Circumventing the State Limitations In Sec. 1983 Wrongful-Death Claims
National Law Journal
Section 1983 litigation, wrongful death
Plaintiffs with wrongful-death claims against the police or other state or local officials often view state policies as inadequate and look to 42 U.S.C. 1983 for a remedy. The framing of wrongful-death actions under Sec. 1983 permits plaintiffs to select federal courts, but the use of Sec. 1983 is more than a choice-of-forum device, and survivors have filed Sec. 1983 wrongful-death actions in state and federal courts.The use of Sec. 1983 as a wrongful-death remedy avoids many limitations of state law. State immunity policies do not apply in Sec. 1983 litigation, and plaintiffs may not need to comply with state notice-of-claims statutes. Nonetheless, the framing of wrongful-death claims under Sec. 1983 does not avoid all state limitations on wrongful-death actions. Because courts generally have followed the course of least resistance and borrowed state wrongful-death remedies, including their damage policies, plaintiffs who wish to avoid these policies typically argue that state damage limitations are inconsistent with Sec. 1983's purposes of compensation and deterrence. It is also possible to argue that survivors have a Sec. 1983 wrongful-death remedy independent of state law, and thus avoid the need to address whether state policies are inconsistent with the purposes of Sec. 1983.
Steven H. Steinglass, Circumventing the State Limitations In Sec. 1983 Wrongful-Death Claims, National Law Journal 20 (June 9, 1986)