Cite as: 523 U. S. 833 (1998)
Kennedy, J., concurring
What we do confront is the question of the standard of conduct the Constitution requires the State, in this case the local police, to follow to protect against the unintentional taking of life in the circumstances of a police pursuit. Unlike the separate question whether or not, given the fact of a constitutional violation, the state entity is liable for damages, see Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694-695 (1978); Canton v. Harris, 489 U. S. 378 (1989), which is a matter of statutory interpretation or elaboration, the question here is the distinct, anterior issue whether or not a constitutional violation occurred at all. See Collins v. Harker Heights, supra, at 120, 124.
The Court decides this case by applying the "shocks the conscience" test first recognized in Rochin v. California, 342 U. S. 165, 172-173 (1952), and reiterated in subsequent decisions. The phrase has the unfortunate connotation of a standard laden with subjective assessments. In that respect, it must be viewed with considerable skepticism. As our opinion in Collins v. Harker Heights illustrates, however, the test can be used to mark the beginning point in asking whether or not the objective character of certain conduct is consistent with our traditions, precedents, and historical understanding of the Constitution and its meaning. 503 U. S., at 126-128. As Justice Scalia is correct to point out, we so interpreted the test in Glucksberg. Post, at 860- 861 (opinion concurring in judgment). In the instant case, the authorities cited by Justice Scalia are persuasive, indicating that we would contradict our traditions were we to sustain the claims of the respondents.
That said, it must be added that history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry. There is room as well for an objective assessment of the necessities of law enforcement, in which the police must be given substantial latitude and discretion, acknowledging, of course, the primacy of the interest in life which the State, by the Fourteenth Amend-
857
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