FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 August 16, 2005 

 THOMAS K. KAHN 

 CLERK

Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit, sitting *

by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-12367

________________________

D. C. Docket No. 03-00010-CV-SPM

PATRICIA ROBERTSON,

individually and in her capacity

as personal representative of the estate of Corey Rice, 

 Plaintiff-Appellant,

versus

JIMMY HECKSEL,

individually and as an agent of the City of Gainesville, 

CITY OF GAINESVILLE, 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(August 16, 2005)

Before BLACK, WILSON and STAPLETON , Circuit Judges. *
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BLACK, Circuit Judge:

Appellant Patricia Robertson appeals the district court’s dismissal of her

claims against Appellees Jimmy Hecksel and the City of Gainesville. Corey Rice,

Robertson’s son, was killed by Officer Hecksel during a traffic stop. As a result of

his death, Robertson argues she suffered a deprivation of her constitutionallyprotected liberty interest in a continued relationship with her adult son. Whether a

parent has such a right vis-à-vis her adult child is a question of first impression for

this Court. We hold that the Fourteenth Amendment’s substantive due process

protections do not extend to the relationship between a mother and her adult son

and, therefore, affirm the district court’s dismissal of Robertson’s claims.

I. BACKGROUND

The district court succinctly summarized the facts:

On January 30, 2001, Decedent, Corey Rice (“Decedent Rice”) was

pulled over in a traffic stop by City of Gainesville police officer

Jimmy Hecksel (“Hecksel”). Hecksel did not use his police sirens to

pull over Decedent Rice, nor did he use any lights to illuminate

Decedent Rice’s car. When Hecksel approached Decedent Rice’s car,

he brandished his gun and struck the window with it. Then, he

moved in front of Decedent Rice’s automobile and pointed the gun at

Decedent Rice. Decedent Rice started to drive away in the opposite

direction, and Hecksel fired his gun seven times, hitting Decedent

Rice with four bullets. Decedent Rice was pronounced dead a few

hours later.
Vicki Lynn McDonald was the personal representative of the Decedent’s estate at the 1

time of the settlement. Decedent’s mother, Patricia Robertson, has since become the personal

representative. 

3

Robertson v. Hecksel, Case No. 1:03CV10-SPM at 1–2 (N.D. Fla. 2003). Rice

was 30 years old at the time of his death. 

The 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].” The settlement also stated: “[T]he parties acknowledge and agree

1

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, Patricia Robertson.” 

On January 27, 2003, Robertson, individually and in her capacity as

personal representative, filed a complaint in the Northern District of Florida

against Officer Hecksel and the City of Gainesville (Defendants). In her

individual capacity, she alleged, pursuant to 42 U.S.C. § 1983, a deprivation of her

Fourteenth Amendment right to a relationship with her adult son and sought

damages for loss of support, loss of companionship, and past and future mental
This appeal does not involve Robertson’s claims brought as personal representative of 2

the decedent’s estate.

4

pain and suffering. The Defendants moved to dismiss the claim pursuant to Fed.

2

R. Civ. P. 12(b)(6), and the district court granted their motion. Robertson appeals.

II. STANDARD OF REVIEW

We review a district court’s dismissal for failure to state a claim de novo,

“accepting the allegations in the complaint as true and construing them in the light

most favorable to the plaintiff.” Swann v. S. Health Partners, Inc., 388 F.3d 834,

836 (11th Cir. 2004) (citation omitted).

III. DISCUSSION

A. Constitutional Right of Companionship

“Section 1983 is no source of substantive federal rights. Instead, to state a

section 1983 claim, a plaintiff must point to a violation of a specific federal right.”

Whiting v. Traylor, 85 F.3d 581, 583 (11th Cir. 1996) (citing Albright v. Oliver,

510 U.S. 266, 271, 114 S. Ct. 807, 811 (1994) (plurality opinion)). “[I]n § 1983

cases grounded on alleged parental liberty interests, we are venturing into the

murky area of unenumerated constitutional rights.” McCurdy v. Dodd, 352 F.3d

820, 825 (3d Cir. 2003) (citation omitted). When this happens, our first task is to

determine “whether the plaintiff has alleged the deprivation of an actual
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constitutional right at all.” Id. at 826 (citations and internal quotations omitted). 

We should tread lightly because “[b]y extending constitutional protection to an

asserted right or liberty interest, we, to a great extent, place the matter outside the

arena of public debate and legislative action. We must therefore ‘exercise the

utmost care whenever we are asked to break new ground in this field,’ lest the

liberty protected by the Due Process Clause be subtly transformed into the policy

preferences of the Members of this Court.” Washington v. Glucksberg, 521 U.S.

702, 720, 117 S. Ct. 2258, 2267–68 (1997) (citations omitted).

A parent’s due process right in the care, custody, and control of her children

is “perhaps the oldest of the fundamental liberty interests recognized by [the

Supreme] Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060

(2000) (plurality opinion). While this right provides parents with both substantive

and procedural protections, the Supreme Court cases “extending liberty interests

of parents under the Due Process Clause focus on relationships with minor

children.” McCurdy, 352 F.3d at 827; see also Isaac J.K. Adams, Note, Growing

Pains: The Scope of Substantive Due Process Rights of Parents of Adult Children,

57 Vand. L. Rev. 1883, 1902 (2004) (reviewing Supreme Court caselaw and

finding no explicit guidance on how to decide the question of whether parents

have a right to companionship with their adult children). 
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The substantive component of a parent’s right to care, custody, and control

of her minor children has been relied upon to strike down several state statutes. 

The Supreme Court held a Nebraska law, which prohibited the teaching of any

foreign languages to students until after the eighth grade, deprived parents of their

right to “establish a home and bring up children . . . [which has been] long

recognized at common law as essential to the orderly pursuit of happiness by free

men.” Meyer v. Nebraska, 262 U.S. 390, 396–99, 43 S. Ct. 625, 626 (1923)

(citations omitted). Similarly, an Oregon law requiring parents to send their

children to public schools was found unconstitutional by the Court because it

“unreasonably interfere[d] with the liberty of parents and guardians to direct the

upbringing and education of children under their control.” Pierce v. Soc’y of

Sisters, 268 U.S. 510, 534–35, 45 S. Ct. 571, 573 (1925); see also Wisconsin v.

Yoder, 406 U.S. 205, 232, 92 S. Ct. 1526, 1541 (1972) (holding application of

Wisconsin’s compulsory education law to Amish children unconstitutional under

the First Amendment, in part, because “[t]he history and culture of Western

civilization reflect a strong tradition of parental concern for the nurture and

upbringing of their children”); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.

Ct. 438, 442 (1944) (recognizing that “the custody, care and nurture of the child
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reside first in the parents, whose primary function and freedom include preparation

for obligations the state can neither supply nor hinder”) (citation omitted).

A parent’s right to care, custody, and control of minor children has also

been the source of added procedural protections. For example, the Supreme Court

struck down an Illinois statute that made children of unwed fathers wards of the

state upon the death of their mother. Stanley v. Illinois, 405 U.S. 645, 658–59 92

S. Ct. 1212, 1216–17 (1972). There, the biological father’s interest “undeniably

warrant[ed] deference and, absent a powerful countervailing interest, protection.” 

Id. at 651, 92 S. Ct. at 1212. In Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388

(1982), the Court held a state is required to show by at least clear and convincing

evidence that parental rights should be terminated because, among other reasons,

“[t]he fundamental liberty interest of natural parents in the care, custody, and

management of their child does not evaporate simply because they have not been

model parents . . . .” Id. at 753, 102 S. Ct. at 1394–95; see also Lassiter v. Dep’t

of Soc. Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2160 (1981) (although refusing to

hold the Due Process Clause requires the state to appoint counsel for parents at a

termination hearing, noting that “[a] parent’s interest in the accuracy and injustice

of the decision to terminate his or her parental status is . . . a commanding one”). 
The Tenth Circuit has recognized a parent’s constitutionally protected liberty interest 3

with her adult son, but did so under the First Amendment’s right of intimate association, which

contains “an intrinsic element of personal liberty.” Trujillo v. Bd. of County Comm’rs, 768 F.2d

1186, 1188–89 (10th Cir. 1985). Although Trujillo relied primarily on Roberts v. United States

Jaycees, 468 U.S. 609, 104 S. Ct. 3244 (1984), a First Amendment case, the Roberts Court, in

discussing the personal liberty aspect of the First Amendment, cited to, inter alia, Meyer, Pierce,

and Yoder. See Roberts, 468 U.S. at 618–19, 104 S. Ct. at 3250. However, the Trujillo court

required the plaintiffs to show the state actor had an “intent to interfere with a particular

relationship protected by the freedom of intimate association.” Trujillo, 768 F.2d at 1190. 

8

It is against this backdrop that we analyze Robertson’s claim. She would

have us hold that the parental rights already recognized by the Supreme Court

include a right to companionship with an adult child. Robertson’s claim could

potentially involve two very separate questions: one, whether the asserted right

exists; and two, if the asserted right does exist, under what conditions does a

deprivation occur, i.e., are we looking for negligent behavior, an intentional act,

etc. One must have a right before it can be deprived; therefore, the state-of-mind

of the accused party is irrelevant to the initial inquiry.

There appear to be three possible resolutions of Robertson’s claim: (1) she

has a right and can recover for incidental deprivations; (2) she has a right, but

cannot recover for incidental deprivations; and (3) she does not have a right. 

The First, Third, Seventh, and District of Columbia Circuits have rejected

claims like Robertson’s, where the alleged deprivation was incidental to the

3

defendant’s actions. Russ v. Watts, – F.3d –, –, 2005 WL 1618831 at *7 (7th Cir.
The Ninth Circuit appears to have recognized the asserted right where the state action 4

had the incidental affect of ending the parent/adult child relationship. In Kelson v. City of

Springfield, 767 F.2d 651 (9th Cir. 1985), 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.” Id. at 655. Unlike Kelson, Strandberg v. City of Helena, 791 F.2d 744 (9th Cir.

1986), involved the relationship between a parent and an adult child. Id. at 748 n.1. Yet, it does

not appear that Strandberg actually extended the holding of Kelson to include adult children. In

Strandberg, the court’s action regarding the parents’ claim of a due process violation was limited

to correcting the parents’ incorrect belief that the district court had dismissed their claim. Id. at

748 & n.1. Thus, the Strandberg court did not address whether the asserted right existed. 

Nonetheless, we recognize subsequent Ninth Circuit decisions have interpreted their caselaw as

allowing a parent to bring a companionship claim in the context of an adult child where the

deprivation was incidental to the state action. 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); Smith v. City of Fontana, 818 F.2d 1411, 1419 (9th Cir. 1987) overruled on other

grounds by Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999).

9

2005); McCurdy, 352 F.3d at 822; Butera v. District of Columbia, 235 F.3d 637,

656 (D.C. Cir. 2001); Valdivieso Ortiz v. Burgos, 807 F.2d 6, 10 (1st Cir. 1986).4

Less clear is whether those cases recognized a right, assumed a right, or did not

recognize a right. If a right has been recognized or assumed, then the incidental

nature of the injury may be important, but it will not be important if there is no

right. 

Ortiz began by noting the critical difference between the asserted right and

the Supreme Court cases recognizing a parent’s substantive due process right to

care, custody, and control her child:

[Those] cases do not hold that family relationships are, in the abstract,

protected against all state encroachments, direct and indirect, but only

that the state may not interfere with an individual’s right to choose

how to conduct his or her family affairs. The emphasis in these cases
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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.

Ortiz, 807 F.2d at 8. The First Circuit also distinguished the procedural due

process cases, such as Stanley and Santosky, by explaining that “[t]hose cases have

held only that when the state seeks to change or affect the relationship of parent

and child in furtherance of a legitimate state interest” is a “[F]ourteenth

[A]mendment liberty interest . . . implicated and the state therefore must adhere to

rigorous procedural safeguards.” Id. The preceding language seems to indicate a

finding of no right, but the court continued: “[W]e think it significant that the

Supreme Court has protected the parent only when the government directly acts to

sever or otherwise affect his or her 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.” Id. 

The Third Circuit’s ultimate conclusion in McCurdy that “the fundamental

guarantees of the Due Process Clause do not extend to a parent’s interest in the

companionship of his independent adult child,” McCurdy, 352 F.3d at 830,

appears to indicate no right exists. But the McCurdy court also discussed the
Although we hold the asserted right does not exist, even if we agreed with Robertson, we 5

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.” Daniels v. Williams,

474 U.S. 327, 328, 106 S. Ct. 662, 663 (1986). Robertson has alleged that Officer Hecksel’s

actions were “willful, malicious and engaged in with callous and reckless indifference to

DECEDENT RICE’s federally protected rights of life, liberty and the pursuit of happiness under

the Fourth and Fourteenth Amendment of the U.S. Constitution” and as a result of his actions she

11

incidental nature of the injury: “It would, therefore, stretch the concept of due

process too far if we were to recognize a constitutional violation based on official

actions that were not directed at the parent-child relationship.” Id.; see also Russ,

– F.3d –, –, 2005 WL 1618831 at *6 (“Under any standard, finding a constitutional

violation based on official actions that were not directed at the parent-child

relationship would stretch the concept of due process far beyond the guiding

principles set forth by the Supreme Court.”) (citations omitted). 

In Butera, the District of Columbia Circuit specifically noted that it had no

reason to consider how the injury occurred: 

Because we hold that a parent-child relationship between two

independent adults does not invoke constitutional ‘companionship’

interests, we do not reach the District of Columbia’s contention that

Terry Butera’s claim fails because the District of Columbia’s actions

were not intentionally directed or aimed at her relationship with her

son.

Butera, 235 F.3d at 656 n.23 (citation omitted). 

Like the District of Columbia Circuit, we hold Robertson has not asserted a

cognizable due process interest. Robertson does not allege the state has interfered 5
was deprived of her constitutionally protected rights. Nowhere, however, has Robertson alleged

Officer Hecksel’s actions constituted more than negligence concerning her rights—mere

causation is not enough to satisfy Daniels.

As the plaintiff has not contended the decedent (who was 30 years old at the time of 6

death) was a minor, we do not need to decide when a child crosses the threshold from minor to

adult. 

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

7

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

the close of business on September 30, 1981.

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with how she raises her minor child, as was the case in Meyer and Pierce, nor does

she claim the state action targeted her custody of her minor child, as in Santosky

and Stanley. Therefore, her claim finds no support in Supreme Court precedent,

and we decline to further expand the substantive protections of the Due Process

Clause.6

B. Brazier/Carringer

Robertson urges us to resolve her claim using a different analytical

framework. She 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). 

7

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 Brazier and

Carringer are not relevant to Robertson’s claim. 

The Supreme Court has recognized that “inevitably existing federal law will

not cover every issue that may arise in the context of a federal civil rights action.” 
13

Moor v. County of Alameda, 411 U.S. 693, 702, 93 S. Ct. 1785, 1792 (1973)

(footnote omitted). This is where 42 U.S.C. § 1988 comes into play. Section 1988

provides in part:

The jurisdiction in civil and criminal matters conferred on the district

courts by [the Civil Rights Acts] for the protection of all persons in

the United States in their civil rights, and for their vindication, shall

be exercised and enforced in conformity with the laws of the United

States, so far as such laws are suitable to carry the same into effect;

but in all cases where they are not adapted to the object, or are

deficient in the provisions necessary to furnish suitable remedies . . .

the common law, as modified and changed by the constitution and

statutes of the State wherein the court having jurisdiction of such civil

. . . cause is held, so far as the same is not inconsistent with the

Constitution and laws of the United States, shall be extended to and

govern the said courts in the trial and disposition of the cause . . . .

42 U.S.C. § 1988(a).

“[A]s is plain on the face of the statute, [§ 1988] is intended to complement

the various acts which do create federal causes of action for the violation of

federal civil rights.” Moor, 411 U.S. at 702, 93 S. Ct. at 1792 (footnote omitted). 

If federal law is “not adapted to the object” or is “deficient,” federal courts must

look to state law to fill the gaps. The Supreme Court has explained:

The importation of the policies and purposes of the States on matters

of civil rights is not the primary office of the borrowing provision in

§ 1988; rather, the statute is designed to assure that neutral rules of

decision will be available to enforce the civil rights actions, among

them § 1983. Congress surely did not intend to assign to state courts

and legislatures a conclusive role in the formative function of
Brazier’s suit was brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1986. Brazier, 293 8

F.2d at 402–03. She sought damages for decedent’s injuries and illegal arrest, the death of the

14

defining and characterizing the essential elements of a federal cause

of action.

Wilson v. Garcia, 471 U.S. 261, 269, 105 S. Ct. 1938, 1943 (1985), superceded by

statute on other grounds as recognized in Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369, 377–81, 124 S. Ct. 1836, 1842–45 (2004). 

Brazier and Carringer were both instances where state law was used to fill

gaps in federal law through § 1988’s borrowing provision. Robertson would have

us also look to state law through § 1988’s borrowing provision to decide her case. 

Her argument misses the dispositive difference between Brazier and Carringer

and our case. In those cases, the plaintiffs were seeking vindication of the

decedent’s rights under § 1983. Here, Robertson alleges a violation of her rights. 

Regardless of whose rights are being asserted, before § 1983 and § 1988 can come

into play, the plaintiff must still establish the existence of a federal right. Because

Robertson has failed to establish a federal right, we never reach § 1983, let alone

§ 1988 and state law. 

In Brazier, the plaintiff alleged her husband was beaten to death by Georgia

police officers, in violation of his “rights and privileges of being secure in his

person, of due process and equal protection of the law.” 293 F.2d at 402. The 8
decedent, and for aggravation, suffering, and mental anguish caused to the decedent. Id. at 402

n.1. 

15

question the former Fifth Circuit needed to answer was “whether death resulting

from violation of the Civil Rights Statutes give[s] rise to a federally enforceable

claim for damages sustained by the victim during his lifetime, by his survivors, or

both.” Id. 

The court spent the bulk of its opinion addressing the incorporation of

Georgia’s survival statute, which allowed the decedent’s claims to survive his

death, but it also incorporated Georgia’s wrongful death statute, a “separate and

distinct cause[] of action” allowing certain survivors to recover the full value of

the life of the decedent, id. at 407 n.15, because “regard has to be taken of both

classes of victims.” Id. at 409. The incorporation of Georgia’s wrongful death

statute was not done in response to a violation of the wife’s rights: it was done to

remedy the violation of the decedent’s rights. See id. at 408–09. 

In Carringer, the plaintiff’s son was shot and killed by the son’s wife, a

police officer, with her service revolver. The decedent’s mother brought “a § 1983

claim for the wrongful death of the decedent whose constitutional rights were

violated.” 331 F.3d at 848. There, we followed Brazier and incorporated

Georgia’s wrongful death statute into federal law, holding that “Carringer, as a
Robertson’s belief that Brazier and Carringer were controlling may have been caused in 9

part by dicta in Carringer. Footnote nine of Carringer begins by noting that the “right to

wrongful death recovery under § 1983 has generated considerable debate amongst our sister

16

parent, has standing to assert a § 1983 claim for the wrongful death of her son in

violation of his constitutional rights.” Id. at 850 (emphasis added and footnote

omitted). 

The plaintiffs in Brazier and Carringer passed the first hurdle of bringing a

§ 1983 suit—identifying a federal right—by relying on the rights of the decedent. 

Cf. Steven H. Steinglass, Wrongful Death Actions and Section 1983, 60 Ind. L.J.

559, 621 (1985) (“Wrongful death statutes permit survivors to sue when a killing

violated their decedent’s rights . . . . [B]oth survival and wrongful death actions

assert the identical legal rights of the decedent.”). In essence, they were bringing

wrongful death suits under federal law. Although the survivors’ claims were

separate from the claims of the decedents’ estates, the Brazier and Carringer

plaintiffs’ claims necessarily required a finding that the decedents’ deaths were

wrongful in some way. Conversely, whether 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. For that reason, Brazier

and Carringer are not controlling. 

9
circuits” and then compares the Brazier analysis with the analysis of the circuits that “allow a

claimant to argue that he had a relationship with the deceased that was constitutionally protected

and that the homicide of the decedent destroyed that relationship and, therefore, violated the

claimant’s own protected constitutional rights.” Carringer, 331 F.3d at 850 n.9 (citations

omitted). This comparison insinuates that the two approaches are in response to the same

question, but, for reasons already discussed, they are not.

17

IV. CONCLUSION

Our holding that a parent does not have a constitutional right of

companionship with an adult child is in no way meant to minimize the loss of an

adult child as compared to a minor child. The loss of a child at any age, under any 

circumstances, is one of the most difficult experiences a parent can endure. While

the parent/adult child relationship is an important one, the Constitution does not

protect against all encroachments by the state onto the interests of individuals. 

Instead, it is the province of the Florida legislature to decide when a parent can

recover for the loss of an adult child. We will not circumvent its authority through

an unsupported reading of the Fourteenth Amendment.

AFFIRMED.