O’Dell v. Espinoza

LOCATION:José Aponte de la Torre Airport, formerly Roosevelt Roads Naval Station

DOCKET NO.: 81-534
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Colorado Supreme Court

CITATION: 456 US 430 (1982)
ARGUED: Apr 26, 1982
DECIDED: May 04, 1982

Scott H. Robinson – on behalf of the Respondents
Theodore S. Halaby – on behalf of the Petitioners

Facts of the case


Audio Transcription for Oral Argument – April 26, 1982 in O’Dell v. Espinoza

Warren E. Burger:

We will hear arguments next in O’Dell against Espinoza.

Mr. Halaby, I think you may proceed whenever you’re ready.

Theodore S. Halaby:

Thank you.

Mr. Chief Justice, and may it please the Court:

This case arises out of a confrontation that occurred in a Denver, Colorado, city park between three officers of the Denver police department and the father of the Respondents and a companion of that father.

Before you get too far into the merits, Mr. Halaby, let me ask you this question.

As I read the State Supreme Court’s opinion, the trial court had dismissed the 1983 action on a motion for summary dismissal on the ground that the remedy was exclusively under state law for death by a wrongful act.

Now, on that basis the State Supreme Court reversed the trial court and said, no, you should not have had summary judgment sending it back, and therefore the case is now back where it started and would go to trial.

Is that correct?

Theodore S. Halaby:

Not absolutely, Mr. Chief Justice.

Well, what would have happened if you had not brought the case here?

Theodore S. Halaby:

If we had not brought the case here, the two claims, the 1983 survivorship claims brought on behalf of the estate and the personal 1983 claims of the children of the decedent, both would have been remanded for trial in the district court and tried there.

The relief Petitioners are seeking–

Well, before you go into that, did you raise the 1985, Section 1985 question here, or only the 1983?

Theodore S. Halaby:

–We have only raised one issue, and that deals with the children of the decedent, the Respondents herein, and whether or not they may assert personal 1983 claims.

We have not raised the dismissal of the 1985 claims.

Neither have Respondents.

We have not raised the dismissal of the 1983 claims with respect to the chief of police, who was sued strictly in a supervisory capacity.

We have not raised the dismissal of those claims.

We have only raised the finding of the Colorado Supreme Court insofar as it recognized a personal constitutional right in the child to a continuing family relationship, which would afford that child a claim pursuant to Section 1983 for deprivation of that right.

I’m sure it’s apparent to you what I’m driving at is whether there is a case here, whether there is jurisdiction.

And you say that if you had not brought the case here, if I understood you, you would have gone to trial on the 1983 question in the state court, with an obligation on the part of the state court to apply federal law.

Is that correct?

Theodore S. Halaby:

That’s correct.

If we had not brought the case here–

Then is there a final judgment here?

Theodore S. Halaby:

–There is a final judgment, we submit, with respect to the claims of the children, because unless the Court recognizes that constitutional right they are not parties to the action, they have no claims whatsoever.

So with respect to the claims of the children there is… unless this Court is to affirm the finding of the Colorado Supreme Court with respect to the claims of those children, since they did not assert their state rights under the wrongful death statute, they would have no claims, they would not be parties to the action.

But the Colorado Supreme Court upheld those claims.

Theodore S. Halaby:

That’s correct, Justice Rehnquist.

Theodore S. Halaby:

And we submit they did so erroneously in an unprecedented fashion.

But if they did uphold them, it was simply to say that in the abstract it stated a claim for relief or what have you under Section 1983, and that the trial court, I take it, on remand, was to try the case.

Theodore S. Halaby:

That’s correct.

Is that a final judgment under 1257?

Theodore S. Halaby:

It is not a final judgment in that respect, in that the claims have not been tried and the Colorado Supreme Court has not ruled specifically on the merits of those claims.

However, we would still urge consideration by this Court because of the profound ramifications of this finding, not only in the State of Colorado but nationwide.

Counsel, aren’t there only about four exceptions to our taking… to the final judgment rule, and how does this fit into any of those exceptions?

Theodore S. Halaby:

We would submit that because it is a decision in conflict with prior decisions of this Court and has such profound consequences, that this issue is ripe for the consideration of this Court.

Well, that would be a new exception, in addition to any that we’ve ever recognized before.

Theodore S. Halaby:

I believe this Court… it does fit within what this Court has recognized before with respect to fundamental decisions that have run contrary to this Court, which is what we asserted in our petition in the first instance, in terms of the fact that it was in conflict with the prior decisions of this Court, that if this decision of the Colorado Supreme Court is left unreversed that the profound negative consequences, which we submit are improper, would have ramifications that are uncorrected.

So we would submit that, while there is not a final decision on the merits of the children’s claims, since they have not been tried in the district court, that it is still an issue that is ripe for consideration of this Court.

Well, what if you win below?

What if there had been… what if you hadn’t come here and there were a remand and you won, or if the children got less than $45,000.

Theodore S. Halaby:

Well, in either instance, Justice Blackman, if we won or they got less than that, we necessarily would–

I mean, you would won your case.

Theodore S. Halaby:

–We would have won our case.

And the case would never have come here.

Theodore S. Halaby:

Unless the other side appealed the case, of course.

However, the law would still stand in Colorado–

If they brought it up here then, it may be that… it may be that you could sustain the judgment then on the very ground you’re now urging.

Theodore S. Halaby:

–If we had won the case, Justice White, the law would remain in Colorado–

We don’t sit just to correct errors of law.

We still decide cases and controversies, and avoid deciding, our deciding, constitutional questions as long as possible.

How do you know that the Colorado courts won’t give you everything that you’re seeking?

Theodore S. Halaby:

–Well, based on the decision of the Colorado Supreme Court in recognizing the constitutional right of the child, that alone prevents us from accomplishing what we are seeking.

Of course, on the trial on the merits in the district court we may be successful, which would then preclude any harm.

And if you are not successful on that issue, then you might be able to come here.

Theodore S. Halaby:

That’s correct, Your Honor.

Is the other… is the alternative ground for recovery still open in the district court?

Theodore S. Halaby:

The alternative ground for recovery under the wrongful death statute?

Theodore S. Halaby:

No, simply because the Respondent children have not sought to seek their remedy under the state wrongful death statute.

They have only asserted one claim and that’s their federal claim pursuant to Section 1983.

And it’s still open, isn’t it?

I mean, they can amend their claim, I suppose.

Theodore S. Halaby:

I believe they still can.

They were granted leave by the district court to amend their claim.

They chose not to, but stand simply on their 1983 claim.

How do you understand… what do you understand to be the position of the amicus in this case, the ACLU?

Theodore S. Halaby:

Well, my understanding of their position is that this issue, as Justice O’Connor raised, is not ripe for consideration by this Court.

I do understand that to be their position.

And so therefore they ask this Court to affirm and remand the rulings of the Colorado Supreme Court, which would seem to me would be a decision on the merits.

Certainly if we affirm.

Theodore S. Halaby:

That was one of the alternatives, Justice Rehnquist, that was suggested by the amicus.

But their first suggestion is to vacate, isn’t it?

Theodore S. Halaby:

Vacate on the grounds of certiorari being improvidently granted, similar to an analogous case arising out of Colorado in the Jones v. Hildebrant case, where this Court similarly dismissed as having been improvidently granted.

But we would submit that it is within the discretion of this Court to decide this issue at this time, and that the importance of this issue is so overwhelming that it would deserve resolution at this time.

Could you help me with one other procedural question?

I had some… I wasn’t sure I entirely understood your Justice Erickson’s concurring opinion.

He said that the majority didn’t really need to decide what it did, because it could remand on… just on the survivorship claim, is that what he was saying.

Theodore S. Halaby:

I believe what Justice Erickson was suggesting was that the Colorado Supreme Court went far beyond the issues in terms of trying to fashion an overall remedy in consideration of 1983 claims being asserted in state courts.

And I believe that is what he objected to, while he agreed with the bottom line findings of the court in terms of remanding both the 1983 survivorship claims of the estate and the personal 1983 claims of the children.

But what he objected to was the court’s going beyond those particular issues in terms that he felt were not before the court, in terms of fashioning an overall remedy or procedural concept in how the state court should handle 1983 claims.

Did I correctly understand that on remand, as things stand now, there may be a death claim on behalf of the children for the injury to their relationship to their father, the loss of the father; and secondly, there may be a survivorship claim on behalf of the estate for the injury to the man himself?

And you’re not… under 1983… and you’re not challenging the latter?

Theodore S. Halaby:

Yes, we are not challenging the survivorship right.

And you say that the cause of action that the deceased had under 1983 survives?

Theodore S. Halaby:


And that’s a state law question, isn’t it, or not?

Theodore S. Halaby:

No, Justice White, we would submit that is a federal law question–

Yes, right.

Theodore S. Halaby:

–as determined–

Well, whatever it is, you agree it survives?

Theodore S. Halaby:


I think that this Court’s decision in Robertson v. Wegmann supports that finding.

We do not contest that finding.

And if you lost on both of the claims that would be open on remand, the survivorship claim and then this, the personal 1983 claim of the children, if you lost them both one wouldn’t cancel out the other, I take it, or would they?

Theodore S. Halaby:

No, I believe–

I mean, the recovery in one would be added to the other?

Theodore S. Halaby:

–I believe so.

I believe they’re mutually exclusive remedies.


Theodore S. Halaby:

I don’t think there’s any question about that.

And with respect to each of them, the federal recovery would be larger than the state law recovery, because they include these personal elements of damage other than pecuniary damages, or is that not correct?

Theodore S. Halaby:

We would submit that either under… under either the state remedy or the federal remedy, the measure of damages would be the same.

Under the survivorship claims, we would submit that the remedy provisions under the state survivor statute would control the relief that could be obtained pursuant to the 1983 survivorship statute.

Won’t that be because we borrowed Colorado law?

Theodore S. Halaby:

That’s correct.

But it’s still federal law.

Theodore S. Halaby:

It’s still federal law.

But we borrowed–

–What supports that, may I ask?

Theodore S. Halaby:

Robertson v. Wegmann would support that.

I might point out that what we would submit has been considerable confusion concerning the construing the state death statutes, the wrongful death statute and the survivor statute, with claims under 1983.

We would submit particularly in this instance that the state death statutes cannot bear any relevance as to whether or not a 1983 claim can be asserted in the first instance.

Following the rationale of the Colorado Supreme Court, it is consistent to state that it does not require death of the father in this case to give rise to the 1983 claim in terms of affecting this family relationship between the parent and child.

Instead, false imprisonment could give rise and would be the same type of intrusion in the family relationship which, according to the Colorado Supreme Court’s rationale, would afford the basis for the child to assert a personal 1983 claim.

And clearly, if the father is not dead and has simply been removed from that family relationship, albeit for life, that family relationship with the child is affected almost to the same degree as if the father was dead.

Yet clearly, with the father not being dead the death statutes, the wrongful death statute and the survival statute of Colorado, would not apply in any instance.

Therefore, any discussion, we submit, that the remedies provided under the state death statutes can somehow relate to claims under 1983 has no basis.

The finding of the Colorado Supreme Court is premised, as was mentioned, on a personal liberty interest in the continuing family relationship with that father.

Theodore S. Halaby:

We submit that this is an unprecedented finding, that this Court nor any other appellate court has ever so recognized such a personal constitutional interest in a child.

There has been one court that decided the issue on point.

The Seventh Circuit affirmed without comment an opinion of the Illinois District Court in Evain v. Conlisk that found that no such right exists.

The Colorado court, we submit erroneously, deduced from this Court’s finding in Stanley versus Illinois that this Court recognized a constitutionally protected right between the relationship of the father toward the child, and therefore that reciprocal right of the child to the parent must also exist.

But Petitioners further submit that that was an erroneous finding, was a misinterpretation of Stanley, and even if it was a correct interpretation of Stanley that such a… there was a constitutionally protected right of the father toward the child, one cannot state that this reciprocal right between… of the child to the parent ipso facto exists.

That is a right of a different kind, of a different nature, and whether or not this right exists must be determined on the basis of the principles set forth by this Court in the abortion case of Roe v. Wade as to whether it is a constitutional liberty interest that exists.

It must be fundamental or implicit in the concept of ordered liberty, and what has normally been found to be fundamental or implicit in the concept of ordered liberty normally involves those choices, freedom of choices or freedom of decisions, such as a parent to have a child or not to have a child.

And with respect to the child’s relationship with the parent, this does not involve a freedom of choice or a decision.

It is a happenstance, of course, which the child has no control over.

And we have found this carried through in lawsuits that children have sought to bring for wrongful life, where there was found to be no basis in fact because the child doesn’t have any choice.

So therefore, even if this Court were to recognize a personal liberty interest and protection of the parent with respect to the protection of his relationship with this child, that reciprocal constitutional right in the child would not exist with respect to his continuing family relationship with his parent.

I don’t think one needs to use one’s imagination to any great degree to recognize the profound ramifications, not only upon the liability of public entities, but on the federal judiciary itself, because if this concept of continuing family relationship is afforded constitutional protection we submit that even the slightest state intrusion in this family relationship would give rise not only to one 1983 claim, but every member of that family relationship would be afforded each a personal 1983 claim.

What about a parent’s interest in the child?

Theodore S. Halaby:

In what respect, Justice White?

Do you say that… have any cases recognized that as a constitutionally protected right, the parent’s relationship with the child?

Theodore S. Halaby:

We submit that no cases have recognized such a right.

The Colorado Supreme Court seemed to imply in its decision that Stanley versus Illinois recognized such a right.

However, we disagree with that decision and we have not been able to find, nor did the Colorado court cite, any other cases that would–

You say you disagree with Stanley or with the decision… with the reading of Stanley?

Theodore S. Halaby:

–Yes, we disagree with the interpretation of Stanley.

Is it your view that if a 30-year-old man were killed by the police his children would have no cause of action, but his parents would?


Theodore S. Halaby:

That’s correct, Justice Stevens, neither would have a claim.

Your argument about the reciprocal business would not defeat a claim by the grandparents, though, would it?

You argued, as I understood you, that Stanely would stand for the… arguably might stand for the proposition that the parent has an interest in the relationship, but the child does not.

Theodore S. Halaby:

We say it hasn’t been recognized, nor would it exist, that the parent would have a constitutionally protected relationship with the child.

But even if that were found to be so, as the Colorado Supreme Court found, clearly the child would not have a constitutionally protected relationship with respect to the parent.

So that rule would protect against suits by the children, but not against suits by the parents.

Theodore S. Halaby:

That’s correct.

Ironic to say that the grandparent had a greater interest in the child.

Theodore S. Halaby:

Well, one thing it would do is serve to limit the number of claims, which of course wouldn’t go to the finding itself.

But we submit that the family relationship, be it between parent and child, between grandparent and child, between brothers and sisters, simply does not exist.

Well, I understood your basic position, or a least one of your positions, was that the matter of the survivorship rights is purely a matter of state law for state statute, and that if the state statute does not recognize any rights in a survivor there are none.

Theodore S. Halaby:

If the state does not have a survivorship statute that allows for the claims of a decedent to survive his death, then there would not be a means of bringing the federal 1983 claim.

However, in Colorado and I believe all states now, such survivorship statutes exist.

But we don’t know yet whether the state courts will recognize under the federal law that was asserted the rights claimed, until you try the case.

Theodore S. Halaby:

The Colorado Supreme Court has recognized that right.

That was the finding of the court below.

We do not know whether or not the child will be successful on the claim that has now been recognized by the Colorado Supreme Court.

However, we again submit that, while that claim has not been tried on its merits, the issue is so fundamental and contrary and has such wide-ranging ramifications that it nonetheless is ripe for decision at this time.

And because the state court has construed a federal statute, we should now decide whether they construed it correctly?

Theodore S. Halaby:


That’s the finality that you rely on, isn’t it?

Theodore S. Halaby:

Yes, that was exactly what our position is, Mr. Chief Justice.

Thank you.

Warren E. Burger:

Mr. Robinson.

Scott H. Robinson:

Mr. Chief Justice and may it please the Court:

This Court has before it in a 1983 context a state statute which basically makes it more profitable for police officers to kill than to wound.

It’s an unusual statute.

It’s a four-part survival and wrongful death statute, and three parts of it are set forth in our brief to this Court.

There’s an additional portion which is cited to the Court in both briefs, but which was left out, I think through inadvertence, and that’s the first part of what we call the survivorship claim.

But when you read these four statutes you’ll see that they’re very complicated, they’re very confusing.

Basically, Colorado law on the subject of wrongful death and on the subject of survivorship is that very little survives, and as regards wrongful death damages are limited to $45,000 unless a dependent, mother or father, child or spouse, is left living.

There’s also what we call the net pecuniary loss rule, which translated means you’re only worth what you can earn.

That’s the statute… those are the statutes which are before this Court.

Mr. Robinson, do you have any position as to whether this is a final judgment within 28 U.S.C. 1257?

Scott H. Robinson:

Yes, I do, Justice Rehnquist.

I have actually several positions.

I’m ambivalent because obviously I would not want to try the case under one set of rules, lose, and then be forced to come back to this Court, or in the alternative win below in the trial court and have a later judgment on the associational rights thrown out the window.

I don’t want that to happen.

Scott H. Robinson:

I think the Court has the jurisdiction to hear the case.

For example, I would cite to the Court two recent decisions, Green versus Carlson and Percunier versus Navarette.

In both those cases the district court dismissed, one on a summary judgment ground–

Neither of those were from state courts, were they?

Scott H. Robinson:

–That’s correct, Justice Rehnquist.

Those are federal court questions.

And we don’t require finality when you’re reviewing a judgment of a federal court of appeals.

1257 just applies to the judgment of the highest court of a state.

Scott H. Robinson:

I understand.

But the principle is there, Your Honor, that when a court below has dismissed and the appellate court then reaffirms… reestablishes the complaint, you then have a final judgment at least as to legal questions.

And that’s something that I think the amicus brief overlooks.

The legal question is postured for review in this Court.

If the Court chooses not to hear it–

That may be so, but there are thousands of cases that we have denied relief on when there’s been no question but that what a federal question has been finally decided in the state court, but there are further proceedings still to come.

If that federal question can be said to survive or might be said… if it’s possible that that federal question would disappear in the process of the remand, no one has ever held that that is final.

Scott H. Robinson:

–I agree under those circumstances, Your Honor.

The problem here–

I know, but you may lose.

On the merits.

Scott H. Robinson:

–Then we’ll be back here, Your Honor, because one of our grounds–

Well, that may–

–If you lose on the merits?

Scott H. Robinson:

–We may very well be, and that’s a problem.

And I want to cite to the Court very clearly that portion of the Colorado Supreme Court’s opinion which puts us all in a quandary.

Well, if you lose on the merits under instructions from the trial judge to the jury which are consistent with the present Supreme Court of Colorado opinion, how would you get here?

Scott H. Robinson:

We won’t know, because of the way they structured their opinion, whether or not we were denied relief because of the associational claims or because of the survivorship claims, and that’s–

That would depend on whether the correct instructions… that is, instructions consistent with the Colorado Supreme Court’s opinion… we’re given.

Well, they’re surely going to instruct separately on the decedent’s own rights and the children’s own rights, I would think.

Scott H. Robinson:

–But the way the opinion is structured, Justice White, is this: They have held very clearly that there are associational rights for which damages are recoverable, and also that the wrongful death and survivorship statutes are inconsistent with the federal remedy.

Then they pass on to the second issue, the issue of survivorship, and what they held was that because we’ve given the survivors this other remedy we do not need to determine whether the estate has a claim.

Mr. Robinson, do you think you’re entitled to win on both points?

Scott H. Robinson:

I do.

You mean you don’t think it’s possible you’ll win on one?

Scott H. Robinson:

Well, I don’t mean to sound greedy, Your Honor.

But this is a question of federal law.

We have two claims–

I mean, I don’t think… where do you get the right to have it done the way you want it done?

You don’t have a right to win.

Scott H. Robinson:

–Your Honor, I represent two separate classes of claimants.

One class of claimants in this case are the children.

Another class of claimants are the heirs to the estate, who really stand in the shoes of the decedent.

Well, most lawyers I’ve known are willing to win a case on any ground they can.

You’re different, then, aren’t you?

Scott H. Robinson:

That’s true, I’ll win on any grounds, Your Honor, I can.

But I do represent two separate classes, and I think that’s an important distinction.

But it’s still true, isn’t it, that the jury might find that the police acted in self-defense and there’s no liability at all?

Scott H. Robinson:

Anything’s possible–

And then you wouldn’t be back.

Scott H. Robinson:

–It’s not going to change the legal–

You’re not going to appeal to us on a fact question of liability.

Scott H. Robinson:

–That’s true, Your Honor.

So this case clearly is not final.

The judgment now is clearly not final.

Scott H. Robinson:

The judgment is certainly final on the question of the legal questions.

And again, if I could cite the Court Justice Blackmun’s opinion in Fact Concerts, as was the instruction issued there, this is an important issue, and more importantly, it’s likely to recur.

I just point out again Jones versus Hildebrant.

This Court per curiam sent back the case as improvidently granted.

Here we are again; very similar issue, just a few years later.

The question was raised in Jones.

It’s raised more squarely here.

Scott H. Robinson:

And I think maybe it’s time for the Court to act.

But if we don’t have jurisdiction, no matter how much we might like to, we really don’t have the power to do so.

Scott H. Robinson:

Well, again, I’m just reading Justice Blackmun’s opinion in Fact Concerts.

That’s another federal case.

Scott H. Robinson:

Footnote 6–

That came from the First Circuit.

Scott H. Robinson:

–The principle is the same.

If it’s an issue that’s likely to recur, this Court doe stand in that regard as the final tribunal of the country.

Well, this isn’t a question of mootness.

This is a question of jurisdiction, of appellate jurisdiction under the statute.

We need to have a final judgment from a state court.

Scott H. Robinson:

Well, I guess my position is I fail to see or understand how a factual determination in this particular case changes in any iota the jurisdictional power of the Court.

Maybe I am to unaware of the federal statue to give you a passable argument to assist you in that respect.

I feel that this case is ripe for review, which is why we join–

Are you familiar with a case called Cox Broadcasting Company?

Scott H. Robinson:

–Versus Cohn?


Scott H. Robinson:

Not in this context.

Why not?

Scott H. Robinson:

I’m not familiar with it.

I’m not familiar with it in this context.

It’s a case–

In any other context?

Scott H. Robinson:


At least I remembered the name, Justice Rehnquist.

But that dealt with a question of final judgments from state courts.

When a federal question has been finally decided in a state court, but there are still proceedings still to come, that case dealt with when is that federal question… when do we have jurisdiction over that federal question prior to finishing the proceedings in the state court.

And as I understand that opinion, this case doesn’t fit in any of the situations where we said the case is reviewable at this stage.

But you’re not familiar with that case?

Scott H. Robinson:

No, I can’t assist the Court.

Scott H. Robinson:

I’m sorry, I really am.

If you win, if you go to trial now, if there had been no effort to bring the case here and you prevail on everything and on all the theories that you advance, then where is the finality of the present judgment?

Scott H. Robinson:

Well, obviously if we prevail on all theories we won’t be asking this Court for–

Of course not.


Scott H. Robinson:

–I think maybe our adversaries–

–He might.

Your friend might have some question about the applicability of the federal statute in this case.

But until then, where is the case?

Scott H. Robinson:

–All I can do is repeat that which I’ve said.

Of course, I don’t blame you for this final judgment business.

We just granted certiorari.

You would have thought that we thought we had jurisdiction.

I don’t blame you for not being prepared to… maybe we should have thought about it in the first place.

Scott H. Robinson:

Actually, Justice White, I joined in the request that the Court take cent as well.

I know.

Scott H. Robinson:

And that’s basically because both I and our clients felt that this was an important issue which needed final resolution.

And certainly we are aware that–

Five of us agreed with you.

Scott H. Robinson:

–Well, we’re risking a lot by taking the case up at this point.

My clients were aware of that.

But this is the kind of case where the issue is obviously going to recur at some point, and that’s why we feel that it’s ripe at this time.

I would like to–

The fact that you think the issue is important and your opponent thinks it’s profound together does not give us jurisdiction.

Scott H. Robinson:

–I’m hoping maybe we can convince you that it’s both profound and important, Justice Marshall.

That doesn’t give us jurisdiction.

Scott H. Robinson:

I think the real issue here and one of the problems we’ve had from the start, once the Colorado Supreme Court entered its decision, was again this bifurcation of the associational interests and the survivorship interests.

That’s what caused me great concern.

When I responded to the petition, in my response I did indeed bring in the survivorship statute, the question of inconsistency.

In the reply brief it has been intimated that perhaps the Respondent did not raise these questions.

Scott H. Robinson:

But they were fairly presented to the Court in the response, and then of course the Court granted cert.–

The questions before this Court, some of them are very novel, some of them are fairly well established.

And if the Court does accept the case for review the Court will need to determine what happens in the 1983 context when the act causes death.

This is obviously not the Robertson versus Wegmann situation, because there it’s a question of abatement.

The wrongful act did not cause the death.

This case differs substantially.

This is indeed the case presaged by Justice Marshall in that case, and this is that other case, a case where the constitutional deprivation resulted in death.

Several lower courts have held that parents have rights in their children in the 1983 context.

We have cited several of these in our brief.

They include the Smith versus Wickline, the Beard versus Robinson case.

Also, of course, there’s this Court’s own opinion in Carlson, Green versus Carlson, which certainly stands for the proposition that federal law may in certain circumstances require a uniform rule of survivorship.

Now, this Court first, then, needs to determine, if again it accepts or continues to accept jurisdiction, whether the appropriate remedies lie with both the children or with the estate or both.

Obviously, our position is that the decedent suffered the greatest injury of all.

The decedent was killed.

Colorado law offers nothing, literally nothing, to the survivors under those circumstances, under what is normally called our wrongful death act.

In other words, an 81-year-old man who is unemployed, a 14-year-old son who is unemployed, or for that matter a 35-year-old man who’s unemployed, has no real value to his family in Colorado.

Now, this is a state law question as regards wrongful death.

But when the 1983 claim is filed it becomes–

While you’re up there again on the state wrongful death action, I thought there was some recovery.

Isn’t there a pecuniary loss recovery?

Scott H. Robinson:

–Net pecuniary loss.

Oh, so there is some damage recovery?

Scott H. Robinson:


Let’s assume, for example, that a particular young man–

So your disagreement with the state remedy is that it does not allow sufficient damages?

Scott H. Robinson:

–That’s correct.

Your Honor.

Is it your position that… say there were a shoot-out between a police officer with six children and Mr. Espinoza and each of them was killed, and so the respective families sued each other… that the family of the police officer could have the lesser recovery, but the family of the civilian would get greater recovery?

Scott H. Robinson:

That’s correct, because again this was the whole purpose of passage of the Civil Right Act in 1971, was to prevent officer state lawlessness, because, the theory goes… and it’s a true one… the state has all of the power of the state at its disposal.

And obviously Section 1 of the 1871 Act was designed both to deter and compensate.

Scott H. Robinson:

You so stated in–

Is there anything to indicate that it should be a greater recovery than if it were from unofficial lawlessness?

Scott H. Robinson:

–The problem at that point in time, Your Honor, was a simple one.

There was no state recovery.


Scott H. Robinson:

The statute was designed not only for inadequate laws, of which there were many at the time, including the black codes, but also the ineffective enforcement.

But in Colorado I would submit that our present day statute, although it differs in terms of its lack of racial stigma, nonetheless completely deprives a 1983 action of its compensatory value.

Net pecuniary–

Does it deprive all death action plaintiffs of the fair value?

Scott H. Robinson:

–The issue is not whether or not it discriminates intentionally on its face.

This Court has made that clear in Moore–

Well, you’re asking for a discriminatory construction in effect, because you’re asking for your clients to get more than they can get under… than they could get if they were suing someone other than a police officer.

Scott H. Robinson:

–It’s a matter of federal law, Your Honor.

This Court has to implement what was Congress’ intent.

And whether the Colorado legislature still thinks people’s lives are worth $45,000 or less or not certainly should not bind a federal court in applying the 1983 action.

Mr. Robinson, I gather your argument is it’s federal law, right, that we ought to bar, as a matter of federal law, the state law limitation?

Scott H. Robinson:

Section 1988–

Did I correctly understand?

Scott H. Robinson:

–I think that’s correct.

In fact, my reading of the Petitioner’s position is that–

But as a matter of federal law we could follow the state law limitations, could we not?

Scott H. Robinson:

–You certainly look to them under Section 1988.

That wasn’t my question.

Could we not follow them?

Scott H. Robinson:

If the Court ruled that it was conducive to the federal policy, certainly.

That’s the teaching of Moore.

That’s the teaching of Sullivan versus Little Hunting Park.

You formulate the rule which is responsive to the federal need.

So obviously, if state law is not inconsistent with, did not hinder federal recovery, certainly we would borrow state statutes.

The Timaneo case with the tolling statute… maybe that’s not the greatest analogy.

Scott H. Robinson:

Robertson versus Wegmann.

But in any event, certainly it’s possible.

What you have to do, though, is analyze the state statute.

And of course this state statute offers nothing, literally nothing.

Mr. Robinson, do you think that a state court 1983 action must inevitably apply all the substantive and procedural rules that a federal court 1983 action would apply?

Scott H. Robinson:

If I could break your question down, I think, yes, they have to apply all substantive rules.

I don’t think there’s any question about that.

How about procedural rules?

Scott H. Robinson:

I think then if it’s a mere matter of procedure they can go ahead and use their own state procedures.

For example, one of the reasons we filed the case in state court is that in Colorado the jurors are selected by voir dire of the counsel as well as the judge.

We feel this gives us more rapport with the juries, whereas in federal court the judge does all the questioning and it’s a little colder and more distant.

And we feel that that’s appropriate for the state courts to use the procedural rules.

And obviously, we’re not going to clog up the federal judiciary of we can do what we think is in the strategic interest of our clients.

Does that answer the Court’s question?


The critical question I suppose is what’s procedural and what’s substantive, but no use debating that here.

Scott H. Robinson:

There are times when that gets beyond the ken.

The point I’d like to leave the Court with with regard to the Colorado Supreme Court’s ruling is that it is based on various decisions of this Court.

As Justice White pointed out in the Jones versus Hildebrant dissent–

It was only a dissent.

They don’t help too much.

Scott H. Robinson:

–Well, since he’s from Colorado his dissents bear more weight.


As Justice White pointed out in his dissent, these are questions this Court has never addressed and they are recurring.

They’re recurring daily.

There’ll be plenty more filings with a new theory in Colorado and hopefully some other States.

An whether the Court avoids the issue on this or not, the point of the matter is that this Court is going to get faced with a question of state law which severely restricts recovery in the 1983 context when death occurs.

This is simply a result of some failure of legislatures around the country to be enlightened as to the value of human life.

Well, under this Supreme Court decision in Colorado if that theory stands up you’re not going to be deprived of very much, are you?

Scott H. Robinson:

Well, maybe for three or four years, until such other time as a case this Court deems appropriately postured comes up.

Scott H. Robinson:

It’s just not a prospect I particularly like, because it leaves us in a state of limbo.

Of course, there’s no question that you can try this case out on the survivorship theory.

You’re going to do that too, aren’t you?

Scott H. Robinson:

The problem is… this is why we’re in a quandary, because the Colorado Supreme Court said, well, now that we’ve given you all you wanted over here in the associational rights, you’re stuck with state law on the survivorship rights.

And I don’t know–

Well, what about the claim of the decedent himself for wrongful death?

Does that claim survive to the benefit of the estate or not?

Scott H. Robinson:

–Yes, but.

But what?

Scott H. Robinson:

But the Colorado Supreme Court held that because we gave you these associational rights, that survivorship claim for the death of the decedent is limited by the $45,000 rule, the net pecuniary loss rule, and, which hasn’t been mentioned, the ban on exemplary damages.

So to me it seems like the biggest–

The fundamental claim is… isn’t it a 1983 claim also?

The decedent’s claim is a 1983 claim?

Scott H. Robinson:

–That’s correct, they’re both 1983 claims.

And so he wouldn’t be limited by state law if it were contrary to federal policy.

Scott H. Robinson:

Well, that’s not what the Colorado Supreme Court opined.

I know, but it nevertheless is a federal… that’s a federal question.

Scott H. Robinson:

Well, so is the question of associational rights.

And on the one hand they told us–

They’ll all survive.

Scott H. Robinson:

–Well, that’s certainly our hope.

And obviously, if the case goes back in its present posture, I’ll attempt to convince the trial court that it should also not bar our recovery under the survivorship statute.

But I gather if the trial court says, oh, yes, the Supreme Court has settled that, you are barred, limited rather, and you get that limited recovery, what you’re telling us, you’ll be back here again?

Scott H. Robinson:

Well, hopefully we’ll have such a substantial recovery that we won’t be.

I know, but isn’t the limitation $45,000?

Scott H. Robinson:

That’s correct.

And you think you ought to get… at least the jury ought to be able to give you more?

Scott H. Robinson:

Actually, more important in this particular case–

Am I right about that?

Scott H. Robinson:


And therefore if you end up with $45,000 you’ll not be happy with that.

Scott H. Robinson:

It’s a net pecuniary loss question more than the limit.

I see.

Scott H. Robinson:

The problem is that Arthur Espinoza, though this is not in the record, was not contributing to his children.

How can we upset that?

How can we upset the $45,000 rule?

Scott H. Robinson:

The same way this Court in Green versus Carlson disregarded for federal law purposes Indiana’s survivorship laws.

What are you going to give, exemplary damages or something?

Scott H. Robinson:

Well, that’s true too, Your Honor.

How can you get exemplary damages under 1983?

Scott H. Robinson:

I would cite to the Court dicta, since this Court has never–

I have very great problems with dicta.

Scott H. Robinson:

–Well, it’s Justice Powell’s dicta.

Does that make it any better?


I doubt it’s dicta if it’s Justice Powell.

He doesn’t write dicta.

Scott H. Robinson:


In Carey versus Piphus, in Owen, there certainly have been plenty of indications by this Court that exemplary damages are recoverable in appropriate cases.

He used the words “exemplary damages”?

Scott H. Robinson:

Well, or punitive.

To my knowledge–

I thought so.

I didn’t remember exemplary, though.

Scott H. Robinson:

–All right.

You said exemplary.

Scott H. Robinson:

Well, maybe I’m–

My question was based on you language.

Scott H. Robinson:

–I see.

And I thought you were going to give me your answer, instead of Mr. Justice Powell’s answer.

Now may I have your answer?

Scott H. Robinson:

As far as I know, exemplary damages and punitive damages are one and the same, Your Honor.

Not under 1983, or are they under 1983?

Scott H. Robinson:

It’s my understanding, whether it’s a long-term ignorance or just a temporary insanity, that I always thought that they were exactly the same, that it was a matter of mere semantics, Your Honor.

You have punitive damages under 1983?

Well, certainly the statute doesn’t say so.

Scott H. Robinson:

That’s correct.

What case says so?

Scott H. Robinson:

Well, again I’m drawing from Carey versus Piphus, Owen versus City of Independence.

This Court has… I’m trying to remember if you said so in Robertson versus Wegmann.

I never said it.

Scott H. Robinson:

I can’t recall.

There certainly have been stirrings, if not outright holdings that punitive damages are recoverable.

And it’s always been in the context of an appropriate case.

Did you allege punitive damages?

Scott H. Robinson:

Yes, we did, Your Honor, yes.

I don’t see how that’s before us.

It wasn’t discussed at all.

Scott H. Robinson:

That was one of the three areas of Colorado law which we and the Colorado Supreme Court felt were inconsistent.

We have the exemplary damages or punitive damages question, the net pecuniary loss rule question, and the $45,000 ceiling question.

Those three aspects of Colorado law are those elements that at the beginning of my presentation I stated I felt gave an incentive to law enforcement officers to kill rather than main, because by so doing they limit their liability extensively.

And there’s also an indemnification statute, incidentally, if the recovery was $45,000, which would ensure that the officer involved never had a penny come out of his pocket.

That statute goes as high as $100,000, doesn’t it?

Scott H. Robinson:

That’s correct.

So the gut reaction, the final result of all of this, is that a police officer in Colorado kills in violation of the constitutional rights secured by Section 1983, or at least the civil right is secured, then winds up out of pocket not at all, no exemplary or punitive damages.

What would happen if Colorado had no wrongful death statute?

Scott H. Robinson:

I think this Court would find as a matter of federal law–

We’d write one for them.

Scott H. Robinson:

–That’s correct, because–

I thought that was your position.

You might want us to write one anyhow.

Scott H. Robinson:

–Well, Justice Marshall, in 1871 when the Ku Klux Klan Act was passed, of which this is Section 1, there were no wrongful death statutes, and yet the legislative history as we have set forth in our brief makes clear that it was the murders, the killings, the lynchings, that impressed upon Congress and upon President Grant, who want before Congress–

It wasn’t just the killings.

It was also such laws as one in Maryland which prevented Negro from flying a kite.

It covered the whole panoply.

It wasn’t restricted to death.

Scott H. Robinson:

–I agree it wasn’t restricted to death, Your Honor.

But certainly several Congresspersons did respond to the problem of murders in their various jurisdictions.

Do any other members of the Court have any questions?

Thank you–

Can I ask you one, Mr. Robinson?

Scott H. Robinson:

–Certainly, Justice Powell.

You rely on the parent-child relationship as creating the liberty interest.

Does it matter whether actually there is a parent?

Suppose there were a grandparent or an aunt or a guardian or a neighbor or a child born out of wedlock who was in the care of its mother.

How far would this go?

Scott H. Robinson:

Under the facts of the case we’re asking the Court simply to decide it on the question of a parent being taken from the children.

I think the Court–

Do you see any principled way of limiting the relationship to the parent-child relationship?

Scott H. Robinson:

–Certainly, Your Honor.

I have no problem with it.

This Court has–

What would it be?

Scott H. Robinson:

–This Court has delineated many times under its various rulings, such as Stanley, as opposed to Quillon, that the subtle differences in societal relationships can make all the difference in the world in determining legal relationships.

We can look, as Justice Burger pointed out in Wisconsin versus Yoder, we can look at our history of western civilization and recount many, many instances in literature and the like of parent-child relationships.

Wasn’t there a grandmother involved in Moore?

Scott H. Robinson:

In Moore?


Scott H. Robinson:

Not to my knowledge.

I thought Hamlet was kind of based on father-son, just to give the Court one example.

Scott H. Robinson:

It seems to me that the parent-child relationship is the most sacred family relationship of all.

You would limit it to that?

Scott H. Robinson:

Yes, I would.

Would you include… say a young father is in prison without due process of law and kept in jail for ten years and then is let out because he was wrongfully imprisoned.

Would the child have this kind of claim?

Scott H. Robinson:


I think that floodgate theory is an erroneous one.

Just because we recognize the theory when death irrevocably cuts off the relationship does not mean that we’re going to extend it to the ends of the earth.

And I think that one point illustrates it.

How do you distinguish between the two in terms of some kind of principle?

Scott H. Robinson:

Well, we can look first to legislative history and the intent of Congress to have a civil claim arise when someone is killed.

Certainly somebody’s got to carry the ball.

Secondly, I think this Court’s decisions in Stanley, for example, they’re premised totally on that relationship.

No death in Stanley.

Scott H. Robinson:

I realize that, but they’re premised on a specific, specific factual basis.

And if there’s one interest… and this is the point I made in the brief, I hope… if there’s one interest which seems to me to be a sacred one, it’s the interest not to have one’s parents murdered by state action.

And that’s what I feel this Court can in a principled manner distinguish this from wrongful imprisonment.

Thank you.

Warren E. Burger:

Very well.

Mr. Halaby.

Theodore S. Halaby:

I’d like to clear up a certain amount of confusion with respect to the wrongful death and survival remedies.

I think it’s clear to the Justices in reading other decisions that often other courts have used wrongful death and survival interchangeably in describing their particular state statute.

In Colorado there are two separate statutes, and therefore in Colorado, because there is a survivorship statute that allows vindication of the decedent’s deprivation to survive his death, wrongful death is an entirely different animal.

And we Submit that by definition there cannot be a wrongful death 1983 claim, because by the nature of that statute under wrongful death you’d be suing for deprivation of another’s civil rights, not your own personal civil rights.

The only way you can sue for deprivation of the decedent’s civil rights is pursuant to the survivor statute.

And therefore when Respondent speaks of the limitation on the wrongful death statute in this area of a 1983 claim, we submit that there is no such animal, that one cannot assert a 1983 wrongful death claim.

Now, we would also submit that what the Respondent is seeking to do is to fashion a right to fit the remedy, as opposed to fashioning a remedy to fit the right.

The right must exist irrespective of the remedy, and we must have the right before we can even consider the remedy.

But what Respondent is urging is, because of the remedies available under the survivorship statute and under the wrongful death statute in Colorado, which Respondent believes is not substantial enough, this Court should now fashion a right that would provide for remedies unrestricted by those two statutes.

We submit this is in effect what the Colorado Supreme Court did by recognizing this unprecedented right in the child when the child is a living victim.

Theodore S. Halaby:

Of course it would be difficult to argue that wrongful death statute or a survival statute, both of which are premised on death, could affect a living victim, the child, because when the child’s rights are deprived with respect to a continuing family relationship that child becomes the victim.

The father’s death is only a factual circumstance to show the intrusion into that family relationship, but it is still the living child that is the victim and therefore logically it would be difficult to argue that the death statutes could limit it in any respect.

But this is what… this we submit has been the approach of the Respondent.

The survivorship limitation with respect to the decedent’s rights has not been an issue presented by either the Petitioners or the Respondents in the petition phase or in the issues presented by Petitioners in their brief.

Respondents did refer to the wrongful death limitations in their response to our initial petition.

But Respondents did not address the limitation with respect to the survivorship statute with respect to the decedent’s rights.

We submit that is not in issue before the Court.

But if this Court chooses to consider that issue, we believe the answer has already been made by this Court in Robertson v. Wegmann that that is, the survivorship statute, is a permissible limitation on that survivorship claim.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.