The issuein 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.
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 passenger. 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
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.
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. 1250 (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"),
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. 702, 719 (1997), 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, 474 U.S. 327, 331 (1986); see also Zinermon v. Burch, 494 U.S. 113, 125 (1990) (noting that substantive due process violations are actionable under § 1983). The allegation here that Lewis was deprived of his right to life in violation of substantive due process amounts to such a claim, that under the circumstances described earlier, Smith's actions in causing Lewis's death were an abuse of executive power so clearly unjustified by any legitimate objective of law enforcement as to be barred by the Fourteenth Amendment. Cf. Collins v. Harker Heights, 503 U.S. 115, 126 (1992) (noting that the Due Process Clause was intended to prevent government officials "` "from abusing [their] power, or employing it as an instrument of oppression"` ") (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 196 (1989), in turn quoting Davidson v. Cannon, 474 U.S. 344, 348 (1986)).
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, 490 U.S. 386 (1989), 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, 510 U.S. 266, 273 (1994) (plurality opinion of Rehnquist, C. J.) (quoting Graham v. Connor, supra, at 395) (internal quotation marks omitted). Given the rule in Graham, we were presented at oral argument with the threshold issue raised in several amicus briefs,
The argument is unsound. Just last Term, we explained that Graham
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," 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., 499 U.S. 621,
Since the time of our early explanations of due process, we have understood the core of the concept to be protection against arbitrary action:
We have emphasized time and again that "[t]he touchstone of due process is protection of the individual against arbitrary action of government," Wolff v. McDonnell, 418 U.S. 539, 558 (1974), whether the fault lies in a denial of fundamental
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, 503 U. S., at 129, thereby recognizing the point made in different circumstances by Chief Justice Marshall, "`that it is a constitution we are expounding,' " Daniels v. Williams, supra, at 332 (quoting McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original)). Thus, in Collins v. Harker Heights, for example, we said that the Due Process Clause was intended to prevent government officials "` "from abusing [their] power, or employing it as an instrument of oppression."` " 503 U. S., at 126 (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S., at 196, in turn quoting Davidson v. Cannon, 474 U. S., at 348).
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
Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but "less than intentional conduct, such as recklessness or `gross negligence,' " id., at 334, n. 3, is a matter for closer calls.
Rules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking. What we have said of due process in the procedural sense is just as true here:
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
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
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, 490 U. S., at 397 ("[P]olice officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving"). A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the highspeed threat to all those within stopping range, be they suspects, their passengers, other drivers, or bystanders.
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. Wil-
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, ¶ 8, "reckless and careless," id., at 12, ¶15, "recklessness, gross negligence and conscious disregard for [Lewis's] safety," id., at 13, ¶18, 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.
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.
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 846-847. 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.
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. 702 (1997); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992); Collins v. Harker Heights, 503 U.S. 115, 125-128 (1992); Michael H. v. Gerald D., 491 U.S. 110 (1989). As a consequence, certain actions are prohibited no matter what procedures attend them. In the case before us, there can be no question that an interest protected by the text of the Constitution is implicated: The actions of the State were part of a causal chain resulting in the undoubted loss of life. We have no definitional problem, then, in determining whether there is an interest sufficient to invoke due process. Cf. Ohio Adult Parole Authority v. Woodard, ante, p. 272.
The Court decides this case by applying the "shocks the conscience" test first recognized in Rochin v. California, 342 U.S. 165, 172-173 (1952), and reiterated in subsequent decisions. The phrase has the unfortunate connotation of a standard laden with subjective assessments. In that respect, it must be viewed with considerable skepticism. As our opinion in Collins v. Harker Heights illustrates, however, the test can be used to mark the beginning point in asking whether or not the objective character of certain conduct is consistent with our traditions, precedents, and historical understanding of the Constitution and its meaning. 503 U. S., at 126-128. As Justice Scalia is correct to point out, we so interpreted the test in Glucksberg. Post, at 860— 861 (opinion concurring in judgment). In the instant case, the authorities cited by Justice Scalia are persuasive, indicating that we would contradict our traditions were we to sustain the claims of the respondents.
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,
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.
Justice Breyer, concurring.
I join the Court's judgment and opinion. I write separately only to point out my agreement with Justice Stevens, post, at 859, that Siegert v. Gilley, 500 U.S. 226 (1991), should not be read to deny lower courts the flexibility, in appropriate cases, to decide 42 U. S. C. § 1983 claims on the basis of qualified immunity, and thereby avoid wrestling with
Justice Stevens, concurring in the judgment.
When defendants in a 42 U. S. C. § 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, 500 U.S. 226 (1991), tells us that we should address the constitutional question at the outset. That is sound advice when the answer to the constitutional question is clear. When, however, the question is both difficult and unresolved, I believe it wiser to adhere to the policy of avoiding the unnecessary adjudication of constitutional questions. Because I consider this such a case, I would reinstate the judgment of the District Court on the ground that the relevant law was not clearly defined in 1990.
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 841-842, n. 5. Yet the Court acknowledges, as it must, that a qualified immunity defense is unavailable in an action against the municipality itself. Ibid. Sound reasons exist for encouraging the development of new constitutional 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.
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. 702, 720-722 (1997), 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:
Today, so to speak, the stone that the builders had rejected has become the foundation stone of our substantive-dueprocess 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 throwback 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 one plus ultra, the Napoleon Brandy, the Mahatma Gandhi, the Cellophane
Adhering to our decision in Glucksberg, rather than ask whether the police conduct here at issue shocks my unelected conscience, I would ask whether our Nation has traditionally protected the right respondents assert. The first step of our analysis, of course, must be a "careful description" of the right asserted, Glucksberg, supra, at 721. Here the complaint alleges that the police officer deprived Lewis "of his Fourteenth Amendment right to life, liberty and property without due process of law when he operated his vehicle with recklessness, gross negligence and conscious disregard for his safety." App. 13. I agree with the Court's conclusion that this asserts a substantive right to be free from "deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender." Ante, at 836; see also ante, at 853.
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." 517 U. S., at 429. Nor have respondents identified any precedential support. Indeed, precedent is to the contrary:
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
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." 489 U. S., at 203. For now, they prefer not to hold public employees "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
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.
Briefsof amici curiae urging affirmance were filedfor the Association of Trial Lawyers of America by Howard A. Friedman and Richard D. Haley; for GabrielTorres et al. by Stephen Yagman and Marion R. Yagman; and for Solutions to the Tragedies of Police Pursuits (STOPP) by Andrew C. Clarke.
Justice Stevens suggests that the rule of Siegert should not apply where, as here, the constitutional question presented "is both difficult and unresolved." Post, at 859. But the generally sound rule of avoiding determination of constitutional issues does not readily fit the situation presented here; when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the officer acted. What is more significant is that if the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or non constitutional. In practical terms, escape from uncertainty would require the issue to arise in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion in a criminal proceeding; in none of these instances would qualified immunity be available to block a determination of law. See Shapiro, Public Officials' Qualified Immunity in Section 1983 Actions Under Harlow v. Fitzgerald and its Progeny, 22 U. Mich. J. L. Ref. 249, 265, n. 109 (1989). But these avenues would not necessarily be open, and therefore the better approach is to determine the right before determining whether it was previously established with clarity.
Glucksberg presented a disagreement about the significance of historical examples of protected liberty in determining whether a given statute could be judged to contravene the Fourteenth Amendment. The differences of opinion turned on the issues of how much history indicating recognition of the asserted right, viewed at what level of specificity, is necessary to support the finding of a substantive due process right entitled to prevail over state legislation.
As we explain in the text, a case challenging executive action on substantive due process grounds, like this one, presents an issue antecedent to any question about the need for historical examples of enforcing a liberty interest of the sort claimed. For executive action challenges raise a particular need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to what we have called a font of tort law. Thus, in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them. Only if the necessary condition of egregious behavior were satisfied would there be a possibility of recognizing a substantive due process right to be free of such executive action, and only then might there be a debate about the sufficiency of historical examples of enforcement of the right claimed, or its recognition in other ways. In none of our prior cases have we considered the necessity for such examples, and no such question is raised in this case.
In sum, the difference of opinion in Glucksberg was about the need for historical examples of recognition of the claimed liberty protection at some appropriate level of specificity. In an executive action case, no such issue can arise if the conduct does not reach the degree of the egregious.