They are two different claims that often arise from the same shooting. An excessive force claim is the constitutional claim, brought under 42 U.S.C. § 1983, that the officer used unreasonable deadly force. A wrongful death claim is the state-law claim that lets surviving family members recover for the loss of their loved one. After a fatal shooting, a family usually pursues both at once.
I have handled these cases for decades, and families are almost always told the wrong thing first. They are told to wait for the “investigation.” They are told the officer was cleared, so there is nothing to do. That is how the clock runs out on people while they are still grieving. Let me explain how these claims actually work, because the distinction is not academic and the deadlines are unforgiving.
Who can file each claim in California?
The excessive force (§ 1983) claim belongs to the person who was killed and survives to their estate, usually pursued by a successor in interest. The wrongful death claim belongs to specific surviving relatives, generally the spouse, domestic partner, and children, and in some cases the parents. Because they recover different things, families typically file them together.
The constitutional claim is governed by deadly-force law. Tennessee v. Garner, 471 U.S. 1 (1985), held that deadly force against a fleeing suspect is generally unreasonable unless the suspect poses a significant threat of death or serious harm. (Cornell LII) Graham v. Connor, 490 U.S. 386 (1989), supplies the broader reasonableness test. California’s Penal Code § 835a, strengthened by AB 392 in 2019, requires that deadly force be necessary and imposes a duty to consider de-escalation, a stricter standard than the federal floor. (California Legislative Information) And the 2025 decision in Barnes v. Felix directs courts to examine the officer’s conduct leading up to the shooting, not just the final instant.
The wrongful death claim itself is a creature of state statute, California Code of Civil Procedure § 377.60, which defines who may sue. (California Legislative Information) The survival claim, which carries the deceased’s own § 1983 cause of action forward, is governed by § 377.30.
How are the damages different?
The two claims recover different losses. The survival claim, the deceased’s own § 1983 claim, can recover for their pre-death harm and the violation of their rights, and can support punitive damages against an individual officer. The wrongful death claim compensates the family for their own loss: the support, the companionship, the relationship that was taken.
Bringing both is how you make a public entity take the case seriously. Punitive damages are aimed at the officer’s conduct and are not available against the public entity itself, but they change the temperature of a case. California has also done something most states have not: under the Tom Bane Civil Rights Act and Senate Bill 2, an officer cannot hide behind qualified immunity for a Bane Act claim the way they can in a pure federal case. (Shouse Law) That gives families a powerful state-law path that the federal immunity doctrine does not block, and it is one reason these cases are often stronger in California than elsewhere.
| Excessive force / survival claim | Wrongful death claim | |
|---|---|---|
| Legal basis | 42 U.S.C. § 1983; survival via Cal. Code Civ. Proc. § 377.30 | Cal. Code Civ. Proc. § 377.60 |
| Whose claim it is | The deceased’s, carried by the estate | Surviving family members |
| What it recovers | Pre-death harm, rights violation, punitive damages vs. officer | Family’s loss of support and companionship |
| Qualified immunity | Can apply to the federal claim | Bane Act path (SB 2) blocks the QI defense |
What is the deadline to file a claim after a fatal police shooting in California?
For claims against a California public entity, you generally must file a written government tort claim within six months of the death before you can bring most state-law claims, including wrongful death. The federal § 1983 claim has a longer window, but the six-month state deadline is the one that quietly ends cases.
This is where I see good families lose rights they did not know they had. The agency that just killed your loved one is not going to remind you about a six-month deadline. They benefit from your silence and your grief. By the time the internal review wraps up and tells you the shooting was “within policy,” the clock may already have run. The government tort claim is a formal written notice to the city or county, and the rules about what it must contain and where it must be filed are technical enough that families should not navigate them alone.
There are first steps that protect a case from the very beginning. Request and preserve everything: the autopsy and coroner’s report, body-worn and dash-camera footage, dispatch and radio traffic, and the names of every officer and witness on scene. Do not give a recorded statement to the agency’s investigators or its insurer without counsel. And talk to a civil rights lawyer early, while the evidence is fresh and the deadlines are still open, not after they have closed.
What do these cases actually recover in Southern California?
Wrongful death settlements and verdicts against local agencies regularly reach into the millions. Our firm’s published results include a $2,900,000 wrongful death resolution in Eliuth Penaloza Nava v. City of Anaheim (2020). Numbers like that are not a lottery ticket; they reflect a life, and what it takes to make a department change.
I keep the facts of any specific case to what is in the public record, and so should any lawyer who writes about results. But the larger point stands: when a family brings both the constitutional claim and the wrongful death claim, with the evidence preserved and the deadlines met, a public entity that expected the family to disappear has to reckon with a real case instead.
If you lost a family member to a police shooting anywhere in Southern California, please do not wait for the agency to tell you whether you have a case. There is a six-month government tort claim deadline lurking, and it does not pause for grief. Talk to a civil rights lawyer who has done this before, and do it early.
Steering Law is a California-based civil rights and criminal defense firm led by Jerry L. Steering, Esq. The firm focuses on police misconduct cases, including excessive force, false arrest, malicious prosecution, contempt of cop incidents, and 42 U.S.C. §1983 civil rights actions, while also handling serious criminal defense matters. Steering Law is dedicated to protecting clients’ constitutional rights and delivering justice for individuals who have been wronged by law enforcement.
