264 F.3d 1027 (11th Cir. 2001), 00-14380, Vaughan v Cox

Docket Nº:00-14380
Citation:264 F.3d 1027
Party Name:JERRY CHARLES VAUGHAN, Plaintiff-Appellant, v. 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.
Case Date:August 31, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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264 F.3d 1027 (11th Cir. 2001)

JERRY CHARLES VAUGHAN, Plaintiff-Appellant,


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.

No. 00-14380

United States Court of Appeals, Eleventh Circuit

August 31, 2001

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Appeal from the United States District Court for the Northern District of Georgia, D. C. Docket No. 99-00006-CV-JTC-3

Before CARNES, COX and NOONAN[*], Circuit Judges.

COX, Circuit Judge:

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.


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

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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. 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.

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.

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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 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) 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., 182 F.3d 1291, 1293 (11th Cir. 1999). We will address each of the issues raised by Vaughan in turn.


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, 489 U.S. 593, 596, 109 S.Ct. 1378, 1381 (1989). It is clear that "apprehension by the use of deadly

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force is a seizure . . . ." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 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, 499 U.S. 621, 626, 111 S.Ct. 1547, 1550 (1991). Undeniably, Cox's firing of his weapon was an...

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