Searching for a lawyer or attorney to handle a wrongful death claim against a jail or police department can be a challenging process. One unfortunate reality is this: attorneys who work on a contingency basis on wrongful death claims must generally be convinced that a case is valuable enough to pursue before they will agree to accept it. Simply put, a lawyer does not want to put hundreds of hours into a case (and potentially advance tens of thousands of dollars in costs) if the attorney not believe the case has a reasonable chance of “paying off” in the end. There is another unfortunate reality as well: not all wrongs have a remedy. Sometimes, state legislatures enact laws that prohibit certain forms of damages or make it difficult or impossible to pursue certain cases. In circumstances like that, it can be important to consult with an attorney who is also familiar with federal law.
Federal law, unlike state law, can offer remedies that may substantially increase the value of a potential case against jail personnel or police. In some circumstances, federal law can entirely transform the “value” of a case from one with little or no perceived “value” to one with a great deal of potential. Attorneys who are unfamiliar with federal law may look only to their state law experience when evaluating a new case. These state laws may or may not be favorable and may or may not offer recourse to a grieving relative or to the estate of a loved one.
In Washington State, for example, most wrongful death cases are governed by a set of statutes known as the “wrongful death and survival statutes.” These statutes (which include RCW 4.20.0101, 4.20.0202, 4.20.0463 and 4.20.0604), are complex. They can also be extremely unfair. For one thing, Washington’s wrongful death and survival statutes can vastly limit or even exclude certain wrongful death cases altogether. The most glaring inequity in Washington’s wrongful death and survival statutes is the limitation on who can recover damages. In Washington State, only certain categories of beneficiaries can recover most forms of damages in wrongful death cases even when a person died wrongfully due to the fault of another. The statutes generally limit recovery to surviving spouses or children or (lacking a spouse or minor child), financially dependent parents or siblings. If there is no spouse, child, or financially dependent parent or sibling, damages for things such as pre-death pain and suffering of the decedent and the losses to loved ones might be totally unavailable. In Washington state, punitive damages are also disallowed in wrongful death cases.
However, in many cases good news can be found in the federal law. Federal law can offer certain remedies where state law offers only a closed door. A statute known as 42 U.S.C. § 1983 allows lawsuits against jails and police based on violations of constitutional rights. Where the violation of a person’s constitutional right causes his or her death, a civil rights lawsuit can be filed in many courts on behalf of the person’s estate as well as on behalf of parents and adult children without regard to “financial dependence.” Also, and critically, a federal court need not be limited by state statutes if the state statutes are inconsistent with the remedial and deterrence policies of 42 U.S.C. § 1983. Thus, for example, in the federal court system that covers Washington, Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada and Oregon, courts will potentially allow recovery for pre-death pain and suffering and possibly also other forms of monetary damages even if the law of the state does not permit such damages.
What does all this mean? It means finding the right lawyer to evaluate your potential case. An attorney who knows the ins and outs of federal law. Wrongful death cases against jails and police can be unique, and remedies may exist under federal law that inexperienced lawyers don’t recognize. Those remedies might just make all the difference.
Budge & Heipt is a law firm committed to obtaining justice for victims and their families who have suffered wrongful death or catastrophic injury due to police brutality and police misconduct in jail or prison.