In a New York wrongful death action plaintiffs’ have a cognizable action for damages for the loss of enjoyment of life in a cause of action predicated upon 42 U.S.C. §1983 and concomitant Constitutional violations.
Resolution of whether plaintiffs have a viable action pursuant to 42 U.S.C. §1983 turns on whether the applicable state statute is inconsistent with the Constitution and laws of the United States; Robinson v. Wegman, 436 U.S. 584, 98 S. Ct. 1991 (1978) citing 42 U.S.C. §1988.
By way of introduction, it is an undeniable fact that New York’s wrongful death law is a creature of our all too unfair and prejudicial past enacted some fifty years before Branch Rickey permitted, in 1947, a young African-American baseball player to don the uniform of the Brooklyn Dodgers. Sadly, although both Rickey and Robinson are part of our history, New York’s antiquated wrongful death law lives on. This law cannot be allowed to cast its unconstitutional pall on the life and death of a person unjustifiably killed by Law Enforcement Officers in New York since New York's Wrongful Death Law is clearly inconsistent with the purposes of the Federal Civil Rights Laws. Simply put, the usual cry of “there’s no pecuniary loss” is an echo in the darkness in a Civil Rights case and should dutifully be treated as such, since it must be shed in the same manner that the discriminatory “color-barrier” was shed in baseball sixty years ago, and similar antiquated laws have been cast aside by the courts via action predicated upon §1983.
In Jaco v. Bloechle, et. al., 739 F.2d 239 (6th Circ., 1984) the 6th Circuit Court of Appeals followed the reasoning of the Supreme Court in Robertson in reversing the dismissal of plaintiff’s §1983 complaint.
In Jaco plaintiff’s son was shot and instantly killed by police officers. Among the actions brought by plaintiff alleging violation of decedent’s civil rights were claims predicated upon violations of the decedent’s Constitutional rights and 42 U.S.C. §1983. The plaintiff sought compensation under the state wrongful death statute.
The appeal ensued when the District Court held that decedent’s civil rights cause of action did not survive his death and thus granted defendant’s Motion to Dismiss.
In analyzing the laws of the State of Ohio, the 6th Circuit concluded that said laws would preclude decedent’s personal section 1983 claim.
However, that did not end the 6th Circuit’s analysis. The Court then analyzed the mandate of the United States Supreme Court set forth in Robinson which stated “...it identified two policies underlying §1983 which must be analyzed before a Federal Court can, not withstanding abatement under the stricture of state law, declare the necessity for a survival of a civil rights claim thus, effectively creating a ‘Federal common law survival of actions rule. Specifically, Courts are instructed to gauge the impact of abatement upon the goal of compensating those injured’ and ‘§1983's role in preventing and deterring official illegality’.”
Then the 6th Circuit Court of Appeals held:
" [I]n the case at bar strict adherence to the relevant state law eviscerates the civil rights claim. Under Ohio’s survival statute, this decedent’s civil rights cause of action would have survived if his death had not been instantaneous; in light of the sweeping language of the enactment, to suggest that the Congress had intended that a civil rights infringement be cognizable only when the victim encounters pain and suffering before his demise, is absurd. The §1983 objective of protecting individual civil liberties by providing compensation to the victim for an illegal deprivation of Constitutional entitlements by state officers cannot be advanced, and is only undermined by deferring to a state law which decrees abatement under circumstances where, as here, asserted Constitutional infringements resulting from action taken under color of state law caused instant death. Surely, §1983's further purpose to discourage official Constitutional infringement would be threatened if Jaco were not permitted to champion her deceased son’s civil rights. Ohio’s survivorship law is then hostile to ‘the Constitution and laws of the United States’. To afford effect to the expressions and directions of the Supreme court in Robertson v. Wegman, where, as here, the survival statute of the forum state are hostile to promoting deterrence, protection and vindication against §1983 civil rights infringements, perpetrated under color of law, the Federal Court must implant the Congressional intent by allowing survival”.
Thereafter, following numerous other cases, the Court in Banks v. Yokemick, 177 F. Supp.2d 239 (Southern District of New York, 2001), in a well-reasoned opinion by Hon. Victor Marrero, held:
“Based on the reasoning and precedent of the authorities, the Court finds that insofar as New York’s survivorship of claims statute would bar recovery of the damages that the jury awarded for Bank’s loss of enjoyment of life, the state law fails to take into account policies analogous to the goals expressed in §1983. See Burnett, 468 U.S. at 68. Weighing the state statute against Federal Rules fashioned by the Courts in assessing comparable §1983 claims, this Court is persuaded that the Federal Rules better serve the policies expressed in §1983. See Robertson, 436 U.S. at 590; Moor, 411 U.S. at 703. On this basis, the Court concludes that §1988 does not compel application of state law in the instant case. See Burnett, 468 U.S. at 47-48. Accordingly, the Court denies Yokemick’s motion for judgment as a matter of law in this regard and sustains the jury’s corresponding verdict awarding Banks damages for loss of enjoyment of life.”
In reaching its Decision the Court made the most telling of statements:
“The case law affirms the obvious. A result that would recognize damages for infliction of severe pain and suffering short of death but extinguish the cause of action at the moment the victim expires is inherently illogical and incompatible with the deterrent purposes of §1983. In essence, it would import into §1983 a peculiar form of economics with a macabre cost-benefit analysis. In an odd way, this calculus would discourage half-measures, enabling violators of life to draw a bounty from the saving grace of death. A defendant would be rendered liable to the injured person who suffers a punch or a slap, but not for the victim’s instant death, a mere maiming would be fully recompensed, but not a slaying. Thus, the rule would tell offenders that, having already dealt grievous blows, it pays to dispatch the victim with a self-serving act of homicide in order to realize economics on their potential civil liability.”
Other Courts throughout the country have similarly echoed such a pronouncement. See also: Berry v. City of Muskogee, 900 F.2d 1489 (10th Circ. 1990) “We are satisfied that Congress intended significant recompense when a Constitutional violation caused the death of a victim. The general legislative history of the 1871 act makes clear that death was among the civil rights violations that congress intended to remedy.” The Court held the Oklahoma survival action to be deficient in both its remedy and deterrent effect.; Bass v. Wallenstein, et. al., 769 S.2d 1173 (7th Circ. 1985). “The proper approach at this point is not to transform the Section 1983 Action on behalf of Bass into a wrongful death action on behalf of those who survived him, but to determine whether state law is inconsistent with the compensatory and deterrent policies underlying Section 1983. This Court recently performed this analysis in Bell with results that pertain here. We held that where the Constitutional deprivation sought to be remedied has caused death, state law that precludes recovery on behalf of the victims estate for the loss of life is inconsistent with the deterrent policy of Section 1983.”; Bell v. City of Milwaukee, et. al., (7th Circ. 1984). (“In sum, we hold that Wis. Stat. §§895.01 and 895.04, along with Wisconsin Decisions construing those provisions, which would preclude recovery to Daniel Bell’s estate for loss of life, are inconsistent with the policy of Section 1983 (at 42). The Wisconsin law therefore cannot be applied to preclude the $100,000.00 damages recovered by Daniel Bell’s estate for loss of life.)” Roman v. City of Richmond, et. al., 570 F. Supp 1554 (North. Dist. Calif. 1983) (rejecting state law because it did not provide damages for deterrence where a deprivation of life has occurred, deterrence being an essential purpose of §1983 and thus implicitly supporting a charge for damages for loss of enjoyment of life.)
It is thus clear that a jury should be permitted to award damages pursuant to 42 U.S.C. §1983 for the loss of life and concomitant deprivation of a decedent's constitutional rights irrespective of New York’s limited wrongful death law.
Jeffrey and Diana Acre have filed a 
