joined by TACHA, C.J., and PAUL KELLY, JR. and O’BRIEN, JJ., concurring in part and dissenting in part.
Jessica Gonzales’s complaint sets forth claims under the Due Process Clause of the Fourteenth Amendment without distinguishing between the procedural and substantive components of that provision. The district court analyzed the complaint separately under both procedural and substantive due process standards, and dismissed the complaint in both respects. The majority affirms dismissal of the substantive due process claim, but reverses as to the procedural claim. The majority devotes the bulk of its opinion to determining “whether a court-issued domestic restraining order, whose enforcement is mandated by a state statute, creates a property interest protected by the due process clause of the Fourteenth Amendment.” Maj. Op. at 1095-1096. I dissent on the ground that, even assuming the restraining order coupled with the statute creates a property interest protected by the Due Process Clause, Ms. Gonzales’s complaint raises only a substantive and not a procedural claim.1
The facts, as alleged in the complaint, are that Ms. Gonzales repeatedly contacted the police regarding an apparent violation of a domestic relations restraining order, but the officers did nothing, as a result of which her children were murdered by their father. The Supreme Court has held that the Due Process Clause, of its own force, does not create a liberty or property interest in protection by the police. DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The majority correctly points out, however, that DeShaney is arguably distinguishable in this case, because the plaintiff does not rely on the Due Process Clause itself as the foundation for her claim of constitutional entitlement, but on a source in state law. Maj. Op. at 1099-1100. The majority never convincingly explains, however, why her claim is procedural rather than substantive.
When a plaintiff asserts that a protected liberty or property interest has been infringed by action of the executive branch (such as police officers), the Supreme Court holds that the primary test for whether the action violates substantive due process is whether it “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).2 Only when a plaintiff asserts that government action is procedurally unfair — usually for lack of a hearing — does the balancing test of Mathews v. Eldridge, 424 U.S. 319, 333-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), invoked by the majority (Maj. Op. at 1114-1115), ap*1127ply. Mathews is a far different, and less restrictive, test for a plaintiff to satisfy than the “shocks the conscience” test.
The question is whether the facts, as alleged, constitute a procedural due process claim. I think they do not. The “touchstone of due process” — both substantive and procedural — “is protection of the individual against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), quoted in Lewis, 523 U.S. at 845, 118 S.Ct. 1708. But a procedural due process claim is based on “a denial of fundamental procedural fairness,” while a substantive claim is based on the “exercise of power without any reasonable justification in the service of a legitimate governmental objective.” Id. at 845-46, 118 S.Ct. 1708.
Although the majority employs the language of procedural due process, Ms. Gonzales’s complaint contains no reference to procedural issues in any form. She does not complain that she was denied a “right to be heard,” Mathews, 424 U.S. at 333, 96 S.Ct. 893, or that the police conduct was “procedurally unfair,” Maj. Op. at 1109-1110 n. 13. She makes no allegations regarding “the manner by which the police allegedly deprived [her] of her interest in enforcement of the restraining order.” Maj. Op. at 1111 n. 15 (emphasis in original). She does not allege that if she had been given the opportunity of presenting her views to the decisionmakers, it would have affected the outcome. The language of procedural unfairness comes from the majority opinion, not from the complaint. Ms. Gonzales’s complaint is that the police officers arbitrarily and for no legitimate reason failed to enforce the protective order. See Complaint, ¶¶ 21, 28 (The Defendants’ “actions were taken either willfully, recklessly or with such gross negligence as to indicate wanton disregard and deliberate indifference to the civil rights of Plaintiff and the three children.”). That is a quintessentially substantive claim; it goes to the lack of justification for the police officers’ failure to act and not to the process by which they reached their decision.
As a matter of constitutional categorization, Ms. Gonzales’s claim is not distinguishable from that in Lewis. There, the plaintiffs sued police officers for depriving their son of his life (undoubtedly a protected interest under the Due Process Clause) as a result of a high-speed police chase alleged to be deliberately indifferent to, or in reckless disregard for, his safety. See 523 U.S. at 854, 118 S.Ct. 1708 (plaintiffs alleged that the police action manifested “recklessness, gross negligence and conscious disregard for [plaintiffs] safety”; “deliberate indifference”). Here, using the same vocabulary of recklessness, gross negligence, and deliberate indifference (Complaint, ¶¶ 21, 28), Ms. Gonzales sues for an allegedly arbitrary and unjustified failure to enforce a protective order. The only difference is that Lewis involved action, while this case involves a failure to act. In both cases, however, the crux of the matter is that allegedly arbitrary and unjustifiable police conduct resulted in a deprivation. Nor could the problem be solved by the addition of procedural language to Ms. Gonzales’s complaint. The plaintiffs in Lewis could not have prevailed simply by recharacterizing their complaint as one of procedural due process, by saying, for example, that the police should have engaged in some form of pre-deprivation procedure to decide whether they should engage in the high-speed chase.3 *1128The distinction between procedural and substantive due process is not one of pleading, but of the nature of the claim.
The majority’s argument to the contrary is long on assertion and short on explanation. See Maj. Op. at 1109-1110 n. 13, 1111 n. 15. The majority claims:
However, contrary to Judge McConnell’s contentions, Ms. Gonzales is not alleging that the officers’ denial of her enforcement rights arose out of unjustified governmental action. Rather, her claim is that it was procedurally unfair for the police arbitrarily to decline to perform duties required of them pursuant to a mandatory court order which provided her a substantive property right under state law, and pursuant to a state statute commanding the same.
Maj. Op. at 1109-1110 n. 13. But quite the opposite is true. The problem, as alleged by Ms. Gonzales, is that the police officers for no sufficient reason (“recklessly” or with “gross negligence”) failed to enforce the restraining order. Her claim is precisely that the officers’ conduct was unjustified. Cf. Lewis, 523 U.S. at 845, 118 S.Ct. 1708 (a claim that government action is “without any reasonable justification” is a substantive due process claim). If, on remand, it turns out that the police officers did not behave “arbitrarily” but had a good reason for their actions (for example, every available officer was away tending to a dreadful emergency), Ms. Gonzales would lose on the merits. By contrast, in all the procedural due process cases on which the majority relies, the focus of the litigation was on the process by which the state actor reached the decision—not on whether the ultimate result was justified. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (“the right to procedural due process ... does not depend upon the merits of a claimant’s substantive assertions”). In a procedural due process case, a claimant who is denied a hearing to which he is entitled will prevail, even if the state action was substantively justified. Id. In the present case, by contrast, unless Ms. Gonzales can substantiate her allegations that the police officers acted “arbitrarily” — that is, without adequate justification under the law — she will lose.
The substantive character of Ms. Gonzales’s claim is further evident in the fact that she does not propose any procedures that should be instituted when persons protected by restraining orders request police action. She cannot say she was not given a chance to be heard. She called several times and explained the situation to the police, and she met with the police in person both at her home and at the police station. The problem is not that she was denied a hearing, but that the officers failed to do their duty. The problem was with the result.4 This is in marked contrast to the Supreme Court’s procedural due process cases, on which the majority relies (Maj. Op. at 1101-1102): Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Mem*1129phis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In each of these cases, the consequence of finding a procedural due process violation would be to require the government to provide some type of hearing, either in advance of the deprivation or within a reasonable time thereafter. See Henry J. Friendly, “Some Kind of Hearing”, 123 U. Pa. L.Rev. 1267 (1975). The litigation did not hinge, as here, on whether the results were justified, but on whether the plaintiffs had the opportunity to be heard by the appropriate officials.
The majority is remarkably vague about what kind of “hearing” Ms. Gonzales should have received. See Maj. Op. at 1114-1115 (“we note that ‘due process is flexible and calls for such procedural protections as the particular situation demands’ ”) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). The majority suggests that “the restraining order enforcement statute provides direction in answering the question of what additional procedural safeguards could have been employed by the police officers.” Maj. Op. at 1116. According to the majority, these “safeguards” consist of (1) determining whether a valid order exists, (2) determining whether probable cause exists that the restrained party has notice of the order and is violating it, and (3) notification of the officer’s decision and the reason for it. Id. at 1116. The first two are plainly irrelevant: neither the existence of the order nor the existence of probable cause has ever been disputed. That leaves the third: informing Ms. Gonzales of the officers’ “decision.” It seems to me that, if the police had told Ms. Gonzales they were not going to take action, Ms. Gonzales would have precisely the same constitutional claim she does now only somewhat easier to prove. Surely the majority does not mean to suggest that the “procedural safeguard” Ms. Gonzales was entitled to was being informed that she would get no help.5
These suggestions thus confirm the non-procedural character of Ms. Gonzales’s claim. Unlike the plaintiffs in Perry, Goss, Sniadach, Barry, Bell, Logan, Memphis Light, Goldberg, and Mathews, Ms. Gonzales’s deprivation was not the result of an erroneous determination on a question of fact. It was, as alleged, “arbitrary” in the sense of having no justification at all. It was an act of “deliberate indifference,” like that in Lewis, 523 U.S. at 850-51, 118 S.Ct. 1708, a substantive due process case.
At oral argument, Ms. Gonzales’s counsel suggested that the procedures to which she was entitled were those set forth in the applicable Colorado statute: to use every reasonable means to enforce the order, including arresting the offender or, if actual arrest is not feasible, seeking an arrest warrant. But these procedures constitute Ms. Gonzales’s substantive entitlement; they are what she claims she was deprived of without due process. These are not procedures to determine whether she was entitled to enforcement of the order, which is what procedural due process is about.
If the majority is correct, it will always be possible for plaintiffs to recharacterize their substantive due process claims against arbitrary action by executive officials as “procedural due process” claims, thus avoiding the Supreme Court’s exacting “shocks the conscience” test and get*1130ting, instead, the balancing test of Mathews. It will always be possible to say that, before they took the complained-of action, the executive officials should have engaged in some additional deliberative process, which might have averted the problem. For example, in Abeyta By and Through Martinez v. Chama Valley Indep. Sch. Dist. No. 19, 77 F.3d 1253, 1257-58 (10th Cir.1996), we held that a school teacher who repeatedly called a 12-year-old student a “prostitute” did not violate her substantive due process rights because his conduct, while reprehensible, was not sufficiently egregious to “shock the conscience.” Under the majority’s reasoning, the plaintiff should have styled the claim as a procedural deprivation (of her liberty interest in personal security and emotional well-being) and alleged that the real harm was that the teacher determined that she was a prostitute without first holding a hearing on the question. Similarly, in Uhlrig v. Harder, 64 F.3d 567 (10th Cir.1995), this Court rejected a substantive due process claim by a therapist at a mental hospital who was killed by an inmate as the result of a decision by hospital administrators to close a special unit for the criminally insane, because the decision “was not the result of reckless and ‘conscience shocking’ conduct.” Id. at 576. Again, however, today’s opinion would allow the plaintiff to get around Lewis by alleging a procedural defect, for example, that the hospital administrators ought to have engaged in a more thorough consideration of the dangers of closing the special unit.
In Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), the Supreme Court gave short shrift to a plaintiffs attempt to reformulate an essentially substantive due process claim in proeedural terms. In that case, the Supreme Court rejected the plaintiffs substantive due process claim that a child had a fundamental right to be free from custody when freedom from custody might be in the child’s best interest. Id. at 305-06, 113 S.Ct. 1439. The plaintiff also characterized the argument as a procedural due process claim by arguing that the government’s procedures failed to make a case-by-case determination of the best interest of the child when it decided whether to keep a child in custody. The Supreme Court rejected the attempt to disguise a substantive claim as a procedural one: “Respondents contend that this procedural system is unconstitutional because it does not require the [INS] to determine in the case of each individual alien juvenile that detention in INS custody would better serve his interests than release to some other ‘responsible adult.’ This is just the ‘substantive due process’ argument recast in ‘procedural due process’ terms, and we reject it for the same reasons.” Id. at 308, 113 S.Ct. 1439.
The effect of allowing claims that are essentially substantive to masquerade as procedural is to collapse the distinction between the two components of due process and to expand greatly the liability of state and local governments. Sympathetic though we are, and should be, to persons in Ms. Gonzales’s unhappy situation, we are not authorized under the Fourteenth Amendment to do what she asks.
. I dissent only with respect to the majority's reversal of the district court's dismissal of Ms. Gonzales's procedural due process claim. In all other respects, I concur.
. There is no need to reflect here on whether the egregious dereliction of the Castle Rock police department (assuming the allegations of the complaint to be true) meets this high standard, because Ms. Gonzales’s substantive due process claim was dismissed, that dismissal was affirmed by the panel, and en banc review of that portion of the panel's decision was not sought. See Maj. Op. at 1099 n. 3.
. Although the Court left open the possibility of a procedural due process claim in cases like Lewis, it suggested that the only available procedural claim in such cases is a post-deprivation compensation scheme. 523 U.S. at 840 n. 4, 118 S.Ct. 1708. The majority's view, by contrast, is that Ms. Gonzales was *1128entitled to some kind of pre-deprivation procedure.
. My point is not — as the majority suggests (Maj. Op. at 1114-1115) — that Ms. Gonzales’s claim fails because she received the hearing to which she was supposedly entitled. It is that the presence, or lack, of a hearing is not the real issue.
. If that were an adequate procedural safeguard, Memphis Light satisfied its procedural due process obligation when it informed the Crafts their utilities would be cut off, Memphis Light, 436 U.S. at 13-14, 98 S.Ct. 1554, and Mr. Kelly got what was ''due” when he was told his welfare was terminated, Goldberg, 397 U.S. at 267-68, 90 S.Ct. 1011.