Long v. Slaton

                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT            FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                    No. 06-14439                         NOV 16 2007
                              ________________________                 THOMAS K. KAHN
                                                                           CLERK
                         D. C. Docket No. 06-01014-CV-3-IPJ

ROBERT R. LONG,
KELLY L. LONG,
as Personal Representatives of the
Estate of Bryan L. Long, deceased,

                                                                       Plaintiffs-Appellees,

                                           versus

JIMMIE RAY SLATON, JR.,
RONNIE WILLIS,

                                                                   Defendants-Appellants.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________

                                   (November 16, 2007)

Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and FORRESTER,*
District Judge.

_________________
*    Honorable J. Owen Forrester, United States District Judge for the Northern District of
     Georgia, sitting by designation.
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.



                                         I. Background



       The complaint alleges these facts. In May 2005, Long’s father, a medical

doctor, went to the Lauderdale County Probate Court seeking to have Long



       1
           On appeal, Plaintiffs are arguing the Fourth Amendment.

                                                2
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,2 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


          2
        The complaint states that the Long residence is located on the outskirts of Florence,
Alabama, on an 18-acre lot. The nearest neighbor is about half a mile away. The property’s
250-foot driveway connects to a county road.
          3
          Plaintiff’s complaint refers to Deputy Slaton’s vehicle as a “cruiser.” The word
“cruiser” is defined as “a police-car that patrols the streets,” from which we infer that Deputy
Slaton’s vehicle was a marked sheriff’s patrol vehicle. See 4 Oxford English Dictionary 80 (2d
ed. 1989) (1928). Although we rely on the ordinary meaning of the term “cruiser” as a marked
police patrol vehicle, this fact (which no one has disputed) is directly supported by an
investigative report from the Alabama Bureau of Investigation, which Plaintiffs submitted to the
district court as an attachment to Plaintiffs’ Brief in Opposition to Defendants’ Motion to
Dismiss. The report indicates that the vehicle was a marked sheriff’s cruiser complete with
county tags, a flashing light bar on the roof, two police radios, and other emergency equipment.
At the 12(b)(6) stage, we “primarily consider the allegations in the complaint,” but “[t]he court is
not [always] limited to the four corners of the complaint.” 5B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1357 at 376-77 (3d ed. 2004). Because Plaintiffs
submitted the investigative report in opposing Defendants’ motion to dismiss and because the
document’s authenticity and veracity are in this case unchallenged, we look to the report to
confirm that the ordinary meaning of “cruiser” applies as an undisputed fact for Deputy Slaton’s
sheriff’s cruiser.

                                                 3
psychosis. When Deputy Slaton asked Long’s father if Long had been physically

violent with him, the father responded, “no.”

       Deputy Slaton then approached Long, who was at the end of the driveway,

close to the house. Slaton pulled out handcuffs and told Long that Slaton would

take Long to jail. Long voiced his disagreement and then ran over to and got

inside Slaton’s cruiser and closed the door. Slaton then ran to the driver’s side of

the cruiser, pointed his pistol at Long, and ordered Long to get out of the cruiser.

Deputy Slaton threatened to shoot Long if Long did not comply. Long then shifted

the cruiser into reverse and began backing away and down the driveway toward the

road. Slaton stepped into the middle of the driveway and fired three shots at Long

as the sheriff’s cruiser moved away. One shot went through the windshield and

struck Long in the chest. The cruiser stopped as it rolled into an embankment, and

Long died after about a minute. At the time, backup law enforcement was en

route.4


       4
          The complaint also alleges that Deputy Slaton was under the influence of an illegal
drug, as evidenced by these facts: (1) a marijuana cigarette was found in the sheriff’s cruiser
after the shooting; (2) Slaton was never tested for drugs after the shooting; and (3) Long’s body
tested negative for marijuana. This allegation, however, has no application in the objective
Fourth Amendment analysis of whether an objectively reasonable officer, facing the
circumstances in this case could lawfully use deadly force. See Graham v. Connor, 109 S. Ct.
1865, 1872 (1989) (“[T]he 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.”). Plaintiffs argue that whether Deputy Slaton was under the influence of
marijuana is relevant to the reasonableness of his overall acts. But the Fourth Amendment issue
is whether an officer reasonably could have used deadly force when confronted with the situation

                                                 4
                                         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, 121 S. Ct. 2151, 2156 (2001).




                     A. Excessive Force and the Fourth Amendment


at the scene, not whether a reasonable officer would have smoked marijuana before arriving. We
judge the application of force to see if it was excessive, not the particular officer’s qualities.
       5
           The district court denied Defendants’ motion to dismiss the day after briefing was
completed on the motion and with no explanation, stating simply that the court was “of the
opinion that the motion to dismiss is due to be denied.” This kind of order is of no help to an
appellate court. In addition, such a summary denial of qualified immunity does not clearly
demonstrate that the district court had entirely taken to heart the Supreme Court’s instruction to
courts about the duty to treat seriously motions raising immunity and to grant qualified immunity
at the earliest possible point in the litigation. See Anderson v. Creighton, 107 S. Ct. 3034, 3042
n.6 (1987) (rejecting the argument that qualified immunity cannot be granted before discovery
and stating that “qualified immunity questions should be resolved at the earliest possible stage of
a litigation”); Mitchell v. Forsyth, 105 S. Ct. 2806, 2815 (1985) (stating that the “entitlement” of
qualified immunity is “immunity from suit rather than a mere defense to liability”).

                                                 5
      We first examine whether Deputy Slaton’s use of deadly force was excessive

and violated the Fourth Amendment. The standard for whether the use of force

was excessive under the Fourth Amendment is one of “objective reasonableness.”

See Graham v. Connor, 109 S. Ct. 1865, 1867-68 (1989). “The ‘reasonableness’ of

a particular use of force must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 1872.

      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, 105 S. Ct. 1694, 1701 (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, 127 S. Ct. 1769, 1777 (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

                                              6
1872 (quoting Bell v. Wolfish, 99 S.Ct. 1861 (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, 103 S. Ct. 2637, 2642 (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


       6
         The Fourth Amendment’s “reasonableness” standard and the standard of “reasonable
care” under tort law are not the same. An officer may fail to exercise “reasonable care” as a
matter of state tort law yet still act reasonably in the federal constitutional sense. “The United
States Constitution [and] traditional tort law . . . do not address the same concerns.” Daniels v.
Williams, 106 S. Ct. 662, 666 (1986) (concluding that “injuries inflicted by governmental
negligence are not addressed by the United States Constitution”) (Fourteenth Amendment case);
see also Purcell ex rel. Estate of Morgan v. Toombs County, 400 F.3d 1313, 1324 (11th Cir.
2005) (“‘Reasonable care’ under tort law is not the same thing as reasonable safety within the
meaning of the federal Constitution.”) (Eighth Amendment case).

                                                 7
Deputy Slaton’s force was objectively reasonable under the Fourth Amendment.

Although Slaton’s decision to fire his weapon risked Long’s death, that decision

was not outside the range of reasonableness in the light of the potential danger

posed to officers and to the public if Long was allowed to flee in a stolen police

cruiser. “[U]nder the law, the threat of danger to be assessed is not just the threat

to officers at the moment, but also to the officers and other persons if the chase

went on.” Pace v. Capobianco, 283 F.3d 1275, 1280 n.12 (11th Cir. 2002). “[T]he

question then is whether, given the circumstances, [Long] would have appeared to

reasonable police officers to have been gravely dangerous.” Id. at 1281.

Considering the circumstances surrounding the shooting, including the threat posed

by Long’s condition and behavior, this question must be answered “yes.”

      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.” Ala. Code §

13A-1-2(5). Different from other vehicles, this fully marked and fully equipped

police cruiser had an even greater potential for causing -- either intentionally or



                                           8
otherwise -- 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




       7
        We note the obvious: Long could have quickly shifted gears and accelerated towards
Deputy Slaton at any time. An objectively reasonable officer would have known this fact.

                                              9
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 stealing a police cruiser, and

Long’s starting to drive – even after being warned of deadly force – to a public

road gave the deputy reason to believe that Long was dangerous. See Blanford,

406 F.3d at 1117-19 (concluding that third volley of shots hitting sword-carrying

suspect – who “appear[ed] intent on accessing a [place] . . . where his sword could

inflict injury that the deputies would not then be in a position to prevent” – was

not excessive force because “the deputies knew that Blanford had committed a

crime, albeit not a violent one, and was continuing a course of conduct that

objectively indicated he was not giving up the sword that made him a threat to

anyone in charging range”).

       Protecting the innocent public from risks that are not remote is a government



       8
          Montoute is a qualified immunity decision. The person shot by police (who were
responding to a report of shots fired) was carrying a sawed-off shotgun, walking away from
officers, and ignoring warnings to drop the weapon; the person had not pointed the weapon at
anyone, and the police did not know he was a shooter. 114 F.3d at 183, 185.
       9
          Deputy Slaton had probable cause to believe that Long had committed at least two
crimes under Alabama law, including at least one felony, by taking control of and attempting to
flee in a stolen sheriff’s cruiser: (1) unauthorized use of a vehicle, see Ala. Code §
13A-8-11(a)(1); and (2) theft of property in the first degree, see Ala. Code §§ 13A-8-2,
13A-8-3(b).

                                               10
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 (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



                                          11
police on high-speed chase); Bryant v. County of Los Angeles, 26 Cal. App. 4th

919 (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 (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, 341 N.W.2d 873 (Mich. Ct. App. 1983) (man took police car,

drove away from police at excessive speeds, disobeyed traffic signals, and crashed

into and killed motorcyclist); Felty v. City of Lawton, 578 P.2d 757 (Okla. 1977)

(city was sued after man stole police cruiser, crashed head-on with another vehicle,

resulting in death of woman); Vaughn v. City of Tulsa, 974 P.2d 188 (Okla. Ct.



                                           12
App. 1998) (city was sued after man was arrested and placed in back of police

cruiser, after which he took control of cruiser and crashed into and injured

victims); Rowe v. City of Chattanooga, 666 S.W.2d 469 (Tenn. Ct. App. 1983)

(city was sued after officer left police cruiser running in parking lot, and man stole

cruiser, drove away, and crashed into and injured other people); Finnigan v. Blanco

County, 670 S.W.2d 313 (Tex. Ct. App. 1984) (county was sued after man stole

county sheriff’s vehicle, which led to chase and crash that killed woman). Failing

to stop a psychotic man from driving away in a marked sheriff’s cruiser not only

would have provided the man with a potentially (to say the least) lethal weapon,

but also would have cloaked him with the apparent authority of a law enforcement

officer.

       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.

       Plaintiffs argue that Long’s death could have been avoided by using



                                          13
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.10


       10
          The complaint’s only allegation about Sheriff Willis was that he “failed to institute a
constitutionally compliant policy governing use of deadly force . . . and/or failed to properly and
adequately train [Slaton] in regard to such a policy.” Because Plaintiffs have failed to state a
claim for the violation of a constitutional right, Plaintiffs’ supervisory claims against Willis also
fail. See City of Los Angeles v. Heller, 106 S. Ct. 1571, 1573 (1986) (concluding that whether
police policies and regulations were proper is “beside the point” when “a person has suffered no
constitutional injury at the hands of the individual police officer”); Blyden v. Mancusi, 186 F.3d
252, 265 (2d Cir. 1999) (“Of course, for a supervisor to be liable under Section 1983, there must
have been an underlying constitutional deprivation.”).

                                                 14
                               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 right. “[T]he purpose of the qualified immunity doctrine is to give

meaning to the proposition that ‘[g]overnment officials are not required to err on

the side of caution’ when it comes to avoiding constitutional violations.” See

Crosby v. Monroe, 394 F.3d 1328, 1334 (11th Cir. 2004) (quoting Marsh v. Butler

County, 268 F.3d 1014, 1030 n.8 (11th Cir. 2001) (en banc)) (second alteration in

original). For background, see Hunter v. Bryant, 112 S. Ct. 534, 537 (1991).

      Qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 106 S. Ct. 1092, 1096 (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



                                          15
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. Vineyard 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); Vineyard, 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).



                                           16
      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. Therefore, we believe that the

situation in Vaughan is too different from this case to cause every objectively

reasonable officer to know that the use of deadly force in the circumstances of this

case must violate federal law.



                                          17
       Plaintiffs also attempt to rely on Garner, 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, 125 S. Ct. 596, 599 (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



       11
          “Garner held that it was unreasonable to kill a ‘young, slight, and unarmed’ burglary
suspect by shooting him ‘in the back of the head’ while he was running away on foot and when
the officer ‘could not reasonably have believed that [the suspect] . . . posed any threat,’ and
‘never attempted to justify his actions on any basis other than the need to prevent escape.” Scott,
127 S. Ct. at 1777 (internal citation omitted) (alteration in original).

                                                18
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



       12
          Even if Slaton’s use of deadly force was excessive under the Fourth Amendment,
Sheriff Willis was also entitled to qualified immunity. We do not believe that a failure to
implement and train officers on a deadly force policy that covers the circumstances of this case
constitutes a deliberate indifference to Long’s constitutional rights; nor do we believe that such a
conclusion was clearly established at the time of the shooting.

                                                 19
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

force was excessive under the Fourth Amendment, the applicable law was not

already clearly established at the time of the shooting. Thus, the district court erred

in denying Defendants’ motion to dismiss.

      REVERSED and REMANDED.




                                          20
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 (1985); Beshers v.

Harrison, 495 F.3d 1260, 1266-67 (11 th Cir. 2007); Robinson v. Arrugueta, 415

F.3d 1252, 1256-57 (11 th Cir. 2005); Vaughan v. Cox, 343 F.3d 1323, 1330 (11 th

Cir. 2003); McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1246 (11 th 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



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is not “fairly distinguishable.” See Vinyard v. Wilson, 311 F.3d 1340, 1351-53

(11 th 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




       1
        I concur in the majority opinion’s determination that the plaintiffs have failed to state a
claim against Sheriff Ronnie Willis.

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