Vaughan v. Cox, No. 00-14380.

• Decision Date: 03 January 2003
• Docket Number: No. 00-14380.
• Citation: 316 F.3d 1210
• Parties: Jerry Charges 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

316 F.3d 1210

Jerry Charges 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.

No. 00-14380.

United States Court of Appeals, Eleventh Circuit.

January 3, 2003.

Jeffrey J. Dean, Waycaster, Morris, Johnson & Dean, Dalton, GA, for Plaintiff-Appellant.

Frank M. Lowrey, IV, Bondurant, Mixson & Elmore, LLP, Bruce A. Taylor, Jr., Drew, Eckl & Farnham, Atlanta, GA, for Defendants-Appellees.

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before CARNES, COX and NOONAN^*, Circuit Judges.

COX, Circuit Judge:

The issue presented by this case is whether Deputy Fred Lawrence Cox is entitled to qualified immunity and, consequently, is shielded from Jerry Charges 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. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (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, 85 L.Ed.2d 1 (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, 150 L.Ed.2d 272 (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 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, 97 L.Ed.2d 523 (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, 122 S.Ct. at 2516. We reconsider the qualified immunity issue in light of Hope.²

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, 137 L.Ed.2d 432 (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, 104 L.Ed.2d 443 (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 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 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.

We reinstate our prior decision in its entirety and supplement, by this opinion, our previous discussion of qualified immunity.

SO ORDERED.

* Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Circuit, sitting by designation.

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).

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...