SONJA RENEE SMITH, as Administratrix of the Estate of RUFUS A. SMITH, SR., Deceased, as Guardian Ad Litem for the minor children of the Deceased, and individually; and MARCUS SMITH, a minor; NETRA SMITH, a minor; ANTHONY SMITH, a minor; JARREN SMITH, a minor; SHERRI SMITH, a minor; ARKILLIUS SMITH, a minor; and TASHIEKA SMITH, a minor, RUFUS ANTHONY SMITH, JR., individually, Plaintiffs-Appellants, v. THE CITY OF FONTANA, a municipal corporation; ROBERT MEJIA; LARRY SMITH, NATHAN A. SIMON; CHARLES A. KOEHLER, BEN ABERNATHY; BILL FREEMAN; DONALD F. DAY, WILLIAM FRAGNESS; JACK RATELLE; JOHN M. RAGER; and KATHY WILSON, Defendants-Appellees No. 82-5896 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 818 F.2d 1411; 1987 U.S. App. LEXIS 800 Submitted July 7, 1983 n* n* The panel unanimously finds this case appropriate for submission and disposition without oral argument pursuant to Ninth Circuit Rule 3(f) and Fed. R. App. P. 34(a). Resubmitted May 27, 1986 January 6, 1987, Filed SUBSEQUENT HISTORY: As Amended July 8, 1987. PETITION FOR REHEARING DENIED AND SUGGESTION FOR REHEARING EN BANC REJECTED May 5, 1987 PRIOR HISTORY: [*1] Appeal from the United States District Court for the Central District of California, D.C. No. CV 82-3262-WPG, William P. Gray, District Judge, Presiding. Previously Reported at 807 F.2d 796. COUNSEL: Andrena G. Dancer, Esq., for APPELLANT. Bradley C. Withers, Esq., David L. Shain, COTKIN, COLLINS & KOLTZ, for APPELLEE. OPINIONBY: NORRIS OPINION: Before: TANG, n** ALARCON and NORRIS, Circuit Judges. n** Judge Tang was selected to sit on this panel following the death of the Honorable William G. East, Senior United States District Judge for the District of Oregon, originally sitting by designation. OPINION NORRIS, Circuit Judge: PAGE 100 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *1 LEXSEE Plaintiff filed this civil rights action under 42 U.S.C. @ 1983 (1982) and other provisions of the Civil Rights Act. The district court dismissed their complaint for failure to state a claim on the grounds that relief under section 1983 was barred by Parratt v. Taylor, 451 U.S. 527 (1981), and Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345 (9th Cir. 1981), aff'd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719 (1983). We reverse on the basis or recent Supreme Court and Ninth Circuit authority holding that Parratt and its progeny are inapplicable to civil rights actions asserting substantive as [*2] opposed to purely procedural due process violations. n1 n1 We temporarily vacated submission of the plaintiffs' appeal in order to await the decision of the Supreme Court in Daniels v. Williams, 106 S. Ct. 662 (1986), and the decisions of an en banc panel of this court in Piatt v. MacDougall, 773 F.2d 1032 (9th Cir. 1985) (en banc), and Bretz v. Kelman, 773 F.2d 1026 (9th Cir. 1985) (en banc), and Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985) (en banc), cert. denied sub nom. Cranke v. Haygood, 106 S. Ct. 3333 (1986). I FACTS AND PROCEDURAL HISTORY Accordingly to the plaintiffs' complaint, City of Fontana police officers Robert Mejia and Larry Smith responded to a call concerning a domestic quarrel at the apartment of Rufus A. Smith, Sr. on May 27, 1982. Encountering Mr. Smith in his parking lot, the officers asked him to place his hands on his head and detained him in order to discuss the alleged incident. As Mr. Smith attempted to comply, Officer Smith without provocation clenched him from behind in a chokehold and began to drag him backwards. While Mr. Smith was thus being held, Officer Mejia without provocation began to knee him in the groin [*3] and strike him in the fact. Though Mr. Smith was unarmed and offered only instinctive resistance against the blows to his groin and face, Officer Smith drew his duty revolver and shot Mr. Smith in the back. Mr. Smith dies approximately one and a half hours later during emergency surgery. Mr. Smith was a black man. Plaintiffs brought suit in federal district court under 42 U.S.C. @ 1983 n2 against Officers Mejia and Smith, the City of Fontana, and various city officials, n3 claiming that the defendants' conduct violated the First, Fourth, Fifth, and Eighth Amendments and both the due process and equal protection clauses of the Fourteenth Amendment. Plaintiff Sonja Smith, suing in her capacity as administratrix of the decedent's estate, seeks to vindicate Mr. Smith's personal civil rights. She and the other plaintiffs also sue in their capacities as adult or minor children of Mr. Smith, seeking to vindicate their own personal rights. n2 42 U.S.C. @ 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or clauses to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable tot he party injured in an action at law, suit in equity, or other proper proceeding for redress. [*4] PAGE 101 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *4 LEXSEE n3 These city officials include the Mayor, Mayor Pro-Tem, Chief of Police, City Manager, City Attorney, City Personnel Director, and members of the City Council. The complaint alleges that they all are responsible either for developing and enforcing adequate standards for the hiring, training, and supervising of police officers or for rendering legal advice to other officials charged with such supervision. Relying on the then recently-decided Parratt v. Taylor and Rutledge v. Arizona Bd. of Regents, the district court dismissed the action in its entirety for failure to state a claim on the ground that California's post-deprivation remedies for violations of state tort law were adequate to protect the plaintiffs from suffering any cognizable constitutional injury. n4 n4 The plaintiffs also asserted claims for relief under 42 U.S.C. @@ 1981, 1985(2) and 1985(3) and joined several pendent state claims. The district court treated separately the section 1985 claims, holding that based on the facts alleged in the complaint the plaintiffs "can[not] state a cause of action with respect to conspiracy." The plaintiffs apparently do not appeal this part of the district court's ruling, and hence we do not review it. The district court dismissed the pendent state claims as well. [*5] II LIMITATIONS ON PARRATT AND ITS PROGENY In Parratt v. Taylor, the Supreme Court held that when a state actor negligently deprived a prisoner of a minor property interest through a "random and unauthorized" act, the state's provision of an adequate post-deprivation remedy satisfied the constitutional requisite of procedural due process. 451 U.S. at 541-44. The district court apparently understood Parratt to preclude any section 1983 action based on an official's "random and unauthorized" deprivation of a constitutional right when a state provides adequate post-deprivation remedies. However, Parratt and its progeny merely determine when a state's post-deprivation remedies are adequate to protect a victim's procedural due process rights. The Parratt line of cases does not focus on the relevance of procedural protections to alleged violations of substantive constitutional rights. As Justice Blackmun noted in his concurrence in Parratt, "there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process." 451 U.S. at 545. [*6] Such actions violated the substantive protections of the Constitution and lie outside the scope of Parratt because the constitutional violation is complete at the moment the action or deprivation occurs, rather than at the time the state fails to provide requisite procedural safeguards surrounding the action. Hence, Parratt is inapplicable to alleged violations of one of the substantive provisions of the Bill of Rights, such as the Fourth Amendment. See Robins v. Harum, 773 F.2d 1004, 1009 (9th Cir. 1985) (Parratt's focus on post-deprivation remedies simply "is not applicable to a claim, such as the instant excessive use of force claim, brought under the Fourth Amendment"); see also Daniels v. Williams, 106 S. Ct. 662, 678 (1986) (separate opinion of Stevens, J., concurring in the judgment) ("[W]hen the Fourth Amendment is violated. . . the provision of an independent federal remedy under section 1983 is necessary to satisfy the purpose of the statute.") In addition, through the Fourteenth Amendment speaks in terms of "due process," the Supreme Court has consistently maintained that the due process PAGE 102 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *6 LEXSEE clause "contains a substantive component, sometimes referred [*7] to as 'substantive due process,' which bars certain arbitrary government actions 'regardless of the fairness of the procedures used to implement them.'" Daniels, 106 S. Ct. at 678 (Stevens, J., concurring) (citation omitted). We have therefore repeatedly concluded that "[b]ecause the substantive due process is violated at the moment the harm occurs, the existence of a post-deprivation state remedy should not have any bearing on whether a cause of action exists under @ 1983." Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986). See Shah v. County of los Angeles, 797 F.2d 743, 746 (9th Cir. 1986); McRorie v. Shimoda, 795 F.2d 780, 785-86 (9th Cir. 1986);; Gaut v. Sunn, 792 F.2d 874, 876 (9th Cir. 1986); Mann v. City of Tucson, 782 F.2d 790, 792-93 (9th Cir. 1986). Dismissal of the plaintiffs' section 1983 claims was therefore improper to the extent that the complaint stated valid claims for relief for violations of substantive rather than procedural constitutional rights. n5 We address each of the constitutional claims asserted by each of the plaintiffs in turn, reviewing the claims de novo. Guillory v. County of Orange, 731 F.2d 1379, 1381 [*8] (9th Cir. 1984). In conducting this review we presume that the facts alleged in the complaint are true and construe them in the ligth most favorable to the appellant. North Star Intern. v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). Dismissal is improper "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Franklin v. Oregon, 662 F.2d 1337, 1343 (9th cir. 1981) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). n5 Liability under section 1983 lies where (1) "the conduct complained of was committed by a person acting under color of state law; and (2) . . . this conduct deprived a person of rights, privileges, or immunities secured by the Constitutional or laws of the United States." Parratt, 451 U.S. at 535. There is not dispute here that the alleged conduct by officers Mejia and Smith satisfies the "under color of state law" requirement, as they "were clothed with the legitimacy of the government and were purporting to act thereunder." Haygood, 769 F.2d at 1354. We thus focus solely on whether the plaintiffs have been deprived of any constitutional rights. [*9] III FOURTH AMENDMENT CLAIMS The estate's first legal theory is that the officers' actions and the City's policies violated Mr. Smith's Fourth Amendment rights. In Tennessee v. Garner, the Supreme Court held that "apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." n6 471 U.S. 1,7 (1985). Where a victim of a seizure alleges that officers unreasonably employed excessive force under the circumstances in order to detain or subdue her, the "reasonableness of force should be analyzed in light of such factors as the requirements for the officers' safety, the motivation for the arrest [or detention], and the extent of the injury inflicted." McKenzie v. Lamb, 738 F.2d 1005, 1011 (9th Cir. 1984). Hence, an allegation that force used during a personal seizure was excessive as measured by these factors states a claim for relief under section 1983 predicated upon the Fourth Amendment. See Garner, 471 U.S. at 9 (use of deadly force to prevent escape constitutes an unreasonable seizure unless the officer had probable cause to believe that the suspect poses a threat of serious harm to the officer or others); [*10] PAGE 103 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *10 LEXSEE Robins, 773 F.2d at 1008-10 (allegation that police used excessive force while transporting plaintiffs to police station after arrest states a section 1983 claim for a Fourth Amendment violation); MacDonald v. Musick, 425 F.2d 373, 377 (9th Cir.) (defendant asserting that his arrest was unlawful, that he had a right to resist, and that he sustained injuries as a result of his resistance stated claim under section 1983), cert. denied, 400 U.S. 852 (1970); see also Gilmere v. City of Atlanta, 774 F.2d 1495, 1502 (11th Cir. 1985) (alleged beating and killing of suspect during process of detention stated a section 1983 claim for Fourth Amendment violation), cert. denied, 106 S. Ct. 1970 (1986). The defendants candidly concede that under this case law the complaint's allegations that the decedent was "unarmed and helpless, and in no way posed a threat to the safety of [the officers or] any other persons," Complaint at P 30, and that the defendants' acts were "unwarranted, cruel, inhuman, unjustifiable, and excessive," id. at P 33, are sufficient to state a claim under the Fourth Amendment. See Appellees' Supplemental Brief, at 2. n6 The Fourth Amendment, made applicable to the states through the Fourteenth Amendment in Wolf v. Colorado, 338 U.S. 25 (1949), states in part that the "right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. [*11] The estate can assert this claim on Mr. Smith's behalf. Under section 1988, a section 1983 claim that accrued before death survives the decedent when state law authorizes a survival action as a "suitable remed[y] . . . not inconsistent with the Constitution and laws of the United States . . . ." 42 U.S.C. @ 1988 (1982). See Robertson v. Wegmann, 436 U.S. 584, 588-90 (1978). Under California's survival statute, "no cause of action [is] lost by reason of the death of any person but may be maintained by . . . his . . . administrator." Cal. Prob. Code @ 573 (West Supp. 1986). n7 Therefore, Mr. Smith's Fourth Amendment claim survives his death and can be maintained by plaintiff Sonja Smith in her capacity as administrator of his estate. n8 n7 As an exception to this rule, survival actions may not be brought in California if the decedent's death is instantaneous with her legal injury, see Pease v. Beech Aircraft, 38 Cal. App. 3d 450, 459-60, 113 Cal. Rptr. 416, 422-23 (1974), but the complaint here alleges that Mr. Smith dies approximately one and one-half hours after he was shot. n8 We express no view here as to whether the remedies authorized by California's survival statute, pecuniary and punitive damages but not damages for pain and suffering, are too limited to be "consistent" with the Civil Rights Act's statutory scheme and whether federal law, therefore, provides an independent source of recovery for a broader array of damages. See generally Robertson, 436 U.S. at 594 (explicitly holding question open); Guyton v. Phillips, 532 F. Supp. 1154, 1165-67 (N.D.Cap. 1981) (interpreting federal law as allowing estate to recover compensation for decedent's pain and suffering and for his loss of life itself even though such compensation is unavailable under California's survival statute); Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1187-90 (7th Cir. 1985) (holding Illinois' limited recovery under survival and wrongful death statutes inconsistent with federal law and authorizing awards of damages beyond those expressly provided); Bell v. City of Milwaukee, 746 F.2d 1205, 1235-41, 1250-53 (7th Cir. 1984) (same conclusion with respect to Wisconsin law). [*12] PAGE 104 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *12 LEXSEE Mr. Smith's children, suing in their individual capacities, also assert a claim for relief under the Fourth Amendment. However, the Supreme Court has held that " Fourth Amendment rights are personal rights which . . . may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174 (1969). The children were not directly subjected to the excessive use of state force and therefore cannot maintain personal causes of action under section 1983 in reliance on this Fourth Amendment theory. IV SUBSTANTIVE DUE PROCESS CLAIMS A. The Estate's Substantive Due Process Claims The estate asserts a section 1983 claim under the due process clause of the Fourteenth Amendment. The district court erred in construing this claim as alleging only a procedural due process violation because egregious government conduct in the form of excessive and brutal use of physical force constitutes a violation of substantive due process. See Rutherford, 780 F.2d at 1446 (allegation of unprovoked assault and battery by police officers states a claim for violation of substantive due process); see also Shah, 797 F.2d at 746 ("'intentional unjustified, [and] unprovoked' assault [*13] by a prison guard on a prisoner may be a violation of substantive due process") (citation omitted)' McRorie, 795 F.2d at 785 (allegation of intentional prison guard brutality states cause of action for substantive due process violation); Gaut, 792 F.2d at 875 (prison beatings which "shock the conscience" are actionable as substantive due process violations); Meredith v. Arizona, 523 F.2d 481, 482-84 (9th Cir. 1975) (assault and battery by prison guard violated the right to liberty). As with the Fourth Amendment claim, resolving a substantive due process claim requires courts to balance several factros focusing on the reasonableness of the officer's actions given the circumstances. In Rutherford, we held that "in determining whether the constitutional line has been crosses, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain and restor discipline or maliciously and sadistically for the very purpose of causing harm." 780 F.2d at 1446 (quoting Johnson v. Glick, 481 F.2d [*14] 1028, 1033 (2d Cir. 1973)). Given its focus on these factors, the complaint clearly alleges that Mr. Smith's substantive due process rights were violated and hence the estate pleads a valid due process claim under section 1983. B. The Children's Personal Substantive Due Process Claim The children also plead that the defendants violated their personal "rights not to be deprived of the life of their father and not to be deprived of his love, comfort, and support. . . . " Complaint, at P 40. We conclude that based on this allegation the children state a claim for violation of their substantive due process rights. The Supreme Court has yet to address whether and when the government's act of taking the life of one family member deprives other family members of a PAGE 105 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *14 LEXSEE cognizable liberty interest in continued association with the decedent. Our court, however, has held that parents can challenge under section 1983 a state's severance of a parent-child relationship as interfering with their substantive liberty interests in the companionship and society of their children. In Morrison v. Jones, 607 F.2d 1269 (9th Cir. 1979), cert. denied, 445 U.S. 962 (1980), we held that when county [*15] officials removed a mentally ill boy from his mother's custody on the ground that she could not adequately care for him, the mother could bring a section 1983 action for damages to vindicate her "substantive familial rights that have long been considered the 'basic civil rights of man.'" Id. at 1276 (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). More recently, in Kelson v. City of Springfield, 767 F.2d 651 (9th Cir. 1985), we held that parents who alleged that school officials negligently allowed their son to commit suicide could maintain a section 1983 action to vindicate "their fundamental parental rights guaranteed by the Ninth Amendment . . . and . . . their right to association with their son guaranteed by the First Amendment." Id. at 653. After examining a long line of Supreme Court cases stressing "the importance of familial bonds" and identifying the many times the Supreme Court has applied both substantive and procedural due process to protect the interests of parents "in maintaining a relationship with their children," id. at 654, we conclude that "a parent has a constitutionally protected liberty interest in the companionship and society of [*16] his or her child." Id. at 655. We now hold that this constitutional interest in familial companionship and society logically extends to protect children from unwarranted state interference with their relationships with their parents. The companionship and nurturing interests of parent and child in maintaining a tight familial bond are reciprocal, and we see no reason to accord less constitutional value to the child-parent relationship than we accord to the parent-child relationship. n9 Cf. Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984) ("Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life."). n9 Indeed, if any distinction can be drawn, one might even argue that a child has a greater interest in the continued life of a biological parent that vice versa because often the father has or can have other biological children, whereas a child can never replace a biological parent. We recognize that the Supreme Court cases on which Morrison and Kelson [*17] relied to define the substantive liberty interest in a parent-child relationship involved suits by parents of minor children. The state's interference with the parent-child relationship therefore threatened not only the parents' interest in the companionship of their children, but also the parents' constitutionally-protected interest in raising their children. See, e.g., Santosky v. Kramer, 455 U.S. 745 (1982) (natural parents entitled to procedural due process at a state-initiated parental rights termination proceeding); Lassiter v. Dep't of Social Services, 452 U.S. 18 (1981) (parents entitled to procedural due process prior to state termination of parental status on grounds of unfitness); see also Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (requirement that children attend public school unreasonably interferes with parents' liberty "to direct the upbringing and education of children under their control"). PAGE 106 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *17 LEXSEE When, as in this case, a child claims constitutional protection for her relationship with a parent, there is not custodial interest implicated, but only a companionship interest. This distinction between the parent-child and the child-parent relationships [*18] does not, however, justify constitutional protection for one but not the other. We hold that a child's liberty interest in the companionship and support of a parent is sufficiently weighty by itself that interference with this interest may trigger a violation of substantive due process. Our view finds support in Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986), where parents brought a section 1983 claim against the state for negligently allowing their son to commit suicide in jail. The parents' interest in directing the upbringing of their son was not implicated because the son was twenty-two years old and no longer a minor; the parents therefore "had not been deprived of any constitutional right to parent." Id. at 748 n.1 (emphasis added). However, the parents were able to "claim a violation of their fourteenth amendment due process rights in the companionship and society of the decedent." Id. at 748. Thus, the familial relationship, and not the more narrow custodial interest of the parents, gave rise to the substantive due process action. See also Bell, 746 F.2d at 1245 (parent can assert personal substantive due process claim for death of adult child [*19] because the "Supreme Court's decisions protect more than the custody dimension of the parent-child relationship"); cf. Moore v. City of East Cleveland, 431 U.S. 494 (1977) (extending Supreme Court principles protecting the parental role in raising children to protect a broader set of relationships within the family structure and invalidating under substantive due process a zoning ordinance preventing grandmother and grandson from living together in certain circumstances). n10 n10 We intimate no view as to whether the familial relationship between siblings is sufficiently constitutionally protected as to allow one sibling to assert a section 1983 action based on the death of the other. Compare Turjillo v. County Commissioners, 768 F.2d 1186 (10th Cir. 1985) (siblings can bring section 1983 claims for substantive due process violations resulting from wrongful death), with Bell, 746 F.2d 1205 (siblings cannot do so). Our conclusion also finds compelling support in the legislative history of section 1983's precursor, the Ku Klux Klan Act of 1871. Representative Butler described the Act "as a remedy for wrongs, arsons, and murders done. This is what we offer to a man whose [*20] house has been burned, as a remedy; to the woman whose husband has been murdered, as a remedy; to the children whose father has been killed, as a remedy." Cong. Globe, 42d Cong., 1st Sess. 807 (1871) (emphasis added). Indeed, the "legislative history makes a clearer case for recovery to the child due to loss of support or loss of society and companionship of a parent. . . [than for] the parent's rights [for recovery] vis-a-vis the loss of a child." Bell, 746 F.2d at 1244 (emphasis added). Both case law and legislative history thus lead us to the conclusion that Mr. Smith's adult and minor children all state valid section 1983 claims for violations of their personal substantive due process rights under the Fourteenth Amendment. n11 n11 We recognize that at least one circuit has held that plaintiffs must allege an intentional interference with a parent-child relationship to state a claim under this substantive due process theory. See Trujillo, 768 F.2d at 1190. However, our circuit had not adopted such a state of mind requirement. See Kelson, 767 F.2d at 652 (substantive due process claim stated where state's interference with parent-child relationship resulted from negligence). [*21] PAGE 107 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *21 LEXSEE V EQUAL PROTECTION CLAIMS The complaint alleges that the City had an unwritten policy authorizing excessive force against blacks and that pursuant to that policy officers Smith and Mejia used excessive force to subdue decedent Mr. Smith because he was black. If these facts are proved, Mr. Smith was "personally denied equal treatment solely because of [his] membership in a disfavored group." Heckler v. Mathews, 465 U.S. 728, 740 (1984). Accordingly, the estate may maintain a survival action against all defendants for damages suffered by Mr. Smith as a result of the shooting incident. n12 n12 We reach this conclusion subject to one important caveat: the complaint may be deficient with respect to its allegation that the City adopted an "official policy" giving rise to municipal liability under Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1978). The unwritten "policy" averred in the complaint is the "failure of the defendants to provide training, instruction and supervision regarding the lawful use of an officer's service revolver and the use of excessive and deadly force" and the failure to enforce departmental regulations creating an "atmosphere of lawlessness." Complaint, at PP 49-50. Because the district court did not reach the issue and the parties did not brief it on appeal, we do not consider whether the facts alleged in the complaint, if proved, would establish municipal liability under Monell and its progeny. See generally City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) (raising but not resolving the question whether a "policy" of inadequate police training meets initial resolution by the district court upon remand. See Kelson, 767 F.2d at 656. We also note that the individual City supervisory officials are liable only if the plaintiffs demonstrate an "affirmative link between the occurrence of the . . . police misconduct and the adoption of any policy or plan by . . .[the officials] -- express or otherwise -- showing their authorization or approval of such misconduct." Rizzo v. Goode, 423 U.S. 362, 371 (1976). Whether such a link exists here of course depends on whether anyone adopted a plan or policy cognizable under Monell, and hence this question is also appropriately left for the district court upon remand. [*22] The children also assert an equal protection challenge, focusing not on the shooting incident itself, n13 but rather on the possibility that similar race-based incidents will occur in the future. Specifically, the children allege that the propensity of officers Mejia and Smith to employ excessive force against black residents in the future and the City's and supervisory officials' sanction and encouragement of such a practice by all City police officers threaten the physical security of all black people within the jurisdiction of the Fontana Police Department. Fearing future injury at the hands of the Fontana police because of their race, the children seek injunctive relief against officers Mejia and Smith barring them from active street duty and seek a declaratory judgment that the City's discriminatory policy is unconstitutional. We agree with the children that the alleged individual propensities and institutional practice, if proved, would deny them the same protection against abuse by law enforecement officers that white residents enjoy. Therefore, the children assert a valid cause of action under the equal protection clause to challenge all defendants' ongoing practice of discriminating [*23] against black residents. Dismissal of this claim under Fed. R. Civ. P. 12(b) (6) was PAGE 108 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *23 LEXSEE therefore improper. n14 n13 We do not address the difficult question whether the children could state a claim for damages under the equal protection clause based on the police shooting of their father. We do not interpret their complaint as pleading this claim, and they have not raised it in their briefs filed with this court. n14 We do not address the question whether, if the facts alleged in the complaint are proved, the children would necessarily be entitled to either injunctive or declaratory relief. See Davis v. Passman, 442 U.S. 228, 239 (1979) ("[T]he question whether a litigant has a 'cause of action' is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive."). VI REMAINING CONSTITUTIONAL CLAIMS The plaintiffs also alleged violations of their First, Fifth, and Eighth Amendment rights. Because these rights are all substantive in nature, Parratt's focus on post-deprivation remedies is inapposite. However, these claims were all properly dismissed because the plaintiffs fail to state a claim for relief with respect [*24] to these rights. Except insofar as the First Amendment right to intimate association is relevant to the children's ability to assert a substantive due process claim, ante at , the complaint alleges no action of the officers or the city defendants that could conceivably implicate First Amendment concerns. The plaintiffs do not allege that the officers' action or the City's policy was designed to or had the effect of interfering with the decedent's or the children's ability to exercise their rights of free speech or association. Because the Fifth Amendment claim must rest either on that Amendment's due process clause or its implicit equal protection clause, any Fifth Amendment claim is merely duplicative of the Fourteenth Amendment claims. The Eighth Amendment protects only those who have been convicted of a crime, see Bell v. Wofish, 441 U.S. 520, 535 n.16 (1979), and therefore none of the plaintiffs can claim its protection here. n15 n15 The district court did not treat separately the plaintiffs' claim that the defendants violated 42 U.S.C. @ 1981 by denying them "the full and equal benefit of all laws and proceedings for the security of persons . . . as is enjoyed by white citizens . . . ." Because Parratt places limitations only on procedural due process actions under section 1983, Parratt does not justify dismissal of the section 1981 claim. Because the issue was not briefed on appeal, we do not address the question whether the plaintiffs state a cause of action under section 1981. [*25] VII CONCLUSION We hold that Mr. Smith's estate has properly stated a section 1983 claim for damages against all defendants for violations of his Fourth Amendment rights, against all defendants for violations of his Fourteenth Amendment substantive due process rights, and against all defendants for violations of his Fourteenth Amendment equal protection rights. We also hold that Mr. Smith's children have stated a section 1983 claim for damages against all defendants for violations PAGE 109 818 F.2d 1411; 1987 U.S. App. LEXIS 800, *25 LEXSEE of their substantive due process rights and a cause of action for injunctive relief but not damages against all defendants for violations of their Fourteenth Amendment equal protection rights. The district court's dismissal of the plaintiffs' action is therefore reversed. REVERSED AND REMANDED.