Fagan v. City of Vineland

22 F.3d 1296, 1994 U.S. App. LEXIS 9197

Opinions

OPINION OF THE COURT

SLOVITER, Chief Judge.

Before us is the appeal of the district court’s order granting summary judgment to the defendant police officers, the City of Vineland, and defendant Town Liquors in a suit brought by and on behalf of the estates of persons injured by a car driven by Jeffrey Pindale which was the subject of a police pursuit. The principal issue before the in bane court is the standard to be applied to claims that the police pursuit violated substantive due process. Because we are reviewing a grant of summary judgment, we will view the facts and all inferences to be drawn therefrom in the light most favorablé to the nonmoving parties, the plaintiffs. See Clement v. Consolidated Rail Corp., 963 F.2d 599, 600 (3d Cir.1992).

I.

FACTS AND PROCEDURAL HISTORY

.The events which are the subject of the lawsuit began at about 1:55 a.m. on March 6, 1988, when defendant Officer David Tesoroni of the Vineland Police Department was on routine patrol on Landis Avenue in Vineland, New Jersey. Landis Avenue is the main street running through the City’s business district and is a popular gathering and cruising place for young people. As Officer Teso-roni headed west on Landis Avenue, he spotted a white Camaro heading east. The Ca-maro was not speeding, but a passenger was standing up through the car’s open T-top roof and waving his arms. The car was driven by Jeffrey Pindale, age 20; the passengers were his wife Wanda Pindale, age 19, and his friends Albert Stavoli, age 19, and Maurice Davis, Jr., age 19.

Unknown at that time to Officer Tesoroni, Jeffrey Pindale had purchased two bottles of Strawberry Hill Wine from defendant Town Liquor on March 5, 1988, and had spent the evening eating and drinking with his wife and friends Stavoli and Davis. Jeffrey Pin-dale drank the Strawberry Hill wine as well as alcoholic beverages purchased from other vendors. After the accident, his blood alcohol level- was .12%.

When he saw the Camaro, Tesoroni made a U-turn on Landis Avenue and accelerated. He intended to give the driver a warning regarding a violation described by him as “allowing his passenger to ride on parts not intended for.” Plaintiffs’ App. at 15. The Camaro turned right onto Eighth Street and headed south into a residential neighborhood. Tesoroni followed the Camaro onto Eighth Street and, as he made the turn, activated his overhead lights but not his siren. The Ca-maro drove for two blocks south to the intersection with Grape Street. Up until this point, Tesoroni was following the Camaro solely because he wanted to warn the driver about allowing his passenger to stand through the T-top.

The Camaro turned right onto Grape Street, entering a residential neighborhood which had a 25 mile-per-hour speed limit. The Camaro accelerated to between 35 and 40 miles per hour and, heading west, drove through two stop signs where it slowed down but failed to stop. Tesoroni accelerated to between 30 to 35 miles per hour and followed the Camaro, slowing down but not stopping for the stop signs. The Camaro turned left onto Sixth Street and headed south for one block, and then left again onto Montrose Street heading east. At this point, Tesoroni radioed police headquarters and informed them of his actions.

The pursuit continued through the residential neighborhood, and more stop signs were run. Defendant Officer Richard Putnam was on patrol that evening. The Camaro sped down Almond Street and passed him. Putnam radioed police headquarters and stated that the “[sjubject just swerved at me.” Plaintiffs’ App. at 14. When the Camaro reached the intersection of Almond Street and East Avenue, the driver turned its fights off. At this point, Tesoroni turned on his siren. The Camaro accelerated to 40 miles per hour and headed south on East Avenue for one block, then left onto Michigan Avenue for one block, and then south onto Myrtle Avenue for two more blocks until he reached Chestnut Avenue. Tesoroni accelerated. to keep up with it.

At police headquarters, defendant Sergeant Edgar Zatzariny was in charge. He had the authority to order Tesoroni to discontinue the pursuit, but he did not do so. Sergeant Zatzariny directed the dispatcher to ask Tesoroni why he was pursuing the Camaro, but Tesoroni never responded.

The Camaro turned right onto Chestnut Avenue, a four-lane road with two lanes in each direction, and accelerated to 50 miles per hour heading west. Officer Putnam pulled out onto Chestnut Avenue from a sidestreet and blocked the outside westbound lane, with his headlights and overhead lights on. Putnam waved his arms to signal the Camaro to stop. It sped past him at more than 50 miles per hour, with Tesoroni in pursuit. Putnam then pursued the Camaro until the dispatcher told him to “break off.” Plaintiffs’ App. at 14. During the chase on Chestnut Avenue, Officer Peter Coccaro used his patrol car to block off Eighth Avenue where it intersected with Chestnut Avenue. The Camaro sped past him as well. Coccaro may have also engaged in pursuit for a time.

Defendant Officer Benny Velez drove to Chestnut Avenue from Sixth Street. He saw the Camaro speed past him with Tesoroni one to two blocks behind. Velez turned onto Chestnut Avenue behind the Camaro and in front of Tesoroni, thus becoming the lead officer in the pursuit. Velez had his siren and overhead lights on. The Camaro was going 70 to 80 miles per hour, and Velez pursued at 50 to 60 miles per hour. The Camaro and the pursuing police cars ran several red lights on Chestnut Avenue.

As Velez drove over a rise at about Chestnut Avenue and Fourth Street, he saw the Camaro several blocks ahead at Chestnut Avenue and Holly Hill Terrace. Velez radioed headquarters that the ear was approaching the intersection of Chestnut Avenue and Delsea Avenue, one block further away. Delsea Avenue, like Chestnut Avenue, is one of the main thoroughfares of Vineland. The Camaro ran a red light at the intersection and broadsided a pickup truck traveling on Delsea Avenue. The occupants of the pickup truck, Michael Fagan and Christopher Duke, were killed. Stavoli was killed. Wanda Pin-dale and Maurice Davis suffered crippling injuries. Jeffrey Pindale, the driver, suffered minor injuries. A witness stated that immediately after the collision he saw four police cars approach the accident scene from the westbound lanes of Chestnut Avenue with their overhead lights and sirens on.

At the time of the accident, th'e City of Vineland had adopted the statewide guidelines governing high-speed motor vehicle pursuits promulgated by the New Jersey Attorney General and the New Jersey County Prosecutors Association.¹ Plaintiffs’ expert witness, Dr. Leonard Territo, a criminologist, wrote in his report and testified in deposition that in his opinion the defendant police officers exercised their discretion in determining whether to pursue the Camaro, but that they conducted the pursuit in a reckless manner in excess of the discretion vested to them by the guidelines.

In January through March of 1990, the plaintiff-appellants Sarah Fagan; Maurice Davis, Jr., Wanda Pindale, Albino Genetti, and Mary Ellen Duke filed their complaints in the United States District Court for the District of New Jersey. They alleged that various Vineland police officers, including Officers Tesoroni, Velez, Putnam, and Coccaro, violated 42 U.S.C. § 1983 and their Fourteenth Amendment substantive due process rights by recklessly conducting the high-speed pursuit in violation of the Attorney General’s guidelines. Plaintiffs brought separate, independent claims against the City and Police Chief Joseph Cassisi, Jr. for violating section 1983 and the Fourteenth Amendment by following a policy of not properly training and supervising police officers in the conduct of high-speed pursuits, and by following a policy of not enforcing the pursuit guidelines. Plaintiffs also sued defendant Town Liquors under New Jersey law for negligently selling alcoholic beverages to an underaged drinker and thus contributing to the accident. They brought various other claims under the Fourth Amendment and state law that were not appealed.

These five actions were consolidated. The case was originally assigned to Judge Joseph H. Rodriguez. After completion of discovery, the defendant police officers and City made their first motion for summary judgment. On July 26, 1991, Judge Rodriguez denied their motion. After additional discovery was permitted, defendant Town Liquors moved for summary judgment. In October of 1991, the case was reassigned to Judge William G. Bassler. The defendant police officers and City made their second motion for summary judgment. On July 27, 1992, Judge Bassler granted summary judgment in favor of defendant Town Liquors. On July 30, 1992, he granted summary judgment in favor of the police officers and City. See Fagan v. City of Vineland, 804 F.Supp. 591 (D.N.J.1992). Plaintiffs filed these appeals.

The district court had jurisdiction over the federal claims under 28 U.S.C. §§ 1331 and 1343(a)(3) and pendent jurisdiction over the state claims. We have jurisdiction under 28 U.S.C. § 1291.

II.

DISCUSSION

A.

When this appeal came before the original panel, plaintiffs argued that the law of the case doctrine precluded the district court from considering the defendants’ motion for summary judgment on the Fourteenth Amendment substantive due process claim because the previously assigned district judge had denied defendants’ motion for summary judgment; that the district court erred in determining that the applicable standard of review for Fourteenth Amendment substantive due process claims is the “shock the conscience” test rather than the reckless or callous indifference test; that the district court erred as a matter of law in concluding that the City of Vineland and its policymakers could not be liable on the failure to train claim under section 1983 if the conduct of the pursuing police officers did not constitute a Fourteenth Amendment violation; that the unavailability of a state remedy precluded the district court from granting defendants’ motion for summary judgment, and that the district court erred in granting the defendant Town Liquor’s motion for summary judgment on plaintiffs’ state law negligence claim.

The original panel unanimously held that the law of the case doctrine was inapplicable, that the City may be independently liable for violating the plaintiffs’ constitutional rights even if no individual police officer is liable, that the absence of a state remedy has no effect on plaintiffs’ rights under the Due Process Clause, and that the record contained insufficient evidence to show that defendant Town Liquors proximately caused the accident, .thereby affirming the district court’s grant of summary judgment on that claim. The panel, however, divided on the “central issue” of the standard for liability under section 1983 for a substantive due process violation in a police pursuit case, with the majority holding that the applicable standard is whether the police officers acted with a reckless indifference to public safety, whereas the dissent took the position that substantive due process is violated only by conduct which “shocks the conscience.”

The City of Vineland and the defendant police officers filed a Petition for Rehearing in Bane limited to the question of the appropriate standard to be applied in police pursuit cases alleging a violation of substantive due process. The court granted rehearing in banc and, pursuant to our Internal Operating Procedures, vacated the panel’s opinion. See Internal Op.Pr. 9.5.9 (July 1990). The in banc court limited its consideration to the one issue raised in the petition for rehearing, which is the subject of this opinion. Accordingly, the panel opinion on all the other issues, edited to conform to the new in banc result, is being filed contemporaneously with this opinion.

B.

In granting summary judgment for the defendants on plaintiffs’ section 1983 claim, the district court stated that “[a] review of case law indicates that, in cases involving police pursuits, most courts have applied something akin to the shocks-the-conscience test.” Fagan, 804 F.Supp. at 601. The court concluded that while the three deaths and injuries were terrible and shocking, “[njothing about any of this police conduct— neither the decision to pursue, nor the manner of pursuit — shocks the conscience.” Id. at 605.

Plaintiffs argue in essence that the district court applied the wrong standard to then-substantive due process claims. They recognize that this court has not yet set forth a standard for Fourteenth Amendment substantive due process claims in police pursuit matters, but argue that the appropriate standard of review should be reckless or callous indifference. Arguably, if that were the appropriate standard, plaintiffs may have been able to withstand the defendants’ motion for summary judgment. Plaintiffs rely primarily on the testimony of their expert witness, Dr. Territo, to support their argument that the defendants acted recklessly, and Dr. Territo relied, in turn, principally on the police pursuit guidelines promulgated in New Jersey by its Attorney General.

It is significant, however, that under the guidelines “law enforcement officers continue to be afforded a wide latitude of discretion in individual cases.” Guidelines at 1; Plaintiffs’ App. at 2. Further, while the guidelines state that non-hazardous violations never warrant prolonged or high speed pursuit, it is far from clear that this category applied to Pindale’s conduct. The illustrations of “nonhazardous violations” are technical infractions like registration violations, rather than violations which indicate a potential for immediate danger,' such as a driver losing control of his passengers.

Indeed, Jeffrey Pindale’s continued operation of the Camaro at high speed without his lights while passing through additional stop signs also takes him out of the guideline for a “non-contmual violation,” which is applicable “[w]here the danger has passed.” Guidelines at 5; Plaintiffs’ App. at 6. Thus, the officers probably fell within the final sentence of that paragraph which provides that the “responsible discretion of the police officer is relied on very heavily.” Id. Once Jeffrey Pindale had turned off his lights while driving 40 miles per hour in a residential neighborhood, Teso-roni could have reasonably believed, as he testified, that Pindale “was a substantial risk to the community” and demonstrated “a willful and wanton disregard for the value of human life as well as property.” Plaintiffs’ App. at 26.

As the district court noted “[t]he tenor of Territo’s testimony is that the officers thought through their actions, but came to the wrong conclusion under the police pursuit guidelines.” 804 F.Supp. at 605. Given the facts, it is not clear that we could hold that as a matter of law the decision to initiate and continue pursuit could be found by any reasonable jury to be recklessly indifferent.² We need not decide that issue because we conclude that the appropriate standard by which to judge the police conduct is the “shocks the conscience” standard, and we note that plaintiffs did not claim in their brief that they have produced facts sufficient to withstand a summary judgment motion under that test.

C.

It is true that with the exception of one recent ease, the opinions of this court have routinely used reckless indifference as the standard by which the courts should determine whether the conduct of police or other governmental employees violates the Due Process Clause of the Constitution. Nonetheless, the question before us is whether the Supreme Court’s decision in Collins v. City of Harker Heights, — U.S. -, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), has now redefined or at least clarified the relevant inquiry when plaintiffs rely on substantive due process as the basis of the constitutional tort.

Reexamination of our reckless indifference standard in light of Collins leads us to conclude that the substantive component of the Due Process Clause can only be violated by governmental employees when their conduct amounts to an abuse of official power that “shocks the conscience.” See Collins, at -, 112 S.Ct. at 1069; see also Temkin v. Frederick County Comm’rs, 945 F.2d 716, 720 (4th Cir.1991) (applying “shocks the conscience” standard in police pursuit case), cert. denied, — U.S. -, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992); Checki v. Webb, 785 F.2d 534, 538 (5th Cir.1986) (same).

In our first post-Collins opinion, this court applied the “shocks the conscience” test and explained that our earlier cases applying a different test all involved alleged violations of a “well-established constitutional right,” such as a student’s right to be free from sexual abuse or the use of excessive force by a school teacher, or a prisoner’s liberty interest in protection from attacks by other prisoners. Searles v. Southeastern Pa. Transp. Auth., 990 F.2d 789, 794 (3d Cir.1993).

The words “shocks the conscience” first appeared in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), where the Supreme Court held that the Due Process Clause barred the admission of evidence at a criminal trial that had been obtained by forcibly subjecting the defendant to a stomach pump. Id. at 172-73, 72 S.Ct. at 209-10. The Court concluded that this police conduct was so egregious as to “shock[] the conscience,” id. at 172, 72 S.Ct. at 209, and “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.” Id. at 169, 72 S.Ct. at 208 (quoting Malinski v. New York, 324 U.S. 401, 417, 65 S.Ct. 781, 789, 89 L.Ed. 1029 (1945)).

In Collins, which represents the Supreme Court’s most recent pronouncement on substantive due process as applied in a civil damage action, the Court unanimously reaffirmed the viability of the “shocks the conscience” standard. The plaintiff in Collins alleged that the city followed a custom and policy of deliberate indifference toward the safety of its workers by “not training its employees about the dangers of working in sewer lines and manholes, not providing safety equipment at job sites, and not providing safety warnings.” — U.S. at -, 112 S.Ct. at 1064. The Court reasoned that the plaintiff had advanced two theories of recovery:

that the Federal Constitution imposes a duty on the city to provide its employees with minimal levels of safety and security in the workplace, or that the city’s “deliberate indifference” to Coffins’ safety was arbitrary Government action that must “shock the conscience” of federal judges.

Id. at -, 112 S.Ct. at 1069 (citing Rochin, 342 U.S. at 172, 72 S.Ct. at 209). The Court rejected the plaintiff’s contention that the city had a federal constitutional obligation to provide its employees with certain minimal levels of safety, characterizing that position as “unprecedented” and supported by “[n]either the text nor the history of the Due Process Clause.” Id. The Court also gave short shrift to the plaintiffs second theory of liability, as to which it stated, “We also are not persuaded that the city’s alleged failure to train its employees, or to warn them about known risks of harm, was an omission that can properly be characterized as arbitrary,³ or conscience-shocking, in a constitutional sense.” Id. — U.S. at -, 112 S.Ct. at 1070 (emphasis added).

In Searles, a panel of this court followed Collins in considering the plaintiffs’ substantive due process claim as the basis for recovery for injuries arising out of a subway derailment. The court rejected the plaintiffs’ arguments that “the Constitution imposes a duty on a municipal transit authority to provide its passengers with minimal levels of safety and security during transportation, or that the transit authority’s deliberate indifference to decedent’s safety was arbitrary government action that must shock the conscience of federal judges.” Searles, 990 F.2d at 792.

We reject any attempt to confine the scope of Collins to those situations where the government failed to take any action to eliminate dangerous conditions. Instead we believe that in enunciating the “shocks the conscience” standard, the Supreme Court intended no distinction between application of the “shocks the conscience” test in situations where the government officials’ affirmative act is the direct cause of the constitutional harm and those where the harm is caused by governmental omission. See White v. Rochford, 592 F.2d 381, 384 (7th Cir.1979) (Opinion of Sprecher, J., announcing the judgment of the court) (“it seems incongruous to suggest that [substantive due process] liability should turn on the tenuous metaphysical construct which differentiates sins of omission and commission”). Indeed, the stomach pump found so reprehensible by the Court in Rochin was an affirmative act committed by state officials, as was the involuntary blood alcohol test in Breithaupt v. Abram, 352 U.S. 432, 435-37, 77 S.Ct. 408, 410-12, 1 L.Ed.2d 448 (1957), and the government’s motion to detain a defendant before trial under the Bail Reform Act of 1984, see United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987). Yet in each of these cases, the Court applied the “shocks the conscience” standard to evaluate the alleged substantive due process violation.⁴

Numerous courts of appeals have also applied the “shocks the conscience” standard when presented with substantive due process challenges involving affirmative government actions. See, e.g., Feliciano v. City of Cleveland, 988 F.2d 649, 657 (6th Cir.) (subjecting police academy cadets to surprise urinalysis to detect drugs), cert. denied, — U.S. — , 114 S.Ct. 90, 126 L.Ed.2d 57 (1993); Newell v. Brown, 981 F.2d 880, 886 (6th Cir.1992) (transferring prisoner to high security prison based on letter written by Congressman at behest of victim’s daughter), cert. denied, — U.S. -, 114 S.Ct. 127, 126 L.Ed.2d 91 (1993); Salas v. Carpenter, 980 F.2d 299, 302-03, 309 (5th Cir.1992) (county sheriffs replacement of trained SWAT and hostage negotiation teams with untrained police officers resulting in death of hostage); Oladeinde v. City of Birmingham, 963 F.2d 1481, 1483, 1486 (11th Cir.1992) (police officials’ retaliation against officers for whistleblowing about wrongdoing in the police department), cert. denied, — U.S. -, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993); Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.) (city’s filing suit against newspaper editor for publishing editorial concerning anti-abortion protest), cert. denied, — U.S. -, 113 S.Ct. 66-67, 121 L.Ed.2d 33 (1992); Pittsley v. Warish, 927 F.2d 3, 6-7 (1st Cir.) (police officers’ verbal abuse and threats against live-in companion of arrestee and her children), cert. denied, — U.S. -, 112 S.Ct. 226, 116 L.Ed.2d 183 (1991); Reese v. Kennedy, 865 F.2d 186, 187-88 (8th Cir.1989) (police officers’ forced eviction of plaintiff from her home); see also Black v. Stephens, 662 F.2d 181, 188 (3d Cir.1981) (in excessive force cases, “[t]he test under the due process clause is whether the police officer’s conduct ‘shocks the conscience’ ”), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982).⁵

Although the applicability of the “shocks the conscience” standard to affirmative acts by government officials is well settled, courts have also looked to the requisite mental state that those officials must possess in order to constitutionalize an otherwise ordinary state-law tort. The Supreme Court has thus far held that mere negligence is insufficient to trigger constitutional liability. See Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986) (“lack of care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent”). However, it has expressly declined to decide “whether something less than intentional conduct, such as recklessness or ‘gross negligence,’ is enough to trigger the protections of the Due Process Clause.” Daniels v. Williams, 474 U.S. 327, 334 n. 3, 106 S.Ct. 662, 666 n. 3, 88 L.Ed.2d 662 (1986).

After Daniels, many courts of appeals have determined that a reckless or even a grossly negligent act is actionable under the Due Process Clause. See, e.g., Medina v. City and County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992) (applying recklessness standard to police pursuit); Germany v. Vance, 868 F.2d 9, 11, 18 (1st Cir.1989) (applying recklessness standard to Department of Youth caseworker’s failure to inform plaintiff of falsified evidence leading to her delinquency adjudication); Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir.1988) (en banc) (applying recklessness standard to fire department dispatcher’s failure to provide rescue services for woman who subsequently died), cert. denied, 489 U.S. 1065, 109 S.Ct. , 103 L.Ed.2d 809 (1989); Nishiyama v. Dickson County, 814 F.2d 277, 282 (6th Cir.1987) (en banc) (applying gross negligence standard to police official’s decision to entrust fully equipped patrol car to inmate who then killed innocent bystander); see also Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th Cir.1989) (gross negligence insufficient in police pursuit case); Cannon v. Taylor, 782 F.2d 947, 950 (11th Cir.1986) (same).

There is regrettably scarce authority in case law and little academic writing that' attempts to reconcile the “shocks the conscience” test with the reckless disregard/gross negligence inquiry. It is significant that our eases applying the reckless disregard standard appear to be limited to cases where the victim was in custody. See, e.g., Williams v. Borough of West Chester, 891 F.2d 458, 464 & n. 10 (3d Cir.1989). That threshold of liability is appropriate in custody cases because the government has restricted an individual’s liberty and thereby increased his or her vulnerability to abusive governmental action or to private harm. Although we have not articulated the issue in this way, it can fairly be said that the judicial conscience is shocked by a governmental employee’s reckless disregard of the constitutional rights of an individual in custody.

The custody cases are not analogous for this purpose to the police pursuit cases. See Temkin, 945 F.2d at 721 (“the standard of care owed in the context of incarceration is of limited value [in police pursuit cases]”); cf. Medina, 960 F.2d at 1496 (characterizing Temkin as holding that “reckless conduct in police chase cases must ‘shock the conscience’ to be actionable”); Richard H.- Fal-lon, Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 Colum.L.Rev. 309, 324 (1993) (“no agreed framework has emerged for identifying when relatively isolated official acts offend substantive due process,” although “[t]he Court has established that conscience-shocking action violates due process”).

The Fifth Circuit has provided a clear explanation of the inadequacy of using an exclusively intent-based inquiry to ground liability under the Due Process Clause:

Many courts have simply applied common law tort principles to the concept of abuse of government power holding that, while simple negligence is not actionable under § 1983, gross negligence, recklessness, callous indifference or intentional conduct are.... While terms applicable to common law torts may help to determine what type of conduct constitutes abuse of power, use of such terms can be misleading. See Rankin [v. City of Witchita Falls], 762 F.2d [444, 447-48 (5th Cir.1985) ] (“some degree of government fault is necessary ... [but] to predicate liability under section 1983 totally on the mere degree of fault would, be to convert the due process clause into an ordinary tort statute”). Such terms state only a standard of care. They do not take into account the exact responsibilities of a particular official or his power to take certain actions. Moreover, it does not take into account the nature and types of discretion which different government officials must be allowed to exercise if they are to have the freedom to carry out their duties without undue interference.

Love v. King, 784 F.2d 708, 713 (5th Cir.1986); see also 1 Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 3.10, at 182 (3d ed. 1991) (citing analysis in Love with approval).

In light of the Supreme Court’s unanimous adherence to the “shocks the conscience” test in Collins, the reckless indifference of government employees is an insufficient basis upon which to ground their liability for a police pursuit under the Due Process Clause.⁶ Such an inquiry is grounded in tort law, not in constitutional principles.⁷ As we stated in our earlier in banc opinion in Davidson v. O’Lone, 752 F.2d 817 (3d Cir.1984), aff'd sub nom., Davidson v. Cannon, 471 U.S. 1134, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985), “where a person suffers injury as an incidental and unintended consequence of official action, the abuse of power contemplated in the due process and [eighth] amendment cases does not arise.” Id. at 827 (quoting Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir.1979)).

This case has been briefed and argued in this court on the basis of the plain-, tiffs’ contention that the police officers were guilty of reckless conduct in conducting the pursuit of Pindale’s automobile. The dissent, without any basis in the pleadings or in the record, has chosen to magnify their culpability, equating what it characterizes as “reckless police conduct in this case,” Dissenting Op. at 1324, to arbitrary, intentional, and deliberate governmental action. The plaintiffs failed to introduce evidence of that nature. The only evidence they introduced on the issue, the testimony of their expert witness, expressly disclaimed any such characterization. Indeed, Dr. Territo testified that the officers did take into account the relevant factors, i.e. that Pindale was engaged in a continuing violation, their knowledge of the streets involved, the fact that it was a residential area, their knowledge of the traffic conditions at the time and place of the events and their own ability to operate their own vehicles. App. at 185.

He then gave .the following answers:

Q. And you’re not saying that they didn’t consider these factors, you’re just saying they came out to the wrong decision?

A. That’s correct.

Q. And the wrong decision was they either decided to pursue or to continue to pursue when they shouldn’t have?

a. That’s correct.

Q. You’re not saying that their decision was arbitrary?

A. No. I think it was a premeditated decision. I think they thought through what they wanted to do and did it.

Q. That is to say you recognize that they thought through the situation, they considered the factors such as we have just discussed, but they came to the wrong decision, in your opinion?

A. Probably so.

App. at 185-86.

The facts of this case are analogous to those considered by the Fourth Circuit in Temkin, where the court, applying the “shocks the conscience” test to a police pursuit, refused to find a substantive due process violation. In that case, a police officer who observed a car spinning its wheels as it left a gas station pursued the vehicle with its lights and sirens activated. Although the officer was informed during the course of the ensuing chase that the driver had stolen $17.00 worth of gas from the station, the pursuit reached speeds ranging from 65 to 105 miles per hour over “a narrow, two-lane highway traversing an area of varying population,” which ended when both drivers lost control over their vehicles, causing the plaintiff “severe and permanent injuries.” 945 F.2d at 718.

At the time of the accident, a policy of the county Sheriffs Department governing police pursuits required the supervisor on duty to monitor all pursuits and to terminate them if warranted. The supervisor, who could not monitor this pursuit for legitimate reasons, failed to keep apprised of the officer’s actions from the radio of an accompanying officer. See id.

The court of appeals affirmed the grant of summary judgment in favor of the officers, rejecting the plaintiffs’ contention that the following facts demonstrated conduct viola-tive of the applicable standard of care:

1) the chase continued for a significant period of time over a ten mile area; 2) the chase continued at a very high rate of speed; 3) the chase was initiated because of a minor violation; 4) the police already had, at a minimum, a partial identification of the license plate of the suspect vehicle; and 5) the chase violated [the pursuit policy] because [the officer] failed to maintain radio contact with his supervisor throughout. To those five facts we would add the expert deposition testimony of [plaintiffs’ expert] that [the officer’s] conduct was “reckless,” “totally irresponsible,” and “wanton.”

Id. at 723. The court characterized the officer’s conduct as “disturbing and lacking in judgment” but not shocking to the conscience. Id.

Our holding today is also in accord with the Fifth Circuit’s opinion in Checki which stated that the action of an unmarked police car in tailgating a driver who had accelerated to speeds in excess of 100 miles per hour in response to the police’s approach would not alone raise any substantive due process claims. In Checki however, the court declined to grant defendants summary judgment because when, after the car was finally stopped at a roadblock, one of the pursuing officers struck Checki with his revolver and broke his companion’s arm. In its discussion, the court applied the standard we adopt here, stating that “where a police officer uses a police vehicle to terrorize a civilian, and he has done so with malicious abuse of official power, shocking the conscience, a court may conclude that the officers have crossed the ‘constitutional line.’ ” 785 F.2d at 538.

The Sixth Circuit appears to apply the same test, albeit under the gross negligence rubric. In Jones v. Sherrill, 827 F.2d 1102 (6th Cir.1987), police officers spotted Sher-rill’s car being driven in an unsafe manner. When they tried to stop the vehicle, Sherrill fled, initiating a pursuit involving speeds up to 135 miles per hour in city traffic. The chase ended when Sherrill’s car crossed the center line and collided with Jones’ car, causing Jones’ death. The court, applying what it called a “gross negligence” test, found that these facts “were not sufficient to charge the government officials with outrageous conduct or arbitrary use of government power” necessary to state a claim because the officers’ intent in initiating the chase was “to protect public safety.” Id. at 1106-07.⁸

Although we are aware of the amorphous and imprecise inquiry that the “shocks the conscience” test entails (referred to in Rochin itself as “indefinite and vague,” 342 U.S. at 172, 72 S.Ct. at 209), it is the standard recently reaffirmed by a unanimous Supreme Court which we are bound to follow.⁹ Therefore, we will affirm the district court’s grant of summary judgment for the defendant officers under the “shocks the conscience” standard.

1 .The relevant portions state:

A. When to pursue

Generally, police officers shall make every responsible effort to apprehend a fleeing vehicle. Therefore, a pursuit may be initiated whenever a law violator refuses to stop and uses his vehicle to flee. The pursuit should always be tempered with common sense and the officer should be aware of the degree of hazard to which he exposes himself and others. The decision to conduct such a pursuit should depend upon the seriousness of the threat that the violator presents to other persons or to society in general; hence the objective of the pursuit must be to apprehend a violator, and the purpose, of the - apprehension must be to bring the perpetrator to trial....

A police officer, prior to initiating a pursuit involving excessive emergency speed and emergency driving tactics or techniques, should consider the following:

1. The nature of the violation.

2. The likelihood of successful apprehension.

3. The hazard created by the high speed pursuit.

4. The volume, type, speed and direction of the traffic.

5. The nature of the area, whether residential, commercial, school zone, open highway, etc.

6. The population density.

7. Familiarity with the roads.

8. The weather and road conditions; i.e., the width and curves of the roadway; stopping and sight distances.

9. The officer’s driving skills and condition of the police vehicle.

B. Nature of Pursuits

The following circumstances are offered as guidelines to be used in considering when and whether a pursuit should be commenced.

1. Non-hazardous violations such as motor vehicle equipment defects, inspection over-dues, and registration violations, never warrant prolonged pursuit or the operation of a motor vehicle at excessive speeds. The risk exceeds the necessity for immediate apprehension.

2. Completed violations. Where the danger has passed, i.e., failure to obey a stop sign, a traffic signal, improper passing, or any other non-continual violation, a prolonged pursuit of a motor vehicle at excessive speeds is seldom warranted, partictdarly when it may cause a greater risk than the violator intended. The responsible discretion of the police officer is relied on very heavily to justify his decision to pursue or not to pursue.

3.Indictable violations and continuing hazardous violations. Pursuit is often necessary to make an apprehension of one suspected of the commission of an indictable offense. In such instances, serious potential for bodily harm or property loss may occur in the event that apprehension does not occur immediately. For example, in kidnapping, destruction or abandonment of critical contraband or evidence, commercial theft, burglaries or the flight of a first or second degree offender, the need to apprehend is paramount but must be weighed against the dangers involved to other highway users, pedestrians, the officer in pursuit and the suspect.

Guidelines at 3-5; Plaintiffs’ App. at 4-6.

2 . A reasonable officer would have been aware that a driver permitting a passenger to hang halfway out of the T-top of an automobile at 2:00 a.m. might have been intoxicated, a hypothesis which was ultimately substantiated in this case.

3 . It is apparent that the Supreme Court used the phase “arbitrary” as an alternative for, or synonymous with, "conscience-shocking.” To the extent the dissent accepts the need to show arbitrary governmental action to constitute a violation of substantive due process, it does not stray far from the majority position. The district court applied the "shocks the conscience” test, the parties have focused their briefs on that test, and, under these circumstances, no purpose is served at this juncture to concentrate on "arbitraiy” as distinguished from "conscience-shocking.”

4 . In other recent cases involving affirmative government conduct, the Justices authoring dissenting opinions applied the "shocks the conscience” test as the constitutional touchstone against which substantive due process violations should be measured. See, e.g., Herrera v. Collins, - U.S. -, - - -, 113 S.Ct. 853, 876, 878-79, 122 L.Ed.2d 203 (1993) (Blackmun, J., dissenting, joined by Justices Stevens and Souter) (execution of innocent defendant is conduct which is more shocking than stomach pump in Rochin); Foucha v. Louisiana, - U.S. -, -, 112 S.Ct. 1780, 1809, 118 L.Ed.2d 437 (1992) (Thomas, J., dissenting, joined by Chief Justice Rehnquist and Justice Scalia) (legislation permitting continued confinement of insanity ac-quitee until he is able to demonstrate that he is not dangerous to himself and others does not shock the conscience).

5 . Since the Supreme Court's opinion in Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989), excessive force claims against the police are actionable under the Fourth Amendment rather than the substantive component of the Due Process Clause. However, where the excessive force does not involve a “seizure” by law enforcement officials, courts have held that a "shocks the conscience” substantive due process claim survives Graham. See, e.g., Wilson v. Northcutt, 987 F.2d 719, 722 (11th Cir.1993).

6 . We cannot ignore the Supreme Court’s repeated warnings against an overly generous interpretation of the substantive component of the Due Process Clause. See Collins, - U.S. at -, 112 S.Ct. at 1068 ("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are. asked to break new ground in this field." (citation omitted)); see also Albright v. Oliver, - U.S. -, -, 114 S.Ct. 807, 812, 127 L.Ed.2d 114 (1994) (plurality opinion) (quoting Collins with approval); id. at -, 114 S.Ct. at 820 (Souter, J., concurring in judgment) (same); Wroblewski v. City of Washburn, 965 F.2d 452, 457 (7th Cir.1992) ("The Supreme Court has insisted upon caution and restraint in courts' application of substantive due process.”).

7 . Significantly, in this case as in Collins, the plaintiffs have not alleged deliberate action, a factor the Collins Court emphasized when it noted that the plaintiff had "not charge[d] the city with a wilful violation, of Collins’ rights ... [or] claim[ed] that the city- or any of its agents deliberately harmed her husband." - U.S. at - - -, 112 S.Ct. at 1068-69. According to one commentator, this language "suggest[s] that 'deliberate' conduct [i]s required for a due process violation.” 1 Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 3.13, at 35 (3d ed. Supp.1992).

8 . Admittedly, the Tenth Circuit applied a "reckless intent” to a police pursuit in Medina, 960 F.2d at 1494. For the reasons stated in the opinion, and in the precedent cited here, we are not persuaded.

9 . The dissent purports at the inception of its opinion not to address other elements in this case “such as the existence of a constitutional duty.” Dissenting Op. at 1310. Its opinion is then replete with discussion of the duty the dissent believes is applicable. See, e.g., id. at 1315 n. 4 ("As far as duty of care is concerned, there is no dispute that the police officers in this case . owed a duty toward the innocent passerbys.”). The dissent recognizes that "[t]he absence of such a duty would be the death knell for the plaintiffs in this case,” id., and assumes that the majority does not deny the existence of such a duty. The dissent was right the first time. The district court did not grant summary judgment on that basis and the parties have not argued the duty issue in this court. Were we to consider the existence of a duty we would be faced with the applicability of the long line of cases holding that government officials are not liable for harm inflicted by third parties, such as that inflicted by Pindale’s accident, on persons who are not in custody. See, e.g., Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); DeShaney v. Winnebago County Dept. of Social Serv., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Commonwealth Bank & Trust Co., N.A. v. Russell, 825 F.2d 12 (3rd Cir.1987). Moreover, the dissent's reliance on the statewide guidelines for the existence of a duty seems contrary to the well-accepted principle that duties under state law cannot create constitutional obligations. See Collins, - U.S. at -, 112 S.Ct. at 1070; D.R. by L.R. v. Middle Bucks Area Vocat’l Tech. School, 972 F.2d 1364, 1375-76 (3rd Cir.1992).