Karen Brookins, Individually and as Administratrix of the Estate of Marcus Richard Boone v. City of Philadelphia, Pennsylvania, et al.

When a government actor’s conduct “shocks the conscience” it violates Due Process, full stop. Rochin v. California, 342 U.S. 165 (1952). That single element— conscience-shocking conduct—has always been the only element of a shocks-the-conscience claim. See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.). Here, the Third Circuit held that what Officer Culver did to petitioner and her family shocks the conscience: Culver took graphic photographs of petitioner’s son as he lay dying after jumping from a highway overpass, and sent them to colleagues as a joke. By 2-1 vote, however, the panel affirmed the grant of qualified immunity to Culver on the theory that petitioner failed to prove a second element: that she had a clearly established “protected liberty interest” in “control over a loved one[’s] death-scene images.” The Seventh, Tenth, and Eleventh Circuits recognize conscience-shocking executive misconduct as enough for substantive-due-process liability, without requiring a separate showing that the official infringed a fundamental right. Sandra T.E. v. Grindle, 599 F.3d 583, 589 (7th Cir. 2010); Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008); DeMarcus v. University of South Alabama, 133 F.4th 1305, 1316 (11th Cir. 2025). The question presented is: Whether a plaintiff who sues an executive official under the Due Process Clause must prove only that the official’s conduct shocks the conscience, or must also prove that the conduct invaded a fundamental right deeply rooted in this Nation’s history and tradition.