Harris v. Coweta County, Ga.

• Decision Date: 23 December 2005
• Docket Number: No. 03-15094.,03-15094.
• Parties: Victor HARRIS, Plaintiff-Appellee, v. COWETA COUNTY, GEORGIA, et al., Defendants, Mark Fenninger, Sgt., Timothy C. Scott, Deputy, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

433 F.3d 807

Victor HARRIS, Plaintiff-Appellee, v. COWETA COUNTY, GEORGIA, et al., Defendants, Mark Fenninger, Sgt., Timothy C. Scott, Deputy, Defendants-Appellants.

No. 03-15094.

United States Court of Appeals, Eleventh Circuit.

December 23, 2005.

COPYRIGHT MATERIAL OMITTED

Philip Wade Savrin, Sun S. Choy, Freeman, Mathis & Gary, LLP, Atlanta, GA, for Defendants-Appellants.

Andrew C. Clarke, Memphis, TN, Craig Thomas Jones, Edmond & Jones, LLP, Atlanta, GA, for Harris.

Appeal from the United States District Court for the Northern District of Georgia.

ON PETITION FOR REHEARING

Before BIRCH, BARKETT and COX, Circuit Judges.

BARKETT, Circuit Judge:

We sua sponte grant rehearing in this case, vacating our prior opinion, 406 F.3d 1307 (11th Cir.2005), in its entirety and substituting the following in its place.

Coweta County Deputy Timothy Scott ("Scott") and Coweta County Sergeant Mark Fenninger ("Fenninger") appeal from the denial of summary judgment on their claims of qualified immunity on Victor Harris' ("Harris") 42 U.S.C. § 1983 action based on Harris' allegations that Scott violated his Fourth Amendment rights by using excessive force during a high-speed car chase, and that Fenninger violated his Fourth Amendment rights by authorizing that use of force.

I. BACKGROUND

Viewed in the light most favorable to the non-movant, Harris, the facts pertaining to the chase that covered approximately nine miles and lasted approximately six minutes are as follows. Between 10:30 and 11:00 pm on March 29, 2001, a Coweta County deputy clocked Harris' vehicle at 73 miles per hour in a 55 mile-per-hour zone. The vehicle that Harris was driving was registered in Harris' name and at his proper address. Although the deputy flashed his blue lights, Harris continued driving. The deputy pursued, and in attempting to flee, Harris drove in excess of the speed limit, at speeds between 70 and 90 miles per hour, passed vehicles on double yellow traffic control lanes, and ran through two red lights. Harris stayed in control of his vehicle, utilizing his blinkers while passing or making turning movements.

After Harris refused to stop, the deputy radioed dispatch and reported that he was pursuing a fleeing vehicle, and broadcast its license plate number. He did not relay that the underlying charge was speeding. Scott heard the radio communication and joined the pursuit, as it proceeded toward the county line into Fayette County, Georgia.

After crossing into Peachtree City in Fayette County, Harris slowed down, activated his blinker, and turned into a drugstore parking lot located in a shopping complex, where two Peachtree City police vehicles were already stationed. Scott proceeded around the opposite side of the complex in an attempt to prevent Harris from leaving the parking lot and getting onto Highway 74, driving his vehicle directly into Harris' path. Harris attempted to turn to the left to avoid hitting Scott's car, but the two vehicles came into contact with each other, causing minor damage to Scott's cruiser.¹ Harris then entered Highway 74 and continued to flee southward at a high speed.

Through Peachtree City, Scott took over as the lead vehicle in the chase. After getting on Highway 74, Scott radioed a general request for "Permission to PIT him." A "PIT" ("Precision Intervention Technique") maneuver is a driving technique designed to stop a fleeing motorist safely and quickly by hitting the fleeing car at a specific point on the vehicle, which throws the car into a spin and brings it to a stop.² Harris' expert's report attests that "national law enforcement standards require than [sic] an officer be trained in all deadly force applications before being permitted to use those applications." R. 24, at 9-10. Scott had not been trained in executing this maneuver. He and the other Coweta officers did not undergo a training on PITs until after the incident.

Fenninger was the supervisor who responded to Scott's radio call and granted Scott permission to employ the PIT, telling him to: "Go ahead and take him out. Take him out." Fenninger—who tuned into the transmissions about the pursuit late—did not know how the pursuit originated, the speeds of the vehicles, the numbers of motorists or pedestrians on the roadways, or how dangerously Harris was driving. Fenninger also did not request further details about the pursuit prior to authorizing the PIT.

After receiving approval, Scott determined that he could not perform the PIT maneuver because he was going too fast. Instead, however, he rammed his cruiser directly into Harris' vehicle, causing Harris to lose control, leave the roadway, run down an embankment, and crash. As a result, Harris was rendered a quadriplegic.

II. STANDARD OF REVIEW

We review the denial of summary judgment de novo. Cagle v. Sutherland, 334 F.3d 980, 985 (11th Cir.2003). In conducting our review, we apply the same legal standards as the district court. Vaughan v. Cox, 343 F.3d 1323, 1328 (11th Cir.2003). Thus, we view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in his favor. Id. Summary judgment is not appropriate unless the evidence demonstrates that "there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ.P. 56(c).

A defendant's entitlement to qualified immunity is a question of law, also to be reviewed de novo. Cagle, 334 F.3d at 985.

III. DISCUSSION³

As we have often stated, "[q]ualified immunity offers complete protection for 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." Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th Cir.2002) (internal citations and quotation marks omitted). This immunity "allow[s] government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation[.]" Id. (citing Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Thus, in order to receive its protections, the government official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred. Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir.2004) (citing Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002)). In this case, there is no dispute that when Scott rammed Harris' vehicle during the high-speed pursuit on March 29, 2001, he did so as part of his discretionary functions as deputy of the Coweta County Sheriff's Department (CCSD). It is likewise clear (and uncontested) that Fenninger's authorization of Scott's use of a PIT maneuver was a decision made in his capacity as supervisor to Scott and sergeant of the CCSD.

The defendants having established their eligibility for qualified immunity, the burden then shifts to the plaintiff to show that qualified immunity is not appropriate. Lee, 284 F.3d at 1194. This next step consists of a two-part inquiry, set forth in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First we ask, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. If, assuming the plaintiff's allegations were true, no such right would have been violated, the analysis is complete. However, if a constitutional violation can be made out on the plaintiff's facts, we then must determine "whether, at the time of the incident, every objectively reasonable police officer would have realized the acts violated already clearly established federal law." Garrett v. Athens-Clarke County, 378 F.3d 1274, 1278-79 (11th Cir.2004) (citing Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272). We address these questions in turn.

A. Did Scott and Fenninger Violate Harris' Constitutional Right To Be Free From An Unreasonable Seizure?

Harris alleges that Scott violated his Fourth Amendment right to be "free from the use of excessive force in the course of an investigatory stop or other `seizure' of the person." Kesinger, 381 F.3d at 1248 (citing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). To establish an excessive force claim, Harris must show first that he was subjected to a "seizure" within the meaning of the Fourth Amendment. Vaughan, 343 F.3d at 1328.

The district court concluded, and Scott does not contest, that Harris was seized by Scott when the latter rammed his vehicle, causing him to lose control and crash. Pursuant to Brower v. County of Inyo, 489 U.S. 593, 596-99, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), using a vehicle to stop and apprehend a suspect is a seizure. In Brower, the Supreme Court held that a fleeing suspect who fatally crashed into a so-called "deadman" roadblock⁴ during a high-speed chase had been "seized" by the police who set up the roadblock.⁵ The Court defined a seizure as "a governmental termination of freedom of movement through means intentionally applied." Brower, 489 U.S. at 597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (emphasis omitted). The Court reasoned that "it [is] enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result ... Brower was meant to be stopped by the physical obstacle of the roadblock—and... was so stopped." Id. at 599, 109 S.Ct. 1378, 103 L.Ed.2d 628. The Court noted that if "the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect's freedom of movement would have been a seizure." Id. at 597, 109 S.Ct. 1378, 103 L.Ed.2d 628. See also Hernandez v. Jarman, 340 F.3d 617, 623 (8th Cir.2003) ("As we have held, a Fourth Amendment seizure occurs as a result of a car collision only where the police officer intended the collision to be the result.")...