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JONES v. MCELROY

March 30, 1977

LORRAINE JONES, Administratrix of the Estate of ANTHONY STEVIE JONES, Deceased, and LORRAINE JONES, in her own right
v.
THOMAS McELROY, Ind. and as Police Officer in the Police Department of the City of Philadelphia; and CITY OF PHILADELPHIA; GEORGE VICTOR ZUBER, a minor, by his parent and natural guardian, GEORGE WESLEY ZUBER, and GEORGE WESLEY ZUBER, in his own right, and MARSHA STEVENSON, in her own right v. Police Officer, WILLIAM JONES, Badge 2395; and CITY OF PHILADELPHIA



The opinion of the court was delivered by: LUONGO

 These are civil rights suits against police officers and their employer, the City of Philadelphia. Jurisdiction in each action is based upon 28 U.S.C. §§ 1331(a) and 1343(3). The claims arise under the Civil Rights Act of 1871 and various provisions of the Federal Constitution, and plaintiffs also seek to assert pendent state tort law claims. The cases are before me on motions to dismiss, Fed. R. Civ. P. 12(b).

 I. The Suits

 A. Jones v. McElroy, Civil Action No. 76-1532

 Anthony Stevie Jones was allegedly shot and killed by defendant, police officer McElroy. Plaintiff, Anthony's mother, sued in her capacity as administratrix of his estate and in her own behalf, basing the cause of action upon the Fourteenth Amendment to the Constitution and the Civil Rights Act of 1871. She also asserts pendent state tort law claims under the Pennsylvania Wrongful Death Act, 12 P.S. §§ 1601 et seq., and the Pennsylvania Survival Act, 20 Pa. C.S.A. §§ 3371 et seq.

 The complaint alleges that on the evening of June 25, 1975, McElroy, acting within the scope of his duties, used "unreasonable and unlawful deadly force" when he shot the decedent while attempting to control him (Complaint para. 9); that McElroy's action was "wrongful, willful, wanton, reckless, careless, malicious and negligent" (id. para. 9); that the City was "wanton, reckless, careless and negligent" in its employment, training, and supervision of McElroy (id. para. 10); and that McElroy and the City acted in concert with the specific intent to deprive the decedent of his rights (id. para. 11). Liability against the City is also asserted under principles of respondeat superior. The suit is against defendants "jointly and/or severally."

 On behalf of the estate, plaintiff claims damages for medical expenses, for pain and suffering prior to decedent's death and for loss of decedent's probable future earnings. Plaintiff also seeks punitive damages and compensation for her loss of her son's probable earnings and funeral, interment, and administration expenses. The damage claims exceed $10,000.

 B. Zuber v. Jones, Civil Action No. 76-3542

 Plaintiffs in this action are George Victor Zuber, a minor, his father, and his sister, the minor's "voluntary guardian and nurse".

 The complaint alleges that on the evening of January 3, 1975, defendant police officer Jones, acting within the scope of his duties, "without any warning, provocation or justification, suddenly, violently, negligently, recklessly, intentionally, maliciously and wantonly" shot the minor plaintiff in the back, causing serious injuries (Complaint para. 4). The complaint is in five counts. The first count charges Jones and the City with recklessness and negligence, the City's fault being predicated on the doctrine of respondeat superior and its failure "to establish and properly implement adequate guidelines and procedures for the hiring, testing and training of its police officers." The second count charges that defendants intentionally deprived minor plaintiff of constitutional rights through conduct in violation of Pennsylvania criminal law, with the City's liability based on the same theories as in the first count. The third count specifically invokes the Civil Rights Act of 1871 and alleges deprivation of the minor plaintiff's rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments; respondeat superior is the only asserted basis for the City's liability under this count. The fourth count invokes unspecified "laws of the Commonwealth of Pennsylvania" as a basis for relief, again basing municipal liability solely on the respondeat superior doctrine. The fifth count reasserts plaintiffs' cause of action against the City on the basis of the negligence and vicarious liability previously alleged. Jones and the City are sued "individually and jointly."

 Plaintiffs seek to recover an amount in excess of $10,000 for the minor's personal injuries, past and future medical expenses, loss of future earnings, and punitive damages.

 The City moves to dismiss for lack of jurisdiction, Fed. R. Civ. P. 12(b)(1), and failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6).

 II. Standing

 McElroy and the City contest plaintiff's standing in Jones v. McElroy. Although no objection to standing has been raised in Zuber v. Jones, the problem is present in that case as well. To have standing, each plaintiff must show that a case or controversy exists under Art. III, § 2 of the Constitution in that he or she has suffered some personal injury in fact to an interest arguably within the zone of interests protected by the Act or constitutional provision under which he sues. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970); Director, Office of Workers' Compensation Programs v. Rochester & Pittsburgh Coal Co., Nos. 76-1828, 76-1868 (3d Cir., Jan. 17, 1977).

 A. Jones v. McElroy

 Defendants do not seriously contest plaintiff's standing to assert state law claims for wrongful death and survival, but base their attack upon her right to advance the alleged civil rights claims. The deceased son clearly suffered an injury to his Fourteenth Amendment right to life, but defendants contend that the Civil Rights Act of 1871, 42 U.S.C. § 1983, does not explicitly provide for the survival of a civil rights action.

 Defendants' contention is without merit. Congress has provided that:

 
"[In] all cases where [federal statutes for the protection of civil rights] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . ., the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such . . . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . ." Civil Rights Act of 1866, 42 U.S.C. § 1988.

 This provision has been held to fill the gap in § 1983 caused by the death of a victim by authorizing adoption of state survival statutes. *fn1" This conclusion derives from the history and purpose of the Civil Rights Acts as a means of redress for deprivations of constitutional rights. As the Court of Appeals explained in Brazier v. Cherry, 293 F.2d 401, 404 (5th Cir.), cert. denied, 368 U.S. 921, 7 L. Ed. 2d 136, 82 S. Ct. 243 (1961):

 
"[It] defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death. The policy of the law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence which would cripple." [Footnote omitted.]

 The line of cases reaching this conclusion has been cited with approval by the Supreme Court. See Moor v. County of Alameda, 411 U.S. 693, 702-03 n. 14, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973).

 Pennsylvania law provides for the survival of actions. Pennsylvania Survival Act, 20 Pa. C.S.A. §§ 3371 et seq. It is therefore clear that plaintiff may sue in her representative capacity to redress deprivations of decedent's civil rights and that, in so doing, she stands in decedent's place and has standing to assert this action.

 In suing in her own behalf to redress deprivations of her constitutional rights, the mother plaintiff relies on Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974), which holds that a parent has standing to bring a civil rights action to redress deprivation of the constitutional right to parenthood when a child is fatally shot by a police officer. *fn2"

 Standing to assert deprivation of a constitutional right to parenthood has not been decided by the Third Circuit, but in Denman v. Wertz, 372 F.2d 135 (3d Cir.) (per curiam), cert. denied, 389 U.S. 941, 19 L. Ed. 2d 293, 88 S. Ct. 300 (1967), the Court did consider a related issue. Denman was an action for interference with a parent's right to access to his children. Denman, who was estranged from his wife, took his children from the custody of his wife in Ohio and attempted to transport them to Massachusetts. As the children were passing through Pennsylvania, they were picked up by the police and returned to their mother. Denman sued under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985. The Court of Appeals held that Denman had failed to allege that he himself was deprived of any federal rights, and affirmed dismissal of the action. Relying upon Denman, two of my learned colleagues have held that a parent may not maintain a civil rights action for the wrongful death of a child. *fn3" Although their decisions have given me pause, I nevertheless conclude that Denman is not controlling. Denman had no legal right to custody of the children. He had abducted and unlawfully taken the children away from their mother, to whom legal custody had been awarded. In taking the children, the police did not deprive Denman of any right. That situation is simply inapposite to the total deprivation of parental rights caused by death in the instant case. I believe that when directly confronted with the issue, the Third Circuit will adopt the persuasive reasoning of the Eighth Circuit and conclude that the killing of a child deprives the parents of a fundamental constitutional right for which the parents may obtain redress. Plaintiff has standing to bring this action in her own behalf.

 B. Zuber v. Jones

 Defendants in Zuber have not raised the question but, insofar as this is an action for deprivation of constitutional rights, the standing of the minor plaintiff's father and sister to bring this action in their own behalf is in issue. Resolution of the issue turns on whether these plaintiffs have themselves been deprived of a constitutional right. See generally O'Malley v. Brierley, 477 F.2d 785 (3d Cir. 1973).

 Unlike Jones v. McElroy, Zuber is not an action for death of a child; it is for non-fatal injuries to a child. Total deprivation of the right to parenthood is therefore not involved and no other constitutional right of the minor plaintiff's father is implicated. As for the sister, I am aware of no case explicating a constitutional right to the well being of a sibling. I therefore hold that the child's father and sister do not have standing to maintain this civil rights action in their own behalf.

 III. Are Municipalities subject to suits for damages for violation of civil rights?

 A. Legal Background

 Section 1 of the Fourteenth Amendment ...


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