# Appendix — City of Fontana v. Smith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0735%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 935 ## Text — ULE OG =2 ig 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’ Bi 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APPENDIX I Order Re Dismissal of the United States District Court for the Central District of California I-1 APPENDIX A NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SONJA RENEE SMITH, as Administratrix of the Estate of RUFUS A. SMITH, SR., Deceased, as Guardian Ad Litem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. *e 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 a3 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/ I 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/ II 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. IV 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 A 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 Vv 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). w ! 53 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 el vi 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 wd 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 I II 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- 20 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 26 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 | . 2 4 4 4 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 4 4 > ; s 4 A 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, ae C-14 ‘ ’ e ay 1 ie ye Mo ‘wes ia eh) BRS s > a id id me Po Ke m = % Mt eM - # td ERAS EEN Berne D BRAS Beas ots b>) en r : ?, 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 ae = 4 3 fest ¥ a” eS a o> ee ee Ps ee i ee =f 2 = ae oe He a i oH fae 3 a 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 5 4 > 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/ I 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/ Il 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 : : : j 3 : ; 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 7 731 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 a 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. IV 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/ V 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 VI 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 el 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 ..... I. Il. III.NO EIGHTH AMENDMENT DEPRIVATION PAGE APPELLEES CONCEDE THAT APPELLANT STATES A VALID FOURTH AMENDMENT CLAIM ....... 13 RECENT DECISIONS OF THIS CIRCUIT EXCEED SUPREME COURT GUIDELINES IS PROPERLY ASSERTED .. IV. AN ACTION UNDER THE CIVIL we RIGHTS ACT IN NATURE CONCLUSION IS PERSONAL 14 23 27 29 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 23 13 463 U.S. 277, 103 S.Ct. 3001, 7) Geen 697 £16805) «..... Trop v. ulles sae Gans G6, FO &.Ct. 590, 2 Gimecae 630 (1958) ....... 25 26 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- 26 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 II 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 pr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0735%3A2. Public record. Not legal advice.