406 F.

3d 1307

Victor HARRIS, Plaintiff-Appellee,

v.
COWETA COUNTY, GEORGIA, et al., Defendants,
Mark Fenninger, Sgt., Timothy C. Scott, Deputy, DefendantsAppellants.
No. 03-15094.

United States Court of Appeals, Eleventh Circuit.

April 20, 2005.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Philip Wade Savrin, Sun S. Choy, Freeman, Mathis & Gary,
LLP, Atlanta, GA, for Defendants-Appellants.
Andrew C. Clarke, Memphis, TN, Craig Thomas Jones, Edmond & Jones,
LLP, Atlanta GA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Northern District of
Georgia.
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
2

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.
3

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
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." Fenningerwho tuned into the transmissions about the pursuit
latedid 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.
7

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.

II. STANDARD OF REVIEW

8

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 nonmoving 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. DISCUSSION3
10

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
"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, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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.

11

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, 121 S.Ct. 2151, 150
L.Ed.2d 272 (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 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, 121 S.Ct. 2151).
We address these questions in turn.

12

A. Did Scott and Fenninger Violate Harris' Constitutional Right To Be Free

From An Unreasonable Seizure?

13

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, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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.

14

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, 109 S.Ct.
1378, 103 L.Ed.2d 628 (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" roadblock4 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, 109 S.Ct. 1378
(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 roadblockand ... was so stopped." Id. at 599, 109 S.Ct. 1378.
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, 109
S.Ct. 1378. 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 backed up squad car
into the path of a fleeing motorcycle and provoked collision, sending both
driver and passenger airborne).
15

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, 105 S.Ct.
1694, 85 L.Ed.2d 1 (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, 105 S.Ct. 1694
(emphasis supplied). The Court concluded that:

16

[t]he use of deadly force to prevent the escape of all felony suspects, whatever
the circumstances, is constitutionally unreasonable. It is not 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.

17

Id. at 11, 105 S.Ct. 1694.

18

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, 105 S.Ct. 1694. See also Vaughan, 343 F.3d
at 1329-30. Without meeting all of these conditions, the use of deadly force is
constitutionally unreasonable.
19

"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 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.

20

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"); United
States 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 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).
21

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.
242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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.

22

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, 105 S.Ct. 1694. 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 "every fleeing misdemeanant into a fleeing
felon ... solely by virtue of his flight." 471 U.S. at 10 n. 9, 105 S.Ct. 1694.9 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, 105 S.Ct. 1694.10

23

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 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 (8th 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
24

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.

25

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 PITdefined 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 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

conductauthorization of a safe PIT that was not executedviolated 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.
26

B. Is Scott entitled to qualified immunity?

27

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, 122 S.Ct. 2508, 153 L.Ed.2d 666
(2002); Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987).

28

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, 117 S.Ct. 1219, 137
L.Ed.2d 432 (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, 107 S.Ct. 3034); 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, 117 S.Ct. 1219.
We find that Garner enunciates such a rule. 471 U.S. at 11-12, 105 S.Ct. 1694.

29

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, ___ U.S.
___, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) ("Of course, in an obvious
case, the[] standards [enunciated in Graham v. Connor, 490 U.S. 386, 109 S.Ct.
1865, 104 L.Ed.2d 443 (1989), and Garner] can `clearly establish' the answer,
even without a body of relevant case law") (quoting Hope, 536 U.S. at 738, 122
S.Ct. 2508). 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 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.

30

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 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 the 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.

31

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, 105 S.Ct. 1694). 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 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 supplied).

32

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
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.
33

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

34

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, 122
S.Ct. 2508 (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 fleeing suspect unless the conditions set out in Garner
existed. Garner, 471 U.S. at 11 12, 105 S.Ct. 1694. 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, 105 S.Ct. 1694 ("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, 105 S.Ct. 1694 (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).

35

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 an automobile. See Gualdado, 794 F.2d at 1535, and other cases cited on
pages 1314-15, supra.

36

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."); Garner, 471 U.S.
at 10-11, 105 S.Ct. 1694 ("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").

37

For the foregoing reasons, we find no reversible error in the denial of qualified
immunity to Scott at this stage in this case.

38

Consistent with the above conclusions, the district court opinion is

39

REVERSED IN PART and AFFIRMED IN PART.

Notes:

Notes:
1

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

accept Harris' version

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

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

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

This court held inAdams 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 157778 ("To resolve the question of qualified immunity, we need not decide today
whether the Fourth Amendment was violated.")

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, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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, 109 S.Ct. 1865.

InPruitt 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.

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 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.
9

As recognized inVaughan:
"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, asGarner specifically based its holding on the
assumption that a fleeing suspect would escape. 471 U.S. at 11, 105 S.Ct. 1694.
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.

11

Nor does the evidence show thatScott 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 anything to avoid capture").

12

These facts are not comparable to those inHarris. 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, 105 S.Ct. 1694. 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 nonaggressive 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.
13

In the cases relied upon inBrosseau, 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 inVaughan, 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 v. Cox, 536 U.S. 953, 122 S.Ct.
2653, 153 L.Ed.2d 830 (2002).

15

See citations on pages 1314-15, supra.

16

Brower, 489 U.S. at 596-99, 109 S.Ct. 1378.

COX, Circuit Judge, specially concurring:

40

I do not join Judge Barkett's opinion for the court, but concur in the judgment.