Availability of Sec. 1983 as Remedy Creates Confusion in State Courts
National Law Journal
Section 1983 litigation, wrongful death
When damage actions are brought under 42 U.S.C. 1983 because of wrongful killings by the police or other state or local officials, federal courts often look to state law for policies to govern the survival of the decedent's personal action, the availability of a wrongful-death claim by the decedent's survivors and the appropriate measure of damages. Actions by state or local officials that result in a death often violate the federal constitutional rights of the decedent, but the U.S. Supreme Court never has determined whether the decedent's surviving relatives may pursue wrongful-death claims under Sec. 1983.This may seem surprising. The court has reviewed Sec. 1983 wrongful-death actions in which it addressed various remedial issues, and only last term in Tennessee v. Garner, a Sec. 1983 wrongful-death damage action, the court held that a state statute authorizing the use of deadly force to apprehend unarmed, fleeing felons violated the Fourth Amendment. Nonetheless, the court has not decided the threshold remedial issue of the availability of Sec. 1983 as a wrongful-death remedy. Nor has the court directly addressed whether decedents' Sec. 1983 actions survive in states that require similar personal actions to abate. And the court never has defined the appropriate measure of damages in Sec. 1983 cases involving wrongful killings.
Steven H. Steinglass, Availability of Sec. 1983 as Remedy Creates Confusion in State Courts, National Law Journal 20, (June 2, 1986)