dissenting:
The petition for a writ of certiorari in this case was granted, and the judgment of this court was vacated. Vaughan v. Cox, — U.S. -, 122 S.Ct. 2653, 153 L.Ed.2d 830 (June 28, 2002). The case was remanded to us “for further consideration in light of Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).” Hope v. Pelzer had reversed another decision by the Eleventh Circuit Court of Appeals, 240 F.3d 975 (11th Cir.2001). That case had held that prison officials in Alabama would not be on notice that tying a prisoner to a hitching post for seven hours, his back bare to the sun, his wrists tortured by handcuffs that swelled with the heat, while he was denied any release to urinate or defecate and was denied any water by a guard who gave water from a pitcher to a dog but spilled it on the ground before the prisoner, was cruel and unusual punishment. The Eleventh Circuit in Hope found the conduct of the prison officials unconstitutional but held that there were no cases with “materially similar facts” that would have put the officials on notice that their conduct was cruel and unusual. Id. at 981. Reversing the circuit court decision, the Supreme Court noted that the “focus in the case was the Eleventh Circuit’s position that a violation is not clearly established unless it is the subject of a prior case of liability on facts ‘materially similar’ to those charged.” The Supreme Court noted that the circuit court’s decision “exposes the danger of a rigid overreliance on factual similarity.” Hope, 122 S.Ct. at 2517. The Court went on to cite analogous binding Fifth Circuit precedents and to add: “The obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment.” Id. at 2511.
Invited to give “further consideration” to Vaughan’s case in the light of Hope, the majority comes to the same conclusion it reached before. The majority states: “Whether Deputy Cox had arguable probable cause, whether deadly force was necessary to prevent Vaughan’s escape, and whether a warning' was feasible in the instant case are all questions that the general Gamer rule does not clearly answer.” Op. at p. 789.
In the prior opinion the court held that “a reasonable jury could find that Deputy *1215Cox acted unreasonably in firing at the pickup.” First, material issues of fact remain as to whether Vaughan and Rayson’s continued escape presented an immediate threat of serious harm to Cox or others. Assuming Vaughan’s version of events, it is not clear that Looney or Cox were in immediate danger from the suspects at the time of the shooting, nor does the record reflect that the suspects had or were likely to menace other innocent drivers. What Deputy Cox was faced with at the time he fired his weapon was simply two suspects who were evading arrest and had accelerated to eighty or eighty-five miles per hour in an attempt to avoid capture. Under such facts, a reasonable jury could find that Vaughan and Rayson’s escape did not present an immediate threat of serious harm to Cox or others on the road.
“Second, a reasonable jury could find that it was feasible for Cox to warn the truck’s occupants of the potential application of deadly force. According to Vaughan’s version of events, Cox pulled his cruiser parallel to the truck, turned his rooftop lights on and waited for thirty to forty-five seconds before firing his weapon. A reasonable jury could therefore conclude that Cox had the time and opportunity to warn Vaughan and Rayson that he was planning to use deadly force before he opened fire.” Vaughan v. Cox, 264 F.3d at 1034-35.
If a reasonable jury found the facts the court says it could find, Cox with time to warn Vaughan discharged his weapon three times into a small area containing two human beings. I do not see how Cox’s conduct, if so found, differed in any material respect from the conduct found to be unconstitutional in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Surely it is not for this court to preempt the jury and resolve all material facts in dispute against Vaughan. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272; Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). If, as the court has stated, these facts could be resolved in Vaughan’s favor, then Cox was on notice that to shoot a fleeing felon without notice is a seizure in violation of the Fourth Amendment. As the dissent in our first consideration of this case suggested, it is difficult to discern why, if police officers in Tennessee and Minnesota and Connecticut were on notice that the use of lethal force to restrain a suspect is unreasonable, Georgia police officers should be supposed slow to have learned. See Vaughan, at 264 F.3d 1027 (dissent). Not only case law gave notice. Just as “the obvious cruelty” inherent in their actions gave “some notice” to the Alabama prison officials in Hope, so the obvious danger inherent in shooting into the occupied front seat of a ear gave Cox “some notice” of the unconstitutional character of his alleged action.