Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-01254-Gl\/IS Document 38 Filed 10/10/2005 Page 1 0f4
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October 10, 2005
VIA HAND DELIVERY AND CM/ECE
The Honorable Gregory M. Sieet
United States District Court
District ofiDeiaware
844 King Street
J. Caleb Boggs Federal Building
Lockbox 19
Wiimington, DE 19801
Re: Estate of Hargy Smith, III, et al. v. Wilmington Police Degartment,
C.A. No. 04»1254—GMS
Dear Judge Sleet:
Plaintift`s’ response to defendants’ arguments is discussed in the order presented in
det`endants’ opening letter memorandum,.
1. The Estate Has No Fourteenth Amendment Claim
In their opening memorandum defendants pointed to three United States Supreme Court
cases in which excessive force claims were analyzed solely under the Fourth Amendment.
Further defendants pointed to the express ruling in Gro/mm v, O’Connor, 490 US. 386, 395
(1989), that excessive force cases "should be analyzed under the Fourth Amendment . . . rather
than the substantive due process approacli.” Plaintiffs do not even discuss those Supreme Court
opinions, and their meniorandum is notably devoid of` any discussion of the afore—quoted
language from Graham:.
Plaintiffs content themselves with reference to a Form Jury Instruction from the Seventh
Circuit. Not surprisingly they do not bother to explain how a Form Jury Instruction can overrule
Supreme Court precedent, Moreover, nothing in the proffered form jury instruction suggests that
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The Honorable Gregory M. Sleet
October 10, 2005
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excessive force cases may be analyzed under the Fourteenth Amendment. Indeed three of the
four cases cited in the Committee Comments under the heading "Unreasonab1e Force" are Fourth
Amendment cases. Grczhcmr, supm; Tennessee v. Garner, 471 U.S. l (1985); Deering v. Reich,
183 F.3d 645, 650 (7th Cir. 1999) ("Excessive force cases, including deadly force claims . . . are
analyzed tmder the Fourth Amendment"). The fourth case sought to determine the appropriate
standard for excessive force cases involving pre—trial detainees and thus is inapplicable here.
Wilson v. Wil/icnns, 83 F..3d 870, 876 (7th Cir. 1996).
2. The Parents’ Fourth Amendment Claim Must Be Dismissed
in their memorandum plaintiffs clarified their amended complaint, stating that "the
parents are not claiming their Fourth Amendment rights were violated." (Pl. Mem., 1).
3. The Parents’ Cannot Assert A Fourteenth Amendment Claim Of
Their Own
As discussed in Defendants’ Opening Memorandum, McCzu·cfy v. Dodd, 352 F.3d 820
(3d Cir. 2003), holds that "the fundamental guarantees of the Due Process Clause do not
extended to a parent’s interest in the companionship of his independent adult child." Plaintiffs
try several tacks to avoid this holding, all of which are to no avail.
First, plaintiffs argue that the McCz¢rdy court held that ‘[i]n light of our disposition, we
do not reach the issue of whether the parents of an adult child may maintain a section 1983
claim." (Pl. Mem. 3). This assertion is wrong ~— the McCurdy coun never wrote that. Rather it
was merely quoting from the earlier decision in Freedman v. City ofAIleni0wn, 853 F.2d llll,
US lll? (3d Cir. 1988) in which, according to McCurdy, "we were presented with the issue and
declined to rule upon it." McCzu·dy, supra, at 828, n.6.
Second, plaintiffs argue there is a fact question as to whether Harry Smith, Iii was
independent. But despite having notice of McCumYy, there is no allegation in the Amended
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Case 1:04-cv-01254-G|\/IS Document 38 Filed 10/10/2005 Page 3 of 4
The Honorable Gregory M. Sleet
October l0, 2005
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Complaint that decedent was dependent upon his parents. Plaintiffs now assert the decedent was
living with his mother and suffered mental from mental illness. (Pl. Mem. 4). But McCurciy
held that the instances in which an adult child is “dependent" are “rare." Id at 830. Surely
living with a parent is not such a rare instance and does not itself establish dependence Further
the allegations of mental illness fall far short of establishing clecedent’s dependence upon his
parents. Those allegations are limited to September 13, 2003 when decedent was "coinplaining
of mental health related ailments" and that night had "hallucinations, paranoia and agitation."
(Amended Complaint {lil ll,l2). There is no explanation why this simple episode made the
decedent "unemancipated."
Third the parents argue without citation to case law that Delaware’s wrongful death
statute somehow creates the requisite liberty on property interest. Only a "legitirnate claim of
entitleinent" —- not an ‘°abstract need or desire" or a "unilateral expectation" ~~ will be protected
by the Fourteenth Amendment. Bd. of Regents of Stare Colleges v. Rot/1, 408 U.S. 564, 577
(1972). Plaintiffs’ argument fails because the wrongful death statute does not create a claim of
entitlement of benefits, but merely provides a procedural vehicle for the parents to assert such a
claim.
Finally, plaintiffs urge that the court not tread in a "murl right to assert a Fourteenth Amendment claim. Plaintiffs have it backwards. Neither the
Supreme Court nor the Third Circuit has ever recognized the cause of action asserted by plain·
tiffs. Thus, allowing this claim to proceed would not only contradict McCurcly, but also would
constitute the precise venture into "murl Respectfully y
Qi" A ral
JAP/lll A. Parkins, Jr. (#859)
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The I-Ionorabie Gregory M.) Sieet
October 10, 2005
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cc: Clerk of the Court
Kester LH. Crosse, Esquire (By I-land Delivery)
Anne Ti Sutton, Esquire (By U.Si Regular Mail)
Rosemarie Tassoue, Esquire
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