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Can A Parent Sue When his Adult Child is Killed by the Police?
A Recent Case Says "No" and Highlights a Division Among Appellate Courts


Wednesday, Dec. 31, 2003

In the recent case of McCurdy v. Dodd, the U. S. Court of Appeals for the Third Circuit held that the father of a nineteen-year-old child has no right to recover damages when the government violates the U.S. Constitution and thereby causes the death of that child. The court's decision places it on the wrong side of what has become a developing split among judicial authorities on this question.

The underlying issue that faces courts in such cases is who has legal standing to complain when the government violates the Constitution.

If a police officer searches your house without probable cause or a warrant, for example, you may sue the officer for damages resulting from the violation of your Fourth Amendment right against unreasonable searches and seizures. And if a police department policy of illegal choke-holds results in physical trauma to you, you can bring a cause of action against that Department as well. You have suffered as a result of the government's illegal behavior and are therefore well-situated to recover damages.

But can anyone else bring a lawsuit under these circumstances? In other words, do any other people have standing to come to federal court and collect damages from the government when it acts in direct violation of your constitutional rights?

The Initial Requirement for Standing: Actual Injury

This question is important, because cases interpreting Article III of the Constitution prohibit federal courts from hearing suits by plaintiffs who have not themselves suffered some kind of injury as a result of a defendant's misconduct. The Supreme Court has also placed further, prudential limits on who among the injured parties is entitled to bring a cause of action.

For illustration of these Article III and prudential standing requirements, consider an example. A woman named Jane Doe, who has spurned a police officer's sexual advances, is pulled over in her vehicle and arrested as a prostitute, in the absence of any basis for suspecting her of the crime. At the very least, she has suffered a Fourth Amendment violation that entitles her to bring a lawsuit against the officer under Section 1983, a federal civil rights statute. But what if others are outraged by what occurred as well?

You may be a concerned citizen, for example, who believes that government actors should be held responsible for their misconduct. When you learn that Jane Doe has decided not to bring a lawsuit, perhaps because she wishes to put the whole incident behind her, you may wish to sue in her stead. Under Article III, however, no federal court has jurisdiction to hear your claim, because you were not injured (other than in the abstract sense of being offended) by the officer's misconduct.

Beyond Actual Injury: Not All Injured Persons Can Sue

But what if you are more than a concerned citizen? You may, for example, be a neighbor of Jane's who used to catch a ride with her to work, and you must now pay for your own trip, because Jane is afraid to drive. Or perhaps you run a bowling alley that Jane used to patronize regularly but which she no longer frequents, for fear of running into the police officer defendant who also bowls there occasionally.

In either of these cases, you may lose a substantial amount of money as a result of the police officer's violation of Jane Doe's Fourth Amendment rights. Nonetheless, though you have suffered an injury, you almost certainly lack prudential standing to sue in federal court.

Why? First, you have not yourself suffered a constitutional violation; it was Jane's Fourth Amendment rights, not yours, that were violated. Second, you do not qualify for exemption from the requirement of having suffered a constitutional injury.

To qualify for that exemption, you would have to be in a "special" relationship with Jane Doe (whose constitutional rights were violated). In addition, you would have to be able to cite a systematic reason why Jane herself would not bring a lawsuit.

So the question, again, is who may sue? The answer is easy if another person has also suffered a constitutional violation by virtue of the same misconduct that injured Jane Doe. For example, if the police officer who arrested Jane also searched her incident to that illegal arrest and discovered a wallet containing private items that are jointly owned by her and her husband, then her husband would have prudential standing (as well as Article III standing) to sue.

If Jane alone has suffered a constitutional violation, however, then a person - in addition to having had to suffer a cognizable injury from the officer's misconduct - must have a special relationship with Jane and present some systematic reason why Jane herself would not sue to vindicate her own constitutional injury.

What Counts as a "Special Relationship" For Standing Purposes?

In a number of cases, the Supreme Court has provided guidance on what counts as a "special relationship" for these purposes.

In Griswold v. Connecticut, for example, a doctor (and another plaintiff) who had distributed contraceptives brought a Due Process challenge to a state law prohibiting the distribution of contraceptives to married couples.

The constitutional argument was that married couples have a privacy right to determine whether or not to conceive children, and that states violate that right by prohibiting the distribution of birth control. Thus, the doctors were claiming that their patients' rights, rather than their own, had been violated. Due to the special relationship between couples who acquire birth control and the doctor who brought suit, the Supreme Court allowed the case to proceed.

In another case, Craig v. Boren, the Court allowed a licensed vendor to pursue a cause of action alleging that an Oklahoma law providing different drinking ages for men and women was invalid sex discrimination under the Equal Protection Clause of the Fourteenth Amendment. Once again, though there is no constitutional right to sell alcohol to men who are the same age as women who may drink, the Court allowed the plaintiff to sue, because her relationship to her would-be male customers was deemed "special" for purposes of prudential standing requirements.

Is the Parent/Adult Child Relationship Constitutionally Protected?

So where does the parent of an adult child fit into the prudential standing jurisprudence? The U.S. Supreme Court has not spoken directly to this question. It has, however, in a series of cases involving minor children, deemed the relationship between a parent and child to be constitutionally protected.

Such cases recognize the right of parents, for example, to refuse to submit grandparent visitation questions to a judge's discretion, to send their children to private rather than public schools, and to teach their children any foreign language they choose. These cases emphasize the importance of a parent's ability to direct the upbringing, people, and values to which their children are exposed.

In the tragic event of a minor child being murdered by police officers under color of state law, the loss of the parent-child relationship is one of constitutional dimension that would entitle parents to sue over the violation of the child's rights (and the corollary injury inflicted upon the parents). Indeed, in Tennessee v. Garner, a case in which the Court held unconstitutional the use of deadly force against a fleeing burglary suspect, the victim who was killed was the 15-year-old son of the man who brought the lawsuit.

But what happens when the child grows up? Clearly, a parent of adult children does not have the right to direct the lives of his offspring. An adult may decide to abandon the religion, values, geographical location, and language of his parents, and there is nothing they may do - at least as a matter of constitutional right - to stop him. Does it follow from this that the state's taking the life of a parent's adult child has no constitutional dimension?

The Divide Among Federal Appellate Courts on Parental Standing to Sue

At least two U.S. Courts of Appeals have answered this question "no." Both courts recognize that the loss of the society and companionship of adult children implicates the same sorts of concerns as the loss of the society and companionship of minor children. Three U.S. Courts of Appeals (including the court that decided McCurdy) decided the issue the other way.

Does the Constitution, as three courts suggest, draw a distinction among parents who lose a child to state misconduct, based on whether the child is still a dependent of the parent?

For most cases implicating parental rights, the children will necessarily be minors. This is because fights about parental rights are typically challenges to governmental policies that directly interfere with a parent's prerogative to make decisions on behalf of her children. As soon as children are empowered by law to make their own decisions, the state can neither give nor take away any right on the part of a parent to control the conduct of her progeny.

It is therefore virtually always going to be the state's violation of the adult child's rights themselves (rather than a direct attack on the parent's right to run her child's life) that will result in injuries to parents that might lead the parents to sue. And the predictable case in which such an injury would occur is when the government has used excessive, deadly force against a child and left the parents bereft of their offspring.

Therefore, to the extent that parents of minor children have been granted standing to sue for the deaths of their children, the question becomes what one understands that loss to consist of.

If one accepts the view that the age of majority extinguishes any constitutional right to a relationship with one's children, then one must assume that the essential ingredient of parental rights is control. Once a person has lost the right to control a child's activities and whereabouts, the killing of that child no longer deprives the parent of anything that is constitutionally cognizable.

On this view, the reason that Mr. Garner was able to sue Tennessee for shooting his child to death was that the state had thereby terminated his ability to make his son spend time in his company. Since the son in McCurdy was nineteen and independent, his father there had no such right to lose.

Characterizing the Loss of A Parent/Child Relationship

To characterize the loss of the parent/child relationship in this way, however, is to trivialize it and to miss entirely the harm that the government (or any murderer, for that matter) inflicts on a parent when it extinguishes the life of his child.

The primary reason that a parent is given the right to control her children in so many ways is that the law presumes (almost irrebutably) that parents will act out of love to ensure that their children are safe, healthy, and educated in a way that is best for them. The right to the companionship of one's children is precious, because of the expression of love that begins as largely one-sided but ideally becomes increasingly reciprocal over time.

The parental right that is violated by the killing of a child is therefore a right to enjoy a relationship that one has nurtured and that is eventually a reflection of mutual affection and concern, rather than one of power to coerce contact. If that is true, then the companionship of an adult child, though not something that a parent can legally coerce, is ordinarily a concomitant of having done a decent job of parenting that engenders a desire to continue the relationship beyond the point of custodial authority.

When a child in fact has such a relationship with his parent, and the government destroys that freely chosen relationship that so clearly emerged from the upbringing that preceded it, the government interferes with what is one of the most meaningful associations that people can have with one another. For that, a parent should certainly have standing to sue.

Sherry F. Colb, a FindLaw columnist, is a professor at Rutgers Law School in Newark.

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