Russ, Isaac v. Watts, Van ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3628
ISAAC RUSS and VERA LOVE,
Plaintiffs-Appellants,
v.
VAN B. WATTS, PHILLIP BANAZKIEWICZ,
CITY OF CHICAGO, and ROBERT HELSON,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division
No. 01 C 4098—Samuel Der-Yeghiayan, Judge.
____________
ARGUED MAY 3, 2005—DECIDED JULY 11, 2005
____________
Before FLAUM, KANNE, and SYKES, Circuit Judges.
FLAUM, Chief Judge. This case arises out of the tragic
and fatal shooting of Robert Russ, a 22-year-old student at
Northwestern University, by Chicago police officer Van B.
Watts. The issue before us is whether the United States
Constitution, through the federal civil rights statute 42
U.S.C. § 1983, provides Russ’s parents with a cause of ac-
tion for the loss of the society and companionship of their
son. That question leads us to revisit our decision in Bell v.
City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), in which
2 No. 04-3628
we held that a parent’s constitutional liberty interest in his
relationship with his adult son was violated when his son
was killed by police. After careful consideration, we con-
clude that Bell was wrongly decided and must be
overruled.1 We hold that the federal Constitution does not
allow a parent to recover in such circumstances, and, on
this basis, we affirm the district court’s entry of summary
judgment in favor of defendants.
I. Background
Although the parties vigorously dispute the events that
led to the shooting of Russ, it is unnecessary to resolve
these factual disputes here. Instead, we construe all facts
and draw all reasonable inferences in the light most favor-
able to plaintiffs, the non-moving party. Eisencorp, Inc. v.
Rocky Mountain Radar, Inc., 398 F.3d 962, 965 (7th Cir.
2005).
On June 5, 1999, just a few weeks before his graduation,
Robert Russ was driving from the Northwestern campus in
Evanston, Illinois to his mother’s home in Calumet City,
Illinois. At approximately 1:00 A.M., Chicago police officer
Phillip Banazkiewicz attempted to pull over Russ’s car.
When Russ did not stop, a chase ensued, with three offi-
cers—Banazkiewicz, Watts, and Deputy Sheriff Robert
Helson of the Cook County Sheriff’s Department—pursuing
Russ in three separate police vehicles.
The chase began as Russ was heading southbound on
Lake Shore Drive. It continued onto the Stevenson
1
Because this opinion overrules a prior decision by this Court, we
have circulated it among all judges of this Court in regular active
service pursuant to Circuit Rule 40(e). No judge favored rehearing
the case en banc. Judge Evans did not participate in the decision
of whether to hear the case en banc.
No. 04-3628 3
Expressway (Interstate 55) and then onto the southbound
lanes of the Dan Ryan Expressway (Interstate 90/94). The
chase finally ended after Russ’s car collided with several of
the police vehicles. Once stopped, the three police officers
exited their vehicles and surrounded Russ’s car with their
weapons drawn. Officer Watts positioned himself on the
driver’s side of Russ’s vehicle, and Officers Banazkiewicz
and Helson stood on the passenger’s side. Watts broke the
rear window on the driver’s side and fired a single shot,
striking and killing Russ.
Several months before he was killed, Russ had conceived
a child with Erin Lewis. Lewis gave birth to Russ’s son on
September 26, 1999, over four months after Russ’s death.
Russ’s paternity was confirmed through DNA testing after
the child’s birth.
A few days after Russ’s death, Russ’s mother, Vera Love,
acting as special administrator of the estate of Robert Russ,
filed an action against the City of Chicago in Cook County
Circuit Court under the Illinois Wrongful Death Act.
Unbeknownst to Love, on January 20, 2000, the probate
division of the circuit court declared Russ’s and Lewis’s
child, Robert Anthony Russ, Jr., sole heir to Russ’s estate,
and appointed Lewis as independent administrator of the
estate. Lewis then moved to substitute herself as plaintiff
in the wrongful death action. On February 1, 2000, the
court granted Lewis’s motion during a very brief interval in
which Love’s counsel, who had been prepared to argue
against the substitution, stepped out of the courtroom. The
court then entered an order substituting Lewis for Love as
the plaintiff in the wrongful death action. Love immediately
moved to vacate the order. Following full briefing and oral
argument, the circuit court denied Love’s motion to vacate
the order, leaving Lewis as the plaintiff in the wrongful
death action. The case went to trial in September 2003. On
October 17, 2003, a jury found Watts liable for Russ’s death
and awarded $9.6 million in damages to Russ’s estate.
4 No. 04-3628
Following the substitution of Lewis for Love in the state
court action, Russ’s parents and siblings filed separate
actions in federal district court against Officers Watts,
Banazkiewicz, and Helson, and the City of Chicago. Their
consolidated amended complaint alleged, among other
things, that defendants violated plaintiffs’ due process right
to associate with Russ. On defendant’s motion, Judge
Gettleman, the district judge to whom this case was
originally assigned, dismissed several of plaintiffs’ claims,
including all claims brought by Russ’s siblings. Plaintiffs
Vera Love and Isaac Russ also voluntarily dismissed their
claims against the City.
This case was reassigned to Judge Der-Yeghiayan in
August 2003. After the close of discovery, Russ’s parents
and the defendant officers cross-moved for summary
judgment on the two remaining claims: (i) violation of
plaintiffs’ right to associate with their son; and (ii) failure
to prevent the excessive use of force. The district court
granted summary judgment in favor of defendants, con-
cluding that plaintiffs lacked standing to bring the action.
Plaintiffs now appeal.
II. Discussion
Summary judgment is appropriate if the evidence pre-
sented by the parties “show[s] that there is no genuine issue
of material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). We
review the district court’s grant of summary judgment de
novo. Eisencorp, 398 F.3d at 965.
We held in Bell that a father whose son was killed by a
Milwaukee police officer during a chase could recover under
§ 1983 for the violation of his substantive due process right
to associate with his son. 746 F.2d at 1243-44.
On February 2, 1958, Milwaukee police officers Thomas
Grady, Jr. and Louis Krause observed Daniel Bell, a 23-
No. 04-3628 5
year-old black man, driving a vehicle that was missing a
tail-light. Grady pulled over Bell’s car, and Bell jumped out
of the car and ran away. Id. at 1215. Grady and Krause
pursued Bell—first by car, and then on foot. Id. Grady was
carrying a loaded revolver. As he caught up with Bell,
Grady extended his hand to grab Bell. The gun discharged,
shooting Bell in the upper back. Id. The defendants claimed
that the shot was accidental; Bell’s family members, who
later sued, believed that Grady intentionally pulled the
trigger. Id. at 1215 n.2.
After determining that Bell was dead, Grady planted a
knife in Bell’s right hand. He and Krause then agreed on
the story they would tell about what had happened: that
Bell had jumped out of the car armed with a knife and
yelled: “You won’t catch me, I’m a holdup man!” Id. at 1216.
Other witnesses at the scene testified that they saw nothing
in Bell’s hands nor did they observe Bell swing or lunge at
Grady, as the officers claimed. Id. at 1221-22.
After an internal investigation, the district attorney and
medical examiner held an inquest into Bell’s death, which
returned a verdict that the killing was justifiable. Id. at
1222. Daniel Bell’s father, Dolphus Bell, died in 1962 with-
out recovering for the death of his son. Id. at 1223.
Twenty years later, in 1978, Krause revealed that he and
Grady had lied about what had occurred during the Bell
shooting. Id. On August 29, 1979, Grady pleaded guilty to
homicide by reckless conduct and perjury. He was sentenced
to seven years of imprisonment and was paroled after three
years. Id.In October 1979, Daniel Bell’s sister and eleven brothers
filed suit in federal court on behalf of themselves, the estate
of Daniel Bell, and the estate of Dolphus Bell. Id. at 1224.
Their complaint named as defendants Officer Grady, the
City of Milwaukee, former Police Chief Johnson, and former
Detective Sergeant Shaffer, and alleged various constitu-
6 No. 04-3628
tional violations arising out of the killing of Daniel Bell.
After a ten-week trial, the jury found, among other things,
that Grady violated Daniel Bell’s constitutional rights by
shooting and killing him, and awarded Daniel Bell’s estate
$100,000 in compensatory damages and $25,000 in punitive
damages. Id. at 1225. The jury awarded the estate of
Dolphus Bell $75,000 for the loss of society and companion-
ship of Daniel Bell, plus funeral expenses, and awarded a
total of $100,000 to Daniel’s twelve siblings for the loss of
society and companionship. The jury also found that the
defendants had conspired to cover up the facts of the
shooting of Daniel Bell, depriving his family of due process
of law and racial equality, and awarded compensatory and
punitive damages. Id.The defendants raised numerous issues on appeal, chal-
lenging the constitutional and statutory underpinnings of
the plaintiffs’ claims. We upheld the award to Dolphus
Bell’s estate for the loss of society and companionship, con-
cluding that Daniel Bell’s father “possessed a constitutional
liberty interest in his relationship with his son.” Id. at 1243.
In reaching this conclusion, we relied on the Supreme Court
decisions “examining the parameters of the constitutional
protection afforded the parent-child relationship.” Id. (citing
Meyer v. Nebraska, 262 U.S. 390, 399 (1923); May v.
Anderson, 345 U.S. 528, 533 (1953); Skinner v. Oklahoma,
316 U.S. 535, 541 (1942); Prince v. Massachusetts, 321 U.S.
158, 166 (1944)). We also found support in the Supreme
Court decisions protecting the parental relationship from
state interference. We concluded:
The due process clause requires that severances in the
parent-child relationship caused by the state occur only
with rigorous protections for the individual liberty in-
terests at stake. The state may not separate the parent
from the child, even temporarily, without according them
due process of law to protect their liberty interests.
No. 04-3628 7
Id. at 1243-44 (citing Lassiter v. Dep’t of Soc. Servs., 452
U.S. 18, 27 (1981); Little v. Streater, 452 U.S. 1, 13 (1981);
Smith v. Org. of Foster Families, 431 U.S. 816, 842, 846
(1977); Stanley v. Illinois, 405 U.S. 645, 651 (1972)).
We held that Daniel’s status as an adult living on his own
at the time he was killed did not preclude recovery, stating,
“we are unpersuaded that a constitutional line based solely
on the age of the child should be drawn.” Id. at 1245. We
explained that “[t]he Supreme Court’s decisions protect more
than the custody dimension of the parent-child relationship”
and that the protected relationship “includes the parent’s
‘interest in the companionship, care, custody, and manage-
ment’ of the child.” Id. (quoting Stanley, 405 U.S. at 651).
We also noted that Daniel Bell was single, had no children,
and had not become part of another family unit. “[H]is
father’s family was his immediate family.” Id. Moreover, we
observed, the Wisconsin wrongful death statute permitted
recovery for loss of society and companionship regardless of
the age of the child at his death. Id. (citing Wis. Stat.
§ 895.04(4)). We therefore concluded that Daniel’s age and
separate residence were matters for the jury to consider
when determining damages, but were not a bar to recovery.
Id.Our opinion declined to extend constitutional protection
to the relationship between Bell and his siblings, remarking
that were we to rule otherwise, “there could be no principled
way of limiting such a holding to the immediate family or
perhaps even to blood relationships.” Id. at 1247. We noted
that Supreme Court decisions examining the Fourteenth
Amendment liberty interests were based primarily on the
parents’ constitutional right to raise, associate with, and
make decisions affecting the family, even though they also
alluded to the importance of the integrity of the family unit
as a whole. Id. at 1245-46.
In support of their motion for summary judgment before
the district court, defendants argued that Russ’s parents
8 No. 04-3628
lacked standing because Russ had formed a new family unit
with Lewis. Based on our statement in Bell that Daniel’s
“father’s family was his immediate family,” the district
court concluded that the crucial issue in determining
whether Russ’s parents had standing to recover for the loss
of society and companionship of their son was whether Russ
had become part of another family unit.
To answer this question, the district court relied on the
following facts admitted by plaintiffs: (i) at the time of his
death, Russ lived on campus at Northwestern; (ii) when
Erin Lewis learned she was pregnant with Russ’s child,
they discussed the pregnancy; and (iii) before his death,
Russ was making plans to care for his unborn son. In
addition, the district court relied on defendants’ allegation
that Russ and Lewis had discussed moving in together to
raise their son. Although plaintiffs disputed this fact, the
district court concluded that they had failed to provide any
citations in the record to support their denial.
The district court thus concluded: “It is clear from the
facts and the totality of the circumstances before us that
Russ was no longer living at home at the time of his death
and that he had formed a new family unit.” Russ v. Watts,
2004 WL 1459262, at *4 (N.D. Ill. June 18, 2004). Based on
this conclusion, the district court held that “Russ’ parents
have not shown that they have standing to proceed in this
suit” and granted summary judgment in favor of all re-
maining defendants. Id.2
2
Because, as explained below, our holding rests on a different
basis, we need not decide whether the record supports the district
court’s conclusion. See Peele v. Country Mut. Ins. Co., 288 F.3d
319, 332 (7th Cir. 2002) (“An appellate court may affirm the
district court’s decision on any ground supported by the Record,
even if different from the grounds relied upon by the district
court.”).
No. 04-3628 9
Since Bell, several of our sister circuits have considered
whether the Constitution protects a parent’s relationship
with his adult children in the context of state action which
has the incidental effect of severing that relationship. No
other court of which we are aware has allowed a parent to
recover for the loss of his relationship with his child in
these circumstances. Most courts that have considered the
issue have expressly declined to find a violation of the
familial liberty interest where the state action at issue was
not aimed specifically at interfering with the relationship.
See Trujillo v. Bd. of County Comm’rs, 768 F.2d 1186, 1190
(10th Cir. 1985) (plaintiffs’ § 1983 action for the wrongful
death of their son and brother while he was in state custody
was properly dismissed because plaintiffs did not allege
that defendants intended to deprive them of their protected
relationship with the decedent); Valdivieso Ortiz v. Burgos,
807 F.2d 6, 9 (1st Cir. 1986) (declining to find violation of
substantive due process right based on government action
causing only an “incidental deprivation” of the relationship
between appellants and their adult relative when he was
allegedly beaten to death by guards while in prison);
McCurdy v. Dodd, 352 F.3d 820, 830 (3d Cir. 2003) (where
officer shot and killed individual after he refused demands
to hold up his hands, father could not recover for depriva-
tion of his relationship with his son because the official
action was not “directed at the parent-child relationship”);
see also Claybrook v. Birchwell, 199 F.3d 350, 357-58 (6th
Cir. 2000) (adult children whose father was shot by police
officers could bring action under § 1983 only as administra-
tors of father’s estate, not for any collateral injuries suffered
by themselves personally); Shaw v. Stroud, 13 F.3d 791,
804-05 (4th Cir. 1994) (declining to recognize wife and
minor child’s Fourteenth Amendment claim for loss of love
and support of their husband and father after he was shot
by police officer). But see Kelson v. City of Springfield, 767
F.2d 651, 655 (9th Cir. 1985) (parents had a constitutionally
protected liberty interest in the companionship and society
10 No. 04-3628
of their 14-year-old son and stated claim under § 1983
against school officials after their son committed suicide
while at school).
Courts have also been reluctant to extend the constitu-
tional protections afforded the parent-child relationship to
cases involving adult children. See Valdivieso Ortiz, 807
F.2d at 8 (noting that decedent was over 21 at the time of
his death and was “not a minor child still within ‘the care,
custody, and management’ of his parents”); Butera v.
District of Columbia, 235 F.3d 637, 656 (D.C. Cir. 2001)
(holding that a “parent does not have a constitutionally-
protected liberty interest in the companionship of a child
who is past minority and independent”); McCurdy, 352 F.3d
at 829 (parental liberty interest as defined by the Supreme
Court “must cease to exist at the point at which a child
begins to assume that critical decisionmaking responsibility
for himself or herself”).
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. We do not make such a
declaration lightly. Although we must give considerable
weight to our prior decisions, we are not bound by them
absolutely and may overturn Circuit precedent for compel-
ling reasons. In re Bentz Metal Prods. Co., 231 F.3d 1029,
1033 (7th Cir. 2000). Other circuits’ rejection of our position
provides one such compelling reason. As we have previously
explained:
When a number of other circuits reject a position that
we have taken, and no other circuit accepts it, the in-
terest in avoiding unnecessary intercircuit conflicts
comes into play; and if we are asked to reexamine our
position, we can hardly refuse. That is not to say that
reexamination will cause us to relinquish the posi-
tion. . . . But if upon conscientious reexamination we
are persuaded that the other circuits have the better of
No. 04-3628 11
the argument, we should abandon our position in order
to spare the Supreme Court extra work.
United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995)
(internal citations omitted).
That Bell stands alone causes us to reconsider its holding.
We now see that our conclusion that Dolphus Bell’s paren-
tal liberty interest was violated by the killing of his son was
not well grounded in the Constitution or Supreme Court
case law. The Supreme Court has recognized violations of
the due process liberty interest in the parent-child relation-
ship only where the state took action specifically aimed at
interfering with that relationship. As the Supreme Court
has explained, “[h]istorically, the guarantee of due process
has been applied to deliberate decisions of government
officials to deprive a person of life, liberty, or property.”
Daniels v. Williams, 474 U.S. 327, 331 (1986) (collecting
cases).
The Supreme Court has “always been reluctant to expand
the concept of substantive due process because guideposts
for responsible decisionmaking in this unchartered area are
scarce and open-ended.” Washington v. Glucksberg, 521 U.S.
702, 720 (1997) (citations omitted). The Court has cautioned
that we must “exercise the utmost care” in extending
constitutional protection to an asserted right or liberty
interest because, in doing so, we “place the matter outside
the arena of public debate and legislative action.” Id. With
these principles in mind, we turn to the liberty interest
asserted by plaintiffs.
Although it is well established that parents have a
fundamental constitutional liberty interest in the “care,
custody, and control of their children,” Troxel v. Granville,
530 U.S. 57, 65 (2000), the appropriate framework for anal-
yzing claims alleging a violation of this interest is less than
clear. Doe v. Heck, 327 F.3d 492, 519 (7th Cir. 2003);
12 No. 04-3628
Galdikas v. Fagan, 342 F.3d 684, 689-90 (7th Cir. 2003),
abrogated on other grounds by Spiegla v. Hull, 371 F.3d 928(7th Cir. 2004). In Glucksberg, the Supreme Court articu-
lated a two-part analysis for substantive due process
claims:
First, we 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 con-
cept 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 care-
ful description of the asserted fundamental liberty in-
terest.
521 U.S. at 720-21 (internal citations omitted). The Court
suggested that a strict scrutiny test applies, stating that
“the Fourteenth Amendment ‘forbids the government to in-
fringe fundamental liberty interests at all, no matter what
process is provided, unless the infringement is narrowly
tailored to serve a compelling state interest.’ ” Id. at 721(quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). The fol-
lowing term, in County of Sacramento v. Lewis, 523 U.S.
833 (1998), the Court suggested that the analytical frame-
work differs depending on whether the government action
at issue is legislation or a specific act of a governmental
officer. Id. at 846. Observing that the Due Process Clause
was “intended to prevent government officials from abusing
their power, or employing it as an instrument of oppres-
sion,” the Court determined that the appropriate test with
respect to executive action is whether the executive has
abused its power in a way that “shocks the conscience.”
Id. at 846-47. The interrelationship between Glucksberg
and Lewis has been a source of considerable confusion.
See Galdikas, 342 F.3d at 690 n.3. Further complicating
matters, in Troxel, a plurality of the Court used a “combina-
tion of factors” test to hold that a state’s visitation statute,
No. 04-3628 13
as applied, unconstitutionally infringed on parents’ funda-
mental right to rear their children. 530 U.S. at 72-73; Heck,
327 F.3d at 519.
In deciding this case, we need not resolve the issue of
precisely what level of scrutiny should apply to allegations
of government interference with the parental liberty inter-
est. Under any standard, finding a constitutional violation
based on official actions that were not directed at the
parent-child relationship would stretch the concept of due
process far beyond the guiding principles set forth by the
Supreme Court. See McCurdy, 352 F.3d at 830; Valdivieso
Ortiz, 807 F.2d at 9.
Our finding of a constitutional violation in Bell was not
appropriately moored to Supreme Court precedents estab-
lishing the contours of the parental liberty interest. The
decisions on which we relied as “indicat[ing] that Daniel
Bell’s father possessed a constitutional liberty interest in
his relationship with his son” all dealt with the right to pro-
create and make decisions about rearing one’s minor
children without state inference. See Meyer, 262 U.S. at 400(right of parents to engage teacher to instruct child in
foreign language); Skinner, 316 U.S. at 541 (state-imposed
sterilization “forever deprives” individual of a “basic lib-
erty”); Prince, 321 U.S. at 165-66 (parental right to give
children religious training and encourage them in practice
of religious beliefs); May, 345 U.S. at 534 (mother’s right to
custody and “immediate possession” of her minor children).
These precedents certainly did not compel the result we
reached in Bell.
Similarly, all the cases we cited in Bell for the proposition
that the state may interfere with the parental relationship
only after providing sufficient procedural protection involved
state action that purposefully interfered with the family rela-
tionship. See Lassiter, 452 U.S. at 31 (addressing due process
requirements in parental termination proceedings); Little,
452 U.S. at 16-17 (due process obligates state to aid putative
14 No. 04-3628
father in obtaining blood test in paternity proceeding where
state is adversary); Smith, 431 U.S. at 854-56 (examining
constitutional adequacy of notice, pre-removal conference,
and post-removal hearing in administrative action to remove
child from custody of foster parents); Stanley, 405 U.S. at 649(due process entitles unwed father to a hearing on his fitness
as a parent before removing minor children from his cus-
tody); see also Caban v. Mohammed, 441 U.S. 380, 394 (1979)
(state law allowing adoption of minor children born out of
wedlock without consent of father who has “manifested a
significant paternal interest in the child[ren]” violated equal
protection); Quilloin v. Walcott, 434 U.S. 246, 254-55 (1978)
(adoption of illegitimate minor child despite objection of na-
tural father who had no ongoing relationship with child did
not violate equal protection or substantive due process).
Neither Bell nor the instant case involved intentional
action by the state to interfere with a familial relationship;
plaintiffs in this case have not alleged that Watts shot Russ
for the specific purpose of terminating Russ’s relationship
with his family. Affording plaintiffs a constitutional due
process right to recover against the state in these circum-
stances would create the risk of constitutionalizing all torts
against individuals who happen to have families. Upon
reconsideration, we now recognize that the finding of a
violation of the parental liberty interest in Bell is no longer
supportable. Furthermore, although we need not impose an
absolute rule that parents of adult children lack any liberty
interest in their relationship with their children, we agree
with our sister circuits that minor children’s need for the
guidance and support of their parents warrants “sharply
different constitutional treatment.” Butera, 235 F.3d at 656;
McCurdy, 352 F.3d at 829.
We therefore overrule our decision in Bell insofar as it
recognized a 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. Having
No. 04-3628 15
concluded that Russ’s parents have no constitutional right
to recover for the loss of society and companionship of Russ
in these circumstances, we need not address the other
issues raised by the parties.
III. Conclusion
For the foregoing reasons, we affirm the entry of summary
judgment in favor of defendants.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-11-05