Death in custody
When a person dies during an arrest, in a precinct, at Rikers or in a state prison, two sets of claims arise. The person's own claims for what was done to them survive the death and belong to the estate. The family's loss is a wrongful death claim, brought by the estate's representative. In New York the wrongful death suit against the City must be filed within two years of the death, and the notice of claim runs 90 days from the day a representative is appointed, not from the death. This page goes through who sues, what survives, what the underlying claim is, and the clocks in each state.
A death in custody is investigated by the same agency that had custody, and the first account of it is written by the officers who were there. The civil case is how the family gets a different account: the footage, the medical records, the officers under oath. It is also the case with the most procedural traps, because the person with the claim is gone and the law has to decide who stands in their place and by when. This page is about those mechanics. The underlying claims, force in the street and indifference in a cell, are on the excessive force and jail and prison abuse pages.
Two claims, one estate
Section 1983 says nothing about what happens to a claim when the person dies. The gap is filled by 42 U.S.C. § 1988(a), which borrows state law where federal law is silent, and the Supreme Court held in Robertson v. Wegmann, 436 U.S. 584 (1978), that the survival of a Section 1983 claim after death is governed by the state's survivorship law unless that law is inconsistent with federal law. So in a New York case the question of who may sue, and for what, starts in New York's Estates, Powers and Trusts Law.
New York gives two answers. A claim for personal injury survives the death of the injured person (N.Y. EPTL § 11-3.2(b)): the claim the decedent could have brought for the force, the denied care or the conditions passes to the estate. That is the survival claim. Separately, the personal representative of the decedent may bring an action for wrongful death, and must do so within two years of the death (N.Y. EPTL § 5-4.1). That is the wrongful death claim. Both are brought by the estate's representative, which means someone has to be appointed before either claim can be filed, and that appointment is the event the New York notice-of-claim clock is counted from.
The first step is the appointment
Nothing on this page can be filed until a personal representative of the estate has been appointed. Families sometimes wait to do this until they have decided whether to sue. In a case against the City, that is backwards: the notice of claim is due 90 days after the appointment, and the wrongful death suit must be filed within two years of the death regardless of when the appointment happens. We treat the appointment as the first task, in the first weeks.
What the underlying claim is
The estate steps into the decedent's shoes, so the constitutional claim is whatever the decedent would have had. A death during an arrest is a Fourth Amendment claim. Force used in a seizure is judged by objective reasonableness on the totality of the circumstances (Graham v. Connor, 490 U.S. 386 (1989)), and since Barnes v. Felix, 605 U.S. ___ (2025), decided May 15, 2025, the whole encounter is weighed, not only the last seconds before the officer fired or applied the restraint. Deadly force against a fleeing person is unreasonable unless the officer had probable cause to believe the person posed "a significant threat of death or serious physical injury to the officer or others" (Tennessee v. Garner, 471 U.S. 1 (1985)).
A death in a cell is a custody claim. For a person held before trial, force is judged by the objective Kingsley standard (Kingsley v. Hendrickson, 576 U.S. 389 (2015)). For a known risk of serious harm, a medical crisis the staff ignored, a threat from another prisoner they had been told about, a person they knew to be in danger of self-harm, the Eighth Amendment standard for a convicted prisoner is deliberate indifference: the official must have known of and disregarded a substantial risk of serious harm (Farmer v. Brennan, 511 U.S. 825 (1994)). The denial of medical care page goes through what the records have to show.
Qualified immunity is a live defense in these cases. On April 20, 2026, the Supreme Court summarily vacated a Ninth Circuit decision that had denied qualified immunity to Las Vegas officers in an in-custody death and sent it back for reconsideration in light of Zorn v. Linton, No. 25-297, 607 U.S. ___ (2026), the March 2026 decision reversing the Second Circuit's denial of immunity in a force case (Smith v. Scott, No. 24-1099 (2026)). The qualified immunity page goes through both. For an NYPD officer the defense is not available under the City's own civil rights law (N.Y.C. Admin. Code § 8-804), but that law covers NYPD employees and special patrolmen only (§ 8-801), not correction officers at Rikers.
The clocks in New York
Three numbers for a death case against the City
90 days from the appointment of the estate's representative to serve the notice of claim (N.Y. Gen. Mun. Law § 50-e(1)(a)). Two years from the death to file the wrongful death action (§ 50-i(1); EPTL § 5-4.1). Three years for the federal claims (Owens v. Okure, 488 U.S. 235 (1989); CPLR 214(5)), which need no notice (Felder v. Casey, 487 U.S. 131 (1988)). The City may demand a 50-h examination of the representative within 90 days of the notice (§ 50-h).
If the death was in a state prison or at the hands of the State Police, the State itself is not a "person" under Section 1983 and cannot be sued under it (Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989)). The federal claims run against the individual officers in their personal capacity. The state-law claim against the State goes to the Court of Claims, where a claim or a notice of intention to file a claim must be filed and served within 90 days of accrual; a timely notice of intention extends the time to file the claim, two years for negligence and one year for intentional torts, and late-claim relief may be sought within the CPLR period (N.Y. Court of Claims Act §§ 10(3), 10(3-b), 10(6)). One more number: interest on a wrongful death judgment against a municipal corporation is limited to six percent (N.Y. Gen. Mun. Law § 3-a).
| Claim | Against | Notice | Suit | Authority |
|---|---|---|---|---|
| Wrongful death, New York law | City of New York (NYPD, Department of Correction) or another municipality | 90 days from appointment of the representative | 2 years from the death | Gen. Mun. Law §§ 50-e(1)(a), 50-i(1); EPTL § 5-4.1 |
| Survival claim, New York law (assault, battery, negligence) | Same | 90 days after the claim arises | 1 year and 90 days after the event | Gen. Mun. Law §§ 50-e(1)(a), 50-i(1); EPTL § 11-3.2(b) |
| Section 1983, survival and the family's federal claims | The officers; the City through Monell | None | 3 years | Robertson v. Wegmann; Owens v. Okure; CPLR 214(5); Felder v. Casey |
| State-law claim against the State (DOCCS, State Police) | The State, in the Court of Claims | Claim or notice of intention, 90 days | Set by the Court of Claims Act; a notice of intention extends it | Court of Claims Act §§ 10(3), 10(3-b), 10(6); Will v. Michigan |
A death case carries both the wrongful death claim and the survival claim, and the table counts each on its own rule; we serve the notice on the earlier date. The notice of claim page and the New York page go through each row.
Who pays, and for what
The federal claims run against the officers personally, and punitive damages are available against them but never against the municipality (City of Newport v. Fact Concerts, 453 U.S. 247 (1981)). The City or county is reached under Section 1983 only where an official policy or custom caused the death (Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)); a failure to train supports liability only where it amounts to deliberate indifference to the rights of the people in the agency's custody (City of Canton v. Harris, 489 U.S. 378 (1989)), and a pattern of similar violations is ordinarily needed to show it (Connick v. Thompson, 563 U.S. 51 (2011)). In a jail death the pattern is often the point: prior deaths, prior reports, prior findings about the same unit or the same practice. A prevailing estate may recover attorney's fees as part of costs (42 U.S.C. § 1988(b)). The damages page goes through each category, and the what a case is worth page explains why this site does not put a number on a death.
The record
The estate's lawyer requests, in writing and early, everything the agency created about the last hours: body-worn camera footage (for the NYPD, by FOIL, as the department directs), cell and hallway video, the use-of-force and injury reports, the medical and mental health records from the facility and any hospital, the call and radio recordings, and the names of every officer and every other person on the unit. Since the repeal of Civil Rights Law § 50-a in June 2020, the officers' disciplinary records are subject to FOIL as well. The preservation request goes out immediately and does not wait for the appointment. The evidence page goes through each request.
If a family member was arrested in the same incident and has a criminal charge pending, that person should talk to their defense lawyer before describing the arrest to anyone, and the family should not name officers in writing until the lawyers have spoken. The criminal case and civil case page explains how the two cases are sequenced.
New Jersey and Florida
The survival rule is the same everywhere: Robertson v. Wegmann sends the question to the state's own law. The state statutes differ, and this site publishes only what it has verified.
In New Jersey the federal claim and the New Jersey Civil Rights Act claim have two years (N.J.S.A. 2A:14-2; 10:6-2). A state tort claim against a public entity needs a Tort Claims Act notice within 90 days of accrual, a six-month wait, and suit within two years (N.J.S.A. 59:8-8), with a late notice possible within one year on extraordinary circumstances (59:8-9); the notice does not apply to the Civil Rights Act claim (Owens v. Feigin, 194 N.J. 607 (2008)). New Jersey's wrongful death and survival statutes, and who may sue under them, are not in this site's verified ledger and are not published here; a New Jersey death case is counted by a lawyer from the statutes themselves.
In Florida the state claim against the agency needs a written claim to the agency and, except for a city or county, to the Department of Financial Services, and for wrongful death the claim must be presented within two years of accrual, not the usual three, with a six-month wait before suit (Fla. Stat. § 768.28(6)). Damages against the State and its subdivisions are capped at $200,000 per person and $300,000 per incident, with no punitive damages and no prejudgment interest; those are statutory caps (§ 768.28(5)(a)). An officer has no personal liability under state law unless the officer acted in bad faith, with malicious purpose, or with wanton and willful disregard of human rights or safety (§ 768.28(9)(a)). The federal claims have four years (Fla. Stat. § 95.11(3); Doe v. Swearingen (11th Cir. 2022)). Florida's wrongful death act is not in the ledger and is not published here. The New Jersey and Florida pages go through each state.
Inside the facility
The two constitutional standards, the grievance rule, and which court hears a claim against Rikers, a county jail or a state prison.
Jail and prison abuse →Care that was not given
Deliberate indifference to a known medical risk, and what the facility's records have to show.
Denial of medical care →Damages and fees
Compensatory, nominal, punitive against the officer and never the City, and attorney's fees under Section 1988.
Damages and fees →Common questions
Who can bring the case?
The estate, through a personal representative. Under New York law the wrongful death action is brought by the personal representative of the decedent, and the decedent's own claims for personal injury survive the death and pass to the estate as well. A parent, spouse or child does not sue in their own name; the first step is having a representative appointed, and the notice of claim clock runs from that appointment.
How long do we have?
In New York, the wrongful death action against the City or another municipality must be brought within two years of the death, and the notice of claim is due 90 days after the estate's representative is appointed. The federal claims have three years, but the survival of the decedent's own Section 1983 claim is governed by state law, so the estate has to exist before it can sue. In Florida the pre-suit notice for wrongful death is due within two years. New Jersey's wrongful death statute is not in our verified ledger and is not published here.
Can the family recover punitive damages?
Against the individual officers, yes, under Section 1983, if the jury finds the conduct warrants them. Never against the City or any other municipality, which is immune from punitive damages under Section 1983. In Florida the state-law claim against the agency carries no punitive damages at all.
The person who died was a convicted prisoner. Does that change the claim?
It changes the constitutional standard. A person held before trial is protected by the Fourteenth Amendment and a force claim needs only objective unreasonableness. A convicted prisoner is protected by the Eighth Amendment and a claim for a known risk of serious harm, such as a medical crisis or violence the staff knew about, requires deliberate indifference: the official knew of and disregarded the risk. The survival and wrongful death mechanics are the same either way.
Tell us what happened.
One conversation with an attorney, in your language. We tell you which claims the facts support, which deadline runs first for the agency involved, what evidence to preserve this week, and whether a pending criminal case changes the timing. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510If a criminal charge is still open, talk to your defense lawyer before you describe the arrest to anyone, including us. English, Russian and Spanish in-house; an interpreter for any other language. Contingency fee, confirmed in writing before we begin.