dissenting.
I respectfully dissent. I would affirm summary judgment in favor of Officer Moekler because he was entitled to qualified immunity.
Qualified immunity protects an officer from suit when the officer “makes a decision that, even of constitutionally deficient, misapprehends the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004). In Saucier v. Katz, the Supreme Court held that a lower court faced with a qualified immunity defense must first determine whether the plaintiff has asserted the violation of a constitutional right. 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Sigley clearly has done so. “[T]he next, sequential step is to ask whether the right was clearly established.” Id. A right is clearly established when the “contours” of the right are “sufficiently cléar that a reasonable official would understand that what he is doing violates that right.” Id. at 202, 121 S.Ct. 2151. “If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.” Id. “The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct.” Id. at 205, 121 S.Ct. 2151. This is because “[i]t is sometimes difficult for an *539officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Id. at 205, 121 S.Ct. 2151.
Officer Mockler could not have known that his conduct was unlawful. Under Tennessee v. Garner, the use of deadly force is reasonable when an “officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The Supreme Court has addressed the question of when a suspect escaping in a vehicle poses such a threat. In Brosseau v. Haugen, the court held that an officer who fatally shot a suspect fleeing in a Jeep was entitled to qualified immunity. 125 S.Ct. at 600. The incident occurred after a foot chase. Id. at 598. Although the suspect had not yet driven forward, the officer fired one shot through the rear window on the driver’s side and hit the suspect in the back. Id. The officer testified that she was concerned about the safety of others in the area. Id. When determining whether the officer had violated a clearly established Fourth Amendment right, the Court considered three circuit cases, two of whichü/síaíe of Starks and Smith v. Frelandsxe cited by the majority in this case. Id. at 600. The court concluded that, based on those cases, the officer’s conduct “fell in the ‘hazy border between excessive and acceptable force.’ ” Id. (quoting Saucier, 533 U.S. at 206, 121 S.Ct. 2151). Because the law did not clearly establish a Fourth Amendment right in favor of a “disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight,” the officer was entitled to qualified immunity. Id.
This case is analogous to Brosseau. The defendants in this case have produced uncontroverted evidence that Davis posed a significant threat to the officers on the scene. During his deposition, Matthew Benedict testified that at the time Mockler shot Davis, “police were in danger.” J.A. 82. Benedict also testified that if officers had not jumped out of the way of Davis’ speeding vehicle, “they would have been run over.” J.A. 82. In fact, Davis actually struck Officer Mehlman with his vehicle as Mehlman, with weapon drawn, warned Davis that he was under arrest. J.A. 216. Finally, Officer Mockler testified that had he not fired, he would have been killed. J.A. 133. Although the majority makes much of the statement given to police by Benedict immediately following the shooting, nothing in that statement contradicts Benedict’s later testimony that Davis’ reckless driving posed a significant threat of physical harm to the officers who were trying to apprehend him.
The majority notes that disputed facts preclude summary judgment if those facts could affect the outcome of the case. In the present matter, the outcome of the case centers on whether Officer Mockler should reasonably have known that his conduct was unlawful. See Saucier, 533 U.S. at 202, 121 S.Ct. 2151. Officer Mockler’s conduct would have been unlawful if Davis had not posed “a significant threat of death or serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. at 3, 105 S.Ct. 1694. Only in that instance should we overturn the district court’s grant of summary judgment. The statements cited by the majority that Benedict told officers that Davis was not trying to hit them, that Officer Mockler felt that only he was in danger and that Officer Mehlman was not convinced of the necessity of stopping Davis — are not dispositive. The excessive force inquiry, which dictates whether Officer Mockler violated a clearly established constitutional right, is one of objective reasonableness. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 *540L.Ed.2d 443 (1989). Even if Davis intended to harm no one, and even if Officer Mockler shot Davis for the wrong reason, Mockler is nonetheless entitled to immunity if he and his fellow officers were in danger. Benedict’s uncontroverted statement indicates that they were. Accordingly, I would AFFIRM the district court’s grant of summary judgment in favor of Officer Mockler.