cedure is so simple that he may postpone his decision until that very day and still satisfy all legal requirements for candidacy. In contrast, the independent must complete the signature gathering process by the 70th day preceding the primary election. Since the task of obtaining the signatures of 3% of the registered voters inevitably will require a significant amount of time, the independent must make his decision. to run well in advance of the filing deadline.

In my opinion, the State has not put forward any justification for this disparate treatment. Moreover, it is potentially a matter of great significance. The decision to become a candidate may be prompted by a sudden, unanticipated event of great national or local importance. If such an event should occur on the 71st day before a primary, national party members could make a timely decision to run but independents could not.

The statute should be evenhanded in its impact on the timing of the most important decision any candidate must make. The burdens that an independent must shoulder are heavy enough without requiring him to make that decision before his most formidable opponents must do so.*

*In Jenness v. Fortson, 403 U. S. 431, this Court upheld the Georgia filing procedures applicable to independent candidates seeking a place on the general election ballot. These procedures required the independent candidate to collect signatures of at least 5% of the number of registered voters at the last general election for the office in question. Id., at 432. The independent candidate had 180 days in which to accomplish this task and had to file the completed petitions by the same deadline which a party candidate had to meet. Id., at 433-434. Thus, the procedures for filing by independents under the Georgia statute are similar to those aspects of the Maryland procedures in issue here which I find place such a handicap on independent candidates. However, the question I find decisive in this case was neither raised nor decided by the Court in Jenness, see id., at 434. Thus, that decision is not controlling on this point, KVOS, Inc. v. Associated Press, 299 U. S. 269, 279, quoting Webster v. Fall, 266 U. S. 507, 511 ("'Questions which merely lurk in the

On the basis of the record developed in the District Court, and the full argument on the merits in this Court, I would therefore affirm the judgment.

record, neither brought to the attention of the court nor ruled upon, are

not to be considered as having been so decided as to constitute precedents' ").

For the reasons stated in Edelman v. Jordan, 415 U. S. 651, 670–671, I do not regard the summary affirmance in Auerbach v. Mandel, 409 U. S. 808, as controlling.

Per Curiam

JONES v. HILDEBRANT ET AL.

CERTIORARI TO THE SUPREME COURT OF COLORADO

No. 76-5416. Argued April 26, 1977-Decided June 16, 1977

Where petitioner's counsel informed this Court at oral argument that petitioner's sole claim of constitutional deprivation resulting from her minor son's being shot and killed by respondent police officer was one based on her personal liberty and not one of pecuniary loss such as would be covered by Colorado's wrongful-death statute, but that contention was neither alleged in her complaint (which included claims based on the state wrongful-death statute and a claim under 42 U. S. C. §1983), presented in her petition for certiorari, nor fairly subsumed in the question that was presented as to whether the wrongful-death statute's limitation on damages controlled in a § 1983 action, the writ of certiorari is dismissed as improvidently granted.

Certiorari dismissed. Reported below: 191 Colo. 1, 550 P. 2d 339.

David K. Rees argued the cause for petitioner. With him on the briefs was Walter L. Gerash.

Wesley H. Doan argued the cause for respondents. With him on the brief was Robert E. Goodwin.*

PER CURIAM.

Petitioner is the mother of a 15-year-old boy who was shot and killed by respondent Hildebrant, while respondent was acting in his capacity as a Denver police officer. Petitioner brought suit in her own behalf in state court. Respondent defended on the ground that he shot petitioner's son as a fleeing felon using no more force than was reasonably necessary. The amended complaint asserted three claims for relief: battery; negligence; and intentional deprivation of federal con

*Robert A. Murphy, Richard S. Kohn, Norman J. Chachkin, William E. Caldwell, Vilma S. Martinez, Morris J. Baller, and Nathaniel R. Jones filed a brief for the Lawyers' Committee for Civil Rights Under Law et al. as amici curiae urging reversal.

stitutional rights. Although not specifically pleaded, the first two claims were admittedly based on the Colorado wrongfuldeath statute, Colo. Rev. Stat. Ann. § 13-21-202 (1973),1 and the third, on 42 U. S. C. § 1983. While petitioner alleged damages of $1,500,000, she stipulated to a reduction of her prayer for relief with respect to the first two claims, since the Colorado wrongful-death statute admittedly limited her maximum recovery to $45,000, Colo. Rev. Stat. Ann. § 13-21-203 (1973). The trial court also ruled that petitioner's § 1983 claim was "merged" into her first claim and, accordingly, dismissed her § 1983 claim. The remaining claims went to the jury, which returned a verdict for $1,500.2

On petitioner's appeal, the Supreme Court of Colorado affirmed. 191 Colo. 1, 550 P. 2d 339 (1976). Her petition for certiorari presented a single question for review here:

"Where the black mother of a 15-year-old child who was intentionally shot and killed by a white policeman acting under the color of state law brings a suit in state

1 Section 13-21-202:

"When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.

2 The jury had been instructed that damages in a wrongful-death action were limited to net pecuniary loss, see Herbertson v. Russell, 150 Colo. 110, 371 P. 2d 422 (1962). This loss is the financial loss sustained by petitioner as a result of the death of her son, and would include the value of any services that he might have rendered and earnings he might have made while a minor, as well as any support he might have provided after becoming an adult, less the expenses petitioner would have incurred in raising him. The award apparently included, in this case, funeral expenses. The Supreme Court of Colorado upheld the instructions and the award, 191 Colo., at 3 n. 1, 550 P. 2d, at 341 n. 1. These issues, of course, are not before us except as they might bear on petitioner's § 1983 claim.

court pursuant to 42 U. S. C. § 1983, what is the measure of damages? Particularly, can the state measure of damages cancel and displace an action brought pursuant to 42 U. S. C. § 1983?"

We granted certiorari to consider what was thus explicitly presented as a question of whether a State's limitation on damages in a wrongful-death statute would control in an action brought pursuant to § 1983. 429 U. S. 1061 (1977).

The majority opinion in the Supreme Court of Colorado proceeds on the assumption that if the Colorado wrongfuldeath statute applied to petitioner's claim, her recovery would be limited to $45,000. It held that this limitation did apply even to the one count of petitioner's complaint based on 42 U.S. C. § 1983.

A necessary assumption for this position would seem to be that petitioner was suing to recover damages for injuries under § 1983 which were the same injuries as are covered by the state wrongful-death action. The question presented in the petition for certiorari is at the very least susceptible of that interpretation. But at oral argument, we were advised by counsel for petitioner that her sole claim of constitutional deprivation was not one of pecuniary loss resulting from her son's wrongful death, such as would be covered by the wrongful-death statute, but one based on her personal liberty. Her claim was described at oral argument as a constitutional right to raise her child without interference from the State; it has nothing to do with an action for "wrongful death" as defined by the state law. Tr. of Oral Arg. 4-5; see also id., at 8-13.

An action for wrongful death, under Colorado law, is an action which may be brought by certain named survivors of a decedent who sustain a direct pecuniary loss upon the death of the decedent. It is "classified as a property tort action and cannot be classified as a tort action 'for injuries done to the person,'" Fish v. Liley, 120 Colo. 156, 163, 208 P. 2d 930,