In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3628

ISAAC RUSS and VERA LOVE,

Plaintiffs-Appellants,

v.

VAN B. WATTS, PHILLIP BANAZKIEWICZ,

CITY OF CHICAGO, and ROBERT HELSON,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division

No. 01 C 4098—Samuel Der-Yeghiayan, Judge.

____________

ARGUED MAY 3, 2005—DECIDED JULY 11, 2005

____________

Before FLAUM, KANNE, and SYKES, Circuit Judges.

FLAUM, Chief Judge. This case arises out of the tragic

and fatal shooting of Robert Russ, a 22-year-old student at

Northwestern University, by Chicago police officer Van B.

Watts. The issue before us is whether the United States

Constitution, through the federal civil rights statute 42

U.S.C. § 1983, provides Russ’s parents with a cause of action for the loss of the society and companionship of their

son. That question leads us to revisit our decision in Bell v.

City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), in which
2 No. 04-3628

1 Because this opinion overrules a prior decision by this Court, we

have circulated it among all judges of this Court in regular active

service pursuant to Circuit Rule 40(e). No judge favored rehearing

the case en banc. Judge Evans did not participate in the decision

of whether to hear the case en banc.

we held that a parent’s constitutional liberty interest in his

relationship with his adult son was violated when his son

was killed by police. After careful consideration, we conclude that Bell was wrongly decided and must be

overruled.1

 We hold that the federal Constitution does not

allow a parent to recover in such circumstances, and, on

this basis, we affirm the district court’s entry of summary

judgment in favor of defendants.

I. Background

Although the parties vigorously dispute the events that

led to the shooting of Russ, it is unnecessary to resolve

these factual disputes here. Instead, we construe all facts

and draw all reasonable inferences in the light most favorable to plaintiffs, the non-moving party. Eisencorp, Inc. v.

Rocky Mountain Radar, Inc., 398 F.3d 962, 965 (7th Cir.

2005).

On June 5, 1999, just a few weeks before his graduation,

Robert Russ was driving from the Northwestern campus in

Evanston, Illinois to his mother’s home in Calumet City,

Illinois. At approximately 1:00 A.M., Chicago police officer

Phillip Banazkiewicz attempted to pull over Russ’s car.

When Russ did not stop, a chase ensued, with three officers—Banazkiewicz, Watts, and Deputy Sheriff Robert

Helson of the Cook County Sheriff’s Department—pursuing

Russ in three separate police vehicles.

The chase began as Russ was heading southbound on

Lake Shore Drive. It continued onto the Stevenson
No. 04-3628 3

Expressway (Interstate 55) and then onto the southbound

lanes of the Dan Ryan Expressway (Interstate 90/94). The

chase finally ended after Russ’s car collided with several of

the police vehicles. Once stopped, the three police officers

exited their vehicles and surrounded Russ’s car with their

weapons drawn. Officer Watts positioned himself on the

driver’s side of Russ’s vehicle, and Officers Banazkiewicz

and Helson stood on the passenger’s side. Watts broke the

rear window on the driver’s side and fired a single shot,

striking and killing Russ.

Several months before he was killed, Russ had conceived

a child with Erin Lewis. Lewis gave birth to Russ’s son on

September 26, 1999, over four months after Russ’s death.

Russ’s paternity was confirmed through DNA testing after

the child’s birth.

A few days after Russ’s death, Russ’s mother, Vera Love,

acting as special administrator of the estate of Robert Russ,

filed an action against the City of Chicago in Cook County

Circuit Court under the Illinois Wrongful Death Act.

Unbeknownst to Love, on January 20, 2000, the probate

division of the circuit court declared Russ’s and Lewis’s

child, Robert Anthony Russ, Jr., sole heir to Russ’s estate,

and appointed Lewis as independent administrator of the

estate. Lewis then moved to substitute herself as plaintiff

in the wrongful death action. On February 1, 2000, the

court granted Lewis’s motion during a very brief interval in

which Love’s counsel, who had been prepared to argue

against the substitution, stepped out of the courtroom. The

court then entered an order substituting Lewis for Love as

the plaintiff in the wrongful death action. Love immediately

moved to vacate the order. Following full briefing and oral

argument, the circuit court denied Love’s motion to vacate

the order, leaving Lewis as the plaintiff in the wrongful

death action. The case went to trial in September 2003. On

October 17, 2003, a jury found Watts liable for Russ’s death

and awarded $9.6 million in damages to Russ’s estate.
4 No. 04-3628

Following the substitution of Lewis for Love in the state

court action, Russ’s parents and siblings filed separate

actions in federal district court against Officers Watts,

Banazkiewicz, and Helson, and the City of Chicago. Their

consolidated amended complaint alleged, among other

things, that defendants violated plaintiffs’ due process right

to associate with Russ. On defendant’s motion, Judge

Gettleman, the district judge to whom this case was

originally assigned, dismissed several of plaintiffs’ claims,

including all claims brought by Russ’s siblings. Plaintiffs

Vera Love and Isaac Russ also voluntarily dismissed their

claims against the City.

This case was reassigned to Judge Der-Yeghiayan in

August 2003. After the close of discovery, Russ’s parents

and the defendant officers cross-moved for summary

judgment on the two remaining claims: (i) violation of

plaintiffs’ right to associate with their son; and (ii) failure

to prevent the excessive use of force. The district court

granted summary judgment in favor of defendants, concluding that plaintiffs lacked standing to bring the action.

Plaintiffs now appeal.

II. Discussion

Summary judgment is appropriate if the evidence presented by the parties “show[s] that there is no genuine issue

of material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

review the district court’s grant of summary judgment de

novo. Eisencorp, 398 F.3d at 965.

We held in Bell that a father whose son was killed by a

Milwaukee police officer during a chase could recover under

§ 1983 for the violation of his substantive due process right

to associate with his son. 746 F.2d at 1243-44.

On February 2, 1958, Milwaukee police officers Thomas

Grady, Jr. and Louis Krause observed Daniel Bell, a 23-
No. 04-3628 5

year-old black man, driving a vehicle that was missing a

tail-light. Grady pulled over Bell’s car, and Bell jumped out

of the car and ran away. Id. at 1215. Grady and Krause

pursued Bell—first by car, and then on foot. Id. Grady was

carrying a loaded revolver. As he caught up with Bell,

Grady extended his hand to grab Bell. The gun discharged,

shooting Bell in the upper back. Id. The defendants claimed

that the shot was accidental; Bell’s family members, who

later sued, believed that Grady intentionally pulled the

trigger. Id. at 1215 n.2.

After determining that Bell was dead, Grady planted a

knife in Bell’s right hand. He and Krause then agreed on

the story they would tell about what had happened: that

Bell had jumped out of the car armed with a knife and

yelled: “You won’t catch me, I’m a holdup man!” Id. at 1216.

Other witnesses at the scene testified that they saw nothing

in Bell’s hands nor did they observe Bell swing or lunge at

Grady, as the officers claimed. Id. at 1221-22.

After an internal investigation, the district attorney and

medical examiner held an inquest into Bell’s death, which

returned a verdict that the killing was justifiable. Id. at

1222. Daniel Bell’s father, Dolphus Bell, died in 1962 without recovering for the death of his son. Id. at 1223.

Twenty years later, in 1978, Krause revealed that he and

Grady had lied about what had occurred during the Bell

shooting. Id. On August 29, 1979, Grady pleaded guilty to

homicide by reckless conduct and perjury. He was sentenced

to seven years of imprisonment and was paroled after three

years. Id.

In October 1979, Daniel Bell’s sister and eleven brothers

filed suit in federal court on behalf of themselves, the estate

of Daniel Bell, and the estate of Dolphus Bell. Id. at 1224.

Their complaint named as defendants Officer Grady, the

City of Milwaukee, former Police Chief Johnson, and former

Detective Sergeant Shaffer, and alleged various constitu-
6 No. 04-3628

tional violations arising out of the killing of Daniel Bell.

After a ten-week trial, the jury found, among other things,

that Grady violated Daniel Bell’s constitutional rights by

shooting and killing him, and awarded Daniel Bell’s estate

$100,000 in compensatory damages and $25,000 in punitive

damages. Id. at 1225. The jury awarded the estate of

Dolphus Bell $75,000 for the loss of society and companionship of Daniel Bell, plus funeral expenses, and awarded a

total of $100,000 to Daniel’s twelve siblings for the loss of

society and companionship. The jury also found that the

defendants had conspired to cover up the facts of the

shooting of Daniel Bell, depriving his family of due process

of law and racial equality, and awarded compensatory and

punitive damages. Id.

The defendants raised numerous issues on appeal, challenging the constitutional and statutory underpinnings of

the plaintiffs’ claims. We upheld the award to Dolphus

Bell’s estate for the loss of society and companionship, concluding that Daniel Bell’s father “possessed a constitutional

liberty interest in his relationship with his son.” Id. at 1243.

In reaching this conclusion, we relied on the Supreme Court

decisions “examining the parameters of the constitutional

protection afforded the parent-child relationship.” Id. (citing

Meyer v. Nebraska, 262 U.S. 390, 399 (1923); May v.

Anderson, 345 U.S. 528, 533 (1953); Skinner v. Oklahoma,

316 U.S. 535, 541 (1942); Prince v. Massachusetts, 321 U.S.

158, 166 (1944)). We also found support in the Supreme

Court decisions protecting the parental relationship from

state interference. We concluded:

The due process clause requires that severances in the

parent-child relationship caused by the state occur only

with rigorous protections for the individual liberty interests at stake. The state may not separate the parent

from the child, even temporarily, without according them

due process of law to protect their liberty interests.
No. 04-3628 7

Id. at 1243-44 (citing Lassiter v. Dep’t of Soc. Servs., 452

U.S. 18, 27 (1981); Little v. Streater, 452 U.S. 1, 13 (1981);

Smith v. Org. of Foster Families, 431 U.S. 816, 842, 846

(1977); Stanley v. Illinois, 405 U.S. 645, 651 (1972)).

We held that Daniel’s status as an adult living on his own

at the time he was killed did not preclude recovery, stating,

“we are unpersuaded that a constitutional line based solely

on the age of the child should be drawn.” Id. at 1245. We

explained that “[t]he Supreme Court’s decisions protect more

than the custody dimension of the parent-child relationship”

and that the protected relationship “includes the parent’s

‘interest in the companionship, care, custody, and management’ of the child.” Id. (quoting Stanley, 405 U.S. at 651).

We also noted that Daniel Bell was single, had no children,

and had not become part of another family unit. “[H]is

father’s family was his immediate family.” Id. Moreover, we

observed, the Wisconsin wrongful death statute permitted

recovery for loss of society and companionship regardless of

the age of the child at his death. Id. (citing Wis. Stat.

§ 895.04(4)). We therefore concluded that Daniel’s age and

separate residence were matters for the jury to consider

when determining damages, but were not a bar to recovery.

Id.

Our opinion declined to extend constitutional protection

to the relationship between Bell and his siblings, remarking

that were we to rule otherwise, “there could be no principled

way of limiting such a holding to the immediate family or

perhaps even to blood relationships.” Id. at 1247. We noted

that Supreme Court decisions examining the Fourteenth

Amendment liberty interests were based primarily on the

parents’ constitutional right to raise, associate with, and

make decisions affecting the family, even though they also

alluded to the importance of the integrity of the family unit

as a whole. Id. at 1245-46.

In support of their motion for summary judgment before

the district court, defendants argued that Russ’s parents
8 No. 04-3628

2 Because, as explained below, our holding rests on a different

basis, we need not decide whether the record supports the district

court’s conclusion. See Peele v. Country Mut. Ins. Co., 288 F.3d

319, 332 (7th Cir. 2002) (“An appellate court may affirm the

district court’s decision on any ground supported by the Record,

even if different from the grounds relied upon by the district

court.”).

lacked standing because Russ had formed a new family unit

with Lewis. Based on our statement in Bell that Daniel’s

“father’s family was his immediate family,” the district

court concluded that the crucial issue in determining

whether Russ’s parents had standing to recover for the loss

of society and companionship of their son was whether Russ

had become part of another family unit.

To answer this question, the district court relied on the

following facts admitted by plaintiffs: (i) at the time of his

death, Russ lived on campus at Northwestern; (ii) when

Erin Lewis learned she was pregnant with Russ’s child,

they discussed the pregnancy; and (iii) before his death,

Russ was making plans to care for his unborn son. In

addition, the district court relied on defendants’ allegation

that Russ and Lewis had discussed moving in together to

raise their son. Although plaintiffs disputed this fact, the

district court concluded that they had failed to provide any

citations in the record to support their denial.

The district court thus concluded: “It is clear from the

facts and the totality of the circumstances before us that

Russ was no longer living at home at the time of his death

and that he had formed a new family unit.” Russ v. Watts,

2004 WL 1459262, at *4 (N.D. Ill. June 18, 2004). Based on

this conclusion, the district court held that “Russ’ parents

have not shown that they have standing to proceed in this

suit” and granted summary judgment in favor of all remaining defendants. Id.2
No. 04-3628 9

Since Bell, several of our sister circuits have considered

whether the Constitution protects a parent’s relationship

with his adult children in the context of state action which

has the incidental effect of severing that relationship. No

other court of which we are aware has allowed a parent to

recover for the loss of his relationship with his child in

these circumstances. Most courts that have considered the

issue have expressly declined to find a violation of the

familial liberty interest where the state action at issue was

not aimed specifically at interfering with the relationship.

See Trujillo v. Bd. of County Comm’rs, 768 F.2d 1186, 1190

(10th Cir. 1985) (plaintiffs’ § 1983 action for the wrongful

death of their son and brother while he was in state custody

was properly dismissed because plaintiffs did not allege

that defendants intended to deprive them of their protected

relationship with the decedent); Valdivieso Ortiz v. Burgos,

807 F.2d 6, 9 (1st Cir. 1986) (declining to find violation of

substantive due process right based on government action

causing only an “incidental deprivation” of the relationship

between appellants and their adult relative when he was

allegedly beaten to death by guards while in prison);

McCurdy v. Dodd, 352 F.3d 820, 830 (3d Cir. 2003) (where

officer shot and killed individual after he refused demands

to hold up his hands, father could not recover for deprivation of his relationship with his son because the official

action was not “directed at the parent-child relationship”);

see also Claybrook v. Birchwell, 199 F.3d 350, 357-58 (6th

Cir. 2000) (adult children whose father was shot by police

officers could bring action under § 1983 only as administrators of father’s estate, not for any collateral injuries suffered

by themselves personally); Shaw v. Stroud, 13 F.3d 791,

804-05 (4th Cir. 1994) (declining to recognize wife and

minor child’s Fourteenth Amendment claim for loss of love

and support of their husband and father after he was shot

by police officer). But see Kelson v. City of Springfield, 767

F.2d 651, 655 (9th Cir. 1985) (parents had a constitutionally

protected liberty interest in the companionship and society
10 No. 04-3628

of their 14-year-old son and stated claim under § 1983

against school officials after their son committed suicide

while at school).

Courts have also been reluctant to extend the constitutional protections afforded the parent-child relationship to

cases involving adult children. See Valdivieso Ortiz, 807

F.2d at 8 (noting that decedent was over 21 at the time of

his death and was “not a minor child still within ‘the care,

custody, and management’ of his parents”); Butera v.

District of Columbia, 235 F.3d 637, 656 (D.C. Cir. 2001)

(holding that a “parent does not have a constitutionallyprotected liberty interest in the companionship of a child

who is past minority and independent”); McCurdy, 352 F.3d

at 829 (parental liberty interest as defined by the Supreme

Court “must cease to exist at the point at which a child

begins to assume that critical decisionmaking responsibility

for himself or herself”).

An analysis of the decisions of our sister circuits as well

as a reexamination of our own rationale in Bell convinces us

that Bell was wrongly decided. We do not make such a

declaration lightly. Although we must give considerable

weight to our prior decisions, we are not bound by them

absolutely and may overturn Circuit precedent for compelling reasons. In re Bentz Metal Prods. Co., 231 F.3d 1029,

1033 (7th Cir. 2000). Other circuits’ rejection of our position

provides one such compelling reason. As we have previously

explained:

When a number of other circuits reject a position that

we have taken, and no other circuit accepts it, the interest in avoiding unnecessary intercircuit conflicts

comes into play; and if we are asked to reexamine our

position, we can hardly refuse. That is not to say that

reexamination will cause us to relinquish the position. . . . But if upon conscientious reexamination we

are persuaded that the other circuits have the better of
No. 04-3628 11

the argument, we should abandon our position in order

to spare the Supreme Court extra work.

United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995)

(internal citations omitted).

That Bell stands alone causes us to reconsider its holding.

We now see that our conclusion that Dolphus Bell’s parental liberty interest was violated by the killing of his son was

not well grounded in the Constitution or Supreme Court

case law. The Supreme Court has recognized violations of

the due process liberty interest in the parent-child relationship only where the state took action specifically aimed at

interfering with that relationship. As the Supreme Court

has explained, “[h]istorically, the guarantee of due process

has been applied to deliberate decisions of government

officials to deprive a person of life, liberty, or property.”

Daniels v. Williams, 474 U.S. 327, 331 (1986) (collecting

cases).

The Supreme Court has “always been reluctant to expand

the concept of substantive due process because guideposts

for responsible decisionmaking in this unchartered area are

scarce and open-ended.” Washington v. Glucksberg, 521 U.S.

702, 720 (1997) (citations omitted). The Court has cautioned

that we must “exercise the utmost care” in extending

constitutional protection to an asserted right or liberty

interest because, in doing so, we “place the matter outside

the arena of public debate and legislative action.” Id. With

these principles in mind, we turn to the liberty interest

asserted by plaintiffs.

Although it is well established that parents have a

fundamental constitutional liberty interest in the “care,

custody, and control of their children,” Troxel v. Granville,

530 U.S. 57, 65 (2000), the appropriate framework for analyzing claims alleging a violation of this interest is less than

clear. Doe v. Heck, 327 F.3d 492, 519 (7th Cir. 2003);
12 No. 04-3628

Galdikas v. Fagan, 342 F.3d 684, 689-90 (7th Cir. 2003),

abrogated on other grounds by Spiegla v. Hull, 371 F.3d 928

(7th Cir. 2004). In Glucksberg, the Supreme Court articulated a two-part analysis for substantive due process

claims:

First, we have regularly observed that the Due Process

Clause specially protects those fundamental rights and

liberties which are, objectively, deeply rooted in this

Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor

justice would exist if they were sacrificed. Second, we

have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest.

521 U.S. at 720-21 (internal citations omitted). The Court

suggested that a strict scrutiny test applies, stating that

“the Fourteenth Amendment ‘forbids the government to infringe fundamental liberty interests at all, no matter what

process is provided, unless the infringement is narrowly

tailored to serve a compelling state interest.’ ” Id. at 721

(quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). The following term, in County of Sacramento v. Lewis, 523 U.S.

833 (1998), the Court suggested that the analytical framework differs depending on whether the government action

at issue is legislation or a specific act of a governmental

officer. Id. at 846. Observing that the Due Process Clause

was “intended to prevent government officials from abusing

their power, or employing it as an instrument of oppression,” the Court determined that the appropriate test with

respect to executive action is whether the executive has

abused its power in a way that “shocks the conscience.”

Id. at 846-47. The interrelationship between Glucksberg

and Lewis has been a source of considerable confusion.

See Galdikas, 342 F.3d at 690 n.3. Further complicating

matters, in Troxel, a plurality of the Court used a “combination of factors” test to hold that a state’s visitation statute,
No. 04-3628 13

as applied, unconstitutionally infringed on parents’ fundamental right to rear their children. 530 U.S. at 72-73; Heck,

327 F.3d at 519.

In deciding this case, we need not resolve the issue of

precisely what level of scrutiny should apply to allegations

of government interference with the parental liberty interest. 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. See McCurdy, 352 F.3d at 830; Valdivieso

Ortiz, 807 F.2d at 9.

Our finding of a constitutional violation in Bell was not

appropriately moored to Supreme Court precedents establishing the contours of the parental liberty interest. The

decisions on which we relied as “indicat[ing] that Daniel

Bell’s father possessed a constitutional liberty interest in

his relationship with his son” all dealt with the right to procreate and make decisions about rearing one’s minor

children without state inference. See Meyer, 262 U.S. at 400

(right of parents to engage teacher to instruct child in

foreign language); Skinner, 316 U.S. at 541 (state-imposed

sterilization “forever deprives” individual of a “basic liberty”); Prince, 321 U.S. at 165-66 (parental right to give

children religious training and encourage them in practice

of religious beliefs); May, 345 U.S. at 534 (mother’s right to

custody and “immediate possession” of her minor children).

These precedents certainly did not compel the result we

reached in Bell.

Similarly, all the cases we cited in Bell for the proposition

that the state may interfere with the parental relationship

only after providing sufficient procedural protection involved

state action that purposefully interfered with the family relationship. See Lassiter, 452 U.S. at 31 (addressing due process

requirements in parental termination proceedings); Little,

452 U.S. at 16-17 (due process obligates state to aid putative
14 No. 04-3628

father in obtaining blood test in paternity proceeding where

state is adversary); Smith, 431 U.S. at 854-56 (examining

constitutional adequacy of notice, pre-removal conference,

and post-removal hearing in administrative action to remove

child from custody of foster parents); Stanley, 405 U.S. at 649

(due process entitles unwed father to a hearing on his fitness

as a parent before removing minor children from his custody); see also Caban v. Mohammed, 441 U.S. 380, 394 (1979)

(state law allowing adoption of minor children born out of

wedlock without consent of father who has “manifested a

significant paternal interest in the child[ren]” violated equal

protection); Quilloin v. Walcott, 434 U.S. 246, 254-55 (1978)

(adoption of illegitimate minor child despite objection of natural father who had no ongoing relationship with child did

not violate equal protection or substantive due process).

Neither Bell nor the instant case involved intentional

action by the state to interfere with a familial relationship;

plaintiffs in this case have not alleged that Watts shot Russ

for the specific purpose of terminating Russ’s relationship

with his family. Affording plaintiffs a constitutional due

process right to recover against the state in these circumstances would create the risk of constitutionalizing all torts

against individuals who happen to have families. Upon

reconsideration, we now recognize that the finding of a

violation of the parental liberty interest in Bell is no longer

supportable. Furthermore, although we need not impose an

absolute rule that parents of adult children lack any liberty

interest in their relationship with their children, we agree

with our sister circuits that minor children’s need for the

guidance and support of their parents warrants “sharply

different constitutional treatment.” Butera, 235 F.3d at 656;

McCurdy, 352 F.3d at 829.

We therefore overrule our decision in Bell insofar as it

recognized a constitutional right to recover for the loss of

the companionship of an adult child when that relationship

is terminated as an incidental result of state action. Having
No. 04-3628 15

concluded that Russ’s parents have no constitutional right

to recover for the loss of society and companionship of Russ

in these circumstances, we need not address the other

issues raised by the parties.

III. Conclusion

For the foregoing reasons, we affirm the entry of summary

judgment in favor of defendants.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-11-05