[PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________                            FILED
                                                                            U.S. COURT OF
                                                                               APPEALS
                                     No. 00-14380                        ELEVENTH CIRCUIT
                                                                          AUGUST 31, 2001
                               ________________________                    THOMAS K. KAHN
                                                                                CLERK
                          D. C. Docket No. 99-00006-CV-JTC-3

JERRY CHARLES 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
                           _________________________
                                  (August 31, 2001)

Before CARNES, COX and NOONAN*, Circuit Judges.

COX, Circuit Judge:


       *
               Honorable John T. Noonan, Jr., U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
       Jerry Charles Vaughan appeals the district court’s order granting summary

judgment in favor of Deputy Fred Lawrence Cox, Coweta County, Georgia, and

Coweta County Sheriff Mike Yeager on Vaughan’s 42 U.S.C. § 1983 claims related

to injuries he suffered during a police chase. We affirm in part and vacate and remand

in part.

                                         Background1

       In the early morning of January 5, 1998, the Sheriff’s Department of Coweta

County, Georgia received a report that a red pickup truck with a silver tool box in its

bed had been stolen from a service station along I-85 south of Atlanta. The report

included the information that the suspect, a white male wearing a white t-shirt, was

believed to be heading north on I-85. In response to the report, Deputy Cox and

Deputy Jeff Looney headed to the northbound lanes of I-85 in separate vehicles.

Deputy Looney pulled onto the grass median to observe passing traffic. Deputy Cox

continued farther north and stopped at the sight of a recent accident. Deputy Looney

soon spotted a truck traveling northward that matched the description of the stolen

vehicle but, contrary to the report, was towing a trailer loaded with two personal

watercraft. Looney reported his sighting on his radio and began to follow the truck.

       1
                There are several important disputes between the parties as to what transpired in
the period prior to the shooting. As is our obligation at the summary judgment stage, we will
resolve all disputes in favor of Vaughan’s version of events.

                                                2
After hearing Looney’s report of his observation, Deputy Cox radioed Looney to

inform him that there was an accident scene north of his position and that he should

not attempt to stop the vehicle until it had passed by the accident.

      As the red pickup and Deputy Looney passed him, Deputy Cox pulled out and

joined the pursuit. While tracking the truck, the deputies made efforts to determine

whether the vehicle was indeed the stolen truck. To this end, Deputy Cox sped up and

passed the truck, which was proceeding at or near the speed limit. He observed two

men in the cab. The man in the passenger’s seat, Mr. Vaughan, matched the

description of the suspect. Cox’s suspicions confirmed, he and Deputy Looney

decided to use a “rolling roadblock” to stop the vehicle, which involves officers

blocking a suspect vehicle with their police cars and reducing speed, in the hope that

the suspect car will slow down as well. Deputy Looney positioned his cruiser directly

behind the pickup. Deputy Cox moved in front of the truck. Vaughan has conceded

that by this point the deputies had made it clear that they desired to stop the pickup.

As soon as he had positioned his vehicle in front of the truck, Deputy Cox applied his

brakes. The truck rammed into the back of Cox’s cruiser. Deputy Cox has testified

that the impact caused him to momentarily lose control; Vaughan and the pickup’s

driver, Freddy Rayson, however, contend that the impact was both accidental and

insufficient to cause Cox to lose control.


                                             3
       Rayson did not pull over following the collision, but instead accelerated while

staying in the same lane of traffic.2 Deputy Cox decided to reposition his vehicle

behind the truck. He unholstered his sidearm and rolled down the passenger side

window. Cox testified that he readied himself in this manner in case Rayson made

aggressive moves in his direction. Cox then shifted his cruiser one lane to the left and

slowed to allow the truck to pass by him. As soon as his cruiser was even with the

pickup, Deputy Cox turned on his rooftop lights. Rayson responded by accelerating

to eighty or eighty-five miles per hour. Cox then fired three rounds into the truck. It

is undisputed that Deputy Cox did not warn the truck’s occupants before he used his

weapon. Cox testified that he fired because the pickup swerved as if to smash into his

cruiser. Vaughan maintains that the truck, while increasing its speed, made no motion

in the direction of Cox’s vehicle and the shooting was unprovoked.

       Deputy Cox’s plan was to disable either the truck or Rayson so that he could

force the truck off the road. However, his volley disabled neither the truck nor

Rayson. The third bullet fired from Cox’s weapon instead punctured Vaughan’s

spine, paralyzing him instantly below the chest. Rayson’s only reaction to the




       2
               On cross-examination, Vaughan conceded that Rayson began to drive
“recklessly” after the collision with Cox’s vehicle. However, Vaughan maintains that while
Rayson did accelerate, he did not change lanes or weave in and out of traffic.

                                              4
shooting was to drive faster and more recklessly.3 As the chase continued into more

heavily congested sections of the highway, Cox made several more attempts to stop

the vehicle, firing his weapon once more. After an extended chase, the pickup struck

the cement median and came to a stop. Vaughan was removed from the truck and

taken to a hospital.

       Vaughan filed suit for damages pursuant to 42 U.S.C. § 1983 in the Northern

District of Georgia against Deputy Cox in his individual and official capacities,

Coweta County, and Coweta County Sheriff Mike Yeager in his official capacity.

Vaughan’s complaint alleges that: (1) Deputy Cox violated one or more of the Fourth,

Fifth, Eighth, and Fourteenth Amendments in using excessive force in his attempt to

stop the pickup; (2) Sheriff Yeager promulgated and established policies that caused

Deputy Cox to violate Vaughan’s rights; and (3) Cox’s actions also constituted

“negligence, assault and battery, false arrest, intentional infliction of emotional

distress[,] and outrageous conduct” under Georgia law. (R.1-1 at 6.) The defendants

moved for summary judgment. In analyzing Vaughan’s federal claims, the court first

determined that since Vaughan alleged that Cox used excessive force, a Fourth

Amendment analysis should be applied. The district court thereafter found that: (1)


       3
               After the shooting, Rayson began a desperate break for freedom which involved
weaving in and out of lanes, driving at highway speeds through exit ramps, and dragging at least
one of the watercraft, which had fallen off the trailer, along the ground.

                                               5
Vaughan was not “seized” within the meaning of the Fourth Amendment by Cox’s

bullet; and (2) even if Vaughan had been seized by the bullet that hit him in the spine,

the use of force was reasonable given the circumstances. Because it found that no

constitutional violation had occurred, the court granted the defendants summary

judgment and declined to exercise supplemental jurisdiction over the state law claims.4

Vaughan appeals.

                                      Issues on Appeal

       Vaughan argues on appeal that: (1) the district court erred in finding that he was

not seized when shot by Deputy Cox; (2) issues of fact remain as to whether Cox’s

actions were objectively reasonable; and (3) even assuming that no seizure occurred,

he still has a valid Fourteenth Amendment substantive due process claim based on

Cox’s deliberately indifferent and conscience-shocking conduct. We review a district

court’s grant of summary judgment de novo, drawing all inferences in favor of the

nonmoving party. See Korman v. HBC Fla., Inc., 

, 1293 (11th Cir.

1999). We will address each of the issues raised by Vaughan in turn.




       4
                Vaughan has raised no arguments on appeal regarding the district court’s decision
not to exercise jurisdiction over his state law claims.

                                                6
                                     Discussion

      The first step in reviewing an excessive force claim is to determine whether the

plaintiff was subject to the “intentional acquisition of physical control” by a

government actor. Brower v. County of Inyo, 

, 596, 

,

1381 (1989). It is clear that “apprehension by the use of deadly force is a seizure . .

. .” Tennessee v. Garner, 

, 7, 

, 1699 (1985). It is also

apparent that Vaughan could have been “seized” for Fourth Amendment purposes

even though he was not taken into custody immediately following the shooting. As

the Supreme Court has noted, “the application of physical force to restrain movement,

even when it is ultimately unsuccessful” is sufficient to constitute a seizure.

California v. Hodari D, 

, 626, 

, 1550 (1991).

Undeniably, Cox’s firing of his weapon was an application of force with the design

to restrain movement. It is therefore irrelevant that Vaughan was not actually taken

into custody until after the lengthy chase. However, the Supreme Court has held that

a seizure occurs “only when there is a governmental termination of freedom of

movement through means intentionally applied.” 

, 109 S. Ct.

at 1381 (emphasis in original). The question remains whether Cox’s action in firing

his weapon at the truck can be deemed “means intentionally applied” to seize

Vaughan.


                                          7
       The district court concluded, and Deputy Cox contends here, that Vaughan was

not seized by the bullet because Cox did not intend to hit Vaughan when he fired his

pistol. Instead, Cox planned to seize both Rayson and Vaughan by disabling the truck

or Rayson with a volley of bullets and then ramming the pickup off the road. Cox

argues that Vaughan was not seized because Cox, while intending to apprehend

Vaughan, did not intend to stop him by shooting him.5 In Deputy Cox’s view, a

seizure can only occur when an officer stops a suspect using the specific means that

he intended. Because Cox did not intend to shoot Vaughan, he contends that Vaughan

did not suffer a Fourth Amendment seizure. We disagree.

       The Supreme Court has cautioned against a too finely drawn reading of “means

intentionally applied.” 

, 109 S. Ct. at 1382. It is not

necessary for the means by which a suspect is seized to conform exactly to the means

intended by the officer. Otherwise courts could be compelled to conclude that “one

is not seized who has been stopped by the accidental discharge of a gun with which



       5
               In support of this position, Deputy Cox cites several cases from our sister circuits
where courts rejected Fourth Amendment claims brought by innocent bystanders or hostages
accidentally harmed by police fire. See Rucker v. Harford County, 

(4th Cir. 1991)
(bystander not seized by police bullet aimed at fleeing vehicle); Childress v. City of Arapaho,

(10th Cir. 2000) (hostage wounded by police bullet aimed at suspect not seized);
Medeiros v. O’Connell, 

(2nd Cir. 1998) (same); Landol-Rivera v. Cruz Cosme, 

(1st Cir. 1990) (same). These cases are of little aid to our inquiry, however, because
Vaughan was neither an innocent bystander nor a hostage; instead, he was a suspect whom
Deputy Cox sought to apprehend.

                                                8
he was meant only to be bludgeoned, or by a bullet in the heart that was meant only

for the leg.” 

109 S. Ct. at 1382. Instead, the Court has held that it is

enough “that a person be stopped by the very instrumentality set in motion or put in

place in order to achieve that result.” 

has been met in this case.

Cox fired his weapon to stop Vaughan and Rayson; Vaughan was struck by one of

those bullets. Because Vaughan was hit by a bullet that was meant to stop him, he

was subject to a Fourth Amendment seizure. We therefore must turn to the question

of whether the seizure could be found “unreasonable.”

      A police officer may use deadly force to seize a fleeing felony6 suspect when

the officer: (1) “has probable cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others” or “that he has committed a crime

involving the infliction or threatened infliction of serious physical harm;” (2)

reasonably believes that the use of deadly force was necessary to prevent escape; and

(3) has given some warning about the possible use of deadly force, if feasible.

, 105 S. Ct. at 1701; Acoff v. Abston, 

, 1547

(11th Cir. 1985). We review an officer’s use of force “from the perspective of a

reasonable officer on the scene,” taking care to make allowances “for the fact that

police officers are often forced to make split-second judgments – in circumstances that


      6
             There is no dispute that Vaughan was a suspect in at least one felony.

                                              9
are tense, uncertain, and rapidly evolving – about the amount of force that is necessary

in a particular situation.” Graham v. Connor, 

, 396-97, 

,

1872 (1989). It is undisputed that Deputy Cox had no reason to believe that Vaughan

or Rayson had committed a crime involving the infliction or threatened infliction of

physical harm. Therefore, our inquiry is limited to whether a reasonable officer: (1)

would have had probable cause to believe that the Vaughan and Rayson’s unabated

flight posed an immediate threat of serious harm to Deputy Cox, other police officers,

or innocent motorists; (2) would have believed that deadly force was necessary to stop

the suspects; and (3) would have concluded that it was not feasible to warn the

suspects of the possible use of deadly force. See 

.

       Resolving all evidentiary disputes in Vaughan’s favor, we conclude 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.7 What Deputy Cox



       7
              According to Vaughan, the pick-up’s lane was clear of traffic and Rayson made
no moves to change lanes before Cox fired.

                                             10
was faced with at the time he fired his weapon was simply two suspects who were

evading arrest and had accelerated to 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.8

       8
                 In support of his position, Cox cites three cases from our sister circuits in which
courts found the application of deadly force in a high-speed chase to be reasonable as a matter of
law. However, the facts of the cited cases diverge significantly from the case at bar. In Smith v.
Freland, 

(6th Cir. 1992), a suspect led an officer on a “wild chase at speeds in
excess of ninety miles per hour,” attempted to ram the officer’s car twice, and drove around a
police blockade at high speed in an effort to avoid 

. The officer
eventually cornered the suspect in a dead-end street, blocking the suspect’s vehicle with his
police car. See 

officer exited his vehicle to make an arrest, the suspect smashed his
car into the officer’s cruiser and made yet another a break for freedom. See 

only at
this point that the officer used deadly force to prevent the suspect’s escape. See 

Circuit concluded that the officer’s use of deadly force was justified given that the suspect had
demonstrated that he posed a major threat to other officers and the public. 

         In Cole v. Bone, 

(8th Cir. 1993), a suspect driving an eighteen-wheel
tractor trailer led the police on a lengthy highway chase at speeds exceeding ninety miles per

. The suspect thwarted multiple efforts to establish a rolling roadblock,
ran through a stationary roadblock, refused to stop after the police had shot out two of the truck’s
tires, and forced more than one hundred innocent motorists off the road. See 

During the chase, the pursuing officers were continuously compelled to take measures in order to
stop the suspect from hitting both police and civilian vehicles on a crowded highway. See 

After multiple attempts to stop the truck using other means had failed, one of the pursuing
officers shot twice at the truck, hoping to disable its engine. See 

was fatally
wounded by the second shot. See 

held that, in light of all the information available
to the officer, it was reasonable for the officer to conclude that the suspect posed an imminent
threat of serious harm. See 

         Finally, in Scott v. Clay County, 

(6th Cir. 2000), the police began pursuing
a suspect who had raced through an intersection in contravention of a stop 

.
Rather than stop for the police, the suspect led them on a twenty-minute chase over rural roads at
speeds ranging from eighty-five to one hundred miles per hour. See 

The driver
testified that he forced at least one motorist off the road during the chase. See 

suspect’s vehicle crashed into a guardrail and came to a stop, one of the pursuing officers parked
and exited his cruiser to make an arrest. See 

’s vehicle rapidly accelerated in the
officer’s direction, forcing the officer to leap out of the way to avoid being struck. See 

        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.

        Although we are loathe to second-guess the decisions made by police officers

in the field, we simply cannot conclude as a matter of law that a reasonable jury could

not find that Deputy Cox’s actions were objectively unreasonable. We note again that

Deputy Cox disputes much of Vaughan’s description of the events leading up to the

shooting. For example, Cox maintains that the suspects rammed his vehicle, not once

but twice and swerved as if to run him off the road before Cox fired his weapon.

These assertions, if proven, would establish that Vaughan and Rayson represented a

threat to Cox or others on the road and suggest that it was not feasible for Cox to give



the suspect sped at another police vehicle that was approaching the scene, the officer fired his
weapon to stop the suspect’s escape. See 

that the officer acted reasonably in
applying deadly force, the Sixth Circuit concluded that the record demonstrated that the
suspect’s “ongoing felonious misconduct posed an immediate threat to the safety of officers as
well as innocent civilians.” 

Unlike the situations presented in Smith, Cole, or Scott, it
is less clear in the instant case that Vaughan and Rayson presented a immediate threat of serious
harm to the pursuing officers or other motorists.

                                                 12
the truck’s occupants prior warning. However, our obligation at this stage of the

proceeding is to view all of the evidence in the light most favorable to Vaughan.

Under this standard, genuine issues of material fact exist as to whether the suspects’

flight was likely to endanger others on the road and whether Cox had the opportunity

to warn Vaughan and Rayson before firing. Accordingly the district court erred in

granting the defendants summary judgment on the basis that no Fourth Amendment

violation occurred.

                                  Qualified Immunity

      We now turn to the question of whether Deputy Cox should be shielded from

suit based on qualified immunity. As noted above, an officer is required to have

probable cause to believe either that a suspect committed a crime involving the

infliction or threatened infliction of serious harm or that the suspect presents a threat

of serious physical harm before the officer can use deadly force. See 

, 

. The standard for resolving whether an officer who

did not have the requisite probable cause to use deadly force should still be entitled

to qualified immunity against suit is similar yet distinct. See Saucier v. Katz, ___ U.S.

___, 

, 2158 (2001). Under that standard, an officer will be entitled to

qualified immunity if he had “‘arguable probable cause’” that the suspect either had

committed a violent crime or presented a threat of serious harm. Montoute v. Carr,


                                           13


, 184 (11th Cir. 1997). To find arguable probable cause, we must

conclude that “the officer reasonably could have believed that probable cause

existed.” 

an objective standard, asking “whether the officer’s actions

are objectively reasonable in light of the facts confronting the officer, regardless of the

officer’s underlying intent or motivation.” 

      We conclude that a reasonable officer in Deputy Cox’s position could have

believed that he had sufficient probable cause to apply deadly force. At the time he

fired his weapon, Cox had clearly demonstrated to the truck’s occupants that he

wanted them to stop and had seen the driver instead speed up to avoid apprehension.

A reasonable officer in Cox’s position could have concluded that the suspects, who

were fleeing down a major highway at approximately eighty to eighty-five miles per

hour in a pickup towing a trailer laden with two personal watercraft and apparently

were not about to stop, posed a serious threat of harm to other motorists. Therefore,

while a reasonable jury could find that Deputy Cox was mistaken in his belief that he

had probable cause to use deadly force, we cannot say that a reasonable officer in

Cox’s position could not have believed that such probable cause existed.

       We also conclude that the law was not sufficiently established on the day of the

shooting that Deputy Cox knew that he needed to warn the occupants of the truck

before firing his weapon. Qualified immunity provides complete protection for


                                            14
government officials sued in their individual capacities as long as “their conduct

violates no ‘clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Lassiter v. Ala. A&M Univ., 

, 1149 (11th

Cir. 1994) (quoting Harlow v. Fitzgerald, 

, 818, 

, 2738

(1982)). The law will not be deemed “clearly established” unless it was developed at

the time of the alleged violation “in such a concrete and factually defined context to

make it obvious to all reasonable government actors, in the defendant’s place, that

‘what he is doing’ violates federal law.” 

v. Creighton, 

, 640, 

, 3039 (1987)). The pre-existing law must “truly compel

(not just suggest or allow or raise a question about)” the conclusion that “what

defendant is doing violates federal law in the circumstances.” 

(emphasis

in original).

       As noted above, the Supreme Court has held that a police officer must warn a

suspect of the potential application of deadly force “where feasible.” See 

, 105 S. Ct. at 1701. However, aside from establishing a broad mandate

to provide some form of warning, the Garner Court made no effort to define under

what factual situations such a warning would be necessary. Nor has the Supreme

Court, this court, or the Supreme Court of Georgia held that a warning was necessary

in factual circumstances similar to those in this case. See Hamilton v. Cannon, 80


                                           

, 1532 n. 7 (11th Cir. 1996) (law can be clearly established in this circuit

only by decisions of the U.S. Supreme Court, this court, or the highest court of the

state from which the case arose). In short, the law was not defined in such a concrete

way that a reasonable officer in Deputy Cox’s position would have been compelled

to conclude that it was unconstitutional to fire his weapon without first warning

Vaughan and Rayson. Accordingly, we affirm the district court’s grant of summary

judgment to Deputy Cox because he is protected by qualified immunity.

                              Substantive Due Process

      We also conclude that Vaughan’s alternative substantive-due-process claim

based on Cox’s alleged deliberately indifferent and conscience-shocking conduct lacks

merit. The Supreme Court has held that in cases where police officers are required to

make quick judgments about the proper course of action and therefore cannot

deliberate before acting, even a showing that the officer’s recklessness caused the

plaintiff’s injury is insufficient to support a substantive-due-process claim. See

County of Sacramento v. Lewis, 

, 853-54, 

, 1720 (1998).

Instead, a violation of substantive due process will be found only when a plaintiff can

show that the officer had “a purpose to cause harm unrelated to the legitimate object

of arrest . . . .” 

118 S. Ct. at 1711. Vaughan has not presented any

evidence to suggest that Cox’s actions were motivated by anything but the desire to


                                          16
arrest Rayson and Vaughan. Accordingly, we affirm the grant of summary judgment

to all defendants on Vaughan’s substantive due process claim.

                                          Conclusion

       While we conclude that a reasonable jury could find that Deputy Cox’s shooting

of Vaughan was an unreasonable seizure and therefore unconstitutional, we affirm on

qualified immunity grounds the district court’s grant of summary judgment to Cox on

Vaughan’s individual-capacity claim. We similarly affirm the grant of summary

judgment to all defendants on Vaughan’s alternative Fourteenth Amendment

substantive-due-process claim. Because it found that no constitutional violation had

occurred, the district court did not address whether a viable official capacity action

could be brought against Deputy Cox or Sheriff Yeager, as well as whether the County

could be held liable for Cox’s actions.9 We therefore vacate the judgments in favor

of Cox and Yeager in their official capacity and the judgment in favor of the County

and remand for the district court to address these issues in the first instance.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART.




       9
                The parties disagree as to whether Sheriff Yeager is an officer of the County or an
officer of the State of Georgia. It is not clear what entity is sued in Vaughan’s official-capacity
claims against Cox and Yeager.

                                                17
NOONAN, Circuit Judge, dissenting:

        Fred Lawrence Cox, an officer of the Coweta County Sheriff’s Department in

Coweta County, Georgia, drew his police cruiser parallel to a suspected thief driving

a pickup on I-85, waited between thirty and forty-five seconds and then, having rolled

down his window, discharged three rounds into the front seat of the pickup, wounding

Jerry Charles Vaughan and paralyzing him for life.

        The majority is of the opinion that Deputy Cox violated Vaughan’s right under

the Fourth Amendment to be free of unreasonable seizure by an agent of the state.

The majority is also of the opinion that Cox had time to warn the occupants of the

pickup that he would shoot if they didn’t stop. But the majority holds as a matter of

law that Cox would not have reasonably known that his shots were in violation of

human rights secured by our Bill of Rights and made binding on the states by the

Fourteenth Amendment.

        Cox as a reasonable police officer is presumed to be familiar with Tennessee

v. Garner, 

(1985). He, therefore, knew:

        1. That it is an unconstitutional use of force to shoot a residential burglar

without warning, even if it is at night and the thief has a good chance of escaping. 

        2. That such police behavior violates the Fourth Amendment even though a

state statute authorizes the behavior. 

                                           18
      3. That such police behavior is unreasonable even though the police officer has

to make a “difficult,” even “split second” evaluation of “unknowable facts.” 

      Deputy Cox had particular reason to be acquainted with the appropriate

standard because only four months before he shot Vaughan he had conducted a high

speed chase of a pickup truck driven by a suspected burglar and then discharged his

firearm into the pickup, wounding its passenger. It can scarcely have escaped the

notice of his superiors or his own conscience that there were constitutional standards

that govern the use of deadly force to seize a thief.

      The majority says the Supreme Court has not established the circumstances

under which a police officer will find it feasible to give a warning before he shoots.

Au contraire, Tennessee v. Garner has very clearly established that it is feasible to

give a warning if the officer has time before he shoots, has no reason to believe that

the suspect will shoot or otherwise injure him, and the reason for seizing the suspect

by shooting is simply to prevent his escape.

      Tennessee v. 

was applied by the Second Circuit to a Waterbury,

Connecticut policeman shooting an escaped felon without warning. Davis v. Little,

, 608 (2d Cir. 1988). Garner was not only applied but applied

retroactively; the police shooting had occurred in 1981. 

If a policeman in

Connecticut in 1981 should have known what the constitution required, should not a

policeman in Georgia in 1998?



                                          19
      Garner was a guide to the constitutionality of St. Paul, Minnesota police

shooting a mentally disturbed man armed with a knife and engaged in bizarre

behavior. Ludwig v. Anderson, 

, 471 (8th Cir. 1995). The court noted the

Supreme Court’s words that a seizure by deadly force was “unmatched” in its

intrusiveness on the human person and “frustrates the interest of the individual, and

of society, in judicial determination of guilt and punishment.” 

(quoting

). The policeman is not to be both judge and executioner. The

court noted the Supreme Court’s teaching, “It is not better that all felony suspects die

than that they escape.” Id. (quoting 

). Law enforcement is not

the supreme value. If these messages should have guided the police in Minnesota in

a situation factually different from the apprehension of a thief at night, should they not

have been equally clear to Deputy Cox?

      To be sure, Cox’s case is not on all fours with that of Memphis Police Officer

Elton Hymon of Tennessee v. Garner. Few cases are on all fours with each other.

Constitutional rights would be at the mercy of uncontrolled police if close factual

similarity were required. The test, however, is not whether “the very action in

question has previously been held unlawful,” but whether, “in the light of pre-existing

law the unlawfulness [is] apparent.” Anderson v. Creighton, 

, 640

(1987). If it was unlawful in 1985 for a Memphis policeman to shoot without warning

a suspected burglar fleeing at night, it was known to any reasonable Coweta County,

Georgia sheriff’s deputy in 1998 that it was contrary to the constitution of the United

                                           20
States to shoot three times in broad daylight into a vehicle carrying two human beings,

who were probably thieves in flight but who certainly had lives more valuable than

the property the policeman was so dangerously and so stupidly and so

unconstitutionally seeking to protect.




                                          21