College Grads Living at Home: Intimate Associate & 42 U.S.C. §1983

In 1983 actions petitioners who are parents may assert claims on behalf of their children if they can prove they have an “intimate association” with the child whose rights were allegedly deprived. The law, however, is murky in regards to what some courts term “adult-children.” Adult- children typically are understood to be individuals over the age of 18 who have yet to reach independence from their parents. As more college graduates return to live with their parents these types of issues may become more prevalent.

To recover under 42 U.S.C. § 1983 a Petitioner must prove that a deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States was carried out by persons acting under color of law. Clark v. Boscher, 514 F.3d 107 (1^st Cir. 2008). Under the Due Process Clause of the Fourteenth Amendment, parents have a fundamental constitutional liberty interest in the care, custody and control of their children, which amounts to a right to intimate association with the child. Troxel v. Granville, 530 U.S. 57, 65 (2000).

Courts, however, have been reluctant to extend the constitutional protections afforded the parent-child relationship to cases involving adult-children, with the 1^st, 3^rd, 7^th, 11^th, and D.C. Circuit Courts of Appeals all declining to recognize a Constitutional right of intimate association in adult children. See e.g., Russ v. Watts, 414 F.3d 783 (7^th Cir. 2005), Ortiz v. Burgos, 807 F.2d 6 (1^st Cir. 1986), McCurdy v. Dodd, 352 F.3d 820 (3^rd Cir. 2003), Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001)., Robertson v. Hecksel, 430 F.3d 1254 (11^th Cir. 2005). Moreover, the Supreme Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this uncharted area [of adult-child/parent relations] are scarce and open-ended. Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

While the Supreme Court has recognized the constitutional right of intimate association most courts have been reluctant to extend these rights to the relationship between adult-children and their parents. Troxel v. Granville, 530 U.S. 57, 65 (2000), Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

In Butera, the mother of Terry E. Butera sued the District of Columbia after her adult son, an undercover police informant, was killed during a drug sting. Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001). The D.C. Circuit Court of Appeals held, “a parent does not have a constitutionally-protected liberty interest in the companionship of a child who is past minority and independent.” Id at 656 The Court further noted, “the Supreme Court has not spoken to [this] precise issue, and the precedent in this and nearly all of the other circuits suggest that no such right [of intimate association with adult-children] exists.” Id at 654.

In, Ortiz, parents of Jose Valdivieso Oritiz claimed they had been deprived of their constitutional right of intimate association under 42 U.S.C. § 1983 when Ortiz was allegedly beaten to death by guards and a fellow inmate at the Guayama Regional Detention Center in Puerto Rico. Ortiz v. Burgos, 807 F.2d 6 (1^st Cir. 1986). The First Circuit Court of Appeals, in holding that the right of intimate association does not extend to adult-children/parent relationships, noted, “The right to procedural due process has not been extended beyond settings in which the state was attempting to affect the relationship between a parent and his or her minor child.” Id. at 8-9.

This trend continued with the Third Circuit Court of Appeals refusal to extend the right to adult-children in McCurdy. Here, the controversy arose from the shooting of Donta Dawson by Philadelphia Police. McCurdy v. Dodd, 352 F.3d 820 (3^rd Cir. 2003). Dawson’s biological father, Bobby McCurdy sued the officers as well as the city of Philadelphia for violation of his constitutional right of intimate association. On Appeal, the 3^rd Circuit stated, “there is a controlling, threshold issue…whether McCurdy has adequately asserted the violation of a cognizable constitutional right.” Id at 822. The court, in analyzing the limitations of the due process protections, pointed out, “Supreme Court and Third Circuit precedents are clear in one respect: the cases extending liberty interests of parents under the Due Process Clause focus on relationships with minor children.” Id at 827. The court held McCurdy failed to assert the violation of a cognizable constitutional right, “Because the Due Process Clause does not protect the interest of a parent in the companionship of his or her independent adult child.” Id at 822.

Most recently, both the 7^th and 11^th Circuits have also declined to recognize a right of intimate association in situations involving adult-children.

In, Russ, the Seventh Circuit examined the issue when Robert Russ was shot and killed by Chicago Police following a vehicular pursuit. Russ v. Watts, 414 F.3d 783 (7^th Cir. 2005). Russ’s mother subsequently sued the City of Chicago for loss of intimate association with her adult son. Id at 785. The Court noted that precedent has continually shown that, “courts have been reluctant to extend the constitutional protections afforded the parent-child relationship to cases involving adult children.” Id at 788. The Seventh Circuit, in declining to extend this constitutional protection to adult children, pointed out, “we agree with our sister circuits that minor children’s need for guidance and support of their parents warrants ‘sharply different constitutional treatment.’’ Id at 790 quoting Butera v. District of Columbia, 235 F.3d 637, 656 (D.C. Cir 2001) and McCurdy v. Dodd, 352 F.3d 820, 829 (3^rd Cir. 2003).

The Eleventh Circuit similarly denied the expansion of substantive Due Process in cases such as this. Robertson v. Hecksel, 420 F.3d 1254 (11^th Cir. 2005). In Robertson, decedent Corey Rice was pulled over for a routine traffic stop by Gainesville Police, the Respondent, Officer Hecksel, did not use police sirens or any lights to pull over Rice or illuminate the car. Id. Hecksel struck the driver’s window of Rice’s car, moved to the front of the car and pointed his weapon at Rice. Id. Rice attempted to then flee, driving in reverse, at which point Officer Hecksel shot seven times, striking Rice four times. He was pronounced dead a few hours later. Id. Rice’s mother, Patricia Robertson, sued for loss of intimate association with her adult son. The Court held Robertson had, “not asserted a cognizable due process interest. […] Her claim finds no support in Supreme Court precedent, and we decline to further expand the substantive protections of the Due Process Clause.” Id at 1259-1260. They expanded on this holding pointing out, “it is the province of the…legislature to decide when a parent can recover for the loss of an adult child. We will not circumvent its authority though an unsupported reading of the Fourteenth Amendment.” Id at 1262.

. The 2^nd and 10^th Circuits have held a right of intimate association between adult family members to exist only when the actions of the Respondents were expressly aimed at the relationship between family members, not at a specific individual within the relationship. See e.g., Patel v. Searles, 305 F.3d 130 (2^nd Cir. 2002); Trujillo v. Bd. of Co. Commrs., 768 F.2d 1186 (10^th Cir. 1985). Here, the actions of the police were not aimed at Alex’s relationship with the Petitioners but rather at Alex himself. It was not the Respondents’ intention to affect the relationship between Petitioners and their adult son. Additionally the 9^th Circuits holding is inapplicable to the facts of this case. There the court held that a deprivation of intimate association rights may only be asserted by “both the parents and children of a person killed by law enforcement officers.” Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 371 (9^th Cir. 1998).