The opinion
HATCHETT, Circuit Judge,
dissenting, in which KRAVITCH, Circuit Judge, joins:
In Tennessee v. Garner, 471 U.S. 1, 11 , 105 S.Ct. 1694, 1701 , 85 L.Ed.2d 1 (1985), the Supreme Court held that the use of deadly force to apprehend a fleeing felon constitutes an unreasonable seizure under the fourth amendment, unless law enforcement officers have probable cause to believe the felon poses a threat of serious bodily harm to the officers or to others. Even prior to Gamer, however, it was clear that law enforcement officers may not use deadly force to apprehend a fleeing misdemeanant. See Garner, 471 U.S. at 15 , 105 S.Ct. at 1703 (recognizing that common law prohibited the use of deadly force to apprehend a misdemeanant).
In this en banc case, the majority holds that at the time of this incident, the law was not clearly established that law enforcement officers would violate the constitutional rights of a fleeing misdemeanant if, during a high speed chase, the law enforcement officers intentionally rammed the automobile in which a misdemeanant and passenger were riding, thereby causing it to crash, killing the passenger. **
For all of the reasons expressed in the panel opinion reported at 962 F.2d 1563 (11th Cir.1992), vacated and reh’g en banc granted, 982 F.2d 472 (11th Cir.1993), I dissent.
In effect, the majority holds that common sense is insufficient to inform law enforcement officers that they may not use deadly force against a fleeing misdemeanant. Nevertheless, after this opinion, the law is clearly established that law enforcement officers may not use deadly force to apprehend a fleeing misdemeanant.