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By Anthony Gair;

Resolution of whether a plaintiff has 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. New York’s wrongful death law which limits damages to pecuniary loss is clearly inconsistent with the Constitution and laws of the United States.

In Sinkov v. AmeriCor, Inc., 419 Fed. Appx. 86,(2d Circ.,2011) an action for wrongful death of a decedent with no dependents The Court held;

“AmeriCor correctly points out that under New York law, post-death lost-earnings damages are not recoverable in wrongful death cases where a decedent leaves behind no dependents and no persons who reasonably expect to receive future support from him. See Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 199-200 (2d Cir. 2002); Zelizo v. Ullah, 2 A.D.3d 273, 769 N.Y.S.2d 255 (1st Dep’t 2003). Had the district court admitted Dr. Crakes’s earnings testimony as bearing on plaintiffs’ state law claims, we would agree that his testimony was irrelevant and should have been excluded. But that is not what the district court did. The record makes clear that Dr. Crakes’s testimony regarding loss of earning capacity was introduced only for, and was explicitly limited to, the estate’s 42 U.S.C. § 1983 claim.

The New York authority on which AmeriCor relies does not address the extent of damages permitted in an action for violation of constitutional rights. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have concluded in the past, for example, that New York’s survival statute was inconsistent with § 1983 because (at the time) the New York statute “prevent[ed] the survival of claims for punitive damages after the death of the plaintiff’s decedent.” McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983). In McFadden, we stated that we have no doubt that limitations in a state survival statute have no application to a [§] 1983 suit brought to redress a denial of right that caused the decedent’s death. To whatever extent [§] 1988 makes state law applicable to [§] 1983 actions, it does not require deference to a survival statute that would bar or limit the remedies available under [§] 1983 for unconstitutional conduct that causes death.”

In the oft-cited case 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 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 (citations omitted). 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 F.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.764 F.2d 1239, (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.)

In White v. Gerardot, 2008 U.S.Dist. LEXIS 44956 (North. Dist. Indiana,2008) The Court held;

“Finally, though the Indiana Wrongful Death Statute precludes their recovery, see Ind. Code § 34-23-1-2(c)(2)(B), White seeks punitive damages in this action. Gerardot wisely does not oppose her request.

The Seventh Circuit Court of Appeals has stated: “To disallow punitive damages in Section 1983 actions solely on the basis of restrictive state tort law would seriously hamper the deterrence effect of Section 1983.” Bass, 769 F.2d at 1190 (quoting Bell, 746 F.2d at 1231). “Such restrictive state laws must give way to federal common law rules that permit recovery [of punitive damages].” Id.; see also Smith v. Wade, 461 U.S. 30, 35, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983); Carey, 98 S. Ct. at 1049 n.11. Indeed, the United States Supreme Court has specifically stated that a trier of fact may award punitive damages in a § 1983 action when the defendant’s conduct was “motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith, 461 U.S. at 56.”

Thus a jury in New York should be permitted to award damages pursuant to 42 U.S.C. §1983 for the loss of life of a decedent and concomitant deprivation of his constitutional rights irrespective of New York’s limited wrongful death law.