The plaintiffs' contention that the defendant's conduct was so offensive as to “shock the conscience” and therefore violate Fifth Amendment substantive due process is unavailing. After
Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and
Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), it is doubtful that any plaintiff may pursue a Fifth Amendment substantive due process claim based on the same facts as alleged in a Fourth Amendment unreasonable search claim. In the context of an excessive force claim arising in the course of an arrest, investigatory stop, or other seizure of a person, the Supreme Court has explained that “[b]ecause the Fourth Amendment provides an explicit textual source of constitutional protection against
this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”
Graham, 490 U.S. at 395, 109 S.Ct. at 1871 (emphasis added). More recently a four-member plurality generalized this observation by quoting it with the substitution of the words “a particular sort of government behavior” for the words “this sort of physically intrusive governmental conduct.”
Albright, 510 U.S. at ––––, 114 S.Ct. at 813 (opinion of Rehnquist, C.J., with whom O'Connor, Scalia, and Ginsburg, JJ., join). Justice Souter, concurring in the judgment, appears to provide a fifth vote for the proposition that substantive due process is unavailable as a restraint on conduct regulated by the Fourth Amendment.
Id. 510 U.S. at –––– – ––––, 114 S.Ct. at 819–22.