Law Review Note

THE FOURTEENTH AMENDMENT DUE PROCESS RIGHT..., 43 New Eng. L. Rev. 271

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43 New Eng. L. Rev. 271

New England Law Review

Winter 2009

Note

THE FOURTEENTH AMENDMENT DUE PROCESS RIGHT OF COMPANIONSHIP BETWEENA PARENT AND HIS OR HER ADULT CHILD: EXAMINATION OF A CIRCUIT SPLIT

Meir Weinberg a1

Copyright (c) 2009 New England School of Law; Meir Weinberg

Abstract: A number of circuits are split on the issue of whether there exists a Fourteenth Amendment due process right of aparent to associate with his or her adult child. This issue often arises in the case where a parent brings a wrongful death actionfor the killing of his or her adult child by a state actor. The lower courts are reluctant to expand the unenumerated constitutionalrights without clear guidance from the Supreme Court. This Note discusses the historical framework of substantive due processrights, as well as that of the remedial section 1983. Observing the landmark cases in which the Supreme Court expanded dueprocess rights in regard to familial issues, such as the right to associate with one's minor child, this Note recommends expandingthat right to adult children as well. This Note analyzes the circuit split on this issue and suggests a mixed approach, wherebythe existence of the constitutional right to associate with one's adult child depends on whether the state action is deliberate andwhether various case-specific factors exist. This approach assuages the concerns the lower courts have expressed with expandingthis right, and provides a logical extension to the expansive due process rights already acknowledged by the Supreme Court.

Introduction

United States citizens possess numerous constitutional rights, including the right of due process as provided in the Fourteenth

*272 Amendment. 1 The Constitution provides that no state shall “deprive any person of life, liberty, or property, without due

process of law.” 2 Courts have struggled with the interpretation and application of this amendment. 3 Section 1983, enacted byCongress, grants a cause of action to individuals who have been deprived of “any rights, privileges, or immunities secured by the

Constitution and laws.” 4 The United States Supreme Court has established that this does not create substantive rights, but rather

provides a remedy for already established rights. 5 The Supreme Court has acknowledged that a parent has a constitutionalliberty interest in associating with his or her minor child and is protected from state actions that affect that parent-child

relationship. 6 The question that has split the federal circuits, however, is whether there is a constitutionally protected right for

a parent to associate with his or her adult child. 7

On January 30, 2001, Corey Rice was pulled over during a traffic stop by Gainesville police officer Jimmy Hecksel. 8 Officer

Hecksel did not use any police sirens or lights to pull over Rice. 9 When Hecksel approached Rice's car, Hecksel brandished

his gun and struck the car window with it. 10 He then proceeded to walk in front of Rice's car, where he aimed his gun *273

directly at Rice. 11 Rice quickly began to drive away in the opposite direction, and “Hecksel fired his gun seven times, hitting . . .

Rice with four bullets.” 12 Rice was pronounced dead a few hours later at the age of thirty. 13

The first personal representative of Rice's estate reached a settlement with Officer Hecksel and the City of Gainesville“completely releas[ing] and forever discharg[ing] [the] Defendant[s] from any and all past, present or future claims . . . . or



any future wrongful death claim of Plaintiff's representatives or heirs, which have resulted or may result from the alleged acts

or omissions of the Defendant[s].” 14 The settlement also provided that “[t]he parties acknowledge and agree that nothingcontained in this release is intended nor shall anything be construed to release claims, if any, held by the mother of the

decedent . . . .” 15 After the settlement, decedent Rice's mother, Patricia Robertson, became the personal representative of Rice's

estate. 16

On January 27, 2003, Robertson, both individually and in her capacity as personal representative of Rice's estate, filed a

complaint in the Northern District of Florida against Officer Hecksel and the City of Gainesville. 17 In her individual capacity,she brought a § 1983 claim, alleging “deprivation of her Fourteenth Amendment right to a relationship with her adult son” and

seeking “damages for loss of support, loss of companionship, and past and future mental pain and suffering.” 18 The defendants

moved to dismiss, claiming that Robertson failed to state a claim for relief, and the district court granted their motion. 19

Robertson appealed to the United States Court of Appeals for the Eleventh Circuit. 20

The Eleventh Circuit began its analysis by setting out the two relevant questions: (1) whether there is a constitutional right ofcompanionship between a parent and her adult child; and (2) if that right exists, under what circumstances does a deprivation

of that right occur? 21 The court never reached the second question because it found that the *274 asserted right does not

exist. 22 The court did, however, discuss the opinions of the various circuits which have diverged on whether the right exists,

noting that their views are somewhat unclear. 23 In coming to its conclusion, the court acknowledged that even if it were tofind a constitutional parental right to the companionship of an adult child, it would still hold against Robertson because theofficer's actions amounted to mere negligence and were not intentionally directed at the relationship between Robertson and

her son. 24 The court also found a problem in the fact that Robertson was asserting a violation of only her rights and not her

son's rights. 25 It appears that had Robertson brought a § 1983 claim asserting a violation of her son's rights, the outcome might

have been more favorable to her. 26

This Note analyzes the circuit split regarding whether there is a constitutional right for a parent to associate with her adult childand argues in favor of finding that right. Part I provides the relevant background law, focusing both on Supreme Court precedentin finding unenumerated rights in the Constitution and on remedies for violation of those rights. Part II analyzes the circuit splitat issue, detailing the various circuits' holdings through the cases they have addressed. Finally, Part III of this Note argues infavor of finding a constitutional right of companionship between a parent and her adult child and contends that a mix of thevarious approaches of the courts of appeal best serves this recognition and implementation of this right. Part III also assertsthat the Supreme Court needs to sufficiently address the issue in order to bring a uniform approach amongst the divided *275circuits and to provide United States citizens with a clear understanding of their rights and causes of action.

Background

I. Constitutional Familial Due Process Rights and Remedies

A. The Fourteenth Amendment and the Development of Substantive Due Process

The Fourteenth Amendment provides procedurally that no state shall “deprive any person of life, liberty, or property, without due

process of law.” 27 The substantive due process doctrine advances due process beyond a tool for ensuring procedural fairness

and into something that determines whether or not there exists certain fundamental rights unenumerated in the Constitution. 28

In Lochner v. New York, a bakery owner was convicted under a New York state law that prohibited employers from requiring

or allowing their employees to work more than sixty hours a week or more than ten hours a day. 29 The Court overturned theconviction, finding that there was a protected liberty interest under the Fourteenth Amendment to enter into an employment



contract. 30 The Court's legal creativity turned the procedural aspect of the Due Process Clause into a substantive form of due

process, where unenumerated rights can exist. 31 Despite its many criticisms, 32 nowadays it is generally accepted that theDue Process Clause *276 contains both a substantive and procedural component, and the Court has reaffirmed the use of

substantive due process as a means of protecting certain liberty interests not enumerated in the Bill of Rights. 33

B. The Supreme Court's Finding of Unenumerated Familial Due Process Rights

In recent years, the substantive due process doctrine has grown immensely in the area of family relations. 34 This is largely

because the family makes up an important part of society. 35 The Supreme Court has considered certain family rights to be

fundamental, such as the right to raise children and the right of family members to live together. 36 Over the years, the Courthas often asserted that parental rights are constitutionally protected, such as a parent's “right to the care, custody, management

and companionship of [his or her] minor children,” which is an interest “far more precious . . . than property rights.” 37

1. The Right to Raise Children

Over the years, the Supreme Court has recognized the fundamental *277 right of parents to raise their children without

unjustified interference by the state. 38 This right was first established in 1923 in Meyer v. Nebraska, 39 where the Courtstruck down a Nebraska state law that prohibited the teaching of foreign languages to students who had not reached the eighth

grade. 40 There, the defendant was a schoolteacher who was arrested for teaching German to a 10-year-old student. 41 Despiterecognizing both the child's liberty interest in acquiring knowledge and the teacher's liberty interest in being an educator, the

Court concluded that the Nebraska state law also violated a parent's right to control her child. 42

The Court recognized two years later, in Pierce v. Society of Sisters, 43 that the parental liberty interest has its own independent

status as a right. 44 The Court implied that parental authority extended to the “upbringing” of children in addition to educational

matters. 45 In Pierce, the Court struck down an Oregon statute that required parents to send their children to public schoolsnoting that the statute “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of

children under their control.” 46 Together, the Meyer and Pierce decisions are viewed as establishing constitutional protection

for a parental liberty interest. 47 In 1944, the Court in Prince v. Massachusetts 48 affirmed Meyer and Pierce stating that “[i]t iscardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom

include preparation for obligations the state can neither supply nor hinder.” 49 In various decisions following Prince, the Court

reiterated the importance of the parental liberty interest in raising one's children. 50

*278 More recently, in Troxel v. Granville, 51 at least six Justices recognized the parental liberty interest in raising one's

children. 52 At issue was a Washington state law that provided that “[a]ny person may petition the court for visitation rights at

any time.” 53 The state court had interpreted this statute to allow greater visitation rights to the child's paternal grandparents,

despite the child's mother's wishes. 54 Justice O'Connor, writing on behalf of the plurality, concluded that the state law violatedthe parental liberty interest, and stated:

The liberty interest at issue in this case--the interest of parents in the care, custody, and control of theirchildren--is perhaps the oldest of the fundamental liberty interests recognized by this Court. . . . [I]t cannotnow be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right

of parents to make decisions concerning the care, custody, and control of their children. 55



Although Justice Stevens dissented, he acknowledged that his colleagues were “of course correct to recognize that the rightof a parent to maintain a relationship with his or her child is among the interests included most often in the constellation of

liberties protected through the Fourteenth Amendment.” 56

2. Other Unenumerated Familial Rights

Over the years, the Supreme Court has found unenumerated constitutional rights in various other aspects of family life. 57 In

Griswold v. *279 Connecticut, 58 the Supreme Court struck down a Connecticut law that prohibited the use of contraceptives,

finding that it unconstitutionally intruded on the right to marital privacy. 59 Acknowledging a protected zone of privacy “olderthan the Bill of Rights[,]” the Court stated that a “governmental purpose to control or prevent activities constitutionally subjectto state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected

freedoms.” 60 Griswold essentially extended the notion of constitutional protection of the freedom of association beyond the

First Amendment doctrine. 61

The Court recognized another familial right in Roe v. Wade, 62 namely the right of a woman to terminate her pregnancy. 63

Again finding an unenumerated right of privacy emanating from the Due Process Clause of the Fourteenth Amendment, the

Court struck down a Texas state law that prohibited voluntary abortion. 64 The Court based its decision on the life-long impact

of having a child and the physical and emotional connection a mother will have with her child throughout the mother's life. 65

Nineteen years later, the Court again addressed the constitutionality of state statutes prohibiting abortion in Planned Parenthood

of Southeastern Pennsylvania v. Casey. 66 The plurality opinion stated that it was upholding the “essential holding” of Roe. 67

In doing so, the Court affirmed that the right to abortion is grounded in the Due Process Clause of the Fourteenth Amendment. 68

The Court stressed that “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free

from unwarranted governmental intrusion into matters so fundamentally affecting a person.” 69

*280 The previous three cases exemplify the Supreme Court's willingness to find unenumerated rights in the familial

setting. 70 Interestingly, these decisions all deal with special relationships between people. 71 Naturally, the Court has foundgreat importance in preserving family relationships and protecting the unenumerated fundamental rights stemming from the

Constitution. 72

C. Section 1983: Relief for Violation of Rights

Section 1983 provides a remedy for any person who is deprived of “any rights, privileges, or immunities secured by the

Constitution and laws.” 73 It is the “primary vehicle” today for obtaining damages and relief against state and local officials

who violate an individual's federal statutory or constitutional rights. 74 Section 1983 is an expanding area of the law that offers a

wide range of protection. 75 Section 1983 provides a remedy for already established rights and does not itself create substantive

rights. 76

1. Historical Background of § 1983

The historical origins of § 1983 can be found in the Civil Rights Act of 1866. 77 That Act, amongst other things, guaranteed

that various rights of citizens held under state law would be protected regardless of race. 78 The Act deemed it a misdemeanor

for any person to deprive any other person of the rights laid out in the Act. 79 Congress reenacted parts of the 1866 Act in theEnforcement Act of 1870 and added criminal sanctions for conspiracy to deny any person “any right or privilege granted or



secured . . . by the Constitution or laws of the United States.” 80 One year later, Congress expanded on this in the Ku Klux KlanAct of 1871, creating a private cause *281 of action for the deprivation, under color of state law, of “any rights, privileges, or

immunities secured by the Constitution of the United States.” 81 Section 1983 was one feature of the larger Ku Klux Klan Act,

providing private litigants with a federal court remedy of first resort and freeing them from the vagaries of state law. 82

However, almost immediately upon its inception, § 1983 lay dormant for a long period of time. 83 Among other possibilities for

this dormancy, 84 a likely explanation may be that the Supreme Court narrowly construed the meaning of the “rights, privileges,

or immunities secured by the Constitution.” 85 Many of the protections in the Bill of Rights prior to their incorporation by theFourteenth Amendment were considered neither newly created, nor granted by the Constitution, and were thus not protected

under § 1983. 86 With the constitutional revolution of the New Deal and Warren Courts, § 1983 was interpreted to allow litigantsto transcend state tort law as a basis for their claims and to hold public officials accountable for violating the Constitution and

the Bill of Rights. 87

2. The Modern Action Under § 1983

After years of disuse, § 1983 was reborn with the Supreme Court's decision in Monroe v. Pape. 88 Additionally, Monroe opened

up the modern *282 era of police violence litigation under § 1983. 89 In Monroe, thirteen Chicago police officers broke intoMonroe's home in the early morning, pulled him and his family out of bed, and ransacked the entire house, while Monroe stood

naked in the living room. 90 He was then taken to the police station where he was interrogated about a two-day old murder,held for ten hours without being allowed to call his family or a lawyer, and was then released without criminal charges brought

against him. 91 After being released, Monroe sued the individual police officers and the City of Chicago in federal court under §

1983, claiming that the police raid and the prolonged arrest violated his constitutional rights. 92 In a decision by Justice Douglas,the Court held that people affected by unconstitutional state actions are not required to exhaust available state remedies before

bringing an action under § 1983. 93 The Court also held that a person acting “under color of law” can be held liable under §

1983 even when he violates state law. 94 Lastly, the Court concluded that cities could never be sued under § 1983. 95

In Monell v. New York City Department of Social Services, 96 the Court reversed the portion of Monroe that held cities could

not be sued under § 1983. 97 In Monell, a class of female employees from the Department of Social Services and the Board of

Education brought suit under § 1983 against their employers and the City of New York. 98 They claimed that the Board's forcingpregnant women to take unpaid leaves of absence before such leaves were medically required violated their constitutional

rights. 99 After analyzing legislative history, the Court concluded that a person could sue a municipality under § 1983. 100 The*283 Court held that “[l]ocal governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive

relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body's officers.” 101 The Monell decision thus gave people

wronged by official police misconduct the ability to sue the offending municipality in addition to the individual officers. 102

II. The Circuit Split: Whether There Is a Due Process Rightof Companionship Between a Parent and Her Adult Child

The United States Supreme Court has had two opportunities to address this issue, but both times refused. 103 With little guidance

available, federal circuits have come to opposite conclusions on the issue. 104



A. The First, Third, and D.C. Circuits Hold that the Due Process Clause Does Not Provide a Parent with aConstitutionally Protected Right of Companionship with an Adult Child.

1. The First Circuit's Approach

In Valdivieso Ortiz v. Burgos, the First Circuit found that there is no constitutional right protecting the companionship between

a parent and an adult child. 105 There, Jose Valdivieso Ortiz was allegedly beaten to death by guards while he was an inmate at

the Guayama Regional Detention Center in Puerto Rico. 106 Jose's mother, stepfather, and siblings sued under § 1983 alleging a

deprivation of the constitutional right of companionship with their family member. 107 The defendants filed a motion for partialsummary judgment seeking dismissal of all claims except those filed on behalf of the decedent asserting that relatives have no

personal claim under § 1983 for the wrongful death of a family member. 108 The district court *284 granted the motion as toJose's stepfather and siblings, but allowed the case to continue on the claims asserted by his mother both personally and on her

son's behalf. 109 The jury awarded damages to the mother; the stepfather and siblings appealed the dismissal of their claims. 110

The First Circuit began its analysis by looking to Supreme Court precedent involving family relationships. 111 The court firstobserved that the Supreme Court has found a constitutional right in cases where, “as a matter of substantive due process[,] . . .the government may not interfere in certain particularly private family decisions,” such as procreation and the education of

children. 112 The court concluded that this precedent indicates that a person has the right to make choices in certain areas of

personal privacy without interference by the government. 113 The court then determined that the Supreme Court precedent

focused on protecting those rights associated with young children, not adults. 114 Lastly, the court concluded that due processprotection only extends to cases where the government deliberately acts to disrupt the relationship between a parent and her

child, and not to cases where the governmental action is merely incidental. 115 Finding that this case involved incidentalgovernmental action toward an adult, the First Circuit affirmed the district court's ruling that Valdivieso Ortiz's family members

could not recover under a § 1983 claim. 116

The court admitted that it declined to follow the other circuits that have recognized a constitutional right because the given facts

of this particular case did not allow for the expansion of due process protection. 117 The court alluded to the fact that, sincethis appeal was not brought by either legal parent, the circumstances did not permit the court to even consider following the

other circuits that have found a constitutional *285 right. 118 The court made its reasoning clear by stating, “[o]ur conclusionis simply that, in light of the limited nature of the Supreme Court precedent in this area, it would be inappropriate to extend

recognition of an individual's liberty interest in his or her family or parental relationship to the facts of this case.” 119

2. The D.C. Circuit's Approach

The D.C. Circuit, in Butera v. District of Columbia, 120 refused to recognize a parental interest in the companionship of an adult

child. 121 In Butera, thirty-one-year-old Eric Butera contacted the police to provide information about the highly publicized

triple homicide at a Starbucks that had occurred a few months earlier. 122 He told the officers that while he had been purchasingor using crack cocaine at a particular house, he overheard a conversation regarding the Starbucks murders and saw weapons

in the house. 123 The two detectives assigned to the Starbucks investigation met with Butera, found him credible, and decided

to stage an undercover drug purchase at that house. 124

The staged drug purchase was to resemble as closely as possible the previous times Butera visited the house; he was to enter

through the back, and the entire visit would be no longer than fifteen minutes. 125 The officers told Butera that they would

carefully monitor his movements and ensure his safety. 126 However, the officers parked their cars in a location where they



were unable to see the part of the back alley in which Butera was entering and exiting the building. 127 About fifteen minutes

after dropping Butera off, the officers began to grow concerned since they had not heard from him. 128 Around thirty minuteslater, uniformed police unconnected to the investigation appeared on the scene in response to a civilian call that there was a

person lying unconscious in the rear walkway of the house. 129 *286 The officers found Butera's body in the alley behind the

house. 130 He had never entered the house because he had been attacked by three men, robbed, and stomped to death. 131

Eric Butera's mother, Terry, sued the District of Columbia and the police officers both on her behalf and on behalf of her

deceased son's estate. 132 In addition to asserting statutory claims of negligence, Terry sued under § 1983, alleging a violation

of both her and her son's civil rights. 133 The jury found for Terry on both the constitutional and statutory claims. 134

The D.C. Circuit began its analysis by noting that the Supreme Court has not addressed this issue and that nearly all of the other

circuits have found that there is no parental constitutional right in the companionship of an adult child. 135 The D.C. Circuit

relied mostly on its own decision in Franz v. United States, 136 where minor children were involved. 137 The court stressed thatFranz focused on “securing the rights of parents to have custody of and to raise their minor children in a manner that develops

‘parental and filial bonds free from government interference.”’ 138 The court also focused on the Supreme Court precedentdealing with familial constitutional rights to show that in all the cases, the Court was concerned with the protection of only

minor children. 139 Lastly, the court distinguished between a minor and an adult child, stating that “the differences between the

two stages of the relationship are sufficiently marked to warrant sharply different constitutional treatment.” 140

3. The Third Circuit's Approach

In McCurdy v. Dodd, 141 the Third Circuit concluded that a parent's interest in the companionship of his adult child is not

a protected right. 142 In McCurdy, Donta Dawson was sitting in a parked car on the side of the road *287 when police

officers approached him to investigate the situation. 143 The officers questioned Dawson, but he remained unresponsive and

uncooperative. 144 As the situation deteriorated, one officer, believing Dawson to be armed, fatally shot Dawson in the head. 145

Dawson had, in fact, been unarmed. 146 Dawson's biological father, McCurdy, brought a § 1983 claim against the Philadelphia

Police Department, asserting that the tragic killing violated his constitutional right to companionship with his son. 147 The factsof the case indicated, however, that McCurdy had not provided financial support for his son and perhaps had not resided with

him or performed his parental duties during Dawson's youth. 148 The district court granted summary judgment for the police

department for other reasons, and McCurdy appealed to the Third Circuit. 149

After presenting the background of substantive due process constitutional rights of families, the Third Circuit noted that the

circuits were split on the issue. 150 The court shared some of the Seventh Circuit's stated concerns about not distinguishing toomuch between a minor and an adult child, but decided not “to extend the liberty interests of parents into the amorphous and open-

ended area of a child's adulthood.” 151 Like the First Circuit in Burgos, the Third Circuit admitted that it was “hesitant to extend

the Due Process Clause to cover official actions that were not deliberately directed at the parent-child relationship . . . .” 152

The court explained that the police officer's actions were directed solely at Dawson *288 and not at the relationship between

Dawson and his parents. 153 Thus, the court concluded, similar to the First Circuit, that there is no constitutional parental rightin the companionship of one's adult child, and the Due Process Clause does not extend to governmental actions that are not

deliberately directed at affecting a protected right. 154



B. The Ninth and Tenth Circuits Hold that There Is a Constitutional Right of a Parent to Companionship with TheirAdult Child.

1. The Ninth Circuit's Approach

In Kelson v. City of Springfield, 155 the Ninth Circuit held, in the context of a minor child, that “a parent has a constitutionally

protected liberty interest in the companionship and society of his or her child.” 156 In that case, a fourteen-year-old boy, carrying

a gun, notified his teachers that he was suicidal. 157 Shortly thereafter, a police officer told the boy he was “‘in trouble with the

law,”’ and the boy went into the bathroom and shot himself. 158 His parents then brought an action under § 1983, claiming a

violation of their constitutional rights. 159 The court never specifically distinguished between an adult child and a minor childin ruling that there is a constitutionally protected right for a parent's companionship with his or her child, but the precedents the

court relied on in reaching that decision dealt with only minor children. 160 However, one year later the Ninth Circuit had the

opportunity to explicitly apply its ruling to adult children in Strandberg v. City of Helena. 161

In Strandberg, the twenty-two year old Edward Strandberg was arrested for various traffic violations. 162 He was taken to the

police station, where he was incarcerated during the booking procedure. 163 Approximately thirty minutes later, the police found

him dead, hanging from his jail cell ceiling. 164 Edward's parents filed suit claiming violations of both Edward's *289 rights

and their own constitutional rights. 165 Among other claims, they alleged a violation of their constitutional right to parent. 166

The district court granted summary judgment for the defendants on all claims except those implicating the Fifth and Fourteenth

Amendment's due process rights. 167 The Ninth Circuit held that the parents could bring a Fourteenth Amendment claim for a

violation of their constitutional right to parent their adult child. 168

This conclusion was extended a year later in Smith v. City of Fontana. 169 There, a man was killed by police officers in a parkinglot, and his minor and adult children brought a § 1983 claim, alleging a violation of their constitutional right to companionship

with their father. 170 The court noted a distinction between instances where a child brings suit for the loss of companionship

with a parent and instances where a parent brings suit for the loss of a child. 171 In the instance where a child brings suit, “thereis no custodial interest implicated, but only a companionship interest,” while in the instance where a parent brings suit, there

are both custodial and companionship interests. 172 The court found that “[t]his distinction between the parent-child and thechild-parent relationships does not, however, justify constitutional protection for one but not the other,” and held that “a child's

interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interest.” 173 Thecourt relied on its decision in Strandberg to conclude that there is a constitutionally protected right of companionship between a

parent and her adult child, which is separate from the right to raise one's minor child. 174 The court concluded that “the familial

relationship, and not the more narrow custodial interest of the parents, [gives] rise to the due process action.” 175

2. The Tenth Circuit's Approach

In Trujillo v. Board of County Commissioners, the Tenth Circuit *290 recognized a constitutional right of companionshipbetween a parent and her adult child under the First Amendment's right of intimate association, but only in instances where the

governmental action is deliberate. 176 In Trujillo, a mother and her daughter brought a § 1983 claim, alleging a violation of their

constitutional rights from the wrongful death of their son and brother, respectively, while he was incarcerated in prison. 177 TheTenth Circuit observed that “[a]lthough the parental relationship may warrant the greatest degree of protection and require thestate to demonstrate a more compelling interest to justify an intrusion on that relationship, we cannot agree that other intimate

relationships are unprotected and consequently excluded from the remedy established by § 1983.” 178 Accordingly, the court



found the constitutional right to familial relationships included relationships between siblings. 179 The court then concludedthat the constitutional right to companionship between a parent and her child exists, but under the First Amendment's right to

intimate association. 180 Lastly, the court held that a § 1983 claim for a violation of this right can only be brought in cases

where the governmental action was deliberately directed at affecting the parent-child relationship. 181

C. The Seventh Circuit Finds a Constitutional Right of a Parent to Companionship with Her Adult Child, but ThenReverses its Opinion.

For over twenty years, the Seventh Circuit held that a parent has a constitutional right to have her adult child's companionship

free from governmental interference. 182 In 1984, the Seventh Circuit, in Bell v. City of Milwaukee, expanded Fourteenth

Amendment Due Process to include a parent's right of companionship. 183 In 2005, however, in Russ v. Watts, the courtoverruled its previous jurisprudence and aligned itself with the other circuits that have held that there is no constitutional right

to associate with *291 one's adult child. 184

1. The Seventh Circuit's Previous Approach

In Bell v. City of Milwaukee, twenty-three year old Daniel Bell was driving with a broken tail light, when two police officers on

motorcycles pulled him over, thinking he fit the description of a man wanted for a recent robbery. 185 Suddenly, Bell jumped out

of the car and began running. 186 Both officers pursued Bell, occasionally yelling “halt” and firing several warning shots. 187

One of the officers eventually caught up to Bell and reached out to grab him when his revolver accidentally went off and shot

Bell in the back, killing him. 188

After the killing, one officer placed a knife in Bell's hand and the two officers decided to create a story that Bell had wielded the

knife and threatened the officers before being shot. 189 Twenty years later, one police officer admitted to the District Attorney

that they had lied about what occurred during the Bell shooting. 190 He wore a wiretap during a conversation with the other

officer, who admitted to placing the knife in Bell's hand, but maintained that the shooting was accidental. 191

One year later, Bell's siblings filed a § 1983 action on behalf of themselves and their deceased father, claiming a violation of

their constitutional right to associate with their sibling and son, respectively. 192 The Seventh Circuit began its analysis bylooking at the Supreme Court's decisions regarding the parent-child relationship, noting that the Court had yet to take up this

issue. 193 The Seventh Circuit first recognized the commonly accepted constitutional right of a parent to associate with her

minor child, and then refused to draw “a constitutional line based solely on the age of the child.” 194 The court was persuadedthat a parent's “‘interest in the companionship, care, custody, and management’ of the child” does not simply end once the child

reaches a certain age. 195 The court also found importance in the large amount of testimony depicting a warm and loving *292

relationship between Bell and his father. 196 Since the court found this constitutional right in connection with the already-established right of a parent to raise her child, the court did not recognize any independent ground for Bell's siblings to recover

under § 1983. 197 Meanwhile, the Seventh Circuit indicated that certain factors should be assessed in determining whether theparent-adult child relationship loses its constitutional protection, such as whether a child is still a member of her parent's family

and whether the parent and child had a warm relationship. 198

2. The Seventh Circuit's Revised Approach

In Russ v. Watts, 199 the Seventh Circuit reversed its approach of twenty years and agreed with its sister circuits that have held

that there is no constitutional right to companionship for a parent with her adult child. 200 In Russ, twenty-two year old Robert



Russ was driving his car at approximately 1:00 A.M. when a police officer attempted to pull him over. 201 When Russ did not

cooperate a chase ensued, with three separate police cars following Russ. 202 Shortly thereafter, Russ's vehicle collided with

the police cars, and the police approached Russ with their weapons drawn. 203 One officer smashed the rear window and fired

a single shot, killing Russ. 204

Following a state court suit in which the court awarded damages to Russ's newborn child, his parents and siblings filed separateactions in federal court, alleging that the officers' actions violated their constitutional right to associate with their son and brother,

respectively. 205 The district court granted summary judgment for the defendants, finding that the plaintiffs lacked standing

to bring suit. 206 Largely based on the opinions of the other circuits, the Seventh Circuit reexamined its previous decision in

Bell and decided that it had erred in finding such a constitutional right. 207 *293 The court acknowledged that “[t]he SupremeCourt has recognized violations of the due process liberty interest in the parent-child relationship only where the state took

action specifically aimed at interfering with that relationship.” 208 The court then observed the precedent cautioning courts to“‘exercise the utmost care’ in extending constitutional protection to an asserted right or liberty interest because, in doing so,

[they] ‘place the matter outside the arena of public debate and legislative action.”’ 209 In overruling its decision in Bell, thecourt concluded that there is no “constitutional right to recover for the loss of the companionship of an adult child when that

relationship is terminated as an incidental result of state action.” 210

Analysis

III. Resolving the Circuit Split

A. Observing Confusion Among the Lower Courts and Noting Supreme Court Precedent

1. The Need for Supreme Court Review

The issue of whether there is an unenumerated constitutionally protected right for a parent to associate with her adult child has

been construed differently by courts all over the country. 211 The little guidance provided by the Supreme Court has led the

courts of appeal and the district courts to reach divergent holdings on the issue. 212 Because of this confusion, whether or notthe parent of an adult child who was killed as a result of official wrongdoing may bring a § 1983 action and recover under the

Fourteenth Amendment depends upon which circuit's law will be applied. 213 United States citizens should be aware of their

rights and how the Constitution is interpreted--a task which only the Supreme Court can clarify. 214 By reviewing this issue,the Supreme Court can “provide the lower courts with guidance in an area that demands uniform national *294 treatment but

instead has been bedeviled by lack of doctrinal direction and the formulation and application of divergent approaches.” 215

With the lack of Supreme Court guidance on the issue, the courts of appeal that have found no constitutional right appear to be

going in an endless circle of repetition, copying each other's analyses. 216 In reaching their conclusions, both the D.C. Circuitand the Seventh Circuit in Butera and Russ, respectively, placed substantial weight on the analyses of the other circuits' refusing

to find a constitutional right. 217 The circuits admit they are hesitant to extend due process protection without clear guidance

from the Supreme Court and instead largely rely on one another's rulings for guidance. 218 Additionally, these circuits seem tobe insecure in their rulings and even apologetic, often concluding their decisions with a sympathetic note commiserating the

fact that they were unable to find the existence of a constitutional right for parents to associate with their adult children. 219

By deciding this issue, the Supreme Court can provide the lower courts with a consistent and confident approach and bring

certainty and uniformity to this important area of the law. 220



2. Continuing the Supreme Court's Expansion of Familial Rights

As discussed previously, over the years, the Supreme Court has expanded due process protection in the area of family rights. 221

The Court has recognized numerous unenumerated rights, from raising and educating children, to protecting marital privacy,

and to terminating pregnancy. 222 *295 The Court plucked all of these rights out of the Fourteenth Amendment's protection

that no state shall “deprive any person of life, liberty, or property, without due process of law.” 223 Despite this expansionof substantive due process, the Court has acknowledged that a parent's right to “make decisions concerning the care, custody,

and control of their children” is “perhaps the oldest of the fundamental liberty interests recognized by this Court.” 224 Thus,taking the established right to associate with one's minor children and extending it to adult children does not expand due process

rights in any unconventional way, but instead expands a fundamental liberty interest already long accepted by the Court. 225

The Court also has read the tradition of family relationships at a broad level of generality, as exemplified by Justice Brennan's

concurring opinion in Roberts v. United States Jaycees. 226 Justice Brennan acknowledged that “[t]he Court has long recognizedthat, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain

kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” 227 JusticeBrennan then went on to highlight the particular value of personal relationships between family members and the importance

of protecting those relationships. 228 Family relationships continue to be as important nowadays as they have always been, andthere is no reason why they should no longer be afforded this broad level of protection.

Focusing on the language of the Supreme Court, although it is likely that the parental “custody” or “control” of a child maybe extinguished when that child reaches the age of majority, the “care” for a child never *296 ceases. Throughout their lives,

adult children often look to their parents for financial help or emotional stability. 229 Additionally, parents experience a certain

level of personal worth through the continued companionship and care of their adult children. 230 Furthermore, the Court in

Stanley v. Illinois included the word “companionship” in its list of parental functions. 231 Surely, the “companionship” between

a parent and her adult child does not cease when a child reaches the age of majority. 232 Thus, the Seventh Circuit was on pointwhen it refused to draw a line based solely on age, observing that a parent's interest “in the companionship, care, custody, and

management” of her child does not magically disappear once the child reaches adulthood. 233

B. Finding the Best Approach from the Courts of Appeal's Rulings

1. The Fourteenth Amendment Protects Only Deliberate Governmental Actions

A common thread found among nearly all of the circuits is the *297 holding that one can bring a § 1983 action only in

instances where the governmental action is deliberately aimed at disrupting the constitutionally protected right. 234 Even theTenth Circuit, which found there is a constitutionally protected right under the First Amendment for a parent to associate withher child, held that one can only bring a § 1983 action in cases where the government's actions were deliberate, not merely

incidental. 235 The Supreme Court has stated outright that there is no due process protection against governmental actions that

are merely negligent or incidental in nature. 236 Thus, it follows that the Supreme Court in reviewing this issue should find anactionable constitutional right for a parent to associate with her child in instances where the governmental action is deliberatelydirected at disrupting the parent-adult child relationship.

2. The Ninth Circuit's Approach Best Protects Important Family Relationships

It is clear that the Supreme Court has always held family relationships in high regard. 237 The Court has expressed that the

familial interest is one of the oldest “fundamental liberty interests recognized by this Court.” 238 The Ninth Circuit's approach



best serves this notion by holding that the importance of family relationships themselves dictates finding a constitutionally

protected right of companionship between a parent and her adult child. 239 The Ninth Circuit does not muddle this right with

the already accepted right to associate with one's minor children, which is derived from the right to raise one's children. 240

Rather, it affords the parent-adult child relationship its own constitutionally protected right, which is founded in the importance

of family relationships and based on companionship between family members. 241

3. The Seventh Circuit's Original Factor-ObservingApproach is Most Practical

In Bell, the Seventh Circuit found that there is a constitutional right *298 for a parent to associate with her adult child based

on the previously recognized right to raise one's child. 242 Explaining that there should be no difference in the companionshipinterest of a parent between her minor child and her adult child, the court refused to draw a line at which the constitutional right

is protected or not. 243 This approach is most practical because the importance of the parent-child relationship does not cease

once the child reaches adulthood. 244 This approach also complements the other unenumerated rights because “many of theother constitutional rights regarding family life would make little sense if the parent was accorded no constitutional protection

for the relationship with her adult child.” 245

The Seventh Circuit in Bell laid out a factor-observing test for finding the existence of the constitutional right to associate with

one's child. 246 There the court decided that certain factors would be important in analyzing whether the right exists or not, suchas whether there is a loving relationship between the parent and the adult child, and whether the adult child is still a part of the

parent's household. 247 Thus, “it follows that a parent's constitutional interest in the companionship of her adult child should

be granted constitutional protection only if the parent continues to foster a relationship with that child.” 248 This approach bestavoids arbitrary lines drawn at a point where the child reaches a certain age, and helps avoid murky situations, such as in the

case of a mentally retarded child or an adult child who is unable to care for herself. 249 By limiting the situations in which aparent will be able to successfully bring a § 1983 claim alleging a violation of this right, the Seventh Circuit's original factor-observing approach assuages the reasonable concern of those circuits that feared that recognizing a constitutional right of a

parent to the companionship of an adult child would lead to an endless amount of litigation. 250

*299 Conclusion

The Supreme Court has always given considerable weight to the importance of maintaining family relationships in our

society. 251 Accordingly, the Court has recognized numerous unenumerated rights stemming from the Constitution relating tofamily life. However, the Court has not ruled definitively on the issue of whether the Fourteenth Amendment protects a parent's

interest in the companionship with an adult child. 252 The circuits are split on this issue, with the majority finding that theright does not exist. Those circuits are hesitant to expand due process protection without specific authority from the Supreme

Court. 253 This lack of guidance has also led the district courts to apply divergent holdings and has made the enforcement ofthe civil rights laws dependent on where geographically an action is brought. The confusion on this issue can only be cured bythe Supreme Court's review of the issue and establishment of a uniform rule.

In analyzing the various approaches of the courts of appeal, it seems a mix of different approaches would best resolve the issue.By finding that there is a constitutionally protected right for a parent to associate with an adult child based on the importanceof family relationships, the Ninth Circuit complies with the Supreme Court's constant reminders of the value of the family.To abide by § 1983, this right should only be actionable in situations where the governmental action is deliberately aimed atdisrupting the parent-adult child relationship, as agreed on by most of the courts of appeal. Lastly, the original approach of theSeventh Circuit, holding that the right should be protected only when certain factors are met, is most practical and best avoids



unnecessary litigation. This mixed approach is consistent with the large precedent expanding due process familial rights, andtakes the accepted right to a parent's companionship with a minor child and logically extends it to an adult child.

Footnotesa1 Candidate for Juris Doctor, New England School of Law (2009). B.A., English, magna cum laude, Yeshiva University (2004). During

law school, Mr. Weinberg has been working as a legal intern at Ropes & Gray, LLP in Boston. I would like to thank my wife, Simcha,

and my son, Netanel, for allowing me to devote so much of my personal time to studying and doing schoolwork. I would also like

to thank the New England Law Review staff for their wonderful editing assistance.

1 See U.S. Const. amend. XIV, § 1.

2 Id.

3 See Stephanie L. Houston, Harry A. v. Duncan: Do Parents Have a Constitutionally Protected Interest in the Companionship and

Society of Their Children Under 42 U.S.C. § 1983?, 29 Am. J. Trial Advoc. 499, 499 (2005).

4 42 U.S.C. § 1983 (2000) (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ...

subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress ....”).

5 City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (“By its terms, of course, the statute creates no substantive rights; it merely

provides remedies for deprivations of rights established elsewhere.”).

6 See Issac J.K. Adams, Note, Growing Pains: The Scope of Substantive Due Process Rights of Parents of Adult Children, 57 Vand.

L. Rev. 1883, 1894 (2004).

7 Id. at 1885.

8 Robertson v. Hecksel, 420 F.3d 1254, 1255 (11th Cir. 2005).

9 Id.

10 Id.

11 Id. at 1255-56.

12 Id. at 1256.

13 Id.

14 Hecksel, 420 F.3d at 1256 (internal quotation marks omitted).

15 Id. (internal quotation marks omitted).

16 Id. at 1256 n.1.

17 Id. at 1256.

18 Id.

19 See id.

20 See Hecksel, 420 F.3d at 1256.

21 Id. at 1258.

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22 See id. at 1262.

23 See id. at 1258 (“The First, Third, Seventh, and District of Columbia Circuits have rejected claims like Robertson's, where the alleged

deprivation was incidental to the defendant's actions. Less clear is whether those cases recognized a right, assumed a right, or did

not recognize a right.”) (citations omitted).

24 Id. at 1259 n.5 (“Although we hold the asserted right does not exist, even if we agreed with Robertson, we still must remember that

the ‘Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty,

or property.”’ (emphasis omitted) (quoting Daniels v. Williams, 474 U.S. 327, 328 (1986))).

25 Id. at 1261-62 (“[W]hether the decedent's rights in our case were violated has no bearing on the ability of his mother to argue a

loss of companionship, because her alleged cause of action is based on a violation of rights personal to her, not rights personal to

the decedent.”).

26 Cf. Hecksel, 420 F.3d at 1261-62 (“[W]hether the decedent's rights in our case were violated has no bearing on the ability of his

mother to argue a loss of companionship, because her alleged cause of action is based on a violation of rights personal to her, not

rights personal to the decedent.”). The court noted that had Robertson brought a § 1983 claim for the wrongful death of her son, she

would have strengthened her argument and the two cases she relied on. Id. at 1260-61 (discussing Brazier v. Cherry, 293 F.2d 401

(5th Cir. 1961) and Carringer v. Rodgers, 331 F.3d 844 (11th Cir. 2003)).

27 U.S. Const. amend. XIV, § 1.

28 Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting).

Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property

was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to

individuals, nevertheless destroy the enjoyment of all three.

Id.; see Christopher J. Schmidt, Revitalizing the Quiet Ninth Amendment: Determining Unenumerated Rights and Eliminating

Substantive Due Process, 32 U. Balt. L. Rev. 169, 169 (2003).

29 198 U.S. 45, 46 n.1 (1905).

30 See id. at 57.

31 See Mark C. Niles, Ninth Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal Autonomy

Rights, 48 UCLA L. Rev. 85, 145 (2000) (“Although it was perhaps not the first time the Court applied this legal trick, the Lochner

decision effectively immortalized the substantive due process mechanism that is still the standard for analyzing claims regarding

unenumerated constitutional rights nearly one hundred years later.”) (footnote omitted); Schmidt, supra note 28, at 172.

32 See Richard H. Fallon, Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 Colum. L. Rev.

309, 314 (1993) (“Substantive due process is widely viewed as the most problematic category in constitutional law.”). See generally

Niles, supra note 31, at 136-38 (discussing various criticisms of substantive due process).

33 Adams, supra note 6, at 1886. Chief Justice Rehnquist has described the substantive due process methodology:

[W]e have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are,

objectively, “deeply rooted in this Nation's history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither

liberty nor justice would exist if they were sacrificed.” Second, we have required in substantive-due-process cases a “careful

description” of the asserted fundamental liberty interest. Our Nation's history, legal traditions, and practices thus provide the crucial

“guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause.

Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (citations omitted).

34 Adams, supra note 6, at 1892.

35 See Asmita Naik, The Right to Family, Hum. Rts. Educ. Associates, 2003, http://www.hrea.org/index.php?base_id=158 (“The family

is the fundamental and natural unit of society and requires the full protection of the state .... The family unit can be made vulnerable

to social, economic, and political pressures. Human rights law seeks to bolster the family unit by specifying state obligations to keep

families together ....”).




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36 See, e.g., Troxel v. Granville, 530 U.S. 57, 57 (2000) (plurality opinion); Moore v. City of Cleveland, 431 U.S. 494, 506 (1977)

(plurality opinion); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534 (1925).

37 May v. Anderson, 345 U.S. 528, 533 (1953).


39 262 U.S. 390 (1923).

40 Id. at 403.

41 See id. at 396.

42 Id. at 401 (“[The state law] has attempted materially to interfere with the calling of modern language teachers, with the opportunities

of pupils to acquire knowledge, and with the power of parents to control the education of their own.”) (emphasis added).

43 268 U.S. 510 (1925).


45 Samuel M. Davis & Mortimer D. Schwartz, Children's Rights and the Law 53-54 (1987).

46 Pierce, 268 U.S. at 534-35.

47 Adams, supra note 6, at 1894 (“[T]he Supreme Court has repeatedly upheld [this right] in ad hoc review of state regulations affecting

the parent-child relationship.”).

48 321 U.S. 158 (1944).

49 Id. at 166 (noting that there is a “private realm of family life which the state cannot enter”).

50 See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Parham v. J.R., 442 U.S. 584, 602 (1979); Quilloin v. Walcott, 434 U.S.

246, 255 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233-36 (1972); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Ginsberg v. New

York, 390 U.S. 629, 639 (1968).

51 530 U.S. 57 (2000).

52 Adams, supra note 6, at 1895 (“[T]hese Justices agreed that this liberty interest is expansive enough to include a parent's right to

make decisions concerning the visitation and association of her child.”); ANCPR, Parental Rights and the Law, http://www.ancpr.org/

parental_rights_and_the_ law.htm (last visited Mar. 27, 2009) (“Even the dissenting judges, not agreeing with the remedy, recognized

that parental rights are Constitutional Rights.”).

53 Troxel, 530 U.S. at 67 (plurality opinion) (emphasis omitted).

54 See id. at 61-62.

55 Id. at 65-66.

56 Id. at 86-87 (Stevens, J., dissenting) (“Our cases leave no doubt that parents have a fundamental liberty interest in caring for

and guiding their children, and a corresponding privacy interest--absent exceptional circumstances--in doing so without the undue

interference of strangers to them and to their child.”).

57 See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 504-06 (1977) (plurality opinion) (invalidating a zoning ordinance limiting

occupancy of a dwelling to members of a single family); Loving v. Virginia, 388 U.S. 1, 12 (1967) (striking down Virginia's ban

on interracial marriage).

58 381 U.S. 479 (1965).

59 Id. at 498-99.
































60 Id. at 485 (quoting NAACP v. Alabama, 377 U.S. 288, 307 (1964)).

61 See Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 624 (1980).

62 410 U.S. 113 (1973).

63 Id. at 154.

64 See id. at 153-54.

65 Id. at 170 (Stewart, J., concurring) (“Certainly the interests of a woman in giving of her physical and emotional self during pregnancy

and the interests that will be affected throughout her life by the birth and raising of a child are of a ... great[] degree of significance

and personal intimacy ....” (emphasis added) (quoting Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972))).

66 505 U.S. 833 (1992).

67 Id. at 833-34.

68 Id. at 834.

69 Id. at 896 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).

70 See discussion supra Part I.B.2.

71 See Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893,

1919 (2004).

72 See discussion supra Part I.B.1-2.

73 42 U.S.C. § 1983 (2000); see City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985).

74 Michael G. Collins, Section 1983 Litigation in a Nutshell 1 (3d ed. 2006).

75 Id. (“Section 1983 actions run the gamut from police abuse and prisoner's rights litigation, to claims for takings of property and

challenges to state and local regulations on pre-emption grounds, to school desegregation and other institutional reform litigation.”).

76 See supra note 5 and accompanying text.

77 Cass R. Sunstein, Section 1983 and the Private Enforcement of Federal Law, 49 U. Chi. L. Rev. 394, 398 (1982).

78 Collins, supra note 74, at 4.

79 Sunstein, supra note 77, at 398.

80 Enforcement Act of 1870, ch. 114, § 6, 16 Stat. 140, 141 (1870).

81 Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13 (1871).

Taken as a whole, these three Acts had five primary effects: (1) the recognition of certain enumerated rights; (2) the creation of

criminal sanctions for violation of those rights; (3) the creation of criminal sanctions for conspiracy to violate rights secured by the

Constitution and federal laws; (4) the creation of a private right of action for violation of rights secured by the Constitution; and (5)

the vesting of jurisdiction over civil and criminal actions in all of these cases in the district and circuit courts.

Sunstein, supra note 77, at 400.

82 See Collins, supra note 74, at 4-5.

83 Id. at 6 (“According to some estimates of reported cases, litigants invoked the statute fewer than two dozen times over the course

of the 50 years following its 1871 enactment.”).

84 See generally id. at 6-7 (presenting various theories for why § 1983 lay dormant for such a long period of time after its creation).
























85 Id. at 7.

86 Id. at 8. “The law is perfectly well settled that the first 10 amendments to the Constitution, commonly known as the ‘Bill of Rights,’

were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities that we

had inherited from out [sic] English ancestors.” Id. (quoting Robertson v. Baldwin, 165 U.S. 275, 281 (1897)).

87 Id. at 10-11.

88 See Collins, supra note 74, at 14.

89 G. Flint Taylor, Municipal Liability Litigation in Police Misconduct Cases from Monroe to Praprotnik and Beyond, 19 Cumb. L.

Rev. 447, 447 (1989).

90 Monroe v. Pape, 365 U.S. 167, 169 (1961).

91 Id.

92 See id. at 168, 170.

93 Id. at 183 (“It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the

state remedy, and the latter need not be first sought and refused before the federal one is invoked.”).

94 See id. at 186-87.

95 See id. at 187-91.

96 436 U.S. 658 (1978).

97 Id. at 663.

98 Id. at 660-61.

99 See id.

100 See id. at 690 (“Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend

municipalities and other local government units to be included among those persons to whom § 1983 applies.”) (footnote omitted).

101 Id.

102 See Taylor, supra note 89, at 447, 450-51; see also Collins, supra note 74, at 106 (“By making cities suable persons, therefore, Monell

was significant insofar as it gave § 1983 plaintiffs a real shot at significant monetary recovery when municipal officials ... have acted

unconstitutionally pursuant to local law, custom, or policy.”).

103 See Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), cert. dismissed, 456 U.S. 430 (1982); Jones v. Hildebrant, 550 P.2d 339 (Colo.

1976), cert. dismissed, 432 U.S. 183 (1977).

104 See infra Part III.A.1.

105 Valdivieso Ortiz v. Burgos, 807 F.2d 6, 9-10 (1st Cir. 1986).

106 Id. at 7.

107 See id.

108 Id.

109 Id.

110 Id.



















111 See Burgos, 807 F.2d at 7.

112 See id. at 8.

113 Id. (“The emphasis in these cases on choice suggests that the right is one of preemption; rather than an absolute right to a certain

family relationship, family members have the right, when confronted with the state's attempt to make choices for them, to choose

for themselves.”).

114 See id.

115 See id. (“[T]he Supreme Court has protected the parent only when the government directly acts to sever ... [a parent's] legal relationship

with a child. The Court has never held that governmental action that affects the parental relationship only incidentally--as in this

case--is susceptible to challenge for a violation of due process.”).

116 See id. at 9-10.

117 See Burgos, 807 F.2d at 9.

118 See id. (“[A] legal parent ... arguably has the strongest claim for a constitutional remedy in these circumstances.”).

119 Id. at 10.

120 235 F.3d 637 (D.C. Cir. 2001).

121 Id. at 656.

122 Id. at 640-41.

123 Id. at 641-42.

124 Id. at 642.

125 Id.

126 Butera, 235 F.3d at 642.

127 Id.

128 Id. at 642-43.

129 Id. at 643.

130 Id.

131 Id. at 643.

132 Butera, 235 F.3d at 640.

133 Id. at 640-41.

134 Id.

135 Id. at 654.

136 707 F.2d 582 (D.C. Cir. 1983).

137 Id.

138 Butera, 235 F.3d at 655 (quoting Franz, 707 F.2d at 595).
















139 Id. (“We find nothing in Supreme Court case law to indicate an intention to extend these concerns in support of a constitutional liberty

interest in a parent's relationship with her adult son.”).

140 Id. at 656 (quoting Franz, 712 F.2d at 1432.).

141 352 F.3d 820 (3d Cir. 2003).

142 Id. at 828-30.

143 Id. at 822.

144 Id.

145 Id.

146 Id.

147 McCurdy, 352 F.3d at 822.

148 Id. at 823.

149 See id. at 822 (“The District Court granted summary judgment on the ground that McCurdy was precluded from bringing his § 1983

action after he had entered into an agreement with Dawson's mother to share the proceeds from her settlement of a prior civil action

against the same defendants here.”).

150 Id. at 826-29.

151 Id. at 829. As the Third Circuit noted:

When children grow up, their dependence on their parents for guidance, socialization, and support gradually diminishes. At the same

time, the strength and importance of the emotional bonds between them and their parents usually decrease. Concededly, the bond

between a parent and child when the child is an adult usually bears some resemblance to the same bond when the child was a minor.

Id. (quoting Butera v. District of Columbia, 235 F.3d 637, 656 (D.C. Cir. 2001).

152 Id.

153 McCurdy, 352 F.3d at 830.

154 See id. at 828-30.

155 767 F.2d 651 (9th Cir. 1985).

156 Id. at 655.

157 See id. at 652-53.

158 Id. at 653.

159 See id.

160 See id. at 654-55.

161 791 F.2d 744, 748 n.1 (9th Cir. 1986).

162 See id. at 746, 748 n.1.

163 Id. at 746.

164 Id.

165 Id.






















166 Id.

167 Strandberg, 791 F.2d at 746.

168 See id. at 748.

169 See 818 F.2d 1411, 1419 (9th Cir. 1987).

170 See id. at 1414.

171 See id. at 1419.

172 See id.

173 Strandberg, 791 F.2d at 1419.

174 See Smith, 818 F.2d at 1419.

175 Id. The Ninth Circuit has reaffirmed this position in subsequent decisions. See, e.g., Moreland v. Las Vegas Metro. Police Dep't, 159

F.3d 365, 371 (9th Cir. 1998); Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991).

176 See 768 F.2d 1186, 1189-90, 1190 n.7 (10th Cir. 1985).

177 See id. at 1187.

178 Id. at 1189.

179 See id.

180 Id.

181 Id. at 1190 (“We realize that other courts have not imposed any state of mind requirement to find a deprivation of intimate associational

rights. However, their rationale would permit a section 1983 claim by a parent whose child is negligently killed in an automobile

accident with a state official, a result expressly disapproved [by the United States Supreme Court].”) (citations omitted).

182 See Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), overruled by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005).

183 See Bell, 746 F.2d at 1245.

184 Russ, 414 F.3d at 787-91.

185 Bell, 746 F.2d at 1215.

186 Id.

187 Id.

188 Id.

189 Id. at 1215-16.

190 Id. at 1223.

191 Bell, 746 F.2d at 1223.

192 Id. at 1224.

193 Id. at 1242.

194 Id. at 1244-45.

























195 See id. at 1245 (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).

196 See id.

197 Bell, 746 F.2d at 1247.

198 See id. at 1245.

199 414 F.3d 783 (7th Cir. 2005).

200 Id. at 788.

201 Id. at 784.

202 Id.

203 Id.

204 Id.

205 Russ, 414 F.3d at 784-85.

206 Id. at 785.

207 Id. at 788 (“An analysis of the decisions of our sister circuits as well as a reexamination of our own rationale in Bell convinces us

that Bell was wrongly decided.”).

208 Id.

209 Id. at 789 (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997)).

210 Id. (emphasis added).

211 See supra Part II.

212 See supra Part II.

213 Petition for Writ of Certiorari at 13, Robertson v. Hecksel, 420 F.3d 1254 (11th Cir. 2006) (No. 05-935) [hereinafter Certiorari]

(“Enforcement of the civil rights laws should not be subject to such geographic vagaries.”).

214 See U.S. Const. art. III, § 2.

215 Certiorari, supra note 213, at 8.

216 See McCurdy v. Dodd, 352 F.3d 820, 829 (3d Cir. 2003); Valdivieso Ortiz v. Burgos, 807 F.2d 6, 10 (1st Cir. 1986).

217 See Russ v. Watts, 414 F.3d 783, 787-88 (7th Cir. 2005); Butera v. District of Columbia, 235 F.3d 637, 654-55 (D.C. Cir. 2001).

218 See, e.g., sources cited supra note 221.

219 See, e.g., McCurdy, 352 F.3d at 829 n.7. (“The loss of a family member is almost always catastrophic to the survivors. It serves no

purpose to minimize the sense of loss here. However, ‘even an interest of great importance may not always be entitled to constitutional

protection.”’ (quoting Burgos, 807 F.2d at 10)).

We emphasize that in denying a cause of action to appellants, we seek neither to minimize the loss of a family member nor to denigrate

the fundamental liberty interest in matters of family life that has long been a part of our constitutional fabric. But even an interest of

great importance may not always be entitled to constitutional protection.

Id.

220 Certiorari, supra note 213.





















221 See supra Part I.B.

222 See supra Part I.B.1-2.

223 U.S. Const. amend. XIV, § 1.

224 Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (O'Connor, J., plurality opinion).

225 See id.

226 See Roberts v. U.S. Jaycees, 468 U.S. 609, 618-19 (1984) (Brennan, J., concurring).

227 Id. at 618.

228 Id. at 619. The Court stated:

[T]he constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional

enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards

the ability independently to define one's identity that is central to any concept of liberty. The personal affiliations that exemplify

these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of

constitutional protection, are those that attend the creation and sustenance of a family--marriage, childbirth, the raising and education

of children, and cohabitation with one's relatives.

Id. (citations omitted).

229 See id.; Moore v. City of E. Cleveland, 431 U.S. 494, 504-05 (1977) (Powell, J., plurality opinion). The Court stated:

The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots

equally venerable and equally deserving of constitutional recognition.... [I]t has been common for close relatives to draw together and

participate in the duties and the satisfactions of a common home. Decisions concerning child rearing, which Yoder, Meyer, Pierce

and other cases have recognized as entitled to constitutional protection, long have been shared with grandparents or other relatives

who occupy the same household--indeed who may take on major responsibility for the rearing of the children. Especially in times

of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance

and to maintain or rebuild a secure home life.

Id.

230 See Roberts, 468 U.S. at 619-20 (“Family relationships, by their nature, involve deep attachments and commitments to the necessarily

few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively

personal aspects of one's life.”).

231 See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that an unwed father is entitled to a hearing on his fitness as a parent before

his children are taken from him).

232 See Bell v. City of Milwaukee, 746 F.2d 1205, 1245 (7th Cir. 1984).

233 Id. (“‘[W]e are unpersuaded that a constitutional line based solely on the age of the child should be drawn.”’ (quoting Stanley v.

Illinois, 405 U.S. 645, 651 (1972))).

234 See, e.g., Robertson v. Hecksel, 420 F.3d 1254, 1259 n.5 (11th Cir. 2005); Russ v. Watts, 414 F.3d 783, 791 (7th Cir. 2005); McCurdy

v. Dodd, 352 F.3d 820, 829 (3d Cir. 2003); Valdivieso Ortiz v. Burgos, 807 F.2d 6, 8 (1st Cir. 1986).

235 See Trujillo v. Bd. of County Comm'rs, 768 F.2d 1186, 1190 (10th Cir. 1985).


237 See supra Part I.B.

238 Troxel v. Granville, 530 U.S. 57, 65 (2000) (O'Connor, J., plurality opinion).
























242 See Bell v. City of Milwaukee, 746 F.2d 1205, 1245 (7th Cir. 1984).

243 See id.

244 See Adams, supra note 6, at 1924 (“[T]his nation has expressed a profound respect for the parent-child relationship, and that tradition

does not cease once the child reaches adulthood. Therefore, the parent maintains an interest in the companionship of her adult child.”).

245 Id.

246 See Bell, 746 F.2d at 1245.

247 See id.


249 See id. at 1923.

250 See Bell, 746 F.2d at 1245. This factor-observing approach counters the criticism expressed by the First Circuit in Valdivieso Ortiz,

which said that “a conclusion that governmentally caused termination of, or encroachment on, the parental interest in the continued

relationship with a child always is actionable would constitutionalize adjudication in a myriad of situations we think inappropriate

for due process scrutiny.” Valdivieso Ortiz v. Burgos, 807 F.2d 6, 9 (1st Cir. 1986).




43 NENGLR 271

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