Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01254-G|\/IS Document 25 Filed 09/19/2005 Page 1 0f4
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September 19, 2005
VIA HAND DELIVERY AND CM/EGF
The Honorable Gregory M. Sleet
United States District Court
District of Delaware
844 King Street
J. Caleb Boggs Federal Building
Lockbox 19
Wilmington, DE 19801
Re: Estate of Hargy Smith, III, et al. v. Wilmington Police Department,
C.A. No. 04-1254-GMS
Dear Judge Sleet:
I am in receipt of plaintiffs’ status report. The parties had originally planned to
tile a joint status report, and conferred with this in mind. I told plairrtiffs’ counsel I would take
the laboring oar in drafting such a document, but I then unexpectedly had to leave the office
because of illness, and as a consequence, was unable to complete the document. Upon my return
today I learned that plaintiff had tiled a status report. I apologize to the Court for not completing
the status report and trust the Court will understand I was not ignoring my obligations.
Defendants are generally in agreement with plaintiffs’ status report. There are,
however, some areas where we strongly disagree. Most notably, we disagree with plaintiffs’
assertion that there is no need to narrow the issues. Plaintiffs raise a board spectrum of claims,
many of which are plainly deficient as a matter of law. Specifically, (a) the estate’s Eighth and
Fourteenth Amendment claims fail because the Fourth Amendment provides the applicable
standard here; (lo) M1'. and Mrs. Smithfs Fourteenth Amendment claim must he dismissed
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The Honorable Gregory M. Sleet
September 19, 2005
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because the death of an adult child does not state a claim under the Fourteenth Amendment and
(c) the abuse of a corpse claim against the City of Wilmington is barred because the City is
absolutely immune from state tort law liability. We respectfully suggest that considerable time
and money can be saved if these faulty claims are dismissed earlier, rather than later, inthe suit.
a. The Estates’ Civil Rights Claim Must Be Analyzed Under the Fourth
Amendment Standard
The initial step in analyzing plaintiffs’ civil rights claims is the determination
what constitutional rights are implicated. Gmlmm it. O’Cormor, 490 US 386, 394 (l989)
(“analysis begins by identifying the specific constitutional right allegedly infringed hy the
challenged application of t`orce."),. This determination may he determinative of the outcome of
the case, Gottlieb v. Louml Higliloncis School District, 272 F.3d 168 (3rd Cir. 2001).
Although Mr. Smith’s estate raises Fourth, Eighth and Fourteenth amendment
claims, the initial step in the analysis mandated by (}'r·a/mm — identifying which constitutional
right applies here —· is an easy one in this case.
The Supreme Court has made it clear that the Fourth Amendment dictates the
analysis here. The estate alleges a Fourteenth Amendment claim, but that amendment is not a
font of federal tort law and does not apply when more specific amendments apply. Town of
Castle Rock v. Gonzales, __ US _______, l25 S, Ct. 2796, 2810 (2005). If a "constitutional
claim is covered by a specitic constitutional provision, such as the Fourth or Eighth Amendment,
the claim must be analyzed under the standard appropriate to that speciiic provision, not under
the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n.7 (1997).
The Supreme Court held that the Fourth Amendment applies in cases such as this involving
allegations of the use of deadly force in the apprehension ofa suspect. Tennessee v. Garner, 471
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Case 1:04-cv-01254-Gl\/IS Document 25 Filed 09/19/2005 Page 3 of 4
The Honorable Gregory M. Sleet
September E9, 2005
Page .3
U.S. (l989). Consequently, the Estate’s Eighth and Fourteenth Amendment claims ought to be
dismissed.
Plaintiffsf Eighth Amendment claim fails for another reason. That amendment
does not apply because Mr. Smith was not serving a sentence of incarceration pursuant to a
judgment of conviction at the time he was shot. Bell v. Womsh, 411 U.S. 520, 525 (1979).
b. The Parents Have No Fourteenth Amendment Claim Of Their Own
In a case similar to this one, the Third Circuit has held that the parents of an adult
child did not have a Fourteenth Amendment claim of their own when their adult child was shot
and killed by police. McCurdy v. Dodd, 353 F.3d 820 (Bid Cir. 2003). That holding was recently
followed by the Eleventh Circuit. Robertson v Hee/rsel, 2005 US App Lexis 17201 (1 lm Cir.
Aug. l6, 2005).
c. The City Is Absolutely Immune form the abuse of eorgse claim.
blaintiffs seek to assert an abuse of a corpse claim against the City in their
Amended Complaint. They allege that the City, acting through unidentified agents, allowed Mr.
Smith’s body to remain in the street and allowed his blood to trickle down the road. They
theorize that this amounts to a state law claim of abuse of a corpse. The City is absolutely
immune from this claim by virtue of E0 Del. C. § 4011 ("all governmental entities and their
employees shall be immune from suit on any and all tort claims seeking recovery of damages?). l
On a different note, in their status report plaintiffs assert that I said the defendants
would not “spend a dime" to settle this case. It is true that I advised plaintiffs counsel that l did
not think the case would settle, but I did not use such an aggressive phrase as described in the
status report. The reputation of these police officers and the Wilmington Police Department is at
stake in this case. Plaintiffs have sought to make this a cause celebre, going so far as to conduct
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The Honorable Gregory M. Sleet
September 19, 2005
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a news conference literally on the steps of the courthouse the day they filed this lawsuit. They
have sought to publicize what they claim to be the shortcomings of the police department. As
would be expected, it is important to the city that its citizens have confidence in its police
ofiicers. Under the circumstances plaintiffs have chosen to create, the only way the city and
these defendants can assure that the police have the continuing confidence of the public is
through vindication after judicial proceeding. Accordingly, we will, of course attend a mediation
if directed to do so by the court, but we do not now believe one would be productive.
Respectfully yon;
/Vi/L· / (sr-L_+»
Kr John A. Parkins, ir. (#859)
JAP/lll
cc: Clerk ofthe Court
Kester LH. Crosse, Esquire (By I-land Delivery)
Anne T. Sutton, Esquire (By U.S. Regular Mail and email)
Rosernaria Tassone, Esquire
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