JERRY CHARGES VAUGHAN 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.
No. 00-14380
United States Court of Appeals, Eleventh Circuit
January 3, 2003
D. C. Docket No. 99-00006-CV-JTC-3
CARNES, COX and NOONAN, Circuit Judges.
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:
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
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
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
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.
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
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
“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