### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 29, 2003 THOMAS K. KAHN CLERK

* Honorable

John T. Noonan, Jr., Un ited States Circuit Jud

ge for the Ninth

Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 00-14380

________________________ D. C. Docket No. 99-00006-CV-JTC-3 JERRY CHARLES VAUGHAN, Plaintiff-Appel lant,

versus FRED LAWR

ENCE COX,

OFFICER, indi

vidually and in his official c apacity as an of ficer of the Coweta County S

heriff’s Depa

rtment, COWETA COUNTY, GEORGIA, et al., Defendants-Appe llees.

________________________ Appeal from the United States District Court for the Northern D

istrict of Georgia

_________________________ (August 29, 2003) ON REMAND FROM THE SUP REME COURT OF THE UNITED STA TES Before CARNES, COX and NOONAN * , Circuit Judges. COX, Circuit Judge:1 Our recitation of

the facts is primarily drawn from the depositions that accompanied the Defendants’ summary judgment motion and Vaughan’s re sponse. To the extent that the material facts are in dispute, we

, in our review of

the grant of summ

ary judgme

nt in favor of Cox, have 2 We grant rehea

ring sua sponte. In ou

r original opinion,

reported at 264 F. 3d 1027 (11th Cir. 2001), we concluded that Deputy Fr

ed Lawrence Co

x was entitled to summary judgment as to his qualified immunity defense on Jerry Charles Vau ghan’s 42 U.S.C. § 1983 claims arising out of injuries Vau ghan su ffered during a police chase. The Supreme Court granted cert iorari, Vaughan v. Cox , 536 U.S. 953, 122 S. Ct. 2653 (2002), vacate

d our judgment,

and remanded

this action for reconsideration in light of the Court’ s intervening decision in Hope v. Pelzer , 536 U.S. 730, 122 S. Ct. 2508 (2002). Follo wing the filing of su pplemental briefs on remand, we reinstatedour

original decision and provided a supplem ental discussion addre ssing Hopein an opinion reported at 316 F.3d 1210 (11th Cir. 2003) . We vacate our prior two opinions in thiscase in their entirety and substitute the following one, in which

we conclude, among other things, that Cox is not d

ue summar

y judgment

on the basis of qual ified i mmunity.

I. BACKGROUND & PROCE DURAL HISTORY In the early morn ing of Jan uary 5, 1998 , the Sherif f’s Department o f Coweta County, Georgia, received a report that a red pickup truck w

ith a silver tool box in its bedhad been stolen from a s ervice station along Interstate 85 south of Atlanta. 1 Theresolved

t hose dis putes and drawn all reasonable inferences in Vaughan’s favor. Artistic Entertainment, Inc. v. City of Warner Robins , 331 F.3d 1196, 1203 (11th Cir. 2003). 3 reportincluded the inform ation that the

suspect, a white m

ale wearing a white t-shirt,

was believed to be headi ng north on I-85. I n response to the report, Deputy Fred Lawrence Cox and Deputy Je ff Looney hea

ded to the northbound lane s of I-85 in separate vehicles . Deputy Loon ey pulled onto the

grass median to

observe passing traff ic. D eputy Cox continue d farther north and stopped at the site of a recent accident. Deputy

Looney soon spotted a truck tr

aveling northward t

hat matched the description

of the stolen veh icle but, co ntrary to the report, it was towing a trailer loaded with two personal watercraft. Looney report ed his sighting on his radi o and began to follow the truck.After he aring Loo ney’s report, Deputy Cox radioed Looney to inform him that there was an accident scene

north of Looney’ s position and that he should no t attempt to stop the veh icle until it had p assed by the accident. As the red

pickup and Deputy Looney passed him, Deputy

Cox pulled out and joined the pursuit. Whil

e tracking the truc

k, the deputies made

efforts to determ

ine whether the vehic le was indeed the st olen truck. To this

end, Deputy C ox sped up and passed the truck, w

hi ch was proceeding at o r near the speed lim

it of seventy miles per hour. He obse

rved two men in

the cab. The

man in the passenger’ s seat, Jerry Charles Vaug han, matched t he description of the

suspect. Cox’s su

spicions2 Oncros s-e xam ina tio n, V augh an co nced ed t hat Rays on b egan to d riv e “re ckl ess ly”

after the collision with Cox’ s vehicle. Howev er, Vaughan ma

intains that alt

hou gh Rayson d

id accelerate, he did not change lanes or weave in and out of traff ic at that time. 4 confirmed,

he and Deputy L

oon ey d ecided to use a “

rolling roadblock” to s

top the vehicle, which involves officers blocking a suspect vehicle with their

police cruisers and reducing their speed, in the hope that the suspec t car wil l slow down as well

. Deputy Looney positione

d his cruiser direc

tly behind the pickup. Deputy Cox moved in front of the truck.By this point, the deputies had made it

clear that they desired to stop the pickup. As so on as he had positioned his vehic le in front of

the truck, Cox applied his brakes. The truck rammed into the back of Cox’s cruise r. Deputy Cox has testifiedthat the impact

c aused hi m to momentarily lose control of his vehicle; Vaughan and

the pickup’s drive

r, Freddy Ra

yson, contend tha

t the impact was bot

h accidental and insufficient to cause Cox to lose control, a ndfor the purposes of t

his appeal, we acc ept Vaughan’s ver sion of the facts. After the collision, Rayson did not pull over, but instead accelera ted wh ile staying in the same lane of traf

fic

. 2 Deputy Cox dec

ided to reposition his ve

hicle beh ind the truck. He unholstered his sidearm and rolled down the pa

sse nger sid e window. Cox testified that he readied him

se lf in this manner

in case Rayson m

ade aggressive

moves in his direction. Cox t

hen shifted his cruise

r one lane to the left and slowedto allow the truck to pass by him.As soo n as his cruiser wa s even with the5

pickup, Deputy

Cox turned on his rooft

op lights. Rayson r

esponded by acce

lerating to eig hty to eigh

ty-five miles per hour in a seventy-miles- per-hour zone. Cox then fired three rounds into the truck without warn ing. A l though Cox testified tha t he fired because the pickup swerved as if to smash into his cruiser, Vaughan maintains that the truck, while i

ncreasing its speed,

made no mot

ion in the direction of Cox’s vehicle; again, w

e accept Vaughan’ s version of the event s. Deputy Cox’s

plan was to disable e

ither the truck or R

ayson so that he

could force the truck off the r

oad. However,

his volley disable

d neither the truck no

r Rayson. The third b ullet fire d from Cox’s wea pon inste ad punctu red Vaughan ’s spine, instantly paral

yzing him be

low the chest. Ra

yson’s onl

y rea ction to the shooting was to drive

faster and mor

e recklessly.Rayson began a de sperate break for freedom which involved wea

ving in and

out of lanes, driving at hi

gh speeds through exit ramps, and dr

agging at least

one of the watercraft, which had fallen off the trailer, along the ground

. As the chase continued i

nto more heavily

congested sections

of the hig hway, Cox made several attempts to stop the vehicle, f iring his weapon once

more, and repositioning

his cruiser in front

of the truck. The

truck struck Cox’ s cruiser, causin g the cruiser to spin out of

control and ram

into a steel guard rail. Cox was injured a nd his cruiser

was badly dam

aged, but the truck c

ontinued on, dragging

the trailer and6

watercraft

behind

. Finally, when Rayson tried to fo rce the truck between two vehicles, he lost control of the pickup, the trailer jac

k-knifed, and the tr

uck hit the cement median. Both Vaughan and Rayson were taken to the ho spital. Vaughan filed suit for damages pursuant to 42 U.S.C. § 1983 against three named defendants: Deputy

Cox, in both his individua l capacity and

hi s official capaci ty; Coweta County Sheriff Mike Ye

ager, in his offic

ial capacity; a

nd Coweta County, Georgia. In Count I, Vaugha n alleges that Deput

y Cox used excessive force in violation of the

Fourth, Fifth, Eighth, and Fourteenth Amendments. In Count II, Vaughan alleges th at Sheriff Yeager and Cowe ta County promulgated and established policies that causedDeputy Cox to em ploy excessive

force in vi olation o f Vaughan’s constitutional right s. And in Cou nt III , Vaug han al leges five s tate l aw cla ims (neglig e nce, assault and battery, false arrest, intentional infliction of emotional distress and outr ageous conduct) ag ainst Cox. Vaughan, Yeager, and Cow eta County (col

lectively, “

the Defendants”) moved for summ ary judgment. In its order regardi ng the summary judgment motion, th e district courtinitially conclu ded that Vaughan wa

s not subjected to a “seizure” within the meaning of t

he Fourth Ame

ndment, reasoning that Depu ty Cox aimed his shot

s atthe driver of the truck and the truck itself, but not at Vaughan. T he court then went

on to conclude t hat even if Vaughan had been seized, Cox’s use of force was7

objectively

reaso nab le under the circumstances. As a consequence, the court concluded that Deput y Cox was enti tled to su mmary judgment on Vau ghan’s § 1983 claim predicated on the Fo urth Am endment. Having concluded tha t Cox did not violate Vaughan’s constitutional rights, the court granted sum

mary jud gment in favor of Sheriff Yeager a nd Cowe ta Coun ty b ecau se Vaughan’s cla ims against these defendantswere derivative claims based on Deputy Cox’ s conduct. The court declinedto exercise supplementa l jurisdiction over Vaughan’s state

law claims. Vaughan appeals.

II. ISSUES ON APPEAL & STANDARD OF REVIEW On appeal, Vaughan raises three arguments. First, he contends that the district court erred when it conc

luded that Vaughan w

as not seized when he

was struck by the bullet fired by

Cox. Second, he argues

that genuine issues of

material fa

ct exist

as to whether Cox’s

actions were obj ectively reas onable, and therefore Cox is not entitled to summary judgm ent on the basis of qualified immunity. Finally, Va ughan suggests that even if he was not subjected to a “

seizure” for Four

th Amendm

en t purposes, he still may

maintain a Fou

rte enth Amendm

ent substantive due pro cess3 Onappeal, Vaughan does not raise any issues relating to his § 1983 claims based on the Fifth Amendment or the Eighth Amendment. 8 claim based on hi s allega

tion that Cox’s condu

ct “shocks the conscience” and exhibited deliberate indifference. 3 We review de novo the di strict court’s gr ant of summary

judgment, dr

awing all reasonable

inf erences in favor of the nonmovi ng party, Vaughan. Artistic Entertainment, Inc. v. City of W arner Robins , 331 F.3d 1196, 1203 ( 11th Cir. 2003). In conducting our d e novo review, we app ly the same familiar standards as the district court to evaluate the Defen dants’ entitlement to summary judgment. Hallum v. Provident

Life & A cc. Ins. Co. , 326 F.3d 1374, 1375-76 n.1 (11th

Cir. 2003). W

e will address in turn each

of Vaughan’s ar

guments. III. DISCUSSION A. Vaughan’s Fourth

Amendme

nt Claim 1. Was Vaughan subjected to a seizure? The first step in reviewing an exc essive force clai m is to determine

whether the plaintiff w as subjec ted to t he “inte ntion al acqu isitio n of phys ical co ntrol” by a government

actor – that is, whether there was a “seizure” within the meaning of t

he Fourth Amendment. Brower

v. County of Inyo , 489 U.S. 593, 596, 109 S. Ct. 1378, 1381 (1989). It is clea

r that “appreh

ension by the use of deadly force is a seizure.”4 Insupport of this positi on, Deputy

Cox cites several cases from our sister circui

ts in whichcourts rejected Fourth Amendment claims brought by innocent by standers o r hostages accidentally

harmed by police fire. See Ruck er v. Harfor d County , 946 F.2d 278 (4th Cir. 1991) (bystander not seized by police bullet aimed at flee ing vehicle); Childress v. City of Arapaho , 210 F.3d 1154 (10th Cir. 2000) (hostage wound ed by police

bullet aimed at susp

ect not seized); Medeiros v. O’Connell

, 150 F.3d 164 (2nd Cir. 1998) (sa me); Landol-Rivera v. Cruz Cosme , 906 F.2d 791 (1st Cir. 1990) ( same). These cases are of little aid to our inquiry, however, because Va ughan was neither an innocent bystander nor a hostage; instead, he was a suspect whom De

puty Cox sough

t to apprehend. 9 Tennessee v. Garner , 471 U.S. 1, 7, 105 S. Ct . 16 94, 1699 (1985). How ever, the Sup reme Court has held that a seizure occurs “only when there is a governmental termination

of freedom

of moveme

nt through means intentiona llyapplied .” Brower , 489 U.S. at 597, 109 S. C t. at 1381 (em phasis in original). The question rem ains whether Cox’s a

ction in firing his

weapon at the truc

k and its driver can b e deemed “means intentionally applied ” to seize Vaughan. The district court conc

luded, and Deputy

Cox contends here, that Vaughan was not seized by the bul

let because Cox did not

intend to hit

Vaughan when he fi

red his pistol. Instead, Cox plannedto seize both Rayson and Vaughan by disabling either the truck or Rayson with a volley of bullets and then ramming the pickup off the road. Cox argues that Vaugha

n was not seized because Cox, while intending to apprehend Vaughan, did n ot in tend to st op hi m by sho otin g him. 4 In Deputy Co x’s view, because he did not intend to shoot Vaughan, he contends that Vaughan did not suffer a Fourth Amendment seizure. We disagree.5 T he fact that Vaughan was not taken into custody immediately following the s hooting is immaterial. As the Supreme Court has noted, the “application of physical force to r estrain movement, even when it is ultimately un

successful” is su

fficient to consti

tute a seizure. California v. Hodari D. , 499 U.S. 621, 626, 111 S. Ct. 1547, 1550 (1991). U nden iably, Cox’s fi ring of his weapon was an application of force designed to restrain Vaughan’ s movement. 10 The Supreme Court

has cautioned against

a too finely dra

wn reading o f “means intentionally appli ed.” Brower , 489 U.S. at 598 , 109 S. Ct. at 138 2. It is not necessary for the means by which a suspect is seized to conform exactly to the means intende dby the officer

; otherwise courts could be compell ed to conclude that “

on e is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was m

eant only for the leg.” Id. at 598-99, 109 S. Ct . at 1382. Instead, the Supreme Court has held that it is enough “that a pe rson be stopped by

the very instrum

entality set in m

otion

or put in place in order to achieve that result.” Id. at 599, 109 S. Ct. a t 1382. That st andar dhas been met in t his case. Cox fire

d his weapon to stop Va ughan and Rayson, and one of t hose bullets struck Vaugh an. 5 Because Vaugha n was hi t by a bullet that w as mean t to s top h im, he was subjected to a Fourth Amendment seizure. 2. Is Deputy Cox entitled to qualified immunity? Havingconcluded that Vaugh an was subjected

to a seizure, we

now turn to the merits of Vaughan’s Fou

rth Amendm

ent claim and Deputy

Cox’s qualified im

munity defense. Under Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001), we m ust11

conduct a two-part inquiry. See id. at 200, 121 S. Ct. at 2155. First, we m ust ask if the facts, take

n in the li ght most fav orable to V aughan, sh ow that Depu ty Cox’s conduct violated Vaughan’ s Fourth Amendment rights. Id. at 201, 121 S. Ct. at 2156. Second, if we conclu de that a rea sonable ju ry could fin d that Vaug han’s constitutional ri ghts were violated under the facts alleged, we must determine whet he r Vaughan’s rights were clearly established – that is, whether it would have been clear to a reasonable offi

cer that Deputy

Cox’s conduct wa

s unlawful. Id. at 202, 121 S. Ct. at 2156. As to the first inquiry

, we conclude that

a reasona

ble jury could find that Deputy Cox acted unreasona

bly in firing

at the pickup truck. The Fourth Am endment protects individuals from “unreasonable” seizures, and the Supreme Court has clarified when the use of dead ly force is “reasonable” for purposes of the F ourth Amendme

nt. In Tenness ee v. Ga rner , 471 U.S. 1, 10 5 S. Ct. 1694 (1985) , the Su preme Court held that a police officer may use deadly force to seize a fleein g felony suspect when t

he officer: (1) “has probable cause to believe that the suspect poses a threat of serious

physical harm

, either to the off

icer or to others” or “that

he has committed

a crime involvi

ng the inf

liction or threatene

d infliction of serio

us physical harm;” (2) r

easonably believes that the use

of deadly forc e was necessary to prevent e scape; and (3) has given som e warning about the possible use of deadly6 The re i s no dis put e th at V augh an w as a s usp ect in a t le ast one fel ony. 12 force, if feasible. Id. at 11-12, 105 S. Ct. at 1701; Acoff v. Abston , 762 F.2d 1543, 1547 (11th Cir. 1985). 6 Thus, our inquiry is limited to whether, viewing the facts a nd drawing all reasonable inf

erences in Vaugha

n’s favor, a re

asonable jury

could conclude that, at the

time Cox fire

d the shot that struck V

aughan: (1) Deputy

Cox did not have probable cause

to believe that Vau

ghan a nd Rayson’ s flight posed an immediate

threat of serious harm to Deputy Cox, other p ol ice officers, or innocent motorists,or that Va

ughan and Rayson ha

d committe

d a crime involv

ing the infliction

or threatened infliction of p hysical harm; (2) the use of deadly fo

rce was not necessary to stop the suspects; or

(3) it was feasible to

warn Vaughan and

Rayson of the possible use o f deadly force. See Acoff , 762 F.2d at 1547. We conclude that a reasonable jury could find, under

Vaughan’s versi

on of the facts, that Deputy Cox’s use of deadly force to apprehend Vaughan and Rayson was unconstitutional. Genuineissues of mater ial fact rem

ain as to whether V

aughan and Rayson’s flight presented an immediate threat of serious harm to Cox or others at the time Cox f

ired the s hot that struck Vaugha n. Based on Vaugha

n’s version of the events, it is not clear

that Cox had probable cause to believe that Looney or Cox were in immediate danger from the suspec ts at the time of

the shooting. Nor doe s the record reflect that the suspects had menaced or werelikely to me nace others on the7 Insupport of his positio n, Cox cites three ca

ses from our sis

ter circu its in which courts found the application of deadly force in a high-speed pursuit to be reasona ble as a matter of law. However, the facts of these cases diverge significa nt ly from the case before us. In Smith v. Freland , 954 F.2d 343 (6th Cir . 1992), a suspect

led an officer o

n a “wild chase a

t speeds in excess of ninety miles per hour,” a ttempted to ra m the officer’s car twice, and drove around a police blockade at high speed in an effort to avoid a

rrest. 954 F.2d a

t 344. The office

r eventually

cornered the suspect in a dead-end st reet, block ing th e suspect’s vehicle with his police car. Id. After the officer exited his vehicle to make an arrest, the suspect smashed his car into the officer’s cruiser and made yet another break for freedom. Id. It was only at this point that the

officer used de

adly force to prevent the suspect’s escape. Id. The Sixth Circuit conc luded that the off

icer’s use of de

adly force was justified given that the suspect had demonstrated that he posed a major threat to other officers and the public. Id. at 347. In Colev. Bone , 993 F.2d 1328 (8th Cir. 1993), a suspect driving an eighteen-wheel tractor trailer led the police on a lengthy highway chase at speeds exceeding ninety miles per hour. 993 F.2d at 1330. The suspect thwarted mult iple efforts to establish a rolling roadblock, ran through a stationary roadblock, refused to stop after the police had shot out two of the truck’s tires, and forced more than one hundred innocent mot orists off the road. Id. at 1330-31. During the chase, the pursuing officers were continu ou sly compelled to take measures in order to stop the suspect from hitting both police and civilian vehicles on a crowded highway. Id. at 1331. After mult iple attempts to stop the truck using other means had failed, one of the pursuing officers shot twice at the truck, hoping to disable its

engine. Id. The suspect was f atally wounded by the second shot. Id. The court held that, in light of

all the informationavailable to the o fficer, it was r

easonable for th

e officer to 13 highway at the time of the shooting. Instead, the truck’s lane was clear of traffic and Rayson made no aggressive moves to change lanes before Cox fire d. Moreover, according to Vaug han, the collision betwee n the truck and Cox’ s cruiser was both accidental and insufficient to cause Cox to lose

control. Thus, und

er this version of the facts, when Deputy Cox discharged his weapon, he simply facedtwo suspe cts who were evading arrest and who had accelerated to eighty to eighty-five miles per hour in a seventy-m

iles-per-hour zone

in an attempt to avoid capture. Under such facts, a reasonable jury

could find that Vaugh

an and Rayson’s escape did not present an immedia

te threat of seriou

s harm to Cox or o

thers on the road. 7conclude that the suspect posed an imminent threat of serious harm. Id. at 1333.

Finally, in Scott v. ClayCounty , 205 F.3d 867 (6th Ci r. 2000), t he police be gan pursuin g a s uspect who had raced through an intersection in contravention of a stop sign. 205 F.3d a t 871

. Rath er than st op for the police, the suspect led them on a twenty-minute chase over rura l roads at speeds ranging from eighty-five to one hundre d miles per hour. Id. at 872. The driver testified that he forced at least

one motorist

off the road during the chase. Id. After the suspect’s vehicle crashed into a guardrail and came to a stop, one of the pursuing officers parked and exited his cruiser to make anarrest. Id. The suspect’s ve hicle rapidly

accelerated in the officer’s direction, forcing the officer to leap out of the wa

y to avoid being struck. Id. As the suspect sped at another police vehicle that was approaching the scene, the officer fired his weapon to stop the suspect’s escape. Id. In holding that the officer

acted reasonably in applying deadly force, the Sixth Circuit concluded that the record demonstrated

that the suspect’s “ong oing felonious misconduct posed an immediate threat to the safety of officers as well as innocent civilians.” Id. at 877. 14 Likewise, a reasonable jury could find that Deput

y Cox’s use of deadly

force

was not necessary to prev ent escape. When the shots were fired, the vehicles were traveling between eig hty and eigh ty-five miles p er hour, Cox ’s cruiser was parallel with the truck, and anoth

e r police cruiser was following closely behind. Besides accelerating,

the suspects had not engag ed in any evasive maneuvers. Moreover, there is evidence that could support a finding that the truck, with trailer in tow, was easily identifiable and cou

ld have be e n tracked, and that the officers could

have sought assistance from

other jurisdiction

s to follow the

suspects. Viewi

ng the facts in Vaughan’s favor, a reasona ble jury could c

onclude that the use of

deadly force was not necessary to prevent Vaughan and Rayson’s escap e. Lastly, a reasonable jury could fi nd that it was feasible for Cox to warn Vaughan and Rayson of the potential use of

deadly force . According to Vaughan ’s versi on of the eve nts, Cox pulled his cr uiser parallel to th

e truck, turned on hi s15

rooftop lights, and traveled alongsi de the truck for thir

ty to forty-five seconds before firinghis weapon. A r easonab le jury could conclude that Cox had the time and opportunity

to warn Vaughan an

d Rayson t

hat h e was planning to use deadly force before he opened fire. We are loath to second- guess the decisions m ade by police of

ficers in the

field. See Graham v. Connor

, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 1872 (1989). But we simply cannot conclude as a matter of la w that a reasonabl

e jury could not

find that Deputy Cox’s actions we

re unreasonable

under the standards f

or using deadly

force articulated

in Garner . Accord ingly, we conclude under t he first prong of the Saucier analysis that Vaughan has alleged facts which could support a jury’s fin ding that Cox

v iolated Vaughan’s Fourt h Amendme

nt rights. Thus, th

e district court e

rred i n granting the Defendants sum

mary jud gment on the ground

th at no Fourth Ame ndment violation occurred. The i ssue is one for th e jury. De puty Cox disputes m

uch of Vaughan ’s version of the events leading up to the shooting ; for example, Cox maintains that the suspects rammed his vehicl e, c ausing him to lose c ontrol momentari ly, and

swerved at him

before he fired hi s weapon. A jur y accepting

Cox’s assertions could conclude that V aughan and

Rayson presente

d a serious threat to

Cox

or others on the road, or that Cox had probable cause to believe that Vaugha n and Rayson, in rammi ng Cox’s cruiser an d swerving towards

him, had “

committed

a16

crime involving the infliction or threatened infliction of serious physical harm,” that the use of deadly forc e was necessary to prevent

escape, and that i

t was not feasible for Cox to warnVaughan and Rayson. Garner , 471 U.S. at 11- 12, 105 S. Ct. at 1 701. Nonetheless, our obligation at this stage of the procee dings i s to view all of the evidence in the lig ht most favorable to Vaug han. Havingconclude d th at the facts alleged could establish a constitutional violation, we now turn to the second prong of the Saucier analysis and ask

whether itwould have been cle

ar to an objective

ly reasonable of

ficer that Deputy Cox’ s conduct was unlawful. I t is well-settled t

hat a constitution

al right i s clearly established only if its

contours are “sufficiently clear that a reasonable o fficial would understand

that what he is doing violates that right.” Anderson v. Creight on , 483 U.S. 635, 640, 107 S. Ct.3034 , 3039 (1987) . In determining whether the contours of a constitutional right are clearly established, we examine cases that announce general constitutional rules a nd cases that apply

those rules to

factual circumstances to determine if a reasonable public official, w

ho is charged with

knowledge of such decisions, would have understood the constitutional implica tions of his conduct. With regar d to t his i nqui ry, the Supre me Court in Hope cautioned that we sh ould not be unduly rigid in

requiring factual similarity between prior cases and the case under consideration. The “salient question,” the

Court said, is whe

ther the state

of the law17

gave the defendants “fair warning” that their alleged conduct was unconstitutional. Hope , 536 U.S. at 741 , 122 S. Ct. at 251 6. As noted above, the

constitutionality

of a police office

r’s use of deadly force is evaluated in light of Garner

. See Garner , 471 U.S. at 11, 12, 105 S. Ct. at 1701. In contrast, the standard for determining whether an officer who may not have been constitutionally

permitted to use

deadly force s

hould still be entitled t

o qualifi ed immunity is distinct, albeit similar. See Saucier , 533 U.S. at 204, 121 S. Ct. at 2158. Under that standard, an off

ice r will be entitled to qualified immunity if he had “arguable probable cause” to e

mploy deadly

force; in esse

nce, we decide whether “

the officer reasonably coul

d have believed that p

roba ble cause existed” to use deadly force. Montoute v. Carr , 114 F.3d 181, 184 (11th Cir. 1997). In evaluating an officer’s assertion of a quali fied immun

ity defense, w

e apply an obje

ctive standard, asking “whether

the officer’s act

ions are objective

ly reasonable i

n light of the facts confronting the

officer, rega

rdless of the offic er’s underly ing intent or

motivation.” Id. at 183. Takingthe facts as alleg ed by Vaughan, an objectively

reasonable offic er in Deputy Cox’s position

could not have believe

d that he was entitle

d to use deadly force to apprehend Vaugha n and Rayson. Under Garner , a police office r can use deadly force to prevent the esca

pe of a fleeing non-v

iolent felony

suspect only when18

the suspect poses an im

mediate threat of serious harm to police officers or others. In this case, the danger

presented by V

aughan and Rayson ’s continu ed flig ht was the risk of an accident during the pursuit. A pplying Garner in a common-sense way, a reasonable

officer would hav e known that firing i nto the cabin of a pic

kup truck, traveling at approximate

ly 80 miles pe

r hour on Interstate

85 in the morning, would transform the risk of an accident on the

highway into a vi

rtual certainty . The facts of this case bear

out these foreseeabl e consequences. Thus, Deputy Cox is not entitled to summary

judgment, on

qualified imm

unity grounds, re

gardingVaughan’s § 1983 claim predica

ted on the Fourth Am

endment. But Cox is not foreclosed

from asserti

ng a qualified imm

unity defense at

trial. If the jury were

to accept Cox’s ve

rsion of the facts, the qua

lified imm

unity analysi s would be changed. If Ra

yson and Vaughan’ s collision with C ox’s cruiser wa

s not accidental, or if Rayson

intentionally swerved towards Cox’s cruiser, the jury could conclude that Cox had probable cause to believe that Ray son had “co mmitted a crime involvingthe infliction or thr eatened inflic

t ion of serious physical harm.” Garner , 471 U.S. at 11-12, 105 S. Ct . at 1701. And, under those f acts, the risk pre sented by Cox’s allowing

Rayson and Vaug

han’s flight

to continue is starkly different. Rather than the simple risk o f an unintended acci dent, Co x may have b een faced with the danger of int ended harm b rought a bout by Vaughan and Rayson. Cox may seek19

special interrogatories to the jury to resolve factual disputes going to the qualified immunity defense. See Johnson v. Breeden , 280 F.3d 1308, 1317- 18 (11th Cir. 2002); Cottrell v. Caldwe ll , 85 F.3d 1480, 1487- 88 (11th Cir. 1996); Kelly

v. Curtis , 21 F.3d 1544, 1546-47 ( 11th Cir. 1994). B. Vaughan’s Substa

ntive Due Process Claim We conclude that Vaugha n’s substantive due p

rocess claim,

which is predicated

on the Fourteenth Am

endment and base

d on Cox’s alleged d

el iberately indifferent

and conscience- s hocking conduct, lacks merit. The Supreme Court has held that in cases in

which police officers are required to make quick j udgments about the proper course of a

ction and therefore

cannot d eliberate before acting, even a showingthat the officer’ s recklessness caus ed the plaintiff’ s injury is insuf ficient to sup port a substantive due process claim. See County of Sacramento v . Lewis , 523 U.S. 833, 853-54,

118 S. Ct. 1708, 1720 (1998). In stead, a violation

of substantive due process will be foun d only when a plai

ntiff can show that

the offic er had “ a purpose to cause harm unr elated to the legitim

ate object of

arrest.” Id. at 836, 118 S. Ct. at 1711. Vaughan has not pres ented any eviden ce to suggest that Cox’ s actions

were motivate d by

anything but the de sire to arrest Va ughan and Rayson. Accordi ngly, we affirm the grant of sum mary jud gment to all Defendants on Vaugh an’s s ubst antiv e due p roces s clai m.8 It is not clear what e

ntity is sued in

Vaughan’s off

icial-capacity

claims against Cox and Yeager. 20 IV. CONCLUSION Viewing t he facts in the light m ost favorable to Va

ughan, Deputy Cox is not entitled to summary

judgment base

d on qualified imm

unity on Vaughan’ s Fourth Amendme

ntclaims. Ac cordin gly, we VACATE the di strict cou rt’s judgment to the extent that it granted sum

mary jud g men t in Cox’s favor on Vaug han’s 42 U.S.C. § 1983 Fourth Amendment claim. Because the district court did not address whether

a viable official-capacity action could be brought against Deputy Cox or She riff Yeager, 8 or wheth er Cowet a Count y c o uld be held liable for Cox’s actions, we VACATE the grant

of judgment

in favor of all Defendants on Vaughan’s 42 U.S.C. § 1983 Fourth Amendment claim, an d leave these issues t o the district court t

o address in the first instance. And, because we r eins tate the federal claims, we VACATE the district court’ s di scret ionary dism issal of the state la

w claims. T

he district court’s judg ment is otherwise AFFIRMED. AFFIRMED IN PART; VACATED IN PART AND REMANDED.