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Survival and Wrongful Death Damages in Section 1983 Cases Revisited Samuel Paz Npap 2004

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Survival and Wrongful Death Damages in Section 1983 Cases
By R. Samuel Paz 1
In representing the families of victims of police or governmental
misconduct, when death is a result, one overriding emotional component
sometimes overlooked is the representation of the rights of the deceased
victim. When the case is presented, pre-trial and at trial, the rights of the
deceased should be asserted with the same intensity as if the deceased
were sitting the chair next to the family. Vigorous advocacy of the rights of
the deceased will give meaning to the injustices they suffered thereby
giving them “life” after death. This paper will briefly discuss how the
survival action on behalf of the deceased cam maximize the purposes and
policies of § 1983.
Most conventional state law torts cases typically includes damages for
pain and suffering, but exclude them in a number of circumstances, such as
under the survival statute C.C.P. § 377.34, or under the wrongful death statute
C.C.P. § 377.61. However, cases alleging damages under 42 U.S.C. § 1983 2 have
been held to have distinct purposes that has expanded the recovery of damages for the
pain and suffering of the deceased before his/her death and for recovery of damages
for the deceased’s “right to life” by the heirs or the authorized representative of the
estate. The basic purposes of an award of damages under § 1983 is: (1) to compensate
plaintiffs for injuries caused by deprivations of their federal constitutional or statutory
rights; and, (2) the award often serves an important function “to prevent or deter
‘official illegality’.” Robertson v. Wegmann, 436 U.S. 584, 590-592 (1978).


This paper was initially presented in San Francisco 2004 by the author at the
NPAP Seminar and has been presented in its updated form for the Seattle NPAP presentation at
the request of the organizers.

§ 1983 is one of the Reconstruction-era statutes enacted in response to
the lawlessness of the Ku Klux Klan and its sympathizers and the tacit acceptance of
the KKK by southern local governments and law enforcement agencies. It is now
unquestionably "the main [statutory] vehicle for constitutional tort litigation." Archie v.
City of Racine, 847 F.2d 1211, 1226 (7th Cir. 1988) (Posner, J., concurring).

The common law provided that tort claims for personal injuries abated upon the
death of the injured party. As a result of obvious injustices caused by the common
law rule, most states (except Idaho) have enacted statutes "survival statutes,"
allowing tort actions to survive the death of the plaintiff. § 1983 contains no language
addressing this question and there is no codified federal survival statute, these state
survival statutes provide the vehicle in recovering damages in survival claims under §
1983. Robertson v. Wegmann, 589-90.
A frequently litigated issue is whether, and to what extent, the survivors in such
a case can recover damages for pain and suffering experienced by the decedent prior
to death. In Greene v. Vantage S.S. Corp., 466 F.2d 159, 166 n.9 (4th Cir.
1972) the court commented that "there is no federal policy against awarding
damages for pain and suffering" under these circumstances. In re Korean
Air Lines Disaster, 807 F. Supp. 1073, 1081 (S.D.N.Y. 1992) also opined that
there was "no federal statutory or common law bar to the survival action
brought by the decedent's estate . . . to recover damages for decedent's
conscious pain and suffering". Most courts first look to state law for the
appropriate remedy for § 1983 violations. Bell v. City of Milwaukee, 746 F.2d
1205, 1236 (7th Cir. 1984); Berry v. City of Muskogee, 900 F.2d 1489, 1505 (10th
Cir. 1990)
However, many state survival statutes, including several in the Ninth Circuit,
preclude any recovery for the decedent's pain and suffering. For example, in Kirk v.
Washington State Univ., 746 P.2d 285, 292 (Wash. 1987) it was noted that damages
for pain and suffering were "expressly barred from recovery" under the Washington
survival statute which was later modified. In Garcia v. Whitehead, 961 F. Supp.
230, 232 (C.D. Cal. 1997) the court pointed out that "California's survivorship
statute ... specifically excludes damages for a decedent's pain and suffering."
See also Denton v. Superior Court, 945 P.2d 1283, 1287 (Ariz. 1997). Thus,
the defense will typically argue that the survival statutes should control the jury
instructions on damages and plaintiffs’ counsel will assert that the application of these
state law limitations in § 1983 are inconsistent with 1983's deterrent and
compensatory purposes. The trend of these cases are that restrictive state laws must
give way to federal common law rules that permit recovery. In sum, in a § 1983
action, the trend of the law is that the estate may recover damages for loss of life,
conscious pain and suffering experienced by the decedent prior to death, and punitive
damages in a case in which the standard of Smith v. Wade (supra) has been satisfied.
This paper will briefly address three issues which may arise in the context of

which damages will be compensable at trial in a survival action.
(1) The federal common law developed by U.S. Supreme Court and federal
cases are generally controlling on the issues of damages in § 1983 actions;
(2) The estate in a § 1983 action can recover damages for “loss of life” as a
result of the decease’s death in a survival action; and,
(3) The estate in a § 1983 action can recover damages for “pain and
suffering of the deceased suffered prior to his/her death in a survival action.


42 U. S. C. § 1983 creates "'a species of tort liability' in favor of persons
who are deprived of 'rights, privileges, or immunities secured' to them by the
Constitution." Carey v. Piphus, 435 U.S. 247, 253 (1978). See also Smith v.
Wade, 461 U.S. 30, 34 (1983). Accordingly, when § 1983 plaintiffs seek
damages for violations of constitutional rights, the level of damages is
ordinarily determined according to principles derived from the common law of
torts. See Smith v. Wade, supra, at 34; Carey v. Piphus, supra, at 257-258.
To that end, compensatory damages may include not only out-of-pocket loss
and other monetary harms, but also such injuries as "impairment of reputation
. . . , personal humiliation, and mental anguish and suffering." Gertz v. Robert
Welch, Inc., 418 U.S. 323, 350 (1974). See also Carey v. Piphus, 264 (mental
and emotional distress constitute compensable injury in § 1983 cases).
Deterrence is also an important purpose of this system, but it operates
through the mechanism of damages that are compensatory -- damages
grounded in determinations of plaintiffs' actual losses. Congress adopted this
common-law system of recovery when it established liability for "constitutional
torts." Consequently, "the basic purpose" of § 1983 damages is "to
compensate persons for injuries that are caused by the deprivation of
constitutional rights." Carey v. Piphus, 254 (emphasis added). See also Id., at
257 ("damages awards under § 1983 should be governed by the principle of
As the United States Supreme Court explained in Robertson v.
Wegmann, 436 U.S. 584, 589 (1978) “[I]n certain areas 'federal law is unsuited or
insufficient "to furnish suitable remedies’”; federal law simply does not 'cover every
issue that may arise in the context of a federal civil rights action.’”When in a section
1983 case brought in federal court the federal law is deemed to be deficient, a related
statute, 42 U.S.C. § 1988, instructs courts to turn to " 'the common law, as modified
and changed by the constitution and statutes of the [forum] State,' as long as these are

'not inconsistent with the Constitution and laws of the United States.' " (Id., 588.)
Robertson v. Wegmann alleged a §1983 deprivation based on a state district
attorney's bad faith criminal prosecution. The plaintiff died, (the death was unrelated
to the alleged constitutional violation) while the action was pending and he left no
close surviving relatives. Id., 585. The decedent's estate then sought to be substituted
as a plaintiff, but the state survival statute was limited to survival claims of the spouse,
children, parents, or siblings of a decedent, none of which had standing under the
statute. However, Court of Appeal upheld the trial court’s decision that not allowing
the estate to proceed would be inconsistent with the purposes of § 1983, and held the
estate could proceed. Id., 587-88, 590. In reversing, the Supreme Court he survival
statute barred the decedent's § 1983 claim. Holding that because federal law is silent
on the survival of § 1983 claims, they are generally determined by state law, the court
clarified that the exception to this general rule occurs where application of the
pertinent state law such as a survival statute - would be inconsistent with federal law.
Id., 589-590, citing 42 U.S.C. 1988 (1996), which permits resort to state law where
federal remedial provisions are "deficient," In determining if a state statute is
inconsistent with federal law, courts must look not only to the language of the
pertinent federal statute, but also to the policies underlying that statute, citing the
principal policies behind § 1983 are (1) compensating for injuries to persons who have
been deprived of their federal rights, and (2) deterring abuses of authority by
individuals acting under color of state law. Id., 590-591.
Robertson also held the abatement of that specific action was not contrary to the
deterrent policy of § 1983 in that the constitutional deprivation did not cause the
victim's death, because the statute permitted most actions to survive the victim's death.
Thus, even state officials contemplating illegal activity who were familiar with the
statute would be cognizant of their potential liability under § 1983 and the deterrent
value would generally be preserved. Id. 591-952. Although in Robertson the court
concluded that plaintiff's § 1983 claim abated upon his death, the Court reaffirmed the
general proposition that state survival statutes apply in 1983 actions unless they have
an independent adverse effect on, and are generally inhospitable to, the policies
underlying § 1983. Id. 594.
In Carlson v. Green, 446 U.S. 14 (1980) the court distinguished and
limited Robertson. Carlson alleged a “Bivens” action 3 alleging an Eighth

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Bivens
actions are claims asserted against federal officials for violation of a U.S. Constitution rather
than one arising under § 1983. Many cases follow Carlson in addressing the survival of claims

Amendment violation for failure of prison officials to provide adequate medical
attention causing the death of the plaintiff's son from a decedent's chronic
asthmatic condition which occurred while he was incarcerated in federal prison.. Id.,
16, fn. 1. The Indiana state law provided that no recovery was available where the acts
complained of caused the victim's death. Id., 17, Fn. 4. Carlson rejected the defense
argument that Robertson compelled that state law must be followed in assessing the
survival of the decedent's Bivens claim. It held that only a uniform federal
survivorship rule would suffice to redress the constitutional deprivation being alleged,
and that whenever a state survival statute would result in the abatement of Bivens
claims against defendants whose conduct caused the victim's death, federal common
law applies to permit survival of the action. Id., 23-24.
Notwithstanding the authority provided by Robertson and Carlson, they
addressed the applicability of state survival statutes that result in the complete
abatement of an action and neither case directly held that in § 1983 actions, state
survival provisions that merely preclude the recovery of damages for pain and
suffering should not be followed in instructing the jury. 4 However, these Supreme
Court cases have become the foundation for a number of circuit and lower court
decisions which have limited the application of state law provisions that preclude
damages awarded to the estate or representative of a decedent for “loss of life” or for
the decedent’s “pain and suffering” caused by the constitutional violation before


In the seminal case of Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984)
the defendant officers appealed from the jury verdict and judgment of the district
court, which found that the defendant officer deprived decedent Daniel Bell and his
family of their constitutional rights by an unlawfully shooting and the finding that the
officer, the Chief of Police, and the investigating detective unlawfully conspired to
for pain and suffering in § 1983 cases. See, e.g., Weeks v. Benton, 649 F. Supp. 1297, 1308-09
(S.D. Ala. 1986); Sager v. City of Woodland Park, 543 F. Supp. 282, 287 n.3, 295-96 (D. Colo.
1982); Davis v. City of Ellensburg, 651 F. Supp. 1248, 1254-55 (E.D. Wash. 1987); Guyton v.
Phillips, 532 F. Supp. 1154, 1166 (N.D. Cal. 1981),

In Carlson, in a concurring opinion written by J. Powell, joined by J. Stewart
opined the same result if the action was under § 1983, Id. at 29-30. See also Bell v. City of
Milwaukee, 746 F.2d 1205, 1237-1238 (7th Cir. 1984), (applicability of Carlson to § 1983).

conceal the true facts of Daniel Bell's death. Defendants appealed various components
of the judgment of $1,590,670 in favor of family members and the estate of Daniel
Bell for “loss of life.” There, the court held that the state law wrongful death-survival
statute, similar to California’s, along with state case law decisions construing those
provisions “. . . which would preclude recovery to Daniel Bell's estate for loss of life,
are inconsistent with the deterrent policy of Section 1983 and the Fourteenth
Amendment's protection of life.” Id., 1240. “The Wisconsin law therefore cannot be
applied to preclude the $100,000 damages recovered by Daniel Bell's estate for loss of
life.” Id.
Deterrence of wrongful or negligent conduct is also a policy objective of tort
law, but as in Wisconsin, survival and wrongful death statutes generally do not
seek to deter wrongful deaths through the imposition of damages for loss of life
itself. The rationale is typically the extraordinary difficulty in measuring the
value of the loss; and in the context of a survival action, there is the additional
inability to restore a deceased to the state he would have enjoyed but for his
death. [cite omitted] Yet given the stated tort policy of deterrence and the
conceivable reduction of the incidence of tortious conduct created by the threat
of substantial damages, these dilemmas amount to less than a compelling
argument against awarding any damages at all for loss of life. Id., fn. 41.
In Graham v. Sauk Prairie Police Commission, 915 F.2d 1085 (7th Cir.
1990) plaintiff’s § 1983 Fourteenth Amendment arise from the shooting death of her
husband. The officer defendant died from causes unrelated to the case shortly after it
was filed. The district court granted plaintiffs’ summary judgment on the decedent’s
fourth amendment excessive force claim and fourteenth amendment loss of life claim
and in favor of the spouses’ fourteenth amendment claim for lost society and
companionship. After a jury award to the spouse of $ 300,000 for lost society and
companionship, $ 130,200 in compensatory damages and $ 550,000 for loss of life to
the Estate, defendants challenged the loss of life damages on the grounds that because
the officer had died, no deterrent policy would be advanced by the award. Id., 1088.
Graham follow Bell where “[W]e stated that where the unconstitutional act is the
taking of a life, there would result more than a marginal loss of influence on
potentially unconstitutional actors and, therefore, on the ability of § 1983 to deter
official lawlessness, if the victim's estate could not recover loss of life damages.” Id.,
1104. First the court rejected the argument that because both the deceased and the
officer were Caucasian that the award would not address an inference of racial animus
present in Bell and therefore had no effective deterrence on racial injustice, a
historical consideration of § 1983 explaining:

While the loss of life damages in Bell may have been directed partially towards
deterring deprivations of life that are motivated by racial animus, we
emphasized that the legislative history underlying § 1983 expresses an
unequivocal concern for protecting life. (Cite omitted, emphasis in the original.)
Thus, while § 1983 damages may in some cases be aimed at deterring a
specific motivation (for instance, racial animus) for an unconstitutional killing,
the overriding concern of § 1983 is deterring unjustified takings of life. Id.,
Graham also rejected the argument that because the individual officer acting
insane at the time of the shooting and was now dead, that the award would have no
deterrent effect on him as an individual and therefore did not advance the purposes of
§ 1983. The court found the fact that the officer could no longer be deterred “quite
irrelevant.” It explained:
The deterrence objective of § 1983 damages is directed at a broader category
of persons than the individual perpetrator alone. In Bell, this court stated that
loss of life damages are intended to have a deterrent effect on "potentially
unconstitutional actors." 746 F.2d at 1239 (emphasis added). No specific
deterrence could have been accomplished in Bell because in that case, the
offending officer had resigned from the force. Id., 1105.
Thus, it was held that the loss of life award to the estate was broadly directed
towards “deterring any police officer who would contemplate taking the life of a
person who poses no threat of harm to the officer or the public.” Id.
Consistent with the reasoning of the “loss of life” cases, a number of § 1983
cases have also allowed claims of punitive damages in wrongful death cases over
restrictive state wrongful death statutes. For example, in Bass v. Wallenstein, 769
F.2d 1173, 1190 (7th Cir, 1985) the court stated “Nor can restrictive state law preclude
the estate's recovery of punitive damages in a case in which the showing of
"recklessness or callous indifference" required by Smith v. Wade, 461 U.S. 30, 75 L.
Ed. 2d 632, 103 S. Ct. 1625 (1983), has been made." In Bell, the court held that “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." (Id., 746
F.2d, at 1241.) See also McFadden v. Sanchez, 710 F.2d 907 (2d Cir. 1983).


A number of federal precedent supports the position that an estate may
recover “loss of life and pain and suffering of the deceased in an § 1983
action. In Guyton v. Phillips, 532 F. Supp. 1154 (N.D. Cal. 1981) the action
was brought by the estate of the deceased minor by his mother. Guyton was
an age 14 years, small, slight, black male whose death was caused by
gunshot wounds inflicted by two officers following a car chase. Id., 1156.
Under state survival law the estate could not recover for pain and suffering
sustained prior to death nor for the loss of life. Citing Carey v. Piphus, 435 U.S.
247, 253 (1978) for the proposition that state common-law tort rules of damages may
be inconsistent with the policy underlying § 1983, the court held that the estate was
entitled to recover for loss of life and pain and suffering. Plaintiff could therefore
recover under § 1983.
However, taking heed of the guidance offered by the majority in
Robertson, this court follows what appears to be the present
interpretation of § 1988. (Fn and cite ommited.) Therefore, we look to
the state statute, and if an inconsistency with federal law is found, we
look to federal common law. This court is persuaded by the intent of the
Act, the narrow ruling and discussion by the Supreme Court in
Robertson, and the holdings in Basista v. Weir, supra, and its progeny,
that California's survival statute, insofar as it excludes recovery for pain
and suffering, is inconsistent with § 1983. Its restrictions on recovery
are significantly inhospitable to the policies fostered by the Act. (Cites
omitted.) To deny recovery for pain and suffering would strike at the
very heart of a § 1983 action. Id., 1166. 5

The Guyton at fn. 6 court found it important to note that pain and suffering
sustained prior to death is recoverable in a majority of jurisdictions as having survival
statutes or hybrid survival-wrongful death statutes that allow recovery for a decedent's
conscious pain and suffering prior to death: Arkansas, Connecticut, Delaware, District of
Columbia, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire,
New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Puerto Rico,
South Carolina, South Dakota, Tennessee, Texas, Vermont, and Wisconsin, in addition
to specific federal statutes and decisions under the general maritime law.

In Williams v. City of Oakland, 915 F. Supp. 1074, (N.D. Cal. 1996) plaintiff
filed her § 1983 alleging that officers unlawfully seized, searched and used excessive
force. Plaintiff died before the action was tried from causes unrelated to the incident.
Her husband substituted into the action as the administrator of her estate representing
himself and her heirs and survivors. The court concluded that California survival
law's disallowance of recovery for a deceased plaintiff's pain and suffering, as
expressed in C.C.P § 377.34, is "inconsistent with section 1983 [even in cases] when
the victim's death was not a result of the constitutional violation." (Id., 1077.) Guyton
distinguished Robertson and found that the implications of adopting the
limitation contained in the California statute were far broader than the very
limited ones in Robertson where the pain and suffering damages abated only
because that plaintiff had no next of kin survivors.
Here, the deceased plaintiff's husband is in a position to vindicate his
wife's rights and receive an award of compensatory damages. He is
within the familial range of those affected by defendants' conduct. To
deprive him or other survivors of the only element of damages that the
deceased might have been able to recover would have a serious
adverse effect on the policies underlying section 1983. This holding
comports with the conclusions in comparable cases decided by federal
appellate and district courts. Berry v. City of Muskogee, 900 F.2d 1489
(10th Cir. 1990) involved an action where the death was caused by the
section 1983 violation. The Tenth Circuit discussed the need for
compensation for victims of section 1983 violations and found that a
state survival statute which cut off nearly all damages available to the
decedent failed to satisfy the purposes of the federal law. Id. at 1504-06.
In Bell v. City of Milwaukee, 746 F.2d 1205, 1234-42, 1250-53 (7th Cir.
1984), the Seventh Circuit adopted the state survival statute but found
the monetary limitations in the state's wrongful death statute at odds
with the purposes of section 1983. The court upheld an award of
damages above the state limit in order to vindicate the deprivation of
constitutional rights. Similarly, in Larson v. Wind, 542 F. Supp. 25, 27
(N.D. Ill. 1982), a district court found that a state survivorship statute
which precluded recovery for punitive damages was inconsistent with
section 1983. Larson also involved a plaintiff who died from causes
unrelated to the conduct complained of in the action. The court went on
to say that "section 1983's purpose of deterrence would be subverted by
slavish application of a state survivorship rule denying punitive
damages." Id. (Id., 1078-1079.)

In Garcia v. Whitehead, 961 F. Supp. 230 (C.D. Cal., 1997) then District Judge
Pragerson denied defendant’s motion in limine to not allow pain and suffering of the
deceased as damages in a § 1983 action against the County of San Bernardino and a
deputy alleging excessive force was used against the Decedent. There the Court
Thus, the deterrent purpose of section 1983 "is hardly served when the police
officer who acts without substantial justification suffers a harsher penalty for
injuring or maiming a victim than for killing him." [cite omitted] The Guyton
court concluded that "to deny pain and suffering damages would strike at the
very heart of a section 1983 action . . . . Absent such a remedy, the section 1983
claim amounts to little more than a tort claim." Id.
In Davis v. City of Ellensburg, 651 F. Supp. 1248, 1256 (E.D. Wash. 1987), the
§ 1983 claim arose out of the decedents’ death during his arrest. The defendants
based their position that the § 1983 claims were subject to Washington's survival
statute precluding recovery for "pain and suffering ... personal to and suffered by a
deceased." Id., 1255-56, quoting Wash. Code 4.20.046(1) (1988). Plaintiffs
argued that Guyton v. Phillips, was more applicable in that the statues’ limitation on
recovery of pain and suffering prior to death was inconsistent with § 1983's deterrent
objective. Id., 1250.
The court agreed that the holding in Robertson v. Wegmann, should not be
extended to cases where a constitutional violation results in the victim's death. The
Davis court agreed that applying Washington’s survival statute that excluded damages
for pain and suffering would be inconsistent with § 1983 because defendants would
not be sufficiently deterred from killing their victims, where the constitutional
deprivation results in death would create a rule in terms of liability and deterrence
where, from the point of the defendant, “it was better to kill them than leave them
alive.” The Davis court phrased the contrary situation as a "substantial deterrent effect
to conduct that results in the injury of an individual but virtually no deterrent to
conduct that kills the victim. Id., 1256.
Similarly, in Heath v. City of Hialeah, 560 F. Supp. 840 (S.D. Fla. 1983),
in a § 1983 action brought by the estate of a youth who was shot and killed by
a police officer, the court held that a Florida law which would preclude survival
of the action was inconsistent with § 1983 policy, and that federal common
law which allows the action to survive governed the estate's recovery. (See
also O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345

(E.D. Va. 1981), (state law held to be inconsistent with the § 1983 policy of
deterring unconstitutional deprivations of life by state officials, allowing the
estate's § 1983 claim.)
In Sanchez v. Marquez, 457 F. Supp. 359 (D. Colo. 1978) the personal
representative of the estate (and other plaintiffs) brought a § 1983 action
against officers who wrongfully shot and killed the representative's brother.
State law permitted survival of the action, but limited recovery to the victim's
loss of earnings sustained prior to death. The court, noting that "it is
inconsequential that the actions under color of state law which violate a
federally protected right may also constitute a tort," held that § 1983 was not
intended to incorporate such restrictive damage limits. (Id., 362.) Other cases
rejecting restrictive state laws on damages in § 1983 cases, see Sager v. City
of Woodland Park, 543 F. Supp. 282 (D. Colo. 1982) and Jackson v. Marsh,
551 F. Supp. 1091 (D. Colo. 1982).
In Banks v. Yokamick, 177 F. Supp. 2d 239 (SDNY 2001) Decedent Banks was
riding a bicycle in Manhattan on October 29, 1998 when Officer Yokemick, who was
chasing Banks, threw his police radio at him, striking the side or rear of Banks's head
with sufficient force to knock him off the bicycle and cause him to fall to the street.
The jury also heard evidence indicating that Yokemick did not immediately disclose
to other officers who arrived at the scene and drove Banks away to the police station,
or to personnel at the precinct, or to ambulance attendants who later transported Banks
to the hospital, that Banks had been struck on the head by Yokemick's radio. Banks's
life could not be saved by the time he was finally taken to the hospital and properly
diagnosed later that day as having suffered head injuries. Hours after his arrival at the
hospital he went into a coma, was pronounced brain dead two days later. An autopsy
determined the cause of Banks's death as having resulted from a blunt impact to the
head that fractured his skull and produced brain contusions. (Id., 243-244.)
The jury awarded plaintiff a total of $ 605,001 consisting of (1) $ 25,000 for
'Banks's conscious pain and suffering and $ 500,000 for his loss of life, both
connected with the claim of use of excessive force; (2) $ 75,000 for Banks's pain and
suffering associated with a state law claim for negligent delay in obtaining medical
assistance; and (3) $ 5,000 on Banks's state law wrongful death cause of action, and
(4) nominal damages of $ 1.00 on Banks's claim of unlawful arrest.
In upholding the verdict, the Court stated:
Uniformly, the courts have ruled that when a violation of federal rights

protected by § 1983 does cause the decedent's death, state laws that
either extinguish the survival action or bar recovery for loss of life,
effectively abate a § 1983 claim of deprivation of life, are inconsistent
with § 1983, and warrant application of a federal rule of decision
pursuant to § 1988. See Berry, 900 F.2d at 1501 ("We are satisfied that
Congress intended significant recompense when a constitutional [**23]
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."); Bass v. Wallenstein, 769 F.2d 1173,
1189-90 (7th Cir. 1985) (holding that where the constitutional violation
has caused death, "state law that precludes recovery on behalf of the
victim's estate for loss of life is inconsistent with the deterrent policy of
section 1983.") (citing Bell v. City of Milwaukee, 746 F.2d 1205, 1234
(7th Cir. 1984)); Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984);
McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983). (Id., 250.)
The Banks court concluded that based on the reasoning and precedent of the
authorities cited the court found that insofar as New York's survivorship of claims
statute would bar recovery of the damages that the jury awarded for Banks's loss of
enjoyment of life, the state law fails to take into account policies analogous to the
goals expressed in § 1983 and sustained the jury's verdict awarding damages for loss
of enjoyment of life and pain and suffering of the decedent. (Id., 252-253.)
Not all jurisdictions have adopted the Guyton analysis and adopt the position
that limitations on decedent’s pain and suffering are not inconsistent with 1983's
policy of deterrence. For example, in Garcia v. Superior Court, 42 Cal. App. 4th 177
(1996), a § 1983 action brought by the estate alleged excessive force claim which
caused the death of plaintiff’s brother, the trial court struck the claim for decedent’s
pre-death pain and suffering damages. The plaintiff appealed asserting the state
statute was inconsistent with federal law, and the policies underlying §1983. Court of
Appeal declined to follow the reasoning of Guyton and concluded that the deterrent
purpose of § 1983 is satisfied by the fact that the state survival statute (Cal. Code Civ.
Pro. § 377.34) expressly allows punitive damages which the decedent would have
been entitled to recover had he survived. The Garcia court also reasoned that the
statutory scheme for survivors, taken as a whole, provides adequately for
compensatory damages, because the designated heirs can bring a wrongful death
action. Id., 581-582.
Garcia specifically rejected the reasoning of Guyton and Bell that denial of pain and
suffering damages would effectively create an incentive for wrongdoers to "kill the

victim rather than merely injure or maim the victim." Id., 585-585.
The reasoning of Garcia v. Superior Court was rejected in Garcia v.
Whitehead, 961 F. Supp. 230 (C.D. Cal. 1997) a § 1983 action alleging a shooting
death by a deputy, specifically the conclusion that punitive damages provides an
adequate deterrent in cases where the victim of a constitutional deprivation is
deceased. Id., 233.
The Court does not find persuasive the notion that punitive damages
provide an adequate deterrent effect. Even where a constitutional
violation is found, punitive damages are never available against the
agency itself in a section 1983 action, and are not always warranted
against the individual defendant. Furthermore, as Judge Patel noted in
Williams, "the amount of those [punitive] damages will be governed by
the financial condition of the individual officer without regard to the pain
and suffering he may have inflicted on the decedent." 915 F. Supp. at
1078. The amount of punitive damages awarded against the typical civil
servant is therefore likely to be relatively small. Id.