13 Chap. L. Rev. 307 (No PDF)
Chapman Law Review
TIME TO BURY THE SHOCKS THE CONSCIENCE TEST
Copyright (c) 2010 Chapman Law Review; Rosalie Berger Levinson
The Supreme Court has acknowledged that “the Due Process Clause, like its forebear in the Magna Carta, was ‘intended to secure the individual from the arbitrary exercise of the powers of government’ . . . to prevent governmental power from being ‘used for purposes of oppression.”’ Historically, Magna Carta was aimed at limiting the power of the king. Today, substantive due process is invoked to challenge arbitrary deprivations of life, liberty, and property by officials, such as police officers, jail guards, public-school educators, public employers, and members of zoning boards. However, the Supreme Court has emasculated its efficacy as a limitation on executive power. In 1998, in County of Sacramento v. Lewis, it held that the “criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.” Whereas legislative enactments are subject to varying levels of scrutiny depending on the nature of the rights at stake, the Court asserted that only the most egregious executive misconduct, that which “shocks the conscience,” will be actionable.
Since 1998, Lewis has created significant confusion and division in the appellate courts, severely restricting the ability of detainees, students, government employees, and landowners, to bring substantive due process challenges to the arbitrary exercise of power. Some circuits have required that litigants prove that executive misconduct both infringe on a fundamental right and shock the conscience. Because neither employment nor property are regarded as fundamental rights, most allegations of arbitrary treatment brought by government employees and landowners are dismissed. Other appellate courts allow substantive due process challenges to the deprivation of non-fundamental property or liberty interests only where the litigant demonstrates the inadequacy of state law remedies, thereby permitting the vagaries of state tort law to determine the fate of constitutional claims. Further, the appellate courts have interpreted the “shocks the conscience” test to impose a draconian standard, mandating, for example, that detainees demonstrate unnecessary and wanton infliction of pain or that students prove intentional malice or sadism in order to challenge excessive, unwarranted corporal punishment.
The thesis of this Article is that the “shocks the conscience” test, which is founded on a false dichotomy between substantive due process challenges to executive and legislative action, should be rejected. First, it is historically untenable. The core concern of Magna Carta, the source of substantive due process, was to limit executive abuse of power. This was the understanding of those who framed and ratified the Due Process Clause. Thus, it is counterintuitive to make it more difficult for plaintiffs to challenge executive misconduct. Second, Lewis rests on shaky precedent and has not been consistently adhered to by the Supreme Court in subsequent cases. Third, the concern cited by the Court to justify a more stringent standard for executive action–fear of converting § 1983 substantive due process claims into a “font of tort law”–is unfounded and exaggerated. Section 1983 should not drive constitutional interpretation, and immunity defenses already significantly insulate government officials and entities sued for § 1983 damages. Fourth, the numerous circuit conflicts demonstrate that the test has proven to be an unworkable analytical tool.
To restore substantive due process as a meaningful safeguard against arbitrary abuse of government power, Lewis should be overturned. Recognizing, however, the concerns of subjectivity and unbridled discretion that have surrounded the substantive due process conundrum, this Article proposes a new test with specific criteria, extrapolated from various Supreme Court and appellate court decisions, to guide courts in determining when government misconduct should be viewed as an unconstitutional abuse of power.
The Supreme Court has recognized substantive due process as a limitation on all three branches of government–legislative, executive, and judicial. In the nineteenth century, substantive due process was invoked to strike down laws that interfered with economic liberty. Although the Supreme Court subsequently repudiated the close scrutiny to which the Lochner Court subjected economic legislation, the concept that substantive due process protects against arbitrary legislation remains intact. Under economic substantive due process, laws need only be “rationally related to a legitimate state interest.” The challenger has the burden to prove that the legislature “acted in an arbitrary and irrational way.” However, when a statute interferes with certain personal rights heightened scrutiny is used. Under the classic formulation, when a right is classified as fundamental, the state carries the burden of proving that infringement of the right is narrowly tailored to meet a compelling government interest. Further, the Court has at times invalidated laws that interfere with non-fundamental, but core, liberty interests by imposing an undue burden test or a balancing test.
In addition, the Supreme Court has invoked substantive due process to limit “grossly excessive” punitive damage awards imposed by the judicial branch of government. Despite the fact that property, not fundamental liberty, is at stake, such awards have been deemed to violate a defendant’s substantive due process right not to be arbitrarily deprived of one’s property. The Court established a three-prong test for arbitrariness, looking to the reprehensibility of the defendant’s conduct (the most important consideration), the ratio between compensatory and punitive damages (which rarely should exceed single digits), and fines/punishments for the same conduct under state law.
As to the executive branch, the Supreme Court in 1952 recognized that substantive due process protects against wrongdoing by government officials. In Rochin v. California, the Court invoked substantive due process defensively in a criminal proceeding to exclude evidence that was obtained by pumping the defendant’s stomach. The Court stated that substantive due process is violated by conduct that “shocks the conscience” or constitutes force that is “brutal” and “offend[s] even hardened sensibilities.” The shocks the conscience standard appeared to emerge as the test for determining whether misconduct by government officials was so egregious as to violate substantive due process.
In 1998, the Supreme Court, in County of Sacramento v. Lewis, invoked Rochin’s shocks the conscience test to limit the availability of a § 1983 damage action brought against a deputy sheriff who conducted a deadly high-speed chase of two young boys riding a motorcycle after they failed to obey an officer’s command to stop. The Court asserted that, although substantive due process may be used to challenge abuses of executive power, the criteria for such challenges are different from challenges to legislation–they must be limited to the most egregious official conduct. To guard against converting substantive due process into a “font of tort law,” only an abuse of power that shocks the conscience is actionable.
Lewis has led to significant confusion in the appellate courts. Because the Court imposed a unique test for abuses of executive power, some appellate courts have rejected substantive due process challenges, even where fundamental rights are implicated, unless the plaintiff can further prove that the government action was “conscience-shocking.” Thus, those injured by egregious government wrongdoing must prove both a fundamental right and conscience-shocking behavior in order to state a cause of action. This restriction has eliminated substantive due process in many circuits as a source of protection from arbitrary employment decisions or land use decisions that implicate only non-fundamental property or liberty interests. Further, even with regard to fundamental rights, the shocks the conscience standard has been interpreted to limit claims to only the most egregious misconduct “inspired by malice or sadism.”
This Article contends that the Supreme Court took a wrong turn in Lewis when it held that substantive due process claims brought against the executive branch must be subjected to a different, more rigorous standard than challenges to legislative or judicial abuses of power. Part I of this Article describes the birth of the shocks the conscience test and its history from Rochin in 1952 until Lewis in 1998, as well as the appellate courts’ conflicting interpretations of Lewis, which demonstrate that the test has proved to be an unworkable analytic tool. Part II critiques Lewis and explains how the case created a false dichotomy between challenges to legislative versus executive action and imposed an unwarranted standard on those challenging executive misconduct. It describes how the dichotomy is contrary to public originalism and to Supreme Court precedent, both before and after Lewis. Further, it challenges the underlying rationale for the test. Part III proposes a new test for analyzing challenges to executive power that draws on the Supreme Court’s treatment of substantive due process challenges to legislation and punitive damage awards, as well as the appellate courts’ interpretation of the shocks the conscience test.
I. The Birth and Development of the Shocks the conscience Test
A. Stomach Pumping to Secure Evidence Shocks the Conscience
The Supreme Court first utilized the shocks the conscience language in a 1952 decision holding that a conviction based on the use of morphine capsules, which were obtained by pumping the defendant’s stomach to induce vomiting, violated the Due Process Clause of the Fourteenth Amendment. The Court did not draw a distinction between using substantive due process to challenge legislative as compared to executive action. Nor did the Court state that only executive misconduct that shocks the conscience violates substantive due process. Rather, the case must be understood in the context in which it was decided.
In 1952, the Supreme Court Justices were engaged in a battle as to whether the provisions in the Bill of Rights, more specifically the criminal procedural safeguards in the Fourth, Fifth, and Sixth Amendments, applied to the states through the Fourteenth Amendment. Justice Frankfurter, who authored the Rochin opinion, did not believe that the framers of the Amendment intended for it to incorporate these specific guarantees. Rather, he argued that substantive due process protected against any practices that “offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” Justices Black and Douglas concurred in the judgment that the evidence so obtained must be excluded, but they relied instead on the explicit Fifth Amendment Self-Incrimination Clause, which they believed applied equally to the states. Justice Black attacked Justice Frankfurter’s use of substantive due process as lacking fixed content, thereby permitting the Justices to impose their own personal predilections of what offends “a sense of justice” or what runs counter to the “decencies of civilized conduct.” He challenged “the evanescent standards of the majority’s philosophy” as no different from that used during the Lochner period to nullify state laws enacted to suppress evil economic practices.
To justify his use of substantive due process, rather than an “incorporated” Fifth Amendment, Justice Frankfurter conceded that substantive due process lacked specificity, but he protested that “[t]he vague contours of the Due Process Clause do not leave judges at large.” He believed that judges would be guided by “considerations deeply rooted in reason and in the compelling traditions of the legal profession.” It is in this context that he stated that conduct that “shocks the conscience” or “is bound to offend even hardened sensibilities” clearly violates the due process requirement that states “respect certain decencies of civilized conduct.” Justice Frankfurter used the shocks the conscience language, among many other descriptive clauses, to establish that judges may legitimately invoke substantive due process to reach practices that “offend the community’s sense of fair play and decency.”
Significantly, the Justices did not treat Rochin’s claim as a substantive due process challenge to executive action. Rochin challenged the “state rule” that permitted evidence to be introduced despite the fact that it was obtained through coercive means. Indeed, Justice Douglas, in his concurring opinion, questioned how a “rule” that the majority of states followed, which permitted evidence to be used to convict even if it was forcibly extracted, could be viewed as contrary to established tradition. Although Justice Frankfurter focused on the conduct at issue in rejecting the state’s evidentiary rule, his opinion did not draw a distinction between substantive due process challenges to executive as compared to legislative action. As the concurrence noted: “What the majority hold is that the Due Process Clause empowers this Court to nullify any state law if its application ‘shocks the conscience,’ offends ‘a sense of justice’ or runs counter to the ‘decencies of civilized conduct.”’ The majority gave no citation to its use of shocks the conscience language, nor did it state that this is the test that must be used. Rather, this was merely descriptive language, explaining why admitting the ill-begotten morphine capsules to obtain a conviction violated due process.
B. Shocks the Conscience from 1952 through 1998
Over the next forty-six years, from 1952 until the Lewis decision in 1998, the shocks the conscience language from Rochin was utilized in only a handful of majority opinions. The Supreme Court did not distinguish legislative from executive misconduct, nor did it consistently invoke the shocks the conscience test. The three key cases that Lewis relied upon did not support its analysis. The first, Breithaupt v. Abram, applied the shocks the conscience standard in rejecting a habeas petition challenging a police mandate that a physician collect an evidentiary blood sample of an unconscious arrestee. In rejecting the substantive due process claim, the Court explained that numerous states had laws permitting this practice. The Court focused on a legislative rule, which it found did not violate substantive due process.
A second case, United States v. Salerno, considered a substantive due process challenge to the pretrial provisions of the Bail Reform Act of 1984. The Court cited both Rochin’s shocks the conscience standard and fundamental rights analysis: “substantive due process prevents the government from engaging in conduct that shocks the conscience, or interferes with rights implicit in the concept of ordered liberty.” The case clearly involved a challenge to legislative action, not executive misconduct. Rochin was simply invoked as an alternative way to prove a substantive due process violation where fundamental rights were not implicated.
The third case cited to support the Lewis analysis, Youngberg v. Romeo, more clearly involved a challenge to executive action. However, the Supreme Court in Youngberg did not even mention Rochin, nor did it use the shocks the conscience standard. The case raised the substantive due process rights of those who have been involuntarily committed to state institutions. Although recognizing that the decisions of qualified professionals regarding the treatment and conditions of confinement should be deemed presumptively valid, the Court acknowledged that the liberty interest required the state “to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint.” Balancing the competing concerns, the Court held that substantive due process is violated if professional decisions constitute “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” The Court did not mandate that arbitrary professional decisions shock the conscience in order to be actionable.
An analysis of every Supreme Court citation to Rochin from 1952 to 1998 demonstrates that, outside the context of the evidentiary exclusionary rule, the shocks the conscience test was cited much more frequently in dissenting opinions, often rejected, and strongly criticized. It was never considered to be the only standard for challenging executive misconduct, nor was it viewed as supplanting fundamental rights analysis.
C. Lewis Adopts “Shocks the Conscience” as the Exclusive Test to Assess Substantive Due Process Challenges to Executive Misconduct
In 1998, the Supreme Court, in County of Sacramento v. Lewis, addressed a substantive due process challenge in the context of a § 1983 damages action. At issue was the alleged reckless conduct of a deputy sheriff who conducted a deadly high-speed chase of two boys riding a motorcycle after they failed to obey an officer’s command to stop. Phillip Lewis, the passenger, was struck and killed. The Court confirmed that substantive due process could be used to challenge abuses of executive power: “Since the time of our early explanations of due process, we have understood the core of the concept to be protection against arbitrary action . . . .” The majority cautioned, however, that the “criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.” With regard to the latter, only “the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.”’ The Court then invoked Rochin to rule that only an abuse of power that “shocks the conscience” will be actionable.
In Lewis, the Court further refined the Rochin test. It reasoned that government officials who act with “deliberate indifference” to constitutional rights “shock the conscience”–citing, for example, prison guards who are deliberately indifferent to the medical needs of pretrial detainees. However, because deliberate indifference implies the opportunity for actual deliberation, the Court determined that the standard could not reasonably apply to police officers who face a situation calling for fast action. Thus, the Court held that injuries resulting from “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment.” Because the deceased’s family members did not allege that the deputy acted with intent to harm, they failed to meet the shocks the conscience test.
Of key concern to this discussion is the Court’s assertion that substantive due process challenges to executive misconduct must be treated differently than challenges to legislation. As noted, when laws allegedly violate due process, the standard of review depends on the threshold determination of whether the legislative enactment infringes on a fundamental right. In Washington v. Glucksberg, the Court stated that this inquiry must be made “before requiring more than a reasonable relation to a legitimate state interest to justify the action.” Only fundamental rights or liberty interests “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” will trigger strict scrutiny analysis.
With regard to claims of executive misconduct, the Supreme Court has never clearly articulated how this fundamental rights inquiry affects the analysis. Obviously, the importance of the right will inform the shocks the conscience judgment because deprivation of a fundamental liberty interest will be more likely to upset our sensibilities. However, the Court has never ruled that without a fundamental right all judicial inquiry must cease.
In Lewis, Justice Souter recognized the inherent conflict between Glucksberg, which begins its analysis by asking whether a fundamental right is implicated, and the analysis in Lewis, which asks whether executive misconduct shocks the conscience. Specifically, he explained in a footnote:
[E]xecutive 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.
Under Justice Souter’s approach, the question whether particular behavior shocks the conscience would depend in part on a historical review of traditional executive practices. However, this analysis does not appear to mandate further inquiry into the fundamental nature of the right. As held in Rochin, which Justice Souter affirmed as binding precedent, conscience-shocking behavior that deprives a person of liberty itself violates substantive due process.
Several Justices in Lewis questioned the new dichotomy between executive and legislative action. Justice Kennedy, in a concurring opinion, acknowledged that the challenged action–conducting a reckless high-speed chase–implicated an explicit fundamental liberty interest because a life was lost. He asserted that the shocks the conscience 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.” His major concern was that, regardless of whether a plaintiff challenges legislative or executive action, “objective considerations, including history and precedent, are the controlling principle.”
Justice Scalia questioned why substantive due process “protects some liberties against executive officers but not against legislatures.” He opined that Justice Souter’s approach would result in greater, not lesser, substantive due process protection against the actions of executive officers than against the actions of legislatures, apparently because he believed the “threshold question” of egregiousness would overwhelm any consideration of the historical inquiry, thus abandoning the strict fundamental-rights approach articulated in Glucksberg.
The various opinions in Lewis have led the appellate courts to disagree about whether the shocks the conscience standard replaces the fundamental rights analysis set forth in Glucksberg, or whether the standard supplements the historical inquiry into the nature of the asserted liberty interest, as Justice Kennedy’s concurrence suggests. Several different perspectives have emerged in the appellate courts.
D. Appellate Courts’ Conflicting Interpretations of Lewis
Lewis’ shocks the conscience test has proven to be an unworkable analytical tool. It has led to circuit splits on several issues. The appellate courts are divided as to whether only violations of fundamental rights, as opposed to non-fundamental liberty or property interests, are actionable. They also disagree as to whether the existence of state tort remedies defeats the federal cause of action. Further, there are disputes as to what constitutes conscience-shocking behavior, including what “state-of-mind” requirement should be imposed. Finally, there is uncertainty as to whether the conscience-shocking determination is a judge or jury question. The following sections explicate these circuit splits.
1. Conduct Must Infringe on a Fundamental Right and Shock the Conscience
The appellate courts have taken various approaches in seeking to reconcile the Glucksberg analysis, which first examines whether a fundamental right is implicated to determine the appropriate standard of review, with Lewis, which focuses on the egregiousness of the government misconduct. Some appellate courts have ruled that absent a fundamental right, no substantive due process claim challenging executive action may be brought. For example, in Christensen v. County of Boone, the Seventh Circuit rejected a substantive due process claim brought by a couple who complained that they were stalked and trailed by an officer in his squad car as a result of a personal vendetta. Because the couple could not identify a fundamental right that was directly and substantially interfered with by the officer’s conduct, their substantive due process claim failed. Similarly, in Flowers v. City of Minneapolis, the Eighth Circuit rejected claims brought against a police lieutenant who directed his officers to conduct a month-long patrol of a private residence because he did not like the occupants, who had a previous encounter with the police, moving into his neighborhood. The court held that absent a showing that the misconduct violated a fundamental constitutional right and shocked the “contemporary conscience,” no substantive due process violation could be asserted.
The requirement that conduct infringe on a fundamental right has led the majority of appellate courts to reject all claims brought by government employees alleging arbitrary demotions, suspensions, or terminations. Government employees who allege constructive discharge or injury to future ability to earn a living fail to state a substantive due process claim because they cannot identify a fundamental property or liberty interest. A few courts have recognized a very limited right to substantive due process review of employment decisions where, for example, the government totally prohibits someone from engaging in a calling, but such claims generally are dismissed.
In sharp contrast, the appellate courts, as well as the Supreme Court, have permitted substantive due process challenges to land use regulation (both legislative and executive), even though property has not been designated a fundamental right. Further, the Supreme Court’s recognition of substantive due process as a limitation on punitive damages awards — again a property interest — draws into question any notion that substantive due process reaches only the infringement of a fundamental right.
2. Substantive Due Process Claims Are Actionable Only Where No State Remedies Are Available
Other appellate courts require that litigants challenging executive misconduct demonstrate the inadequacy of state remedies in order to maintain a substantive due process claim. These courts have focused on the Supreme Court’s concern expressed in Lewis that substantive due process not become a “font of tort law,” supplanting state law. Thus, the Fourth Circuit held that “where a claim sounds both in state tort law and substantive due process, state tort law is the rule and due process the distinct exception.” Accordingly, judges should recognize a strong presumption against § 1983 substantive due process claims that overlap state tort law. For example, the Fourth Circuit threw out claims brought by parents alleging that county fire department personnel violated their trainee son’s substantive due process right by conducting a strenuous training session outside in extreme heat without bringing water or medical supplies, thereby causing the young man’s death. Because their constitutional claim overlapped with state tort law, it was not actionable.
Similarly, the Seventh Circuit has ruled that whenever substantive due process challenges involve only property, the plaintiff must show “either the inadequacy of state law remedies or an independent constitutional violation.” Thus, government employees alleging arbitrary employment decisions or landowners claiming arbitrary deprivation of their property will have their claims dismissed unless they can prove that state law does not provide them relief.
Finally, many courts have rejected substantive due process claims brought by students alleging excessive corporal punishment where the state provides an adequate remedy. For example, the Fifth Circuit has asserted that so long as the state affords an adequate remedy, public students cannot claim denial of substantive due process, irrespective of the severity of their injuries. The Eleventh Circuit has similarly suggested that if a remedy may be pursued under state tort law, the federal courthouse door should be closed to substantive due process claims.
Courts that have dismissed claims based on the existence of an adequate state remedy have confused substantive with procedural due process. The Supreme Court, in Parratt v. Taylor, held that the existence of state tort remedies defeats a procedural due process claim where the deprivation is random and unauthorized. The Court reasoned that in cases involving random, unauthorized official misconduct, the state provides all the process that is feasible if it affords the individual a post-deprivation remedy. Procedural due process often presents a timing question–whether pre- or post-deprivation process is necessary–and the impossibility of providing pre-deprivation process then defeats the federal claim. Substantive due process, however, does not focus on the state’s failure to provide sufficient process. Rather, it is the raw abuse of power that violates the Constitution, and such abuse is unaffected by the existence of state remedies.
Recognizing this distinction, the Supreme Court, in Zinermon v. Burch, reiterated that substantive due process “bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.”’ Acknowledging that the constitutional violation is complete when the wrongful act occurs, the Court stated that state tort remedies were irrelevant. Nothing in Lewis suggested that Zinermon was wrong, nor can Lewis be read to impose this restriction.
3. Only Intent to Harm, Malice, or Wantonness Will Shock the Conscience
A third restriction on substantive due process claims imposed by the appellate courts deals with the state-of-mind requirement. As explained in County of Sacramento v. Lewis, the shocks the conscience standard may sometimes be met when government officials act with deliberate indifference to constitutional rights. The Court cited as examples prison guards who were deliberately indifferent to the medical needs of pretrial detainees and personnel at a state mental institution who failed to provide minimally adequate rehabilitation to those who were involuntarily committed. However, because deliberate indifference implies the opportunity for actual deliberation, the Court determined that the standard could not reasonably apply to police officers who face a situation calling for fast action. Thus, the Court held that injuries resulting from “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment.”
Relying on Lewis, most appellate courts initially applied a deliberate indifference test in non-emergency situations. Recently, however, many courts have held that even where there is time to deliberate, if the government official must balance competing legitimate interests, the shocks the conscience standard must be ratcheted up a notch. These courts have relied on the assertion in Lewis that “[d]eliberate indifference that shocks in one environment may not be so patently egregious in another.” Thus, courts must carefully analyze the specific circumstances before condemning an abuse of power as “conscience shocking.” The Court in Lewis characterized the situation facing the officers pursuing juveniles on a motorcycle as not only one that “call[ed] for fast action,” but also one where the deputy faced “obligations that tend[ed] to tug against each other.” However, it justified the use of an “intent to harm” standard based on the unfairness of imposing liability under a “deliberate indifference” test in situations where the officials truly had no time to deliberate. Nonetheless, many courts have seized upon this language in Lewis to reject substantive due process claims absent evidence of intent to harm.
For example, in Matican v. City of New York, the appellate court conceded that “officers had ample opportunity to plan the [drug] sting in advance.” However, the officers were subject to the “pull of competing obligations,” because harm was likely to occur no matter what the government officials did. Thus, the officers’ disclosure to a drug dealer of the confidential informant who had set him up could not be said to “shock the contemporary conscience.” Similarly, although the EPA administrator who falsely assured residents that it was safe to return to their homes after 9/11 may not have been subject to the same weighty concerns that justified the initial decision encouraging workers to promptly return to the site, she still faced an array of competing obligations that precluded a substantive due process claim “in the absence of an allegation that the Government official acted with intent to harm.”
Other appellate courts have similarly rejected the rule that “time to deliberate” is the “determining factor” in deciding whether deliberate indifference shocks the conscience. Several courts have held that a higher culpability standard must apply both where a state actor must respond in haste and under pressure and where the state actor must make a “judgment between competing, legitimate interests.” Although the need to weigh difficult competing concerns may defeat a finding of deliberate indifference, a flat rule mandating “intent to harm” is contrary to the admonition in Lewis that courts carefully analyze specific circumstances in assessing whether “deliberate indifference” may be proved.
In addition, appellate courts have ratcheted up the intent to harm standard to impose an almost impenetrable obstacle. For example, although the Supreme Court has recognized a liberty interest on behalf of students to be free from “appreciable physical pain,” most appellate courts demand some showing of intentional malice or sadism to impose liability. Thus, the Sixth Circuit has explained that corporal punishment does not violate substantive due process unless the student proves that “‘the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.”’ Similarly, the Eleventh Circuit requires proof of willful, malicious intent to injure a student, regardless of whether there is time to deliberate or whether competing interests must be balanced.
The imposition of an unnecessarily high threshold in corporal punishment cases is unfounded. It is particularly inexplicable when compared to the appellate courts’ treatment of substantive due process claims brought by pretrial detainees. Many appellate courts permit detainees, unlike students, to bring substantive due process claims based on a deliberate indifference standard, except in cases involving prison riots where there is no time to deliberate. The Supreme Court in Lewis cited to the detainee cases to support its adoption of the intent to harm standard where quick action is required. It recognized, however, that a deliberate indifference standard applies to cases in which detainees challenge the conditions of confinement or the failure to protect them from other inmates. Indeed, even convicted felons who bring claims under the Eighth Amendment may recover under a deliberate indifference standard, albeit one that requires both objective and subjective deliberate indifference.
On the other hand, detainees bringing substantive due process claims have faced other obstacles. Most appellate courts have ignored the Supreme Court’s admonition that a less rigorous Due Process, rather than the Eighth Amendment, standard applies to pretrial detainees. Unlike convicted felons, who are protected only from “cruel and unusual punishment,” the Court has held that pretrial detainees cannot be constitutionally subjected to punishment in any manner. Further, “if a restriction or condition [of pretrial detention] is not reasonably related to a legitimate goal–if it is arbitrary or purposeless–a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.”
Despite the distinction between pretrial detainees and convicted felons drawn by the Supreme Court, most appellate courts have required detainees alleging excessive force, deliberate indifference to serious medical needs, or unconstitutional conditions of confinement, to meet the same standard that convicted felons must meet under the Eighth Amendment. Thus, detainees must prove that the deprivation be objectively serious, that the prison official be subjectively aware of facts from which an inference of substantial risk could be drawn, and that the official have a culpable state of mind in the sense of subjective criminal recklessness. Only a handful of decisions recognize the need to distinguish claims brought by pretrial detainees who, because they have not yet had a “guilt” adjudication, cannot be subject to conditions of confinement that are imposed for the purpose of punishment, and who should not be required to prove “wanton infliction of pain” in order to establish excessive force. Because the Lewis Court adopted the loaded shocks the conscience language, it is not surprising that the majority of appellate courts have ratcheted up the due process standard to parallel that used in adjudicating claims brought by convicted inmates.
4. Whose Conscience Must Be Shocked: Judge or Jury?
Lewis did not settle the question of who makes the determination of what is conscience-shocking behavior, and this has led to conflicting decisions in the appellate courts. For example, within the Eighth Circuit, there are cases asserting both that this is an issue of law for the judge, and that the issue is one for the jury. Most appellate courts appear to treat this as a jury question, permitting the case to go to the jury unless no rational jury could find that the conduct was conscience-shocking. Other courts, following the analysis that is used to assess the qualified immunity defense, recognize that if there are questions of fact in need of resolution, these questions should initially be sent to the jury with the ultimate question of whether a substantive due process violation has occurred to be determined by the court. This line of cases again demonstrates that the test enunciated in Lewis has created much uncertainty and frustration in the lower federal courts.
In short, the test established in Lewis has proved to be unworkable. First, there are conflicting views as to how to reconcile the fundamental rights analysis used to contest legislation with the shocks the conscience standard used for challenging executive misconduct. Second, the circuits disagree as to whether the existence of state remedies defeats the federal claim. Third, the circuits are divided as to when deliberate indifference, as opposed to an intent to harm standard, must be met. Fourth, there is confusion as to how the test is satisfied, depending on who the litigant is. With regard to pretrial detainees, most courts use a stringent Eighth Amendment deliberate indifference test. With regard to students alleging excessive corporal punishment, only an intent to harm that demonstrates ill will, malice or sadism is deemed to shock the conscience. With regard to government employees, most appellate courts will not recognize any substantive due process challenge to a termination or other adverse employment action because of the absence of a fundamental right. Yet, as noted, substantive due process challenges to land use decisions and excessive punitive damage awards have not been subjected to the “fundamental rights” requirement. Finally, there is disagreement as to who should decide whether government misconduct is conscience-shocking.
II. Why Lewis Should Be Overturned
The Lewis Court erred in creating a false dichotomy between challenges to executive and legislative action and in imposing a restrictive and untenable shocks the conscience standard. Although stare decisis mandates that Supreme Court decisions not be lightly rejected, it is also clear that “[s]tare decisis is not an inexorable command.” Generally, the Court asks (1) whether reliance interests are involved; (2) whether the reasoning has been questioned by subsequent decisions; and (3) whether the rule has proved to be unworkable. All of these factors weigh in favor of reconsidering the Lewis holding.
First, this is not a situation where “reliance” is an issue. Government officials have not “relied” on a promise that they may engage in wrongdoing with impunity provided their behavior is not conscience-shocking. Second, its reasoning has often been challenged. As discussed in Part I, the Justices in Lewis were deeply divided. The majority determined for the first time in 1998 that substantive due process jurisprudence should depend on whether executive or legislative action is being challenged and that only conscience-shocking behavior rises to the level of a substantive due process violation. Four of the concurring Justices challenged both the dichotomy as well as the new test. Justice Souter, who authored the opinion, conceded that “the measure of what is conscience-shocking is no calibrated yardstick,” and the concurring opinion of Justice Scalia, joined by Justice Thomas, as well as Justice Kennedy’s concurrence, joined by Justice O’Connor, attacked its subjectivity. Further, this section will explore subsequent Supreme Court decisions that have implicitly rejected its analysis. Third, as discussed in Part I.D, the decision has led to considerable confusion and numerous circuit splits in the last decade since its pronouncement. It has clearly proved to be an unworkable test.
In addition to exploring contrary Supreme Court precedent, the next section critiques Lewis as contrary to public originalism. Further, the Court’s purported justification–a concern for not permitting substantive due process to become a “font of tort law”–is revealed as both ill conceived and exaggerated.
A. The Court’s Weakened Protection Against Abuse of Executive Power Is Contrary to the Historical Understanding of the Due Process Clause
Although substantive due process jurisprudence has been subjected to a consistent sharp attack, it is well accepted that it stems from Magna Carta. In a recent article providing an originalist defense of substantive due process as a limitation on legislative power, Professor Frederick Mark Gedicks traces the development of Magna Carta and “higher-law” constitutionalism as the foundation for the widely shared understanding of the Due Process Clause in the late eighteenth century. He explains that although Magna Carta initially may have been intended to reach only the procedures that the king used to deprive citizens of their rights, Sir Edward Coke reinvigorated the provision in the seventeenth century to attack the royal power of the Stuart Kings–a substantive limitation on executive power.
The American colonies relied upon “Coke’s reading of substance into due process” to challenge the conduct of the British king during the American Revolution. Further, the ratification controversy over the Constitution’s lack of a Bill of Rights reflected this same understanding of “higher-law” constitutionalism. Those who argued against adoption of a Bill of Rights asserted that an enumeration of rights was unnecessary because higher-law constitutionalism already protected “natural and customary rights,” thus rendering enumeration in a written constitution superfluous.
Applying either an originalist perspective that focuses on those who framed and ratified the substantive due process guarantee, or a public-meaning originalism that looks to the public meaning at the time it was drafted and ratified, it is clear that the Due Process Clause was understood as a limitation on the arbitrary use of executive power. Coke “equated the law of the land with the due process of law,” and “understood both to have imposed substantive limitations on actions of the king.” Because the Supreme Court has acknowledged that Magna Carta is the source of modern day substantive due process, and because it is well accepted that, at a minimum, Magna Carta, as originally understood and as developed by Sir Edward Coke in the seventeenth century, was a limitation on executive power, it is counterintuitive to interpret substantive due process as providing less protection for arbitrary executive acts that violate natural or customary rights than for legislative acts.
B. Supreme Court Precedent both Before and After Lewis Conflict with Its Analysis
As discussed in Part I, the Supreme Court in Rochin, the source of the shocks the conscience test, did not suggest a different treatment of substantive due process challenges to executive action, as opposed to legislative enactments. Further, the shocks the conscience language was merely one of several descriptive phrases used by Justice Frankfurter to explain why the introduction of evidence obtained through pumping someone’s stomach violated substantive due process. Finally, the sparse citations in Lewis did not support its conclusions.
Notably, at the time Lewis was decided, the Supreme Court did not follow this legislative/executive dichotomy in assessing violations of other constitutional rights. In fact, in cases involving both “takings” and equal protection claims, the Court acknowledged the need to be more, not less, vigilant of executive/administrative decisions because of the greater risk of arbitrary decision making. For example, in Allegheny Pittsburgh Coal Co. v. County Commission, the Court unanimously invalidated a county tax assessor’s practice of valuing real property at fifty percent of its most recent sale price. Since property would not be reassessed until it was again sold, properties with identical values would have widely divergent assessments depending on the timing of the sales. Although reiterating the basic principle that the judiciary generally applies a highly deferential equal protection analysis to distinctions drawn in tax laws, the Court found, nonetheless, that the county assessor’s practices were arbitrary. Therefore, landowners were denied the equal protection of the law. A few years later, in Nordlinger v. Hahn, the Court upheld a California statute that limited property taxes and permitted reassessment only when sold, thereby resulting in the same property tax disparities challenged in Allegheny. Nonetheless, the Court held the law was rationally related to a legitimate government purpose. The only difference in the two cases was the Court’s greater willingness to review the practices of the tax assessor as opposed to a tax statute enacted by the legislature.
The Supreme Court has recognized this same heightened concern for arbitrary executive decision making in its takings cases. In Dolan v. City of Tigard, the Court acknowledged that a land regulation generally must be upheld if it “substantially advances legitimate state interests and does not deny an owner economically viable use of his land.” However, it reasoned that when city officials make “an adjudicative decision to condition petitioner’s application for a building permit on an individual parcel,” the deferential approach used to assess legislative determinations “classifying entire areas of the city,” is inappropriate. Instead, such decisions are subject to a test that mandates an “essential nexus” between a “legitimate state interest” and the permit condition exacted by the city, and “rough proportionality” between the exaction and the projected impact of the proposed development. Justice Scalia’s rationale for this strict test was the greater need for courts to be wary of adjudicative decisions by administrative officials that affect individual landowners, as compared to legislative determinations that classify whole areas of the city, such as zoning laws.
The Court’s contrary position with regard to substantive due process confounds the question of a constitutional rights violation with the question of liability. Arguably legislation represents an act of the government, making entity liability more justifiable. In contrast, executive misconduct may be an isolated act that is difficult to control. However, the entire purpose of § 1983 is to hold individuals who act under color of state law accountable for their unconstitutional misconduct. Section 1983 already provides numerous mechanisms that significantly limit entity, as well as individual, liability for damages. The critical question is whether the official has arbitrarily deprived persons of liberty or property. If so, the guarantee of substantive due process has been breached.
The Court’s unwillingness to hold executive officials liable for substantive due process violations also stands in sharp contrast to the law of immunity that governs § 1983 litigation. The Court has acknowledged that government officials who engage in legislative conduct enjoy absolute immunity from liability, whereas members of the executive branch have only qualified immunity. Indeed, the same year that the Court in Lewis granted greater protection for executive misconduct, it ruled in Bogan v. Scott-Harris, that legislative acts should be given greater deference because “the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability.” Legislative decisions, even if made by executive officers, i.e., the mayor in Bogan, are shielded by absolute immunity, whereas executive decisions trigger only qualified immunity. The Court distinguished decisions that have broad prospective implication, where there is less likelihood of abuse of power, from those that apply only to a particular individual, where the decision may be characterized as “executive,” rather than legislative. The Court’s interpretation and development of immunity doctrine recognizes the greater need to rein in abuses of executive power.
As to substantive due process claims, the Supreme Court in recent years has neither consistently adhered to the executive/legislative dichotomy nor to the shocks the conscience test. Two opinions from 2003 are illustrative. In City of Cuyahoga Falls v. Buckeye Community Hope Foundation, developers sued the city challenging the city engineer’s refusal to issue a building permit until a referendum petition–which called for repeal of a municipal housing ordinance authorizing construction of a low-income housing complex–could be submitted. The developer alleged violations of the Fair Housing Act, equal protection, and substantive due process. The latter claim was discussed in a brief paragraph, citing Lewis for the proposition that “the city engineer’s refusal to issue the permits while the petition was pending in no sense constituted egregious or arbitrary government conduct.” Blatantly omitted from the opinion was the shocks the conscience language. Although the Court cited Lewis for the proposition that “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense,”’ the next sentence explained that the challenged mandate to deny the permits while the petition was pending “represented an eminently rational directive,” thereby creating confusion in the appellate courts as to whether land use regulation decisions should be analyzed under the legislative (rational basis) or executive (shocks the conscience) test.
More significantly, in Chavez v. Martinez, a three-Justice plurality analyzed a challenge to executive action under both the fundamental rights strand and the shocks the conscience strand of substantive due process, and six Justices agreed that the fundamental rights strand applied to claims involving executive action. Martinez was being treated for gunshot wounds received during an altercation with police when Chavez, a patrol supervisor, began interrogating him without providing a Miranda warning. Because Martinez was never charged with a crime, the answers elicited during the interrogation were never used against him in any criminal proceeding. As a result, Justice Thomas concluded that the Fifth Amendment’s Self-Incrimination Clause did not apply to this situation.
Proceeding to examine the claim under substantive due process, Justice Thomas invoked Lewis and Rochin for the proposition that “unauthorized police behavior . . . might ‘shock the conscience’ and give rise to § 1983 liability.” After determining that the officer’s conduct was not “conscience shocking,” the plurality recognized that the Due Process Clause also protects “fundamental liberty interests . . . unless the infringement is narrowly tailored to serve a compelling state interest.” Although holding that freedom from unwanted police questioning was not a fundamental right, the plurality engaged in a fundamental rights analysis despite the fact that the case involved a challenge to executive, not legislative, action. Further, in a concurring opinion, Justice Stevens stated that “[t]he Due Process Clause of the Fourteenth Amendment protects individuals against state action that either ‘shocks the conscience,’ or interferes with [fundamental] rights ‘implicit in the concept of ordered liberty.”’
The significance of the two-prong analysis in Chavez has not been lost on the lower courts. For example, the Tenth Circuit invoked Chavez to challenge a district court ruling that improperly “compartmentali[zed]” substantive due process based on whether the government conduct complained of was “executive” or “legislative.” Although conceding that Lewis appeared to create an executive/legislative distinction, the court explained that “an overly rigid demarcation between the two lines of cases is neither warranted by existing case law nor helpful to the substantive analysis.” The court, perhaps somewhat disingenuously, asserted that the Supreme Court in Lewis did not “establish an inflexible dichotomy.” Further, it reasoned that rejecting the dichotomy “makes good sense, for the distinction between legislative and executive action is ancillary to the real issue in substantive due process cases: whether the plaintiff suffered from governmental action that either (1) infringes upon a fundamental right, or (2) shocks the conscience.” A total of six Justices agreed in Chavez that the fundamental rights strand of substantive due process applied to claims involving executive action, thus negating any “hard-and-fast rule requiring lower courts to analyze substantive due process cases under only the fundamental rights or shocks the conscience standards.”
In short, the Supreme Court in Lewis manufactured a false dichotomy between legislative and executive misconduct that had not been used in prior cases, and it imposed a draconian shocks the conscience test that has led to nothing but mischief in the appellate courts. Further, the Court itself, in Chavez, ignored the rigid dichotomy. The next section explores why the Court’s justification for treating executive misconduct differently, namely a concern for transforming constitutional litigation into a “font of tort law,” is ill conceived and exaggerated.
C. Overlap with Tort Law Does Not Justify Restricting the Substantive Due Process Guarantee
The Supreme Court, in Lewis, explained its rationale for the executive/legislative distinction and the shocks the conscience test as follows: “[E]xecutive 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.” Several lower appellate courts have relied on this rationale to demand truly conscience-shocking behavior in order to survive dismissal of a substantive due process claim. Others have barred substantive due process claims unless the litigant establishes the inadequacy of state tort remedies.
The overlap with state tort remedies should not determine the fate of federal constitutional violations. The Supreme Court is clearly driven by a concern that § 1983 not be used to supplant traditional tort law, despite federalism concerns. However, in Monroe v. Pape, the Supreme Court held that the federal remedy for vindicating constitutional deprivations under § 1983 supplements state remedies. Indeed, the whole purpose of § 1983 was to interpose the federal courts between the states and the people and to provide greater protection for constitutional rights. Until or unless § 1983 is repealed or amended, it should not be interpreted contrary to its historic purpose. Further, liability for the arbitrary abuse of power by executive branch officials should not be relegated to the vagaries of state tort law. Several constitutional scholars have noted the illogic and danger of limiting the substantive scope of constitutional rights based on the existence of state torts.
A related argument developed by Professor Richard H. Fallon, Jr. contends that substantive due process should serve only as a check on legislative enactments that have a broad impact on society, rather than to correct individual injustices that can be vindicated through individual tort actions. On the other hand, it can be argued that the judicial invalidation of laws raises greater concerns regarding federalism and judicial activism. As Justice Scalia has opined, “‘[i]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.”’ It is when the judiciary strikes down democratically enacted laws that it “thwarts the will of representatives of the actual people.” In contrast, when plaintiffs use substantive due process to remedy arbitrary abuses of government power by its officials, no harm befalls democratically enacted laws. When a member of the executive branch violates a constitutional duty and deprives an individual of life, liberty, or property, a judicial remedy does not undermine democracy. When judges and jurors determine that government officials have engaged in arbitrary behavior, no plausible counter-majoritarian difficulty exists. Further, Professor Fallon’s distinction ignores the reality that actions of law enforcement officials, government employers, government educators, and other members of the executive branch may have a significant and broad corrosive impact, thereby raising the same systemic concerns triggered by legislative action.
The allegation that recognizing “constitutional torts” will cause a deluge of federal litigation and government liability is also highly exaggerated. The Supreme Court has already made it clear that plaintiffs cannot base a substantive due process claim on mere inaction, i.e., failing to protect individuals from acts of violence or dangerous situations that the government did not create. Further, the Supreme Court has protected against vexatious, frivolous litigation by awarding fees to prevailing defendants pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, as well as by imposing sanctions under Rule 11 of the Federal Rules of Civil Procedure. Together with recent Supreme Court decisions permitting more effective use of motions to dismiss and summary judgment procedures, weak cases are disposed at the earliest stages of litigation. In addition, the doctrines of absolute and qualified immunity, which safeguard individual officials, significantly mitigate damage liability. Finally, the Supreme Court’s rejection of the doctrine of respondeat superior in § 1983 litigation insulates government entities from monetary liability unless a policymaker’s conduct is challenged or a custom or policy is established.
In light of these significant safeguards and limitations on liability, the concerns raised by the Court in Lewis are exaggerated, as well as unfounded. Federal courts should not be reluctant to recognize substantive due process claims where the plaintiff demonstrates arbitrary deprivation of a property or liberty interest. Executive branch officials, no less than legislators and judges imposing punitive damage awards, should be liable for substantive due process violations in order to permit this historic guarantee to play a vital role in remedying abuses of government power.
Another key rationale for constricting the use of substantive due process is the concern, voiced by several Justices, about judicial activism in an area where there are few objective guideposts. Opponents complain that allowing substantive due process challenges means that judges, based only on their own subjective preferences, will second-guess executive or administrative decisions. Arguably, the largely undefined labels “arbitrary” and “capricious” can be attached to all sorts of government misconduct, potentially creating an undue strain on federal judicial resources as well as on state-federal relations. However, the Court’s adoption of the shocks the conscience test has not eliminated the vagueness or subjectivity problems. Responding to this criticism, Part III proposes a new test to guide lower courts in determining when executive misconduct is sufficiently arbitrary to rise to a constitutional level.
III. Proposed Standard for Assessing Substantive Due Process Abuse of Power Claims
In assessing whether government misconduct violates substantive due process, courts should return to the “essence of substantive due process,” which is “protection of the individual from the exercise of governmental power without reasonable justification.” Focusing on this core question reveals the fallacy of Lewis and its progeny, including the tests the appellate courts have developed to further emasculate the meaning of substantive due process. More specifically, I propose four underlying principles that should govern substantive due process analysis and then explicate a new approach.
First, the legislative/executive dichotomy established in Lewis and the imposition of a more restrictive shocks the conscience test for executive misconduct should be rejected. The question of whether government officials abuse their power should not depend on whether they are members of the executive, legislative, or judicial branch of government.
Second, rejection of the shocks the conscience standard should include elimination of a rigid intent to harm, wantonness, malice, or sadism test. Arbitrary abuse of power should not be insulated by imposing draconian burdens of proof on the victims. Although negligent misconduct may not be viewed as an unconstitutional abuse of power, the Supreme Court in Lewis recognized that government officials who act with deliberate indifference to the serious harm their actions might cause, have breached the constitutional guarantee of due process. Although the Court opted for an intent to harm standard in emergency situations where there is no time to deliberate, the Court’s carefully constructed exception does not justify the broad use of the sadism, wantonness, and malice standards for students and detainees who bring substantive due process claims.
Third, the conclusion reached by some appellate courts that substantive due process protects only fundamental rights should be rejected. As discussed, this fundamental rights restriction has permitted courts to dismiss claims involving significant property and liberty interests. The Fourteenth Amendment does not say that government cannot deprive persons of a “fundamental right”; rather, it prohibits all deprivations of “life, liberty, or property, without due process of law.” The Supreme Court has acknowledged that the scope of “liberty” protected by the Due Process Clause is broad: “[A] rational continuum which . . . includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . .”
The Supreme Court has never repudiated the broad definition of “liberty” first enunciated in the 1920s as encompassing a wide range of interests “recognized at common law as essential to the orderly pursuit of happiness by free men.” The Court’s opinion in Lawrence v. Texas implicitly recognized this “continuum approach.” The majority failed to follow the strict fundamental-rights analysis that the Court enunciated in Glucksberg. Lawrence is noteworthy because, under Glucksberg, where no fundamental right is implicated, legislative enactments are presumed valid and will be struck down only if totally arbitrary and capricious. Nonetheless, the Court in Lawrence invalidated Texas’ sodomy law as arbitrarily interfering with the liberty interests of individuals to enter into personal relationships.
Many constitutional scholars have suggested that Lawrence marked the demise of Glucksberg’s strict two-tier analysis. Although post-Lawrence decisions have not demonstrated a sea change, lower courts that have interpreted Glucksberg to preclude any review of executive misconduct absent a fundamental right are misguided. They ignore the “second tier” of the Glucksberg analysis and thereby deprive litigants of the opportunity to show that they have been subjected to “substantial arbitrary impositions and purposeless restraints.” Although government interference with property and liberty normally will not trigger strict scrutiny, this should not mean that government officials, including those in the executive branch, may violate “non-fundamental” rights with impunity.
Fourth, a focus on abuse of power demonstrates the irrelevance of the existence of state remedies. Many appellate courts have erroneously rejected claims brought by students, landowners, and government employees based on the availability of state tort remedies. As has been explained, the existence of state remedies has relevance with regard to some procedural due process claims, but not substantive due process claims. Clearly this criterion has nothing to do with the level of arbitrariness of the constitutional deprivation and thus should be rejected.
Once these four principles are understood, the question of what is an unconstitutional abuse of power can be assessed by borrowing from the Supreme Court’s analysis of substantive due process challenges to legislative or judicial power, as well as appellate court decisions that have struggled with this question. The following sections set forth a proposed standard.
A. Strict Scrutiny for the Deprivation of Fundamental Rights
Where fundamental rights are implicated, federal courts should follow the Supreme Court’s lead in Chavez, which analyzed a challenge to executive power under both the fundamental rights strand and the shocks the conscience strand. In Chavez, the Court ignored the strict dichotomy imposed in Lewis and instead recognized that the violation of fundamental rights, whether by legislative or executive action, triggers strict scrutiny. In determining whether a Supreme Court decision should be reversed, one key factor is whether the legal foundations of the decision have been eroded by subsequent rulings. Lewis itself was a deeply divided decision, and the dichotomy that it created between legislative and executive decisions was eroded by the Chavez opinion.
B. A Nuanced Balance Test for Substantive Due Process Claims Not Implicating Fundamental Rights
Because the Supreme Court has been reluctant to expand the category of fundamental rights and has indeed narrowed the scope of recognized rights, adopting a strict scrutiny analysis for the deprivation of fundamental rights, with no meaningful check on the deprivation of non-fundamental interests, provides insufficient protection against abuses of government power. Further, the Supreme Court has not consistently followed Glucksberg’s strict two-tier substantive due process analysis, which ultimately depends on how broadly or narrowly the Justices decide to characterize the liberty or property interest. For example, in Michael H. v. Gerald D., a biological father challenged a California law that created an irrebuttable presumption that a married woman’s husband was the father of her child. The Court ruled that a biological father who had established a relationship with the child had no right to a hearing to determine paternity and that he could be denied all parental rights. Justice Scalia, however, asserted that the specific liberty interest implicated was the alleged right of a father to have a relationship with a child who is conceived as a result of an adulterous relationship with a married woman–a right that has not traditionally been recognized and thus cannot be viewed as fundamental. Justice Brennan, in dissent, argued that it was well established that fathers have a fundamental right to have a relationship with their biological children.
The same characterization problem surfaced in Lewis where officers killed a youth on a motorcycle during a high-speed chase. The liberty interest could be defined broadly as implicating the fundamental right to life, as Justice Kennedy did, or, more narrowly, as a “right to be free from ‘deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender,”’ which Justice Scalia found was not rooted in history or tradition and thus not protected under substantive due process.
Borrowing from the Supreme Court’s more recent substantive due process decisions, which have eschewed the strict two-tier analysis established in Glucksberg, courts should apply a balance test that examines certain key factors that relate directly to whether an abuse of power has occurred. First, courts should assess the nature and significance of the interests at stake and the extent to which these interests have been violated, as the Supreme Court did in Lawrence, Troxel, and Heller. Second, in determining arbitrariness, a critical factor should be whether the government’s action is a substantial departure from professional judgment. The Supreme Court adopted this standard to determine whether executive officials violated the substantive due process rights of those involuntarily committed to its mental institutions. There is no reason why public school officials, jailers, and government employers should not be held to a similar standard of “professionalism.”
Third, borrowing from the Supreme Court’s analysis of arbitrary punitive damage awards, courts should examine the reprehensibility of the government official’s misconduct, which the Court has held is “the most important indicium of the reasonableness of a punitive damages award.” Reprehensibility measures culpability and callousness, which are directly relevant to whether a constitutional abuse of power has occurred. In State Farm, the Court set forth the following considerations regarding reprehensibility:
Whether . . . the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.
The first consideration suggests that a defendant who causes physical harm, i.e., who deprives a plaintiff of liberty rather than property, often acts more callously than a defendant who causes economic harm. The second mirrors the deliberate indifference or reckless disregard test that generally governs substantive due process claims. The third–financial vulnerability of the victim–may have little relevance in most substantive due process claims, but is highly relevant to culpability when broadened to include an inquiry into whether the defendant targeted especially “vulnerable” victims, such as students or detainees. Finally, the fourth and fifth criteria are clearly indicia of abuse of power since repeated actions or those inspired by malice or deceit indicate the unreasonableness and arbitrariness of the defendant’s conduct. This does not mean that evidence of malice or sadism is required to demonstrate a substantive due process violation. Indeed, any categorical “intent to harm” test insufficiently protects individual liberty.
In assessing reprehensibility, courts should also look to the mitigating factors raised in Lewis, such as whether the government officials had to act in haste or whether they had time to deliberate. Further, where government officials are forced to weigh conflicting legitimate interests, this should be taken into account. However, unlike Lewis and the appellate courts’ interpretation of Lewis, these factors should not lead inexorably to imposition of an intent to harm standard. Rather, they should be viewed as just two of several relevant criteria in assessing the reprehensibility of the defendant’s conduct.
An example will help illustrate the significance of this new substantive due process analysis. In Christensen v. County of Boone, plaintiffs asserted that a police officer, acting out of a personal vendetta, engaged in “a pattern of on-duty conduct designed to harass, annoy, and intimidate” plaintiff and his girlfriend. The couple alleged that the officer repeatedly followed them while they were driving, that he parked his squad car in front of the girlfriend’s place of employment, and that he sat in his police car outside of businesses that the plaintiffs were visiting. The Seventh Circuit reasoned that even if a fundamental right to intimate association was at stake, the claim failed because the adverse consequences of the officer’s actions were not sufficiently serious: “[o]fficial conduct that represents an abuse of office . . . violates the substantive component of the due process clause only if it ‘shocks the conscience.”’ The court stressed that “Lewis calls for judicial modesty in implementing a federal program of constitutional torts . . . leaving to ordinary tort litigation conduct of the sort in which Deputy Krieger is alleged to have engaged.” Even if unjustified by any legitimate government interest, the claim was not actionable.
One dissenting judge recognized that the majority’s approach ignored the essence of substantive due process, namely “protection of the individual from the exercise of governmental power without reasonable justification.” Relying on Justice Kennedy’s concurrence in Lewis, Judge Ripple asserted that courts should examine the objective character of the conduct to determine whether such is consistent with traditions, precedents, and the historical meaning of the Constitution. Judge Ripple explained that this was a situation where the official
embarked upon a scheme of retaliation against the plaintiffs in which he used the power and authority of his office to injure their relationship. This systematic vendetta had no conceivable legitimate governmental purpose. It amounted to the raw use of the power–power that comes with a badge, a service revolver, and the power to arrest–in order to make it difficult for this couple to maintain a romantic relationship that our constitution protects as a fundamental right.
Judge Ripple believed that a fundamental right was at stake and he concluded that this perverse use of police authority shocked the judicial conscience and sent a dangerous message to law enforcement personnel. Under the approach suggested in this Article, deprivations of fundamental rights would automatically trigger strict scrutiny, as they do for legislative enactments. However, if the court failed to recognize a fundamental right to maintain a romantic relationship or found that the challenged conduct did not infringe on that right, it would then weigh the importance of the right and the extent of the infringement, whether the officer’s conduct was a substantial departure from professional judgment, and the reprehensibility of the conduct. Applying these factors, a substantive due process violation is apparent. First, even if the right is not “fundamental,” the liberty interest is significant, and “stalking” constitutes a significant impairment of the interest. Second, the officer’s conduct was a substantial departure from professional police conduct. Third, the conduct could readily be described as reprehensible. It interfered with personal liberty, it involved repeated actions, and there was evidence of ill will and an intent to harm. Further, the officer was not facing exigent circumstances nor was he forced to weigh competing legitimate government interests. In short, the officer’s conduct was a raw abuse of government power unjustified by any government interest and thus a clear violation of substantive due process. The Seventh Circuit’s contrary conclusion demonstrates why Lewis’ shocks the conscience test must be overturned. Although other cases may mandate a more nuanced balance of competing considerations, the criteria identified in this proposal will provide judges with guideposts that are lacking under Lewis.
Historically, substantive due process has been interpreted as a guarantee against arbitrary deprivations of life, liberty, or property, whether perpetrated through legislative enactments or by the misconduct of government officials. The Supreme Court broadly defined the term “liberty” to deter and punish abuses of government power. In Lewis, however, the Court significantly gutted the Due Process Clause by creating a false dichotomy between legislative and executive misconduct and by imposing a draconian shocks the conscience standard. The problem has been compounded by appellate court decisions holding that the judicial conscience will not be shocked absent evidence of malice, sadism, or wantonness. Further, the appellate courts have imposed additional obstacles that have no relevance to the question of whether an abuse of power has occurred, such as the requirement that plaintiffs establish deprivation of a fundamental right or prove there is no state remedy for the injury. Lewis’ shocks the conscience test and its progeny should be rejected in favor of an approach that restores the Due Process Clause to its historical position as a core guarantor against raw abuse of power by members of all three branches of government.
Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial.
Id. (citations omitted).
On the other hand, the Fourth and Fifth Circuits have determined that claims brought by pretrial detainees, regardless of whether there has been an arrest pursuant to a warrant, are adjudicated under the less protective substantive due process standard. See Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008) (holding that the claim of an arrestee not formally charged “require[d] application of the Fourteenth Amendment” rather than the reasonableness standard of the Fourth Amendment); Hill v. Carroll County, 587 F.3d 230, 237 (5th Cir. 2009) (holding that sheriff’s failure to monitor suspect who died from positional asphyxiation while being transported in the back of a patrol car is governed by substantive due process, not the Fourth Amendment, because the initial incidence of the seizure had ended); Brothers v. Klevenhagen, 28 F.3d 452, 456 (5th Cir. 1994) (holding that a pretrial detainee receives the protection of substantive due process, not of the Fourth Amendment).
[T]he question of whether the defendants’ conduct constituted deliberate indifference is a classic issue for the fact finder….[B]ecause this question is a factual mainstay of actions under §1983, we do not believe it should receive consideration as a question of law. Any concern about allowing the fact finder to determine a constitutional question is ameliorated by the overlap between this inquiry and the third step in our analysis–an examination of the totality of the circumstances–which is a question of law.
Id. See also Luckes v. County of Hennepin, 415 F.3d 936, 940 (8th Cir. 2005) (stating that determining whether conduct “shocks the conscience” is a question of law); Terrell v. Larson, 396 F.3d 975, 981 (8th Cir. 2005) (en banc) (“Because the conscience-shocking standard is intended to limit substantive due process liability, it is an issue of law for the judge, not a question of fact for the jury.”); Crowe v. County of San Diego, 359 F. Supp. 2d 994, 1030 (S.D. Cal. 2005) (stating that the determination of whether defendants’ conduct “shocks the conscience” is an issue of law for the court); Tun ex rel Tun v. Ft. Wayne Cmty. Sch., 326 F. Supp. 2d 932, 945 (N.D. Ind. 2004) (determining whether conduct “shocks the conscience” is a question of law); Mason v. Stock, 955 F. Supp. 1293, 1308-09 (D. Kan. 1997) (“[T]he ‘shocks the conscience’ determination is not a jury question….Under the rules pertaining to summary judgment, a plaintiff who wishes to assert a Collins’ claim must, at minimum, point to conduct or policies which would require the court to make a ‘conscience shocking’ determination.”).
[I]t makes little sense to define the scope of a constitutional right with reference to the availability of tort remedies…merely on the ground that the federal civil damages remedy through which the right might be asserted appears to overlap with tort concepts….[D]efining the range of constitutional protections in the context of alleged executive infringements by reference to the apparently undesirable convergence of tort and constitutional law tailors the remedy poorly to the perceived problem. If convergence with ‘mere’ tort law is the problem, then a response specific to the federal civil damages action vehicles…is appropriate[.] Id. at 1013-14; Daniel O. Conkle, Three Theories of Substantive Due Process, 85 N.C. L. Rev. 63, 94 (2006) (arguing that substantive due process “serves a nationalizing function” because “[w]hen the Court recognizes substantive due process rights, they are national rights that every state and locality must honor”); Christina Brooks Whitman, Emphasizing the Constitutional in Constitutional Torts, 72 Chi.-Kent L. Rev. 661, 661 (1997) (contending that attempts to prevent overlap with state tort law have resulted in decisions that limit the substantive scope of constitutional rights: “[t]he danger posed by focusing on the way in which §1983 damage actions against state officials…are like or unlike tort actions is that problems raised by specific remedies will drive thinking about constitutional substance”).
Today’s decision also will have a very practical and harmful effect on municipal governance throughout this circuit. The panel majority’s failure to recognize the situation here as a willful abuse of governmental power and its failure to characterize the conduct as conscience shocking will have a direct and immediate effect on efforts to maintain discipline and professionalism in the countless number of small municipal police forces that dot our landscape….Today, the highest federal court in this region of the United States sends a surely unintended, but nevertheless unwelcome, message that minimizes the significance of a raw use of municipal police power.
Id. at 469-70.