Jones v. Hildebrant Motion of Leave to File Brief Amicus Curiae

    No. 76-5416

In The

&npran? (tart of tljr luttrii §tatra
October Term, 1976

Ruby J ones,
Petitioner,

Douglas H ildebrant, and the City and County 
OF Denver, a municipal corporation.

On Petition for Writ of Certiorari to the 
Supreme Court of Colorado

MOTION FOR LEAVE TO FILE 
AND

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW, THE 

MEXICAN AMERICAN LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND THE 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT 
OF COLORED PEOPLE, AS AMICI CURIAE

Robert A. Murphy 
Richard S, Kohn 
Norman J. Chachkin 
William E. Cat,dwelt.

Lawyers’ Committee for 
Civil Rights Under Law 
733 15th Street, N.W. 
Washington, D.C. 20005

Vilma S. Martinez 
Morris J. Baller 

Mexican American Legal 
Defense & Educational 
Fund, Inc.
145 Ninth Street 
San Francisco, California 94103

Nathaniel R. J ones 
General Counsel, N.A.A.C.P. 
1790 Broadway 
New York, New York 10019

San Francisco, California 94103 Attorneys for Amici Curiae

Of counsel:
Amitai Schwartz 

Northern California 
Police Practices Project 

814 Mission Street

W i l s o n  - E p e s  P r i n t i n g  C o . .  In c . - R e 7 - 6 0 0 2  - W a s h i n g t o n , d . c . 2 0 0 0 1



In The

£>upttm Court of %  luttrib ̂ tatro
October Term, 1976

No. 76-5416

Ruby J ones,
Petitioner,

v.

Douglas H ildebrant, and the City and County 
of Denver, a municipal corporation.

On Petition for Writ of Certiorari to the 
Supreme Court of Colorado

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

Amici curiae Lawyers’ Committee for Civil Rights 
Under Law, Mexican American Legal Defense & Educa­
tional Fund, Inc., and National Association for the Ad­
vancement of Colored People respectfully seek leave to 
file the attached brief in order to assist the Court in 
resolving important issues affecting the right to recover 
meaningful damages in actions brought pursuant to 42 
U.S.C. § 1983 to redress unconstitutional police miscon­
duct causing death. In the attached brief, amici discuss 
several underlying questions which are critical to the

(1)



(2)

disposition of this cause but which amid do not believe 
will be addressed by the parties.

The interest of amid in this case grows out of their 
longstanding concern with the problem of devising reme­
dies that will secure the effective enforcement of federal 
civil rights laws, and in particular their past and present 
involvement in litigation on behalf of minority citizens 
who have suffered injury or death at the hands of police 
officers.

Amid  have sought consent to the filing of this brief 
but such consent has been refused by counsel for Re­
spondents.

WHEREFORE, amid respectfully move that their 
brief be filed in this case.

Respectfully submitted,

Of counsel:
Amitai Schwartz 

Northern California 
Police Practices Project 

814 Mission Street 
San Francisco, California!

Robert A. Murphy 
Richard S. Kohn 
Norman J. Chachkin 
William E. Caldwell 

Lawyers’ Committee for 
Civil Rights, Under Law 
733 15th Street, N.W. 
Washington, D.C. 20005

Vilma S. Martinez 
Morris J, Baller 

Mexican American Legal 
Defense & Educational 
Fund, Inc.
145 Ninth Street
San Francisco, California 94103

Nathaniel R. J ones 
General Counsel, N.A.A.C.P. 
1790 Broadway 
New York, New York 10019

Attorneys for Amici Curiae



TABLE OF AUTHORITIES ............................... ...........  in

INTEREST OF AMICI CURIAE ______ ___________  1

STATEMENT OF THE CASE ......................................  4

SUMMARY OF ARGUMENT ............ ........................  8

ARGUMENT

I. The Colorado Courts Properly Entertained This 
§ 1988 Suit, Though They Were Required To 
Apply Federal Law In Determining Its Out­
come. _________________ ____ ______________ 11

II. Civil Actions May Be Maintained Under 42 
U.S.C. § 1983 By Persons, Such As Petitioner 
Here, Who Seek To Redress Unconstitutional 
State Action Resulting In Human Death. ____  18
A. Section 1983 Creates A Constitutional Cause

of Action Wholly Apart From State Tort 
Law. __________________ _______________  20

B. In § 1983 Death Cases The Courts Are Au­
thorized, Both By General Principles Of 
Federal Remedial Law And By 42 U.S.C.
§ 1988, To Utilize State Wrongful-Death 
Statutes. __________________ ___________  31

III. Restrictive State Damage Rules, Such As Colo­
rado’s “Net Pecuniary Loss” Limitation, Are 
Inapplicable When Incompatible With Interests 
Protected By § 1983. ___ __ ________________  36
A. Complete Justice And Deterrence of Uncon­

stitutional Conduct Are The Twin Goals of
§ 1983. ______________ _______________ 36

B. The “Net Pecuniary Loss” Rule Negates The
Purposes of § 1983. ______ __ _________ _ 38

TABLE OF CONTENTS
Page



n

C. Uniform Federal Rules of Recovery Are Re­
quired Even Where State Wrongful-Death 
Statutes Are Utilized........... ............................. 40

IV. If the State Wrongful-Death Act Must Be Ap­
plied in its Entirety, Then This Court Should 
Reject the State Law Approach Altogether and 
Create a Federal Common Law of Survival and 
Wrongful Death Under § 1983. .............. -........ 44

CONCLUSION .... .................................................................  50

TABLE OF CONTENTS—Continued
Page



Ill

TABLE OF AUTHORITIES
Cases Rage

Adickes V. S. H. Kress & Co., 398 U.S. 144 (1970).. 20, 27,
36, 37, 38, 40, 49

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) ............................................. ....................... . 37,38

Aidinger V. Howard, 96 S. Ct. 2413 (1976) ....11,14, 22n 
A /S  J. Ludwig Mowinckels Rederi v. Dow Chem­

ical Co., 25 N.Y.2d 576, 255 N.E.2d 774, 307 
N.Y.S.2d 660, cert, denied, 398 U.S. 939 (1970).. 43n

Atchison, T.&S.F. Ry. v. Sowers, 213 U.S. 55
(1909) ........................................................................  2,On

Bailey V. Patterson, 369 U.S. 31 (1962)...... ........ . 35n
Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033

(1808) ............................................................ ......_..28n, 29n
Baker v. F.&F. Investment Co., 420 F.2d 1191 (7th 

Cir.), cert, denied, sub nom. Universal Builders
Inc. V. Clark, 400 U.S. 821 (1970) .... ................ 27n

Bartch v. United States, 330 F.2d 466 (10th Cir.
1964) _________ ___ ________ __________ ____ 38n

Basham v. Smith, 149 Tex. 297, 233 S.W.2d 297
(1946) .....................................................     43n

Basista v. Weir, 340 F.2d 74 (3d Cir. 1965)....... _..38n, 40
Bell V. Hood, 327 U.S. 678 (1946)______________  23, 37
Bemis Bros. Bag Co. V. United States, 289 U.S.

28 (1933) ________________    37
Bivens v. Six Unknown Named Agents, 403 U.S.

338 (1971) ............ ........... ............. .................... . 48
Blue V. Craig, 505 F.2d 830 (4th Cir. 1974)...... . 12n
Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert.

denied, 368 U.S. 921 (1961)____________ 19n, 24, 25n
Brown V. Balias, 331 F. Supp. 1033 (N.D. Tex.

1971) ................................       42n
Brown v. Gerdes, 321 U.S. 178 (1944)________ 13n, 15n
Caperci V. Huntoon, 397 F.2d 799 (1st Cir.), cert.

denied, 393 U.S. 940 (1968) ___ ___________  38n
Carey v. Berkshire Railroad, 55 Mass. (1 Cush.)

475, 48 Am. Dec. 616 (1848) ________________ 29n
Chamberlain V. Brown, 442 S.W.2d 248 (Tenn.

1969) 12n



IV

Charles Dowd Box Co. V. Courtney, 368 U.S. 502
(1962) ............. ..................................................14,15,16,17

Cinnamon V. Abner A. Wolf, Inc., 215 F. Supp. 833
(E.D. Mich. 1963) ..................................................... 19n

Claflin V. Houseman, 93 U.S. 130 (1876)____ 13n, 15,17
Clearfield Trust Co. V. United States, 318 U.S.

363 (1943).... .................................. .......... ........... . 31,48
Clint V. Stolworthy, 144 Colo. 597, 357 P.2d 649

(1960)  _____________________ ___ ________ 30n
Davis V. Johnson, 138 F. Supp. 572 (N.D. 111.

1955) ____ ___________ ________ ___________ 19n, 24n
Dellariya V. Ne wYork, N.H. & H.R.R., 257 F.2d

733 (2d Cir. 1958) ___________   31n
Dennick V. Central Ry., 103 U.S. 11 (1880) _____ 30n
District of Columbia V. Carter, 409 U.S. 418

(1973) __________       16n
Douglas V. New York, N.H. H.R.R., 279 U.S.

377 (1929) .____ ______________ __________  13n
Dudley V. Bell, 50 Mich. App. 678, 213 N.W.2d

805 (1973) ..............................................   43n
Erie R.R. V. Tompkins, 304 U.S. 64 (1938) ____  48
Evain V. Conlisk, 364 F. Supp. 1188 (N.D. 111.

1973), aff’d 498 F.2d 1403 (7th Cir. 1974)........  19n
Farmers Educ. Cooperative Union V. WDAY, 360

U.S. 525 (1959)___________________________ 17n, 48
Fish V. Liley, 120 Colo. 156, 208 P.2d 930 (1949).. 7n 
Garner V. Teamsters, C. & H. Local Union, 346

U.S. 485 (1959) .........    15n
Garrett V. Moore-McCormack Co., 317 U.S. 239

(1942) ..............      17n
Griffin V. Breckenridge, 402 U.S. 88 (1971)_____ 25n
Hall V. Wooten, 506 F.2d 564 (6th Cir. 1974) ......19n, 25n
Holmberg V. Armbrecht, 327 U.S. 392: (1945)....... 48
Illinois V. City of Milwaukee, 406 U.S. 91 (1972).. 48
Imbler V. Pachtman, 424 U.S. 409 (1976) .... ....... 41
Jackson County V. United States, 308 U.S. 343

(1939) .......      49
James V. Murphy, 392 F. Supp. 641 (M.D. Ala.

1975) .................. ..................................................... 19n, 41n

TABLE OF AUTHORITIES—Continued
Page



y

TABLE OF AUTHORITIES—Continued
Page

Jerome V. United States, 318 U.S. 101 (1959)__  45
J. I. Case Co. V. Bordk, 377 U.S. 426 (1964) ___  48
Jones V. Hildebrant, 550 P.2d 339 (Colo. 1976)__4n, 5, 8,

30n,35n,38
Local 17h V. Lucas Flour Co., 369 U.S. 95 (1962)..17, 42n,

48
Lynch V. Household Finance Corp., 405 U.S. 538

(1972) ......................... - ________ _____________ 16n
Marbury V. Madison, 1 Cranch (U.S.) 137

(1803) _____ ___________ ___ _______________  37
Mattis V. Schnarr, 502 F.2d 588 (8th Cir. 1974).... 19n
McAllister V. Magnolia Petroleum Co., 357 U.S.

221 (1958)....... ............ ............ ...............................17n, 48
McKnett V. St. Louis & S.F. Ry., 292 U.S. 230

(1934) .............................................. ............ ........ 13n
Missouri ex rel. Southern Ry. V. Mayfield, 340

U.S. 1 (1950) _____ ___ ____________ ________ 13n
Mitehum V. Foster, 408 U.S. 225 (1972) _______ 16n
Mobile Ins. Co. V. Brame, 95 U.S. 754 (1878) .....28n, 30n
Monroe v. Pape, 365 U.S. 167 (1961) ______ 12,16n, 20,

24, 26n
Moor V. County of Alameda, 411 U.S. 693 (1973).. 18n,

34, 42n
Moore V. Backus, 78 F.2d 571 (7th Cir. 1935)____ 28n
Moragne V. States Marine Lines, Inc., 398 U.S.

375 (1970) ____ __ ......18n, 27, 35, 39, 42, 45, 46, 47, 48
National Metropolitan Bank V. United States, 323

U.S. 454 (1945) ________ ___________________  48
Paul V. Davis, 424 U.S. 693 (1976) __________6, 7n, 20
Perkins V. Salafia, 338 F. Supp. 1325 (D. Conn.

1972) ........................................................................... 19n
Pritchard V. Smith, 289 F.2d 153 (8th Cir. 1961).. 19n
Publix Cab Co. V. Colorado Nat’l Bank of Denver,

139 Colo. 205, 338 P.2d 702 (1959)..................... 19n
Rhoads V. Hovat, 270 F. Supp. 307 (D. Colo.

1967) ______ _________ __ _____-----................ 38n
Riley V. Agwilines, Inc., 296 N.Y. 402, 73 N.E.2d 

718 (1947) 43



VI

Rogers V. Douglas Tobacco Bd. of Trade, 244 F.2d
471 (5th Cir. 1957) ..__ ____________________  31n

Romero V. International Terminal Operating Co.,
358 U.S. 354 (1959)________ ___ ____________ 28n

Rue V. Snyder, 249 F. Supp. 740 (E.D. Tenn.
1966) ____________________ _____________ __  22n

Runyon V. McCrary, 96 S. Ct. 2978 (1976) ____  33n
SalazarV. Dowd, 256 F. Supp. 220 (D. Colo. 1966).. 19n
San Diego Building Trades Council V. Garmon,

359 U.S. 236 (1953) ___ ____ __________ _____ 15n
Scheuer V. Rhodes, 416 U.S. 232 (1974)_______ 18n, 24n
Screws V. United States, 325 U.S. 91 (1945)___ 6n
Sea-Land Services V. Gaudet, 414 U.S. 573 (1974).. 18n,

22n, 39, 43, 48
Second Employers’ Liability Cases (Mondou V.

New York, N.H. & H.R.R.), 223 U.S. 1 (1912).. 13n
Shaw V. Garrison, 545 F.2d 980 (5th Cir. 1977)._19n, 42n 
Shaw V. Garrison, 391 F. Supp. 1353 (E.D. La.

1975), aff’d 545 F.2d 980 (5th Cir. 1977)____  21
Smith V. Wickline, 396 F. Supp. 555 (W.D. Okla.

1975)____________________________________ 19n, 35n
Sola Electric Co. V. Jefferson Electric Co., 317

U.S. 173 (1942) _______________ ____________  49
Spence V. Staras, 507 F.2d 554 (7th Cir. 1974)._19n, 38n,

39-40
Steffel V. Thompson, 415 U.S. 452 (1974)______  16n
Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963).. 22n
Sullivan v. Little Hunting Park, 396 U.S. 229

(1969) _________________________ 17n, 32n, 34, 37, 42
Swift V. Tyson, 16 Pet. (U.S.) 1 (1842)________ 30n, 48
Tenney v. Brandhove, 341 U.S. 367 (1951)_____  41
Testa V. Katt, 330 U.S. 386 (1947) ____________  13n
Textile Workers Union V. Lincoln Mills, 363 U.S.

448 (1957)_____ ____ ____________ '.......14,15,18,48
The Harrisburg, 119 U.S. 199 (1886)__________ 42n, 46
The Tungus V. Skovgaard, 358 U.S. 588 (1959).... 27, 42,

48
Tunstall V. Brotherhood of Locomotive Firemen 

& Enginemen, 323 U.S. 210 (1944)

TABLE OF AUTHORITIES—Continued
Page

48



VII

United States V. Standard Oil Co., 332 U.S. 301
(1947) . ____ ______ _ __ _____________  31

Van Beech V. Sabine Towing Co., 300 U.S. 342
(1936) -----------------------------------------------------32n, 46n

Wicker V. Hoppock, 6 Wall. (U.S.) 94 (1867)___ 37
Woodson V. North Carolina, 96 S. Ct. 2978 (1976).. 35n
Zwickler V. Koota, 389 U.S. 241 (1967)_________ 16n

Constitution and Statutes

U.S. Const., 14th Amendment (1868)_________ passim
28 U.S.C. § 1343(3) ______________ _______ 11, 12n, 16
28 U.S.C. § 1652 ____________________ _______  42n
42 U.S.C. § 1983 --------------------------------------------passim
42 U.S.C. § 1985 _______________________ ____  25n
42 U.S.C. § 1986 _____________________________25, 26n
42 U.S.C. § 1988 -------------------7, 19, 31, 32, 33, 34, 38, 41
P.L. 94-559, Civil Rights Attorneys’ Fees Awards

Act of 1976, 90 Stat. 2641 ________________ _ 33n
Judiciary Act of 1789 __________________ ______ 16
Labor Management Relations Act of 1947______ 14,16
Force Act of 1871, 16 Stat. 433 ______________  28n
Ku Klux Act of 1871, 17 Stat. 13_________ __ _passim
Enforcement Act of 1870, 16 Stat. 140 ________28n, 33n
Civil Rights Act of April 9, 1866, 14 Stat. 2 7 ___ 32, 33n
Rev. Stat. § 722 _______________ ____________  33n
Colo. Rev. Stat. § 13-20-101 (1973) __________ 19n
Colo. Rev. Stat. § 13-21-201 (1973) ___________ 29n
Colo. Rev. Stat. § 13-21-202 (1973) __________ 4n, 19n

Rules

Supreme Court Rules 23(1) ( c ) ______________  5
Supreme Court Rules 40(d) (1)  ____ ________ 5

Other Authorities
Cong. Globe, 39th Cong., 1st S ess.____________ 23
Cong. Globe, 42d Cong., 1st Sess-----------12n, 23, 24, 26n,

28,31

TABLE OF AUTHORITIES—Continued
Page



vin

P. Bator, P. Mishkin, D. Shapiro and H. Wechs- 
ler, The Federal Courts and the Federal
System (2d ed. 1973) _______ _____________  48n

Black’s Law Dictionary (4th ed. 1957)____ __  28n
2 F. Harper & F. James, Law of Torts (1956).... 18n
C. McCormick, Handbook on Damages (1935)-. 18n,

48n
W. Prosser, Law of Torts (4th ed. 1971) ____19n, 24n,

41
Friendly, In Praise of Erie—and of the New Fed­

eral Common Law, 39 N.Y.U.L. Rev. 383
(1984) ______ ____ ___________ ____________  48n

Malone, American Fatal Accidents Statutes—
Part I : The Legislative Birth Pains, 1965 Duke
L.J. 673 _________________ ________________  29n

Malone, The Genesis of Wrongful Death, 17 Stan.
L. Rev. 1043 (1965)_______________ _____ ...19n, 29n

Monaghan, The Supreme Court, 1974 Term— 
Forward: Constitutional Common Law, 89 HARV.
L. Rev. 1 (1975)......... ................ ............ ...............  44-45

Niles, Civil Actions for Damages Under the Fed­
eral Civil Rights Statutes, 45 Tex. L. Rev. 1015
(1967) __________________________________22n, 42n

Page, State Law and the Damages Remedy Under 
the Civil Rights Act: Some Problems in Fed­
eralism, 43 Den. L.J. 480 (1966) ________22n, 39, 42n

Pound, Comment on State Death Statutes—Appli­
cation to Death in Admiralty, 13 NACCA L.J.
188 (1954) ....................... .... ...................... ............  48n

Smedley, Wrongful Death—Bases of the Common
Law Rules, 13 Vand. L. Rev. 605 (1960)_____  28n

Theis, Shaw v. Garrison: Some Observations on 
42 U.S.C. § 1988 And Federal Common Law, 36
La. L. Rev. 681 (1976)___________ _________ 41, 42n

Note, Federal Common Law, 82 Harv. L. Rev. 1512
(1969) _________ ____________________ _____ 45

Note, Survival of Actions Brought Under Federal
Statutes, 63 Colum. L. Rev. 290 (1963)............. 34

TABLE OF AUTHORITIES—Continued
Page



In  The

Bnpmnt (Emir! xif % Htttfrii States
October Term, 1976

No. 76-5416 

Ruby Jones,
Petitioner,

Douglas Hildebrant, and the City and County 
of Denver, a municipal corporation.

On Petition for Writ of Certiorari to the 
Supreme Court of Colorado

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW, THE 

MEXICAN AMERICAN LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND THE 

NATIONAL ASSOCIATION FOR THE ADVANCEMENT 
OF COLORED PEOPLE, AS AMICI CURIAE

Interest of Amici Curiae

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President 
of the United States, John F. Kennedy, to involve pri­
vate attorneys throughout the country in the national 
effort to assure civil rights to all Americans. The Com­
mittee’s membership today includes two former Attorneys 
General, nine past Presidents of the American Bar 
Association, two former Solicitors General, a number of



law school deans, and many of the nation’s leading law­
yers. Through its national office in Washington, D.C. 
and its offices in Jackson, Mississippi and eight other 
cities, the Lawyers’ Committee over the past fourteen 
years has enlisted the services of over a thousand mem­
bers of the private Bar in addressing the legal problems 
of minorities and the poor in voting, education, employ­
ment, housing, municipal services, the administration of 
justice, and law enforcement.

The Lawyers’ Committee has been intimately involved 
in litigation on behalf of minority-race persons seeking 
redress for unconstitutional police conduct, especially the 
use of excessive physical force, including deadly force. 
This litigation has been based principally upon 42 U.S.C. 
§ 1983, which derives from the Ku Klux Act of 1871. 
The Committee’s experience is that broad principles of 
relief are essential to the fulfillment of that statute’s 
goals. In particular, the rules of damages applicable to 
§ 1983 litigation must not only assure complete com­
pensation for personal injuries resulting from the un­
justified use of excessive force by police officers; the 
rules must also assure that, in appropriate circumstances, 
exemplary damages will be awardable. The realistic pos­
sibility that egregious abuses of police authority may 
result in substantial damage awards is necessary if such 
unconstitutional conduct is to be deterred.

The Mexican American Legal Defense and Educational 
Fund (MALDEF) is a privately-funded civil rights or­
ganization founded in 1968. MALDEF is dedicated to 
ensuring through law that the civil rights of Mexican 
Americans are protected. Over the past nine years 
MALDEF has represented or assisted Mexican Americans 
in a variety of cases brought under 42 U.S.C. § 1983 
arising from violent abuse of police authority. MALDEF 
therefore has a significant interest in the continuing 
vitality of § 1983 as a legal remedy for the deprivation 
of federal rights.



3
The National Association for the Advancement of 

Colored People (NAACP) is a non-profit membership 
association representing the interests of approximately 
500,000 members in 1800 branches throughout the United 
States. Since 1909, the NAACP has sought through the 
courts to establish and protect the civil rights of mi­
nority citizens. 42 U.S.C. § 1983 has been central to the 
MAACP’s litigation efforts, especially those seeking re­
dress for personal injury and death unnecessarily in­
flicted upon minority citizens by police officials under 
color of state law.

In the experience of amici, the unwarranted misuse 
of police power, including the unjustifiable use of deadly 
force, disproportionately strikes down minority Ameri­
cans. In the present § 1983 case, brought in Colorado 
state court, a Denver police officer is charged with in­
tentionally killing a fifteen-year-old black boy without 
reason. Astonishingly, the courts below have effectively 
determined that, under recovery rules which they deemed 
mandated by federal law, this unconstitutional death has 
a compensable value of $1,500. We are confident from 
our experiences and observations that almost any de­
gree of physical injury short of death would have a 
higher value anywhere in the country, including Colo­
rado. If the rule announced below is affirmed by this 
Court, therefore, the result will be that the Nation’s 
law enforcement officers will be given an incentive to kill 
during the course of employing excessive force. Such a 
rule is intolerable, in our view; it seriously undermines 
our efforts to secure complete justice for our clients; 
and it repudiates the basic purposes of § 1983.

Amici thus have an interest in this dispute greater 
than that of the actual parties. In the remainder of 
this brief we address issues which may not be discussed 
by the parties, but which we believe are essential to the 
just disposition of this case. That disposition, in our 
opinion, requires reversal of the judgment below and a 
remand for the trial of petitioner’s § 1983 claims.



4

STATEMENT OF THE CASE

On February 5, 1972, respondent Hildebrant, a white 
Denver, Colorado police officer, intentionally shot and 
killed petitioner’s 15-year-old black son. Petitioner in­
stituted this action against respondent Hildebrant and 
respondent City and County of Denver on October 15, 
1973, in the State District Court for the City and County 
of Denver, seeking compensatory and punitive damages 
for the alleged unlawful killing of her son, and raising 
claims under both state and federal law.1 In their an­
swer respondents admitted the shooting, and admitted 
that respondent Hildebrant was acting within the scope 
of his office as a Denver law enforcement officer. Re­
spondents denied, however, that petitioner’s son was 
killed in violation of either state or federal law; re­
spondents asserted as affirmative defenses that the kill­
ing was privileged because decedent was a fleeing felony 
suspect who could not have been apprehended without 
the use of deadly force, that respondent Hildebrant em­
ployed deadly force in self-defense, and that he used only 
that amount of force reasonably necessary under the 
circumstances.

1 As amended, petitioner’s complaint in the state trial court, as 
consistently construed by both the trial court and the Colorado 
Supreme Court, stated three claims for relief: (1) for battery 
under state law; (2) for negligence under state law; (3) for viola­
tion of federal constitutional rights. See Jones v. Hildebrant, 550 
P.2d 339, 341 (Colo. 1976). The state courts treated the first two 
claims for relief as being authorized by the state wrongful-death 
statute, Colo. Rev. Stat. § 13-21-202 (1973) ; the third claim 
was treated as one authorized by 42 U.S.C. § 1983. However, the 
complaint did not expressly refer to either the state wrongful-death 
statute or § 1983. The federal claim also makes no reference to 
specific provisions of the federal Constitution, but, fairly read, it 
alleges violations of the Due Process and Equal Protection Clauses 
of the Fourteenth Amendment. The lower courts in this case have 
uniformly construed this as a Fourteenth Amendment cause of 
action authorized by <§ 1983.



5

The case proceeded to trial on all of petitioner’s claims. 
At the close of proof and before the case was submitted 
to the jury, however, respondents moved to dismiss pe- 
tioner’s federal (42 U.S.C. § 1983) claim. The trial judge 
granted the motion on the ground that the § 1983 claim 
merged with the state law claims, and that no relief 
different from that recoverable under the state-law claims 
was available under § 1983. The case thus went to the 
jury on petitioner’s state-law claims only. On the issue 
of damages, the jury was instructed that petitioner was 
limited to recovering the net pecuniary loss she sustained 
as a result of her son’s death, with a maximum allowable 
recovery of $45,000 (because petitioner was not a de­
pendent of decedent) ; future earnings, loss of society, 
exemplary damages and the like were held to be unre­
coverable under state wrongful-death law. The jury 
resolved the issues of liability under state law in pe­
titioner’s favor but returned a verdict of only $1,500 
against respondents. The trial judge denied a motion 
for a new trial on the issue of damages.

On petitioner’s appeal, the Colorado Supreme Court 
addressed a number of issues, Jones v. Hildebrant, 550 
P.2d 339 (Colo. 1976), only a few of which are fairly 
comprised within the grant of certiorari. Su prem e  
Court Rules 23(1) (c), 40(d) (1). With respect to pe­
titioner’s appeal on the limitations placed on damages 
recoverable under the state-law claims, the Colorado 
Supreme Court (1) declined to discard the “net pecuni­
ary loss” rule first established in an 1894 decision of 
that court, and (2) upheld the $1,500 verdict as being 
adequate under that rule, 550 P.2d at 341-42. Neither 
of these issues is presented for review by this Court, 
nor could they be.2

2 The court implicitly rejected petitioner’s claim that the “net 
pecuniary loss” limitation on recovery under the state’s wrongful- 
death statute was inconsistent with the Fourteenth Amendment.



6

As to petitioner’s federal claim that her § 1983 cause 
of action was distinct from the state-created wrongful 
death action—and that it should not therefore have been 
“merged” with the state action nor dismissed by the trial 
judge 3—the Colorado Supreme Court considered and de­
cided four somewhat overlapping issues. At the outset, 
the court considered a contention by petitioner (viewed 
by the court as “confusingly stated” ) to the effect that 
petitioner’s “civil right to her son’s life,” as recognized 
by the state wrongful-death statute, “was denied her 
without due process of law through his wrongful kill­
ing.” 550 P.2d at 342. On the basis of this Court’s de­
cision in Paul v. Davis, 424 U.S. 693 (1976), the 
court rejected this contention, holding that “where, as 
here, the state allows a plaintiff to bring her [wrongful- 
death] suit, she is not deprived of any of her civil rights 
without due process of law.” 550 P.2d at 343. While 
we confess difficulty in understanding this issue,4 it is a

550 P.2d at 342. This claim likewise is not pressed before this 
Court by the petitioner.

3 Since petitioner’s § 1983 claim was dismissed prior to sub­
mission of the case to the jury, there has been no determination 
that plaintiff’s son was killed in contravention of the federal Con­
stitution, as distinct from state law. The Colorado Supreme Court 
appears to have assumed that the facts as found by the jury also 
constituted a federal constitutional violation. In any event, this 
Court must, in the present posture of this case, make a similar 
assumption, as in all cases where a federal claim is dismissed prior 
to decision on the merits. It is sufficient to observe here that the 
Fourteenth Amendment expressly protects human life from wanton 
deprivation by the state. See, e.g., Screws v. United States, 325 U.S. 
91 (1945). If petitioner prevails here, therefore, she will be entitled 
to a remand for trial of her § 1983 claims.

4 Apparently petitioner’s contention was: (1) that Colorado’s
wrongful-death statute created substantive property rights in a 
class of individuals bearing certain specified relationships to de­
cedents; (2) that these rights were protected by the Fourteenth 
Amendment; and (3) that in a § 1983 wrongful-death action, the 
state “net pecuniary loss” rule could not be applied without in­
fringing those substantive property rights in violation of the Four-



7

constitutional claim which need not be determined in 
order to reach the question presented for review by this 
Court, and it is not fairly comprehended within the 
grant of certiorari.

The next three issues decided by the Colorado Supreme 
Court are, however, properly embodied within the ques­
tion presented for review here, for they involve inter­
pretations of § 1983 which led the court below to con­
clude that § 1983 was identical in purpose and effect 
to the Colorado wrongful-death statute. First, the court 
attempted to determine the federal law of damages 
applicable to § 1983 wrongful-death actions brought in 
Colorado federal courts. Reviewing a number of lower 
federal court decisions which had utilized 42 U.S.C. 
§ 1988 to “incorporate” relevant state survival and 
wrongful-death statutes into § 1983 actions brought in 
federal court, the Colorado Supreme Court concluded

that Colorado’s wrongful death remedy would be en­
grafted into a § 1983 action if brought in a federal 
court. However, because the instant suit was 
brought in state court and joined with a suit under 
the state wrongful death statute, the trial court 
properly ruled that the two actions were merged 
so that the § 1983 claim should be dismissed.

teenth Amendment. Petitioner may have relied, incorrectly, upon 
the previous decision in Fish v. Liley, 120 Colo. 156, 208 P.2d 930 
(1949) to support her assertion that the wrongful-death statute 
created a “property right.” In the instant case, however, the 
Colorado Supreme Court rejected that assertion and characterized 
the wrongful-death statute as “remedial,” 550 P,2d at 344, creating 
only a “right to sue” at law for a tort which, under Paul v. Davis, 
423 U.S, 693 (1976), was distinguishable from a “property 
right.” In any event, since petitioner has not pressed her attack 
upon the “net pecuniary loss” limitation of the state claim (see note 
2, supra.), this issue also does not seem to be presented for this 
Court’s review.



8

Furthermore, because the allowable damages are 
such an integral part of the right to bring a wrong­
ful death remedy, we believe the state’s law on 
damages should also apply.

550 P.2d at 344 (footnotes omitted). Second, the court 
rejected petitioner’s argument that there is a § 1983 
wrongful-death remedy independent of state law. The 
court based its conclusion “on the perceived Congressional 
intent not to pre-empt the states’ carefully wrought 
wrongful death remedies, the adequacy in a death case 
of the state remedies to vindicate a civil rights violation, 
and the overwhelming acceptance of such state remedies 
in the federal courts.” Id. at 345 (footnote omitted). 
Third, the court held that “one may not sue for the de­
privation of another’s rights under § 1983 . . .” and that 
petitioner “therefore cannot sue in her own right for 
the deprivation of her son’s rights apart from her remedy 
under the wrongful death cause of action.” Id.

Two Justices dissented on the ground that “Colorado’s 
judicial limitation of net pecuniary loss as a measure of 
damages for wrongful death [does not] applfy] to ac­
tions founded upon 42 U.S.C. § 1983 (1970).” Id, at 
345-46. It is this question framed by the dissenting Jus­
tices, and the issues fairly comprised therein, that are 
before the Court pursuant to its grant of certiorari.

SUMMARY OF ARGUMENT 

I
This case presents important questions of federal law 

concerning the fashioning of appropriate relief in ac­
tions brought pursuant to 42 U.S.C. § 1983 alleging that 
unconstitutional state action caused human death. The 
precise question presented for review—“what is the meas­
ure of damages” in such an action—arises (as the phras­
ing in the Petition for Certiorari indicates) in the con­



9

text of a state court disposition of a § 1983 claim which 
the Colorado courts are willing and able to entertain. 
However, the court below clearly understood that it was 
considering and deciding questions of federal law in de­
termining that the measure of damages in a § 1983 
wrongful-death action was the same as that in the state 
wrongful-death claim. There are no considerations of 
comity or federal-state tensions which affect the disposi­
tion of the federal questions presented in this case, -which 
is in the same posture as if it had been brought in the 
United States District Court for the District of Colorado 
and federal judges below selected the Colorado “net pecu­
niary loss” rule as the measure of damages in a § 1983 
action.

II

The court below was correct in deciding another is­
sue implicit in the question presented for review here: 
whether § 1983 authorizes a cause of action to be prose­
cuted when constitutional wrong results in death. Al­
though the parties may not address this issue, this 
Court’s disposition of the major question may necessarily 
decide it, and amici therefore discuss it. As we show, 
the lower federal courts and the Colorado courts in the 
instant case have uniformly recognized a § 1983 action 
for wrongful death resulting from unconstitutional ac­
tion, though on the basis of differing rationales. The 
result in these cases is clearly correct, and this Court 
should have no hesitation in affirming the determination 
of this issue by the Colorado Supreme Court in order to 
reach and decide the important remedial question which 
is the major subject of controversy in this case.

III

The court below wTas of the view that while petitioner 
was entitled to utilize the process of Colorado’s wrongful- 
death statute in order to maintain a § 1983 action against



10

respondents, she was also required to accept the severe 
limitations on damages embodied in that statute, as 
judicially construed. The plain meaning of this ruling, 
in the context of this case, is that even if petitioner’s 
15-year-old son was killed in violation of the Fourteenth 
Amendment, such constitutional injury has a compensable 
value of $1,500. This ruling is untenable. If petitioner 
prevails on the merits of her § 1983 claim she is en­
titled to have the Colorado courts award a federal meas­
ure of relief commensurate with (1) prevailing notions 
of complete justice, and (2) the dual remedial purposes 
of § 1983’s private-enforcement scheme: just compensa­
tion and deterrence of unconstitutional conduct on the 
part of state officials. As a general matter of federal law, 
principles of damages applicable to § 1983 cases must 
encompass all elements of the particular constitutional 
injury, and must also reflect the statute’s exemplary 
goals. Colorado’s “net pecuniary loss” rule is inconsistent 
with these applicable principles. Uniform federal rules 
of recovery in § 1983 actions are essential; there is no 
basis for the requirement imposed below that the dam­
ages rules embodied in the state’s wrongful-death statute 
must be applied in federal § 1983 actions.

IV
If the Court should hold that reference to state wrong­

ful-death and survival statutes in § 1983 actions must 
carry with it the state-created limitations on damages, 
then this Court should reject the use of state law in its 
entirety and create a federal common law of wrongful 
death applicable to actions under the Act, as the Court 
has done in other important areas of federal juris­
prudence.



11

ARGUMENT

I. The Colorado Courts Properly Entertained This § 1983 
Suit, Though They Were Required To Apply Federal 
Law In Determining Its Outcome.

This ease presents an opportunity for the Court to de­
cide a heretofore unresolved question: whether state 
courts may entertain actions brought under 42 U.S.C. 
§ 1983. See Aldinger v. Howard, 96 S. Ct. 2413, 2430 n. 
17 (1976) (dissenting opinion). Amici think the answer 
is that they may. The heart of this case is 42 U.S.C. 
§ 1983 which, together with its jurisdictional counter­
part, 28 U.S.C. § 1343(3), derives from § 1 of the Ku 
Klux Act of 1871.5 The overriding purpose of that en- 6

6 As originally passed, § 1 of the 1871 Act, 17 Stat. 13, read as 
follows:

Be it enacted, by the Senate and House of Representatives of 
the United States of America in Congress assembled, That 
any person who, under color of any law, statute, ordinance, 
regulation, custom, or usage of any State, shall subject, or 
cause to be subjected, any person within the jurisdiction of 
the United States to the deprivation of any rights, privileges, 
or immunities secured by the Constitution of the United 
States, shall, any such law, statute, ordinance, regulation, 
custom, or usage of the State to the contrary notwithstanding, 
be liable to the party injured in any action at law, suit in 
equity, or other proper proceeding for redress; such proceed­
ing to be prosecuted in the several district or circuit courts 
of the United States, with and subject to the same rights 
of appeal, review upon error, and other remedies provided in 
like cases in such courts, under the provisions of the act of the 
ninth of April, eighteen hundred and sixty-six, entitled “An act 
to protect all persons in the United States in their civil rights, 
and to furnish the means of their vindication” ; and the other 
remedial laws of the United States which are in their nature 
applicable in such cases.

The cause-of-action and jurisdictional parts of § 1 of the Ku 
Klux Act are now separately codified, the former being 42 U.S.C. 
§ 1983:

Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, sub-



12

actment was to provide a federal forum for the enforce­
ment of the then-recent federal rights conferred by the 
Fourteenth Amendment (1868). Monroe v. Pape, 365 
U.S. 167 (1961). The legislative history of the Ku Klux 
Act reveals that Congress, rather than seeking to utilize 
the state courts as the primary enforcers of the Four­
teenth Amendment, was displeased with those courts 
because of their past failures.6 Some state courts have 
refused to entertain § 1983 actions precisely because of 
that perceived congressional hostility.* 6 7 But the constitu­
tional correctness of those decisions is not at issue here,8

jeets, or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction thereof 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.

The jurisdictional provision is now 28 U.S.C. § 1343(3) :
The district courts shall have original jurisdiction of any 

civil action authorized by law to be commenced by any person:
*  *  *  *

(3) To redress the deprivation, under color of any State 
law, statute, ordinance, regulation, custom or usage, of any 
right, privilege or immunity secured by the Constitution of the 
United States or by. any Act of Congress providing for equal 
rights of citizens or of all persons within the jurisdiction of 
the United States;

The evolution process is informatively traced in Blue v. Craig, 
505 F.2d 830 (4th Cir. 1974).

6 See generally Monroe V. Pape, supra, 365 U.S. at 174-80. The 
mood of Congress and its attitude toward state courts was accurately 
summed up by Representative Yoorhees, an opponent of the Act, in­
cluding its provisions conferring federal-court jurisdiction: “This 
is to be done upon the assumption that the courts of the southern 
States fail and refuse to do their duty in the punishment of 
offenders against the law.” CONG. Globe, 42d Cong., 1st Sess., 
App. 179.

7 See, e.g., Chamberlain v. Brown, 442 S.W.2d 248 (Tenn. 1969).
8 Section 1983, of course, is in principal function a federal- 

court jurisdictional vehicle for civil actions arising under the



13

for the Colorado courts have not expressed unfriendli­
ness toward petitioner’s § 1983 claims. Indeed, the Colo­
rado Supreme Court’s opinion in this case appears un­
qualifiedly receptive to petitioner’s § 1983 arguments, and 
the court made a creditable attempt, albeit an erroneous 
one in our view, to interpret and apply federal law.9

With this background, the only state court/federal 
law question that could remain is whether, contrary to 
the Colorado Supreme Court’s assumption, state courts

Fourteenth Amendment (or, to be more precise, under “the Consti­
tution and laws’’). Section 1983 aside, it is difficult to perceive, 
given the Supremacy Clause (indeed, given the plain language 
of the Fourteenth Amendment itself), how a state court of general 
jurisdiction could, as in cases such as the one cited in note 7, 
supra, refuse to receive an action to vindicate Fourteenth Amend­
ment rights. Any contention that such state power exists would 
seem to have “been resolved by war” to the contrary. Testa V. 
Katt, supra, 330 U.S. 386, 390 (1947). But, as we say, that issue 
is not implicated here.

9 This case does not involve any of the knotty conflicts between 
state courts and federal law which have arisen from time to time 
over the years. Accordingly, we take a moment to identify what is 
not at issue here. In general, this case presents none of the more 
difficult problems flowing from Mr. Justice Bradley’s benchmark 
post-Civil War decision in Claflin V. Houseman, 93 U.S. 130 (1876), 
holding that federally-created rights could be vindicated in state 
courts with competent jurisdiction. More specifically, this case is 
not one in which the state court, by virtue of some uniformly- 
applied procedural rule pertaining to access to it, has refused to 
entertain a federal cause of action. Cf. Missouri ex rel. Southern 
Ry. V. Mayfield, 340 U.S. 1 (1950) (F rankfurter, J.) ; Douglas v. 
New York, N.H. & H.R.R., 279 U.S. 377 (1929) (Holmes, J.). 
Nor is this case one in which Congress has created a cause of action 
and conferred concurrent enforcement jurisdiction on the federal 
and state courts, but state-court jurisdiction is refused on grounds 
which discriminate against the cause of action solely because of 
its federal source. Cf. Testa v. Katt, 330 U.S. 386 (1947) (Black, 
J . ) ; McKnett V. St. Louis & S.F. Ry., 292 U.S. 230 (1934) (Bran- 
deis, J.) ; Second Employers’ Liability Cases (Mondou v. New 
York, N.H. & H.R.R.), 223 U.S. 1 (1912). And, manifestly, this 
case is not one in which Congress has attempted to force upon 
the state courts the duty to enforce a federal law. Cf. Brown v. 
Gerdes, 321 U.S. 178, 191 (1944) (Frankfurter, J., concurring).



14
lack authority to adjudicate § 1983 cases. In other words, 
are § 1983-Fourteenth Amendment causes of action mat­
ters, either expressly or by necessary implication, within 
the exclusive province of federal judicial power? Last 
Term three members of this Court expressed the view 
“that § 1983 claims are not claims exclusively cognizable 
in federal court but may also be entertained by state 
courts.” Aldinger v. Howard, supra, 96 S. Ct. at 2430 n. 
17 (1976) (Brennan, J., joined by Marshall and Black- 
mun, JJ., dissenting). That view, in our judgment, is un­
assailable in the light of established precedent. Without 
a case in this Court squarely on point, it would be dif­
ficult to find a more closely analogous decision than that 
in Charles Dowd Box Co. v. Courtney, 368 U.S. 502 
(1962).

Charles Dowd involved a labor-contract suit initiated 
in state court. By § 301(a) of the Labor Management 
Relations Act of 1947, however, Congress had provided 
that such suits “may be brought in any district court of 
the United States. . . .” See id. at 502. Section 301 was 
produced by circumstances not unlike those that gave 
birth to § 1983—namely the inadequacy or unavailability 
of state-court remedies:

A principal motive behind the creation of federal 
jurisdiction in this field was the belief that the 
courts of many States could provide only imperfect 
relief because of rules of local law which made suits 
against labor organizations difficult or impossible, by 
reason of their status as unincorporated associa­
tions.

Id. at 510. Moreover, in Textile Workers Union v. 
Lincoln Mills, 363 U.S. 448 (1957), this Court had 
held that § 301 cases brought in federal courts were to 
be governed by federal rather than state law, a proposi­
tion that inescapably obtains in § 1983-Fourteenth 
Amendment cases. The contention was accordingly made 
in Charles Dowd that even though § 301 did not express­



15

ly provide for exclusive federal-court jurisdiction, fed­
eral exclusivity must necessarily be implied from the 
Lincoln Mills-% 301 scheme as it had been implied in 
other cases.10 The Court unanimously rejected the argu­
ment in an opinion authored by Mr. Justice Stewart. 
Upon examination of the legislative history, the Court 
found that “the purpose of conferring jurisdiction upon 
the federal district courts was not to displace, but to 
supplement, the thoroughly considered jurisdiction of the 
courts of the various States over contracts made by la­
bor organizations.” Id. at 511. Congressional purpose 
was to submit § 301 problems “ ‘to the usual processes 
of the law.’ ” Id. at 513. This legislative history coupled 
with Justice Bradley’s Claflin v. Houseman 11 test—that 
the state courts have concurrent jurisdiction “where it is 
not excluded by express provision, or by incompatibility 
in its exercise arising from the nature of the particular 
case” (93 U.S. at 136)—led the Court in Charles Doivd 
to the inevitable conclusion that the state courts enjoyed 
jurisdiction concurrent with that of the federal courts in 
§ 301 cases.

A similar analysis leads to the same conclusion with 
respect to the authority of the state courts to hear § 1983 
cases. We have found nothing in the legislative debates 
manifesting a congressional desire to deprive the state 
courts of jurisdiction in Fourteenth Amendment cases. 
While it is true that Congress was displeased with the 
performance of state courts in this regard (see note 6, 
supra), it is also clear that Congress understood that 
Fourteenth Amendment rights could be vindicated in the 
state courts, as rights secured by the Contracts Clause, 
for example, had been historically, with ultimate federal

10 See, e.g., San Diego Building Trades Council v. Garmon, 359 
U.S. 236 (1959); Gamer v. Teamsters, C. & H. Local Union, 346 
U.S. 485 (1953) ; Brown V. Gerdes, 321 U.S. 178 (1944).

11 See note 9, supra.



16

protection provided in the form of review by this Court 
under § 25 of the Judiciary Act of 1789.12 Yet, there is 
no indication whatsoever that Congress intended § 1 of 
the Ku Klux Act to deprive the state courts of power 
to decide Fourteenth Amendment cases. It simply chose 
the federal judiciary, which it viewed as being less sus­
ceptible to the pressures of popular passions than the 
state court systems, as the primary forum for the ad­
judication of individual federal rights13—primary but, 
at the litigant’s option, not exclusive.14

The language of § 1983’s jurisdictional grant, 28 
U.S.C. § 1343(3), also fails to support an argument for 
exclusivity. There is no difference between the language 
of § 301 considered in Charles Dowd and that of § 1343 
sufficient to require a different conclusion. The principal 
difference is that § 301 spoke in terms of “may” (labor- 
contract cases “may be brought in any district court of 
the United States” ), while § 1343’s preamble speaks in 
terms of “shall” (“ [t]he district courts shall have orig­
inal jurisdiction” of the enumerated civil actions, includ­
ing those authorized by § 1983).15 But the “shall” man­
date simply obliges federal courts to receive § 1983 
cases; it does not preclude the state courts from also

12 See Monroe v. Pape, supra, 365 U.S. at 194-98 (Harlan, J., 
concurring).

13 See, e.ff., Steffel v. Thompson, 415 U.S. 452 (1974) ; District of 
Columbia V. Carter, 409 U.S. 418 (1973); Lynch V. Household 
Finance Corp., 405 U.S. 538 (1972); Mitchum v. Foster, 408 U.S. 
225 (1972); Zwiclder v. Koota, 389 U.S. 241 (1967).

14 When the Congress of these times desired to confer exclusive 
federal jurisdiction, it knew how to do it expressly. See note 36, 
infra, for example.

15 The original jurisdictional language, as it appeared in § 1 
of the Ku Klux Act (see note 5, supra) authorized an appropriate 
“action at law, suit in equity, or other proper proceeding for re­
dress; such proceeding to be prosecuted in the several district or 
circuit courts of the United States. . . .”



17
entertaining them. That is the teaching, without excep­
tion, of the Claflin v. Houseman line of cases.

State courts are thus free to contribute to § 1983- 
Fourteenth Amendment jurisprudence. Of course, in 
the contribution process it is federal law rather than 
state law which they must expound. The Court made 
that clear enough when later in the same Term that 
produced Charles Dowd it rejected a state-court deter­
mination that state courts could apply state law in § 301 
cases. Local 17J V. Lucas Flour Co., 369 U.S. 95 (1962).  
That conflict, however, is not presented by the decision 
below in this case, as the Colorado Supreme Court made 
a straightforward effort to determine and apply federal 
law. The case is thus in no different posture for deci­
sion-making purposes than it would be had it arrived 
here from a lower federal court. The Court’s task in this 
case, as in the numerous previous state-court cases re­
quiring the application of federal law by this Court,16 
.as well as the many federal cases in which the Court 
has been required to develop federal law,17 is to decide 
what federal law is or ought to be and apply it to the 
case. That such cases may occasionally arise in the state 
courts is an asset rather than a liability; it is good con­
stitutional law and, consequently, good federalism. As 
Mr. Justice Stewart put it in Charles Dowd (368 U.S. 
at 514) (footnote omitted) :

It is implicit in the choice Congress made that “di­
versities and conflicts” may occur, no less among the 
courts of the eleven federal circuits, than among the 
courts of the several States, as there evolves in this 
field of labor management relations that body of

16 See, e.g., Sullivan V. Little Hunting Park, 396 U.S. 229 (1969); 
Local 17U v. Lucas Flour Co., supra; Farmers Educ. Cooperative 
Union v. WDAY, 360 U.S. 525 (1959) ; McAllister v. Magnolia 
Petroleum Co., 357 U.S. 221 (1958); Garrett v. Mo or e-McCormack 
Co., 317 U.S. 239 (1942); and other cases discussed in Argument 
IV, infra.

17 See, e.g., cases and authorities discussed in Argument IV, infra.



18

federal common law of which Lincoln Mills spoke. 
But this not necessarily unhealthy prospect is no 
more than the usual consequence of the historic ac­
ceptance of concurrent state and federal jurisdic­
tion over cases arising under federal law. To re­
solve and accommodate such diversities and conflicts 
is one of the traditional functions of this Court.

II. Civil Actions May Be Maintained Under 42 U.S.C. 
§ 1983 By Persons, Such As Petitioner Here, Who Seek 
To Redress Unconstitutional State Action Resulting 
In Human Death.

Although this Court has never addressed the question,18 
the lower federal courts are in unanimous agreement 
that death does not abate a pending § 1983 cause of ac­
tion nor prevent the bringing of such an action for un­
constitutional conduct which causes death.19 These courts

18 In Moor v. County of Alameda, 411 U.S. 693, 702 n.14 (1973), 
the Court noted, without approval or disapproval, that the lower 
federal courts had applied “state survivorship statutes” in § 1983 
cases. In Scheuer v. Rhodes, 416 U.S. 232 (1974), the Court con­
sidered other problems in a § 1983 wrongful-death case without 
alluding to any of the questions present here.

19 At common law, death gave rise to no cause of action and 
terminated all those for personal torts. As described by this Court 
in Moragne v. States Marine Lines, Inc., 393 U.S. 375 (1970), the 
reason can be traced to the felony-merger doctrine, under which 
the penalty for committing a felony included the forfeiture to the 
Crown of all property owned by the wrongdoer. The harshness of 
the doctrine has been substantially ameliorated by the passage of 
statutes both in England and in this country. While these statutes 
vary widely in their terms and scope, most legislative schemes 
create two separate and distinct causes of action. The first, termed 
“survival” statutes, generally permits recovery by the decedent’s 
executor of damages which accrued from the injury prior to the 
death of the decedent. See Sea-Land Services v. Gaudet, 414 U.S. 
573, 575 n.2 (1974). The second, generally described as “wrong­
ful-death” statutes, permits the heirs to bring suit subsequent 
to the decedent’s death for the loss to them. See generally 2 F. 
Harper & F. J ames, Law of Torts §§ 24.1-24.3 (1956), C. McCor­
mick Handbook on Damages § 12 (1935). Colorado has enacted both



19

have uniformly considered themselves obligated by estab­
lished principles to fashion a federal law of wrongful 
death and survival in § 1983 cases.20 To be sure, these 
courts also frequently utilize 42 U.S.C. § 1988 (which 
we discuss below) as a vehicle by which to utilize state 
wrongful-death and survival provisions. But when rele­
vant state law is absent or found wanting, the courts 
proceed to shape a suitable federal rule.21 Amici believe

types of statutes; the wrongful-death action is created by Colo. 
Rev. Stat. § 13-21-202 and the survival statute is § 13-20-101. An 
action under the survival statute does not preclude an action for 
wrongful death. Id., §13-20-101(1). The former must be brought 
by the executor of the decedent’s estate, but the latter may be 
brought by certain designed survivors. Some states permit sur­
vival actions to be brought by the executor of the estate for dam­
ages even where death is instantaneous. Colorado apparently is not 
one of these. See Publix Cab Company v. Colorado National Bank 
of Denver, 139 Colo. 205, 338 P.2d 702, 706 (1959). The difference 
between wrongful-death and survival statutes is discussed in W. 
Prosser, Law of Torts, §§ 126, 127 (4th ed. 1971); Malone, The 
Genesis of Wrongful Death, 17 Stan. L. Rev. 1043, 1044 (1965).

Since petitioner’s decedent died instantly, this suit was com­
menced under the Wrongful Death Statute and not the survival 
statute. Petitioner sued individually as the mother of the decedent 
and not as the administratrix of her son’s estate. Thus, as the 
complaint made clear, the suit, insofar as it states a claim under 
42 U.S.C. § 1983, asserts a cause of action on the basis of the alleged 
unlawful killing of petitioner’s son.

20 See, e.g., Spence V. Staras, 507 F.2d 554, 557 (7th Cir. 1974); 
Hall V. Wooten, 506 F.2d 564 (6th Cir. 1974); Mattis V. Schnarr, 
502 F.2d 588, 593 (8th Cir. 1974) ; Brazier v. Cherry, 293 F.2d 
401 (5th Cir.), cert, denied, 368 U.S. 921 (1961); Pritchard v. 
Smith, 289 F.2d 153 (8th Cir. 1961) ; Smith v. Wickline, 396 F. 
Supp. 555 (W.D. Okla. 1975); James v. Murphy, 392 F. Supp. 641 
(M.D. Ala. 1975); Evain v. Conlisk, 364 F. Supp. 1188 (N.D. 111. 
1973), aff’d, 498 F.2d 1403 (7th Cir. 1974) ; Perkins v. Salafia, 338 
F. Supp. 1325 (D. Conn. 1972); Salazar V. Dowd, 256 F. Supp. 220 
(D. Colo. 1966) ; Cinnamon V. Abner A. Wolf, Inc., 215 F. Supp. 
833 (E.D. Mich. 1963) ; Davis v. Johnson, 138 F. Supp. 572 (N.D.
111. 1955).

21 See, e.g., Shaw V. Garrison, 545 F.2d 980 (5th Cir. 1977) (Wis­
dom, J .) .



20

that this result is wholly sustainable as a rightful part 
of the business of judging in a federal system, quite 
apart from § 1988 or state law.

A. Section 1983 Creates A Constitutional Cause of 
Action Wholly Apart From State Tort Law.

Section 1983-Fourteenth Amendment actions at law 
are inherently distinct from state tort actions and, for 
that matter, any other type of legal action that does not 
concern personal rights guaranteed by the Constitution. 
We are confirmed in this view by all of this Court’s 
§ 1983 decisions from Monroe v. Pape, 365 U.S. 194 
(1961) through Paul v. Davis, 424 U.S. 693 (1976). 
Those decisions instruct that the facts which make out 
a § 1983 cause of action may coincidentally consti­
tute a state-law tort or some other violation of state 
law, but that conduct unlawful under state law does not 
ipso facto establish the components of a § 1983 case. 
The failure to perceive this critical distinction is at the 
bottom of the Colorado Supreme Court’s erroneous con­
clusion that petitioner’s § 1983 claim merged with her 
state-law claims.

The inherently unique nature of a § 1983 case derives 
not solely from the “under color of law” element, see 
Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970), 
although this is the ingredient that in the first instance 
distinguishes § 1983 from common-law tort doctrine. The 
more important difference, in cases such as this, is the 
fact that § 1983 is a vehicle for the vindication of in­
dividual constitutional rights guaranteed by the Four­
teenth Amendment.23 As Mr. Justice Harlan explained 
in Monroe v. Pape, supra, 365 U.S. at 196 (concurring 
opinion), “a deprivation of a constitutional right is sig­
nificantly different from and more serious than a viola- 22

22 This case does not involve the “and laws” portion of § 1983,



21

tion of a state right and therefore deserves a different 
remedy even though the same act may constitute both 
a state tort and the deprivation of a constitutional right.” 
It is because constitutional rights are involved that the 
interests protected by § 1983 transcend the values with 
which the general common law is concerned. The dis­
trict court’s decision in Shaw v. Garrison, 391 F.Supp. 
1353 (E.D. La. 1975), aff’d, 545 F.2d 980 (5th Cir. 
1977), illustrates the distinction. There Judge Heebe 
refused to allow a pending § 1988 action to abate because 
of the death of the plaintiff, although under state law 
governing actions for libel, slander or malicious prosecu­
tion the death of the plaintiff would have abated the 
action. The inherent difference between § 1983-Four- 
teenth Amendment actions and state-tort actions was 
critical to Judge Heebe’s decision (391 F.Supp. at 1364 
n.17) :

The fact of the matter is that this is not a state 
action for libel, slander or malicious prosecution, but 
a federal action for violation of plaintiff’s civil 
rights. We have already determined that the pur­
poses underlying this statute require that the action 
not abate, if there is some proper mechanism for 
survival. The fact that some states may have a dif­
ferent policy for a cause of action based on the 
same facts yet differently characterized should not 
be binding on a federal court construing civil rights 
actions.

It is not only § 1983’s concern with constitutional 
rights, however, that makes it intrinsically unique. For 
there is the added factor of the statute’s great remedial 
design. It is thus because of the overriding constitutional 
remedial purpose of § 1983’s private enforcement scheme 
—designed both to compensate for and to deter constitu­
tional injury—that causes of action thereunder require



22

a special place in the litigation hierarchy.28 It is, in

23 As stated in Niles, Civil Actions for Damages Under the 
Federal Civil Rights Statutes, 45 Tex.L.Rev. 1015, 1026 (1967) :

[T]he basic policy behind tort law is compensation for 
physical harm to an individual’s person or property by shifting 
losses from the one injured to. the one perpetrating the injury, 
while the underlying policy of the civil rights statutes is quite 
different. The legislative intent behind these statutes is not 
entirely certain since other provisions of the Act of 1871 re­
ceived far more attention in congressional debate than did those 
that eventually became sections 1983, 1985, and 1986. One pur­
pose of the Act apparently was to provide a federal forum 
for rights that the disorganized Southern state governments 
were not protecting adequately. It seems clear, however, from 
the statements of a few legislators, the title of the Act itself, 
and the circumstances surrounding its passage that the Act’s 
primary purpose was to enforce the fourteenth amendment by 
providing a positive, punitive civil remedy for acts of racial 
discrimination. Thus an award of damages would depend not 
on the common-law test of whether a plaintiff had suffered 
a measurable physical or economic injury, but on whether the 
defendant’s conduct came within the scope of actions that the 
statutes were intended to penalize. While traditional tort law 
damages rules may be appropriate to accomplish some of the 
civil rights statutes’ purposes, the tort-law rules do no [sic] 
allow full realization of those purposes because of their empha­
sis upon loss-shifting rather than upon punishment and de­
terrence. [footnotes omitted]

Since § 1983 and common-law tort concepts protect different inter­
ests, and concern different legal relationships, a plaintiff injured in 
both respects may maintain separate suits in both state and federal 
courts, even though both wrongs arise out of the same occurrence. 
Page, State Law and the Damages Remedy Under the Civil Rights 
Act: Some Problems in Federalism, 43 Denver L.J. 480, 481, 483
(1966) . Or, both the state and federal claims may be combined in 
a single suit in state court, as here; or, with certain limitations, 
both claims may be brought in one suit in federal court, with the 
state claim cognizable under the doctrine of pendent jurisdiction. 
Aldinger v. Howard, 96 S. Ct. 2413 (1976). This does not mean, 
of course, that double recovery will be permitted for the same ele­
ments of injury. See Stringer v. Dilger, 313 F.2d 536, 541-42 (10th 
Cir. 1963) ; Rue V. Snyder, 249 F. Supp. 740, 743 (E.D. Tenn. 
1966); see generally Niles, Civil Actions for Damages Under the 
Federal Civil Rights Statutes, 45 Tex. L. Rev. 1015, 1029-30
(1967) . Cf. Sea-Land Services v. Gaudet, 414 U.S. 573 (1974). 
Thus, in the instant case, the jury (had petitioner’s § 1983 claims



23

other words, the superior quality of these “federally pro­
tected rights” that calls into play the intense judicial 
scrutiny not normally associated with the legal relation­
ships governed by the general common law as developed 
by the states. See Bell v. Hood, 327 U.S. 678, 684 
(1946). That the statute is preoccupied with remedy is 
made plain from the congressional debates on both the 
Fourteenth Amendment and its principal enforcement 
mechanism, the Ku Klux Act, from which § 1983 derives. 
It was repeatedly asserted that equal rights and the 
privileges and immunities of citizens were being denied 
by the states, “and that without remedy.” Cong. Globe, 
39th Cong., 1st Sess. 2542 (Remarks of Rep. Bingham 
with reference to § 1 of the proposed Fourteenth Amend­
ment). And the opponents contended that the majority 
of Congress were willing “to overturn the whole Con­
stitution to get at a remedy for these people.” Id. at 
499 (Sen. Cowan). The Ku Klux Act which Congress 
debated in the Spring of 1871 did not “overturn the 
whole Constitution,” but there can be no doubt that its 
central thesis was to provide a supervening federal 
remedy for denial of the fundamental rights which the 
Fourteenth Amendment was designed to secure as against 
the states. See, e.g., Cong. Globe, 42d Cong., 1st Sess., 
App. 85 (Rep. Bingham, the author of § 1 of the Four­
teenth Amendment).

With respect to this central remedial theme, and im­
portantly for this case, it is clear that Congress did not 
intend to place death-dealing constitutional injury be­
yond the reach of the statute. Quite simply, “it defies 
history to conclude that Congress purposely meant to as­
sure to the living freedom from such unconstitutional de­
privations, but that, with like precision, it meant to

been submitted to the jury) could have been instructed that if the 
defendants were found liable under both the state and federal 
claims, the verdict under § 1983 could not reflect the “net pecuniary 
loss” damages recoverable under the state causes of action.



24

withdraw the protection of civil rights statutes against 
the peril of death.” Brazier v. Cherry, supra, 293 F.2d 
at 404.24 25 Indeed, President Grant’s message to Congress, 
which inspired the Ku Klux Act, was predicated upon 
“ [a] condition of affairs [that] now exists in some States 
of the Union rendering life and property insecure . . . .” 
Cong . Globe, 42d Cong., 1st Sess. 244 (emphasis added); 
see Monroe v. Pape, supra, 365 U.S. at 172. And hardly 
a page of the debates passes without at least one ref­
erence to murder, lynchings and other modes of killing. 
It was the purpose of the Ku Klux Act to provide federal 
protection for “life, person and property,” Cong . Globe, 
42d Cong., 1st Sess. 321, 322 (Rep. Stoughton) ; it was 
an effort to attain “that twilight civilization in which 
every man’s house is defended against murder and ar­
son. . . .” Id. at 370 (Rep. Monroe). The debates are 
replete with such references. See also, e.g., id. at 374 
(Rep. Lowe), 428 (Rep. Beatty), quoted in Monroe v. 
Pape, supra, 365 U.S. at 175.

On the other hand, there is nothing in the debates to 
support a contention that § 1 of the Act (now § 1983) 
was intended to limit the authorized civil action by the 
“person injured” to those circumstances where death does 
not occur.23 The only contrary argument we are aware

24 The Brazier court went on to point out that “ [t]he policy of 
the law and the legislative aim was certainly to protect the security 
of life and limb as well as property against these actions. Violent 
injury that would kill was not less prohibited than violence which 
could cripple.” 293 F.2d at 404. As the court observed in Davis v. 
Johnson, 138 F. Supp. 572, 574 (N.D. 111. 1955), a contrary holding 
“would encourage officers not to stop after they had injured but 
to be certain to kill.” See also W. P r o s s e r , L a w  o f  T o r t s § 127 
at p. 902 (4th ed. 1971).

25 Some courts, in fact, have held that the decedent’s executor is 
a “person injured” within the contemplation of § 1983. See, e.g., 
Davis V. Johnson, 138 F. Supp. 572 (N.D. 111. 1955) ; cf. Scheuer 
V. Rhodes, 416 U.S. 232 (1974).



25

of is the one, consistently rejected,26 contending that by 
expressly providing for wrongful-death actions in § 6 
of the Ku Klux Act (now 42 U.S.C. § 1986),27 Congress 
implicitly evidenced its desire to deny wrongful-death

26 See, e.g., Hall v. Wooten, supra, 506 F.2d a t 568-69 n.3; Brazier 
V. Cherry, supra, 293 F.2d a t 404.

27 Section 6 of the Ku Klux Act, 17 Stat. 13, originally provided 
as follows:

That any person or persons, having knowledge that any of 
the wrongs conspired to be done and mentioned in the second 
section of this act are about to be committed, and having power 
to prevent or aid in preventing the same, shall neglect or refuse 
so to do, and such wrongful act shall be committed, such person 
or persons shall be liable to the person injured, or his legal 
representatives, for all damages caused by any such wrongful 
act which such first-named person or persons by reasonable 
diligence could have prevented; and such damages may be 
recovered in an action on the case in the proper circuit court 
of the United States, and any number of persons guilty of 
such wrongful neglect or refusal may be joined as defendants 
in such action: Provided That such action shall be commenced 
within one year after such cause of action shall have accrued; 
and if the death of any person shall be caused by any such 
wrongful act and neglect, the legal representatives of such 
deceased person shall have such action therefor, and may re­
cover not exceeding five thousand dollars damages therein, for 
the benefit of the widow of such deceased person, if any there 
be, or if there be no widow, for the benefit of the next of kin 
of such deceased person.

As codified in 42 U.S.C. § 1986, the wrongful-death provision of 
the statute reads:

and if the death of any party be caused by any such wrongful 
act and neglect, the legal representatives of the deceased shall 
have such action therefor, and may recover not exceeding $5,000 
damages therein, for the benefit of the widow of the deceased, 
if there be one, and if there be no widow, then for the benefit 
of the next of kin of the deceased. But no action under the 
provisions of this section shall be sustained which is not com­
menced within one year after the cause of action has accrued.

The “second section of this act” referred to in the original § 6 is 
now 42 U.S.C. § 1985, insofar as it authorizes civil actions against 
those affirmatively engaged in conspiracies to violate civil rights. 
See generally Griffin V. Breckenridge, 402 U.S. 88 (1971).



26

actions under § l .28 This is more than the process of

28 As we point out in the text following this note, § 1 of the Act 
was not the cause of most of the controversy during the Ku Klux 
debates. Hence, it is very tenuous to draw inferences about § 1 from 
what happened with other parts of the bill, especially § 6. The Act 
originated in the House as H.R. 320, where it passed and was sent 
to the Senate by a vote of 118 to 91. Cong. Globe, 42d Cong., 1st 
Sess. 522. During the course of the Senate debates, Senator Sher­
man introduced an amendment which would have imposed civil liabil­
ity for personal injuries and property damages resulting from the 
conduct of “any persons riotously and tumultuously assembled to­
gether” upon all of “the inhabitants of the county, city or parish” 
wherein such injury or damage occurred. Id. at 663. The proposed 
Sherman amendment also provided that such “riot damages” would 
be payable “to the person or persons damnified by such offense if 
living, or to his widow or legal representative if dead.” Id. This 
was the first time a wrongful-death provision expressly appeared in 
the Ku Klux Act or any of its proposed amendments, yet there is no 
explanation for it. Although the Sherman amendment was adopted 
in the Senate (by a vote of 39 to 25) without debate (id. at 705), 
and was thus added to the Senate version of the Act, it ran into a 
storm of opposition in the House, as outlined in Monroe v. Pave, 
supra, 365 U.S. at 188-90. The House refused to concur in the 
Sherman amendment, by a vote of 132-45, and the bill was referred 
to House-Senate conference. Cong. G l o b e , supra, at pp. 725, 728. 
A modified version of the Sherman amendment was worked out in 
conference and sent to both the House and Senate. This revised 
version (see id. at 749) provided that the actual wrongdoers must 
also be joined in an action authorized by the amendment; it pre­
vented, in Representative Shellabarger’s words, “a claimant entitled 
to recover from resorting to property of individuals at all and con- 
fin [ed] his right of recovery to the county or city in which the 
mischief was done,” id. at 751; it provided that the city or county 
would be liable only to the extent a judgment could not be satisfied 
against the actual wrongdoers; and it continued the wrongful-death 
authorization from the first version. The conference report contain­
ing this revised version of the Sherman amendment again passed 
the Senate (by a vote of 32-16, id. at 779), but also again failed in 
the House (106 to 74). Id. at 800-01. A new conference was con­
vened, and it was at this second conference that § 6 of the Act was 
first proposed (see id. at 804). The second conference report con­
taining § 6 (now 42 U.S.C. § 1986, see note 27, supra) ultimately 
passed both the House (97 to 74) (id. at 808) and the Senate (36- 
13). Id. at 831. Relevant to the present discussion, the §6 com­
promise also contained a wrongful-death provision, though it was 
altered from the earlier Sherman proposals to include a one-year



27

negative implication will bear—for several reasons. First, 
it is indeed “odd to draw restrictive inferences from a 
statute whose purpose was to extend recovery for wrong­
ful death.” The Tungus v. Skovgaard, 358 U.S. 588, 608 
(1959) (Brennan, J., dissenting). Second, the negative- 

implication argument overlooks the facts that § 1 of the 
Ku Klux Act was not the primary focus of controversy 
(see Adickes v. S. H. Kress & Co., supra, 398 U.S. at 
164-65; Monroe v. Pape, supra, 365 U.S. at 364-65), 
and that the political bartering process extant in 1871 
was not conducive to “achieving legislative patterns of 
analytically satisfying symmetry.” Id. at 248 (Frank­
furter, J., dissenting). Third, the argument neglects the 
importance of the fact that § 6 was negotiated into the 
Act after § 1 had passed both houses of Congress by 
safe margins (see note 28, supra). And, finally, this 
Court in Moragne v. States Marine Lines, Inc., 398 
U.S. 375, 393-402 (1970), unanimously rejected a simi­
lar argument based on considerably stronger historical 
evidence.

statute of limitations and a $5,000 ceiling on recoverable damages. 
The debates shed virtually no light on why § 6 specifically author­
ized wrongful-death actions but the other sections did not. The only 
discussion of the wrongful-death provision appears in the remarks 
of Representative Shellabarger, where he offers his view that the 
wrongful-death provision in § 6 will “operate back upon the second 
section [now 42 U.S.C. § 1985, see note 27, supra],” whose failure 
to contain such a provision was a “defect” in that section. Id. at 805. 
At most, this rather sparse history, coming from one among many 
who debated the Act, is inconclusive. Just why the Sherman pro­
posals, which form § 6’s background, contained a wrongful-death 
authorization is obscure; although it seems plausible that these 
rather startling propositions called for special consideration because 
they created causes of action, in the view of many of the opponents, 
theretofore unheard of in the law. Cf. Baker v. F. & F. Investment 
Co., 420 F.2d 1191, 1195 (7th Cir.), cert, denied sub nom. Universal 
Build-ers Inc. v. Clark, 400 U.S. 821 (1970). But whatever the ex­
planation, § 1 had already passed beyond any point of controversy, 
and there is simply no basis for drawing inferences about § 1 from 
what happened in connection with the hotly contested proposals 
which became § 2 and § 6.



28

Thus, whatever the reason for Congress’ failure to 
expressly provide for § 1983 wrongful-death actions in 
1871, it is simply impossible to infer that they silently 
intended to deny for all time the availability of such suits. 
Many of the men who comprised the Congress during 
these days were notably competent lawyers,29 * and it is 
highly unlikely that they did not understand the full 
ramifications of their grant of an “action at law.” 3,0 The 
debates reveal that they were students of the common 
law; that they were knowledgeable about how it had 
developed and, presumably, how it would continue to 
develop. When they chose, as they clearly did, to entrust 
the vindication of Fourteenth Amendment rights to the 
federal judiciary with “all the power of its courts,” 
Cong . Globe , 42d Cong., 1st Sess. 578 (Sen. Trumbull), 
609 (Sen. Pool), they therefore most assuredly knew 
what they were doing.

Regardless of their understanding or assumptions 
about the availability of wrongful-death actions in 1871,31

29 See Romero V. International Terminal Operating Co., 358 U.S. 
354, 366-67 & n.22 (1959).

80 In § 3 of the Enforcement Act of May 31, 1870, 16 Stat. 
140, the Congress authorized “an action on the case,” revealing its 
understanding of torts not committed by force. See B l a c k ’S L a w  
D icti ona ry 51 (4th ed. 1957). And in §15 of the Force Act of 
February 28, 1871, 16 Stat. 433, for another comparative exam­
ple, Congress referred to “all cases in law or equity” and provided 
for a “suit for damages” for injury to person or property.

31 The common law of England adopted by the States provided 
for the survival of certain actions, see Moore V. Backus, 78 F.2d 
571, 573-75 (7th Cir. 1935) and state wrongful-death statutes were 
not uncommon in those days, see Mobile Ins. Co. V. Brame, 95 U.S. 
754 (1878). The common law rule that death gives rise to no cause 
of action is not simply an aspect of the rule that personal actions 
die with the person. It is of later vintage and its origin has been 
described as a “judicial accident.” Smedley, Wrongful Death—Bases 
of the Common Law Rules, 13 Vand.L.Rev. 605, 609 (1960). Lord 
Ellenborough’s declaration in Baker v. Bolton, 1 Camp, 493, 170 
Eng. Rep. 1033 (1808) came in a nisi prius case of little moment



20

without benefit of any reasoning or supporting authority. This 
fiat may have reflected confusion over the effect of the maxim 
that personal actions die with the person or from unwarranted 
assumptions regarding the felony-merger doctrine. Id. at 614-615. 
It was not generally followed either here or in England.

The first case in this country denying a cause of action for 
death was in 1848. Malone, The Genesis of Wrongful Death, 17 
Stan.L.Rev. 1043, 1066 (1965). American colonial courts com­
monly provided compensation to bereaved families in cases of negli­
gent death. Id. at 1062-66. The 1848 decision of the Massachusetts 
Supreme Court in Carey v. Berkshire Railroad, 55 Mass, (1 Cush.) 
475, 48 Am. Dec. 616 (1848), applying the rule of Baker v. Bolton 
without explanation, was followed by acceptance of the general 
principle in both American and English courts. Id. at 1068. It has 
been suggested that one reason the Massachusetts Court took the 
position it did was that the Massachusetts General Assembly had 
“preempted the field” of death claims by punishing, under the crim­
inal law, certain activities resulting in deaths. Id. at 1069-70. 
Whatever the reason, other jurisdictions followed suit and through­
out the latter part of the nineteenth century, courts regularly 
denied death actions brought on common-law principles. Id. at 1071. 
Most of these cases arose in the context of litigants who did not 
qualify under the Death Acts which had long existed in some 
states for specialized situations and which proliferated after Lord 
Campbell’s Act was enacted by Parliament in 1846.

Even before the adoption of Lord Campbell’s Act, several states 
had passed legislation in the nature of survival actions for certain 
types of injuries—including death resulting from assault and 
battery. Malone, American Fatal Accidents Statutes—Part I: The 
Legislative Birth Pains, 1965 D u k e  L.J. 673. It was, however, 
the emergence of the steam railway in the middle nineteenth 
century which sparked the passage of death legislation throughout 
the country. From 1840 to 1887, 16 states made special provision 
for death resulting from railroad operations. Id. at 678. The first 
of these was Massachusetts in 1840. The act was penal in nature, 
a characteristic which still describes that state’s law. While all 
laws dealt with the terrible toll taken by steamboats and locomotives 
as a separate category, some states sought from the beginning to 
encompass all types of situations resulting in death. Originally, 
Colorado counted itself among this group. Id. at 682. In 1872 
Colorado enacted a general death statute similar to Lord Campbell’s 
Act. In 1877, it inexplicably abandoned this approach and enacted 
a new statute patterned after Missouri’s statute. Missouri, which 
became the prototype for several states, was of the “dual coverage” 
type, treating carriers differently from other defendants in death 
cases. Colorado still has this form of Death Act. Id. at 691. C o l o . 
R e v . S t a t . § 13-21-201, providing a wrongful death action for in­



30

therefore, these Congressmen would not have thought 
that the “action at law” (or, for that matter, the “suit 
in equity, or other proper proceeding for redress” ) they 
were authorizing was a static concept. Representative 
Shellabarger introduced the bill (H.R. 320) which be­
came the Ku Klux Act by emphasizing that it was “in 
aid of the preservation of human liberty and human 
rights,” and that it was to be given “the largest latitude 
consistent with the words employed as are given statutes 
and constitutional provisions which are intended to pro­
tect and defend and give remedies for their wrongs.”

juries sustained by any “locomotive, car or train of cars”, is still 
a penal action in the Massachusetts mold, Clint V. Stolworthy, 144 
Colo, 597, 357 P.2d 649 (1960), while § 13-21-202, providing a 
general wrongful death cause of action, is remedial. Jones V. Hilde- 
hrant, 550 P.2d at 344; Clint v. Stolworthy, supra,.

Thus, while not all-encompassing, many states had Death Acts on 
the books prior to 1871 and many of these provided for survival of 
claims where the injury to the decedent arose out of an assault and 
battery. The Reconstruction Congress which drafted the Ku 
Klux Act of 1871 would have had reason to believe that the legis­
latures of the several states were aware of the harshness of the 
common law rule that death gave rise to no cause of action and, 
largely because of the alarming rate of deaths attributable to the 
steam engine, were doing something about it. This Court, under the 
general-common law reign of Swift V. Tyson, 16 Pet. (U.S.) 1 
(1842), had not yet settled the issue of the availability of wrong­
ful-death actions in the absence of statutory authorization. In 
1878, seven years after the enactment of § 1983, this Court held for 
the first time that death does not give rise to a cause of action. 
Mobile Insurance Company V. Brame, 95 U.S. 754 (1878). And it was 
not until 1880 that the Court held that federal courts had jurisdiction 
in diversity cases of suits brought under state wrongful death 
acts. Dennick v. Central Railway Company of New Jersey, 103 U.S. 
11 (1880). In subsequent cases the Court held that, when federal 
courts considered claims for wrongful death, their incorporation 
of state wrongful death acts included any state-imposed limitations 
on liability. See, e.g., Atchison, Topeka & Santa Fe Railway Com­
pany V. Sowers, 213 U.S. 55, 66-67 (1909). This was a sensible 
rule in the context of diversity jurisdiction where no federal cause 
of action such as that created by § 1983 was involved. Obviously, 
different considerations govern here.



Co n g . Glo b e , 42d Cong., 1st Sess., App. 68. There is no 
reason why he should not be taken at his word.

B. In §1983 Death Cases The Courts Are Authorized, 
Both By General Principles Of Federal Remedial 
Law And By 42 U.S.C. % 1988, To Utilize State  
Wrongful-Death Statutes.

It has been a common practice in this Court, in the 
lower federal courts, and in the state courts, when con­
fronted with problems arising in federal subject-matter 
litigation which Congress has not specifically addressed, 
to resort to state law for the appropriate solution. As 
the Court stated in Clearfield Trust Co. v. United States, 
318 U.S. 363, 367 (1943) : “In our choice of the applicable 
federal rule we have occasionally selected state law.” In 
some cases this is justified on the assumption “that Con­
gress has consented to application of state law . . . .  
[a]nd in still others state law may furnish convenient 
solutions in no way inconsistent with adequate protec­
tion of the federal interest.” United States v. Standard 
Oil Co., 332 U.S. 301, 309 (1947). But it is repeatedly in­
sisted that “the question is one of federal policy, affect­
ing not merely the federal judicial establishment and the 
groundings of its action, but also the [federal] legal 
interests and relations, a factor not controlling in the 
types of cases producing and governed by the Erie rul­
ing.” Id.

The circumstances in which state law is looked to in 
federal causes of action are manifold. Of particular 
relevance to this case are the situations where death pre­
sents a potential barrier to continuation or maintenance 
of a suit involving federal rights. For example, in the
context of antitrust litigation,32 FELA cases,33 and the
-----------  : :

32 See, e.g., Rogers v. Douglas Tobacco Bd. of Trade 244 F 2d 
471 (5th Cir. 1957).

33 See, e.g., Dellaripa v. New York, N.H. & H.R.R., 257 F 2d 733 
(2d Cir. 1958).

SI



32

exercise of admiralty and maritime jurisdiction,34 the 
courts have looked to state survival and wrongful-death 
mechanisms, as a matter of federal law, and have utilized 
state law only when adequate to vindicate the federal 
interests involved. This practice has been so pervasive 
that it must be deemed to be a part of the fabric of 
federal law.

The practice just discussed has been specifically author­
ized by Congress in connection with both civil and crimi­
nal litigation under the Reconstruction-era civil rights 
acts. The legislative authorization in question is now 
codified in 42 U.S.C. § 1988.35 36 It derives from § 3 of the 
Civil Rights Act of April 9, 1866, 14 Stat. 27.3<! Section

34 See, e.g., Van Beech V. Sabine Towing Co., 300 U.S. 342 (1936).
35 42 U.S.C. § 1988 provides in full:

The jurisdiction in civil and criminal matters conferred on 
the district courts by the provisions of this chapter and Title 18, 
for the protection of all persons in the United States in their 
civil rights, and for their vindication, shall be exercised and 
enforced in conformity with the laws of the United States, so 
far as such laws are suitable to carry the same into effect; but 
in all cases where they are not adapted to the object, or are 
deficient in the provisions necessary to furnish suitable reme­
dies and punish offenses against law, the common law, as modi­
fied and changed by the constitution and statutes of the State 
wherein the court having jurisdiction of such civil or criminal 
cause is held, so far as the same is not inconsistent with the 
Constitution and laws of the United States, shall be extended 
to and govern the said courts in the trial and disposition of 
the cause, and, if it is of a criminal nature, in the infliction of 
punishment on the party found guilty.

Although § 1988 is by its terms directed to the federal courts, this 
Court has held that it  has equal applicability to civil rights cases 
arising in the state courts. Sullivan V. Little Hunting Park, 396 
U.S. 259 (1969).

36 The original version of § 3 commenced by providing for federal 
jurisdiction “exclusively of the courts of the several states” with 
respect to criminal cases arising under the provisions of the 1866 
Act, and by providing for the removal of cases from state to federal



33

1 erf the Ku Klux Act, from which § 1983 derives, spe­
cifically provided that federal jurisdiction under that sec­
tion would be exercised “with and subject to the same 
rights of appeal, review upon error, and other remedies 
provided in like cases in such courts, under the provi­
sions of the act of . . . [April 9, 1866] ; and the other 
remedial laws of the United States which are in their 
nature applicable in such cases” (see note 5, supra).

By its express terms, § 1988 would seem to function 
no differently than the general federal adjudicative prin­
ciples discussed above; it requires federal jurisdiction to 
be exercised, first, “in conformity with the laws of the 
United States, so far as such laws are suitable to carry

court in specified circumstances. I t  then contained the following 
language, which is now § 1988:

The jurisdiction in civil and criminal matters hereby conferred 
on the district and circuit courts of the United States shall be 
exercised and enforced in conformity with the laws of the 
United States, so far as such laws are suitable to carry the 
same into effect; but in all cases where such laws are not 
adapted tor the object, or are deficient in the provisions neces­
sary to furnish suitable remedies and punish offences against 
law, the common law, as modified and changed by the constitu­
tion and statutes of the State wherein the court having juris­
diction of the cause, civil or criminal, is held, so far as the same 
is not inconsistent with the Constitution and laws of the United 
States, shall be extended to and govern said courts in the trial 
and disposition of such cause, and, if of a criminal nature, in 
the infliction of punishment on the party found guilty.

The entire 1866 Act was re-enacted, following passage of the Four­
teenth Amendment, by § 18 of the Enforcement Act of May 31, 1870, 
16 Stat. 140. In 1874 the revisers (see generally Runyon v. McCrary, 
96 S. Ct. 2586, 2593 n.8 (1976)) made § 1988 applicable to all civil 
rights legislation. Rev.Stat. §722. By Pub.L.No. 94-559 (Oct. 
19, 1976), 90 Stat. 2641, Congress amended § 1988 by adding the 
Civil Rights Attorney’s Fees Awards Act of 1976, to authorize 
awards of attorneys’ fees in civil rights cases which theretofore 
were not covered by statutory fee-award provisions. Congress 
thereby made plain its view of § 1988 as a broad remedial statute 
designed to further, in all ways possible, the conduct of covered 
civil rights litigation.



34

the same into effect,” and, second, “where such laws are 
not adapted to the object, or are deficient in the provi­
sions necessary to furnish suitable remedies and punish 
offences against law,” resort may be had to state law 
“so far as the same is not inconsistent with the Consti­
tution and laws of the United States . . . 37 This Court
has so construed it: “the section is intended to comple­
ment the various acts which . . . create federal causes 
of action for the violation of federal civil rights . . . . 
[because] inevitably existing federal law will not cover 
every issue that may arise in the context of a federal 
civil rights action.” Moor v. County of Alameda, 411 
U.S. 693, 702 (1973). See also Sullivan v. Little Hunt­
ing Park, 396 U.S. 229 (1969).

As we have previously pointed out (see note 20, supra, 
and accompanying text), the lower federal courts have 
frequently relied on § 1988, in whole or in part, to jus­
tify resort to state wrongful-death and survival proce­
dures in § 1983 litigation. We have also shown that this 
practice finds firm support in legal history independently 
of § 1988, although the statute adds an extra measure 
of congressional support for this consistent approach to

37 As one commentator has observed:
In both Pritchard and Brazier, application of state survival 
statutes was simply a method of implementing the courts’ un­
derlying determination that effectuation of the congressional 
purpose required survival of actions under the Civil Eights 
Act. Although this approach led to satisfactory results in these 
cases, since state law provided for survival, it would prove 
abortive in jurisdictions with more restrictive statutes. It 
should be recognized that once the courts, even by a tenuous 
inference from statutory policy, have found that Congress in­
tended actions to survive, the ultimate question has been an­
swered; accordingly, that determination should be given effect 
as a matter of federal interstitial law rather than through a 
theory that depends for its utility on the content of state law.

Note, Survival of Actions Brought Under Federal Statutes, 63 
C o l u m . L. Rev. 290, 297 (1963) (footnotes omitted); see also id. 
at 305; Shaw V. Garrison, supra.



35

§ 1983 death cases. It is especially appropriate for the 
courts to search out such suitable remedial devices when 
a violation of civil rights results in death, because, as 
Mr. Justice Harlan stated in another context:

Where existing law imposes a primary duty, viola­
tions of which are compensable if they cause injury, 
nothing in ordinary notions of justice suggests that 
a violation should be nonactionable simply because 
it was serious enough to cause death.

Moragne V. States Marine Lines, Inc., supra, 398 U.S. 
at 381.

There is no room for doubt, in the light of this dis­
cussion, that there is a wrongful-death process available 
when appropriate in all § 1983 cases.3-8 Whether the 38

38 The Colorado Supreme Court’s rulings (550 P.2d at 345) 
that there is no' § 1983 wrongful-death remedy independent of state 
law and that petitioner cannot sue for the deprivation of her son’s 
constitutional rights, are thus misplaced and essentially irrelevant. 
For, in all events, the issue which determines liability is whether 
the decedent’s constitutional rights were violated. This same in­
quiry—whether there has been a breach of a legal duty owed to 
the decedent—is the dispositive one in nonconstitutional wrongful- 
death actions as well. Wrongful-death cases are unique in this re­
spect, but that is merely reflective of the fact that death itself is 
an injury without equal. Cf. Woodson v. North Carolina, 96 S. Ct. 
2978, 2992 (1976).

Some of the lower federal courts appear to have been troubled on 
occasion by the rule of Bailey v. Patterson, 369 U.S. 31 (1962), that 
one person may not sue for the deprivation of another’s constitu­
tional rights. But that concern is inapplicable to wrongful-death 
and survival actions under § 1983. See, e.g., Smith v. Wickline, 396 
F.Supp. 555, 557 (W.D. Okla. 1975). The Bailey rule is one de­
signed to insure the presence of an Art. I l l  “case or controversy.” 
There can be no question, in cases such as this one, that a “case or 
controversy” is extant. Wrongful-death cases are among the most 
traditional forms of litigation, and it has never been suggested, in 
the numerous survival and wrongful-death cases that have appeared 
before this Court, that the Court was without constitutional power 
to decide these common-place disputes.



36
§ 1983 death action relies on state legislation or is cre­
ated through the application of general federal remedial 
principles, it is in all respects a federal cause of action.

We turn now to the issue relating to the proper meas­
ure of relief in § 1983 wrongful-death cases.

III. Restrictive State Damage Rules, Such As Colorado’s 
“Net Pecuniary Loss” Limitation, Are Inapplicable 
When Incompatible With Interests Protected By § 1983.

The Colorado Supreme Court determined, in effect, 
that $1,500 was the proper measure of relief in a § 1983 
action alleging that state officers killed petitioner’s son in 
contravention of the Fourteenth Amendment. It is in­
conceivable to amid that such an unconscionable result 
can coexist with § 1983—unless the humane remedial 
purposes of that statute, which we have detailed previ­
ously, are to be negated. Consideration of those purposes 
is the starting point in determining the remedial scope 
of § 1983; because, as Mr. Justice Harlan observed in 
Monroe v. Pape, supra, 365 U.S. at 196 n. 5.:

It would indeed be the purest coincidence if the state 
remedies for violations of common-law rights by pri­
vate citizens were fully appropriate to redress those 
injuries which only a state official can cause and 
against which the Constitution provides protection.

Consequently, “ [standards governing the granting of 
relief under § 1983 are to be developed by the federal 
[and state] courts in accordance with the purposes of 
the statute and as a matter of federal common law.” 
Adickes v. S.H. Kress & Co., supra, 398 U.S. at 231 
(separate opinion of Brennan, J.).

A. Complete Justice And Deterrence of Unconstitu­
tional Conduct Are The Twin Goals of § 1983.

From the beginning, it has been the goal of American 
justice to ensure “the right of every individual to claim



37

the protection of the laws, whenever he receives an in­
jury . . to ensure that “the laws furnish . . .  [a] 
remedy for the violation of a vested legal right.” Mar- 
bury v. Madison, 1 Cranch (U.S.) 137, 163 (1803) 
(Marshall, C.J.). Or, in Justice Cardozo’s words: “Once 
let it be ascertained that the amount is determinable, 
and all that follows is an incident. . . . [Ojnce a wrong 
is brought to light [, tjhere can be no stopping after 
that until justice is done.” Bemis Bros. Bag Co. v. 
United States, 289 U.S. 28, 35-36 (1933). “And it is 
also well settled that where legal rights have been in­
vaded, and a federal statute provides for a general right 
to sue for such invasion, federal courts may use any 
available remedy to make good the wrong done.” Bell v. 
Hood, 327 U.S. 678, 684 (1946). “The existence of a 
statutory right implies the existence of all necessary and 
appropriate remedies.” Sullivan v. Little Hunting Park, 
396 U.S. 229, 239 (1969). This is the basic compensa­
tory thesis of American justice: “The general rule is, 
that when a wrong has been done, and the law gives a 
remedy, the compensation shall be equal to the injury,” 
Wicker v. Hoppock, 6 Wall. (U.S.) 94, 98 (1867), only 
recently reaffirmed in Albemarle Paper Co. v. Moody, 
422 U.S. 405, 418-19 (1975).

This central theme of complete justice is certainly the 
minimum remedial standard of § 1983. See Adickes v. 
S.H. Kress & Co., 398 U.S. 144, 231-32 (1970) (Bren­
nan, J., concurring in part and dissenting in part). But, 
as we have mentioned previously, and as the Ku Klux 
debates make clear, there is also a deterrence purpose 
underlying § 1983. A recurring theme in the 1871 de­
bates was that a few substantial civil judgments and a 
few criminal convictions in each state would significantly 
advance the effort to bring to an end the lawless activi­
ties of the Ku Klux organizations. This Court has given 
effect to a similar purpose reflected in other civil rights



38

legislation, cf. Albemarle Paper Co. V. Moody, supra, 422 
U.S. at 417-18, and it is obvious that such a purpose is 
even more predominant in § 1983. This means, as the 
lower courts have long recognized,39 that punitive dam­
ages are recoverable in appropriate circumstances. See 
Justice Brennan’s separate opinion in Adickes, supra.

B. The “Net Pecuniary Loss” Rule Negates The 
Purposes of § 1983.

This case presents a particularly aggravated example 
of a limitation upon recovery for violation of federal 
constitutional rights which is in no way related to the 
purposes of § 1983 summarized above. The Colorado “net 
pecuniary loss” rule was applied to this case only by 
virtue of the Colorado Supreme Court’s mistaken conclu­
sion that its wrongful-death statute was identical to 
§ 1983 (“adequacy in a death case of the state remedies 
to vindicate a civil rights violation,” 550 P.2d at 345), 
and its misconstruction of 42 U.S.C. § 1988 (which we 
discuss in the following subsection).40 Nowhere in its 
opinion did the court below attempt to justify the restric­
tion upon petitioner’s right to recover damages for the 
unlawful killing of her son by reference to the compensa­
tory or deterrent purposes which underlie the Ku Klux 
Act. No such justification consistent with the Act can 
be formulated.

39 See, e.g., Spence V. Staras, 507 F.2d 554 (7th Cir. 1974); 
Caperci v. Huntoon, 397 F.2d 799 (1st Cir.) , cert, denied, 393 
U.S. 940 (1968); Basista V. Weir, 340 F.2d 74 (3d Cir. 1965). 
The United States District Court for the District of Colorado has 
recognized the appropriateness of punitive damages in cases alleg­
ing violations of § 1983. Rhoads v. Horvat, 270 F.Supp. 307 (D. 
Colo. 1967).

40 In essence-, the Colorado Supreme Court treated this action like 
a Federal Tort Claims Act case rather than a § 1983 case. See 
Bartch v. United States, 330 F.2d 466 (10th Cir. 1964).



80

The Colorado “net pecuniary loss” rule evidently re­
flects state policy with respect to the conditions under 
which the common law rule of abatement should be modi­
fied to promote adjustment of the burden of loss caused 
by negligence and other tortious activities. See note 31, 
supra. That limitation was clearly not designed to fur­
ther the protection of federal constitutional interests. 
And, as is apparent from the unfortunate circumstances 
of this case, its application to § 1983 actions simply per­
petrates injustice.

This Court has recently held that the “net pecuniary 
loss” rule is an unacceptable measure of damages in 
Moragne-type wrongful-death cases. Sea-Land, Services 
v. Gaudet, 414 U.S. 573 (1974). If such restrictions on 
the complete-justice principle are inappropriate in ad­
miralty, a fortiori they are unacceptable here. See Page, 
State Law and the Damages Remedy Under the Civil 
Rights Act: Some Problems in Federalism, 43 Den . L.J. 
480, 489 (1966). Unquestionably, a person who is seri­
ously injured by a police officer acting contrary to the 
Fourteenth Amendment would be able to recover dam­
ages many times greater than $1,500. But under the 
rule announced below, only token damages are recover­
able when death results. Police officers are thus encour­
aged to kill (cf. note 24, supra). We do not see how a 
rule of damages which rewards police officers for killing- 
citizens rather than just maiming them can survive side 
by side with the Fourteenth Amendment.

The scope of the damages remedy in § 1983 wrongful- 
death cases is to be worked out on a ease-by-case basis, 
and all of the elements of recovery need not be decided 
in the instant case. Of course, the Court should hold 
that petitioner is at least entitled to recover for the ele­
ments of loss listed in Sea-Land Services, supra, and, for 
the reasons discussed in the preceding subsection, puni­
tive damages should the facts warrant. See Spence v.



40
Staras, 507 F.2d 554 (7th Cir. 1974); cf. note 39, supra. 
Petitioner is plainly entitled to a measure of relief co­
extensive with the constitutional injury and the federal 
policies to be served by § 1983—unless the law mandates 
the application of restrictive state rules, which we now 
discuss.

C. Uniform Federal Rules of Recovery Are Required 
Even Where State Wrongful-Death Statutes Are 
Utilized.

At the outset of this section of Argument we cited Mr. 
Justice Brennan’s separate opinion in Adickes v. S. H. 
Kress & Co., supra, for the proposition that uniform 
federal damages principles must be applied in § 1983 
cases. As the Court of Appeals for the Third Circuit 
stated in the course of a well-considered opinion on the 
subject in Basista v. Weir, 340 F.2d 74, 86 (3d Cir. 
1965) (footnote omitted) :

The Civil Rights Acts were brought into being at a 
critical time in the history of the United States 
following the Civil War. They were intended to 
confer equality in civil rights before the law in all 
respects for all persons embraced within their provi­
sions. We believe that the benefits of the Acts were 
intended to be uniform throughout the United States, 
that the protection to the individual to be afforded 
by them was not intended by Congress to differ 
from state to state, and that the amount of dam­
ages to be recovered by the injured individual was 
not to vary because of the law of the state in which 
the federal court suit was brought. Federal com­
mon law must be applied to effect uniformity, other­
wise the Civil Rights Acts would fail to effect the 
purposes and ends which Congress intended.

And as further stated by Mr. Justice Brennan in 
Adickes, supra, § 1983 “relief should not depend on the 
vagaries of the general common law but should be 
governed by uniform and effective federal standards.”



41

898 U.S. at 232. These principles are especially relevant 
in the context of wrongful-death and survival statute, 
the protean nature of which is described in W. P rosser, 
La w  of T orts §§ 126-27 (4th ed. 1971). Suffice it to 
say here that the statutes and judicial interpretations 
of the several states result in a crazy-quilt of rules re­
lating to recoverable damages.

In contexts no less compelling than those present 
here, the Court has fashioned uniform rules affecting the 
relief available under § 1983. The Court has clone this 
in all of its absolute and qualified-immunity decisions 
from Tenney v. Brandhove, 341 U.S. 367 (1951), through 
Imbler V. Pachtman, 424 U.S. 409 (1976). See gen­
erally Theis, Shaw v. Garrison: Some Observations On 

U.S.C. § 1988 And Federal Common Law, 36 La . L. 
R ev. 681, 685 (1976). There is, therefore, no reason 
deriving from general principles of federal law why 
§ 1983 relief should be circumscribed by state principles 
of damages designed primarily to deal with entirely 
different policies and interests.

Furthermore, there is plainly nothing in 42 U.S.C. 
§ 1988 that prescribes the use of inhospitable state 
remedial rules in § 1983 cases.41 In Argument IIB, supra, 
we observed that the policy of § 1988 is neither more nor 
less than the general non-statutory federal practice of 
resorting to state law in aid of but not in derogation

41 On page 7 of their brief opposing the grant of a writ of 
certiorari, the respondents state that, “The Colorado Supreme Court 
followed the unanimous precedent of the federal courts in holding 
that the Colorado* measure of damages for wrongful death would 
apply in a Civil Rights action based upon a wrongful death.” (Em­
phasis added). With the exception of James v. Murphy, 392 F. Supp. 
641 (M.D.Ala. 1975), the cases cited in text (pp. 4-7) do not 
support this conclusion. Nor does it follow that, just because a 
federal court would use § 1988 to incorporate state wrongful-death 
statutes, damage limitations would apply as well. See cases cited in 
Brief of Respondents, n. 1. Since virtually all of these cases 
arose on motions to dismiss, the damage issue was not addressed.



42

of federal rights and obligations.42 This Court’s au­
thoritative construction of § 1988 is “that both federal 
and state rules on damages may be utilized, whichever 
better serves the policies expressed in the federal stat­
utes.” Sullivan v. Little Hunting Park, supra, 396 U.S. 
at 240. Accordingly, § 1988 also requires the applica­
tion of federal remedial rules whenever state law falters.

Finally, we think Mr. Justice Brennan’s dissenting 
opinion in The Tungus, supra, which we interpret in 
light of Moragne as now being sound law,43 is disposi­
tive of the very point at issue here—i.e., that the process 
of state wrongful-death legislation may be resorted to in 
litigation involving the breach of federally-imposed duties, 
but that uniform federal standards of relief must be

42 The Rules of Decision Act, 28 U.S.C. § 1652, has no application 
to this case in light of the supervening purpose of § 1983, which 
as we demonstrate in text “requires” a uniform federal rule of 
damages. Cf. Local 174 V. Lucas Flour Co., 369 U.S. 95, 103 
(1962) (subject matter “peculiarly one that calls for uniform 
law”) ; Sullivan V. Little Hunting Park, 396 U.S. 229, 240 (1969) 
(“As we read Sec. 1988 . . . both federal and state rules on dam­
ages may be utilized, whichever better serves the policies expressed 
in the federal statutes. . . . .  [T]he rule of damages, whether 
drawn from federal or state sources, is a federal rule responsive 
to the need whenever a federal right is impaired.”). See Moor v. 
County of Alameda, supra, 411 U.S. at 703; Shaw V. Garrison, 
supra, 545 F.2d at 983-84; Brown V. Balias, 331 F. Supp. 1033, 
1037 (N.D. Tex. 1971). See generally, Theis, Shaw V. Garrison: 
Some Observations On U.S.C. §1988 and Federal Common Law, 
36 La. L. R e v . 681, 684-88 (1976); Niles, supra n. 23, 45 T e x . L. 
R e v . at 1023-25; Page, supra n. 23, 43 D e n v e r  L.J. at 489. To hold 
otherwise in this case would require the overruling of a long line 
of decisions in which uniform federal law was enunciated in litiga­
tion affecting matters of special federal concern without any refer­
ence to or discussion of the Rules of Decision Act. See cases cited 
at pp. 48-49, infra.

43 As we follow the law from The Harrisburg, 119 U.S. 199 
(1886), through The Tungus to Moragne’s overruling of The Harris­
burg, upon which The Tungus relied, Justice Brennan’s dissent 
in The Tungus is now the law; and it would have been the law in 
1959 had not the majority in The Tungus felt bound by The 
Harrisburg.



43

applied in such cases. In particular, we note Justice 
Brennan’s analysis (358 U.S. at 604-05) of several state 
court maritime wrongful-death decisions, one of which 
held: “ [W]e must look to the decisions of the Federal 
courts to define the liabilities of shipov/ners for mari­
time torts, leaving out of consideration decisions of our 
own courts or statutes of the State which conflict with 
the rules of liability established in the Federal courts.” 
Riley v. Agwilines, Inc., 296 N.Y. 402, 405-06, 73 N.E. 
2d 718, 719 (1947).44 Justice Brennan’s well-documented 
conclusion in the admiralty context is fully applicable to 
the circumstances of the case at bar: “While there is 
ground for local variation on nonessential matters, on 
the essentials the admiralty may look to uniform fea­
tures in these statutes rather than the diverse.” 358 
U.S. at 609. Since the damage rules of state wrongful- 
death and survival statutes are “diverse” {see, e.g., Sea- 
Land Services, supra),45 they should be subordinated to 
uniform federal rules which serve the broad purposes of 
§ 1983.

44 State courts have applied federal law in § 1983 cases and many 
other contexts involving violations of federal rights. See, e.g., 
Dudley v. Bell, 50 Mich. App. 678, 213 N.W. 2d 805 (1973); A /S  J. 
Ludwig Mowinckels Rederi v. Dow Chemical Co., 25 N.Y.2d 576, 
579-85, 255 N.E.2d 774, 775-79, 307 N.Y.S.2d 660, 662-66, cert, 
denied, 398 U.S. 939 (1970) ; Basham v. Smith, 149 Tex. 297, 233 
S.W. 2d 297, 300-302 (1946).

45 Colorado’s Death Act is generally patterned after Lord Camp­
bell’s Act. This means that a property interest is created in certain 
designated survivors for the “net pecuniary loss’’ to them resulting 
from his death. Colorado’s survival statute permits the recovery of 
punitive damages and penalties resulting from injuries unless the 
defendant dies. Apparently, these are unavailable if the plaintiff 
dies instantly. The statute provides that damages recoverable after 
the plaintiff dies are limited to loss of earnings and expenses in­
curred prior to death. No damages are permitted for pain and 
suffering or disfigurement nor prospective profits or earnings after 
death. Neither of these statutes fulfills the purpose of the Civil 
Rights Act to act as a deterrent to official misconduct as well as to 
afford compensatory relief.



44

In sum, the federal cause of action in cases such as 
this one arises out of the deprivation of life without due 
process, of law. The purpose served by state wrongful- 
death and survival statutes is to overcome the draconian 
common-law rule that causes of action abate upon the 
death of either party. Once that purpose has been ac­
complished, there is no reason why a federal court should 
be constricted by limitations on damages adopted by the 
state as part of its general tort law.

IV. If the State Wrongful-Death Act Must Be Applied 
in its Entirety, Then This Court Should Reject the 
State Law Approach Altogether and Create a Federal 
Common Law of Survival and Wrongful Death Under 
§ 1983.

We have argued that the Court should apply a federal 
rule of damages in implementing the principles estab­
lished by the state wrongful-death statute. However, 
if the Court holds that a state statute must be applied 
in toto, then amici believe it is incumbent upon the 
Court to create a federal common law of wrongful death 
under § 1983. The controlling principles are outlined 
in Monaghan, The Supreme Court, 1974- Term—For­
ward: Constitutional Common Law, 89 H arv. L. R ev. 
1, 12 (1975) :

Since judicial power to create federal common law 
admittedly exists where authorized by statute, con­
cern usually centers upon the appropriate criteria 
for determining whether federal common law is to 
be fashioned when a congressional determination to 
displace state law is a possible, but not unmistake- 
able construction. Although the cases are somewhat 
ad hoc—reflecting a crazy-quilt pattern of statutory, 
constitutional, and pragmatic considerations—the 
analysis is usually framed in terms of whether the 
congressional purpose embodied in, or indicated by, 
a statute requires state law to be subordinated. Con­



45

gressional purpose is divined by the normal common 
law techniques of looking to the words of the statute, 
the problem it was meant to solve, the legislative his­
tory, the structure of the statute, its place among 
other federal statutes, and the need for a uniform 
national rule of law. Where the inquiry indicates 
that application of state law would frustrate con­
gressional policy, state law is subordinated. This is 
the usual mode of preemption analysis, [footnotes 
omitted].

The necessity for federal courts to formulate remedies 
is founded “upon the presence of a federal interest 
coupled with the reasons which undermine the presump­
tion that state law should apply.” Note, Federal Common 
Laiv, 82 HARV. L. Rev . 1512, 1525 (1969). If a court 
determines that the general presumption in favor of 
state law applies,

It [still] must inquire whether the need exists for 
federal law to further federal policies or foster uni­
formity. If either circumstance is present, it must 
weigh the benefits promised by local solution against 
the need for a national rule.

Id. at 1531. With respect to uniformity, plainly federal 
law is created for the whole nation. “Hence, there is 
an interest in having it mean the same thing in each 
state.” Id. at 1529. See Jerome v. United States, 318 
U.S. 101, 104 (1959).

With respect, to the furtherance of federal policy, the 
same reasons that led this Court in Moragne v. States 
Marine Lines, Inc., supra, to abandon the reliance on 
state wrongful-death statutes in admiralty law are pres­
ent in this case. As the Court pointed out in Moragne, 
the legislatures, both here and in England, began to evi­
dence unanimous disapproval of the abatement of death



46

actions.46 As the Court said in Moragne (398 U.S. at 
390) :

These numerous and broadly applicable statutes, 
taken as a whole, make it clear that there is no pres­
ent public policy against allowing recovery for 
wrongful death. The statutes evidence a wide re­
jection by the legislatures of whatever justifications 
may once have existed for a general refusal to allow 
such recovery. This legislative establishment of pol­
icy carries significance beyond the particular scope 
of each of the statutes involved. The policy thus 
established has become itself a part of our law, to 
be given its appropriate weight not only in matters 
of statutory construction but also in those of deci­
sional law.

During the period in which the doctrine of The Har­
risburg, supra, held sway, it was understood that statutes 
of the coastal states could be used to fill the void for 
death on the high seas if the state so intended. This

46 “Today we should be thinking of the death statutes as part of 
the general law.” Pound, Comment on State Death Statutes—Appli­
cation to Death in Admiralty, 13 NACCA L.J. 188, 189 (1954), 
quoted in Moragne, supra. See also Van Beech V. Sabine Towing 
Co., 300 U.S. 342, 350-51 (1936), where Mr. Justice Cardozo said:

Death statutes have their roots in dissatisfaction with the 
archaisms of the law which have been traced to their origin 
in the course of this opinion. It would be a misfortune if a 
narrow or grudging process of construction were to exemplify 
and perpetuate the very evils to be remedied. There are times 
when uncertain words are to be wrought into consistency and 
unity with a legislative policy which is itself a source of law, a 
new generative impulse transmitted to the legal system. ‘The 
Legislature has the power to decide what the policy of the law 
shall be, and if it has intimated its will, however indirectly, 
that will should be recognized and obeyed.’ Its intimation is 
clear enough in the statutes now before us that their effects 
shall not be stifled, without the warrant of clear necessity, by 
the perpetuation of a policy which now has had its day. 
[Footnote omitted]



47

was without the benefit of any statute similar to § 1988. 
In any event, persons injured within the territorial 
limits of the states could utilize state wrongful death 
statutes if these statutes were interpreted to include un­
seaworthiness claims. That approximates the situation 
now with respect to death actions under § 1983.

Thus, a claim for a violation of constitutional rights 
may survive or abate, or result recovery for net pecu­
niary loss, compensatory or punitive damages, depend­
ing upon where the violation occurs. Furthermore, the 
present situation creates the anomaly that if a person 
is merely injured by official misconduct, he can bring a 
civil rights action and seek compensatory and punitive 
damages and, at the same time, maintain an action for 
assault and battery under state law. See note 23, 
supra. But if he dies, his damages under § 1983 are 
severely contracted by the state wrongful-death statute. 
This defies all logic and defies the notion of uniformity 
for redress of deprivations of constitutional rights. There 
is simply no substantial justification for the haphazard 
pattern which results when state laws are pressed into 
service to afford a remedy when a violation of constitu­
tional rights results in death. In every other kind of 
constitutional injury, the federal courts presently apply 
a federal common law of damages. A different rule ap­
plicable where injury results in death is not sustainable.

Accordingly, the issue under discussion here is whether 
federal law, in its common-law dimension, has sufficient 
flexibility to adapt to “the result dictated by elementary 
principles in the law of remedies.” Moragne v. States 
Marine Lines, Inc., supra, 398 U.S. at 381. Two decades 
of litigation in the lower federal courts over this pre­
cise issue in § 1983 death cases has produced an affirma­
tive answer. That answer is confirmed by numerous de­
cisions of this Court, both in general and in analogous 
circumstances. Although this Court has been required



48

to fashion federal substantive and remedial principles 
less frequently since Erie R.R. v. Tompkins, 304 U.S. 
64 (1938) than it was during the regime of Swift v. 
Tyson, 16 Pet. (U.S.) 1 (1842), it has nevertheless con­
fronted such tasks with considerable regularity.47 With 
particular relevance to the instant case, Mr. Justice Har­
lan’s opinion for a unanimous Court in Moragne v. 
States Marine Lines, Inc,, supra, and Mr. Justice Bren­
nan’s dissenting opinion (joined by three other members 
of the Court) in The Tungus v. Skovgaard, 358 U.S. 588, 
597-612 (1959), stand at the head of a large class of 
cases, coming here from both the state courts and the 
lower federal courts, in which the Court has developed 
uniform substantive and remedial principles of federal 
law. See, e.g., Sea-Land Services v. Gaudet, 414 U.S. 
573 (1974) ; Illinois v. City of Milwaukee, 406 U.S. 91 
(1972) (original jurisdiction) ; Bivens v. Six Unknown 
Named Agents, 403 U.S. 338 (1971) ; J. I. Case Co. v. 
Borak, 377 U.S. 426 (1964) ; Local 17Ip v. Lucas Flour 
Co., 369 U.S. 95 (1962) ; Farmers Educ. Cooperative 
Union v. WDAY, 360 U.S. 525 (1959) ; McAllister v. 
Magnolia Petroleum Co., 357 U.S. 221 (1958) ; Textile 
Workers Union v. Lincoln Mills, 363 U.S. 448 (1957) ; 
Holmberg v. Armbrecht, 327 U.S. 392 (1945) (Frank­
furter, J.) ; National Metropolitan Bank v. United States, 
323 U.S. 454 (1945) (Black, J.) ; Tunstall v. Brother­
hood of Locomotive Firemen & Enginemen, 323 U.S. 210 
(1944) (Stone, C.J.) ; Clearfield Trust Co. v. United

47 As early as 1935 it was established that “if a claim based upon 
national law is asserted, whether in a state or a federal court, the 
federal statutes or the rules of decision of the federal courts must be 
looked to for a determination of the measure of damages.” C. 
M c C o r m i c k , H a n d b o o k  o n  D a m a g e s  §3, p. 11 (1935). While 
this was written when Swift V. Tyson, supra, was still the law, 
the existence of a federal common law in nondiversity cases is 
well documented. Friendly, In Praise of Erie—and of the New 
Federal Common Law, 39 N.Y.U.L. Rev. 383 (1964). See P. B a t o r , 
P. M i s h k i n , D. S h a p i r o and H. W e c h s l e r , T h e  F e d e r a l  C o u r t s 
a n d  t h e  F e d e r a l Sy s t e m  756-832 (2d ed. 1973).



49

States, 318 U.S. 363 (1943) (Douglas, J.) ; Sola Electric 
Co. v. Jefferson Electric Co., 317 U.S. 173 (1942) 
(Stone, C.J.) ; Jackson County v. United Stales, 308 U.S. 
343 (1939) (Frankfurter, J .) .

These and many other cases do not result from the 
fear that “the judicial hand would stiffen in mortmain 
if it had no part in the work of creation.” United States 
v. Standard Oil Co., 332 U.S. 301, 313 (1947) (Rut­
ledge, J.). They result, rather, from the adjudicative 
obligations of the federal courts with respect to matters 
“distinctively federal in character.” Id. at 305. And 
as we have shown above, no class of cases can be more 
uniquely federal than § 1983-Fourteenth Amendment ac­
tions. See also Adickes v. S. H. Kress & Co., supra, 398 
U.S. at 231-34 (Brennan, J., concurring in part and 
dissenting in part). The power and the authority exist 
for this Court to fashion a § 1983 wrongful-death remedy 
without regard to other state or federal legislation; the 
foregoing cases establish the propriety and, indeed, the 
obligation.

The exercise of that power in this case is required 
both by the interest in achieving uniformity in the re­
dress of federally created rights and by the substantial 
interest in seeing that those rights are effectively re­
dressed.



50

CONCLUSION

For the foregoing reasons, amici submit that the judg­
ment below should be reversed and the case remanded 
for trial of petitioner’s § 1983 claims in accordance with 
federal remedial principles responsive to the federal 
policies and interests at stake.

Respectfully submitted,

R o b e r t A. M u r p h y  
R i c h a r d S. K o h n  
N o r m a n  J. C h a c h k i n  
W illiam E. C a l d w e l l  

Lawyers’ Committee for 
Civil Rights Under Law 
733 15th Street, NW. 
Washington, D.C. 20005

Of counsel:
A mitai Sc h w a r t z  

Northern California 
Police Practices Project 

814 Mission Street 
San Francisco, California 94103

V i l m a  S. M a r t i n e z 
M orris J. B a l l e r 

Mexican American Legal 
Defense & Educational 
Fund, Inc.
145 Ninth Street
San Francisco, California 94103

N a t h a n i e l  R. Jo n e s  
General Counsel, N.A.A.C.P. 
1790 Broadway 
New York, New York 10019

Attorneys for Amici Curiae