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Badia v. City of Casa Grande3/16/1999
In Robertson, the original plaintiff died of causes unrelated to his § 1983 claims while his action was pending. The Supreme Court held that a Louisiana statute that permitted certain actions to survive only in favor of a spouse, children, parents, or siblings, none of whom existed in that case, would not undermine the policies of § 1983. Robertson. The Court found "nothing in [§ 1983] or its underlying policies to indicate that a state law causing abatement of a particular action should invariably be ignored in favor of a rule of absolute survivorship." Id. at 590, 98 S. Ct. at 1995, 56 L. Ed. 2d at 561. Contrary to plaintiff's argument, we view Robertson as persuasive authority against her position.
Plaintiff relies on several cases in which federal courts did not apply state statutes that would have barred certain damages or recovery in situations where the constitutional violations resulted in death. See Berry v. City of Muskogee, 900 F.2d 1489, 1507 (10th Cir. 1990) (state wrongful death and survival actions not sufficient to "serve the deterrent function central to the purpose of § 1983" where death is result of unconstitutional conduct); Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1190 (7th Cir. 1985) (damages for decedent's pain and suffering between injury and death may be recovered where "constitutional deprivation sought to be remedied has caused death"); Bell (court declined to apply statutes that would have prevented any recovery for loss of life); McFadden v. Sanchez, 710 F.2d 907, 911 (2nd Cir. 1983) ("State law that would preclude a claim for punitive damages in a case like the present one [where unconstitutional conduct caused death] is manifestly 'inconsistent' with federal law within the meaning of § 1988."). Those cases, however, are factually distinguishable and inapposite here.
In Robertson, the Court specifically noted: "the fact that a particular action might abate surely would not adversely affect § 1983's role in preventing official illegality, at least in situations in which there is no claim that the illegality caused the plaintiff's death." Robertson, 436 U.S. at 592, 98 S. Ct. at 1996, 56 L. Ed. 2d at 562. Because the alleged constitutional violation here did not result in Perez's death or, for that matter, any known physical injury, the foregoing cases upon which plaintiff relies are inapplicable. Similarly, § 14-3110 does not undermine the deterrent purposes of § 1983. Law enforcement officers who use excessive force are likely to cause injuries resulting in special and general damages that would survive the victim's death, such as medical expenses, lost wages, loss of earning capacity, and loss of consortium. Use of force that is severe enough to cause death, of course, potentially would expose the defendants to liability under § 1983 and/or Arizona's wrongful death statutes, A.R.S. §§ 12-611 through 12-613. See Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985); cf. Havier v. Partin, 16 Ariz. App. 265, 492 P.2d 761 (1972). Moreover, it is patently absurd to suggest that officers are likely to engage in unconstitutional conduct based on the assumption that the victim will die within a short period of time, thereby freeing them from liability for pain and suffering damages.
Inasmuch as Perez's death in this case did not result from defendants' alleged use of excessive force, § 14-3110 neither frustrates nor is inconsistent with the policies and purposes of § 1983. See Garcia v. Superior Court, 49 Cal. Rptr. 2d 580 (Cal. Ct. App. 1996) (holding that California statute precluding recovery for decedent's pain and suffering applied to § 198
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