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Held: A police officer does not violate substantive due process by causing death through deliberate or reckless indifference to life in a highspeed automobile chase aimed at apprehending a suspected offender. Pp. 5-21.
(a)
The "more-specific-provision" rule of Graham v. Connor,
(b)
Respondents' allegations are insufficient to state a substantive due process violation. Protection against governmental arbitrariness is the core of due process, e.g., Hurtado v. California,
98 F. 3d 434, reversed.
SOUTER , J., delivered the opinion of the Court, in which REHNQUIST , C. J., and O'CONNOR , KENNEDY , GINSBURG , and BREYER , JJ., joined. REHNQUIST , C. J., filed a concurring opinion. KENNEDY , J., filed a concurring opinion, in which O'CONNOR , J., joined. BREYER , J., filed a concurring opinion. STEVENS , J., filed an opinion concurring in the judgment. SCALIA , J., filed an opinion concurring in the judgment, in which THOMAS , J., joined.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
No. 96-1337
COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS
ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 26, 1998]
JUSTICE SOUTER delivered the opinion of the Court.
The issue in this case is whether a police officer violates the Fourteenth Amendment's guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender. We answer no, and hold that in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.
I
On May 22, 1990, at approximately 8:30 p.m., petitioner James Everett Smith, a Sacramento County sheriff's deputy, along with another officer, Murray Stapp, responded to a call to break up a fight. Upon returning to his patrol car, Stapp saw a motorcycle approaching at high speed. It was operated by 18-year-old Brian Willard and carried Philip Lewis, respondents' 16-year-old decedent, as a pas senger. Neither boy had anything to do with the fight that prompted the call to the police.
Stapp turned on his overhead rotating lights, yelled to the boys to stop, and pulled his patrol car closer to Smith's, attempting to pen the motorcycle in. Instead of pulling over in response to Stapp's warning lights and commands, Willard slowly maneuvered the cycle between the two police cars and sped off. Smith immediately switched on his own emergency lights and siren, made a quick turn, and began pursuit at high speed. For 75 seconds over a course of 1.3 miles in a residential neighborhood, the motorcycle wove in and out of oncoming traffic, forcing two cars and a bicycle to swerve off of the road. The motorcycle and patrol car reached speeds up to 100 miles an hour, with Smith following at a distance as short as 100 feet; at that speed, his car would have required 650 feet to stop.
The chase ended after the motorcycle tipped over as Willard tried a sharp left turn. By the time Smith slammed on his brakes, Willard was out of the way, but Lewis was not. The patrol car skidded into him at 40 miles an hour, propelling him some 70 feet down the road and inflicting massive injuries. Lewis was pronounced dead at the scene.
Respondents, Philip Lewis's parents and the representatives of his estate, brought this action under Rev. Stat. §1979, 42 U.S.C. § 1983 against petitioners Sacramento County, the Sacramento County Sheriff's Department and Deputy Smith, alleging a deprivation of Philip Lewis's Fourteenth Amendment substantive due process right to life. 1
The District Court granted summary judgment for Smith, reasoning that even if he violated the Constitution, he was entitled to qualified immunity, because respondents could point to no "state or federal opinion published before May, 1990, when the alleged misconduct took place, that supports [their] view that [the decedent had] a Fourteenth Amendment substantive due process right in the context of high speed police pursuits." App. to Pet. for Cert. 52. 2
The Court of Appeals for the Ninth Circuit reversed, holding that "the appropriate degree of fault to be applied to high-speed police pursuits is deliberate indifference to, or reckless disregard for, a person's right to life and personal security," 98 F. 3d 434, 441 (1996), and concluding that "the law regarding police liability for death or injury caused by an officer during the course of a high-speed chase was clearly established" at the time of Philip Lewis's death, id. , at 445. Since Smith apparently disregarded the Sacramento County Sheriff's Department's General Order on police pursuits, the Ninth Circuit found a genuine issue of material fact that might be resolved by a finding that Smith's conduct amounted to deliberate indifference:
Accordingly, the Court of Appeals reversed the summary judgment in favor of Smith and remanded for trial.
We granted certiorari, 520 U. S. ___ (1997), to resolve a conflict among the Circuits over the standard of culpability on the part of a law enforcement officer for violating substantive due process in a pursuit case. Compare 98 F. 3d, at 441 ("deliberate indifference" or "reckless disregard"), 3
with Evans v. Avery , 100 F. 3d 1033, 1038 (CA1 1996) ("shocks the conscience"), cert. denied, 520 U. S. ___ (1997), Williams v . Denver , 99 F. 3d 1009, 10141015 (CA10 1996) (same), Fagan v. Vineland , 22 F. 3d 1296, 1306-1307 (CA3 1994) (en banc) (same), Temkin v. Frederick County Commissioners , 945 F. 2d 716, 720 (CA4 1991) (same), cert. denied,
II
Our prior cases have held the provision that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law," U. S. Const., Amdt. 14, §1, to "guarante[e] more than fair process," Washington v. Glucksberg , 521 U. S. ___, ___ (1997) (slip op., at 15), and to cover a substantive sphere as well, "barring certain government actions regardless of the fairness of the procedures used to implement them," Daniels v. Williams,
Leaving aside the question of qualified immunity, which formed the basis for the District Court's dismissal of their case, 5
respondents face two principal objections to their claim. The first is that its subject is necessarily governed by a more definite provision of the Constitution (to the exclusion of any possible application of substantive due process); the second, that in any event the allegations are insufficient to state a substantive due process violation through executive abuse of power. Respondents can meet the first objection, but not the second.
A
Because we have "always been reluctant to expand the concept of substantive due process," Collins v. Harker Heights, supra , at 125, we held in Graham v. Connor that "[w]here a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Albright v. Oliver,
whether facts involving a police chase aimed at apprehending suspects can ever support a due process claim. The argument runs that in chasing the motorcycle, Smith was attempting to make a seizure within the meaning of the Fourth Amendment, and, perhaps, even that he succeeded when Lewis was stopped by the fatal collision. Hence, any liability must turn on an application of the reasonableness standard governing searches and seizures, not the due process standard of liability for constitutionally arbitrary executive action. See Graham v. Connor, supra , at 395 (" all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach"); Albright v. Oliver,
The argument is unsound. Just last Term, we explained that Graham
tional claim is covered by a specific constitutional pro-
vision, such as the Fourth or Eighth Amendment, the
claim must be analyzed under the standard appropri-
ate to that specific provision, not under the rubric of
substantive due process." United States v. Lanier , 520
U. S. ___ , ___ ,n. 7, (1997) (slip op., at 13). Substantive due process analysis is therefore inappropriate in this case only if respondents' claim is "covered by" the Fourth Amendment. It is not.
The Fourth Amendment covers only "searches and seizures," U. S. Const., Amdt. 4, neither of which took place here. No one suggests that there was a search, and our cases foreclose finding a seizure. We held in California v. Hodari D.,
B
Since the time of our early explanations of due process, we have understood the core of the concept to be protection against arbitrary action:
Charta, incorporated into the Constitution of Mary-
land, after volumes spoken and written with a view to
their exposition, the good sense of mankind has at last
settled down to this: that they were intended to se-
cure the individual from the arbitrary exercise of the
powers of government, unrestrained by the estab-
lished principles of private right and distributive jus-
tice.' " Hurtado v. California,
Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be "arbitrary in the constitutional sense," Collins v. Harker Heights,
To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. We first put the test this way in Rochin v. California, supra, at 172-173, where we found the forced pumping of a suspect's stomach enough to offend due process as conduct "that shocks the conscience" and violates the "decencies of civilized conduct." In the intervening years we have repeatedly adhered to Rochin 's benchmark. See, e.g. , Breithaupt v. Abram,
To be sure, we have expressly recognized the possibility that some official acts in this range may be actionable under the Fourteenth Amendment, ibid. , and our cases have compelled recognition that such conduct is egregious enough to state a substantive due process claim in at least one instance. We held in City of Revere v. Massachusetts Gen. Hospital,
Thus, attention to the markedly different circumstances of normal pretrial custody and high-speed law enforcement chases shows why the deliberate indifference that shocks in the one case is less egregious in the other (even assuming that it makes sense to speak of indifference as deliberate in the case of sudden pursuit). As the very term "deliberate indifference" implies, the standard is sensibly employed only when actual deliberation is practical, see Whitley v. Albers,
and in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare.
Nor does any substantial countervailing interest excuse the State from making provision for the decent care and protection of those it locks up; "the State's responsibility to attend to the medical needs of prisoners [or detainees] does not ordinarily clash with other equally important governmental responsibilities." Whitley v. Albers, supra , at 320. 12 But just as the description of the custodial prison situation shows how deliberate indifference can rise to a constitutionally shocking level, so too does it suggest why indifference may well not be enough for liability in the different circumstances of a case like this one. We have, indeed, found that deliberate indifference does not suffice for constitutional liability (albeit under the Eighth Amendment) even in prison circumstances when a prisoner's claim arises not from normal custody but from response to a violent disturbance. Our analysis is instructive here:
We accordingly held that a much higher standard of fault than deliberate indifference has to be shown for officer liability in a prison riot. In those circumstances, liability should turn on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Id. , at 320-321 (internal quotation marks omitted). The analogy to sudden police chases (under the Due Process Clause) would be hard to avoid.
Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made "in haste, under pressure, and frequently without the luxury of a second chance." Id. , at 320; cf. Graham v. Connor ,
To recognize a substantive due process violation in these circumstances when only mid-level fault has been shown would be to forget that liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking. But when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates "the large concerns of the governors and the governed." Daniels v. Williams ,
The fault claimed on Smith's part in this case accordingly fails to meet the shocks-the-conscience test. In the count charging him with liability under §1983, respondents' complaint alleges a variety of culpable states of mind: "negligently responsible in some manner," (App. 11, Count one, #2668), "reckless and careless" ( id., at 12, #26615), "recklessness, gross negligence and conscious disregard for [Lewis's] safety" ( id., at 13, #26618), and "oppression, fraud and malice" (Ibid.) The subsequent summary judgment proceedings revealed that the height of the fault actually claimed was "conscious disregard," the malice allegation having been made in aid of a request for punitive damages, but unsupported either in allegations of specific conduct or in any affidavit of fact offered on the motions for summary judgment. The Court of Appeals understood the claim to be one of deliberate indifference to Lewis's survival, which it treated as equivalent to one of reckless disregard for life. We agree with this reading of respondents' allegations, but consequently part company from the Court of Appeals, which found them sufficient to state a substantive due process claim, and from the District Court, which made the same assumption arguendo . 14 Smith was faced with a course of lawless behavior for which the police were not to blame. They had done nothing to cause Willard's high-speed driving in the first place, nothing to excuse his flouting of the commonly understood law enforcement authority to control traffic, and nothing (beyond a refusal to call off the chase) to encourage him to race through traffic at breakneck speed forcing other drivers out of their travel lanes. Willard's outrageous behavior was practically instantaneous, and so was Smith's instinctive response. While prudence would have repressed the reaction, the officer's instinct was to do his job as a law enforcement officer, not to induce Willard's lawlessness, or to terrorize, cause harm, or kill. Prudence, that is, was subject to countervailing enforcement considerations, and while Smith exaggerated their demands, there is no reason to believe that they were tainted by an improper or malicious motive on his part.
Regardless whether Smith's behavior offended the reasonableness held up by tort law or the balance struck in law enforcement's own codes of sound practice, it does not shock the conscience, and petitioners are not called upon to answer for it under §1983. The judgment below is accordingly reversed.
It is so ordered. ----- judges interpreting the basic charter of Government for the entire coun- try"). Cf. Thomas v. City of Richmond , 9 Cal. 4th 1154, 892 P. 2d 1185 (1995) (en banc) (discussing municipal liability under California law for injuries caused by police pursuits).
Notes
1 Respondents also brought claims under state law. The District Court found that Smith was immune from state tort liability by operation of California Vehicle Code §17004, which provides that "[a] public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle . . . when in the immediate pursuit of an actual or suspected violator of the law." Cal. Veh. Code Ann. §17004 (West 1971). The court declined to rule on the potential liability of the County under state law, instead dismissing the tort claims against the County without prejudice to refiling in state court.
2 The District Court also granted summary judgment in favor of the County and the Sheriff's Department on the §1983 claim, concluding that municipal liability would not lie under Monell v. New York City Dept. of Social Servs.,
3 In Jones v. Sherrill , 827 F. 2d 1102, 1106 (1987), the Sixth Circuit adopted a "gross negligence" standard for imposing liability for harm caused by police pursuit. Subsequently, in Foy v. Berea , 58 F. 3d 227, 230 (1995), the Sixth Circuit, without specifically mentioning Jones , disavowed the notion that "gross negligence is sufficient to support a substantive due process claim." Although Foy involved police inaction, rather than police pursuit, it seems likely that the Sixth Circuit would now apply the "deliberate indifference" standard utilized in that case, see 58 F. 3d, at 232-233, rather than the "gross negligence" standard adopted in Jones , in a police pursuit situation.
4 Respondents do not argue that they were denied due process of law by virtue of the fact that California's post-deprivation procedures and rules of immunity have effectively denied them an adequate opportunity to seek compensation for the state-occasioned deprivation of their son's life. We express no opinion here on the merits of such a claim, cf. Albright v. Oliver,
5 As in any action under §1983, the first step is to identify the exact contours of the underlying right said to have been violated. See Graham v. Connor,
6 See Brief for National Association of Counties et al. as Amici Curiae 8-13; Brief for Grand Lodge of the Fraternal Order of Police as Amicus Curiae 4-9; Brief for City and County of Denver, Colorado as Amici Curiae 2-7; Brief for County of Riverside et al. as Amici Curiae 6-18; Brief for Gabriel Torres et al. as Amici Curiae 3-11.
7 Several amici suggest that, for the purposes of Graham , the Fourth Amendment should cover not only seizures, but also failed attempts to make a seizure. See, e.g. , Brief for National Association of Counties et al. as Amici Curiae 10-11. This argument is foreclosed by California v. Hodari D. , in which we explained that "neither usage nor common-law tradition makes an attempted seizure a seizure. The common law may have made an attempted seizure unlawful in certain circumstances; but it made many things unlawful, very few of which were elevated to constitutional proscriptions."
8 As JUSTICE SCALIA has explained before, he fails to see "the usefulness of 'conscience shocking' as a legal test," Herrera v. Collins,
9 In Rochin v. California ,
10 We have also employed deliberate indifference as a standard of culpability sufficient to identify a dereliction as reflective of municipal policy and to sustain a claim of municipal liability for failure to train an employee who causes harm by unconstitutional conduct for which he would be individually liable. See Canton v. Harris,
11 By "actual deliberation," we do not mean "deliberation" in the narrow, technical sense in which it has sometimes been used in traditional homicide law. See, e.g. Caldwell v. State , 84 So. 272, 276 (Ala. 1919) (noting that " 'deliberation here does not mean that the man slayer must ponder over the killing for a long time' "; rather, "it may exist and may be entertained while the man slayer is pressing the trigger of the pistol that fired the fatal shot[,] even if it be only for a moment or instant of time").
12 Youngberg v. Romeo,
13 Cf. Checki v. Webb , 785 F. 2d 534, 538 (CA5 1986) ("Where a citizen suffers physical injury due to a police officer's negligent use of his vehicle, no section 1983 claim is stated. It is a different story when a citizen suffers or is seriously threatened with physical injury due to a police officer's intentional misuse of his vehicle") (citation omitted).
14 To say that due process is not offended by the police conduct described here is not, of course, to imply anything about its appropriate treatment under state law. See Collins v. Harker Heights ,
No. 96-1337
COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS
ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 26, 1998]
CHIEF JUSTICE REHNQUIST , concurring.
I join the opinion of the Court in this case. The first question presented in the County's petition for certiorari is:
The County's petition assumed that the constitutional question was one of substantive due process, and the parties briefed the question on that assumption. The assumption was surely not without foundation in our case law, as the Court makes clear. Ante , at 12-13. The Court is correct in concluding that "shocks the conscience" is the right choice among the alternatives posed in the question presented, and correct in concluding that this demanding standard has not been met here.
No. 96-1337
COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS
ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 26, 1998]
JUSTICE KENNEDY , with whom JUSTICE O'CONNOR joins, concurring.
I join the opinion of the Court, and write this explanation of the objective character of our substantive due process analysis.
The Court is correct, of course, in repeating that the prohibition against deprivations of life, liberty, or property contained in the Due Process Clause of the Fourteenth Amendment extends beyond the command of fair procedures. It can no longer be controverted that due process has a substantive component as well. See, e.g., Washington v. Glucksberg, 521 U. S. ___ (1997); Planned Parenthood of Southeastern Pa. v. Casey,
What we do confront is the question of the standard of conduct the Constitution requires the State, in this case the local police, to follow to protect against the unintentional taking of life in the circumstances of a police pursuit. Unlike the separate question whether or not, given the fact of a constitutional violation, the state entity is liable for damages, see Monell v. New York City Dept. of Social Servs.,
The Court decides this case by applying the "shocks the conscience" test first recognized in Rochin v. California,
That said, it must be added that history and tradition are the starting point, but not in all cases the ending point of the substantive due process inquiry. There is room as well for an objective assessment of the necessities of law enforcement, in which the police must be given substantial latitude and discretion, acknowledging, of course, the primacy of the interest in life which the State, by the Fourteenth Amendment, is bound to respect. I agree with the Court's assessment of the State's interests in this regard. Absent intent to injure, the police, in circumstances such as these, may conduct a dangerous chase of a suspect who disobeys a lawful command to stop when they determine it is appropriate to do so. There is a real danger in announcing a rule, or suggesting a principle, that in some cases a suspect is free to ignore a lawful police command to stop. No matter how narrow its formulation, any suggestion that suspects may ignore a lawful command to stop and then sue for damages sustained in an ensuing chase might cause suspects to flee more often, increasing accidents of the kind which occurred here.
Though I share JUSTICE SCALIA 's concerns about using the phrase "shocks the conscience" in a manner suggesting that it is a self-defining test, the reasons the Court gives in support of its judgment go far toward establishing that objective considerations, including history and precedent, are the controlling principle, regardless of whether the State's action is legislative or executive in character. To decide this case, we need not attempt a comprehensive definition of the level of causal participation which renders a State or its officers liable for violating the substantive commands of the Fourteenth Amendment. It suffices to conclude that neither our legal traditions nor the present needs of law enforcement justify finding a due process violation when unintended injuries occur after the police pursue a suspect who disobeys their lawful order to stop.
No. 96-1337
COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS
ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 26, 1998]
JUSTICE BREYER , concurring.
I join the Court's judgment and opinion. I write separately only to point out my agreement with JUSTICE STEVENS , ante , at 1, that Siegert v. Gilley ,
No. 96-1337
COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS
ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 26, 1998]
JUSTICE STEVENS , concurring in the judgment.
When defendants in a §1983 action argue in the alternative (a) that they did not violate the Constitution, and (b) that in any event they are entitled to qualified immunity because the constitutional right was not clearly established, the opinion in Siegert v. Gilley ,
The Court expresses concern that deciding the immunity issue without resolving the underlying constitutional question would perpetuate a state of uncertainty in the law. Ante , at 7 n. 5. Yet the Court acknowledges, as it must, that a qualified immunity defense is unavailable in an action against the municipality itself. Id. Sound reasons exist for encouraging the development of new consti tutional doctrines in adversarial suits against municipalities, which have a substantial stake in the outcome and a risk of exposure to damages liability even when individual officers are plainly protected by qualified immunity.
In sum, I would hold that Officer Smith is entitled to qualified immunity. Accordingly, I concur in the Court's judgment, but I do not join its opinion.
No. 96-1337
COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS
ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 26, 1998]
JUSTICE SCALIA , with whom JUSTICE THOMAS joins, concurring in the judgment.
Today's opinion gives the lie to those cynics who claim that changes in this Court's jurisprudence are attributable to changes in the Court's membership. It proves that the changes are attributable to nothing but the passage of time (not much time, at that), plus application of the ancient maxim, "That was then, this is now."
Just last Term, in Washington v. Glucksberg , 521 U. S. ___ , ___ (1997) (slip op., at 15-19), the Court specifically rejected the method of substantive-due-process analysis employed by JUSTICE SOUTER in his concurrence in that case, which is the very same method employed by JUSTICE SOUTER in his opinion for the Court today. To quote the opinion in Glucksberg:
Fourteenth Amendment . . . have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in dueprocess judicial review." Id., at ___ (slip op., at 1617). Today, so to speak, the stone that the builders had rejected has become the foundation-stone of our substantivedue-process jurisprudence. The atavistic methodology that JUSTICE SOUTER announces for the Court is the very same methodology that the Court called atavistic when it was proffered by JUSTICE SOUTER in Glucksberg . In fact, if anything, today's opinion is even more of a throw-back to highly subjective substantive-due-process methodologies than the concurrence in Glucksberg was. Whereas the latter said merely that substantive due process prevents "arbitrary impositions" and "purposeless restraints" (without any objective criterion as to what is arbitrary or purposeless), today's opinion resuscitates the ne plus ultra , the Napoleon Brandy, the Mahatma Ghandi, the Ce lophane 1
of subjectivity, th' ol' "shocks-the-conscience" test. According to today's opinion, this is the measure of arbitrariness when what is at issue is executive rather than legislative action. Ante , at 12. 2
Glucksberg , of course, rejected "shocks-the-conscience," just as it rejected the less subjective "arbitrary action" test. A 1992 executive-action case, Collins v. Harker Heights,
Respondents provide no textual or historical support for this alleged due process right, and, as in Carlisle , I would "decline to fashion a new due process right out of thin air."
To hold, as respondents urge, that all government conduct deliberately indifferent to life, liberty, or property, violates the Due Process Clause would make " 'the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.' " Daniels, supra, at 332, quoting Paul v. Davis,
If the people of the State of California would prefer a system that renders police officers liable for reckless driving during high-speed pursuits, "[t]hey may create such a system . . . by changing the tort law of the State in accordance with the regular lawmaking process."
I would reverse the judgment of the Ninth Circuit, not on the ground that petitioners have failed to shock my still, soft voice within, but on the ground that respondents offer no textual or historical support for their alleged due process right. Accordingly, I concur in the judgment of the Court.
[ Footnote 1 ] For those unfamiliar with classical music, I note that the exemplars of excellence in the text are borrowed from Cole Porter's "You're the Top," copyright 1934.
[
Footnote 2
] The proposition that "shocks-the-conscience" is a test applicable only to executive action is original with today's opinion. That has never been suggested in any of our cases, and in fact "shocks-the-conscience" was recited in at least one opinion involving legislative action. See United States v. Salerno,
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Citation: 523 U.S. 833
No. 96-1337
Argued: December 09, 1997
Decided: May 26, 1998
Court: United States Supreme Court
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