Substantive Due Process

What It Is

Substantive due process protects individuals from government conduct that is so arbitrary, egregious, or conscience-shocking that it violates fundamental fairness — regardless of what procedures were followed.

Unlike procedural due process (which asks “did you get a hearing?”), substantive due process asks “was this so outrageous that no hearing could make it okay?”

The “Shocks the Conscience” Test

After County of Sacramento v. Lewis, 523 U.S. 833 (1998), the standard for substantive due process in executive action cases is whether the conduct “shocks the conscience.”

What that means depends on the context:

• Deliberate decisions (time to think): Deliberate indifference is enough — knowingly ignoring a serious risk
• Split-second decisions (urgent situations): Must show conduct intended to injure with no legitimate purpose — a much higher bar

A high-speed chase that kills a bystander? The officer had split seconds — you need to show intent to harm. A jail that ignores a diabetic inmate’s insulin needs for a week? They had time to deliberate — deliberate indifference suffices.

When to Use It

Substantive due process is a residual claim. Under Graham v. Connor, if a more specific constitutional provision applies (Fourth Amendment for seizures, Eighth Amendment for convicted prisoners), you use that instead.

Substantive due process fills the gaps:

• Pretrial detainee conditions — Not yet convicted, so Eighth Amendment doesn’t apply
• State-created danger — Government action that creates or increases a risk of private violence
• Conscience-shocking executive abuse — Conduct that doesn’t fit other amendments
• Interference with bodily integrity — Forced medical procedures, sexual abuse by officials

State-Created Danger

Most circuits recognize a “state-created danger” theory: if a government official’s affirmative acts create or substantially increase a danger to you, and they acted with deliberate indifference, there’s a substantive due process claim — even though the ultimate harm came from a private actor.

Elements vary by circuit but generally require:

1. The state actor created or increased the danger
2. The plaintiff was a foreseeable victim
3. The state actor acted with deliberate indifference
4. The conduct shocks the conscience

Key Cases

• County of Sacramento v. Lewis, 523 U.S. 833 (1998) — “Shocks the conscience” standard
• Rochin v. California, 342 U.S. 165 (1952) — Forced stomach pumping shocks the conscience
• DeShaney v. Winnebago County, 489 U.S. 189 (1989) — No general duty to protect from private violence (but state-created danger is an exception in most circuits)