Can a plaintiff's estate recover damages for loss of pain and suffering as a result of a police shooting?

In Guyton v. Phillips, supra, 532 F.Supp. 1154, police killed a suspect during a chase. The representative of his estate brought a civil rights action [42 Cal.App.4th 185] pursuant to Probate Code section 573, the predecessor of Code of Civil Procedure section 377.34. Although the state statute did not permit recovery for the decedent's pain and suffering, and limited compensatory damages to relatively small expenses incurred, the district court held the policy of the civil rights law required compensation for decedent's pain and suffering and for the value of the deprivation of the right to life. The court reasoned, "Had the victim survived, he could have recovered, among other things, loss of earnings and pain and suffering. The inescapable conclusion is that there may be substantial deterrent effect to conduct that results in the injury of an individual but virtually no deterrent to conduct that kills its victim." (Id. at p. 1166.) Similarly, the purpose of the federal Civil Rights Act to prevent official acts that cause deprivation of rights "is hardly served when the police officer who acts without substantial justification suffers a harsher penalty for injuring or maiming a victim than for killing him." (Id. at p. 1167.)

In Bell v. City of Milwaukee, supra, 746 F.2d 1205, the decedent was shot and killed by police. The Wisconsin survival statute did not allow damages for "loss of life," but the court held this was inconsistent with the purposes of the federal Civil Rights Act. (Id. at p. 1236.) The court reasoned that the purposes of the federal law were compensation and deterrence, commenting that one of the primary reasons for enactment of the civil rights statute was to remedy and deter racial killings. The court concluded "there would result more than a marginal loss of influence on potentially unconstitutional actors and therefore on the ability of Section 1983 to deter official lawlessness if the victim's estate could not bring suit to recover for loss of life." (Id. at p. 1239.)