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 BETWEEN
A 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 a
parent to associate with his or her adult child. This issue often arises in the case where a parent brings a wrongful death action
for the killing of his or her adult child by a state actor. The lower courts are reluctant to expand the unenumerated constitutional
rights without clear guidance from the Supreme Court. This Note discusses the historical framework of substantive due process
rights, as well as that of the remedial section 1983. Observing the landmark cases in which the Supreme Court expanded due
process rights in regard to familial issues, such as the right to associate with one's minor child, this Note recommends expanding
that right to adult children as well. This Note analyzes the circuit split on this issue and suggests a mixed approach, whereby
the existence of the constitutional right to associate with one's adult child depends on whether the state action is deliberate and
whether various case-specific factors exist. This approach assuages the concerns the lower courts have expressed with expanding
this 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 by
Congress, 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 constitutional
liberty 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 nothing
contained 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 of
companionship 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 to
find a constitutional parental right to the companionship of an adult child, it would still hold against Robertson because the
officer'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 child
and argues in favor of finding that right. Part I provides the relevant background law, focusing both on Supreme Court precedent
in finding unenumerated rights in the Constitution and on remedies for violation of those rights. Part II analyzes the circuit split
at issue, detailing the various circuits' holdings through the cases they have addressed. Finally, Part III of this Note argues in
favor of finding a constitutional right of companionship between a parent and her adult child and contends that a mix of the
various approaches of the courts of appeal best serves this recognition and implementation of this right. Part III also asserts
that the Supreme Court needs to sufficiently address the issue in order to bring a uniform approach amongst the divided *275
circuits 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 the
conviction, 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 the
Due 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 Court
has 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 Court
struck 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
Despite
recognizing 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 schools
noting 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 is
cardinal 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 violated
the parental liberty interest, and stated:
The liberty interest at issue in this case--the interest of parents in the care, custody, and control of their
children--is perhaps the oldest of the fundamental liberty interests recognized by this Court. . . . [I]t cannot
now 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 right
of 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 “older
than the Bill of Rights[,]” the Court stated that a “governmental purpose to control or prevent activities constitutionally subject
to 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 found
great 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 the
Enforcement 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 Klan
Act 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 the
Fourteenth 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 litigants
to 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 into
Monroe'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 forcing
pregnant 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 Right
of 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 a
Constitutionally 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 partial
summary 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 to
Jose'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 first
observed 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 process
protection 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 incidental
governmental 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, since
this 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 conclusion
is 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 purchasing
or 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 minutes
later, 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 that
Franz 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 precedent
dealing 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 facts
of 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 too
much 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 right
in 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 Their
Adult 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 child
in 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 parking
lot, 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, “there
is 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 the
child-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
The
court 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 companionship
between 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
The
Tenth Circuit observed that “[a]lthough the parental relationship may warrant the greatest degree of protection and require the
state 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 concluded
that 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 Then
Reverses 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 court
overruled 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 by
looking 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 persuaded
that 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 the
parent-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 separate
actions 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 Supreme
Court 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, the
court 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 not
the 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. Circuit
and 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 to
be 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 expansion
of 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 recognized
that, 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
Justice
Brennan 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, and
there 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 may
be 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 point
when 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 the
Tenth Circuit, which found there is a constitutionally protected right under the First Amendment for a parent to associate with
her 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 an
actionable constitutional right for a parent to associate with her child in instances where the governmental action is deliberately
directed 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 companionship
interest 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 the
other 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, such
as 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 best
avoids 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 a
parent 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 to
family 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 the
right 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 of
the civil rights laws dependent on where geographically an action is brought. The confusion on this issue can only be cured by
the 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 importance
of 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 at
disrupting the parent-adult child relationship, as agreed on by most of the courts of appeal. Lastly, the original approach of the
Seventh 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, and
takes the accepted right to a parent's companionship with a minor child and logically extends it to an adult child.
Footnotes
a1 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.

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 ....”).

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
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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