SC95148 John Crocker v. Richard Pleasant

SUPREME COURT CASES

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State: Florida

Court: Supreme Court

Docket No: sc95148

Case Date: 02/01/2001

Plaintiff: SC95148 John Crocker

Defendant: Richard Pleasant

Preview:Supreme Court of Florida
No. SC95148
JOHN CROCKER, et al.,
Petitioners,
vs.
RICHARD PLEASANT, etc., et al.,
Respondents.
[February 1, 2001]
PARIENTE, J.
We have for review a decision of the Fourth District Court of Appeal, which
certified the following question certified to be of great public importance:
DOES [STATE V.] POWELL [497 So. 2d 1188 (Fla. 1986)]
PRECLUDE ALL SECTION 1983 CLAIMS GROUNDED ON
INTERFERENCE WITH AN INTEREST IN A DEAD BODY?
Crocker v. Pleasant, 727 So. 2d 1087, 1089 (Fla. 4th DCA 1999).   We have
jurisdiction.   See art. V, § 3(b)(4), Fla. Const.   For the reasons explained in this
opinion, we answer the certified question in the negative.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The decedent in this case was the adult son of the petitioners, John Crocker
and Betty Crocker (the "Crockers"), who brought an action under 42 U.S.C.
§ 1983 (1994), against Palm Beach County ("County") and the City of West Palm
Beach ("City").1   See Crocker, 727 So. 2d at 1087-88.   The uncontested facts are
set forth in the Fourth District's opinion:
Appellants' twenty-three year old son was found dead in West
Palm Beach without identification.   Three days later, the West Palm
Beach police officer assigned to investigate obtained the name and
address of the plaintiffs in Miami Shores, and teletyped Miami Shores'
police department requesting the department to have the plaintiffs call
the officer about their son.   The officer did not advise Miami Shores
that this was a death notification.
The Miami Shores police notified the officer that no one was
home but that they would try again.   The officer then sent a second
teletype to Miami Shores, advising that "no extra effort was necessary
and that a note to contact him would suffice."   The officer took no
other steps to contact the plaintiffs, closed the file, and authorized the
release of their son's body to Palm Beach County for burial.   Prior to
the burial, which occurred about two months after the death, the
parents had filed a missing person's report, had continuously searched
for their son, and had flyers distributed with his picture on them.   The
missing person's report was available to the West Palm Beach police.
1The scope of the appeal in this Court is limited solely to the Crockers' claims against the City
and County under section 1983.  In addition to these section 1983 claims, however, the Crockers also
brought a negligence claim against the City and a tort action (alleging tortious interference with rights
and outrageous conduct) against the individual police officer.  At oral argument, counsel for the
Crockers advised that the negligence claim was still pending against the City and that no final judgment
had been entered against the individual officer.
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Six months later plaintiffs first learned through their own efforts of
their son's death.
Crocker, 727 So. 2d at 1088.
In their action against the City and the County, the Crockers alleged that they
had a "constitutionally protected property interest in the body" of their son and "a
right to procedural due process under the Fourteenth Amendment of the United
States Constitution prior to the deprivation of their property interest." Accordingly,
the Crockers' allegations against the County focused on the County's failure to use
reasonable efforts to notify them of their son's death before his burial. 2   The
Crockers' allegations against the City focused not only on the police officer's failure
to notify the Crockers of their son's death before his burial, but also on the City's
2More specifically, the Plaintiffs' allegations against the County were as follows:
30.  The Plaintiffs as the next of kin of the deceased Jay Crocker had a
constitutionally protected property interest in the body of Jay Crocker and a right to
procedural due process under the Fourteenth Amendment of the United States
Constitution prior to the deprivation of their property interest.
31.  The Defendant County has a statutory duty to use reasonable efforts to
notify the next of kin of the deceased Jay Crocker prior to burial.  The Defendant
County['s] failure to use reasonable efforts to notify the Plaintiffs prior to the burial of
their son, violated the procedural due process clause of the Fourteenth Amendment of
the United States Constitution and Section 245.07 of the Florida Statutes.
32.  The Defendant County had a custom and/or practice of not attempting
notifying the next of kin when once they receive[d] an unclaimed body for burial.
33.  As a result of the Defendant County's violation of the procedural due
process clause of the Fourteenth Amendment of the United States Constitution, the
Plaintiffs have suffered emotional anguish, emotional distress, and additional costs for
reburial.
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failure to adequately supervise, discipline, and retrain the officer, despite the City's
awareness of the officer's "propensity to violate the operating procedures which
leads to the violation of the rights of others."3   The Crockers further alleged that as
a result of the failure to notify them of their son's death, they were deprived of the
3
The allegations against the City were, in pertinent part, as follows:
36.  The Plaintiffs as the next of kin of the deceased Jay Crocker had a
constitutionally protected property interest in the body of Jay Crocker and a right to
procedural due process under the Fourteenth Amendment of the United States
Constitution prior to the deprivation of their property interest.
37.  On December 5, 1995 continuing though June 1, 1996, Pleasant, acting
under color of law, as police Officer of the City of West Palm Beach, deprived the
Plaintiffs of their procedural due process rights under the Fourteenth Amendment of the
United States Constitution by failing to notify them of the death of their son, Jay
Crocker and thereby depriving them of the right to process [sic] the body of Jay
Crocker for burial or disposition in any other lawful manner for a period of six months.
38.  The Defendant City was aware that Defendant Pleasant failed to follow
standard operating procedures and that him [sic] actions had resulted in the violation of
the rights of others in the past. . .
41.  The Defendant City's system of review has also failed to subject Defendant
Pleasant to adequate discipline, closer supervision or retraining and therefore is a direct
and proximate cause of the damages suffered by the Plaintiffs.
42.  As a result of the Defendant City's actions and insensitivity for the need to
supervise, retrain and adequately discipline its police officers[,] the Plaintiffs have
suffered damages including emotional anguish, emotional distress and costs related to
the burial of their son, Jay Crocker.
43.  The failure of Defendant Pleasant to notify the Plaintiffs of the death of their
son and thereby deprive their [sic] of their right to possess the body of Jay Crocker for
burial or disposition in any other lawful manner was a direct and proximate result of the
Defendant, City of West Palm Beach's deliberate indifference to, permission and
toleration of, lack of adequate training, discipline, supervision and conduct of police
officers of the West Palm Beach Police Department and was violative of the procedural
due process clause of the Fourteenth Amendment to the United States Constitution, for
which Title 42 U.S.C. Section 1983 provides a remedy.
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right to possess the body for "burial or disposition in any other lawful manner for a
period of six months."
The City and County each filed a motion for judgment on the pleadings and
the trial court granted both motions.4   In granting these motions, the trial court
relied both on State v. Powell, 497 So. 2d 1188 (Fla. 1986), in which this Court
upheld as constitutional a state statute that authorized removal of corneal tissue
from a dead body without permission of relatives, and on Gonzalez v. Metropolitan
Dade County Public Health Trust, 651 So. 2d 673 (1995), in which this Court
determined that either physical injury or willful or wanton misconduct is required to
support a cause of action for mental anguish based on negligent handling of a
corpse.
On appeal, the Fourth District affirmed the trial court's order based solely on
this Court's decision in Powell.   See Crocker, 727 So. 2d at 1089.   The Fourth
District interpreted Powell as having decided that "the right of next of kin to
possess the body for burial was not a 'protectable liberty or property interest in the
remains' of the decedent."   Id. at 1088 (quoting Powell, 497 So. 2d at 1193).
4Because this case is before us after the trial court granted a motion for judgment on the
pleadings, our inquiry is a narrow one and we "must accept as true all well-pleaded allegations of the
non-moving party.  Judgment on the pleadings can be granted only if, on the facts as admitted for
purposes of the motion, the moving party is clearly entitled to judgment."  Windle v. W.W. Windle Co.,
731 So. 2d 36, 37 (Fla. 4th DCA 1999).
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Nonetheless, the Fourth District expressed concern about the Crockers' inability to
bring a section 1983 action because the court regarded the misconduct alleged in
the present case to be "much more egregious than the claim made in Powell."   Id. at
1089.   Specifically, the Fourth District stated that "the allegations in the present
case are that the West Palm Beach police officer showed such a callous
indifference to the rights of the plaintiffs, whose names and address in Miami were
known to him, as to constitute outrageous conduct and tortious interference with
the right of burial."   Id.   Accordingly, the court affirmed the trial court's judgment,
but stated that this Court "should determine whether Powell is limited to corneal
removal or precludes section 1983 actions where the interference with burial is
more egregious."   Id.   The Fourth District thus certified the question of whether
Powell precludes all section 1983 claims grounded on interference with an interest
in a dead body.
LAW AND ANALYSIS
1.   Actions Under 42 U.S.C. Section 1983
Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
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Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (Supp. 1998) (emphasis added).   "The purpose of § 1983 is to
deter state actors from using the badge of their authority to deprive individuals of
their federally guaranteed rights and to provide relief to victims if such deterrence
fails."   Wyatt v. Cole, 504 U.S. 158, 161 (1992).   Thus, a person alleging a
deprivation of his or her Fourteenth Amendment5 rights may bring a cause of action
against the State or any local governmental entity under section 1983.6   See 42
U.S.C. § 1983.
Broadly speaking, claims against the State under section 1983 have been
grouped into three general categories.   See Zinermon v. Burch, 494 U.S. 113, 125
(1990).   First, a person may bring an action under section 1983 for a state official's
deprivation of that individual's fundamental rights guaranteed by the Bill of Rights,
such as freedom of speech or freedom from unreasonable searches and seizures.
See id.   Second, a person may bring a section 1983 action for a violation of
substantive due process that amounts to "arbitrary, wrongful government actions
5The Fourteenth Amendment of the United States Constitution provides that "[n]o State shall . .
. deprive any person of life, liberty, or property, without due process of law."  U.S. Const. amend.
XIV, § 1.
6A claim under section 1983 may be brought in state court.  See Maine v. Thiboutot, 448 U.S.
1, 10-11 (1980).
-7-

'regardless of the fairness of the procedures used to implement them.'"   Id.
(quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).   In this category, courts
have consistently required that in order to constitute a violation of substantive due
process, the right must be "implicit in the concept of ordered liberty."   McKinney
v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994).   A violation of substantive due
process can also arise where the governmental action "shocks the conscience."
Rochin v. California, 342 U.S. 165, 172 (1952).   "As a general matter, the [U.S.
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."   Collins v. City of Harker Heights, 503 U.S. 115,
125 (1992).
Lastly, and important for our analysis in this case, a person also may bring a
section 1983 action for the deprivation of procedural due process under the
Fourteenth Amendment of the United States Constitution.   See Zinermon, 494 U.S.
at 125.   To maintain a claim under this third type of section 1983 action, the
individual bringing an action for deprivation of procedural due process must first
establish the existence of a constitutionally protected property or liberty interest that
has been interfered with by the State.   See Kentucky Dep't. of Corr. v. Thompson,
490 U.S. 454, 460 (1989).   The United States Supreme Court has held that in order
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to have a property interest, "a person clearly must have more than an abstract need
or desire for it. . .                                                                     . He must, instead, have a legitimate claim of entitlement to it."
Board of Regents v. Roth, 408 U.S. 564, 577 (1972).   In addition, several federal
courts have referred to the interest of the next of kin in their loved one's remains as
a state "quasi-property right."   See, e.g., Arnaud v. Odom, 870 F.2d 304, 308 (5th
Cir. 1989) (applying Louisiana law); Fuller v. Marx, 724 F.2d 717, 719 (8th Cir.
1984) (applying Arkansas law).   Accordingly, the threshold question presented in
this case is whether the Crockers have a constitutionally protected property interest,
"quasi-property right," or "legitimate claim of entitlement" to possess their son's
remains for burial so as to give rise to procedural due process protection.
In order to determine whether a property right, quasi-property right or
legitimate claim of entitlement protectable under the Constitution exists, we must
look to applicable state law.   See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 538 (1985).   This is because
[p]roperty interests . . . are not created by the Constitution.   Rather
they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law--rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.
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Roth, 408 U.S. at 577.7   "Although the underlying substantive interest is created by
'an independent source such as state law,' federal constitutional law determines
whether that interest rises to the level of a 'legitimate claim of entitlement . . .         .'"
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978).   The Eighth
Circuit has explained this dichotomy as follows:   "Section 1983 does not create
substantive rights; rather, state law establishes the property interest while federal
constitutional law determines whether the state law property interest rises to a
constitutionally protected property interest."   Riley v. St. Louis County, 153 F.3d
627, 630 (8th Cir. 1998) (citations omitted), cert. denied, 525 U.S. 1178 (1999).
Thus, whether labeled a property interest, a quasi-property interest or a legitimate
claim of entitlement, the "sufficiency of the claim of entitlement must be decided by
reference to state law."   Bishop v. Wood, 426 U.S. 341, 344 (1976); see Morley's
Auto Body, Inc. v. Hunter, 70 F.3d 1209, 1213-14 (11th Cir. 1995) (looking at
7Florida state courts have followed this same analytical framework:
Procedural due process rights derive from a property interest in which the
individual has a legitimate claim.  Once acquired, a property interest falls within the
protections of procedural due process.  A property interest may be created by statute,
ordinance or contract as well as by policies and practices of an institution which support
claims of entitlement.
Metropolitan Dade County v. Sokolowski, 439 So. 2d 932, 934 (Fla. 3d DCA 1983) (citations
omitted).
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Florida case law to determine whether plaintiffs had a legitimate claim of entitlement
to set forth a cognizable section 1983 claim).
2.   Powell and the Certified Question
When addressing the issue of whether the Crockers' right to possess their
son's body for burial should be afforded constitutional protection, the Fourth
District relied upon Powell to conclude "that the right of the next of kin to possess
the body for burial was not a 'protectable liberty or property interest in the remains'
of the decedent."   Crocker, 727 So. 2d at 1088 (quoting Powell, 497 So. 2d at
1193).   Accordingly, the issue presented by the certified question is whether that
statement in Powell was limited to the issue of the constitutionality of the corneal
removal statute or whether our reasoning in Powell precludes finding that the
Crockers possessed a "protectable property interest in the remains" of their son so
as to bar any section 1983 action arising from an alleged deprivation of procedural
due process.
In Powell, the parents brought an action against various state officials alleging
the wrongful removal of their deceased sons' corneas without the parents' notice or
consent.                                                                                  497 So. 2d at 1189-90.   Notably, the parents did not challenge the State's
right to conduct the autopsy without their consent; instead, they challenged the
constitutionality of section 732.9185, Florida Statutes (1983), which authorized
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medical examiners to remove corneal tissue from decedents during statutorily
required autopsies when "a patient is in need of corneal tissue for a transplant."
§ 732.9185(1), Fla. Stat. (1983).
In our opinion in Powell, this Court began by explaining the legitimate state
interest in obtaining suitable corneal tissue that can restore sight to the functionally
blind, which is especially important for the elderly and newborns.                          497 So. 2d at
1190-91.   The Court also noted that the record reflected that the key to successful
corneal transplantation is the availability of high-quality corneal tissue that must be
obtained shortly after death.   See id. at 1191.   Significantly, the Court observed that
although an autopsy "necessarily results in a massive intrusion into the decedent[,] .
. . cornea removal, by comparison, requires an infinitesimally small intrusion which
does not affect the decedent's appearance.   With or without cornea removal, the
decedent's eyes must be capped to maintain a normal appearance."   Id.   Thus, this
Court held that the statute authorizing the removal of the corneal tissue achieves
"the permissible legislative objective of providing sight to many of Florida’s blind
citizens."   Id.
In reaching this conclusion in Powell, the Court analyzed the question of
protected constitutional rights and stated that "a person's constitutional rights
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terminate at death.   If any rights exist, they belong to the decedent's next of kin."
Id. at 1190 (citations omitted).   The Court then rejected the parents' claim that the
right to control the disposition of their decedents' remains is a fundamental right of
personal liberty protected against unreasonable governmental intrusion by the Due
Process Clause, concluding that "[n]either federal nor state privacy provisions
protect an individual from every governmental intrusion into one's private life,
especially when a statute addresses public health issues."   Id. at 1193 (citation
omitted).
Despite broad language used in the Powell opinion, our holding in that case
was limited to an analysis of the constitutionality of the cornea removal statute that
addressed a public health issue.   In fact, in that case we balanced the State's
interest in obtaining suitable corneal tissue against the "infinitesimally small
intrusion" incident to the corneal tissue removal.   Id. at 1191.   As Justice Shaw
pointed out in his dissenting opinion in Powell, the only issue before the Court in
that case was the constitutionality of the statute authorizing medical examiners to
remove corneal tissue from decedents.   Id. at 1194 (Shaw, J. dissenting).   Although
the Powell petitioners included a section 1983 claim in their complaint, the issue of
the viability of that claim was not before the Court.   More importantly, the Court
could have upheld the constitutionality of the statute without any consideration of
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the section 1983 action because the Court found that in light of the "massive
intrusion" that necessarily followed from the autopsy, the "infinitesimally small
intrusion which does not affect the decedent's appearance" did not amount to a
violation of the right of the next of kin to possess the decedent's remains for
purposes of burial.   Id. at 1191.   Any potential right of the next of kin was based
upon their need to celebrate the life of the deceased "through appropriate
commemoration," and that potential right was qualified by the "overriding police
power of the state to regulate the care and disposition of dead bodies."   Id. at 1196
(Shaw, J. dissenting).
Our rejection in Powell of a constitutional attack on a narrowly drawn statute
regulating the disposition of the corneas of a deceased person does not necessarily
translate into the broader conclusion that the right to possess a loved one's remains
for the purposes of burial should never be accorded protected status under the
Fourteenth Amendment, whether labeled a "quasi-property right" or a "legitimate
claim of entitlement."   Although we rejected the petitioners' constitutional claims in
Powell, we explained that Florida recognizes a limited right to possession of the
body for "burial, sepulture or other lawful disposition."   Id. at 1191.   This
conclusion is consistent with the approach of other courts that have found that this
right constitutes a legitimate claim of entitlement or a quasi-property interest.
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In Lawyer v. Kernodle, 721 F.2d 632 (8th Cir. 1983), one of the cases cited
in Powell, for example, the Eighth Circuit rejected a claim based on section 1983
that arose from allegations of a negligent diagnosis of the cause of death.8
Although finding that the allegations of the complaint did not give rise to a duty, the
Eighth Circuit nevertheless recognized the parameters of the underlying right:
In the sense in which the word "property" ordinarily is used, one
whose duty it becomes to bury a deceased person has no right of
ownership over the corpse;   but, in the broader meaning of the term,
he has what has been called a "quasi property right" which entitles him
to the possession and control of the body for the single purpose of
decent burial.    If the deceased person leave [sic] a widow, such right
belongs to her . . .
721 F.2d at 634 (emphasis added).
Two months later, the Eighth Circuit in Fuller v. Marx, 724 F. 2d 717 (8th
Cir. 1984), considered a section 1983 claim based on allegations that the coroner
failed to return to the plaintiff all of the body organs of the plaintiff's dead husband
following an autopsy.   In explaining the dimensions of the right, the Eighth Circuit
relied on the applicable Arkansas state law:
Under Arkansas law, the next of kin does have a quasi-property right
in a dead body.   See Teasley v. Thompson, 204 Ark. 959, 165
8In Lawyer, a husband sought damages under Missouri law for the negligent diagnosis of the
cause of death of his wife and under section 1983 for the alleged denial of due process caused by
Kernodle's "erroneous" and "premature" communication of his conclusions of the cause of death.   721
F.2d at 632.
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S.W.2d 940, 942 (1942).   Mrs. Fuller received the body in what
appeared to be acceptable condition.   We know of no Arkansas cases
which extend this quasi-property right to all of the body's organs, and
in any event we note that under Arkansas law Mrs. Fuller could have
taken possession of her husband's organs if she had made a written
request.
724 F. 2d at 719 (emphasis added).9
Likewise, in Arnaud v. Odom, 870 F.2d 304 (5th Cir. 1989), the Fifth Circuit
examined a section 1983 claim arising from allegations that before performing the
mandatory autopsy, the medical examiner had performed unauthorized experiments
on two infants who had died from Sudden Infant Death Syndrome.   The threshold
issue in the case was whether the parents of the infants had been deprived of a
constitutional property or liberty interest in the bodies of their children within the
context of section 1983.   See id. at 307.   On appeal, the Fifth Circuit considered
the relevant Louisiana statutory and case law regarding the rights of next of kin in
the body of a deceased relative and concluded that Louisiana statutory and case
9More recently, the Eighth Circuit declined to consider whether there was a constitutional
violation arising from the photographing of the plaintiff's deceased son in his coffin after the funeral
because the plaintiff "fail[ed] to allege facts sufficient to support her claim that Appellees violated her
right to sepulchre."  Riley, 153 F.3d at 630.  In affirming the granting of the motion to dismiss, however,
the Eighth Circuit analyzed Missouri law that based causes of action for interference with the decedent's
body not on the "fiction" of  an "infringement on a quasi property right of the nearest kin" but on "the
mental anguish" of the person claiming the right to bury the decedent.  Id.  Nevertheless the Eighth
Circuit did not reach the issue of whether there would be a "constitutionally protected interest," affirming
the dismissal because "Riley does not allege any physical insult to the deceased nor any interference
with the visitation, funeral, or burial."  Id.
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law created a "quasi-property" right for survivors in the remains of their dead
relative.   Id. at 308.   In particular, the Fifth Circuit relied on a Louisiana statute
providing the order of priority of those who had the right to control the disposition
of the remains of a deceased person and Louisiana case law recognizing the right of
relatives to possess the body of the deceased for burial.   See id.
Similarly, Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991), involved a
section 1983 action regarding the potential property interest in a deceased's
remains.   The court in Brotherton noted that "a majority of the courts confronted
with the issue of whether a property interest can exist in a dead body have found
that a property right of some kind does exist and often refer to it as a 'quasi-
property right.'"   Id. at 480.   In finding that the next of kin had a constitutionally
protected interest in her relative's corneas that rose to the level of a "legitimate claim
of entitlement," the Sixth Circuit relied on Ohio statutes, including Ohio's version of
the Uniform Anatomical Gift Act, that granted the next of kin the right to control
the disposal of the body.   Id. at 482.   The Sixth Circuit also relied on Ohio case
law that:                                                                                    (1) acknowledged that the next of kin have the right to possess the body
for burial; and (2) allowed a claim by the next of kin against those who disturb a
buried dead body.   See id. at 480-82.
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Four years after Brotherton, the Sixth Circuit reached the same conclusion in
a case arising under Michigan law.   See Whaley v. County of Tuscola, 58 F.3d
1111 (6th Cir. 1995).   As in Brotherton, in finding a "legitimate claim of
entitlement," the Sixth Circuit relied upon Michigan case law that the next of kin
have a right to possess the body for burial and prevent its mutilation, and the court
also relied upon Michigan's Anatomical Gift Act.   See Whaley, 58 F.3d at 1115-16.
Similar to the statutes and case law in the cases that have found a
constitutionally protected right (either referred to as a "legitimate claim of
entitlement" or a "quasi-property right"), Florida law also contains a number of
indicia, both in its statutes and case law, that recognize the rights of the next of kin
in their dead relatives' remains.   For example, pursuant to section 245.07, Florida
Statutes (2000), a county may not bury or cremate any body received by the
anatomical board without making a "reasonable effort to contact any relatives of the
deceased person [and i]f a relative of the deceased person is contacted and
expresses a preference for either burial or cremation, the county shall make a
reasonable effort to accommodate the request of the relative."                             § 245.07.   Likewise,
section 732.912(3), Florida Statutes (2000), authorizes the donation of a decedent’s
body or organs by the next of kin in a prescribed order of priority, and section
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732.912(4), recognizes the right of the next of kin to object to the removal or
donation of organs.   Further, section 732.9185(1)(b), Florida Statutes (2000),
provides for the right of the next of kin to object to the donation of corneal tissue.10
In addition to these statutory provisions, Florida case law has long
recognized the right to possess a loved one's remains for purposes of burial or
other appropriate disposition:
It is well settled that, in the absence of testamentary disposition
to the contrary, a surviving spouse or next of kin has the right to the
possession of the body of a deceased person for the purpose of
burial, sepulture or other lawful disposition which they may see fit.
And the invasion of such right by unlawfully withholding the body
from the relative entitled thereto is an actionable wrong, for which
substantial damages may be recovered.
Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950) (emphasis added) (citations
omitted).   In recognizing the exception to the impact rule, this Court observed that
this rule would not be extended to cases:
where the wrongful act is such as to reasonably imply malice, or
where, from the entire want of care of attention to duty, or great
indifference to the persons, property, rights of others, such malice will
10Unlike other traditional property interests, however, there is no recognized right to possess
the remains of a deceased relative for commercial purposes.  See §§ 245.16, 872.01 Fla. Stat. (2000)
(prohibiting the purchase or sale of human organs and tissue); 42 U.S.C. § 274e (federal law
preventing the sale of human organs).  Likewise, the State may perform an autopsy when necessitated
by the circumstances mandated by statute.  See § 406.11, Fla. Stat. (2000).
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be imputed as would justify the assessment of exemplary or punitive
damages.    The right to recover, in such cases, is especially
appropriate to tortious interference with rights involving dead human
bodies, where mental anguish to the surviving relative is not only the
natural and probable consequence of the character of wrong
committed, but indeed is frequently the only injurious consequence to
follow from it.
Id. at 189. (emphasis supplied).   Thus, Florida cases have recognized causes of
action based upon interference with a dead relative's body in a variety of
circumstances where the underlying conduct alleged rises to the level of intentional
misconduct or malice.   See, e.g., Kirker v. Orange County, 519 So. 2d 682, 684
(Fla. 5th DCA 1988) (right of action for mutilation of dead body based on right of
next of kin to bury body in an unmutilated condition); Smith v. Telophase Nat'l
Cremation Soc'y, Inc., 471 So. 2d 163, 165 (Fla. 2d DCA 1985) (intentional
infliction of mental distress for failure to properly dispose of decedent’s ashes);
Scherer v. Rubin Mem'l Chapel, Ltd., 452 So. 2d 574, 575 (Fla. 4th DCA 1984)
(holding that relatives of deceased alleged facts sufficient to impute malice in
mishandling of corpse); Scheuer v. Wille, 385 So. 2d 1076, 1078 (Fla. 4th DCA
1980) (claim of intentional infliction of emotion distress for unauthorized embalming
precluded entry of summary judgment for funeral home).
Based upon these statutory rights of the next of kin in their dead relatives'
bodies, along with the case law on this issue, we conclude that in Florida there is a
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legitimate claim of entitlement by the next of kin to possession of the remains of a
decedent for burial or other lawful disposition.   We also find that referring to the
interest as a "legitimate claim of entitlement" most accurately describes the nature of
the interest.   Accordingly, Powell does not "preclude all section 1983 claims
grounded on interference with an interest in a dead body," Crocker, 727 So. 2d at
1089, and therefore we answer the certified question in the negative.
3.   The Crockers' Section 1983 Action
Although we find that the Crockers, as their son's next of kin, have a
legitimate claim of entitlement to possess their son's remains for burial or other
lawful disposition, we make clear that this determination is not dispositive of
whether the allegations in this case can survive a motion for judgment on the
pleadings or whether the Crockers can otherwise prevail in their section 1983
action.   Indeed, the City and County urge us to find that despite any inchoate right
the Crockers might have, there has been no constitutional violation here because a
"deprivation" of that right has not been established.
In this case, although the Fourth District has characterized the officials'
conduct as "egregious," Crocker, 727 So. 2d at 1089, the Crockers have advised
this Court that the trial court has subsequently found as a matter of law that the
individual officer was not acting in "bad faith" or "with malicious purpose."
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§ 768.28(9)(a), Fla. Stat. (2000).11   Indeed, the trial court found that "nothing in the
record reveals that the officer was acting outside the scope of his employment, in
bad faith, or with malicious purpose."  Further, the Crockers have conceded in this
Court that they cannot prove the existence of willful or malicious conduct on the
part of the City or County.
The United States Supreme Court has made clear that only "deprivations" of
constitutional rights are covered by section 1983 and deprivations that are merely
11Section 768.28(9)(a) provides the applicable standard:
No officer, employee, or agent of the state or of any of its subdivisions shall be held
personally liable in tort or named as a party defendant in any action for any injury or
damage suffered as a result of any act, event, or omission of action in the scope of her
or his employment or function, unless such officer, employee, or agent acted in bad faith
or with malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property. However, such officer, employee, or agent shall be
considered an adverse witness in a tort action for any injury or damage suffered as a
result of any act, event, or omission of action in the scope of her or his employment or
function. The exclusive remedy for injury or damage suffered as a result of an act,
event, or omission of an officer, employee, or agent of the state or any of its
subdivisions or constitutional officers shall be by action against the governmental entity,
or the head of such entity in her or his official capacity, or the constitutional officer of
which the officer, employee, or agent is an employee, unless such act or omission was
committed in bad faith or with malicious purpose or in a manner exhibiting wanton and
willfuldisregard of human rights, safety, or property.  The state or its subdivisions shall
not be liable in tort for the acts or omissions of an officer, employee, or agent
committed while acting outside the course and scope of her or his employment or
committed in bad faith or with malicious purpose or in a manner exhibiting wanton and
willful disregard of human rights, safety, or property.
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negligent are not sufficient to constitute "deprivations" under section 1983.
See Daniels, 474 U.S. at 330-31.   As the Court explained in Daniels:
Historically, this guarantee of due process [under the Fourteenth
Amendment] has been applied to deliberate decisions of government
officials to deprive a person of life, liberty, or property.   E.g.,
Davidson v. New Orleans, 96 U.S. 97 (1878) (assessment of real
estate); Rochin v. California, 342 U.S. 165 (1952) (stomach pumping);
Bell v. Burson, 402 U.S. 535 (1971) (suspension of driver's license);
Ingraham v. Wright, 430 U.S. 651 (1977) (paddling student);   Hudson
v. Palmer, 468 U.S. 517 (1984) (intentional destruction of inmate's
property).   No decision of this Court before Parratt supported the
view that negligent conduct by a state official, even though causing
injury, constitutes a deprivation under the Due Process Clause.   This
history reflects the traditional and common-sense notion that the Due
Process Clause, like its forebear in the Magna Carta, see Corwin, The
Doctrine of Due Process of Law Before the Civil War, 24 Harv. L.
Rev. 366, 368 (1911), was "intended to secure the individual from the
arbitrary exercise of the powers of government."
474 U.S. at 331; see County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998).
In Daniels, the Court receded from its prior decision in Parrat v. Taylor, 451 U.S.
527 (1981), "to the extent that it states that mere lack of due care by a state official
may 'deprive' an individual of life, liberty, or property under the Fourteenth
Amendment."   474 U.S. at 330-31.12
12Although holding that allegations and proof of negligence were not sufficient to demonstrate a
deprivation of a constitutional right, the U.S. Supreme Court declined to determine whether "something
less than intentional conduct, such as recklessness or 'gross negligence' is enough to trigger the
protections of the Due Process Clause."  Daniels, 474 U.S. at 334 n.3.  Some federal courts, however,
have recognized that a section 1983 claim may be based on recklessness or deliberate indifference.
See Stemler v. City of Florence, 126 F.3d 856, 865-66 (6th Cir. 1997) (deliberate indifference); Hill v.
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Accordingly, it is not clear that the Crockers will be able to establish that a
"deprivation" occurred, which would be a requirement of their section 1983 claim.
Nonetheless, the scope of the certified question before us is narrow, and therefore
we decline to rule as a matter of law that the Crockers will be unable to recover on
their section 1983 claim based on a deprivation or the lack of intentional conduct
on the officials' part.
The County also urges us to find that the Crockers' cause of action is barred
because the state provides adequate state remedies.   In this case, the Crockers'
allegations were limited to a claim that the deprivation of the right to possess their
son's remains for a period of time occurred without procedural due process.   At
oral argument, counsel for the Crockers' reiterated that the Crockers' claims were
limited to deprivation of property without due process and that they were not
claiming the deprivation of a liberty interest, nor were they contending that their
substantive due process rights were violated.13
Shobe, 93 F.3d 418, 421 (7th Cir. 1996) (criminal recklessness or deliberate indifference); Davis v.
Fulton County, 90 F.3d 1346, 1352-53 (8th Cir. 1996) (rejecting gross negligence).
13This is an important distinction because, as the United States Court of Appeal for the First
Circuit has explained:
There are two theories under which a plaintiff may bring a substantive due process
claim.  Under the first, a plaintiff must demonstrate a deprivation of an identified liberty
or property interest protected by the Fourteenth Amendment.  Under the second, a
plaintiff is not required to prove the deprivation of a specific liberty or property interest,
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In procedural due process claims, the availability of state post-deprivation
remedies is relevant to whether a constitutional deprivation has occurred because
the deprivation by state action of a constitutionally protected interest in
"life, liberty, or property" is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due
process of law.   The constitutional violation actionable under § 1983 is
not complete when the deprivation occurs; it is not complete unless
and until the State fails to provide due process.   Therefore, to
determine whether a constitutional violation has occurred, it is
necessary to ask what process the State provided, and whether it was
constitutionally adequate.   This inquiry would examine the procedural
safeguards built into the statutory or administrative procedure of
effecting the deprivation, and any remedies for erroneous deprivations
provided by statute or tort law.
Zinermon, 494 U.S. at 125-26 (citations omitted) (footnote omitted).   In some
circumstances "a statutory provision for a postdeprivation hearing, or a
common-law tort remedy for erroneous deprivation, satisfies due process[,] . . .
simply because they are the only remedies the State could be expected to provide."
Id. at 128 (citations omitted).   Thus in both Arnaud and Fuller the courts found
that, although a right existed, the claim was barred because state remedies were
adequate.   See Arnaud, 870 F.2d at 308;14 Fuller, 724 F.2d at 719.15
but, rather, he must prove that the state's conduct "shocks the conscience."
Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 622 (1st Cir. 2000).
14In Arnaud, the Fifth Circuit ultimately determined that the parents had not suffered a
constitutional invasion of any property right under section 1983 because the state post-deprivation tort
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The Crockers assert, however, that they have no adequate remedy at state
law because our decision in Gonzalez, 651 So. 2d at 673, would not allow them to
recover under state law under any circumstance.   They assert that even if they
could prove willful or wanton misconduct against the individual officers to allow a
claim for tortious interference, they would be precluded by our sovereign immunity
statute from recovering against the City or County.16   In other words, the Crockers'
claims adequately remedied the essential aspects of the property interests alleged.   870 F.2d at 309.
The Fifth Circuit concluded that because Louisiana allows actions to seek recovery for intentional torts
and provides a cause of action to recover for unauthorized tampering with a corpse, "[p]resumably, the
above state remedies will adequately redress the Arnauds for any injuries they have suffered."  Id.
15In Fuller, the Eighth Circuit recognized the "quasi-property" right of the widow in the body of
her deceased spouse but declined to find a constitutional invasion of that right occasioned by the state's
removal of certain organs.   724 F.2d at 719.  The Eighth Circuit concluded that any "quasi-property
rights [the widow] had in her husband's internal organs, if protected by the Constitution, were also
protected by [an] Arkansas statute" that allowed the widow to request the return of her husband's
organs after the autopsy.  Id.
16Section 245.07 provides for the notification of the relatives of a deceased person before that
person is buried.  Nonetheless, this Court has determined that there is no cause of action against a
governmental entity under state tort law for mental anguish based on negligent handling of a dead body
in the absence of physical injury where the actor's conduct was only negligent or even where the
heightened requirement of wanton misconduct was met.  See Gonzalez, 651 So. 2d at 676.  In
particular, this Court has stated that:
[E]ven assuming that the hospital's actions were willful, Jackson Memorial
Hospital, as a county-owned hospital, is immune from liability for a willful, wanton or
malicious conduct claim against one of its employees.  See § 768.28(9)(a), Fla. Stat.
(Supp.1988).  "The very need to allege and prove willful, wanton or malicious conduct
to sustain an action against [an employee] makes the case non-actionable against the
county because of the statute which continues to surround governmental units with the
shield of sovereign immunity in the face of such conduct."  Kirker v. Orange County,
519 So. 2d 682, 684 (Fla. 5th DCA 1988).
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argument is that they do not have an adequate state remedy because the
combination of Florida's sovereign immunity statute and this Court's case law
essentially means that they have no redress under state tort law.   Although the
parties raise this issue in the briefs, we decline to decide in this case whether our
decision in Gonzalez would mean that the Crockers are deprived of an adequate
state remedy because this issue is beyond the scope of the certified question and
because it was not decided or discussed in the Fourth District’s opinion.17
CONCLUSION
In summary, our holding in Powell does not in itself preclude the Crockers'
section 1983 action here, and therefore we answer the certified question in the
negative.   Nonetheless, a section 1983 action necessarily requires more than
negligent conduct before a "deprivation" under that statute may arise.   Because the
Fourth District labeled the conduct in this case as "egregious," it may have
assumed the existence of the requisite level of misconduct to sustain a 1983 cause
Id. at 676.
17We note that the Eleventh Circuit has interpreted United States Supreme Court precedent to
mean that "a state does not deny procedural due process simply by granting reasonable tort immunity to
state entities and officials."  Rittenhouse v. DeKalb County, 764 F.2d 1451, 1458 (11th Cir. 1985)
(applying Georgia law); see also Powell v. Georgia Dep't. of Human Res., 114 F.3d 1074, 1082 n.11
(11th Cir. 1997) (plaintiff's argument that the State's "postdeprivation process is inadequate because
the State has invoked sovereign immunity" as to tort claims is foreclosed by Rittenhouse).
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of action.   However, subsequent rulings by the trial court in this case and
concessions by the Crockers in this Court may undermine the accuracy of that
assumption.   Moreover, because the Crockers’ claim is one for procedural due
process, the issue of the adequacy of the state remedy must be addressed.   For all
of these reasons, we quash the Fourth District's decision and remand this case to
the Fourth District for further proceedings consistent with this opinion.
It is so ordered.
ANSTEAD, LEWIS and QUINCE, JJ., concur.
SHAW and HARDING, JJ., concur in result only.
WELLS, C.J., concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
WELLS, C.J., concurring in part and dissenting in part.
I concur that the answer to the specific question should be in the negative
because State v. Powell, 497 So. 2d 1188 (Fla. 1986), is distinguishable.
I dissent from reversing the district court’s decision because I would find no
basis for a section 1983 action.   I would affirm the result of the district court.
Application for Review of the Decision of the District Court of Appeal  - Certified
Great Public Importance
Fourth District - Case No. 4D98-0633
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(Palm Beach County)
V. Lynn Whitfield  of Whitfield  & Mosley, West Palm  Beach,  Florida;  and  Dea
Abramschmitt, West Palm Beach, Florida,
for Petitioners
Patrick N. Brown, City Attorney, Claudia M. McKenna, Deputy City Attorney, and
Mayra I. Rivera-Delgado, Assistant City Attorney, West Palm Beach, Florida; and
Leonard Berger, Assistant County Attorney, West Palm Beach, Florida,
for Respondents
Carl E. Brody, Jr., Assistant County Attorney, Clearwater, Florida,
for The Florida Association of County Attorneys, Amicus Curiae
-29-

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