Victor Harris v. Coweta County, Georgia

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 03-15094 APRIL 20, 2005

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 01-00148-CV-WBH-3

VICTOR HARRIS,

Plaintiff-Appellee,

versus

COWETA COUNTY, GEORGIA, et al.,

Defendants,

MARK FENNINGER,

Sgt.,

TIMOTHY C. SCOTT,

Deputy,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(April 20, 2005)

Before BIRCH, BARKETT and COX, Circuit Judges.

BARKETT, Circuit Judge:

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.

2

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 in 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

1

Scott disputes this version of events. For purposes of summary judgment, we accept

Harris’ version.

3

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.

2

At the time of the chase, the Coweta County Sheriff’s Department had a vehicle pursuit

policy, which stated that “[d]eliberate physical contact between vehicles at anytime may be

justified to terminate the pursuit upon the approval of the supervisor.” R. 48, Ex. 11, at 93.

4

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. DISCUSSION 3

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

3

We reject Harris’ first argument that we are without jurisdiction over this interlocutory

appeal. This appeal goes beyond the evidentiary sufficiency of the district court’s decision.

5

“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 (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 (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

6

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). 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 (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 (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”

7

roadblock 4 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 (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. 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., 489 U.S. at 597. 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.”); Donovan v. City of Milwaukee, 17 F.3d 944, 949 (7th

Cir. 1994) (finding a Fourth Amendment “seizure” where officer intentionally

4

A deadman or “blind” roadblock is an obstacle (usually a police car or truck) placed on

the road in a manner that prevents an oncoming driver who is being pursued by the police from

knowing the road is blocked.

5

This court held in Adams v. St. Lucie County Sheriff’s Dept., 998 F.2d 923, 923 (11th

Cir. 1993) (en banc) that as of 1985 (before Brower), it was not “clearly established” that

striking a car during a police chase constituted a seizure. That case was also decided before

Saucier and did not decide the first question which must be answered in a qualified immunity

case pursuant to Saucier: whether a constitutional right had been violated. See Adams, 962 F.2d

at 1577-78 (“To resolve the question of qualified immunity, we need not decide today whether

the Fourth Amendment was violated.”)

8

backed up squad car into the path of a fleeing motorcycle and provoked collision,

sending both driver and passenger airborne).

Having determined that Harris was seized, we turn to the question of

whether the force used by Scott to effectuate the seizure was reasonable, in light of

the facts according to Harris.6 In Tennessee v. Garner, 471 U.S. 1, 8 (1985), the

Supreme Court made clear that the reasonableness of a seizure “depends on not

only when a seizure is made, but also how it is carried out.” In Garner, as in this

case, the Court considered a suit for damages under 42 U.S.C. § 1983 on the

grounds that the manner of the seizure violated Garner’s constitutional rights. The

police argued that because Garner was a fleeing felon, any force necessary to

capture him was permissible. The Supreme Court held that the use of deadly force

may not be used to seize a fleeing felon “unless it is necessary to prevent the

escape and the officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the officer or others.” Id. at

3 (emphasis supplied). The Court concluded that:

[t]he use of deadly force to prevent the escape of all felony suspects,

whatever the circumstances, is constitutionally unreasonable. It is not

6

In applying the test, we must take “the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97

(1989). The reasonableness inquiry is an objective one: “the question is whether the officers’

actions are “objectively reasonable” in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation.” Id. at 397.

9

better that all felony suspects die than that they escape. Where the

suspect poses no immediate threat to the officer and no threat to

others, the harm resulting from failing to apprehend him does not

justify the use of deadly force to do so. It is no doubt unfortunate

when a suspect who is in sight escapes, but the fact that the police

arrive a little late or are a little slower afoot does not always justify

killing the suspect. A police officer may not seize an unarmed,

nondangerous suspect by shooting him dead.

Id. at 11.

The Court recognized that limited circumstances might justify the use of

deadly force, to wit: (1) “[w]here the officer has probable cause to believe that the

suspect poses a threat of serious physical harm, either to the officer or to others,”

or “if the suspect threatens the officer with a weapon or there is probable cause to

believe that he had committed a crime involving the infliction or threatened

infliction of serious physical harm,” and (2) if deadly force is “necessary to

prevent escape,” and, (3) “if, where feasible, some warning has been given.” Id.

471 U.S. at 11-12. See also Vaughan, 343 F.3d at 1329-30. Without meeting all

of these conditions, the use of deadly force is constitutionally unreasonable.

“Deadly force” is force that creates “a substantial risk of causing death or

serious bodily injury.” Pruitt v. City of Montgomery, 771 F.2d 1475, 1479 n.10

(11th Cir. 1985) (citing Model Penal Code (MPC) § 3.11(2) (1962)).7 The Coweta

7

In Pruitt we also looked to the Alabama Code, which defined “deadly force” as “[f]orce

which, under the circumstances in which it is used, is readily capable of causing death or serious

physical injury.” 771 F.2d at 1479 n. 10.

10

County Sheriff Department’s Use of Force Policy provides an analogous definition

– “[f]orce which, under the circumstances in which it is used, is readily capable of

causing death or other serious injury.” R. 48 at Ex. 12, at 82. In Pruitt, we found

that shooting a suspect in the legs to stop him was a “use of deadly force” in the

constitutional sense, even though the officer did not necessarily shoot to kill. We

reasoned that the MPC and Alabama Code definitions of deadly force “clearly

encompass[ed]” the force used in that case because “[the officer], at the least,

purposely fired his shots at Pruitt’s legs, and in doing so used force capable of

causing serious physical injury.” 771 F.2d at 1479 n.10.

Like other instrumentalities, the use of an automobile cannot be construed in

every circumstance as deadly force. However, an automobile, like a gun, can be

used deliberately to cause death or serious bodily injury. See Pace v. Capobianco,

283 F.3d 1275, 1282 (11th Cir. 2002) (suspect “used the automobile in a manner to

give reasonable policemen probable cause to believe that it had become a deadly

weapon with which [suspect] was armed”); U.S. v. Gualdado, 794 F.2d 1533,

1535 (11th Cir. 1986) (“Almost any object which as used or attempted to be used

may endanger life or inflict great bodily harm, or which is likely to produce death

or great bodily injury, can in some circumstances be a ‘dangerous weapon.’ . . .

An automobile has been held to constitute a deadly weapon when used to run down

11

a law enforcement officer. Likewise, in this instance appellants’ boat, used in an

attempt to ram the vessel of Customs officials, also could properly be considered a

deadly weapon.”) (internal citations omitted). See also Hernandez, 340 F.3d at 624

(officer had probable cause to shoot suspect where suspect “posed an imminent

threat of serious physical harm to himself and to others as evidenced by [suspect’s]

driving head-on into [the officer’s] vehicle”); Ludwig v. Anderson, 54 F.3d 465,

473 (8th Cir. 1995) (an attempt to hit an individual (not in a vehicle) with a moving

squad car “is an attempt to apprehend by use of deadly force”); Donovan, 17 F.3d

at 949-50 (backing up of a squad car into path of a fleeing motorcycle was an

application of deadly force); Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992)

(citing United States v. Sanchez, 914 F.2d 1355 (9th Cir. 1990)) (“even unarmed,

[the plaintiff] was not harmless; a car can be a deadly weapon.”). Cf. Brower v.

County of Inyo, 884 F.2d 1316, 1317-18 (9th Cir. 1989) (assuming without

deciding that deadman roadblock to stop a fleeing vehicle during a high-speed

chase was an application of “deadly force” and applying Garner analysis).

Under an objective view of the facts of this case, there is little dispute that

the ramming of Harris’ car could constitute a use of “deadly force” and that a jury

could so reasonably conclude.8 See Anderson v. Liberty Lobby, Inc., 477 U.S.

8

See also Scott’s Depo., R. 48 at 157-58, (testifying that ramming Harris’ vehicle at high

speeds constituted a use of deadly force under the CCSD Deadly Force Policy); Fenninger’s

12

242, 252 (1986) (“The judge’s inquiry [at the summary judgment stage], therefore,

unavoidably asks whether reasonable jurors could find by a preponderance of the

evidence that the plaintiff is entitled to a verdict.”). Moreover, none of the limited

circumstances identified in Garner that might render this use of deadly force

constitutional are present here. Scott did not have probable cause to believe that

Harris had committed a crime involving the infliction or threatened infliction of

serious physical harm, nor did Harris, prior to the chase, pose an imminent threat

of serious physical harm to Scott or others.

None of the antecedent conditions for the use of deadly force existed in this

case. Harris’ infraction was speeding (73 mph in a 55 mph zone). There were no

warrants out for his arrest for anything, much less for the requisite “crime

involving the infliction or threatened infliction of serious physical harm.” Garner,

471 U.S. at 11-12. Indeed, neither Scott nor Fenninger had any idea why Harris

was being pursued. The use of deadly force is not “reasonable” in a high-speed

chase based only on speeding and evading arrest. Vaughan, 343 F.3d at 1330. The

Garner Court specifically recognized that it would be an anomaly to transform

Depo., R. 50 at 62-63 (testifying that he gave authorization to make contact with the

understanding that he was authorizing the use of deadly force). See also testimony of other

Coweta County and Peachtree City officers stating that they considered that ramming a vehicle

at 90 mph could constitute a use of “deadly force.” Reynold’s Depo., R.49 at 118-119; Yeager

Depo., R. 54 at 59; Kinsey Depo., R. 51 at 44; Ercole Depo., R. 47 at 37-40.

13

“every fleeing misdemeanant into a fleeing felon . . . solely by virtue of his flight.”

471 U.S. at 10 n.9.9 A high-speed chase of a suspect fleeing after a traffic

infraction does not amount to the “substantial threat” of imminent physical harm

that Garner requires before deadly force can be used. Garner made clear that “[i]t

is not better that all . . . suspects die than that they escape.” 471 U.S. at 11.10

We reject the defendants’ argument that Harris’ driving must, as a matter of

law, be considered sufficiently reckless to give Scott probable cause to believe that

he posed a substantial threat of imminent physical harm to motorists and

pedestrians. This is a disputed issue to be resolved by a jury. As noted by the

district court judge, taking the facts from the non-movant’s viewpoint, Harris

remained in control of his vehicle, slowed for turns and intersections, and typically

9

As recognized in Vaughan:

Under Garner, a police officer can use deadly force to prevent the escape of a fleeing

non-violent felony suspect only when the suspect poses an immediate threat of

serious harm to police officers or others. In this case, the danger presented by [the

suspects’] continued flight was the risk of an accident during the pursuit. Applying

Garner in a common-sense way, a reasonable officer would have known that

[ramming a car when both automobiles were] traveling at approximately 80 miles

per hour . . . would transform the risk of an accident on the highway into a virtual

certainty.”

343 F.3d at 1332-33.

10

We recognize that whether or not Harris would have escaped has no bearing on the

excessive force analysis, as Garner specifically based its holding on the assumption that a fleeing

suspect would escape. 471 U.S. at 11. We note, however, as did the district court, that there were

other means to track Harris down as the pursuing officers had a description of the vehicle as well

as the license plate number. We also note that absolutely no warning was given that Scott

intended to use deadly force.

14

used his indicators for turns. He did not run any motorists of the road. Cf. Pace,

283 F.3d at 1282 (officer had probable cause to believe that car had become a

deadly weapon with which defendant was armed where suspect drove through

residential neighborhood at 50 to 60 mph, swerved at oncoming police cars, nearly

hit elderly motorist head-on when driving on wrong side of road, and accelerated

towards police car roadblock forcing officer off of the road to avoid collision);

Cole v. Bone, 993 F.2d 1328, 1331-1334 (8 th Cir. 1993) (deadly force was

reasonable to stop high-speed chase where truck forced more than one hundred

cars off the road or out of the truck’s way and endangered the lives of many other

motorists during the pursuit, chase lasted 50 miles, and officers attempted to slow

the vehicle using several types of roadblocks). Nor was he a threat to pedestrians

in the shopping center parking lot, which was free from pedestrian and vehicular

traffic as the center was closed. Significantly, by the time the parties were back on

the highway and Scott rammed Harris, the motorway had been cleared of motorists

and pedestrians allegedly because of police blockades of the nearby intersections.11

11

Nor does the evidence show that Scott or the other officers were in immediate danger or

threatened with imminent harm. Accepting Harris’ version of events, Harris did not attempt to

ram, run over, side-swipe, or swerve into any of the officers (which might have put their lives in

danger in the parking lot), nor did he attempt any such conduct once he was back on the highway

immediately before the seizure. Cf. Hernandez, 340 F.3d at 623 (evidence of plaintiff’s attempts

to intentionally drive his car directly into officer’s vehicle supported finding that officer’s use of

deadly force was reasonable); Smith v. Freland, 954 F.2d. 343, 347 (6th Cir. 1992) (use of deadly

force not unreasonable where suspect “posed a major threat” to officers manning roadblock by

driving directly into them on a residential dead-end street and “had proven he would do almost

15

We conclude that ramming Harris’ vehicle under the facts alleged here, if

believed by a jury, would violate Harris’ constitutional right to be free from

excessive force during a seizure. Accordingly, a reasonable jury could find that

Scott violated Harris’ Fourth Amendment rights.

With respect to Fenninger, however, we cannot come to the same

conclusion. Although the use of deadly force cannot be authorized under Garner

without knowing that the Garner conditions have been met, the facts of this case do

not establish that Fenninger authorized deadly force. Rather, the evidence shows

that Fenninger authorized a PIT – defined by the district court as “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.” This definition assumes that the maneuver will be executed at

lower speeds by properly trained officers, and therefore can terminate a flight

“safely.” See e.g., Geoffrey Alpert’s Expert Report, R. 24 at 5 (stating that the PIT

requires a set of defined circumstances in order for it to be performed safely (i.e., at

low speeds on wide straightaways, on dry pavement by a properly trained driver));

National Law Enforcement and Corrections Technology Center Bulletin, U.S.

Department of Justice, October 1996, at 4-5 (stating that the PIT “is not applicable

anything to avoid capture”).

16

in every situation, the key to its effective use is to carefully choose a favorable spot

before attempting PIT and to first consider the possible effects on other traffic and

pedestrians”); National San Diego Police Department Use of Force Task Force

Recommendations, Executive Summary at 37 (“Utilized at speeds of 35 mph or

less, the PIT maneuver improves officer and public safety by removing the threat

of pursuit as quickly and safely as possible.”). Scott, however, chose not to

execute a PIT at all, but rather to ram the car at a very high speed from behind.

Because this ramming was not authorized by Fenninger, we cannot say that

Fenninger’s conduct – authorization of a safe PIT that was not executed – violated

Harris’ constitutional rights. Thus, since Fenninger is not liable for a constitutional

violation, summary judgment should be granted in his favor. The district court’s

ruling as to Fenninger is therefore reversed.

B. Is Scott entitled to qualified immunity?

Having determined that a jury could have reasonably found the violation of a

constitutional right by Scott, we now ask whether the law as it existed on March

29, 2001, was sufficiently clear to give reasonable law enforcement officers “fair

notice” that ramming a vehicle under these circumstances was unlawful. Hope v.

Pelzer, 536 U.S. 730, 741 (2002); Anderson v. Creighton, 483 U.S. 635, 640

(1987).

17

Scott is not entitled to summary judgment if a “general constitutional rule

already identified in the decisional law . . . appl[ied] with obvious clarity to [his

conduct].” United States v. Lanier, 520 U.S. 259, 271 (1997). It is well-

established that “general statements of the law” are perfectly capable of giving

clear and fair warning to officers even where “the very action in question has [not]

previously been held unlawful.” Id. (quoting Anderson, 483 U.S. at 640); Vinyard,

311 F.3d at 1350-51. Thus, where a general constitutional rule applies with

“obvious clarity” to a particular case, factually similar decisional law is not

required to defeat a claim of qualified immunity. Lanier, 520 U.S. at 271. We find

that Garner enunciates such a rule. 471 U.S. at 11-12.

The Garner rule applies with “obvious clarity” whenever a police officer

contemplates the use of deadly force against an unarmed and nondangerous fleeing

suspect. See Vaughan, 343 F.3d at 1323; Brosseau v. Haugen, 125 S.Ct. 596, 599

(2004) (“Of course, in an obvious case, the[] standards [enunciated in Graham v.

Connor, 490 U.S. 386 (1989), and Garner] can ‘clearly establish’ the answer, even

without a body of relevant case law”) (citing Hope, 536 U.S. at 738). This is so

because the general deadly force principle announced in Garner is “not tied to

particularized facts and can clearly establish law applicable in the future to

different sets of detailed facts.” Vinyard, 311 F.3d at 1351. Here, under the facts

18

averred by Harris, and as interpreted from the perspective of an objectively

reasonable officer, it was clear that none of the three Garner requirements for the

use of deadly force were present when Scott rammed Harris.

The absence of any Garner preconditions to the use of deadly force makes

this an “obvious” case under Garner and distinguishes its from Brosseau v.

Haugen. In Brosseau, the Supreme Court reversed the denial of qualified

immunity to an officer sued for Fourth Amendment violations under § 1983 for

shooting a suspected felon as he attempted to flee in a vehicle, where the officer

had arguable probable cause to believe that the suspect posed an imminent threat of

serious physical harm to several officers and citizens in the immediate surrounding

area.12 Unlike Harris, Haugen was a suspected felon with a no-bail warrant out for

his arrest, with whom Brosseau had a violent physical encounter prior to the

shooting. Believing that Haugen had entered the Jeep to retrieve a gun, Brosseau

12

These facts are not comparable to those in Harris. In the light most favorable to Harris,

there is no comparable evidence that Scott had arguable probable cause to believe that Harris

posed an immediate risk of death or serious danger to Scott, other officers, or nearby citizens.

Harris was being chased for a traffic violation, not a “crime involving the infliction or threatened

infliction of serious physical harm.” Garner, 471 U.S. at 11. Unlike the situation in Brosseau,

the parties were not in close physical proximity nor had they had a one-on-one struggle. In fact,

Scott and the other pursuing officers were following Harris from behind in their squad cars. At

the time of the ramming, apart from speeding and running two red lights, Harris was driving in a

non-aggressive fashion (i.e., without trying to ram or run into the officers). Moreover, unlike

Haugen, who was surrounded by officers on foot, with other cars in very close proximity in a

residential neighborhood, Scott’s path on the open highway was largely clear. The videos

introduced into evidence show little to no vehicular (or pedestrian) traffic, allegedly because of

the late hour and the police blockade of the nearby intersections. Finally, Scott issued absolutely

no warning (e.g., over the loudspeaker or otherwise) prior to using deadly force.

19

broke the windowpane of the Jeep, and attempted to stop Haugen by hitting him

over the head with the butt and barrel of her gun. Haugen was undeterred,

however, and began to take off out of the driveway, without regard for safety of

those in his immediate vicinity – the three officers on foot (Haugen at his

immediate left and two others with a K-9 somewhere nearby), a woman and her

3-year-old child in a small vehicle parked directly in front of the Jeep and 4 feet

away, and two men in a parked vehicle 20 to 30 feet away. In addition, prior to

shooting, Brosseau warned Haugen that she would shoot by pointing her gun at the

suspect while commanding him to get out of the car, and then using the gun to

shatter the glass of the car window and hit Haugen in an attempt to get the keys.

Looking to Garner, the Brosseau Court recognized that its clearly established

deadly force rule (i.e., that “it is unreasonable for an officer to ‘seize an unarmed

non dangerous suspect by shooting him dead’ ”) was limited by the Court’s further

instruction that “[w]here 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.” Brosseau,

125 S.Ct. at 598 (quoting Garner, 471 U.S. at 11). Thus, the Brosseau Court held

that Garner did not provide a reasonable officer with fair notice of a Fourth

Amendment violation in “the situation [Brosseau] confronted: whether to shoot a

20

disturbed felon, set on avoiding capture through vehicular flight, when persons in

the immediate area are at risk from that flight.” Id. at 600 (emphasis added).

The Court did acknowledge, however, that the standard in Garner can

“clearly establish” whether or not the use of deadly force is unconstitutional in the

“obvious case.” Id. at 599. The facts in Harris present just such an “obvious” case,

since the evidence shows that Scott lacked the sufficient probable cause to warrant

the use of deadly force. In this way, Harris is more like Vaughan, 343 F.3d at

(2003), than Brosseau or the cases cited therein.13 See Vaughan, 343 F.3d at 1333

(“appl[ying] Garner in a common-sense way” to hold that a reasonable officer

would have known that it was unconstitutional to use deadly force during a high-

speed pursuit where the suspect posed no immediate threat of harm to police

officers or others).14 Without the existence of an immediate threat of harm to the

officers or others that could justify the officer’s probable cause, the Garner rule

prohibiting deadly force clearly applies.

Scott argues that Garner does not apply because in that case, the officer

13

In the cases relied upon by Brosseau, the officer had arguable probable cause to believe

that the suspects presented an immediate risk of danger to the officers or others. See Brosseau,

125 S.Ct. at 600 (citing Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993), and Smith v. Freland, 954

F.2d 343 (6th Cir. 1992)).

14

The original panel opinion in Vaughan, which granted summary judgment to the

defendant officer on grounds of qualified immunity, was vacated by the Supreme Court and

remanded for reconsideration in light of the Court’s intervening decision in Hope. See Vaughan,

536 U.S. 953 (2002).

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applied the deadly force with a gun. Scott relies on our holding in Adams that in

1985, the caselaw was insufficiently developed to give notice to every objectively

reasonable officer that a police car ramming another car during a high-speed

pursuit would constitute an unreasonable seizure. However, the facts in Adams

occurred before Brower was decided, and thus, at a time before the Supreme Court

made clear that the intentional use of a vehicle to apprehend a suspect was a Fourth

Amendment seizure. That principle is now settled. Garner made clear that the use

of deadly force against an unarmed and nondangerous fleeing felony suspect was

unlawful and set out the specific criteria necessary before the application of deadly

force is warranted. This law clearly applied to the use of a vehicle to seize a

suspect at the time of the incident in this case.

We are satisfied that, under Hope, the requirement that the officers have

“fair warning” that their conduct violates a constitutional right through a general

constitutional rule, “even through the very action in question has [not] previously

been held unlawful,” has been satisfied. 536 U.S. at 740-41 (internal quotation

marks and citations omitted). A reasonable police officer would have known in

2001 that a vehicle could be used to apply deadly force,15 could be used to

effectuate a seizure,16 and that deadly force could not be used to apprehend a

15

See citations on pages 11-12, supra.

16

Brower, 489 U.S. at 596-99.

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fleeing suspect unless the conditions set out in Garner existed. Garner, 471 U.S. at

11-12. See also Vaughan, 343 F.3d at 1329-30. The Garner Court used the term

“deadly force,” not “handgun,” in enunciating its rule. Garner, 471 U.S. at 11-12

(“Thus, if the suspect threatens the officer with a weapon or there is probable cause

to believe that he has committed a crime involving the infliction or threatened

infliction of serious physical harm, deadly force may be used . . .”) (emphasis

supplied). Moreover, the opinion recognizes the obvious principle that “deadly

force” can be inflicted through other means. Id., 471 U.S. at 14 (observing that in

times when weapons were rudimentary, “[d]eadly force could be inflicted almost

solely in a hand-to-hand struggle . . .”). See Vaughan, 343 F.3d at 1332 (“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”). See also

Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir. 1998) (applying

Garner “deadly force” rule to determine whether officers were qualifiedly immune

for hog-tying suspect).

By 2001, it was well-established in this circuit that “deadly force” means

force that creates a substantial risk of causing death or serious bodily injury.

Pruitt, 771 F.2d at 1479 n.10. The CCSD policy in 2001 employed a near-identical

definition. Moreover, by 1986, we had recognized the potentially lethal nature of

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an automobile. See Gualdado, 794 F.2d at 1535, and other cases cited on pages

11-12, supra.

We are satisfied that common sense would inform any reasonable officer

that there would be substantial risks of death or bodily harm if he used his vehicle

to ram another vehicle at high speeds in the manner employed in this case. See

CCSD Use of Force Policy, R. 48, Ex. 12 at 82 (restricting the use of deadly force

to “[w]hen the Deputy reasonably believes it is necessary to defend their [sic] own

life or the life of another or to prevent grave bodily injury to themselves [sic] or

another, and all other available means of defense have failed or would be

inadequate or dangerous,” or “[w]hen necessary to prevent the commission of . . .

any felony which involves the use or threat of physical force or violence against

any person.”). See also Ga. Code Ann., § 17-4-20 (b) (“Sheriffs and peace officers

. . . may use deadly force to apprehend a suspected felon only when the officer

reasonably believes that the suspect possesses a deadly weapon or any object,

device, or instrument which, when used offensively against a person, is likely to or

actually does result in serious bodily injury; when the officer reasonably believes

that the suspect poses an immediate threat of physical violence to the officer or

others; or when there is probable cause to believe that the suspect has committed a

crime involving the infliction or threatened infliction of serious physical harm.”);

24

Garner, 471 U.S. at 10-11 (“The fact is that a majority of police departments in this

country have forbidden the use of deadly force against nonviolent suspects.”). Cf.

CCSD Pursuit Policy, R. 48, Ex. 11, at 94 (categorizing roadway barricades as the

use of deadly force and limiting their use “only by order of a supervisor and then

only as a last resort when the person pursued has proven by his method of flight a

total disregard for the lives and safety of the public”).

For the foregoing reasons, we find no reversible error in the denial of

qualified immunity to Scott at this stage in this case.

Consistent with the foregoing conclusions, the district court opinion is

REVERSED IN PART and AFFIRMED IN PART.

25

COX, Circuit Judge, specially concurring:

I do not join Judge Barkett’s opinion for the court, but concur in the

judgment.

26