E-20

unauthorized conduct. Further, Hudson

reflected the Court’s view that there is

no rational basis for distinguishing

between intentional and negligent

conduct for constitutional purposes,

where such conduct is “random and

unauthorized". Piatt’s conclusion that

Hudson extended Parratt only to

"relatively minor infractions involving

random and unauthorized but intentional

conduct by state officials" is likewise

unwarranted. Piatt v. MacDougall, supra

at 1036. The Supreme Court has not

adopted the "continuum" concept

advocated by Haygood v. Younger, supra.

The reasoning enunciated in Parratt and

Hudson is equally applicable to alleged

intentional deprivations of life,

liberty or property.

Dicta in Bretz v. Kelman, 773

F.2d 1026, 1030 (1985) that the state

has an opportunity to provide a

post-deprivation remedy only where the

deprivation is of a “relatively

insignificant interest" is likewise not

supportable.

In Haygood, the Court found that

"Parratt and Hudson dealt with

relatively minor infractions of

prisoners’ interest in their personal

property and did not deal with official

assaults, batteries or other invasions

of personal liberty." Haygood v.

Younger, supra at 1356. To the

contrary, the underlying bases for the

Parratt decision suggest that its

applicability extends to all such

factual contexts.

SOVIETS LILIES

be ‘en * catiic

> a

_¥

cog

IIt

e) VATION

IS PROPERLY ASSERTED

Appellants’ reliance on Haygood

v. Younger, supra, in support of an

alleged Eighth Amendment violation is

misplaced. The Eighth Amendment

prohibits the imposition of "cruel and

unusual punishment" after the conviction

of a crime. Bell v. Wolfish, 441 U.S.

520, 535 Note 16, 99 S.Ct. 1861, 1871,

60 L.Ed.2d 447 (1979) [emphasis added].

The appellants herein allege a civil

rights deprivation during the course of

an investigative detention. Obviously,

neither trial nor conviction ensued.

The Bell Court, quoting Ingraham v.

Wright, 430 U.S. 651, 671-72, Note 40,

97 S.Ct. 1401, 51 L.Ed.2d 711 (1977),

wrote:

"...[{T]he State does not |

acquire the power to punish af

with which the Eighth :-

Amendment is concerned

until after it has secured

a formal adjudication of

guilt in accordance with

due process of law. Where

the State seeks to impose

punishment without such an

adjudication, the pertinent

constitutional guarantee is

the Due Process Clause of

the Fourteenth Amendment."

Bell v. Wolfish supra.

In Bell, prisoners in pre-trial

detention brought suit to challenge

various institutional procedures and

practices. The Court determined that

the Eighth Amendment was inapplicable to

individuals who had not been convicted. 4

A fortiori, the same results should :

apply, when, according to appellants’

E-24

brief, appellant had not even been

arrested at the time of his encounter

with police officers.

Case law cited by appellants is

inapposite. In each of the indicated

cases, the litigant asserted an Eighth

Amendment cause of action arising from a

post-conviction punishment.

In Haygood v. Younger, supra,

the appellant’s "cruel and unusual

punishment" was detention substantially

beyond the expiration of his prison

term.

In Solem v. Helm, 463 U.S. 277,

103 S.Ct. 3001, 77 L.Ed.2d 637 (1983),

the Court concluded that the Eighth

Amendment barred disproportionate

sentences, i.e., conviction for

"uttering" a "no account" check did not

justify a life sentence.

E-25

In Estelle v. Gamble, 429 U.S.

97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976),

the Court determined that a convicted

prisoner’s Eighth Amendment rights were

violated by the deliberate indifference

to his serious medical needs exhibited

by prison personnel.

In Trop v. Dulles, 356 U.S. 86,

78 S.Ct. 590, 2 L.Ed.2d 630 (1958),

appellant’s application for a passport

had been denied on the grounds that he

had been stripped of his citizenship

after a court-martial conviction for

wartime desertion. The Court determined

that denaturalization as a punishment

was barred by the Eighth Amendment.

The Eighth Amendment is directed

to and proscribes only "cruel and

unusual punishment" after a criminal

conviction. It has no applicability

MAE

herein.

AN_ ACTION UNDER THE CIVIL RIGHTS

ACT IS PERSONAL IN NATURE

The right to bring an action

under the Civil Rights Act is personal

to the allegedly deprived party and does

not accrue to an heir or relative

thereof. Dohaish v. Tooley, 670 F.2d

934 (10th Cir. 1982); cert denied, 459

U.S. 826, 103 S.Ct. 60, 74 L.Ed.2da 63 |

(1982); but see Kelson v. City of |

Springfield, 767 F.2d 651 (9th Cir. |

1985), which declined to follow Dohaish

and other cases. )

A deprivation of constitutional )

rights is inherently personal. . It is

the deceased appellant, Rufus A. Smith,

Sr., if anyone, who allegedly sustained

a deprivation herein. Mr. Smith’s

relatives and heirs may have associated

causes of action to assert which flow

from the alleged deprivation. If so,

said actions can be maintained under

California state law. However, all

constitutional claims must be litigated,

if at all, only on behalf of the Estate

of Rufus A. Smith, Sr.

E-28

tg Li aee

GOR PEREGO, 849

CONCLUSION

For all reasons stated, the

judgment of the District Court in this

action should be affirmed.

DATED: May 20C, 1986

Respectfully submitted,

COTKIN, COLLINS, KOLTS

& FRANSCELL

BY:

BRADLEY C. WITHERS

BY:

DAVID L. SHAIN

Attorneys for Defendants-

Appellees

No. 82-5896

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, etc., et al.,

Plaintiffs-Appellants,

vs.

THE CITY OF FONTANA, etc., et al.,

Defendants-Appellees.

STATEMENT OF RELATED CASES

AS REQUIRED BY NINTH CIRCUIT Se

RULE 13(b) (4) |

We, the undersigned, counsel of record

for The City of Fontana, Robert Mejia,

Larry Smith, Nathan A. Simon, Charles A.

Koehler, Ben Abernathy, Bill Freeman,

Donald F. Day, William Kragness, Jack

E-30

Ratelle, John M. Rager, and Kathy

Wilson, hereby state that other than the

cases stated within this

are no other known cases

that are deemed related.

DATED: May 20, 1986, at

California.

brief, there

in this Court

Los Angeles,

COTKIN, COLLINS, KOLTS

& FRANSCELL

By:

BRADLEY C. WITHERS

By:

DAVID L. SHAIN

Attorneys for Defendants-

Appellees

E-31

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, as Admini- )

stratrix of the Estate of RUFUS )

A. SMITH, SR., Deceased, as )

Guardian Ad Litem for the Minor )

Children of the Deceased, and

Individually; RUFUS A. SMITH,

JR., Individually; MARCUS SMITH,

a Minor; NETRA SMITH, a Minor;

ANTHONY SMITH, a Minor; JARREN

SMITH, a Minor; SHERRI SMITH,

a Minor; ARKILLIUS SMITH, a

Minor; and TASHIEKA SMITH, a

Minor,

Plaintiffs-Appellants,

THE CITY OF FONTANA, a Munici-

pal Corporation; ROBERT MEJIA;

LARRY SMITH; NATHAN A. SIMON;

CHARLES A. KOEHLER; BEN ABER-

NATHY; BILL FREEMAN; DONALD F.

DAY; WILLIAM KRAGNESS; JACK

RATELLE; JOHN M. RAGER; and

KATHY WILSON,

)

-V- )

)

Defendants-Appellees. )

)

CASE NUMBER: 82-5896

D.C. NO. CV82-3262-WPG

y=i

APPEAL FROM THE UNITED STATES

DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE WILLIAM P. GRAY,

JUDGE PRESIDING

PLAIN + Taw TS’

Ss RIEF

ANDRENA G. DANCER, ESQ.

517 N. Mountain Avenue,

Suite 223

Upland, California 91786

(714) 981-4800

CHARLES B. JOHNSON, ESQ.

353 E. Orange Grove Blvd.

Pasadena, CA. 91104

(818) 796-3438

Attorneys for Plaintiffs-

Appellants

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, et al.,

Plaintiffs-Appellants,

-y-

THE CITY OF FONTANA, et al.,

Defendants-Appellees.

ee ee ee ee ee ee ee ee ee

CASE NUMBER: 82-5896

D.C. NO. CV82-3262-WPG

CERTIFICATION OF INTERESTED PARTIES

PURSUANT TO NINTH CIRCUIT

RULE 13 (b) (3)

Counsel of record for SONJA RENEE

SMITH, as Administratrix of the Estate

of RUFUS A. SMITH, SR., Deceased, as

Guardian Ad Litem for the Minor Children

of the Deceased, and Individually; RUFUS

A. SMITH, JR., Individually; MARCUS

SMITH, a Minor; NETRA SMITH, a Minor;

Fe3

ANTHONY SMITH, a Minor; JARREN SMITH, a

Minor; SHERRI SMITH, a Minor; ARKILLIUS

SMITH, a Minor; and TASHIEKA SMITH, a ®

Minor, hereby certify that there are no

known interested parties other than :

those participating in this case.

Pasi Setar tae oe

ease or

{ ,

I certify and declare the foregoing

to be true and correct.

Dated this 25th day of February,

1986, at Upland, CA.

BY:

ANDRENA G. DANCER and

CHARLES B. JOHNSON,

Attorneys for Plaintiffs-

Appellants

TOPICAL INDEX

TABLE OF AUTHORITIES

STATEMENT OF LEGAL ISSUE

STATEMENT OF FACTS

ARGUMENT

I. ALTHOUGH THE HOLDING

IN DANIELS v. WILLIAMS

IS INAPPOSITE TO THE FACTS

OF THE INSTANT CASE,

THE COURT’S RATIONALE IS

INSTRUCTIVE IN DETERMINING

THAT THE INTENTIONAL

DEPRIVATION OF A

CONSTITUTIONALLY PROTECTED

INTEREST IS STILL ACTIONABLE

UNDER 42 U.S.C. SECTION 1983.

A. INTRODUCTION

B. THE FACTS AND RATIONALE

OF DANIELS v. WILLIAMS

II. A CLAIM FOR RELIEF UNDER

42 U.S.C. SECTION 1983 MAY BE

MAINTAINED WHERE PLAINTIFF

CAN PROVE THE VIOLATION OF A

CONSTITUTIONAL RIGHT AND

WHERE THERE HAS BEEN AN

AFFIRMATIVE ABUSE OF POWER.

III. UNDER HAYGOOD v. YOUNGER,

PLAINTIFFS-APPELLANTS

HAVE A VALID SECTION

1983 CAUSE OF ACTION IN

THAT THE COMPLAINT

ALLEGES A VIOLATION OF THE

EIGHTH AMENDMENT RIGHT TO

BE FREE FROM CRUEL

AND UNUSUAL PUNISHMENT

AND THAT DECEDENT WAS

DEPRIVED OF HIS LIFE

WITHOUT DUE PROCESS OF LAW.

A. AS IN HAYGOOD, THE

DEFENDANTS~APPELLEES

IN THE INSTANT CASE ARE

LIABLE UNDER SECTION

1983 FOR VIOLATING

DECEDENT’S EIGHTH

AMENDMENT RIGHTS.

B. THE DEFENDANTS-APPELLEES

IN THE INSTANT CASE ARE

LIABLE UNDER SECTION 1983

FOR INTENTIONALLY

DEPRIVING DECEDENT OF

HIS LIFE WITHOUT

DUE PROCESS OF LAW.

IV. THE HOLDINGS IN

PIATT v. MACDOUGALL AND

BRETZ v. KELMAN PROVIDE

REINFORCEMENT FOR THE

VALIDITY OF PLAINTIFFS-

APPELLANTS’ SECTION

1983 CLAIMS.

CONCLUSION

AR Vv

HOUSING DEV. CORP.,429 U.S.

252 (1977) ]}

BRETZ v. KELMAN, 773 F 2d

1026 (9th Cir. 1985)

DAN W (1986)

54 USLW 4090

ESTELLE v. GAMBLE, 429 U.S.

97, 105 (1976)

HAYGOOD v. YOUNGER, 769 F 2D

1350 (9th Cir. 1985)

HUDSON v. PALMER, ___U.S.

,104 S.Ct. 3194,

2 L.Ed. 2d 393 (1984)

y-7

11,25

39,41,

42,43

11,12

14,15

17,18

19,20

20,23

24,34

21,31

11,25

26,27

28,29

32,34

35,42

U.S. 422, 102 S.Ct. 1148,

68 L.Ed. 2d 265 (1982) 26,34

MONROE v. PAPE, 365 U.S. 167,

172-87, 81 S.Ct. 473, 476-484,

5 L. Ed. 2d 492 (1961) ] 28

MORRISSEY v. BREWER, 408 U.S. 471,

481-82, 92 S.Ct. 2593, 2600-01,

33 L.Ed 2d 484 (1972) 32

PARRATT v. TAYLOR, 451 U.S.

527 (1981) 12,13

14,17

19,23

26,34

PIATT v. MACDOUGALL, 773 F 2d

1032 (9th Cir. 1985) 25,36

37,41

42,43

RUT. RD

OF REGENTS, 660 F 2d 1345

(1981)

SOLEM v. HELM, 463 U.S. 277,

103 S.Ct. 3001, 77

L.Ed. 2d 637 (1983)

TROP v. DULLES, 356 U.S. 86,

101, 78 S.Ct. 590,

598, 2 L.Ed. 2d 630 (1958)

TUTES

42 U.S.C. SECTION 1983

13,14

PAGES

passim

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONJA RENEE SMITH, as Admini-

stratrix of the Estate of RUFUS

A. SMITH, SR., Deceased, as

Guardian Ad Litem for the Minor

Children of the Deceased, and

Individually; RUFUS A. SMITH,

JR., Individually; MARCUS SMITH,

a Minor; NETRA SMITH, a Minor;

ANTHONY SMITH, a Minor; JARREN

SMITH, a Minor; SHERRI SMITH,

a Minor; ARKILLIUS SMITH, a

Minor; and TASHIEKA SMITH, a

Minor,

Plaintiffs-Appellants,

-V—=—

THE CITY OF FONTANA, a Munici-

pal Corporation; ROBERT MEJIA;

LARRY SMITH; NATHAN A. SIMON;

CHARLES A. KOEHLER; BEN ABER-

NATHY; BILL FREEMAN; DONALD F.

DAY; WILLIAM KRAGNESS; JACK

PATELLE; JOHN M. RAGER; and

KATHY WILSON,

Defendants-Appellees.

ee a a a 8 ISI eae ee

CASE NUMBER: 82-5896

D.C. NO. CV82-3262-WPG

F-10

— TS’

STATEMENT OF LEGAL ISSUE

To what extent do the rulings in

DANIELS v. WILLIAMS, No. 84-5872 (U.S.

january 21, 1986); HAYGOOD v. YOUNGER,

169 F 2d 1350 (9th Cir. 1985) (en banc); |

oIATT v. MACDOUGALL, 773 F 2d 1032 (9th |

‘ir. 1985) (en banc); and BRETZ v. -

‘ELMAN, 773 F.2d 1026 (9th Cir. 1985)

en banc) have an effect on

laintiffs-Appellants’ 42 U.S.C.

ection 1983 claims?

STATEMENT OF FACTS

Plaintiffs-Appellants incorporate

erein, by reference, the Statement of

acts contained in their Opening Brief,

n file herein, as if fully set forth.

ARGUMENT

ALTHOUGH THE HOLDING IN DANIELS V.

WILLIAMS IS INAPPOSITE TO THE FACTS

OF THE INSTANT CASE, THE COURT’S

RATIONALE IS INSTRUCTIVE IN

DETERMINING THAT THE INTENTIONAL

DEPRIVATION OF A CONSTITUTIONALLY

PROTECTED INTEREST IS STILL ACTIONABLE

UNDER 42 U.S.C. SECTION 1983.

INTRODUCTION

In DANIELS v. WILLIAMS, supra, the

court held: "The Due Process Clause is

not implicated by a state official’s

negligent act causing unintended loss of

or injury to life, liberty, or property"

[DANIELS (1986) 54 USLW 4090 (emphasis

added) }.

In reaching this conclusion, the

Court clarified, and repudiated in part,

its decision in PARRATT v. TAYLOR, 451

U.S. 527 (1981), upon which the court

F=12

in RUTLEDGE v. ARIZONA BOARD OF REGENTS,

660 F 2d 1345 (1981), heavily relied in

finding that, where an adequate

postdeprivation hearing is available to

the plaintiff under state law, the due

process requirement of the Fourteenth

Amendment is satisfied. In such cases,

according to RUTLEDGE, a cause of action

under 42 U.S.C. Section 1983 will not

lie.

Expanding upon the theory expressed

in RUTLEDGE, the lower court in the

instant case found that all personal

injury actions cognizable under state

law are no longer actionable under

Section 1983 and, thus, dismissed the

Complaint herein. Plaintiffs-Appellants

appealed this decision and argued in

their Opening Brief that such was not

the result intended by either PARRATT or

Fei3

RUTLEDGE. We now see, from the recent

decision in DANIELS, that the United

States Supreme Court is in complete

agreement with the argument urged by

Plaintiffs-Appellants in the instant

appeal; i.e., that Section 1983 is not

"largely historical", as expressed by

the lower court herein (RT, 5], and that

the federal courts will still afford

relief to plaintiffs under that statute,

except in a very limited class of cases.

The DANIELS decision provides more

guidance than that offered in PARRATT

for determining which types of civil

rights claims will have continued

viability under the provisions of

Section 1983. The Court’s discussion in

DANIELS is particularly illuminating in

that, by specifically excluding certain

types of cases from the Section 1983

F-14

cause of action, the Court creates the

presumption that those cases which do

not fall within the excluded category

are still actionable.

The excluded cases are those which

involve merely negligent conduct by

state officials resulting in unintended

loss or injury, as exemplified by the

facts in DANIELS. The facts in DANIELS,

however, are highly distinguishable from

those in the instant case, and the

holding is, thus, inapposite to this

appeal.

THE FACTS AND RATIONALE OF

DANIELS v. WILLIAMS

In DANIELS, plaintiff-petitioner

was a former inmate of a city jail in

Richmond, Virginia who sued under

Section 1983, alleging that, while

incarcerated, he slipped and fell ona

¥=-15

pillow negligently left on a stairway by

one of the correctional deputies

stationed at the jail. Plaintiff

petitioner suffered injuries to his back

and ankle and claimed in his lawsuit

that he had been deprived of his liberty

interest in freedom from bodily injury.

He argued further that he had no

adequate state remedy because

defendant-respondent was entitled to the

defense of sovereign immunity in the

state tort proceeding. As such,

plaintiff-petitioner contended, the

alleged deprivation of his liberty was

without due process of law.

The defense motion for summary

judgment was granted and, on

reconsideration en banc, the Court of

Appeals for the 4th Circuit affirmed the

judgment on the basis that "negligent

F726

infliction of bodily injury, unlike the

negligent loss of property in PARRATT

does not constitute a deprivation of any

interest protected by the Due Process

Clause". The en banc Court went on to

unanimously decide that "even if a

prisoner is entitled to some remedy for

personal injuries attributable to the

negligence of state officials, PARRATT

would bar petitioner’s claim if the

State provided an adequate

postdeprivation remedy" [DANIELS supra,

at 4091 (emphasis added) ].

The U.S. Supreme Court affirmed the

decision of the 4th Circuit Court of

Appeals after granting certiorari,

"because of the inconsistent approaches

taken by lower courts in determining

when tortious conduct by state officials

rises to the level of a constitutional

Foi

tort, and the apparent lack of adequate

guidance from this Court" (Id).

It is clear from the above

language, then, that the U.S. Supreme

Court still recognizes the existence of

a "constitutional tort" and that

RUTLEDGE cannot be construed, as

interpreted by the lower court in the

instant case, as "doing away with" the

Section 1983 cause of action relative to

all personal injury claims which are

litigable in a state court proceeding.

Certain personal injury claims are still

actionable under Section 1983 and,

according to the rationale in DANIELS

the case at bench is one of them, as

will be discussed infra.

A CLAIM FOR RELIEF UNDER 42 U.S.C.

MAY BE MAINTAINED WHERE

PLAINTIFF CAN PROVE THE VIOLATION

OF A CONSTITUTIONAL RIGHT AND

WHERE THERE HAS BEEN AN

AFFIRMATIVE ABUSE OF POWER.

The U.S. Supreme Court concluded in

PARRATT, and affirmed in DANIELS, that

Section 1983 contains no state-of-mind

requirement independent of that

necessary to state a violation of the

underlying constitutional right.

According to the rationale in DANIELS,

however, state of mind is an appropriate

consideration in determining whether

deprivation of a constitutionally

protected interest has occurred. To

that end, the Court stated:

"But in any given Section 1983

suit, the plaintiff must still

prove a violation of the

underlying constitutional

right; and depending on the

right, merely negligent

conduct may not be enough to

F=-19

state a claim" [DANIELS,

supra, at 4091].

This language suggests that not

only is state of mind a relevant

consideration, but the Court may also

consider the type of right which is

alleged to have been violated in

determining whether a claim is

actionable under Section 1983. Thus,

for example, to support a claim of

racial discrimination under the Equal

Protection Clause, a showing of an

"invidious discriminatory purpose" is

required [Id., citing ARLINGTON HEIGHTS

v. METROPOLITAN HOUSING DEV. CORP., 429

U.S. 252 (1977)]. Similarly,

"deliberate indifference" to a

prisoner’s serious illness or injury is

sufficient to constitute cruel and

unusual punishment under the Eighth

Amendment [Id., citing ESTELLE v.

GAMBLE, 429 U.S. 97, 105 (1976)}.

In the instant case, the Complaint

alleges, on Page 8 at Paragraph 33,

that:

"RUFUS A. SMITH, SR., was the

victim of summary execution at

the hands of defendants MEJIA

and SMITH. The punishment

administered was grossly

disproportionate to whatever

RUFUS A. SMITH, SR.’S actions

may have been, constituted

cruel and unusual punishment,

and deprived him of his right

to due process of law under

the laws and Constituticn of

the United States, in

particular the Fourth, Eighth,

and Fourteenth Amendments

thereof. The shooting of

RUFUS A. SMITH, SR., by the

defendants MEJIA and SMITH,

was unwarranted, cruel,

inhuman, unjustifiable, and

excessive."

The Complaint further alleges on

Page 9 at Paragraph 37 that:

Defendants MEJIA and SMITH,

acted willfully, maliciously,

intentionally, oppressively,

and in reckless disregard of

F-21

sti acta aaaaaauaaaiiaaaaiaiiaiill

the possible consequences of

their conduct..." (emphasis

added).

It cannot be fairly said, then,

that Plaintiffs-Appellants herein have

alleged, even remotely, that the acts of

Defendants-Appellees were merely

negligent. Nor can it be legitimately

argued that the type of rights alleged

to have been violated by Defendants-

Appellees amount to minor interests,

which would tend to trivialize or

grossly distort the meaning and intent

of the Constitution. On the contrary,

the Complaint clearly alleges that the

decedent was deprived of his LIFE, in

violation of his right to be free from

cruel and unusual punishment, and

without due process of law. Such a

result is vastly different from the

negligent, or even intentional,

F-22

deprivation of such relatively minor

interests as property or liberty. Here,

we are talking about the deliberate and

malicious destruction of a human being,

accomplished under color of state law,

and in direct abuse of power. This is

the very type of case for which Section

1983 was originally enacted, and is

still intended to redress.

It is clear, from the Court’s

discussion in DANIELS, that it never

intended its ruling in PARRATT to reach

anything other than negligent conduct.

In fact, in rejecting the argument of

one of the petitioners in DANIELS, that

“artful litigants, undeterred by a

requirement that they plead more than

mere negligence, will often be able to

allege sufficient facts to support a

Claim of intentional deprivation", the

court stated, inter alia:

"More important, the

difference between one end of

the spectrum--negligence--and

the other--intent--is

abundantly clear... In any

event, we decline to

trivialize the Due Process

Clause in an effort to

simplify constitutional

litigation" [Id., at 4092].

Moreover, in stating that:

",..this case affords us no

occasion to consider whether

something less than

intentional conduct, such as

recklessness or ‘gross

negligence,’ is enough to

trigger the protections of the

Due Process Clause", [Id., at

tm. Si,

the Court is affirmatively articulating

the premise that intentional conduct is

enough to trigger the protections of the

Due Process Clause.

Accordingly, the holding in DANIELS

does not preclude the Plaintiffs-

Appellants herein from maintaining a

Section 1983 cause of action, in that

F-24

their case concerns the intentional

deprivation of the most important of all

constitutionally protected rights--the

right to life, without due process of

law. The lower court ruling dismissing

the Complaint, therefore, must be

reversed.

IItl

UNDER HAYGOOD v. YOUNGER, PLAINTIFFS

APPELLANTS HAVE A VALID SECTION

1983 CAUSE OF ACTION IN THAT THE

COMPLAINT ALLEGES A VIOLATION OF THE

EIGHTH AMENDMENT RIGHT TO BE FREE

FROM CRUEL AND UNUSUAL PUNISHMENT

AND THAT DECEDENT WAS DEPRIVED OF HIS

LIFE WITHOUT DUE PROCESS OF LAW.

Prior to reaching its decision in

HAYGOOD v. YOUNGER, 769 F 2d 1350

(1985), which was considered en banc

along with PIATT v. MACDOUGALL, 773 F 2d

1032 (1985), and BRETZ v. KELMAN, 773 F

2d. 1026 (1985), the U.S. Court of

Appeals for the Ninth Circuit stated:

"The law in this circuit and

elsewhere is controlled by the

Supreme Court opinions in

PARRATT v. TAYLOR (supra) ;

LOGAN v. ZIMMERMAN BRUSH CO.,

455 U.S. 422, 102 S.Ct. 1148,

68 L.Ed. 2d 265 (1982); and

HUDSON v. PALMER, ___U.S. ___,

104 S.Ct. 3194, 82 L.Ed. 2d

393 (1984). Those three cases

shed recent light upon any

analysis of claims under

Section 1983" [HAYGOOD, supra,

at 1352).

The Court went on to state that:

"In any Section 1983 action,

the first question is whether

Section 1983 is the

appropriate avenue to remedy

the alleged wrong. We reach

the issue of these defendants’

Section 1983 liability only if

we find that the two essential

elements to a Section 1983

action are present: (1) the

defendants acted under color

of law, and (2) their conduct

deprived Haygood of a

constitutional right" [Id., at

1353 and 1354, citing 42

U.S.C. Section 1983].

In keeping with its self-prescribed

formula for analyzing claims brought

under Section 1983, the Court concluded

that HAYGOOD was an appropriate Section

1983 case under two distinct theories:

(1) The defendants-appellants were

liable because the plaintiff-appellee’s

unlawful incarceration constituted cruel

and unusual punishment in violation of

the Eighth Amendment; and (2) The

defendants appellants were liable

because plaintiff-appellee had been |

deprived of his liberty without due

process of law.

}

F-27

AS _IN D FEN s-

APPE ES INSTANT E

ARE_LIABLE UNDER SECTION 1983

FOR VIO G D ‘S_ EIGHTH

AMENDMENT RIGHTS.

The Court in HAYGOOD quickly

disposed of the threshold question in

its analysis, that of whether the

Gefendants had acted under color of law.

Finding that the defendants had so acted

because they "were clothed with the

legitimacy of the government and were

purporting to act thereunder" [HAYGOOD,

supra at 1354, citing MONROE v. PAPE,

365 U.S. 167, 172-87, $1 &.Ct. 473,

476-484, 5 L. Ed. 2a 492 (1961)], the

Court proceeded to the next phase of its

analysis and determined that HAYGOOD had

been deprived of a constitutional right

because he had been imprisoned for five

years longer than he should have been

F<-28

under the state’s own sentencing laws

and, thus, was subjected to cruel and

unusual punishment.

The same result must be reached

following a similar analysis of the

facts in the instant case.

The Complaint herein alleges on

Pages 3 through 6, inclusive, at

Paragraphs 13 through 23, inclusive,

that the defendants consisted of a

governmental entity and its agents,

officers, and employees, and that they

were acting, or omitting to act,

individually and in their official

governmental capacities. As in HAYGOOD,

the Court need not be detained in

concluding that these Defendants-

Appellees acted under color of law.

The Complaint further alleges on

Pages 7 through 9, inclusive, at

F=-29

Paragraphs 29, 30, 32, and 33, that, in

the course of responding to a call

regarding a family quarrel, the

defendant police officers physically

attacked, and then shot and killed, the

decedent, who was unarmed and helpless,

offered only instinctive resistance, and

posed no threat to the safety of said

police officers.

If the above set of facts can be

proven at trial, a jury can certainly

find that the decedent herein was

subjected to cruel and unusual

punishment in violation of the Eighth

Amendment, for, "to be cruel and

unusual, punishment must be incompatible

with ‘the evolving standards of decency

that mark the progress of a maturing

society’, or must involve unnecessary or

wanton pain disproportionate to the

F=30

severity of the crime" [Id., citing TROP

Vv. , wae UWewse S86, 101, 78 S.Ct.

590, 598, 2 L.Ed. 2d 630 (1958); and

SOLEM v. HELM, 463 U.S. 277, 103 S.Ct.

3001, 77 L.Ed. 2d 637 (1983)]. An act

may also constitute cruel and unusual

punishment if it is "the result of

‘deliberate indifference’" to the

protected interest in question.

[ESTELLE v. GAMBLE, 429 U.S. 97,

104-06, 97 S.Ct. 285, 291-92, 50 L.Ed.

2a 251 (1976)}.

An unprovoked police shooting of an

unarmed individual is, without question,

incompatible with present standards of

societal decency, and demonstrates a

markedly deliberate indifference to the

sanctity of human life. Also, the pain

which decedent must have suffered during

the course of the physical attack, as

Fo3i1

well as from the shooting, was grossly

disproportionate to his "crime" of

having engaged in a family quarrel.

On the Eighth Amendment theory

alone, then, Plaintiffs-Appellants have

stated a valid Section 1983 claim if we

are to be guided by the analytical

principles of HAYGOOD v. WILLIAMS.

EFEND. S-APPE ES IN

THE INSTANT CASE ARE LIABLE

UNDER SECTION 1983 FOR

INTENTIONALLY DEPRIVING DECEDENT OF

HIS LIFE WITHOUT DUE PROCESS OF LAW.

The Court in HAYGOOD cites the

principle expressed in MORRISSEY v.

BREWER, 408 U.S. 471, 481-82, 92 S.Ct.

2593, 2600-01, 33 L.Ed 2d 484 (1972),

that "adequate, or due, process depends

upon the nature of the interest

affected", and that "the more important

F=32

the interest and the greater the effect

of its impairment, the greater the

procedural safeguards the state must

provide to satisfy due process" [Id., at

1355 and 1356].

Expanding upon that principle, the

Court goes on to conclude that:

"All denials of life, liberty

or property will fall

somewhere on a continuum

between relatively minor

effects on nonconstitutional

interests at one end, and the

loss of life at the other. On

that continuum, we recognize

that a denial of liberty will |

often have a more grave effect

upon the victim than will a

deprivation of property" [Id.,

at 1356}.

An appropriate extension of the

above premise is that deprivation of

life will, in the majority of instances,

have a more devastating effect on the

victim and the victim’s family, than

will a deprivation of either liberty or

F=-33

property, and, thus, requires the

greatest of ail procedural safeguards.

To the extent that the instant case

relies upon the theory that decedent was

intentionally deprived of his life,

under color of law, and without due

process, a valid Section 1983 claim is

stated. It is unnecessary to consider

here whether PARRATT, supra, or LOGAN,

supra, is the controlling case authority

for making this determination, as the

Court was required to do in HAYGOOD,

because the case at bench involves a

separate and distinct right, and a

separate and distinct fact situation

which HAYGOOD doesn’t reach. This

Court, therefore, must accept guidance

from the United States Supreme Court’s

Clarifying opinion in DANIELS, supra,

which bars only negligence claims from

F-34

litigation under Section 1983, as well

as follow its own reasoning expressed in

such cases as HAYGOOD, which pertain to

the comparative importance of individual

rights within the context of federal

regulation of state intervention, power,

and control.

The issue in the instant case is

far from being complicated as it relates

to its actionability under Section 1983.

Due process can never be satisfied with

respect to the intentional deprivation

of a human life under color of law,

unless there has first been the

commission of crime, a conviction of

that crime in a court of law, and a duly

imposed sentence of capital punishment.

Inasmuch as the decedent herein was not

afforded those safeguards, his estate

and his heirs are absolutely entitied to

F=-35

bring this action under Section 1983,

subject to any defenses which

Defendants~Appellees may have.

THE HOLDINGS IN PIATT V. MACDOUGALL

AND BRETZ V. KELMAN PROVIDE REINFORCEMENT

FOR THE VALIDITY OF PLAINTIFFS-APPELLANTS ’

SECTION 1983 CLAIMS.

In PIATT v. MACDOUGALL, supra, the

Court held that the State of Arizona had

not deprived PIATT of his liberty

without due process of law by forcing

him to work without pay while

incarcerated in an Arizona prison,

because the Thirteenth Amendment does

not prohibit involuntary servitude as

punishment for the commission of a

crime. To that extent, PIATT had failed

to state a cause of action under Section

1983.

The Court found that PIATT had been

deprived of his property right to

state-mandated compensation, however,

and that the deprivation occurred as the

result of the deliberate, considered,

and routine failure of the prison

director to compensate prisoners under

the applicable Arizona statute. In so

finding, the Court held that PIATT had

stated a valid claim under Section 1983

and remanded the case to the lower court

for a determination as to whether PIATT

had actually performed the work for

which he was claiming compensation.

The Court’s rationale for its

ruling in PIATT, included a

consideration of whether the

plaintiff-appellant was entitled to a

hearing on his property interest claim

before or after the alleged deprivation.

F=-37

For instruction on that issue, the Court

considered the holding in PARRATT,

Supra, that:

",...a state may satisfy the

constitutional requirements

for a hearing through process

provided as a remedy after a

deprivation has occurred, in

lieu of preventative process,

when the deprivation is the

result of random, unauthorized

and negligent conduct by state

officials, and where it is

either impracticable or

impossible for the state to

provide preventative process

because the state cannot have

foreseen the potential

deprivation" [PIATT, supra, at

1036, citing PARRATT, supra,

(emphasis added) ].

The Court interpreted this

language to mean that remedial process

is not available where the deprivation

was not random or where advance process

was practical. "The considerations

underlying PARRATT are simply

inapplicable to deliberate, planned, or

prescribed conduct by state officials,

F=36

whether or not such conduct is

authorized" [Id.].

The Court made a similar analysis

in BRETZ v. KELMAN, supra, where it

held that a valid Section 1983 claim had

been stated on

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