concurring in part and dissenting in part in which RONEY and FAY, Circuit Judges, join in Part III:
I.
This is an action to recover money damages for injuries suffered by a citizen as a result of a tragic encounter with the police. On New Year’s Day, 1980, Thomas Patillo drove about the city of Atlanta visiting friends and drinking heavily.1 He returned home around 5:00 p.m. and pulled into a service station across the street from his house to buy some gas. As he was leaving, he nearly collided with a red van also leaving the station. The two drivers got out of their vehicles and exchanged words. Patillo pulled a handgun from his trunk and threatened the driver, who in turn ran for a telephone and called the police. Atlanta Police Officers C.C. Craig and R.C. Sampson responded to the call. By this time, Patillo had returned home and parked his car in front of his house. The two officers, accompanied by the driver of the van, walked to Patillo’s house and knocked on his door. Patillo came to the door, and the driver of the van identified him as the man who had threatened him with a gun. Patillo’s friends began to gather about, and the officers decided to question Patillo away from the house.
Officer Sampson grabbed Patillo, who was quite drunk, to steady him as they walked away from the house. When they reached the sidewalk Patillo attempted to flee. Sampson caught him and held him by the back of the belt while Officer Craig grabbed his arm. They decided to take him to their patrol car which was parked in an adjacent parking area. Once again Patillo tried to escape, flailing his arms at the officers. In the ensuing scuffle the officers struck Patillo about the head with their hands a number of times.2
The officers eventually got Patillo to their patrol car. As they approached the car, Patillo wrenched himself free and grabbed Officer Craig’s holstered revolver. The revolver became dislodged and fell to the ground. Patillo lunged at Sampson, who, fearing that Patillo had the gun, reacted by pulling his revolver and firing two shots into Patillo’s abdomen. Patillo died thirty minutes later.
The administratrix of Patillo’s estate filed suit against Officers Craig and Sampson,3 seeking the money damages her decedent, Patillo, allegedly would have been *1506entitled to recover had he survived.4 Proceeding under 42 U.S.C. § 1983 (1982),5 plaintiff alleged that the defendants, acting under color of state law, subjected Patillo to cruel and inhuman punishment, an unreasonable seizure, and deprived Patillo of his life6 and liberty without due process of law, in violation of the eighth, fourth, and fourteenth amendments.7
In its dispositive order the district court found the eighth amendment claim merit-less. See Ingraham v. Wright, 430 U.S. 651, 659-71, 97 S.Ct. 1401, 1406-12, 51 L.Ed.2d 711 (1977) (eighth amendment rights attach only upon conviction). The district court rejected the fourth amendment claim because the officers had probable cause to detain Patillo. The court, however, found that the officers had deprived Patillo of his liberty without due process of law on two occasions: when Patillo was struck by the officers and when he was shot by Officer Sampson.8
*1507A panel of this court reversed the district court’s judgment as to the officers.9 The panel affirmed the court’s treatment of the fourth and eighth amendment issues, but found that the court erred in finding that Patillo had been deprived of liberty without due process of law, in violation of the fourteenth amendment. The panel relied on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), which holds that, where a state employee’s actions were random and not authorized by state law or policy and the State provides an adequate damages remedy for the deprivation in state court, no fourteenth amendment violation occurs because the State has provided all the process which is due. Since the police officers’ conduct was random and unauthorized and Georgia provided an adequate damages remedy for the deprivation,10 the panel found no fourteenth amendment due process violation.
Subsequent to the panel’s decision, the Supreme Court handed down its opinion in Tennessee v. Garner, — U.S. —, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The Court held that, in a suit for money damages, a finding of probable cause does not end the inquiry as to whether a citizen’s seizure was constitutional; the trial court must examine the reasonableness of the manner in which the citizen was seized. Today the en banc court holds that the officers’ encounter with Patillo violated the fourth amendment as interpreted by Garner. In addition, the majority creates a substantive constitutional right duplicative of the protections provided by the fourth amendment.
I find that Garner does not counsel a finding of a fourth amendment violation in this ease. Moreover, since I view the fourth amendment as the exclusive constitutional vehicle for dealing with seizures of the type involved in this case, I reject the creation of an additional and unnecessary fundamental right addressing such seizures. For these reasons, I dissent.
II.
The majority finds section 1988 liability against the two officers based upon the fourth amendment.11 The district court and the panel found no fourth amendment constitutional violation in accordance with the law at that time. While it is true that an unreasonable seizure by police officers may rise to the level of a violation of a citizen’s fourth amendment rights, the majority’s analysis, leading to the conclusion that such a constitutional infringement occurred in this case, is, I submit, flawed.
The Supreme Court, in Tennessee v. Garner, — U.S. —, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), interpreted the fourth amendment as prohibiting police officers from shooting nondangerous fleeing suspects.12 The Court began its analysis with *1508the premise that an officer’s use of deadly force in apprehending a citizen is a seizure that is subject to the reasonableness requirement of the fourth amendment. Garner represents the Court’s first application of the fourth amendment’s reasonableness requirement to the use of force by police to detain a person.13 Thus, the mere fact that the seizure was lawful does not end the inquiry; “reasonableness depends on not only when a seizure is made, but also how it is carried out.” Tennessee v. Garner, — U.S. at —, 105 S.Ct. at 1699.14
Reiterating the traditional fourth amendment method of analysis, the Court determined the reasonableness of the manner in which a seizure was carried out by balancing the degree of intrusion on the citizen’s fourth amendment rights, i.e., the degree of force employed in detaining the individual, with the government’s interests in effectuating the detention. Id. at —, 105 S.Ct. at 1699. See also, e.g., Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The reasonableness analysis is two-fold, focusing first upon the facts available to the officer, a factual determination, and next, upon the reasonableness of the officer’s response, a legal determination.
The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate?
Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. at 1880 (footnote omitted). Thus, not all governmental intrusions are constrained by the fourth amendment, but only those intrusions which are not justified by the circumstances. Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). See also, e.g., Terry v. Ohio, 392 U.S. at 9, 88 S.Ct. at 1873 (the right to be free from governmental intrusion is shaped by the context in which it is asserted). Even unreasonable conduct may in some instances not be actionable in a section 1983 suit based upon an alleged violation of the fourth amendment where the injury is too minor to rise to the level of a constitutional violation. Baker v. McCol-lan, 443 U.S. 137, 144-45, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979) (plaintiff’s three-day detention in jail resulting from a valid warrant, despite his correct assertion that he was not the person against whom the warrant was issued, did not rise to the level of a constitutional violation).
The conduct of the state official or employee must be “sufficiently egregious as to be ‘constitutionally’ tortious.” Williams v. Kelley, 624 F.2d 695, 697 (5th Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981) (prison guards’ fatal *1509choke hold on a prisoner in order to protect their own safety and maintain order was not sufficiently egregious so as to rise to the level of a violation of the prisoner’s eighth amendment rights). See also, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (medical malpractice on a prisoner did not constitute a violation of the prisoner’s eighth amendment rights when there was no evidence of deliberate indifference to serious medical needs); Hull v. City of Duncanville, 678 F.2d 582 (5th Cir.1982) (municipal officials’ negligent failure to maintain railroad crossing or provide adequate signals, causing an injurious vehicle accident at the crossing, not egregious enough to be constitutionally tortious); Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir.1981), aff'd, 460 U.S. 719,103 S.Ct. 1483, 75 L.Ed.2d 413 (1983) (a minor battery by a prison guard may not suffice to state a claim under section 1983 based upon an eighth amendment violation). “Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles.” Baker v. McCollan, 443 U.S. at 146, 99 S.Ct. at 2695-96. In the fourth amendment context, the Supreme Court has recognized that relatively minor tortious conduct by police officers will not negate the constitutionality of a search. See Dalia v. United States, 441 U.S. 238, 258, 99 S.Ct. 1682, 1694, 60 L.Ed.2d 177 (1979) (“officers executing search warrants on occasion must damage property in order to perform their duty”). The determining constitutional factor in all such inquiries is whether the police activity was reasonable.
Applying this analysis to the facts in this case, I find that the officers’ actions were not unreasonable and did not violate Patillo’s fourth amendment rights. There is no question that as Officers Sampson and Craig led Patillo from his house, a “seizure” occurred,15 implicating the fourth amendment. The issue before us is whether, based upon the circumstances present at the time, the officers’ method of effectuating that seizure was reasonable. It is undisputed that the officers had probable cause to make a brief investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), once the driver of the red van identified Patillo as the one who had threatened him with a gun. In addition, the Constitution permitted the officers to exert reasonable force to effectuate the detention and prevent Patillo’s escape. See Garner, — U.S. at —, 105 S.Ct. at 1699-1700.
The district court found that the officers’ use of their hands about the head and neck of Patillo was unnecessary to effectuate the detention. The court, however, failed to extend the inquiry to determine the reasonableness of the seizure in a fourth amendment context, which requires a balancing between the degree of force used to seize the citizen and the government’s interest in detaining him. See Garner, — U.S. at —, 105 S.Ct. at 1699; cf. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). While it is true that Patillo experienced some physical discomfort, there is no evidence that he was in any way injured in the altercation; there were no marks of any kind upon Patillo’s scalp, face, or back. In fact, Patillo, even though he was drunk, was able to break free from the officers and grab for one of their service revolvers. As already noted, the abuse of governmental power must be sufficiently egregious to raise an ordinary tort by a police officer to the stature of a violation of the fourth amendment. See Garner, — U.S. at —, 105 S.Ct. at 1699-1700. I do not perceive the minor altercation between Patillo and the officers as rising to this level.
In my view the shooting of Patillo, although tragic, did not constitute an unreasonable seizure. The shooting resulted from Officer Sampson’s reasonable belief that his life was in danger.16 As the offi*1510cers and Patillo entered the area where their patrol car was parked, Patillo broke away and grabbed Officer Craig’s holstered revolver; the revolver became dislodged and fell to the ground; Patillo then lunged at Sampson. Officer Sampson knew that Patillo was uncontrollable and could be violent; he knew Patillo was drunk; he knew Patillo had wielded a gun a short time earlier over a simple traffic mishap; in short, he thought his life was in danger. The fourth amendment does not require that “police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, 392 U.S. at 23, 88 S.Ct. at 1881. When an officer has cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, he does not act unreasonably under the fourth amendment by using deadly force to protect, himself. See Tennessee v. Garner, — U.S. at —, 105 S.Ct. at 1701. Accordingly, Officer Sampson’s shooting of Patillo, though sadly unfortunate, was reasonable in light of the particular circumstances.17
III.
In addition to finding that the officers violated Patillo’s fourth amendment rights, the majority perceives an infringement of his fundamental right, independent of the fourth amendment, to be free from unreasonable and unnecessary force during police-citizen encounters. Although the majority treats this right as rooted in the Constitution, it does not specify its origin. This right is not specifically enumerated in the Bill of Rights, and I find no indication in the legislative history that the framers of the fourteenth amendment intended to create it. I therefore view the majority’s holding as unwarranted.
The Bill of Rights addresses police-citizen encounters of the sort involved in this case exclusively in the fourth amendment, which evidences the framers’ intent to treat *1511such affairs solely under that amendment. The fourth amendment was designed to prevent the abuses of unreasonable searches and seizures occasioned by the infamous writ of assistance, suffered during English rule.18 This amendment was clearly intended to be the constitutional vehicle regulating police-citizen interactions.19 This implies that in drafting an amendment specifically dealing with police-citizen interaction, the framers intended all constitutional analysis involving such encounters to begin and end with the fourth amendment.20 The passage of the fourteenth amendment does not alter the analysis because there is no indication that police-citizen encounters were to be regulated to any greater or lesser extent under this amendment than under the fourth. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The majority creates this fundamental right under the rubric of substantive due process.21 In so doing it ignores Supreme Court jurisprudence teaching restraint in the use of this doctrine, see Ferguson v. Skrupa, 372 U.S. 726, 731-32, 83 S.Ct. 1028, 1031-32, 10 L.Ed.2d 93 (1963); moreover, the created right merely duplicates the protections provided by the fourth amendment. This is why I conclude that the majority’s creation of a fundamental right which alternatively addresses the events in this case is unwarranted.
IV.
I would adopt the panel’s disposition of this case and reverse the district court’s finding of liability on the part of the officers under section 1983. The state law assault and battery count should be remanded to the district court with directions to hold the officers liable under the claim and to assess damages against them in accordance with Georgia law.
. At the time of his death Patillo’s blood alcohol content was .27 percent. A .10 percent level created a presumption of intoxication under Georgia law. O.C.G.A. § 40-6-392(b)(3) (1982).
. They either struck him with their open palms or employed moderate force using their fists. There were no marks of any type upon Patillo’s scalp, which was bald, face, or neck, however.
. The city of Atlanta, its Mayor, Public Safety' Director, and the Chief of Police were also named in the suit. The City allegedly violated Patillo’s constitutional rights by promulgating a policy that permitted the deployment of untrained police officers and the use of excessive force in police-citizen encounters. The additional defendants, the supervisors, were allegedly liable because they implemented this policy in a general way. See infra note 9. The district court found the City liable for violating Patillo’s fourteenth amendment due process rights. The court, however, found no liability on the part of the supervisors because the plaintiff failed to prove an "affirmative link” between the supervi*1506sors’ conduct and the constitutional injury, as required by Rizzo v. Goode, 423 U.S. 362, 377, 96 S.Ct. 598, 607, 46 L.Ed.2d 561 (1976).
. In Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), the Fifth Circuit acknowledged that the federal civil rights laws do not speak to survivorship of actions, and the courts must, therefore, look to the laws of the states in which they sit to determine if provision is made for the survivorship of a given cause of action. It is undisputed that in Georgia the decedent’s claim for damages sustained during his lifetime survives:
No action for a tort shall abate by the death of either party, where the wrongdoer received any benefit from the tort complained of; nor shall any action, or cause of action, for the recovery of damages for homicide, injury to the person, or injury to property abate by the death of either party. The cause of action, in case of the death of the plaintiff and in the event there is no right of survivorship in any other person, shall survive to the personal representative of the deceased plaintiff____
Ga.Code Ann. § 3-505 (1978).
Section 3-505 is distinct from, and should not be confused with, the Georgia wrongful death statute, which at the time of this suit was codified at Ga.Code Ann. § 105-1301 (1978). The Georgia wrongful death statute creates a new cause of action in certain individuals for the value of the decedent’s life. I deal here solely with section 3-505, which permits survival of the tort claims the deceased possessed the instant before he died. Accord Brazier v. Cherry, 293 F.2d at 401; Anderson v. Jones, 508 F.Supp. 399 (N.D.Ga.1980).
As the Georgia Supreme Court put it, section 3-505 provides “for the survival to the administrator of causes of action that exist in the deceased person before his death." Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 238, 104 S.E.2d 208, 213 (1958) (husband’s suit under wrongful death statute for death of wife not part of the same cause of action as his suit as administrator under section 3-505 for wife’s pain and suffering and medical and funeral expenses). See also Wrongful Death Actions in Georgia, 19 Ga.B.J. 277 (1957).
The district court treated plaintiffs claims as having been brought under the Georgia survival statute and entered judgment for her on that theory. Thereafter, plaintiff objected in a motion to alter or amend judgment, claiming that her complaint also stated a claim for wrongful death. The district court found otherwise in a lengthy written order which I find persuasive and would affirm. Since the trial in this case, Ga.Code Ann. § 3-505 (1978) has been recodi-fied in its entirety as O.C.G.A. § 9-2-41 (1982).
. Plaintiff also asserted several pendent state law tort claims. These claims consisted of assault and battery, false imprisonment, and false arrest. The district court denied the assault and battery claim because it was duplicative of plaintiff's section 1983 due process claim. The court denied plaintiff’s false imprisonment and arrest claims because the officers had probable cause to detain Patillo.
. Notwithstanding this allegation, the district court correctly construed plaintiff's complaint as not claiming damages for the deprivation of Patillo’s life but only for the deprivation of his liberty. See supra note 4. I therefore limit my discussion to the defendants’ alleged deprivation of Patillo’s liberty interest.
. The fourth amendment prohibition of unreasonable seizure was made applicable to the states under the fourteenth amendment in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The eighth amendment prohibition on cruel and unusual punishment was incorporated into the fourteenth amendment by Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). For ease of analysis, hereafter I refer to these guarantees simply as fourth and eighth amendment rights.
. The court held the officers liable for $1,000 in compensatory damages and $4,000 in punitive damages for striking Patillo. In addition, the court held Sampson and the City liable for $20,-000 in compensatory damages for the shooting. No punitive damages were assessed because Sampson acted in subjective good faith, believ*1507ing that Patillo had Craig’s revolver in hand, see infra note 17, and the City was immune from punitive damage liability under City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981).
. The panel also reversed the trial court’s determination that the City was liable, holding that a showing of gross negligence on the part of the Police Department in training Officer Sampson did not satisfy the standard for municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The panel affirmed the district court’s refusal to find the supervisors liable and the court’s denial of relief on the state law claims for false imprisonment and false arrest. The majority today declines to reach the issue of whether gross negligence satisfies the requirements of Monell because it concludes as a matter of law that the plaintiff did not establish that the City of Atlanta was grossly negligent. I adhere to the panel’s view that gross negligence does not satisfy the requirements for municipal liability enunciated in Monell.
. See supra note 4.
. The fourth amendment provides in pertinent part:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated____
. Some may read the Court’s decision in Garner as striking down a Tennessee statute insofar as it authorized officers to shoot nondangerous fleeing suspects. The Court, however, had before it a section 1983 suit for damages arising from a shooting, which required a ruling only on whether the fourth amendment prohibited the officer’s conduct. Since the state statute could not cure any fourth amendment violation that might have occurred, its provisions were irrelevant in the Court’s analysis of the scope of the fourth amendment.
. The Court has made a similar inquiry into a police officer's method of executing a valid search warrant. See Dalia v. United States, 441 U.S. 238, 258, 99 S.Ct. 1682, 1694, 60 L.Ed.2d 177 (1979) ("[t]he manner in which a [search] warrant is executed is subject to later judicial review as to its reasonableness"); Terry v. Ohio, 392 U.S. 1, 17-18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968) (“[a] search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope"). See abo, e.g., Duncan v. Barnes, 592 F.2d 1336, 1338 (5th Cir.1979) (“[l]aw enforcement officers having a good faith and reasonable belief in the validity of the search warrant may nonetheless incur liability under 42 U.S.C. § 1983 ... if the warrant is executed in an unreasonable manner").
. It is important to note that Garner involved a suit for money damages. Garner does not suggest that, in the context of a criminal prosecution, in which the guilt or innocence of a defendant is at issue, an inquiry beyond the determination of probable cause to seize the defendant is appropriate. The civil context in which Garner arose accounts for the case being one of first impression to the Court, since prior opportunities for fourth amendment interpretation generally arose in the context of a criminal adjudication.
. "Whenever an officer restrains the freedom of a person to walk away, he has seized that person.” Tennessee v. Garner, — U.S. —, —, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985).
. The district court specifically found that Officer Sampson subjectively believed that his life was in danger. Whether Officer Sampson’s conduct was objectively reasonable is a question of *1510law subject to plenary review on appeal. Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). See Turner v. Orr, 759 F.2d 817, 820 (11th Cir.1985); Gulf Tampa Drydock Co. v. Great Atlantic Insurance Co., 757 F.2d 1172, 1174 (11th Cir.1985).
. The majority argues that the shooting was unreasonable regardless of whether it was done in self-defense because the officer’s own conduct, his earlier treatment of Patillo, provoked Patillo’s response. The implications of the majority’s treatment of the facts in this case are disturbing. In its view, once an unprovoked contact between a police officer and a citizen occurs, any subsequent necessary measures taken by the officer are automatically tainted by the initial unjustified conduct, regardless of how insignificant and minimal the first contact may have been. Thus, an unjustified push or shove by a police officer would give the “victim’’ a license to escalate the dispute and retaliate with deadly force. According to the majority, a police officer would be held liable for any act taken to thwart the "victim’s” use of deadly force — whether it be directed against the police officer or an innocent bystander — because the harm ‘largely resulted from [the officer’s] own improper use of his official power." Ante p. 505. The effect of the majority's factual analysis is to sanction the "victim’s” use of deadly force against minor police abuses and to tie the hands of the police officer from protecting himself or others who might be put in danger. Thus, in this case, Officer Sampson could not justify the shooting as self-defense because his earlier conduct made him responsible for all consequences. This is not only untenable, but also contrary to the precepts of the fourth amendment; an officer who uses force in self-defense does not violate the "victim’s" constitutional rights. Tennessee v. Garner, _U.S. at _, 105 S.Ct. at 1701.
Using the majority’s rationale, the ramifications would telescope beyond the bounds of reason. First, under the majority’s view, it is irrelevant whether Patillo possessed a gun; even if Patillo had a gun and took aim at Officer Sampson, Sampson’s act of self-defense the instant before Patillo pulled the trigger would not be justified because Sampson had in effect become responsible for Patillo’s actions. If Patillo had pointed a gun at an innocent bystander in an attempt to stop the alleged police abuse against him and Officer Sampson killed Patillo, Sampson would still violate Patillo’s constitutional rights, even though the action was taken to protect the bystander. This is because, under the majority’s rationale, such a shooting would be a consequence of Sampson’s initial unprovoked contact. It could even be said to follow, consistent with the majority's analysis, that Officer Sampson would be liable for violating the innocent bystander’s constitutional rights if Pa-tillo had shot the third party, because the shooting flowed from, and was proximately caused by, Sampson’s initial conduct.
. See H. Hockett, The Constitutional History of the United States, 1776-1826, 74 (1939); 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 3-5 (1978).
. Of course, the Constitution provides, in the fifth and sixth amendments, protections from various abuses in the criminal prosecution context. The analysis in the text focuses solely on those constitutional protections provided prior to the initiation of the criminal judicial process, such as was the case in this instance where the officers merely sought to detain a citizen.
. This approach to constitutional interpretation mirrors the longstanding rule in statutory interpretation that expression of certain powers implies the exclusion of others, a principle embodied in the ancient maxim, expressio unius est exclusio alterius. See 2 A. Sands, Sutherland on Statutory Construction § 47.23, at 123 (4th ed. 1973). See also Marshall v. Gibson’s Prods., Inc., 584 F.2d 668, 675 (5th Cir.1978).
. The majority cites as support for the creation of its substantive right Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Rochin involved the State’s using as evidence to obtain a conviction in a criminal trial drugs secured by pumping the stomach of the defendant. The issue before the Court was not whether the due process clause created a fundamental right not to have one’s stomach pumped, but whether a conviction based on evidence so obtained rendered the trial and conviction fundamentally unfair. Because Rochin arose in a criminal rather than a money damages context, the case does not sanction a court’s creation of a fundamental right to support a damages action. Applying the majority’s analysis of Rochin, and putting aside questions of immunity, any state employee who in any way participated in rendering a criminal trial unfair (e.g., by failing to give Miranda warnings, participating in coerced confessions, failing to provide a lawyer, and a host of other constitutional protections in the criminal procedure context) would be monetarily liable under section 1983. Clearly this is an unacceptable result, which suggests that the majority has read Rochin out of context and inappropriately applied its holding in this case.
In addition, Rochin does not represent an instance where the Court created a substantive right which was not specifically enumerated in the Bill of Rights. Rochin was decided before the fourth amendment was applied to the states through its incorporation into the fourteenth amendment. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The result in Rochin achieved nothing more than would have been the case had the fourth amendment been applied. Rochin, therefore, provides no justification for judicial creation of fundamental rights not specifically enumerated in the Bill of Rights.