[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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