United States District Court, M.D. Alabama, Northern Division
NELLIE RUTH GUNN, individually and as Administratrix of the Estate of Gregory Gunn, Deceased, Plaintiff,
CITY OF MONTGOMERY, ALABAMA, et al . Defendants.
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE
March 2, 2017, the Magistrate Judge filed a Recommendation
(Doc. # 41) to which Plaintiff objected. (Doc. # 44.) The
court has conducted an independent and de novo
review of those portions of the Recommendation to which
objection is made. See 28 U.S.C. § 636(b).
very early morning hours of February 25, 2016, Defendant
Aaron Cody Smith, a white police officer for the City of
Montgomery, Alabama, was on patrol alone in his vehicle when
he confronted Gregory Gunn, a 58-year-old African-American,
as Mr. Gunn gun was walking home from a card game at a
neighbor's house. Without any basis for reasonable
suspicion that Mr. Gunn was involved in criminal activity,
Smith approached Mr. Gunn and initiated a “stop and
frisk.” Mr. Gunn was not armed and Smith had no reason
to believe he was armed.
Smith completed the pat-down, Mr. Gunn fled in the direction
of his home. Smith, still lacking any reasonable suspicion
that Mr. Gunn was involved in criminal activity, pursued Mr.
Gunn on foot. During the pursuit, Smith deployed a Taser on
Mr. Gunn at least three times, even though Mr. Gunn had not
threatened Smith and Smith had no reason to fear for his own
safety. Because the Taser failed to stop Mr. Gunn's
flight, Smith struck Mr. Gunn several times with an
expandable metal baton. During the entire confrontation, Mr.
Gunn made no oral threats, never made any aggressive moves,
and never tried to reach for any of Smith's weapons.
Nevertheless, by the time Mr. Gunn reached his next-door
neighbor's house, Smith brandished his service firearm
and fired seven shots at Mr. Gunn, striking him five times
and killing him. Mr. Gunn died shortly thereafter in his
next-door neighbor's front yard. When he died, he was
only steps away from the home he shared with his mother,
Plaintiff Nellie Ruth Gunn.
8, 2016, Plaintiff filed this suit in her individual capacity
and in her capacity as administratrix of the estate of
Gregory Gunn. She asserts claims under 42 U.S.C. § 1983
and state law claims. With respect to the §1983 claims,
Plaintiff seeks to recover personally for loss of
companionship and support (Doc. # 1 at ¶¶ 131, 173,
189, 206, 227) and in her representative capacity for the
death of her son.
August 11, 2016, Defendants filed a motion to dismiss all
Plaintiff's individual and representative capacity
claims. On March 2, 2017, the Magistrate Judge entered a
Recommendation that the motion to dismiss be granted as to
Plaintiff's individual capacity § 1983 claims and
denied as to the remainder of her claims. The Magistrate
Judge held that Plaintiff did not have standing to assert
individual capacity claims under § 1983 for any injuries
she suffered due to the alleged violation of Mr. Gunn's
constitutional rights. (Doc. # 41 at 8.)
March 15, 2017, Plaintiff Nellie Ruth Gunn filed objections
to the Magistrate Judge's Recommendation that her
individual capacity §1983 claims should be dismissed.
(Doc. # 44.)
Carringer v. Rodgers, 331 F.3d 844, 849 (11th Cir.
2003) and Brazier v. Cherry, 293 F.2d 401, 409 (5th
Cir. 1961),  Plaintiff argues that § 1983 is
deficient for not providing for individual capacity claims in
the event of a loved one's death by unconstitutional
means, but the court should not look to state law to remedy
the deficiency because Alabama law's failure to recognize
such claims in the wrongful death context fails to fully
effectuate the purposes of §1983. In
Carringer and Brazier, the Court of Appeals
held that that § 1983 is deficient in not providing for
survivorship of a §1983 claim for unconstitutional
conduct that resulted in death and looked to state
survivorship and wrongful death statutes to determine that a
civil rights wrongful death claim survives. In concluding
that Plaintiff lacked standing to assert individual capacity
§ 1983 claims for injuries personal to her resulting
from the death of her adult son, the Magistrate Judge found
that Carringer and Brazier are
distinguishable because the present case is an Alabama case,
and, in the cited cases, the Court of Appeals looked to and
incorporated Georgia state law.
and Brazier are distinguishable, but not necessarily
because the Court of Appeals looked to Georgia law instead of
Alabama law. They are distinguishable because they relate to
the survivorship of a decedent's § 1983 action,
whereas this case involves a different question: whether
§ 1983 is a remedy for injuries personal to a parent
when an adult child is killed as a result of unconstitutional
actions by state officers. In Robertson v. Hecksel,
420 F.3d 1254 (11th Cir. 2005), a case very similar to this
one,  the Eleventh Circuit noted the importance
of the distinction:
[The decedent's mother] argues her claim is controlled by
Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961), and
Carringer v. Rodgers, 331 F.3d 844 (11th Cir.2003).
Because those cases involve the application of 42 U.S.C.
§ 1988, it will be helpful for us to first briefly
discuss how § 1988 works before explaining why