Browder Ex Rel. Estate of Browder v. City of Albuquerque

FILED
United States Court of Appeals
Tenth Circuit

June 2, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES BROWDER, in his
individual capacity and as personal
representative of the Estate of Ashley
Browder; LINDSAY BROWDER;
DONNA BROWDER,

Plaintiffs - Appellees,

v.

CITY OF ALBUQUERQUE; ADAM
CASAUS, in his individual capacity, No. 14-2048

Defendants - Appellants,

and

ALBUQUERQUE POLICE
DEPARTMENT; RAYMOND
SCHULTZ, in his capacity as APD
Police Chief,

Defendants.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:13-CV-00599-RB-KBM)

Deborah D. Wells of Kennedy, Moulton, & Wells, P.C., Albuquerque, New
Mexico (Stephanie M. Griffin, Assistant City Attorney, City of Albuquerque
Legal Department, Albuquerque, New Mexico, with her on the briefs), for
Appellants.
Sean P. McAfee of the Law Office of Brian K. Branch, Albuquerque, New
Mexico (Brian K. Branch of the Law Office of Brian K. Branch, Albuquerque,
New Mexico, and Erik R. Thunberg, Albuquerque, New Mexico, with him on the
brief), for Appellees.

Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.

Adam Casaus was going nowhere fast. After finishing his shift at the

Albuquerque police department and on no one’s business but his own, he got into

his police cruiser, flipped on the emergency lights, and drove off at an average of

about 66 miles an hour on city surface streets through ten different intersections

over a stretch of 8.8 miles. Then he reached an eleventh intersection. The light

was red. He pressed the gas pedal, ignored the light, and the result was a terrible

crash. Ashley Browder died. Her sister, Lindsay, suffered grave injuries.

Sergeant Casaus eventually found himself criminally charged with reckless

vehicular homicide in state court. Now Lindsay and her parents have brought this

civil suit seeking damages under 42 U.S.C. § 1983. Sergeant Casaus asked the

district court to dismiss the Browders’ complaint on grounds of qualified

immunity. The district court declined that relief and so do we.

The Browders’ suit follows this course. Section 1983 permits citizens to

sue for any assault on their constitutional rights that occurs “under color of” state

law. The Supreme Court has read this language broadly, as encompassing even

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some situations in which state law enforcement officers actually violate state law.

Monroe v. Pape, 365 U.S. 167, 184 (1961) (quoting United States v. Classic, 313

U.S. 299, 326 (1941)). But see Crawford-El v. Britton, 523 U.S. 574, 611 (1998)

(Scalia, J., dissenting) (citing Monroe, 365 U.S. at 224-25 (Frankfurter, J.,

dissenting)). Both sides before us accept that this case involves one of those

situations and so we proceed on the same assumption, accepting (without

deciding) that Sergeant Casaus’s conduct came “under color of” state law. Of

course, though, that’s just the beginning of things for § 1983 is but a means to an

end, a vehicle for bringing claims, and it remains incumbent on the plaintiff to

identify some violation of a constitutional (or other federal) right.

In this case, the Browders point to the Fourteenth Amendment. More

particularly, they point to the Amendment’s due process clause which prohibits

the government from depriving individuals of their lives, liberty, or property

without due process of law. The Supreme Court has interpreted this language as

guaranteeing not only certain procedures when a deprivation of an enumerated

right takes place (procedural due process), but also as guaranteeing certain

deprivations won’t take place without a sufficient justification (substantive due

process). Some suggest this latter doctrine with the paradoxical name might find

a more natural home in the Privileges and Immunities Clause; others question

whether it should find a home anywhere in the Constitution. But, the Supreme

Court clearly tells us, home it has and has where it is. At the same time, the

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Court has warned that the doctrine should be applied and expanded sparingly

“because guideposts for responsible decisionmaking in this unchartered area are

scarce and open-ended.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997)

(quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)) (internal

quotation mark omitted).

Under what guideposts the Court has so far staked out, our first job in

assessing a substantive due process claim is to make a “careful description” of the

allegedly violated right. Id. at 721 (internal quotation marks omitted). Then we

must ask whether that right counts as a “fundamental” one, a limited class of

rights sometimes described by the Court as those that can fairly claim to be

“objectively, deeply rooted in this Nation’s history and tradition.” Id. at 720-21

(internal quotation marks omitted); see also Palko v. Connecticut, 302 U.S. 319,

325 (1937) (describing fundamental rights as those “implicit in the concept of

ordered liberty”). Next we must ask whether the government’s alleged

infringement of the right in question was “direct[]” and “substantial[].” Zablocki

v. Redhail, 434 U.S. 374, 387 (1978).

If the plaintiff’s injury meets these tests we then assess whether the

government can muster sufficient justification for its actions. If the government

infringed the plaintiff’s right through legislative activity, the Supreme Court has

told us to inquire whether the legislation is “narrowly tailored to serve a

compelling state interest.” Glucksberg, 521 U.S. at 721 (quoting Reno v. Flores,

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507 U.S. 292, 302 (1993)) (internal quotation mark omitted). If the infringement

is the result of executive action, the Supreme Court has instructed us to ask

whether that action bears a “reasonable justification in the service of a legitimate

governmental objective” or if instead it might be “characterized as arbitrary, or

conscience shocking.” County of Sacramento v. Lewis, 523 U.S. 833, 846, 847

(1998) (quoting Collins, 503 U.S. at 128). Even if the plaintiff can satisfy these

standards, when a state tort suit can provide the same relief as a federal § 1983

claim and there’s no reason to suppose a state court won’t fairly hear the claim it

is an open question whether federal courts — though empowered to hear the suit

— should abstain in favor of the state remedial processes. See Parratt v. Taylor,

451 U.S. 527, 541 (1981); Lewis, 523 U.S. at 840 n.4 (citing Albright v. Oliver,

510 U.S. 266, 281-86 (1994) (Kennedy, J., concurring in the judgment)); see also

Concurrence, post. 1

1
Lewis indicated that its standard for executive conduct is intended to be
even more demanding than the Glucksberg standard for legislative action. Lewis,
523 U.S. at 847 n.8. You might ask why — why has the Court devised different
tests for measuring the propriety of infringements on fundamental rights
depending on the offending governmental agent? Perhaps the answer lies in the
fact that legislation touching on fundamental rights is clearly state action and
clearly affects the liberty of an entire class of persons while executive action
infringing fundamental rights can often come by way of isolated and unauthorized
conduct by individual rogue executive agents against individual citizens. Both
forms of conduct may be actionable under Monroe, but perhaps the Court wishes
to suggest that the latter is a more attenuated form of state action that may
warrant greater scrutiny before it is held to rise to a level of constitutional
concern. Admittedly, some question lingers about all this. In Chavez v.
Martinez, a three-justice plurality seemed to employ both the “legislative” and
(continued...)

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 In cases involving executive action like the one before us still another

question arises: how are we supposed to go about trying to distinguish executive

actions that Lewis describes as “reasonably justified in the service of legitimate

governmental objectives” from those it describes as “arbitrary or conscience

shocking”? This area remains very much unchartered and the conscience-

shocking test does seem (in Glucksberg’s words) more than a little “open-ended,”

but the Court has offered us two further thoughts by way of direction.

First, it’s told us to consult history and precedent. See Lewis, 523 U.S. at

847 n.8; id. at 857 (Kennedy, J., concurring); id. at 860-62 (Scalia, J., concurring

in the judgment). The constitutional due process guarantee traces its roots to the

Magna Carta and the effort to deny capricious kings the “power of destroying at

pleasure,” what Blackstone called the “highest degree” of tyranny. 1 William

Blackstone, Commentaries *133. So perhaps it comes as little surprise that we

should look to the history of efforts to tame arbitrary governmental action to

determine whether and under what conditions the conduct at issue is accepted as a

1
(...continued)
“executive” tests in a case challenging executive action. 538 U.S. 760, 774-76
(2003). What exactly this means is unclear. Perhaps the Court meant to allow
plaintiffs to choose a test. See Seegmiller v. LaVerkin City, 528 F.3d 762, 767-68
(10th Cir. 2008) (suggesting as much but only in dicta). Perhaps the Court meant
only to suggest that the plaintiff before it was destined to lose under any possible
test. Perhaps it is impossible to know what such a splintered Court meant. All
we can say with certainty is that Chavez did not expressly overrule Lewis’s
holding that the “arbitrary or conscience shocking” test is the appropriate one for
executive action so we feel obliged to apply it.

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necessary incident of organized society — or whether it is associated with the sort

of whimsical sovereign the due process guarantee was designed to guard against.

Second, the Court has suggested that careful attention to mens rea can help.

Lewis, 523 U.S. at 849-50. Negligence toward a fundamental right, we are told,

will never suffice to suggest the sort of caprice that rises to the level of

constitutional concern. Meanwhile, in cases where forethought is feasible some

form of recklessness to the plaintiff’s fundamental right may be enough: our

tradition suggests that we can and should usually expect more from the sovereign

than deliberate indifference to fundamental rights like life, liberty, and property.

Still, in cases where the legitimate governmental objective is so pressing that the

luxury of forethought doesn’t exist (e.g., responding to an emergency or dealing

with a prison riot), the Court has held that to establish inappropriate caprice even

more is required. In these cases even an intent to undertake the act that impairs

the plaintiff’s fundamental right isn’t enough: a further intent to impair the

plaintiff’s fundamental right — what’s sometimes called “specific” intent — is

necessary. The Court has adopted this high standard in recognition of the fact

that in emergency situations officers face “obligations that tend to tug against

each other” — the duty to come to the aid of citizens in distress and the duty to

protect the rights of those who may innocently stand in the way — and little time

in which to deliberate their resolution. Id. at 853-54.

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 Attempting to follow as best we can what guidance we’ve received in this

murky area, we believe we can say this much about the case at hand. No one

before us disputes that Ashley’s death and the damage done to Lindsay’s person

count as direct and substantial impairments of their fundamental right to life, so

we can and do take that much as given. And while the line that separates

executive actions that are “reasonably justified” in the service of a “legitimate

governmental objective” and those that are “arbitrary or conscience shocking”

appears anything but clearly defined, this case does not seem to us to implicate

any serious borderline disputes. “Arbitrary” actions are those performed

capriciously or at one’s pleasure and without good reason. See 1 The Oxford

English Dictionary 602 (2d ed. 1989); see also Black’s Law Dictionary 119 (9th

ed. 2009). And on the complaint’s telling at least, Sergeant Casaus’s actions

appear the very model of that. He used his official squad car and activated its

emergency lights and proceeded to speed through surface city streets at more than

60 miles per hour over 8.8 miles through eleven city intersections and at least one

red light — all for his personal pleasure, on no governmental business of any

kind.

History and precedent support our conclusion. In a society governed by

laws and not men officers acting as private persons on private time have

traditionally enjoyed no special immunities for their conduct. See 1 Blackstone,

supra, at ch. 9 (setting forth the common law rights of sheriffs and constables and

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nowhere suggesting any general immunity for their private misconduct); see also

Restatement (First) of Torts § 121 cmts. a, c, and e (1934) (officer’s privilege to

arrest and thus his conditional exemption from otherwise applicable tort law

limited by any jurisdictional and type-of-offense conditions inherent in his

appointment). And the sort of conduct alleged here amounts to conduct

historically punished as a felony by private persons. See, e.g., N.M. Stat. Ann.

§ 66-8-101. What’s more, the New Mexico statute empowering police officers to

speed and run red lights when pursuing a lawbreaker expressly states that it does

not insulate an officer “from the consequences of his reckless disregard for the

safety of others.” N.M. Stat. Ann. § 66-7-6(D). And state laws commonly deem

it an abuse for officers to employ their emergency lights or sirens for their own

business. See, e.g., N.M. Stat. Ann. § 66-3-843; N.Y. Veh. & Traf. Law

§ 375(41)(2); 75 Pa. Cons. Stat. Ann. § 4571(e).

Lewis’s mens rea test confirms our conclusion too. Speeding and jumping

red lights often may signify no more than negligence — the failure to do what a

reasonably prudent person would do. Even in this case we acknowledge a jury

might find Sergeant Casaus guilty of no more than that. But on the facts pleaded

a reasonable jury could infer something more, a conscious contempt of the lives

of others and thus a form of reckless indifference to a fundamental right —

precisely the sort of mens rea Lewis says will normally suffice to establish

liability. Neither do we think it appropriate to demand specific intent in these

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circumstances. Lewis held specific intent may be required to suggest arbitrary or

conscience-shocking behavior in cases where the officer has been asked to

respond to emergencies of citizens in need. But the case never suggested that

such a demanding form of mens rea is necessary or appropriate to suggest

arbitrary or conscience-shocking conduct in cases where the officer isn’t pursuing

any emergency or any official business at all. And for good reason. The officer

in these circumstances faces no tug between duties owed to two sets of innocents,

there is no emergency, no one has called for his aid, and he sits instead in the

same place as everyone else when it comes to respecting the rights of others.

In response to this analysis Sergeant Casaus offers three main rejoinders

and forgoes another. The one he forgoes is perhaps the most significant.

According to the complaint, Sergeant Casaus’s conduct wasn’t authorized by any

state rule, policy, or custom and — as we’ve noted — it’s an open question in

cases like this whether Parratt requires the plaintiff to show that state law

supplies no adequate remedial course before proceeding in federal court. See

supra at 5; Concurrence at 4. But instead of pursuing a line of defense that would

require him to accept that he acted without any legal authorization, Sergeant

Casaus has chosen instead to pursue a defense in precisely the opposite direction

(as we will see in a moment). In light of this tactical decision, we deem any

Parratt argument forfeited and reserve for another day the question whether it

applies to substantive due process claims — the very course the Supreme Court

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itself charted when the defendant in Lewis similarly failed to raise a Parratt

argument. 523 U.S. at 840 n.4.

When it comes to the defense Sergeant Casaus does attempt — claiming

that he was acting on official business — we encounter a different problem. The

officer insists that at the time of the accident he was pursuing another car

operating in a dangerous manner. If true, of course, this could constitute a

“reasonable justification for conduct in service of a legitimate governmental

objective,” for Lewis suggests specific intent to infringe the rights of others may

be required to push a case like that into the realm of the arbitrary or conscience-

shocking — and no one before us claims Sergeant Casaus bore such a mens rea.

See, e.g., Green v. Post, 574 F.3d 1294, 1301-10 (10th Cir. 2009). But the

problem with this defense in this case is that requires us to disregard the

complaint’s well-pleaded facts. The complaint expressly contends that Sergeant

Casaus was pursuing no official business of any kind. And it backs this

contention with facts, alleging that the officer didn’t call or radio dispatch to

relate any infraction by any other driver, though police policy required him to do

so. And alleging that an eyewitness to events says Sergeant Casaus wasn’t

following anyone at the time of the crash. Perhaps the officer might convince a

jury otherwise at trial. But it’s our duty at this stage to take the well-pleaded

facts as true and draw every inference in the Browders’ favor. And viewing the

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complaint in that light, we don’t doubt the Browders have stated a plausible claim

for relief.

Attempting a different tack, Sergeant Casaus says the undisputed fact that

he activated his emergency lights (but not his siren) establishes as a matter of law

he wasn’t acting recklessly. But we cannot agree with this argument either. We

don’t doubt that an officer using his lights and sirens on official business usually

does so at least in part to ensure the safety of others, or that this conduct may go a

long way in many cases toward disproving any specific intent to harm bystanders.

But neither is it the case that officers who go drag racing down Main Street on

their own time only have to flip on their lights or sirens to immunize themselves

from any responsibility for the accidents they cause. Certainly Sergeant Casaus

cites no authority for such a remarkable claim and, as we’ve seen, a good deal of

precedent and history suggests the opposite view. See supra at 8-9. Indeed and

again, we do not doubt that, when an officer uses his emergency lights on his

business and not the public’s and goes racing through traffic lights, a reasonable

jury could conclude that his conduct amounts to an abuse of power; a demand that

others get out of his way so he might pursue his personal business before they

might pursue theirs; and, when added to the other facts present in this case, a

reckless indifference to the lives of others.

Finally, Sergeant Casaus says he didn’t have time enough to form a

reckless indifference to human life. He didn’t, he says, because it took him only

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2.5 seconds to travel through the intersection before impact. But even assuming

(without granting) the requisite mens rea couldn’t be formed in that short period,

Sergeant Casuas here again impermissibly asks us to view the facts in the light

most favorable to him rather than the Browders. On the facts alleged, after all,

one could just as easily conclude that the officer had more like eight minutes than

2.5 seconds to reflect on his actions — from the time he started driving at high

speed on city surface streets through eleven intersections over 8.8 miles until the

time of the crash.

Having determined that, taking the facts alleged as true, Sergeant Casaus

violated the constitutional rights of Ashley and Lindsay Browder one more

question still remains: were those rights clearly established at the time at issue in

this case such that “every reasonable official would have understood that what he

[was] doing” violated them? Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)

(internal quotation mark omitted). Unless we can say so much, Sergeant Casaus

rightly reminds us, he remains entitled to qualified immunity, whatever he may

have done.

In deciding the “clearly established law” question this court employs a

“sliding scale” under which “the more obviously egregious the conduct in light of

prevailing constitutional principles, the less specificity is required from prior case

law to clearly establish the violation.” Shroff v. Spellman, 604 F.3d 1179, 1189-

90 (10th Cir. 2010) (alteration omitted) (quoting Fogarty v. Gallegos, 523 F.3d

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1147, 1161 (10th Cir. 2008)) (internal quotation marks omitted). After all, some

things are so obviously unlawful that they don’t require detailed explanation and

sometimes the most obviously unlawful things happen so rarely that a case on

point is itself an unusual thing. Indeed, it would be remarkable if the most

obviously unconstitutional conduct should be the most immune from liability only

because it is so flagrantly unlawful that few dare its attempt. See Northen v. City

of Chicago, 126 F.3d 1024, 1028 (7th Cir. 1997) (“[T]he police cannot obtain

immunity for liability for false arrests by arresting people on preposterous

charges and then pointing to the absence of any judicial decision that declares the

statutory interpretation underlying the charges to be preposterous.”).

Ours is perhaps a case along these lines. We’ve encountered plenty of

cases involving officers responding to emergency calls who unintentionally cause

traffic accidents. But we haven’t encountered many cases involving deadly traffic

accidents with officers speeding on their own business — presumably (hopefully)

because such things happen rarely. Even so, the Supreme Court and this court

have both spoken unmistakably to this situation. In Lewis, the officer was using

his police car to respond to an emergency and the Court held he didn’t violate the

Constitution. But the Court also expressly noted when a private person suffers a

serious physical injury “‘due to a police officer’s intentional misuse of his

vehicle’” a viable due process claim can arise. 523 U.S. at 854 n.13 (quoting

Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986)). As early as 1996, this court

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warned that an officer who kills a person while speeding at 60 miles an hour on

surface streets absent any emergency and in violation of state law invites a

Fourteenth Amendment claim. Williams v. City and County of Denver, 99 F.3d

1009 (10th Cir. 1996), vacated, 140 F.3d 855 (10th Cir. 1997). Though this court

eventually vacated the Williams panel decision and remanded the case for

reconsideration in light of Lewis, the result proved the same in the end precisely

because Lewis itself made the same point the Williams panel had. See Williams v.

City and County of Denver, Civ. Act. No. 90 N 1176, at 16 (D. Colo. Sept. 28,

1999). Indeed, in Green this court noted Williams’s warning with approval. 574

F.3d at 1298 n.5. And it proceeded to hold that, as of 2006, it was clearly

established “a police officer could be liable under the Fourteenth Amendment” for

driving in a manner that exhibits “a conscience-shocking deliberate indifference”

to the lives of those around him. Id. at 1306. Taken collectively, we believe all

this was more than enough to make clear to any reasonable officer in 2013 (the

time of the accident) that the conduct alleged here could give rise to a claim under

the Fourteenth Amendment. 2

2
Although the City of Albuquerque joins Sergeant Casaus’s appeal, it
argues only that he didn’t violate the Constitution for the reasons we’ve already
considered and rejected. We don’t doubt the City could have raised additional
lines of defense — see Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) — but
for whatever reason it chose not to do so and once again we decline to pass on
potential arguments not presented.

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 The district court’s decision is affirmed and the case is remanded for

further proceedings consistent with this opinion.

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14-2048, Browder v. City of Albuquerque

GORSUCH, Circuit Judge, concurring.

We shouldn’t be surprised that the common law usually supplies a sound

remedy when life, liberty, and property are taken. After all, the whole point of

the common law as it evolved through the centuries was to vindicate fundamental

rights like these. That’s the insight of Parratt v. Taylor, 451 U.S. 527 (1981).

While 42 U.S.C. § 1983 authorizes federal courts to remedy constitutional

violations by state officials acting under color of state law, and while Monroe v.

Pape, 365 U.S. 167 (1961), has read this authorization broadly, the authority to

remedy a claim doesn’t always mean the duty to do so. Federal courts often

abstain when they otherwise might proceed out of respect for comity and

federalism and the absence of any compelling need for their services. See, e.g.,

Younger v. Harris, 401 U.S. 37, 44 (1971). Parratt explains that this familiar

principle applies in the § 1983 context just as it does elsewhere. Often, after all,

there’s no need to turn federal courts into common law courts and imagine a

whole new tort jurisprudence under the rubric of § 1983 and the Constitution in

order to vindicate fundamental rights when we have state courts ready and willing

to vindicate those same rights using a deep and rich common law that’s been

battle tested through the centuries. See 451 U.S. at 539-44; see also Mann v. City

of Tucson, Dep’t of Police, 782 F.2d 790, 797-98 (9th Cir. 1986) (Sneed, J.,

concurring in the result); Richard H. Fallon, Jr., Some Confusions About Due
Process, Judicial Review, and Constitutional Remedies, 93 Colum. L. Rev. 309,

310-11 (1993).

Of course, if a plaintiff can establish that state law won’t remedy a

constitutional injury Parratt recognizes that the doors of the federal courthouse

should remain open to him. So, for example, if a state has overridden the

common law and erected a statutory immunity where the Constitution would

recognize none, a federal court shouldn’t abstain. Or if the state proceeds more

invidiously, maintaining facially adequate law on the books but acting

discriminatorily in practice, the federal court must hear the case. Federal courts

might even assume state remedial processes won’t suffice to redress the

constitutional injury when a state rule, policy, or custom itself caused the injury

— for there one might worry about a sort of potential conflict of interest or at

least the appearance of one. But when a rogue state official acting in defiance of

state law causes a constitutional injury there’s every reason to suppose an

established state tort law remedy would do as much as a novel federal remedy

might and no reason exists to duplicate the effort. See, e.g., Parratt, 451 U.S. at

543-44; Mann, 782 F.2d at 798 (Sneed, J., concurring in the result).

Our case highlights the point. We face a traffic accident, a deeply tragic

traffic accident, but also exactly the sort of thing state courts have long and ably

redressed. A state court could provide relief using established tort principles

(e.g., negligence) and there’s little reason to doubt it would — after all, the

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officer’s actions violated state law and he’s even been criminally charged. Or a

federal court might provide the same relief using primordial constitutional tort

principles that must be expounded more or less on the fly — by asking what’s

“arbitrary” or what “shocks the judicial conscience.” County of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998). The Supreme Court has acknowledged that

constitutional liability principles like these are “open-ended” and provide few

“guideposts for responsible decisionmaking.” Washington v. Glucksberg, 521

U.S. 702, 720 (1997) (quoting Collins v. City of Harker Heights, 503 U.S. 115,

125 (1992)). So why take up the challenge needlessly? When doing so risks

imposing a cloud of uncertainty on government officials about the scope of their

duties and liabilities? When it threatens to invite disuniformity among the

circuits as they attempt to reproduce hundreds of years of accretive common law

decisionmaking? See Fallon, supra, at 349-50. To entertain cases like this in

federal court as a matter of routine risks inviting precisely the sort of regime the

Supreme Court has long warned against — one in which “any party who is

involved in nothing more than an automobile accident with a state official could

allege a constitutional violation” in federal court and thus “make of the

Fourteenth Amendment a font of tort law” needlessly superimposed on perfectly

adequate existing state tort law systems. Albright v. Oliver, 510 U.S. 266, 284

(1994) (Kennedy, J., concurring in the judgment) (quoting Parratt, 451 U.S. at

544); see also Lewis, 523 U.S. at 848; Paul v. Davis, 424 U.S. 693, 701 (1976).

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 True, language in Zinermon v. Burch, 494 U.S. 113 (1990), suggests that

Parratt’s abstention principle may apply to procedural and not substantive due

process claims like the one in this case. Id. at 124-25. But, respectfully, the

suggestion along these lines came in dicta and several reasons exist to doubt it.

For starters, the distinction between procedural and substantive due process isn’t

found in the constitutional text and is famously malleable in any event; one might

wonder whether a boundary like that offers a stable foundation on which to rest

such a weighty distinction. See, e.g., Albright, 510 U.S. at 285 (Kennedy, J.,

concurring in the judgment); Mann, 782 F.2d at 796-98 (Sneed, J., concurring in

the result). One might ask too whether Parratt itself might be better understood

as a substantive rather than a procedural due process case. See, e.g., Fallon,

supra, at 341-44. Then there’s the fact the Supreme Court and others have

already applied Parratt to cases involving the deprivation of substantive rights.

See, e.g., Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S.

172, 195 (1985); Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001);

Schaper v. City of Huntsville, 813 F.2d 709, 718 (5th Cir. 1987). And the fact the

Supreme Court has repeatedly admonished courts to proceed with special caution

when handling substantive due process claims. See, e.g., Glucksberg, 521 U.S. at

720. Finally, after Zinermon came Lewis, a decision in which the Court

specifically reserved the question whether Parratt applies to substantive due

process claims, confirming that the issue remains a live and open one. 523 U.S.

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at 840 n.4. Indeed, it’s hard to identify a principled justification for extending

Parratt piecemeal to procedural due process claims rather than wholesale to all

due process claims. Zinermon observed that a substantive due process violation is

complete upon a deprivation while a procedural due process violation requires us

to wait and see what process the state provides. But it’s unclear why that

distinction makes a difference when Parratt’s logic cuts across both kinds of

cases, asking in all events whether there’s a need for federal intervention or

whether state remedial processes might do just as well.

Losing a child is a nightmare of the darkest sort and the suffering the

Browder family has had to endure is beyond words. But there’s little reason to

think that state courts would fail to fulfill their oaths to see justice done in this

case, at least as well as it can ever be done in a case so tragic. To be sure, a

Parratt argument wasn’t properly presented in this case and so we rightly hold it

waived in this instance. But when the issue is raised in appropriate future cases, I

believe we would do well to consider closely its invitation to restore the balance

between state and federal courts. For we should be able to expect both that

justice will be done in cases like this one and that it will be done while exhibiting

the sort of cooperative federalism that has traditionally defined our law.

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