with whom BECKER, SCIRICA and LEWIS, Circuit Judges, join, dissenting,
Table of Contents
I. Introduction. 1309
II. The “Shocks the Conscience” Standard. 1311
A. The Collins Case as the Authority. 1311
B. The Majority’s Remaining Analysis. 1313
C. The Inappropriateness of the “Shocks the Conscience” Test. 1316
1. The Debut and Erosion of the Rochin Case. 1316
2. The Mistaken Extension of the “Shocks the Conscience”. 1318
3. The Impracticality of the “Shocks the Conscience” Test. 1319
III. The Reckless Indifference Standard. 1320
A. The Supreme Court’s Elaboration of - Due Process Law. 1321
B. Reckless Indifference as the Standard.. 1322
1. The Exercise of Exclusively Governmental Power. 1322
2. Reckless Indifference as Intentional or Arbitrary Conduct. 1323
3. Prudential Concerns. 1326
C. Consistency -with Case Law.. 1326
IV. The Majority’s Assessment of the Facts...-. 1328
V. Conclusion. 1328
Today the in banc majority holds that in a § 1983 action for violation of substantive due process “the appropriate standard by which to judge the police conduct is the ‘shocks the conscience’ standard,” Maj.Op. at 1303. The majority acknowledges, as it must, that such a test at its best is “amorphous and imprecise.” Id. at 1308. The in banc majority fails to explain why the utterly reckless indifference to the safety of the public exhibited by the police officers in conducting the high speed car chase in this case, which resulted in the death of three people and crippling injuries for two others, does not suffice to constitute a deprivation in the constitutional sense. Nor does it provide an analysis as to why conduct that meets the amorphous and imprecise “shocks the conscience” test is the necessary condition for establishing a violation of substantive due process.
The in banc majority mainly relies upon the authority of Collins v. City of Harker Heights, — U.S. -, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), for its holding. From its reading of Collins, the in banc majority of our court concludes that the “shocks the conscience” test is “the standard recently reaffirmed by a unanimous Supreme Court which we are bound to follow.” Maj.Op. at 1308.
The in banc majority misreads Collins by attributing to the decision the adherence to a “shocks the conscience” standard, which adherence is not in the opinion of the Supreme Court. The misplaced reliance aside, I disagree with the proposition that “conscience-shocking” conduct is the only conduct that constitutes, an unconstitutional deprivation, although I agree that conduct which “shocks the conscience” suffices to satisfy (and more than satisfies) any constitutional standard whereby a deprivation can be found. I would hold that the appropriate standard is reckless indifference, and therefore respectfully, dissent.
I. Introduction
The plaintiffs brought this instant action under 42 U.S.C. § 1983. That provision states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, *1310suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (1988). Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694-95 n. 3, 61 L.Ed.2d 433 (1979). The plaintiffs in this case ground their claim on the substantive component of the Due Process Clause of the Fourteenth Amendment.
The Due Process Clause provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV. Case law indicates that to prevail in a case brought under § 1983 for violations of the Due Process Clause, the plaintiff must show that the defendant acted under color of state law, Monroe v. Pape, 365 U.S. 167, 172-87, 81 S.Ct. 473, 476-84, 5 L.Ed.2d 492 (1961), that at stake was a protected property interest or a liberty interest, Board of Regents v. Roth, 408 U.S. 564, 570-78, 92 S.Ct. 2701, 2705-10, 33 L.Ed.2d 548 (1972); Paul v. Davis, 424 U.S. 693, 710-12, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976), that the defendant had a duty of care toward the plaintiff, Collins v. City of Harker Heights, — U.S. -, -, 112 S.Ct. 1061, 1068-71, 117 L.Ed.2d 261 (1992); DeShaney v. Winnebago County Dept. of Social Serv., 489 U.S. 189, 194-203, 109 S.Ct. 998, 1002-1007, 103 L.Ed.2d 249 (1989), and that a deprivation within the meaning of the Due Process Clause occurred, Daniels v. Williams, 474 U.S. 327, 329-33, 106 S.Ct. 662, 664-66, 88 L.Ed.2d 662 (1986).
Whether an unconstitutional deprivation occurred is the only element at issue in this case.. It is important for us to keep this fact in mind so that we will not confuse eases addressing other elements such as the existence of a constitutional duty with the case sub judice. Our task is to adopt a standard with which the courts can adjudicate whether the challenged conduct constitutes an unconstitutional deprivation.
Although what is a deprivation within the meaning of the Due Process Clause appears to defy definition across the board, in the seminal case of Monroe v. Pape, the Supreme Court directed that § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his action.” 365 U.S. at 187, 81 S.Ct. at 484. Clearer pronouncement came when the Court stated that “[njothing in the language of § 1983 or its legislative history' limits the statute solely to intentional deprivations of constitutional rights,” Parratt v. Taylor, 451 U.S. 527, 534, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), and that § 1983 “affords a ‘civil remedy’ for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind,” id. at 535, 101 S.Ct. at 1913. On the contrary, the criminal counterpart to § 1983, 18 U.S.C. § 242, specifically contains a wilfulness, i.e., intentional conduct, requirement in its language. Id.
The Supreme Court has steadfastly adhered to the position that § 1983 “contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” Daniels, 474 U.S. at 330, 106 S.Ct. at 664 (1986). The plaintiff need only prove a violation of the underlying constitutional right. Id.
However, the Court’s holding in Parratt appeared to state that negligent conduct may be sufficient to state a claim under § 1983 for a violation of the Due Process Clause under the 14th Amendment. Concerned that an expansive reading of § 1983 and the Due Process Clause would make the 14th Amendment “ ‘a font of tort law to be superimposed upon whatever systems may already be administered by the States,’ ” Daniels, 474 U.S. at 332, 106 S.Ct. at 665 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)), the Supreme Court retreated somewhat, and “overrule[d] Par-ratt to the extent that it states that mere lack of due care by a state official may ‘deprive’ an individual of life, liberty, or property under the Fourteenth Amendment.” Daniels, 474 U.S. at 331, 106 S.Ct. at 664.
It is thus clear that an intentional violation of a right protected by the Due Process Clause is within the reach of § 1983. It is also clear that mere negligence is insufficient to make out a claim. What is unclear is the status of the claims arising from conduct *1311falling within the spectrum between mere negligence and intentional conduct. In Daniels the Supreme Court reserved the question “whether something less than intentional conduct, such as recklessness or ‘gross negligence,’ is enough to trigger the protections of the Due Process Clause.” Id. at 334 n. 3, 106 S.Ct. at 666 n. 3. Accordingly, the standard by which to determine whether the arguably reckless police conduct in this case worked a deprivation an violation of substantive due process has thus far been an open question.
II. The “Shocks the Conscience” Standard
To this open question, the “shocks the conscience” test is the answer of the in banc majority. Without providing an analysis as to why “shocks the conscience” conduct is a necessary requirement for a violation of substantive due process, the in bane majority primarily relies on Collins v. City of Harker Heights, — U.S. -, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), as its marching order. I disagree.
A. The Collins Case .as the Authority
Although frankly recognizing that with one exception this court has so far “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,” Maj.Op. at 1303, the in banc majority abruptly concludes that higher authority has now compelled us to adopt the “shocks the conscience” standard. I do not see such higher authority.
The in bane majority characterized the question before us as “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.” Maj.Op. at 1303. Collins is seen by the in banc majority as “represent[ing] the Supreme Court’s most recent pronouncement on substantive due process as applied in a civil damage action,” id. at 1304, where “the Court unanimously reaffirmed the viability of the ‘shocks the conscience’ standard.” Id. (emphasis added). The natural conclusion drawn by the in banc majority is that the “shocks the conscience” test “is the standard recently reaffirmed by a unanimous Supreme Court which we are bound to follow.” Id. at 1308.
The in banc majority reads too much into Collins and its reliance upon Collins is totally misplaced. The Supreme Court has never established a “shocks the conscience” test in a § 1983 action. This is clear because the catch phrase “shocks the conscience” was first employed in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (before the Fourth Amendment was incorporated into the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)), a criminal case decided in 1952 relating to the exclusion of certain evidence, while in 1986 the Supreme Court reserved the question “whether something less than intentional conduct, such as recklessness or ‘gross negligence,’ is enough to trigger the protections of the Due Process Clause.” Daniels, 474 U.S. at 334 n. 3, 106 S.Ct. at 666 n. 3. Obviously the Supreme Court did not believe Rochin foreclosed this question. Nor did the Supreme Court establish any such “shocks the conscience” test between the time it decided Daniels and when Collins was announced in 1992. Therefore, there was no precedent for any “shocks the conscience” test in a § 1983 case for the Supreme Court to pay homage to, or to apply any “unanimous adherence” or “unanimous reaffirmanee” to in Collins.
Nor did the Collins case establish a “shocks the conscience” test. It merely rejected the arguments that “the Federal Constitution imposes a duty on the city to provide its employees with minimal levels of safety and security in the workplace,” Collins, — U.S. at -, 112 S.Ct. at 1069, and 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, or conscience-shocking, in a constitutional sense,” id. at -, 112 S.Ct. at 1070. The focus of that case is on the lack of a constitutional duty on the part of the city to make its workplace safe, for without such a duty there *1312cannot be a claim under § 1983 against the city for a violation of substantive due process. See DeShaney, 489 U.S. at 194-203, 109 S.Ct. at 1002-07; D.R. by L.R. v. Middle Bucks Area Vocat’l Tech. School, 972 F.2d 1364, 1368-76 (3d Cir.1992) (in banc), cert. denied, — U.S. -, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993). There was no need in Collins to establish any test to gauge what is a deprivation under the Fourteenth Amendment.
Furthermore, the Collins Court characterized the city's conduct as' a mere omission, — U.S. at -, 112 S.Ct. at 1070, and thus falling within the rule of Daniels. There was no occasion for the Collins Court to consider the implication of conduct that shocks the conscience. Indeed, there was no need to provide a new rule regarding conduct that is more culpable than mere omission. Significantly, the Court emphasized that the plaintiff “[did] not claim that the city or any of its agents deliberately harmed her husband. In fact, she [did] not even allege that his supervisor instructed him to go into thé sewer when the supervisor knew or should have known that there was a significant risk that he would be injured.” Id. at -, 112 S.Ct. at 1069. This language apparently addressed the question of reckless conduct and affirmative governmental action, thus indicating that the Court attempted to restrict its holding to the “mere omission” factual scenario. Should reckless conduct exist, the Supreme Court may rule differently.
The entire text of the Collins opinion used the phrase “shock the conscience” only once, and it was used to characterize the plaintiffs contention. Id. The phrase “conscience-shocking” also appeared only once. When the term was used, it was not used exclusively, but placed together with “arbitrary.” Id. at -, 112 S.Ct. at 1070. The Court stated that “the city’s alleged failure ... was an omission that can properly be characterized as arbitrary, or conscience-shocking, in- a constitutional sense.” Id. (emphasis added). This language indicates at a minimum that either conduct that “shocks the conscience” or “arbitrary” conduct would suffice to state a claim under the Due Process Clause and that no exclusive “shocks the conscience” standard was announced.
More important, the Court in other sections of the opinion apparently used “arbitrariness” as the standard. Id. at - - -, 112 S.Ct. at 1070-71. The Court explained that its “refusal to characterize the city’s alleged omission in [the] case as arbitrary in a constitutional sense rests upon the presumption that the administration of Government programs is based on a rational decisionmaking process.” Id. at -, 112 S.Ct. at 1070 (emphasis added). Then the Court proceeded to dismiss the plaintiffs claim of deprivation of a liberty interest allegedly created by Texas state law for the reason that- “she has not alleged that the deprivation of this liberty interest was arbitrary in the constitutional sense.” Id. at -, 112 S.Ct. at 1071 (emphasis added). The Court summarized its holding in a previous section as “the city’s alleged failure to train and warn did not constitute a constitutionally arbitrary deprivation of Collins’ life.” Id. (emphasis added).. In all these instances, only the term “arbitrary” was used. If the Court’s opinion is an indication of any standard, that standard appears to be “arbitrariness.” Thus, Collins obviously does not foreclose a court from considering “arbitrary” acts as violations of the Due Process Clause. The in banc majority of our court does not explain why reckless indifference does not constitute an arbitrary act in the constitutional sense. It truncates what the Supreme Court said and focuses only on that part of the sentence that used the catch phrase of “conscience-shocking.”
Moreover, the in banc majority of this court characterized the Supreme Court’s treatment of the plaintiffs claim in Collins as giving “short shrift,” Maj.Op. at 1304, to the plaintiffs theory of liability. It would be a strange way to establish a new “shocks the conscience” test by “giving short shrift” to the plaintiffs claim.1 We should not lightly *1313assume that such a methodology is the mo-dus operandi of the Supreme Court in announcing new constitutional standards of such great importance.
The author of the Collins opinion, Justice Stevens, might be surprised by the in banc majority’s reading of Collins as establishing or fortifying the “shocks the conscience” standard. Justice Stevens does not even endorse the position that mere negligence cannot be a deprivation, not to mention a “shocks the conscience” test. In both Daniels and its companion case Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), Justice Stevens did not join the opinion of the Court, while concurring in the judgments. Justice Stevens disagreed with the majority on the issue of what is a deprivation:
“Deprivation,” it seems to me, identifies, not the actor’s state of mind, but the victim’s infringement or loss. The harm to a prisoner is the same whether a pillow is left on a stair negligently, recklessly, or intentionally; so too, the harm resulting to a prisoner from an attack is the same whether his request for protection is ignored negligently, recklessly, or deliberately. In each instance, the prisoner is losing — being “deprived” of — an aspect of liberty as the result, in part, of a form of state action.
Daniels v. Williams, 474 U.S. 327, 341, 106 S.Ct. 677, 680, 88 L.Ed.2d 662 (1986) (Stevens, J., concurring in judgment in Daniels and Davidson) (emphasis added). Thus, the author of the Collins opinion had clearly indicated in another context that reckless as well as negligent conduct would work a deprivation.
For the foregoing reasons, the in banc majority errs in relying on Collins as the authority for today’s holding. The Collins case did not establish any “shocks the conscience” test that “we are bound to follow,” Maj.Op. at 1308.
B. The Majority’s Remaining Analysis
Stripped of its misplaced reliance upon higher authority, the in banc majority of course may still of its own volition establish “the shocks the conscience test” for this circuit. Without the compulsion that follows from Supreme Court authority, it is incumbent upon the in banc majority to provide an independent analysis to directly establish the “shocks the conscience” standard as the necessary standard. Such an inquiry is particularly important in this case. As the in bane majority acknowledges, this court has so far with the exception of one recent case “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,” Maj.Op. at 1303. Only the most convincing analysis can justify a break from so firm a “routine,” lest we send a message that stare decisis means little in our court.2
I do not find any such searching analysis in the opinion of the in banc majority. The majority appears to rely on Searles v. Southeastern Pennsylvania Transportation Authority, 990 F.2d 789 (3d Cir.1993). This reliance is misplaced for the same reason why the reliance on Collins is misplaced; Searles is a near copy of Collins as to both the factual scenarios and the analysis.
In Searles, a train passenger was killed after a motor fell from the bottom of a moving rail car and caused a collision. We rejected the plaintiffs claim because the *1314Constitution imposes no affirmative duty to provide commuters with minimum levels of safety and security, and because “plaintiffs claim is analogous to a fairly typical state law tort claim: defendants breached their duty of care to her husband by failing to provide safe transportation.” Id. at 793. As a result, we found no substantive due process violation.
The Searles opinion closely followed Collins v. City of Harker Heights which held that the defendant city had not violated the substantive due process rights of an employee who, allegedly because of improper training, was killed by gas while working in a sewer. — U.S. at -, 112 S.Ct. at 1069-70. As discussed earlier, the Supreme Court focused on the question whether the city owed a constitutional duty to provide a minimum level of safety in its workplace. See supra at-. The Court held that the Constitution imposes no duty to provide a safe working environment. Id. — U.S. at -, 112 S.Ct. at 1069-70. Without such a duty, there was no need to establish any test for the appropriate standard of care.
In both Collins and Searles, the government did not directly cause harm to the plaintiffs but instead failed to take action to eliminate dangerous conditions created by an activity of a public builder or employer acting in the same manner as a private one. In the present case, however, the defendant police officers engaged in affirmative conduct by pursuing Pindale at high speeds and attempting to apprehend him. Viewed in the light most favorable to the plaintiffs, the affirmative conduct of the police officers created an extremely dangerous condition. That danger was clear. Under such circumstances, the government has a corresponding duty to protect citizens in proximity to the danger it created. D.R. by L.R. v. Middle Bucks Area Vocat’l Tech. School, 972 F.2d 1364, 1373-76 (3d Cir.1992) (in banc) (duty arising from state created danger), cert. denied, — U.S. -, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993). Both Collins and Searles emphasized that the alleged omissions resembled ordinary state negligence claims. Our case is fundamentally different. The police officers were exercising a core governmental function, and abused that power through their apparently reckless and arbitrary conduct.
Secondly, the in banc majority summarily asserts that “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. Such an inquiry is grounded in tort law, not in constitutional principles.” Maj.Op. at 1306-07 (footnotes omitted). Above all, this language indicates that the in banc majority believes there is an inherent conflict between “tort law” and “constitutional principles.” This belief is contrary to Supreme Court authority. Even though we are not at liberty to transform every tort claim into a constitutional claim, we have been instructed by the Supreme Court that § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his action.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). The in banc majority does not explain why a reckless indifference standard is based solely on tort law, and never on constitutional principles.
It appears to me that in order for its position to be persuasive, the in banc majority needs to explain why the “shocks the conscience” test is a necessary standard, and why “reckless indifference” is not a sufficient constitutional standard, on the basis of the text and the tradition of the Constitution, structural inferences legitimately drawn from the Constitution, case law in the Supreme Court or our court, and any other legitimate constitutional considerations. Rather than providing such an analysis, the in bane majority simply quotes from a previous opinion of this court: “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.” Maj.Op. at 1307 (quoting Davidson v. O’Lone, 752 F.2d 817, 827 (3d Cir.1984), aff'd sub nom. Davidson v. Cannon, 471 U.S. 1134, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985)) (alteration in Maj.Op.; citations omitted).
I fail to see the reasons why this language is relevant to the question before us, mindful of the fact that Davidson is a case of “mere *1315negligence.” If the in bane majority means that the injury that occurred in the case sub judice is “incidental,” or that reckless conduct may never produce an injury that is more than incidental so as to trigger the protections of the Due Process Clause, it is in grave error. In my view, injury that results from reckless conduct is not incidental.
In an effort to justify its abandonment of our routine application of the reckless disregard standard in constitutional tort cases, the in banc majority points out that the reckless conduct standard has been limited to custody cases, and distinguishes this case solely because no law enforcement custody existed. The in banc majority fails to elaborate on the singular importance of this factor. It merely asserts that “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.” Maj.Op. at 1306. The in banc majority breaks new ground in making such an assertion. It acknowledges that “we have not articulated the issue in this way.” Id. More important, the majority borders on intimating that all of our previous cases can and must be recast to hold that only conduct that “shocks the conscience” can give rise to a cause of action under § 1983 and that the formula is “recklessness plus custody” equals “shocks the conscience.”3
The in banc majority errs in attributing to the fact of custody a function of elevating reckless indifference to conduct that “shocks the conscience.” The Supreme Court has indicated that the importance of the fact of custody is that custody gives rise to a duty of care on the part of the custodian toward the detainee: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dept. of Social Serv., 489 U.S. 189, 199-200, 109 S.Ct. 998, 1005, 109 S.Ct. 998 (1989); Estelle v. Gamble, 429 U.S. 97, 103-05, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976) (deprivation of liberty gives rise to the duty of the government to provide medical care to a prisoner). In these cases, custody was discussed in connection with constitutional “duty,” and not in connection with the constitutional standard of care.4
. There is no authority for treating custody as a factor to boost the level of the constitutional standard of care or the gravity of unconstitutional harm. The fact of custody did not affect the Supreme Court’s analysis of “mere negligence.” Daniels v. Williams, 474 U.S. 327, 329-36, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986) (prisoner slipped and fell). In other words, mere negligence plus custody is still mere negligence. I do not believe that recklessness plus custody equals “shocks the conscience.”
In a footnote the in banc majority alludes to the general reluctance of the federal courts in divining a new cause of action under § 1983 for violations of the Due Process Clause. Maj.Op. at 1306-07 n. 6. This reluctance recognizes the institutional problem of the federal courts deciding tort cases which would inundate the federal courts if there is no gatekeeping. See generally Paul M. Bator et al, Hart & Wechsler’s The Fed*1316eral Courts and the Federal System 1268-77 (3d ed. 1988). However legitimate and salutary, this concern should not be the disposi-tive factor in our decisionmaking as to whether the Constitution was violated. Each of us has a view of how to solve the problem of docket congestion in the federal courts.5 However, it is for Congress, not us, to ultimately resolve that question. When a deprivation within the meaning of the Due Process Clause occurs, we have no choice but to recognize a cause of action for compensation. Cf. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392-97, 91 S.Ct. 1999, 2002-05, 29 L.Ed.2d 619 (1971) (recognizing an implied private right of action for violations of the Fourth Amendment by federal agents' in the absence of congressional authorization comparable to § 1983). ' Moreover, as “inferior federal courts,” U.S. Const, art. Ill, our jurisdiction is regulated by Congress. Id. We are not free to carve out exceptions in the field when Congress by enacting § 1983 has expressly mandated that the federal courts adjudicate such claims.
C. The Inappropriateness of the “Shocks the Conscience” Test
There is no adequate reason for adopting a “shocks the conscience” test in this case. Even decisions of the Supreme Court have precluded the application of this test in factual situations analogous to those in Rochin. Moreover, Rochin at most states that conduct that “shocks the conscience” suffices, but is not required, to state a claim of constitutional deprivation. In other words, it is a “sufficient” test, not a “necessary” test. Even if the test is valid as a necessary test, it is “amorphous and imprecise,” Maj.Op. at 1308, and defies definition. Thus, it is impractical. All these factors militate against adopting a “shocks the conscience” test.
1. The Debut and Erosion of the Rochin Case
The so-called “shocks the conscience” standard was employed by the Supreme Court in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), to impose the Fourth Amendment exclusionary rule upon the states in criminal cases, without overruling a previous decision stating that the Fourth Amendment exclusionary rule does not apply to state proceedings for state crimes. The “shocks the conscience” standard was subsequently repudiated in cases that most closely resembled the facts of the Rochin case. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989). Since Rochin, the Supreme Court has never employed the “shocks the conscience” test as part of its holding in any case. If the test still has any viability, it should be confined to where it arose: criminal cases where the exclusion of evidence is at issue.
The catch phrase of “shocks the conscience” is commonly attributed to Rochin, a case in, which the question was whether evidence obtained by pumping the defendant’s *1317stomach could be introduced to convict the defendant. Id. 342 U.S. at 166-68, 72 S.Ct. at 206-07. This was a fairly easy Fourth Amendment case by today’s standards. But the Supreme Court eschewed the Fourth Amendment. See Irvine v. People, 347 U.S. 128, 133, 74 S.Ct. 381, 383, 98 L.Ed. 561 (1953) (plurality opinion) (“Although Rochin raised the search-and-seizure question, this Court studiously avoided it”). Instead, the Court relied upon the Due Process Clause to reverse the conviction. It held that pumping a criminal defendant’s stomach to obtain evidence violated his Fourteenth Amendment substantive due process rights and described the state’s action as “conduct that shocks the conscience.” Id. 342 U.S. at 172, 72 S.Ct. at 209.
A perusal of Supreme Court decisions in evidence exclusion cases reveals that in Rochin the Supreme Court did not want to reverse Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), which was decided just three years earlier. Instead, it applied the Due Process Clause as a substitute for the Fourth Amendment in order to exclude evidence obtained through horrendous means. Justice Frankfurter wrote the opinions for the Court in both Rochin and Wolf.
In 1914, the Supreme Court held that in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). This was the advent of the exclusionary rule. In Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), the Supreme Court declined to extend this rule to state proceedings on state crimes. In an opinion written by Justice Frankfurter, the Court confessed that it had “no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy [as in this case] it would run counter to the guaranty of the Fourteenth Amendment.” Id. at 28, 69 S.Ct. at 1361. However, it held that “in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of the evidence obtained by an unreasonable search and seizure.” Id. at 33, 69 S.Ct. at 1364. The reason was that at the time Weeks was decided “the English-speaking world [did] not regard as vital to such protection [of privacy] the exclusion of evidence thus obtained.” Id. at 29, 69 S.Ct. at 1362.
Permitting the states to admit all evidence indiscriminately went too far when the evidence was obtained by pumping the defendant’s stomach. But that was required by the Wolf rule. The Supreme Court’s choices were to overrule Wolf or rely on another constitutional protection. It chose the latter in Rochin. Had the Court been willing to extend the exclusionary rule to the states, the Fourth Amendment would have provided a ready answer to the problem. However, the Court opted for the more general Due Process Clause. This was criticized by the Supreme Court itself just one year later in Irvine v. California, 347 U.S. 128, 133, 74 S.Ct. 381, 383, 98 L.Ed. 561 (1953), where the court affirmed a conviction on the authority of Wolf. In Irvine a plurality in an opinion written by Justice Jackson criticized the Ro-chin Court for failing to address the search-andrseizure issue, and for “never once mentioning] the Wolf case.” Id. (plurality opinion). Justice Clark condemned the Rochin test openly in a concurrence. Id. at 138, 74 S.Ct. at 386 (Clark, J., concurring). Only Justice Frankfurter, joined by Justice Burton, argued that Rochin decided the issue in Irvine. Id. at 145, 74 S.Ct. at 390 (Frankfurter, J., dissenting). Justices Black and Douglas dissented on another ground: See id. at 139-42, 74 S.Ct. at 387-88 (Black, J., dissenting). Thus, according to Justice Black, “[o]nly one thing emerged with complete clarity from the Irvine ease — that is that seven Justices rejected the ‘shock-the-conscience’ constitutional standard.” Mapp v. Ohio, 367 U.S. 643, 666, 81 S.Ct. 1684, 1697, 6 L.Ed.2d 1081 (1961) (Black, J., concurring).
In 1961 Mapp brought about the final demise of Rochin in evidence exclusion cases. In Mapp, the Court explicitly overruled Wolf and applied the Weeks exclusionary rule to state proceedings. Id. at 650-57, 81 S.Ct. at 1689-92. No Justice opined that Rochin controlled the issue presented in Mapp, that the conduct there did not shock the conscience; *1318therefore, the evidence was admissible. Not even Justice Frankfurter wrote an opinion arguing for the application of the “shocks the conscience” test. He merely joined Justice Harlan’s dissent, which contended that it was not an appropriate occasion for reexamining Wolf. Id. at 672-85, 81 S.Ct. at 1701-1708 (Harlan, J., dissenting).
The Mapp case “dissipates the doubt and uncertainty in this field [the application of exclusionary rule] of constitutional law.” Id. at 666, 81 S.Ct. at 1697 (Black, J., concurring). After Mapp, the defendants need only prove unreasonable search and seizure in order to have evidence excluded in state proceedings. It became irrelevant whether the police conduct in obtaining the evidence at issue “shocks the conscience.” The so-called “shocks the conscience” test, which is much harder to satisfy than the reasonableness test, no longer has any bite in evidence exclusion cases.
The erosion of Rochin does not stop in criminal cases; it extends to civil cases when a plaintiff brings a § 1983 action alleging police misconduct resembling that in Rochin. The .most notable application of Rochin in a civil case is Johnson v. Glick, 481 F.2d 1028, 1033-34 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). Accord Black v. Stephens, 662 F.2d 181, 188 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982). The Supreme Court specifically rejected the application of the “shocks the conscience” test in such a context. Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989). The Court explicitly held that
all claims that law enforcement officers have used excessive force — deadly or not— in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach.
Id. at 395, 109 S.Ct. at 1871. Recently, the Supreme Court reiterated this position in Albright v. Oliver, — U.S. -, - - -, 114 S.Ct. 807, 810-814, 127 L.Ed.2d 114 (1994) (plurality opinion).
Accordingly, the Supreme Court’s decisions in both criminal and civil cases have eliminated the factual basis for the application of the Rochin rule: police misconduct in a search and seizure situation. The Fourth Amendment’s reasonableness test is made applicable in both criminal and civil cases in which similar police conduct is at issue. Ro-chin thus no longer has any relevance in situations analogous to those in Rochin itself; it lasts primarily as a source from which people quote the catch phrase “shocks the conscience.”
2. The Mistaken Extension of the “Shocks the Conscience” Test
Even assuming that the Rochin “shocks the conscience” test is still alive and well, and exportable from criminal evidence exclusion cases to § 1983 cases, it still does not support the in banc majority’s holding today. Serious flaws exist in the majority’s reasoning.
First, Rochin'-orHj stated that conduct that shocks the conscience renders evidence inadmissible. It never held that only that kind of conduct suffices or is required in order to exclude evidence. Put differently, conduct that shocks the conscience is sufficient, but not required to bar a state from introducing the evidence so obtained. The Supreme Court did not inquire into what is the minimum requirement for the application of its exclusionary holding. It simply ruled that the police conduct in that case was horrendous enough. See Rochin, 342 U.S. at 169-74, 72 S.Ct. at 208-10. The in banc majority today reads a “sufficient” standard as a “necessary” standard, without explaining why it sees no difference between them. I believe the difference is clear and substantial. Cf., e.g., Lee v. Weisman, — U.S. -, -, 112 S.Ct. 2649, 2664, 120 L.Ed.2d 467 (1992) (Blackmun, J., concurring) (“Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient.”). That difference militates against making “shocks the conscience” a required test.
*1319Second, the in banc majority conveniently shies away from defining the “shocks the conscience” standard. Neither the majority nor the defendants have been able to even imagine a scenario where the standard may be violated in the context of a police car chase. Not a single example has been proffered. It thus appears that the Constitution does not constrain police officers when conducting a high-speed car chase. The decision of the court today will have the practical effect of immunizing reckless, police conduct from all strictures of the Constitution, so long as no search or seizure occurs.
Citing to numerous cases,6 the majority believes it well settled that the “shocks the conscience” test applies when affirmative government actions are in dispute. See Maj. Op. at 1305. I assume that “affirmative government actions” involve intentional conduct. The majority's position, however, is contrary to Supreme Court authority. It is well recognized that “[w]hen holding in Davidson and Daniels that the Due Process Clause does not forbid negligent deprivations, the Court recognized that the Constitution forbids deliberate, unauthorized deprivations.” Archie v. City of Racine, 847 F.2d 1211, 1218 (7th Cir.1988) (in banc), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989); William Burnham, Separating Constitutional and Common-Law Torts: A Critique and a-Proposed Constitutional Theory of Duty, 73 Minn.L.Rev. 515, 524 (1989) (“The Court clearly indicated in Daniels that it would consider intentional conduct causing a loss to be deprivation and hinted in dictum that something less might suffice.”). While it is clear conduct that “shocks the conscience” satisfies the “intentional conduct” standard endorsed by the Supreme Court, to make “shocks the conscience” a necessary standard would in many situations require more than intentional conduct. To do so, we must wait for the Supreme Court to modify its holding in Monroe, Parratt and Daniels so as to require more than intentional conduct.
As I discuss in Part III of this dissent, see infra at 1320-27, reckless conduct of governmental actors, which is somewhat less culpable than intentional conduct, constitutes an arbitrary exercise of governmental power and, thus, violates the Due Process Clause. Although not conscience-shocking, reckless conduct should be sufficient to state a cause of action under § 1983 for substantive due process violations.
Thus, the “shocks the conscience” test would not only shield the reckless exercise of governmental power but also much of intentional conduct from the reach of a § 1983 action (which conduct may not be so “conscience-shocking,” but may yet be a clear violation of the Constitution and thus falling within § 1983). Such a test would defeat the purpose of the Due Process Clause: to secure the people from the arbitrary exercise of governmental power.
3. The Impracticality of the “Shocks the Conscience” Test
Finally, the “shocks the conscience” test is hardly a test at all. By the majority’s own admission, it would entail an “amorphous and imprecise inquiry.” Maj.Op. at 1308. Having so characterized the “test,” I do not understand why the in banc majority would call it a test, and force the district courts to apply it in cases before them. Grave and important matters such as litigated cases demand more. A definition of “amorphous” is:
1. Lacking definite form: SHAPELESS.
2. Of no particular sort: ANOMALOUS.
3. Lacking organization or methodical arrangement. 4. Lacking distinct crystalline structure.
Webster’s II New Riverside University Dictionary 102 (1984). A test as defined by this dictionary appears to be impossible for all practical purposes. I understand that no *1320authority forces the in bane majority to define its test. This, however, is not reason for us to shy away from defining a new standard that we announce. But, if the definition or description of “shocks the conscience” (with which to charge the jury or to apply to the facts of a particular case by the district court) is realistically impossible or unworkable, that is reason for us to hesitate befor.e establishing such a test.
From the very day of its application in Rochin, the “shocks the conscience” test, if it can be called a test at all, has received harsh criticisms from many jurists, including notably Justice Black. In his concurrence in Rochin, Justice Black argued that the more specific Fifth Amendment ban on compelled self-incrimination applied. Rochin, 342 U.S. at 176, 72 S.Ct. at 211-12 (Black, J., concurring). He questioned the validity of the “shocks the conscience” test in Rochin, arguing that there was no constitutional authority for the Court to decide cases based on its notion of civilized decencies. Id. Subsequently, Justice Black detailed the evils of such a test:
With a “shock the conscience” test of constitutionality, citizens must guess what is the law, guess what a majority of nine judges will believe fair and reasonable. Such a test wilfully throws away the certainty and security that lies in a written constitution, one that does not alter with a judge’s health, belief, or his politics.
Boddie v. Connecticut, 401 U.S. 371, 393, 91 S.Ct. 780, 794, 28 L.Ed.2d 113 (1971).
Justice Black was not alone. In Rochin, Justice Douglas also disagreed with the Court’s reasoning, while concurring in the result. He stated that the Rochin holding “is to make the rule turn not on the Constitution but on the idiosyncrasies of the judges who sit here.” Rochin, 342 U.S. at 179, 72 S.Ct. at 213 (Douglas, J., concurring).
Just one year after Rochin, a plurality in Irvine v. California criticized Rochin for failing to analyze the case in terms of “search and seizure” and declined to follow it. 347 U.S. 128, 133, 74 S.Ct. 381, 383, 98 L.Ed. 561 (1953) (plurality opinion). Concurring in Irvine, Justice Clark joined the chorus of criticism:
[The shocks the conscience test] makes for such uncertainty and unpredictability that it would be impossible to foretell — other than by guesswork — just how brazen the invasion of the intimate privacies of one’s home must be in order to shock itself into the protective arms of the Constitution. In truth, the practical result of this ad hoc approach is simply that when five Justices are sufficiently revolted by local police action a conviction is overturned and a guilty man may go free. Rochin bears witness to this.
Id. at 138, 74 S.Ct. at 386 (Clark, J., concurring).
The campaign against the “amorphous” test persists with tenacity to this day. Only recently, and after the Collins case in which the in banc majority of this court saw unanimous adherence to the shock the conscience test, Justice Scalia explicitly called for the dismantling of that test:
If the system that has been in place for 200 years (and remains widely approved) ‘shocks’ the dissenters’ consciences ... perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of ‘conscience-shocking’ as a legal test.
Herrera v. Collins, — U.S. -, -, 113 S.Ct. 853, 875, 122 L.Ed.2d 203 (1993) (Scalia, J., concurring). See also generally Antonin Scalia, The Rule of Law as a Law of Rules, 56 U.Chi.L.Rev. 1175 (1989).
With such a test applied to police car chase cases, not only will victims similarly situated received different treatments from the courts depending on which judge’s (or jury’s) conscience is being tested, law enforcement officers will also have trouble in tailoring their conduct so as to carry out their duties to the optimal extent without incurring liabilities.
III. The Reckless Indifference Standard
To resolve the question left open by the Supreme Court, we must look to the Supreme Court’s interpretation of the Due Process Clause for guidance. Although the guideposts in this area are sparse, I conclude that the basic formulation is whether the challenged conduct is an intentional violation *1321or an arbitrary exercise of governmental power in a particular case. Reckless indifference toward the safety of the public in conducting a high speed police car chase constitutes either an intentional act or an arbitrary exercise of power. Therefore, I would hold that the standard in cases such as this is reckless indifference.
A. The Supreme Court’s Elaboration of Due Process Law
In Daniels v. Williams, 474 U.S. 327, 329-33, 106 S.Ct. 662, 664-66, 88 L.Ed.2d 662 (1986), the Supreme Court synthesized the principles of due process of law. The Court noted that “[Historically, th[e] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.” Id. at 331, 106 S.Ct. at 665. The Court then pinpointed the essence of due process jurisprudence, stating that the Due Process Clause was “intended to secure the individual from the arbitrary exercise of the powers of government.” Id. (quotation marks' and citations omitted). The procedural aspect of the Due Process Clause requires the government to follow appropriate procedures to promote fairness in governmental decisions. Id. The substantive aspect of the Clause bars “certain government actions regardless of the. fairness of the procedures used to implement them,” id, so as to “prevent governmental power from being used for purposes of oppression.” Id. (citations and quotation marks omitted).
The position that the Due Process Clause' forbids “arbitrary exercise” of governmental power has been emphasized by the Supreme Court time and again. See, e.g., Foucha v. Louisiana, — U.S. -, -, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437 (1992) (“the Due Process Clause ... bars certain arbitrary, wrongful government actions”); Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985) (“[t]he question ... is whether ... [the defendant] acted arbitrarily”). As analyzed above, supra at 1312-13, the Collins case, the authority relied upon by the in banc majority, several times used “arbitrariness” as the touchstone for the plaintiffs claims. See — U.S. -, -, 112 S.Ct. 1061, 1070-71, 117 L.Ed.2d 261 (1992). Professor Fallon, another authority cited by the majority, characterized arbitrariness as the “most familiar formulation.” Richard H. Fallon, Jr., Some Confusions about Due Process, Judicial Review, and Constitutional Remedies, 93 Colum.L.Rev. 309, 325 (1993). He further proposed that the standard for us to measure substantive due process violations is arbitrariness or lack of rationality. Id. at 361-362. Such a standard “would occasion least disruption and contribute most to doctrinal uniformity.” Id. at 361.
The Daniels Court further elaborated that “[o]ur Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.” Daniels, 474 U.S. at 331, 106 S.Ct. at 665. Thus, the Supreme Court directed us to inquire into whether the challenged conduct involved a relationship between the governors and the governed, which is addressed by the Constitution. Such an inquiry must focus on the tie between the facts of the particular case and the exercise of government power. Id., at 332-34, 106 S.Ct. at 666. Mere negligence involves only “injuries that attend living together in society,” id., at 332, 106 S.Ct. at 665, thus triggers only the protection of the state common law, not the Constitution. Id. at 333, 106 S.Ct. at 666.
This is to say, the Constitution is not an insurance plan to reimburse citizens for damages resulting from all hazards and vicissitudes of life. Rather, it only comes into play to prevent those hazards that involve the relationship between the governors and the governed, or that are created by exercise of government power. A criminal custody ease, see, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), is thus but one example of how challenged conduct could involve a governor-governed relationship. While it is true that such a relationship can more easily arise when a person is in the custody of the government than in some other context, this fact does not require that a § 1983 action be limited to the criminal cus*1322tody context. Indeed it is hard to see how a prisoner in a cell is any more helpless to protect himself against a fellow inmate’s attack than an innocent citizen is to protect himself against a car barrelling down a dark city block without lights at 100 mph.7
B. Reckless Indifference as the Standard
Under the above analysis, reckless conduct in the context of a police car chase should be sufficient to state a claim under § 1983. The . dispositive question is whether reckless indifference constitutes either a deliberate governmental act or an arbitrary exercise of governmental power.
1. The Exercise of Exclusively Governmental Power
We must first decide whether governmental power is involved and whether a relationship between the governor and the governed existed in this case. To do so, I examine the circumstances from which this case arose.
In pursuing fleeing suspects, police'offices are engaged in an activity that is uniquely governmental in nature. They are attempting to apprehend suspects in order to take them into custody and, thus, enforce traffic or other laws that protect public safety. This is governmental conduct which private citizens generally cannot engage in. This police power is one of the exclusive prerogatives of the sovereign and its exercise has traditionally exclusively been reserved to the State. Cf. Flagg Bros., Inc., v. Brooks, 436 U.S. 149, 157-64, 98 S.Ct. 1729, 1734-37, 56 L.Ed.2d 185 (1978) (limiting state action by private parties to certain public functions that have traditionally exclusively been reserved to the government). Indeed, as the Statewide Guidelines state, “[e]mergency vehicle operations are an inherent activity in the performance of duties of law enforcement officers.” App. at 3. Accordingly, it is clear that conducting a police car chase is a process of exercising governmental power.
The exercise of this governmental power in this case distinguishes this ease from the run of the mill tort case between two private individuals, or between a private individual and a government agent who merely uses the highway as would a private actor (as in the ease of a postal worker). The relationship between a victim injured by an exercise of governmental power and the governmental actor is dramatically different from that between two purely private individuals. The Supreme Court elaborated on this difference in the context of the misuse of federal power in this way:
Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting— albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own..
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 391-92, 91 S.Ct. 1999, 2002, 29 L.Ed.2d 619 (1971). The same is true when state actors are involved. The Court of Appeals for the Fifth Circuit similarly emphasized the fact that the governmental actor exploited his position and abused his power when recognizing a public school student’s substantive due process claim for sexual molestation by her teacher. Doe v. Taylor Independent School Dist., 15 F.3d 443, 452 & nn. 3-4 (5th Cir.1994) (in banc) and 459 (Higginbotham, J., concurring).
The tie between the facts of a police car pursuit case and governmental power shows that the challenged conduct involves the relationship between the governors and the governed, rather than that between a private tortfeasor and a victim. In a police car chase case, the tortfeasors are law enforcement officers in the course of performing an official duty. Assuming the officers conducted a *1323car chase with reckless indifference to the safety of the public, the plaintiffs were the governed who suffered death or severely debilitating injuries because they unfortunately stood in close proximity to the chase.
This scenario becomes extremely troubling when one bears in mind that the danger of reckless ear chases is of great magnitude in today’s society, with so many people relying on the orderly functioning of the public roads. Common sense should have made the police officers aware of the danger. If not, surely the Statewide Guidelines should have impressed upon them the potential risks. Viewing the record in the light most favorable to the plaintiffs, the police officers nevertheless conducted a reckless high speed chase resulting in the death of three citizens and crippling injuries for others. The recklessness of that conduct indicates that the officers knew or should have known the potential consequences of their conduct, but accorded no regard to the safety of the innocent victims.
While it is true that an individual may fall victim to the reckless driving of a private citizen, that risk is not created by an arbitrary exercise of governmental power. In recognition of such high risks of injury and death, the New Jersey Attorney General and the county prosecutors jointly promulgated the statewide police car pursuit guidelines with the express goal to “mandate[] that each law enforcement officer always put safety first, and ensure that whenever engaged in the operation of an Authorized Law Enforcement Emergency Vehicle, such opera-, tion is with reasonable due regard for the safety of the public whom he or she is sworn to protect.” Statewide Guidelines, App. at 11. See also D.R. by L.R. v. Middle Bucks Area Vocat’l Tech. School, 972 F.2d 1364, 1373-76 (3d Cir.1992) (in banc) (state created danger may give rise to duty to protect), cert. denied, — U.S. -, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993);8 William Burnham, Separating Constitutional and Common-Law Torts: A Critique and a Proposed Constitutional Theory of Duty, 73 Minn.L.Rev. 515, 567 (1989) (arguing for permitting the unintended plaintiffs to sue under § 1983 for unintended injuries “so long as the government actor causes the injury while in the process of exercising power over someone”).
2. Reckless Indifference as Intentional or Arbitrary Conduct
We must measure reckless conduct during a police car chase against the historically required deliberate governmental action or the “arbitrary exercise of governmental pow;er,” as the Supreme Court indicated in Daniels. I believe reckless indifference satisfies both.
Reckless indifference exists when a person acts
in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Restatement (Second) of Torts § 500. Similarly, the Model Penal Code defines recklessness as conscious disregard of “a substantial and unjustifiable risk.” Model Penal Code § 2.02(2)(c). Characterized another way, reckless conduct “is established if the actor *1324was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences.” Medina v. City and County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992). See also Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 692-93 & n. 3 (3d Cir.1993) (defining recklessness by quoting from Simmons v. City of Philadelphia, 947 F.2d 1042, 1090 (3d Cir.1991) (Sloviter, C.J., concurring), cert. denied, — U.S. -, 112 S.Ct. 1671, 118 L.Ed.2d 391 (1992), which in turn quoted from the definition in Black’s Law Dictionary 1142-43 (5th ed. 1979)); Colburn v. Upper Darby Twp., 946 F.2d 1017, 1024-25 (3d Cir.1991) (Colburn II) (defining recklessness). The risk and disastrous consequences are heightened in the police car chase in which life and safety of the public within the vicinity of the chase are endangered by the reckless police conduct.
Even under the most restrictive test for a § 1983 action — intentional conduct — reckless conduct would qualify.9 “The equation of recklessfness] with deliberate conduct is familiar, on the ground that reckless disregard of a great risk is a form of knowledge or intent.” Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir.1988) (in banc), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989). Recklessness contains an important behavioral attribute encompassed by intentional conduct, that is, intentionally taking a perceived risk. Restatement (Second) of Torts § 500 cmt. b. The difference between reckless conduct and intentional conduct is but one thin line. “While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it.” Id. cmt f. But harm results nonetheless because of the actor’s reckless disregard of the risk. Accordingly, the common law allows punitive damages to be imposed on a reckless defendant, but not on a merely negligent defendant. Id. § 501 cmt. b. Under certain modern statutes, reckless conduct constitutes wilfulness, which is punishable through civil penalties. E.g., Frank Irey, Jr., Inc. v. Occupational Safety & Health Review Comm’n, 519 F.2d 1200, 1207 (3d Cir.1975) (under OSHA, “[w]illfulness connotes defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act.”), aff'd sub nom. Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977).
In the area of criminal law, the Model Penal Code makes recklessness the minimal culpability requirement if the statute does not prescribe the culpability sufficient to establish a material element of an offense. Model Penal Code § 2.02(3). Thus reckless conduct is treated the same as purposeful or knowing conduct if the criminal statute does not differentiate them. Furthermore, criminal homicide committed recklessly under circumstances manifesting extreme indifference to the value of human life is murder, the same as committed purposely or knowingly. Id. § 210.2(l)(b). Federal criminal law makes reckless conduct under certain circumstances a crime. See, e.g., 18 U.S.C. § 1864(a)(3) (1988) (reckless use of hazardous and injurious device on Federal land or an Indian reservation).
In these situations, recklessness is tantamount to intent. Put differently, “ ‘Recklessness’ is a proxy for intent.” Archie v. City of Racine, 847 F.2d at 1220. To use the terms “tantamount” or “proxy” may be misleading. This court has already held that recklessness constitutes specific intent. United States v. Boyer, 694 F.2d 58, 59-60 (3d Cir.1982) (specific intent to deceive as required for mail fraud and securities fraud convictions under 18 U.S.C. §§ 1341,2 and 15 U.S.C. §§ 77q(a), 77x may be found from a material misstatement of fact made with reckless disregard of the facts). Accordingly, it will break no new ground if we hold that reckless police eon-*1325duct in this ease constitutes a deliberate governmental act.
Assuming that reckless conduct-in conducting high-speed police car chase does not constitute deliberate governmental action, it would surely satisfy the alternative touchstone for a due process violation, namely, the arbitrary exercise of governmental power. The exercise of governmental power is clear, and the question is whether recklessly conducting a police car chase is an arbitrary exercise of that power. A common definition of arbitrariness is:
In an unreasonable manner, as fixed or done capriciously or at pleasure. Without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic.
Black’s Law Dictionary 104 (6th ed. 1990). By this definition, reckless conduct constitutes an arbitrary act. Reckless conduct, as established when the actor was aware of an obvious risk that was highly probable to lead to serious harm and proceeded in unreasonable disregard of the consequences, is precisely what arbitrariness is about.
Treating reckless governmental conduct as an arbitrary exercise of governmental power in violation of the Due Process Clause is supported by case law in our court as well as in several other courts of appeals. Very recently, a panel of this court held that recklessly disregarding facts in governmental decision making violated substantive due process. Parkway Garage, Inc., 5 F.3d at 692-93 & n. 3. The Court of Appeals for the Tenth Circuit held, in a ease with facts almost identical to those in this case, that reckless intent suffices to state a violation of substantive due process. Medina, 960 F.2d at 1496. jSee also Part III.C of this dissent, infra at 1326-27.
Support for the reckless indifference standard is also found in the genesis of the Daniels rule: Justice Powell’s concurring opinion in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Disagreeing with the reasoning of the Court, Justice Powell argued that mere negligence “could not wor[k] a deprivation in the constitutional sense.” Id. at 547, 101 S.Ct. at 1919 (Powell, J., concurring in result). His view was explicitly adopted by the Court in Daniels, 474 U.S. at 331-32, 106 S.Ct. at 664. Justice Powell, however, specifically stated that “[a] ‘deprivation’ connotes an intentional act denying something to someone, or, at the very least, a deliberate decision not to act to prevent a loss.” Parratt, 451 U.S. at 548, 101 S.Ct. at 1919 (Powell, J. concurring in result) (emphasis added, footnote omitted). Justice Powell, the author of the Daniels rule, thus clearly did not envision that only conscience-shocking conduct violates the Due Process Clause. No matter what meaning people may attempt to attribute to Justice Powell’s language, the phrase “a deliberate decision not to act to prevent a loss” does not mean conduct that “shocks the conscience.” Fairly read, it connotes reckless conduct (or perhaps something less culpable). Therefore, under the exposition of Justice Powell, reckless conduct would suffice to state a cause of action under the Due Process Clause.
Moreover, deliberate indifference has been held by the Supreme Court to be sufficient to state a claim for violations of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The test for violations of the Eighth Amendment should be the hardest to satisfy. A violation of the Due Process Clause should not require a more culpable mental state than a violation of the ban on cruel and unusual punishments. See Davidson v. Cannon, 474 U.S. 344, 358, 106 S.Ct. 668, 675-76, 88 L.Ed.2d 677 (Blackmun, J., dissenting).
I therefore would hold that the appropriate standard in this case is reckless indifference. Viewing the record in the light most favorable to the plaintiffs, the police officers by initiating and maintaining a reckless car chase without regard for the life and safety of citizens who happened to be in close proximity vividly demonstrated an arbitrary exercise of governmental power. Accordingly, I would hold that the plaintiffs had established enough facts to require a trial.
*13263. Prudential Concerns
Allowing reckless conduct to state a claim in a police car pursuit case under the Due Process Clause and § 1983 would serve the purpose of preventing arbitrary exercise of government power. Such a test would not make the Constitution “regulate liability for injuries that attend living together in a society.” Daniels, 474 U.S. at 332, 106 S.Ct. at 665.
The existence of a unique relationship between the governmental actor and the injured victims, and an arbitrary exercise of governmental power in the form of the reckless conduct differentiate cases such as this from the ordinary tort eases. Cases with these elements present will only reach governmental actors performing strictly governmental functions, and will not be numerous. This allays any fear that the federal courts will be inundated and that recognizing such a cause of action “would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976).
Finally, the standard of recklessness is neither “amorphous” nor “imprecise.” It has been applied at common law since time memorial. Our district courts have vast experience in defining its parameters. Although ease of application is not our only goal, avoiding impracticality in the application of a rule is important. An unworkable “amorphous” test or ill-defined “catch phrase” is equivalent to no rule at all.
C. Consistency with Case Law
Applying a recklessness standard in police ear chase cases comports with this court’s precedent. We have previously stated that “actions may be brought in federal court under § 1983 when there has been infringement of a liberty interest by intentional conduct, gross negligence or reckless indifference, or an established state procedure.” Davidson v. O’Lone, 752 F.2d 817, 828 (3d Cir.1984) (in banc), aff'd sub nom., Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Relying on Davidson, we have reaffirmed a reckless indifference standard in a series of cases involving detainees who committed suicide. See Colburn v. Upper Darby Twp., 946 F.2d 1017, 1024 (3d Cir.1991) (Colburn II); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 464 & n. 10 (3d Cir.1989); Colburn v. Upper Darby Twp., 838 F.2d 663, 668 (3d Cir.1988) (Colburn I), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989).
The reckless indifference standard has also been applied to other contexts. In Metzger By & Through Metzger v. Osbeck, 841 F.2d 518 (3d Cir.1988), a high school gym teacher seriously injured a student while trying to discipline him. We reversed the grant of summary judgment in favor of the defendant because a genuine issue of material fact existed as to whether he intended to harm his victim. Id. at 520 & n. 1, 521. We further stated that under Davidson and Colburn I, “it appears likely that at a trial of this case charges on gross negligence or recklessness will be appropriate.” Id. at 520 n. 1.
The sole exception is our decision in Searles v. Southeastern Pennsylvania Transportation Authority, 990 F.2d 789 (3d Cir.1993), where the court used broad language which appeared to endorse a “shocks the conscience” standard. However, as I explained, supra at 1311-13, this case focused on the existence of constitutional duty, rather than standard of care. Moreover, Searles addressed only mere omission while in the case sub judice affirmative governmental action is in dispute.
Selecting the reckless conduct standard is consistent with the approach of two other courts of appeals in police pursuit cases decided after Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The Court of Appeals for the Tenth Circuit requires reckless intent. Medina v. City & County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992). The Sixth Circuit requires gross negligence, where the defendant “intentionally does something unreasonable with disregard to a known risk or a risk so obvious that he must be assumed to have been aware of it, and of a magnitude such that it is highly probable that harm will follow.” Jones v. Sherrill, 827 F.2d 1102, 1106 (6th Cir.1987) *1327(quotation marks and citations omitted). This definition closely resembles reckless indifference. Two other courts of appeals have held that gross negligence is not sufficient, but they have not indicated whether recklessness would suffice. See Roach v. City of Fredericktown, Mo., 882 F.2d 294, 297 (8th Cir.1989); Cannon v. Taylor, 782 F.2d 947, 950 (11th Cir.1986).
In different factual contexts, two other courts of appeals explicitly adopted the recklessness standard. The Court of Appeals for the First Circuit held that the standard by which to decide whether state caseworkers unconstitutionally denied court access to a juvenile offender committed to their care is “reckless or callous indifference.” Germany v. Vance, 868 F.2d 9, 18 (1st Cir.1989). The full Court of Appeals for the Seventh Circuit similarly embraced recklessness as the test to decide whether a fire department’s failure to provide rescue service violated the Due Process Clause. Archie v. City of Racine, 847 F.2d 1211, 1218-19 (7th Cir.1988) (in banc), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989). The court equated recklessness with deliberate conduct, recognizing that “ ‘[rjecklessness’ is a proxy for intent,” id. at 1220.
Moreover, selecting a reckless indifference standard is supported by the fact that deliberate indifference has been held to be the standard to gauge the liability of local governmental entities, City of Canton v. Harris, 489 U.S. 378, 381, 109 S.Ct. 1197, 1200-01, 103 L.Ed.2d 412 (inadequate police training), and individual supervisors, Doe v. Taylor Independent School Dist., 15 F.3d 443, 452-54 (5th Cir.1994) (in banc) (sexual molestation of student by public school teacher), for substantive due process violations.
In contrast, the Court of Appeals for the Fourth Circuit explicitly adopted the “shocks the conscience” test. See Temkin v. Frederick County Comm’rs, 945 F.2d 716, 720 (4th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992). The Court of Appeals for the Fifth Circuit appeared to employ that test, but its emphasis was on whether there was “intentional misuse” of police vehicles. See Checki v. Webb, 785 F.2d 534, 538 (5th Cir.1986).
These two cases are not persuasive. The Checki court provided little analysis, merely intimating that the misconduct in that case may be “conscience-shocking.” It appeared that the Checki court concluded that the conduct was sufficient to state a claim. It did not state that “conscience-shocking” conduct was required. Id.
The Temkin court adopted the “shocks the conscience” standard for police pursuit cases, while retaining a deliberate indifference standard for custody cases, reasoning that a more favorable standard of care should apply to detainees because they are under the state’s control and are easily subject to abuses of governmental power. 945 F.2d at 720-21. The court was obviously persuaded by dicta in two Supreme Court cases stating that automobile accidents would not be constitutional in nature merely because one of the drivers is a government official. See Temkin, 945 F.2d at 722 (citing Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981) (“party who is involved in nothing more than an automobile accident with a state official” has no constitutional claim); Paul v. Davis, 424 U.S. at 698, 96 S.Ct. at 1159 (“survivors of an innocent bystander ... negligently killed by a sheriff driving a government vehicle” have no constitutional claim)).
In these cases, the Supreme Court was merely reiterating, by way of example, that ordinary state torts committed by government employees, who travel on the highways as would a private citizen, do not violate the Constitution. A vast difference exists between a negligent driver who happens at the same time to work for the government, and a police officer who operates a motor vehicle to catch his target with reckless disregard for human life. A reckless high-speed police pursuit is not comparable to the typical negligent automobile accident. The operation of police vehicle in a high speed car pursuit is a process of exercising governmental power. A recklessly conducted car chase involves an abuse of police power uniquely vested in the government. It is not simply a policeman travelling in a leisurely manner on the highway to go to work as would a private citizen.
*1328IV. The Majority’s Assessment of the Facts
The majority’s assessment of the police conduct in Part II.B and its implicit message that the police conduct may not after all constitute “reckless indifference” is puzzling. See Maj.Op. at 1302-03. What the majority does is not faithful to the proper course of appellate adjudication at this stage of the case.
The matter came to the in banc court for resolution of the legal question: the standard by which we decide whether there is a deprivation under the Due Process Clause. We are not called upon to assess the facts of the case.
Secondly, the majority decides that the test is whether the police conduct “shocks the conscience.” Whether the police conduct constitutes reckless indifference is simply irrelevant to the majority’s adjudication today. The fact that the majority has volunteered an advisory opinion implying that the police conduct may not even constitute reckless indifference is troubling.
Moreover, the district court denied the defendants’ summary judgment motion on the issue of whether there was any genuine issue of material facts that would prove reckless indifference to the safety of the plaintiffs. Were this an issue presented to the in banc court, prudence counsels that this court not disturb the determination of the district court, as no new facts had been brought to the attention of the court after Judge Rodriguez denied the defendants’ motion for summary judgment. In any event, in passing upon the validity of a grant of summary judgment, we are required to assess the facts in the light most favorable to the non-moving party. I take consolation in the ability of the district court to prevent its view of the facts, with respect to the issues not decided by the in bane court, from being coloi’ed by the majority’s assessment of the facts.
V. Conclusion
For the foregoing reasons, I respectfully dissent. I would hold that the appropriate standard by which to determine a “deprivation” under the Due Process Clause is reckless indifference. I would remand the case to the district court for a trial.
. It would be at least as strange for the Supreme Court to resolve the question it expressly reserved ruling on in Daniels, and to undermine if not reject the decisions rendered by the many courts of appeals that, as the in banc majority acknowledges, “have determined that a reckless or even grossly negligent act is actionable under *1313the Due Process Clause,” Maj.Op. at 1305, without even mentioning these cases.
. In this connection, I note that our court sitting in banc after the Supreme Court decided Collins in February 1992, stated in August 1992 that "in DeShaney the Supreme Court rejected the 'shocks the conscience' test of Rochin ... as a standard for imposing § 1983 liability.” D.R. by L.R. v. Middle Bucks Area Vocat’l Tech. School, 972 F.2d 1364, 1377 (3d Cir.1992) (in banc), cert. denied, — U.S. -, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993). Earlier, we stated that "actions may be brought in federal court under § 1983 when there has been infringement of a liberty interest by intentional conduct, gross negligence or reckless indifference, or an established state procedure." Davidson v. O’Lone, 752 F.2d 817, 828 (3d Cir.1984) (in banc), aff'd sub nom., Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). The in banc majority has not explained why it rejects such statements in other in banc opinions of this court.
. The in banc majority's attempt to reconcile the reckless indifference standard that we have repeatedly employed in the custody context with the “shocks the conscience” standard it adopts today is deeply troubling. By creatively and retroactively recasting the language we have used to articulate legal standards, I fear that the majority weakens any argument this court might make that our standards, and the words we use to express them, do have some meaningful, reliable content.
. 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 passersby. The Statewide Guidelines Adopted by the New Jersey Attorney General and the New Jersey County Prosecutors' Association Regarding High Speed Motor Vehicle Pursuits (the "Statewide Guidelines”) themselves acknowledge such a duty and mandate that all police officers put safety first and conduct car pursuit with due regard to the safety of the public. See App. at 11. Nor does the in banc majority presumably deny the existence of such a duty. The absence of such a duty would be the death knell for the plaintiffs in this case. See Collins, - U.S. at -, 112 S.Ct. at 1068-1070; DeShaney, 489 U.S. at 194-203, 109 S.Ct. at 1002-1007; D.R. by L.R. v. Middle Bucks Area Vocat’l Tech. School, 972 F.2d 1364, 1368-76 (3d Cir.1992) (in banc), cert. denied, - U.S. -, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993).
. Even the academic authority cited by the majority, see Maj.Op. at 1306, harshly criticizes using the reluctance to recognize a plaintiff's cause of action to decide whether a violation of the Due Process Clause occurred. Richard H. Fallon, Jr., Some Confusions about Due Process, Judicial Review, and Constitutional Remedies, 93 Colum.L.Rev. 309, 309 (“[the] recurrent efforts to shape due process law to promote policy ends have also taken a toll on doctrinal integrity") & n. 2 (1993).
Academic commentators have proposed various theories that would help solve the problem of docket congestion. One of these theories is to focus on the constitutional duty of the governmental actors while weeding out the common law tort cases where no governmental power was involved. See generally William Burnham, Separating Constitutional and Common-Law Torts: A Critique and a Proposed Constitutional Theory of Duty, 73 Minn.L.Rev. 515 (1989). Another theory is to characterize certain cases as "abstention” cases, Henry P. Monaghan, State Law Wrongs, State Law Remedies, and the Fourteenth Amendment, 86 Colum.L.Rev. 979, 987-88 (1986), thus permitting the federal courts to recognize certain causes of action but not have to decide the cases until certain state systemic inadequacies arise. Again, the authority cited by the majority, Professor Fallon, endorsed this characterization and elaborated on it in great length, Fallon, supra, at 344-52, and proposed arbitrariness or rationality as the test to measure the substantive adequacy of state remedies, id. at 361-62. But the majority ignores the thrust of his argument, while citing him as the authority for the "shocks the conscience” test.
. I note that at least some cases do not support the majority’s position. Black v. Stephens, 662 F.2d 181 (3d Cir.1981), has been invalidated by Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), which mandates that courts apply a reasonableness test in the type of cases of which Black is one. The court in Newell v. Brown, 981 F.2d 880, 886 (6th Cir.1992), cert. denied, - U.S. -, 114 S.Ct. 127, 126 L.Ed.2d 91 (1993), had doubts about the "shocks the conscience" as a required test, characterizing it as being “widely believed."
. I note that the Court of Appeals for the Tenth Circuit relied in part on a custody case, Harris v. Maynard, 843 F.2d 414 (10th Cir.1988), when adopting the reckless intent standard for police car chase cases in Medina v. City and County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992), thus implicitly rejecting the majority’s distinction between custody and noncustody cases.
. The majority faults the dissent for discussing “duty." Maj.Op. at 1308 n. 9. It is obvious that I mentioned duty not to treat it as an issue, (there is no issue as to the existence of duty in this case), but to point out that the majority misplaces its reliance on many cases that focused on duty rather than on standard of care, which is the sole issue in this case. The discussion of duty was also inteijected in order to reject the majority’s novel theory of treating custody as a factor to elevate the standard of care.
The majority is making much ado about nothing since the existence of duty is not an issue in this case. The defendants conceded it. They did not argue it either before the district court, the panel or the in banc court. The district court based its decision on the sole ground that the police misconduct did not violate the standard of care. The defendants petitioned for rehearing in banc on the sole ground that the panel incorrectly adopted the recklessness standard. See Petition for Rehearing en Banc 2-10. The in banc court also limits its decision to the sole question of what is the standard of care. Maj.Op. at 1302.
. The majority argues that "[t]he dissent, without any basis in the pleadings or in the record, has chosen to magnify [the police officers’] culpability, equating ... ‘reckless police conduct in this case,’ ... to arbitrary, intentional, and deliberate governmental action.” Maj.Op. at 1307. The majority misreads the dissent. I argue that recklessness, as a matter of law, not because of anything in the record (as long as recklessness is established), can be equated to intentional conduct. There is no "magnification” here.