Filed: Aug. 31, 2001
Latest Update: Feb. 21, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT January 3, 2003 THOMAS K. KAHN No. 00-14380 CLERK _ D. C. Docket No. 99-00006-CV-JTC-3 JERRY CHARGES VAUGHAN, Plaintiff-Appellant, versus FRED LAWRENCE COX, OFFICER, individually and in his official capacity as an officer of the Coweta County Sheriff’s Department, COWETA COUNTY, GEORGIA, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northe
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT January 3, 2003 THOMAS K. KAHN No. 00-14380 CLERK _ D. C. Docket No. 99-00006-CV-JTC-3 JERRY CHARGES VAUGHAN, Plaintiff-Appellant, versus FRED LAWRENCE COX, OFFICER, individually and in his official capacity as an officer of the Coweta County Sheriff’s Department, COWETA COUNTY, GEORGIA, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Norther..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
January 3, 2003
THOMAS K. KAHN
No. 00-14380 CLERK
________________________
D. C. Docket No. 99-00006-CV-JTC-3
JERRY CHARGES VAUGHAN,
Plaintiff-Appellant,
versus
FRED LAWRENCE COX, OFFICER, individually
and in his official capacity as an officer of the
Coweta County Sheriff’s Department,
COWETA COUNTY, GEORGIA, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 3, 2003)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before CARNES, COX and NOONAN*, Circuit Judges.
COX, Circuit Judge:
*
Honorable John T. Noonan, Jr., United States Circuit Judge for the
Ninth Circuit, sitting by designation.
The issue presented by this case is whether Deputy Fred Lawrence Cox is
entitled to qualified immunity and, consequently, is shielded from Jerry Charles
Vaughan’s suit seeking damages under 42 U.S.C. § 1983 for alleged violations of his
Fourth Amendment rights arising out of a police chase. This case is before us on
remand from the Supreme Court. In our earlier opinion, Vaughan v. Cox,
264 F.3d
1027 (11th Cir. 2001), we concluded that a reasonable jury could find that Deputy
Cox’s use of deadly force was unconstitutional, but we affirmed the district court’s
grant of summary judgment to Deputy Cox in his individual capacity because he was
protected by qualified immunity.
Id. at 1035, 1037. The Supreme Court vacated our
judgment and remanded the case for reconsideration in light of its recent decision in
Hope v. Pelzer, 536 U.S. ___,
122 S. Ct. 2508 (2002). We asked the parties to file
supplemental briefs addressing the effect of Hope on the outcome of this case. Having
reconsidered this case in light of Hope, we hold that Deputy Cox is entitled to
qualified immunity.
The facts of this case are presented in our original opinion, and we need not
repeat the story. See
Vaughan, 264 F.3d at 1030-32. Vaughan filed suit for damages
under 42 U.S.C. § 1983 alleging that Deputy Cox violated his Fourth Amendment
rights by employing deadly force (firing a shot that paralyzed Vaughan) in violation
of the constitutional requirements of Tennessee v. Garner,
471 U.S. 1,
105 S. Ct. 1694
2
(1985). Because Vaughan has alleged a constitutional violation and Deputy Cox has
asserted a qualified immunity defense, we must conduct a two-part inquiry.1 Saucier
v. Katz,
533 U.S. 194, 200,
121 S. Ct. 2151, 2155 (2001). First, we must ask if the
facts, taken in the light most favorable to Vaughan, show that Deputy Cox’s conduct
violated Vaughan’s Fourth Amendment rights.
Id. at 201, 121 S. Ct. at 2156. Second,
if we conclude that Vaughan’s constitutional rights have been violated under the facts
alleged, we must determine whether Vaughan’s right was clearly established – that is,
whether it would have been clear to a reasonable officer that Deputy Cox’s conduct
was unlawful.
Id. at 202, 121 S. Ct. at 2156.
In our original opinion, we addressed Vaughan’s purported constitutional
violation and held that a reasonable jury could conclude – if the facts alleged by
Vaughan were proven – that a constitutional violation occurred.
Vaughan, 264 F.3d
at 1034-35. The Supreme Court’s decision in Hope does not modify our analysis of
the underlying Fourth Amendment violation.
Having concluded that the facts alleged could support a constitutional violation,
we now revisit the qualified immunity question: whether it would be clear to a
reasonable officer that Deputy Cox’s conduct was unlawful. It is well-settled that a
1
We review de novo a district court’s grant of summary judgment, drawing
all inferences in favor of the nonmoving party, Vaughan. Korman v. HBC Fla.,
Inc.,
182 F.3d 1291, 1293 (11th Cir. 1999).
3
constitutional right is clearly established only if its contours are “sufficiently clear that
a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton,
483 U.S. 635, 640,
107 S. Ct. 3034, 3039 (1987). In
determining whether the contours of a constitutional right are clearly established, we
examine cases that announce general constitutional rules or apply those rules to
factual circumstances to determine if a reasonable public official, who is charged with
knowledge of such opinions, would have understood the constitutional implications
of his conduct. With regard to this inquiry, the Supreme Court in Hope cautioned that
we should not be unduly rigid in requiring factual similarity between prior cases and
the case under consideration. The “salient question,” the Court said, is whether the
state of the law gave the defendants “fair warning” that their alleged conduct was
unconstitutional. Hope, 536 U.S. at ___, 122 S. Ct. at 2516. We reconsider the
qualified immunity issue in light of Hope.2
2
Even if the caselaw fails to make sufficiently clear to a reasonable public
official the constitutional infirmity of his conduct, the official may not be entitled
to qualified immunity if his conduct “lies so obviously at the very core of what the
Fourth Amendment prohibits that the unlawfulness of the conduct was readily
apparent to the official, notwithstanding the lack of caselaw.” Smith v. Mattox,
127
F.3d 1416, 1419 (11th Cir. 1997). This exception is narrow. See Lee v. Ferraro,
284 F.3d 1188, 1199 (11th Cir. 2002). The Supreme Court’s opinion in Hope
neither eviscerated nor modified this court’s decision in Smith, and on remand,
Vaughan does not contend that Deputy Cox’s conduct falls within Smith’s narrow
scope.
4
On remand, Vaughan relies exclusively on the rule announced in Tennessee v.
Garner. His reliance is misplaced. In Garner, the Supreme Court held that deadly
force is permissible if (1) the officer has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or to others, (2) the use
of deadly force is necessary to prevent escape, and (3) some warning has been given,
if
feasible. 471 U.S. at 11-12, 105 S. Ct. at 1701; Acoff v. Abston,
762 F.2d 1543,
1547 (11th Cir. 1985). Although a general constitutional rule “may apply with
obvious clarity to the specific conduct in question” in limited circumstances, we
conclude that the rule announced in Garner does not apply with “obvious clarity” to
Deputy Cox’s conduct in this case. United States v. Lanier,
520 U.S. 259, 271,
117
S. Ct. 1219, 1227 (1997). The Garner rule does not always provide “a clear answer
as to whether a particular application” of deadly force will be deemed unjustified by
the courts. Cf.
Saucier, 533 U.S. at 205, 121 S. Ct. at 2158 (concluding that the
general constitutional rule in Graham v. Connor,
490 U.S. 386,
109 S. Ct. 1865
(1989), regarding the proper application of non-deadly force did not apply with
obvious clarity to clearly establish that an officer’s conduct was unlawful in the
situation he confronted). Whether Deputy Cox had arguable probable cause, whether
deadly force was necessary to prevent Vaughan’s escape, and whether a warning was
feasible in the instant case are all questions that the general Garner rule does not
5
clearly answer. Because the Garner rule, standing alone, does not apply with
“obvious clarity” such that Deputy Cox was given fair warning that his alleged
conduct was unconstitutional, we must consider whether, in light of Hope, the cases
applying the Garner rule provided fair warning to Deputy Cox that his conduct
violated Vaughan’s constitutional rights.
We conclude that prior decisions did not provide fair warning to Deputy Cox
that his alleged conduct violated Vaughan’s Fourth Amendment rights. Although the
Hope decision can be read to invite Vaughan to offer analogous, though not
necessarily factually identical, Fourth Amendment cases to show that the law was
clearly established at the time of the shooting, Vaughan has failed to do so. Vaughan
concedes that similar cases do not exist, (Vaughan Supp. Reply Br. at 5), and he cites
only three cases – Garner, Graham, and Acoff – for the proposition that the law
provided fair warning to Deputy Cox as of January 1998 that his conduct was
unconstitutional. Garner and Graham, as noted above, establish general constitutional
rules that do not apply with “obvious clarity” to the incident at issue in this case.
Acoff was brought to our attention when this case was originally before us. See
Vaughan, 264 F.3d at 1034. We conclude that Acoff, which involved a quite different
factual circumstance and invalidated a general police policy that contravened the
principles established in Garner, failed to provide fair warning to Deputy Cox that his
6
application of deadly force violated the Fourth Amendment.
Acoff, 762 F.2d at 1547-
48.
The dissent concludes that summary judgment is improper because a reasonable
jury, under Vaughan’s version of the events, could find that Deputy Cox’s conduct
violated the Fourth Amendment. The dissent reasons that if the jury were to reach
such a conclusion, Deputy Cox necessarily would have been on notice at the time of
the shooting that his conduct was unconstitutional. This approach fails to acknowledge
that law enforcement officers like Deputy Cox may reasonably but mistakenly
conclude that probable cause exists to justify the use of deadly force. For qualified
immunity purposes, therefore, we ask whether officers had “arguable probable cause”
– that is, whether the officer reasonably could have believed that probable cause
existed. Montoute v. Carr,
114 F.3d 181, 184 (11th Cir. 1997). In contrast, the
dissent’s approach would deny qualified immunity in any case in which the jury could
conclude that the officer actually lacked probable cause, effectively reading
“arguable” out of the “arguable probable cause” standard. See, e.g., Knight v.
Jacobson,
300 F.3d 1272, 1274 (11th Cir. 2002); St. George v. Pinellas County,
285
F.3d 1334, 1337 (11th Cir. 2002). We decline to adopt such an approach. In our prior
opinion, we concluded that Deputy Cox had arguable probable cause, see
Vaughan,
264 F.3d at 1036, and we reaffirm that decision today.
7
We reinstate our prior decision in its entirety and supplement, by this opinion,
our previous discussion of qualified immunity.
SO ORDERED.
NOONAN, Circuit Judge, dissenting:
The petition for a writ of certiorari in this case was granted, and the judgment
of this court was vacated. Vaughan v. Cox,
122 S. Ct. 2653 (June 28, 2002). The case
was remanded to us “for further consideration in light of Hope v. Pelzer, 536 U.S.
___,
122 S. Ct. 2508 (2002).” Hope v. Pelzer had reversed another decision by the
Eleventh Circuit Court of Appeals,
240 F.3d 975 (11th Cir. 2001). That case had held
that prison officials in Alabama would not be on notice that tying a prisoner to a
hitching post for seven hours, his back bare to the sun, his wrists tortured by handcuffs
that swelled with the heat, while he was denied any release to urinate or defecate and
was denied any water by a guard who gave water from a pitcher to a dog but spilled
it on the ground before the prisoner, was cruel and unusual punishment. The Eleventh
Circuit in Hope found the conduct of the prison officials unconstitutional but held that
there were no cases with “materially similar facts” that would have put the officials
on notice that their conduct was cruel and unusual.
Id. at 981. Reversing the circuit
court decision, the Supreme Court noted that the “focus in the case was the Eleventh
Circuit’s position that a violation is not clearly established unless it is the subject of
a prior case of liability on facts ‘materially similar’ to those charged.” The Supreme
8
Court noted that the circuit court’s decision “exposes the danger of a rigid
overreliance on factual similarity.”
Hope, 122 S. Ct. at 2517. The Court went on to
cite analogous binding Fifth Circuit precedents and to add: “The obvious cruelty
inherent in this practice should have provided respondents with some notice that their
alleged conduct violated Hope’s constitutional protection against cruel and unusual
punishment.”
Id. at 2511.
Invited to give “further consideration” to Vaughan’s case in the light of Hope,
the majority comes to the same conclusion it reached before. The majority states:
“Whether Deputy Cox had arguable probable cause, whether deadly force was
necessary to prevent Vaughan’s escape, and whether a warning was feasible in the
instant case are all questions that the general Garner rule does not clearly answer.”
Op. at p.5.
In the prior opinion the court held that “a reasonable jury could find that Deputy
Cox acted unreasonably in firing at the pickup. First, material issues of fact remain
as to whether Vaughan and Rayson’s continued escape presented an immediate threat
of serious harm to Cox or others. Assuming Vaughan’s version of events, it is not
clear that Looney or Cox were in immediate danger from the suspects at the time of
the shooting, nor does the record reflect that the suspects had or were likely to menace
other innocent drivers. What Deputy Cox was faced with at the time he fired his
weapon was simply two suspects who were evading arrest and had accelerated to
9
eighty or eighty-five miles per hour in an attempt to avoid capture. Under such facts,
a reasonable jury could find that Vaughan and Rayson’s escape did not present an
immediate threat of serious harm to Cox or others on the road.
“Second, a reasonable jury could find that it was feasible for Cox to warn the
truck’s occupants of the potential application of deadly force. According to
Vaughan’s version of events, Cox pulled his cruiser parallel to the truck, turned his
rooftop lights on and waited for thirty to forty-five seconds before firing his weapon.
A reasonable jury could therefore conclude that Cox had the time and opportunity to
warn Vaughan and Rayson that he was planning to use deadly force before he opened
fire.” Vaughan v.
Cox, 264 F.3d at 1034-35.
If a reasonable jury found the facts the court says it could find, Cox with time
to warn Vaughan discharged his weapon three times into a small area containing two
human beings. I do not see how Cox’s conduct, if so found, differed in any material
respect from the conduct found to be unconstitutional in Tennessee v. Garner,
471
U.S. 1 (1985). Surely it is not for this court to preempt the jury and resolve all
material facts in dispute against Vaughan. See Saucier v. Katz,
121 S. Ct. 2151, 2156;
Behrens v. Pelletier,
516 U.S. 299, 309 (1996). If, as the court has stated, these facts
could be resolved in Vaughan’s favor, then Cox was on notice that to shoot a fleeing
felon without notice is a seizure in violation of the Fourth Amendment. As the dissent
in our first consideration of this case suggested, it is difficult to discern why, if police
10
officers in Tennessee and Minnesota and Connecticut were on notice that the use of
lethal force to restrain a suspect is unreasonable, Georgia police officers should be
supposed slow to have learned. See Vaughan, at
264 F.3d 1027 (dissent). Not only
case law gave notice. Just as “the obvious cruelty” inherent in their actions gave
“some notice” to the Alabama prison officials in Hope, so the obvious danger inherent
in shooting into the occupied front seat of a car gave Cox “some notice” of the
unconstitutional character of his alleged action.
11