with whom CUMMINGS, Circuit Judge, joins, concurring in part and dissenting in part:
As the majority opinion indicates, I was the author of the original panel opinion in this case, 852 F.2d 901, which reversed the “conspiracy to harass” count but affirmed the jury verdict on the licensing conspiracy count. I rely primarily on that opinion with respect to the issues addressed here.
This is a close case (and in fact one that originated 13 years ago and has now been before this court four times). But it seems to me to be close for reasons other than those relied on by the majority to reverse the jury verdict. Thus the key issue in the case seems to me to be whether Easter House was in fact deprived of a property interest. I am satisfied that, based on the jury verdict to the effect that it was, this issue favors the plaintiff, and the en banc majority does not disagree. There is also in this case a fairly close issue of qualified immunity. This was resolved favorably to the plaintiff by the panel and the en banc majority has not suggested a different result.
The issue whether the acts here were “random and unauthorized” of course did not even arise as a matter of theory until the case was well into middle age. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). In addressing this issue, the panel relied primarily on Tavarez v. O’Malley, 826 F.2d 671 (7th Cir.1987), a governing precedent in this circuit, which the majority here suggests would lead to the panel result rather than to the en banc outcome. (“In Taverez, as well as in Matthiessen, we intimated that perhaps a narrower reading of Parratt might be wise to protect the important purposes which section 1983 serves.” supra, at 1470.) Since Tavarez, of course, there have been other decisions in other circuits that may lead us on a merry chase in attempting to resolve the problem at hand. But there is nothing in these decisions which should invalidate the well-buttressed panel result.
The majority here now says that the conspiratorial acts of the person who was de facto the ultimate decisionmaker (Felder) are “random and unauthorized” from the perspective of the “state”. Who or what is the “state”? According to the majority, it is the legislature. And the acts of senior officials, which are alleged to be “unauthorized” by statute or regulation, are unforeseeable and hence not actionable. Only an “established state procedure” on all fours with the one in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), can give rise to a procedural due process claim for a property deprivation. Admittedly this rule has the virtue of drawing a bright line, although at the expense of withdrawing any civil rights remedy for the overwhelming bulk of official misconduct under color of state law that involves property. In theory some state remedies remain but the majority “flies low” over these — reinforcing the impression that they have slight practical significance.
Stripped of their analytical intricacies, Parratt and Hudson teach a fairly straightforward lesson (or so I had thought before today’s decision): while the procedural aspect of the due process clause1 *1482generally requires that the state provide a hearing before it takes away someone’s property, it is physically impossible to grant a predeprivation hearing where the taking is a “fluke”, unplanned and uncontrollable. Such an accident occurs, for example, where a state employee who has no business meddling with anyone’s property rights nevertheless deprives someone of property. (Note that in both Parratt and Hudson the employee who took the plaintiff's property was acting completely beyond the pale of his or her assigned responsibilities — in Parratt, by signing for (and thereby taking custody of) the plaintiff's package, in direct violation of prison rules; in Hudson, by destroying innocuous items of personal property during a search for contraband.) In these unpredictable and unpreventable situations (and in emergencies, where a pre-deprivation hearing is unwise) all that a state can realistically offer is a post-deprivation remedy; all that a federal court presented with a due process claim can do is assure itself that the state remedy is “plain, speedy and efficient.” See also Daniels v. Williams, 474 U.S. 327, 342 n. 19, 106 S.Ct. 662, 680 n. 19, 88 L.Ed.2d 662 (1986) (Stevens, J., concurring in the judgment) (“It borders on the absurd to suggest that a State must provide a hearing to determine whether or not a corrections officer should engage in negligent conduct.”).
But the present case does not involve a “fluke” occurrence with a state officer acting entirely outside his lawful authority. Felder was authorized, at least de facto, to take the very kind of action involved here— grant, deny or refuse to renew adoption agency licenses. If the State gave Felder this authority, it could also have constrained his power by appropriate pre-dep-rivation procedures. (Recall that no argument is being made here that the State is itself liable for Felder’s misdeeds.) I simply cannot believe that this is the sort of situation which the Supreme Court intended to address in Parratt or Hudson.
The metaphysics of “random and unauthorized” events is daunting. In fact, the dictionary definition of “random” as “lacking ... a regular ... pattern,” Webster’s New International Dictionary 1880 (3d ed. 1976), is reminiscent of an even more puzzling problem in metaphysics, the RICO “pattern”. Presumably, the operative characteristic sought to be identified is foreseeability. Are individual acts of high state officials “foreseeable” by the “state” so that due process can be provided? It would seem logical that if the official in question were high enough up the ladder to provide the process which the Constitution required, then what was foreseeable by that official should be the relevant area for analysis. And, since everything in that area was by definition foreseeable by the official in question, the “random and unauthorized” test would be met. An official at the process-granting level (such as Felder) would in effect be the “state” for the purposes involved here. See also Burch v. Apalachee Community Mental Health Servs., Inc., 840 F.2d 797, 802 (11th Cir.1988) (en banc); Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir.1985) (en banc).
To put matters somewhat differently, one might say that a state official’s actions are foreseeable by the state where the state has vested that official, either de jure or de facto, with substantial discretionary authority to create, maintain or extinguish property rights of members of the public. In such a situation, the state has created a significant risk that the empowered official might arbitrarily deprive a citizen of property without adequate procedures; it can hardly be said that the erroneous taking of *1483property was “unforeseeable” by the state which itself created the environment within which an unconstitutional deprivation could occur.2 An official authorized to oversee and superintend individuals’ property rights (such as Felder, who was in effect the “last word” on adoption agency licenses in the Chicago area) would, once again, be considered the “state” for purposes of the “foreseeability” analysis apparently mandated by Parratt.3
At least before today’s decision, I would have thought it clear that the due process clause mandated notice and hearing for more than simply state action that was specifically authorized by state statute or regulation. Instead, I had thought that misconduct by officials supervising the state’s procedural machinery, or officials granted discretionary authority over individuals’ property rights, would be subject to the constitutional requirement that any deprivation be preceded by a meaningful opportunity to challenge the state’s decision.
As Judge Easterbrook’s concurrence explicitly acknowledges, the majority’s insistence that an “established state procedure” cause a property deprivation is reminiscent of the analysis employed in determining whether a municipality’s “policy or custom” is responsible for the constitutional violations of municipal employees, so that the municipality is itself liable for the constitutional torts of its agents. See generally Jett v. Dallas Indep. School Dist., — U.S. -, -, 109 S.Ct. 2702, 2722-24, 105 L.Ed.2d 598 (1989); Canton v. Harris, — U.S. -, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion); id. at 928 (Brennan, J., concurring in the judgment); Erwin v. County of Manitowoc, 872 F.2d 1292, 1297-99 (7th Cir.1989). However, the present inquiry is fundamentally different from the municipal liability question. The municipal liability doctrine does not define a constitutional violation; instead, the municipal liability inquiry only asks who will pay for a constitutional violation previously found to exist. In the municipal liability context, it may not be inequitable to deny the victim of a constitutional violation recovery from a particular source of compen*1484sation where the offending act was isolated or an aberration. But the calculus is quite different where the court seeks to deny that any constitutional violation ever occurred. To my mind, a property deprivation, even if isolated or aberrant, may violate due process if effected by high-ranking government officials vested with the de facto authority to finally determine an individual’s property rights. See also Rittenhouse v. DeKalb County, 764 F.2d 1451, 1456 n. 5 (11th Cir.1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986). By requiring that the plaintiff point to an established state policy or custom which caused his or her property deprivation before a due process violation will be found, the majority in effect holds that “several must suffer [] before one [may] object.” Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69 (1986) (quoting McCray v. New York, 461 U.S. 961, 965, 103 S.Ct. 2438, 2440, 77 L.Ed.2d 1322 (1983) (Marshall, J., dissenting from denial of certiorari)). I cannot understand, much less accept, this approach.
Another point of great difficulty is the availability of state remedies. The majority states that Easter House “may seek” a “wide variety of relief under numerous legal theories.” It goes on to describe these arguable remedies as “potential causes of action.” It dispatches the thorny question of immunity with a single paragraph and attempts no analysis in depth. I respectfully submit that rights conferred by the United States Constitution should not be denied a remedy without some serious investigation of the adequacy of alternative state procedures. See also Gregory v. Town of Pittsfield, 470 U.S. 1018, 1022-23, 105 S.Ct. 1380, 1382-83, 84 L.Ed.2d 399 (1985) (O’Connor, J., joined by Brennan and Marshall, JJ., dissenting from denial of cer-tiorari).
As courthouse doors continue inexorably to swing shut, the protection of citizens against abuses of power shrinks to the point of disappearance. This seems to be the message of today’s decision.
. I must register my strong disagreement with Judge Easterbrook’s suggestion, supra, at 1478, that DeShaney v. Winnebago County Department of Social Services, — U.S. —, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) or Archie v. City of Racine, 847 F.2d 1211 (7th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989) are relevant to the issues involved in the present appeal. To the contrary, I believe that these decisions have no relationship whatever to this case. DeShaney and Archie involved the "substantive due process" doctrine — i.e., the theory that the due process clause itself creates certain substantive entitlements, and does not merely *1482specify procedures to be employed where an independently derived entitlement is taken away. This theory might indeed become a "font” of constitutionalized torts. Here, however, the en banc majority accepts Easter House’s argument that it had a preexisting property right under state law, independent of the due process clause. The constitutional issue presented here involves only the question of what process was due Easter House before the state deprived it of what is conceded to be "property” in the constitutional sense. Whatever the validity of the "substantive due process" theory, it is clear that Easter House's claim has a much firmer grounding in the text of the fourteenth amendment than the arguments advanced in either DeShaney or Archie.
. Judge Easterbrook’s concurrence suggests that pre-deprivation hearings are not required where, without prior hearings, "the rate of error is low in the main and can be held within acceptable limits by the threat of damages.” Supra, at 1479. If such is the case, Judge Easterbrook would find that any remaining errors by state officials constitute "problems of implementation rather than design." Id at 1479. While I might not quibble with these general statements (which would appear generally consistent with the balancing approach to due process questions adopted in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)), I do take issue with Judge Easterbrook’s application of these principles to the present case. Here, while the misconduct complained of might be an isolated occurrence, the possibility that such errors might occur is inherent in the "design” of the state’s procedural apparatus, which apparently grants broad authority over licensing decisions (in both their procedural and substantive aspects) to certain high-ranking DCFS officials, such as Felder. See also Hudson v. Palmer, 468 U.S. at 541 n. 4, 104 S.Ct. at 3208 n. 4 (Stevens, J., concurring) (Paratt and Hudson do not apply "to cases in which it is contended that the established prison procedures themselves create an unreasonable risk that prisoners will be unjustifiably deprived of their property”); Parratt, 451 U.S. at 546, 101 S.Ct. at 1918 (Blackmun, J., concurring) ("When it is possible for the State to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so.”).
. Without attempting to set forth an exhaustive catalogue, several circuit decisions have recognized that actions by a state official given extensive power to deal with individuals’ property interests may violate the due process clause, even after Parratt. See, e.g., Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1317 (9th Cir.1989); Gillihan v. Shillinger, 872 F.2d 935, 939-40 (10th Cir.1989); Sinaloa Lake Owners Ass'n v. City of Simi Valley, 864 F.2d 1475, 1482 (9th Cir.1989); Burch v. Apalachee Community Mental Health Servs., Inc., 840 F.2d 797, 801 (11th Cir.1988) (en banc); Stana v. School Dist. of City of Pittsburgh, 775 F.2d 122, 130 (3d Cir.1985); Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985) (en banc); Haygood v. Younger, 769 F.2d 1350, 1357-58 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). By rejecting what it characterizes as the "status-conscious exception” recognized in these and similar cases, the majority exacerbates (if it does not create) a circuit conflict, suggesting that the Supreme Court will be called upon to visit this murky area of the law yet again.