COMMUNITY STATE BANK, Cash America Financial Services, Inc., Cash America International, Inc., Georgia Cash America, Inc., Daniel R. Feehan, Petitioners-Appellants, v. James STRONG, Respondent-Appellee.
No. 06-11582.
United States Court of Appeals, Eleventh Circuit.
Sept. 10, 2007.
508 F.3d 576
Because a timely notice of appeal in a civil case is a jurisdictional prerequisite to our review, see Alva v. Teen Help, 469 F.3d 946, 952-53 (10th Cir.2006), we GRANT the defendants’ motion to DISMISS the appeal.
John G. Parker, Paul, Hastings, Janofsky & Walker, LLP, Christopher J. Willis, Daniel D. Zegura, Richard H. Sinkfield, Rogers & Hardin, LLP, Atlanta, GA, for Petitioners-Appellants.
Jennifer Auer Jordan, Roy E. Barnes, John Raymond Bevis, The Barnes Law Group, LLC, Marietta, GA, for Respondent-Appellee.
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.
BY THE COURT:
A member of this Court in active service having requested a poll on the suggestions of rehearing en banc and a majority of the judges in this Court in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the above cause shall be reheard by this court en banc. The previous panel‘s opinion is hereby VACATED.
Robert R. LONG, Kelly L. Long, as Personal Representatives of the Estate of Bryan L. Long, deceased, Plaintiffs-Appellees, v. Jimmie Ray SLATON, Jr., Ronnie Willis, Defendants-Appellants.
No. 06-14439.
United States Court of Appeals, Eleventh Circuit.
Nov. 16, 2007.
508 F.3d 576
Bart Gregory Harmon, Kendrick Emerson Webb, Charles Richard Hill, Jr., Webb & Eley, P.C., Montgomery, AL, for Defendants-Appellants.
John Allen Brinkley, Brinkley & Chestnut, Huntsville, AL, Marc H. Bardack, Bovis, Kyle & Burch, LLC, Atlanta, GA, for Plaintiffs-Appellees.
EDMONDSON, Chief Judge:
This appeal involves deadly force, the Fourth Amendment, and qualified immunity. Jimmie Slaton (“Deputy Slaton” or “Slaton“) and Ronnie Willis (“Sheriff Willis” or “Willis“) (collectively, “Defendants“) appeal the district court‘s denial of their motion to dismiss on qualified immunity grounds this section 1983 suit arising out of the death of Bryan Long (“Long“). Dr. Robert R. Long (“Long‘s father“) and Kelly Long (collectively, “Plaintiffs“), representatives of Long‘s estate, filed suit against Defendants in their individual capacities. Plaintiffs’ complaint alleges that Deputy Slaton shot and killed Long in violation of Long‘s “civil rights.”1 Because we conclude that Plaintiffs’ complaint fails to state a claim for a violation of Long‘s Fourth Amendment rights and that the applicable law was not already clearly established at the pertinent time, we reverse the district court‘s order.
* Honorable J. Owen Forrester, United States District Judge for the Northern District of Georgia, sitting by designation.
I. Background
The complaint alleges these facts.2 In May 2005, Long‘s father, a medical doctor, went to the Lauderdale County Probate Court seeking to have Long committed to a hospital because Long was suffering from a “psychotic episode.” But Long‘s father was unable to have Long committed because of a lack of available hospital beds. While returning to his residence, Long‘s father called the Lauderdale County Sheriff‘s Department and requested assistance due to Long‘s psychosis. Upon arrival at his home, Long‘s father waited in his vehicle for help to arrive.
Deputy Slaton responded to the call and arrived at the Long residence shortly thereafter. Slaton, who was alone, got out of his marked sheriff‘s cruiser,3 leaving the keys in the ignition and the driver‘s door open. Slaton then spoke to Long‘s father, who explained his desire that Long be detained due to Long‘s psychosis. When Deputy Slaton asked Long‘s father if Long had been physically violent with him, the father responded, “no.”
II. Discussion
We review de novo a trial court‘s denial of a motion to dismiss a complaint on qualified immunity grounds.5 Snider v. Jefferson State Cmty. Coll., 344 F.3d 1325, 1327 (11th Cir.2003). In determining whether Plaintiffs’ complaint alleges the violation of a clearly established right, we accept the allegations in the complaint as true and draw all reasonable inferences therefrom in favor of the Plaintiffs. Id. We first ask whether a constitutional violation occurred; we then ask whether the violation was already clearly established by the law at the time. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001).
A. Excessive Force and the Fourth Amendment
We first examine whether Deputy Slaton‘s use of deadly force was excessive
In the context of deadly force, the Supreme Court has set out examples of factors that justify the use of such force:
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon ... deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985). Garner says something about deadly force but not everything, especially when facts vastly different from Garner are presented. The Supreme Court has cautioned that ”Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer‘s actions constitute ‘deadly force.‘” Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1777, 167 L.Ed.2d 686 (2007).
Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Graham, 109 S.Ct. at 1872 (quoting Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 1861, 60 L.Ed.2d 447 (1979)) (alteration in original), we must “slosh our way through the factbound morass of ‘reasonableness.‘” Scott, 127 S.Ct. at 1778. Therefore, determining whether “the use of a particular type of force in a particular situation” is “reasonable” in the constitutional sense6 requires a court to “balance the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Scott, 127 S.Ct. at 1777, 1778 (quoting United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)).
In examining whether an officer‘s use of deadly force is reasonable, we recognize that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 109 S.Ct. at 1872. So “[w]e are loath to second-guess the decisions made by police officers in the field.” Vaughan v. Cox, 343 F.3d 1323, 1331 (11th Cir.2003).
Accepting the facts as alleged in the complaint as true, we conclude that Deputy Slaton‘s force was objectively reasonable under the Fourth Amendment. Although Slaton‘s decision to fire his weap-
We stress these facts: Long was mentally unstable; and he had taken control of not just any vehicle, but a police cruiser. This police cruiser was marked as a Lauderdale County Sheriff‘s patrol car and was equipped with a flashing light bar on the roof, two police radios, and other emergency equipment. Under Alabama law, a motor vehicle is, at least, potentially a “dangerous instrument“—that is, an instrument “highly capable of causing death or serious bodily injury.”
Even if we accept that the threat posed by Long to Deputy Slaton was not immediate in that the cruiser was not moving toward Slaton when shots were fired,7 the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect. See Pace, 283 F.3d at 1282 (concluding at the summary judgment stage that officers did not use excessive force in shooting a suspect who had stopped his vehicle after a high-speed chase—even though the court accepted that, at the time of the shooting, the suspect had neither tried to run over nor aimed the vehicle at officers); Blanford v. Sacramento County, 406 F.3d 1110, 1116-19 (9th Cir.2005) (concluding that officers did not use excessive force in shooting a suspect who was carrying a sword, had failed to comply with orders to drop the sword, and was attempting to enter a house that—as far as the officers knew—might or might not have been empty, even though the suspect was at all times walking away from the officers and did not actually threaten the officers—or anyone else—with the weapon); cf. Montoute v. Carr, 114 F.3d 181, 185 (11th Cir.1997) (“[A]n officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force.“).8
Although at the point of the shooting Long had not yet used the police cruiser as a deadly weapon, Long‘s unstable frame of mind, energetic evasion of the deputy‘s physical control, Long‘s criminal act9 of
Protecting the innocent public from risks that are not remote is a government interest. See Scott, 127 S.Ct. at 1778 (noting the importance of the relative culpability of a fleeing driver who had ignored officers’ warnings to stop as compared to the innocent public). Even a quick check of only published appellate decisions shows the risk of serious harm to the public in the circumstances facing Deputy Slaton was not imaginary. In many cases, people have stolen police vehicles and used them to engage in further criminal conduct or otherwise to harm innocent people. See, e.g., People v. Hyde, 166 Cal.App.3d 463, 212 Cal.Rptr. 440 (Cal.Ct.App.1985) (man stole police vehicle, used it to stalk victim by impersonating police officer, and later pulled over, kidnaped, and murdered victim); Chapman v. City of Quitman, 954 So.2d 468 (Miss.Ct.App.2007) (plaintiff sued city after member of angry mob snuck past officer, stole police cruiser, and used it to run down plaintiff who saw the cruiser approaching but thought it was driven by officers coming to his aid); Rios v. City of Del Rio, 444 F.3d 417 (5th Cir.2006) (city police chief and officer were sued after escaped prisoner took possession of officer‘s patrol car and later crashed it into and severely injured customs enforcement officer assisting city police in chasing prisoner); Griffin v. State, 9 P.3d 301 (Alaska Ct.App.2000) (man resisted arrest, stole police cruiser, put cruiser in reverse and rammed another cruiser injuring two officers inside, and attempted to run down other officers who shot and injured man, after which man smashed through officers’ cruisers and led police on high-speed chase); Bryant v. County of Los Angeles, 26 Cal.App.4th 919, 32 Cal.Rptr.2d 285 (Cal.Ct.App.1994) (county and sheriff‘s deputy were sued after man stole sheriff‘s patrol car, drove away, and caused accident that left another person a quadriplegic); Duarte v. City of San Jose, 100 Cal.App.3d 648, 161 Cal.Rptr. 140 (Cal.Ct.App.1980) (police officers and city were sued by homeowner who was hit by a stolen police car while he was mowing his lawn); Pile v. City of Brandenburg, 215 S.W.3d 36 (Ky.2006) (city was sued after officer left inebriated man in back of police cruiser with engine running and emergency lights flashing, after which man took control of cruiser, sped away, and crashed into another vehicle, killing himself as well as woman in other vehicle); Thomas v. Gallant Ins. Co., 733 So.2d 1236 (La.Ct.App.1999) (man took control of idling police vehicle, sped off to escape from officers, and then crashed head-on into another vehicle); State Farm Mut. Auto. Ins. Co. v. Montagna, 874 A.2d 406 (Me.2005) (man ran from sheriff‘s detective, stole detective‘s cruiser, and then drove cruiser at and hit detective); People v. Vasquez, 129 Mich.App. 691, 341 N.W.2d 873 (1983) (man took police car, drove away from police at excessive speeds, disobeyed traffic signals, and crashed into and killed
The Supreme Court also has noted that providing a warning to a fleeing suspect weighs in favor of the reasonableness of using deadly force. See Garner, 105 S.Ct. at 1701 (noting the importance of a warning if feasible). Deputy Slaton gave clear warning of the intent to use deadly force before firing his weapon. Under the circumstances, we do not accept that Slaton‘s use of deadly force to stop Long from fleeing in the sheriff‘s cruiser was beyond the outside border of constitutionally reasonable conduct.10
Plaintiffs argue that Long‘s death could have been avoided by using alternative means of apprehending Long such as shooting out the tires of the cruiser, using spike strips, or allowing Long to leave and then tracking the easily identifiable cruiser and arresting Long at a different location. We suppose that other means of stopping Long‘s escape existed that, if used, also might have prevented Long from harming others. But considering the unpredictability of Long‘s behavior and his fleeing in a marked police cruiser, “[w]e think the police need not have taken that chance and hoped for the best.” See Scott, 127 S.Ct. at 1778 (responding to the argument that the police could have avoided the accident had they ceased their pursuit). The circumstances made the time to think short. Even if Deputy Slaton‘s decision to fire his weapon was not the best available means of preventing Long‘s escape and preventing potential harm to others, we conclude that Slaton‘s use of deadly force was not an unreasonable means of doing so.
For these reasons, Plaintiffs’ complaint fails to state a claim for the violation of Long‘s Fourth Amendment rights.
B. Qualified Immunity
Even if Slaton‘s use of deadly force was excessive under the Fourth Amendment, we conclude alternatively that Defendants are entitled to qualified immunity because they, especially given the circumstances, violated no clearly established
Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); accord Bashir v. Rockdale County, 445 F.3d 1323, 1327 (11th Cir.2006). Defendants, in their individual capacities, are entitled to qualified immunity unless their “supposedly wrongful act was already established to such a high degree that every objectively reasonable official standing in the defendant‘s place would be on notice that what the defendant official was doing would be clearly unlawful given the circumstances.” Pace, 283 F.3d at 1282.
Pointing to law pre-existing the events in the pertinent case, Plaintiffs have the burden of demonstrating that Defendants—at the pertinent time and given the specific circumstances of this case—had fair notice that their conduct would violate clear federal law. Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir.2002). To demonstrate that the law at the time clearly established that Defendants’ conduct would violate the Constitution, Plaintiffs might point to either (1) earlier case law from the Supreme Court, this Court, or the highest court of the pertinent state that is materially similar to the current case and therefore provided clear notice of the violation or (2) general rules of law from a federal constitutional or statutory provision or earlier case law that applied with “obvious clarity” to the circumstances, establishing clearly the unlawfulness of Defendants’ conduct. See Marsh, 268 F.3d at 1031-33 & nn. 9-10; Willingham v. Loughnan, 321 F.3d 1299, 1301-03 (11th Cir.2003); Vinyard, 311 F.3d at 1349-53. And “where the applicable legal standard is a highly general one, such as ‘reasonableness,’ preexisting case law that has applied general law to specific circumstances will almost always be necessary to draw a line that is capable of giving fair and clear notice that an official‘s conduct will violate federal law.” Thomas v. Roberts, 323 F.3d 950, 954 (11th Cir.2003).
Plaintiffs have failed to cite controlling and materially similar case law that would establish that Deputy Slaton‘s use of deadly force was clearly unlawful. Plaintiffs cite Vaughan, 343 F.3d 1323, as a materially similar case. But it is factually too different.
We do not read Vaughan as capable of putting every objectively reasonable officer on notice that deadly force could not be used in the circumstances presented in this case. In Vaughan, this Court concluded that an officer used unreasonable force when he, without warning, discharged his firearm at suspects fleeing in a stolen truck. See id. at 1330-32. The present case has, at least, three additional facts not present in Vaughan and that an objectively reasonable police officer could believe “might make a difference” for whether the conduct in the present instance would violate federal law. See generally Marsh, 268 F.3d at 1032 (discussing when pre-existing precedents cannot clearly establish the applicable law). In this case, unlike Vaughan, the fleeing driver was in an unstable frame of mind, had taken possession of a marked police cruiser, and had been warned that deadly force would be used if he did not leave the cruiser.
Plaintiffs also attempt to rely on Garner, 471 U.S. 1, 105 S.Ct. 1694, as having clearly established broad principles that cover the contours of this case with obvious clarity. As the Supreme Court recently pointed out, however, “[w]hatever Garner said about the factors that might have justified shooting the suspect in that case, such ‘preconditions’ have scant applicability to this case, which has vastly different facts.”11 Scott, 127 S.Ct. at 1777.
[W]hen we look at decisions such as Garner and Graham, we see some tests to guide us in determining the law in many different kinds of circumstances; but we do not see the kind of clear law (clear answers) that would apply with such obvious clarity to the circumstances of this case that only an incompetent officer or one intending to violate the law could possibly fail to know that what the police did here violated federal law. Pace, 283 F.3d at 1283 (shooting of a fleeing suspect in vehicle); accord Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) (same). Simply put, the Supreme Court‘s decision in Garner—which does not involve a fleeing motor vehicle—offered little insight on whether an officer, consistently with the Fourth Amendment, may use deadly force to stop a man who has stolen a police cruiser and has been given clear warnings about the use of deadly force. Garner does not apply to the circumstances of this case with obvious clarity.
Nor does this case present otherwise an obvious violation of Long‘s rights under the Fourth Amendment. We do not believe that every objectively reasonable officer in Deputy Slaton‘s position must have known that firing his weapon at the police cruiser under these circumstances would be an unconstitutional application of force. Results in these kinds of cases—involving reasonableness and balancing—are extremely fact dependent; at worst, Deputy Slaton‘s acts fell within the “hazy border between excessive and acceptable force.” Saucier, 121 S.Ct. at 2158 (quoting Priester v. Riviera Beach, 208 F.3d 919, 926-27 (11th Cir.2000)). Therefore, because preexisting law did not provide fair warning that shooting at Long in this situation would violate federal law, Defendants are entitled to qualified immunity.12
III. Conclusion
Accepting the allegations in Plaintiffs’ complaint as true, we conclude that Plaintiffs have failed to state a claim for a violation of Long‘s Fourth Amendment rights. Deputy Slaton‘s use of deadly force was constitutionally reasonable under the circumstances. Even if Plaintiffs could establish that Slaton‘s use of deadly
REVERSED and REMANDED.
FORRESTER, District Judge, concurring in part and dissenting in part:
I respectfully dissent from the opinion of the majority in the action against Deputy Slaton.
To the recitation of the facts by the majority, I would add that Deputy Slaton had dealt with the deceased before without any major problem and that the shooting occurred in a fairly rural area several miles from Florence, Alabama.
As I understand the law, the use of deadly force is reasonable only where there is a serious threat of imminent or immediate physical harm to the officer or others. See, e.g., Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Beshers v. Harrison, 495 F.3d 1260, 1266-67 (11th Cir.2007); Robinson v. Arrugueta, 415 F.3d 1252, 1256-57 (11th Cir.2005); Vaughan v. Cox, 343 F.3d 1323, 1330 (11th Cir.2003); McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1246 (11th Cir.2003). I can find no arguable probable cause for such a belief in this case. To be sure, with the deceased in possession of a patrol car, the outcome of these events is uncertain, but the possibility that a nonviolent fleeing felon will later pose a threat of physical harm to others is remote and highly speculative.
I do not believe that this officer is entitled to qualified immunity either. Vaughan provides notice that seizing a fleeing felon in a vehicle by shooting him is unreasonable. Although there are differences between that case and this, Vaughan is not “fairly distinguishable.” See Vinyard v. Wilson, 311 F.3d 1340, 1351-53 (11th Cir.2002). In Vaughan, the truck was northbound on I-85 between Newnan and Atlanta traveling at speeds exceeding eighty miles per hour. At one point it rammed a police vehicle which was attempting a rolling roadblock. These facts present circumstances more fraught with immediate threat than those in the instant case, and this court determined that a jury could find that the officers in Vaughan violated the suspect‘s Fourth Amendment rights and were not entitled to qualified immunity.1
J. OWEN FORRESTER
UNITED STATES DISTRICT JUDGE
David T. FISCHER, individually, Plaintiff-Appellant, Alfred J. Fisher, Intervenor-Plaintiff-Appellant, v. S/Y NERAIDA, her engines, tackle, rigging, dinghies, equipment, appurtenances, furniture, etc., in rem, Neraida Co., L.P., a Michigan Limited Partnership, Peter Siavrakas, in personam, Defendants-Intervenor-Defendants-Appellees.
No. 06-10661.
United States Court of Appeals, Eleventh Circuit.
Nov. 19, 2007.