FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 AUGUST 29, 2003 

 THOMAS K. KAHN 

 CLERK

* Honorable John T. Noonan, Jr., United States Circuit Judge 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-Appellant,

versus

FRED LAWRENCE COX, OFFICER, individually

and in his official capacity as an officer of the

Coweta County Sheriff’s Department,

COWETA COUNTY, GEORGIA, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(August 29, 2003)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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 response. To the extent that the material

facts are in dispute, we, in our review of the grant of summary judgment in favor of Cox, have

2

We grant rehearing sua sponte. In our original opinion, reported at 264 F.3d

1027 (11th Cir. 2001), we concluded that Deputy Fred Lawrence Cox was entitled to

summary judgment as to his qualified immunity defense on Jerry Charles Vaughan’s

42 U.S.C. § 1983 claims arising out of injuries Vaughan suffered during a police

chase. The Supreme Court granted certiorari, Vaughan v. Cox, 536 U.S. 953, 122 S.

Ct. 2653 (2002), vacated 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). Following the filing of supplemental briefs on remand, we

reinstated our original decision and provided a supplemental discussion addressing

Hope in an opinion reported at 316 F.3d 1210 (11th Cir. 2003). We vacate our prior

two opinions in this case in their entirety and substitute the following one, in which

we conclude, among other things, that Cox is not due summary judgment on the basis

of qualified immunity.

I. BACKGROUND & PROCEDURAL HISTORY

In the early morning of January 5, 1998, the Sheriff’s Department of Coweta

County, Georgia, received a report that a red pickup truck with a silver tool box in its

bed had been stolen from a service station along Interstate 85 south of Atlanta.1 The
resolved those disputes 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

report included the information that the suspect, a white male wearing a white t-shirt,

was believed to be heading north on I-85. In response to the report, Deputy Fred

Lawrence Cox and Deputy Jeff Looney headed to the northbound lanes of I-85 in

separate vehicles. Deputy Looney pulled onto the grass median to observe passing

traffic. Deputy Cox continued farther north and stopped at the site of a recent

accident. Deputy Looney soon spotted a truck traveling northward that matched the

description of the stolen vehicle but, contrary to the report, it was towing a trailer

loaded with two personal watercraft. Looney reported his sighting on his radio and

began to follow the truck. After hearing Looney’s report, Deputy Cox radioed

Looney to inform him that there was an accident scene north of Looney’s position and

that he should not attempt to stop the vehicle until it had passed by the accident. 

As the red pickup and Deputy Looney passed him, Deputy Cox pulled out and

joined the pursuit. While tracking the truck, the deputies made efforts to determine

whether the vehicle was indeed the stolen truck. To this end, Deputy Cox sped up

and passed the truck, which was proceeding at or near the speed limit of seventy

miles per hour. He observed two men in the cab. The man in the passenger’s seat,

Jerry Charles Vaughan, matched the description of the suspect. Cox’s suspicions
2 On cross-examination, Vaughan conceded that Rayson began to drive “recklessly”

after the collision with Cox’s vehicle. However, Vaughan maintains that although Rayson did

accelerate, he did not change lanes or weave in and out of traffic at that time.

4

confirmed, he and Deputy Looney decided to use a “rolling roadblock” to stop the

vehicle, which involves officers blocking a suspect vehicle with their police cruisers

and reducing their speed, in the hope that the suspect car will slow down as well.

Deputy Looney positioned his cruiser directly 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 soon as he had positioned his vehicle in front of the truck, Cox

applied his brakes. The truck rammed into the back of Cox’s cruiser. Deputy Cox has

testified that the impact caused him to momentarily lose control of his vehicle;

Vaughan and the pickup’s driver, Freddy Rayson, contend that the impact was both

accidental and insufficient to cause Cox to lose control, and for the purposes of this

appeal, we accept Vaughan’s version of the facts.

After the collision, Rayson did not pull over, but instead accelerated while

staying in the same lane of traffic.

2

 Deputy Cox decided to reposition his vehicle

behind the truck. He unholstered his sidearm and rolled down the passenger side

window. Cox testified that he readied himself in this manner in case Rayson made

aggressive moves in his direction. Cox then shifted his cruiser one lane to the left and

slowed to allow the truck to pass by him. As soon as his cruiser was even with the
5

pickup, Deputy Cox turned on his rooftop lights. Rayson responded by accelerating

to eighty to eighty-five miles per hour in a seventy-miles-per-hour zone. Cox then

fired three rounds into the truck without warning. Although Cox testified that he

fired because the pickup swerved as if to smash into his cruiser, Vaughan maintains

that the truck, while increasing its speed, made no motion in the direction of Cox’s

vehicle; again, we accept Vaughan’s version of the events.

 Deputy Cox’s plan was to disable either the truck or Rayson so that he could

force the truck off the road. However, his volley disabled neither the truck nor

Rayson. The third bullet fired from Cox’s weapon instead punctured Vaughan’s

spine, instantly paralyzing him below the chest. Rayson’s only reaction to the

shooting was to drive faster and more recklessly. Rayson began a desperate break for

freedom which involved weaving in and out of lanes, driving at high speeds through

exit ramps, and dragging at least one of the watercraft, which had fallen off the trailer,

along the ground. 

As the chase continued into more heavily congested sections of the highway,

Cox made several attempts to stop the vehicle, firing his weapon once more, and

repositioning his cruiser in front of the truck. The truck struck Cox’s cruiser, causing

the cruiser to spin out of control and ram into a steel guard rail. Cox was injured and

his cruiser was badly damaged, but the truck continued on, dragging the trailer and
6

watercraft behind. Finally, when Rayson tried to force the truck between two

vehicles, he lost control of the pickup, the trailer jack-knifed, and the truck hit the

cement median. Both Vaughan and Rayson were taken to the hospital. 

Vaughan filed suit for damages pursuant to 42 U.S.C. § 1983 against three

named defendants: Deputy Cox, in both his individual capacity and his official

capacity; Coweta County Sheriff Mike Yeager, in his official capacity; and Coweta

County, Georgia. In Count I, Vaughan alleges that Deputy Cox used excessive force

in violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments. In Count II,

Vaughan alleges that SheriffYeager andCoweta County promulgated and established

policies that caused Deputy Cox to employ excessive force in violation of Vaughan’s

constitutional rights. And in Count III, Vaughan alleges five state law claims

(negligence, assault and battery, false arrest, intentional infliction of emotional

distress and outrageous conduct) against Cox. 

Vaughan, Yeager, and Coweta County (collectively, “the Defendants”) moved

for summary judgment. In its order regarding the summary judgment motion, the

district court initially concluded that Vaughan was not subjected to a “seizure” within

the meaning of the Fourth Amendment, reasoning that Deputy Cox aimed his shots

at the driver of the truck and the truck itself, but not at Vaughan. The court then went

on to conclude that even if Vaughan had been seized, Cox’s use of force was
7

objectively reasonable under the circumstances. As a consequence, the court

concluded that Deputy Cox was entitled to summary judgment on Vaughan’s § 1983

claim predicated on the Fourth Amendment. Having concluded that Cox did not

violate Vaughan’s constitutional rights, the court granted summary judgment in favor

of Sheriff Yeager and Coweta County because Vaughan’s claims against these

defendants were derivative claims based on Deputy Cox’s conduct. The court

declined to exercise supplemental 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 concluded that Vaughan was not seized when he was struck by

the bullet fired by Cox. Second, he argues that genuine issues of material fact exist

as to whether Cox’s actions were objectively reasonable, and therefore Cox is not

entitled to summary judgment on the basis of qualified immunity. Finally, Vaughan

suggests that even if he was not subjected to a “seizure” for Fourth Amendment

purposes, he still may maintain a Fourteenth Amendment substantive due process
3 On appeal, Vaughan does not raise any issues relating to his § 1983 claims based on

the Fifth Amendment or the Eighth Amendment. 

8

claim based on his allegation that Cox’s conduct “shocks the conscience” and

exhibited deliberate indifference.3

We review de novo the district court’s grant of summary judgment, drawing all

reasonable inferences in favor of the nonmoving party, Vaughan. Artistic

Entertainment, Inc. v. City of Warner Robins, 331 F.3d 1196, 1203 (11th Cir. 2003).

In conducting our de novo review, we apply the same familiar standards as the district

court to evaluate the Defendants’ entitlement to summary judgment. Hallum v.

Provident Life & Acc. Ins.Co., 326 F.3d 1374, 1375-76 n.1 (11th Cir. 2003). We will

address in turn each of Vaughan’s arguments.

III. DISCUSSION

A. Vaughan’s Fourth Amendment Claim

1. Was Vaughan subjected to a seizure?

The first step in reviewing an excessive force claim is to determine whether the

plaintiff was subjected to the “intentional acquisition of physical control” by a

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

Fourth Amendment. Brower v. County of Inyo, 489 U.S. 593, 596, 109 S. Ct. 1378,

1381 (1989). It is clear that “apprehension by the use of deadly force is a seizure.”
4

In support of this position, Deputy Cox cites several cases from our sister circuits in

which courts rejected Fourth Amendment claims brought by innocent bystanders or hostages

accidentally harmed by police fire. See Rucker v. Harford County, 946 F.2d 278 (4th Cir. 1991)

(bystander not seized by police bullet aimed at fleeing vehicle); Childress v. City of Arapaho, 210

F.3d 1154 (10th Cir. 2000)(hostage wounded by police bullet aimed at suspect not seized); Medeiros

v. O’Connell, 150 F.3d 164 (2nd Cir. 1998) (same); Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st

Cir. 1990) (same). These cases are of little aid to our inquiry, however, because Vaughan was

neither an innocent bystander nor a hostage; instead, he was a suspect whom Deputy Cox sought to

apprehend.

9

Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 1699 (1985). However, the

Supreme Court has held that a seizure occurs “only when there is a governmental

termination of freedom of movement through means intentionally applied.” Brower,

489 U.S. at 597, 109 S. Ct. at 1381 (emphasis in original). The question remains

whether Cox’s action in firing his weapon at the truck and its driver can be deemed

“means intentionally applied” to seize Vaughan. 

The district court concluded, and Deputy Cox contends here, that Vaughan was

not seized by the bullet because Cox did not intend to hit Vaughan when he fired his

pistol. Instead, Cox planned to 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 Vaughan was not seized because Cox, while intending to apprehend

Vaughan, did not intend to stop him by shooting him.4 In Deputy Cox’s view,

because he did not intend to shoot Vaughan, he contends that Vaughan did not suffer

a Fourth Amendment seizure. We disagree.
5 The fact that Vaughan was not taken into custody immediately following the shooting

is immaterial. As the Supreme Court has noted, the “application of physical force to restrain

movement, even when it is ultimately unsuccessful” is sufficient to constitute a seizure. California

v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 1550 (1991). Undeniably, Cox’s firing of his

weapon was an application of force designed to restrain Vaughan’s movement. 

10

The Supreme Court has cautioned against a too finely drawn reading of

“means intentionally applied.” Brower, 489 U.S. at 598, 109 S. Ct. at 1382. It is not

necessary for the means by which a suspect is seized to conform exactly to the means

intended by the officer; otherwise courts could be compelled to conclude that “one

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 meant 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 person be stopped by the very instrumentality set in motion

or put in place in order to achieve that result.” Id. at 599, 109 S. Ct. at 1382. That

standard has been met in this case. Cox fired his weapon to stop Vaughan and

Rayson, and one of those bullets struck Vaughan.5

 Because Vaughan was hit by a

bullet that was meant to stop him, he was subjected to a Fourth Amendment seizure.

2. Is Deputy Cox entitled to qualified immunity?

Having concluded that Vaughan was subjected to a seizure, we now turn to the

merits of Vaughan’s Fourth Amendment claim and Deputy Cox’s qualified immunity

defense. Under Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001), we must
11

conduct a two-part inquiry. See id. at 200, 121 S. Ct. at 2155. First, we must ask if

the facts, taken in the light most favorable to Vaughan, show that Deputy Cox’s

conduct violated Vaughan’s Fourth Amendment rights. Id. at 201, 121 S. Ct. at 2156.

Second, if we conclude that a reasonable jury could find that Vaughan’s

constitutionalrights were violated under the facts alleged, we must determine whether

Vaughan’s rights were clearly established – that is, whether it would have been clear

to a reasonable officer that Deputy Cox’s conduct was unlawful. Id. at 202, 121 S.

Ct. at 2156.

As to the first inquiry, we conclude that a reasonable jury could find that

Deputy Cox acted unreasonably in firing at the pickup truck. The Fourth Amendment

protects individuals from “unreasonable” seizures, and the Supreme Court has

clarified when the use of deadly force is “reasonable” for purposes of the Fourth

Amendment. In Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694 (1985), the

Supreme Court held that a police officer may use deadly force to seize a fleeing

felony suspect when the officer: (1) “has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or to others” or “that he

has committed a crime involving the infliction or threatened infliction of serious

physical harm;” (2) reasonably believes that the use of deadly force was necessary to

prevent escape; and (3) has given some warning about the possible use of deadly
6 There is no dispute that Vaughan was a suspect in at least one felony.

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 and

drawing all reasonable inferences in Vaughan’s favor, a reasonable jury could

conclude that, at the time Cox fired the shot that struck Vaughan: (1) Deputy Cox did

not have probable cause to believe that Vaughan and Rayson’s flight posed an

immediate threat of serious harm to Deputy Cox, other police officers, or innocent

motorists, or thatVaughan and Rayson had committed a crime involving the infliction

or threatened infliction of physical harm; (2) the use of deadly force was not

necessary to stop the suspects; or (3) it was feasible to warn Vaughan and Rayson of

the possible use of deadly force. See Acoff, 762 F.2d at 1547.

We conclude that a reasonable jury could find, under Vaughan’s version of the

facts, that Deputy Cox’s use of deadly force to apprehend Vaughan and Rayson was

unconstitutional. Genuine issues of material fact remain as to whether Vaughan and

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

time Cox fired the shot that struck Vaughan. Based on Vaughan’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 suspects at the time of the shooting. Nor does the

record reflect that the suspects had menaced or were likely to menace others on the
7

In support of his position, Cox cites three cases from our sister circuits in which

courts found the application of deadly force in a high-speed pursuit to be reasonable as a matter of

law. However, the facts of these cases diverge significantly from the case before us. In Smith v.

Freland, 954 F.2d 343 (6th Cir. 1992), a suspect led an officer on a “wild chase at speeds in excess

of ninety miles per hour,” attempted to ram the officer’s car twice, and drove around a police

blockade at high speed in an effort to avoid arrest. 954 F.2d at 344. The officer eventually cornered

the suspect in a dead-end street, blocking the 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 deadly force

to prevent the suspect’s escape. Id. The Sixth Circuit concluded that the officer’s use of deadly

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 Cole v. 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 multiple 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 motorists off the road. Id. at 1330-31. During the chase, the

pursuing officers were continuously 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 multiple 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 fatally wounded by the second shot. Id. The court

held that, in light of all the information available to the officer, it was reasonable for the 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 fired. Moreover,

according to Vaughan, the collision between the truck and Cox’s cruiser was both

accidental and insufficient to cause Cox to lose control. Thus, under this version of

the facts, when Deputy Cox discharged his weapon, he simply faced two suspects

who were evading arrest and who had accelerated to eighty to eighty-five miles per

hour in a seventy-miles-per-hour zone in an attempt to avoid capture. Under such

facts, a reasonable jury could find that Vaughan and Rayson’s escape did not present

an immediate threat of serious harm to Cox or others on the road.7
conclude that the suspect posed an imminent threat of serious harm. Id. at 1333.

Finally, in Scott v. Clay County, 205 F.3d 867 (6th Cir. 2000), the police began pursuing a

suspect who had raced through an intersection in contravention of a stop sign. 205 F.3d at 871.

Rather than stop for the police, the suspect led them on a twenty-minute chase over rural roads at

speeds ranging from eighty-five to one hundred 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

an arrest. Id. The suspect’s vehicle rapidly accelerated in the officer’s direction, forcing the officer

to leap out of the way 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 “ongoing 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 Deputy Cox’s use of deadly force

was not necessary to prevent escape. When the shots were fired, the vehicles were

traveling between eighty and eighty-five miles per hour, Cox’s cruiser was parallel

with the truck, and another police cruiser was following closely behind. Besides

accelerating, the suspects had not engaged in any evasive maneuvers. Moreover,

there is evidence that could support a finding that the truck, with trailer in tow, was

easily identifiable and could have been tracked, and that the officers could have

sought assistance from other jurisdictions to follow the suspects. Viewing the facts

in Vaughan’s favor, a reasonable jury could conclude that the use of deadly force was

not necessary to prevent Vaughan and Rayson’s escape. 

Lastly, a reasonable jury could find that it was feasible for Cox to warn

Vaughan and Rayson of the potential use of deadly force. According to Vaughan’s

version of the events, Cox pulled his cruiser parallel to the truck, turned on his
15

rooftop lights, and traveled alongside the truck for thirty to forty-five seconds before

firing his weapon. A reasonable jury could conclude that Cox had the time and

opportunity to warn Vaughan and Rayson that he was planning to use deadly force

before he opened fire.

We are loath to second-guess the decisions made by police officers 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 law that a reasonable jury could not find that

Deputy Cox’s actions were unreasonable under the standards for using deadly force

articulated in Garner. Accordingly, we conclude under the first prong of the Saucier

analysis that Vaughan has alleged facts which could support a jury’s finding that Cox

violated Vaughan’s Fourth Amendment rights. Thus, the district court erred in

granting the Defendants summary judgment on the ground that no FourthAmendment

violation occurred. The issue is one for the jury. Deputy Cox disputes much of

Vaughan’s version of the events leading up to the shooting; for example, Cox

maintains that the suspects rammed his vehicle, causing him to lose control

momentarily, and swerved at him before he fired his weapon. A jury accepting Cox’s

assertions could conclude that Vaughan and Rayson presented a serious threat to Cox

or others on the road, or that Cox had probable cause to believe that Vaughan and

Rayson, in ramming Cox’s cruiser and swerving towards him, had “committed a
16

crime involving the infliction or threatened infliction of serious physical harm,” that

the use of deadly force was necessary to prevent escape, and that it was not feasible

for Cox to warn Vaughan and Rayson. Garner, 471 U.S. at 11-12, 105 S. Ct. at 1701.

 Nonetheless, our obligation at this stage of the proceedings is to view all of the

evidence in the light most favorable to Vaughan. 

Having concluded that the facts alleged could establish a constitutional

violation, we now turn to the second prong of the Saucier analysis and ask whether

it would have been clear to an objectively reasonable officer that Deputy Cox’s

conduct was unlawful. It is well-settled that a constitutional right is clearly

established only if its contours are “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 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 and cases that apply those rules to factual circumstances

to determine if a reasonable public official, who is charged with knowledge of such

decisions, would have understood the constitutional implications of his conduct.

With regard to this inquiry, the Supreme Court in Hope cautioned that we should not

be unduly rigid in requiring factual similarity between prior cases and the case under

consideration. The “salient question,” the Court said, is whether the state of the law
17

gave the defendants “fair warning” that their alleged conduct was unconstitutional.

Hope, 536 U.S. at 741, 122 S. Ct. at 2516.

As noted above, the constitutionality of a police officer’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 should still be entitled to qualified

immunity is distinct, albeit similar. See Saucier, 533 U.S. at 204, 121 S. Ct. at 2158.

Under that standard, an officer will be entitled to qualified immunity if he had

“arguable probable cause” to employ deadly force; in essence,we decide whether “the

officer reasonably could have believed that probable 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 qualified immunity defense, we apply an objective standard,

asking “whether the officer’s actions are objectively reasonable in light of the facts

confronting the officer, regardless of the officer’s underlying intent or motivation.”

Id. at 183.

Taking the facts as alleged by Vaughan, an objectively reasonable officer in

Deputy Cox’s position could not have believed that he was entitled to use deadly

force to apprehend Vaughan and Rayson. Under Garner, a police officer can use

deadly force to prevent the escape of a fleeing non-violent felony suspect only when
18

the suspect poses an immediate threat of serious harm to police officers or others. In

this case, the danger presented by Vaughan and Rayson’s continued flight was the

risk of an accident during the pursuit. Applying Garner in a common-sense way, a

reasonable officer would have known that firing into the cabin of a pickup truck,

traveling at approximately 80 miles per hour on Interstate 85 in the morning, would

transform the risk of an accident on the highway into a virtual certainty. The facts of

this case bear out these foreseeable consequences. Thus, Deputy Cox is not entitled

to summary judgment, on qualified immunity grounds, regarding Vaughan’s § 1983

claim predicated on the Fourth Amendment.

But Cox is not foreclosed from asserting a qualified immunity defense at trial.

If the jury were to accept Cox’s version of the facts, the qualified immunity analysis

would be changed. If Rayson and Vaughan’s collision with Cox’s cruiser was not

accidental, or if Rayson intentionally swerved towards Cox’s cruiser, the jury could

conclude that Cox had probable cause to believe that Rayson had “committed a crime

involving the infliction or threatened infliction of serious physical harm.” Garner,

471 U.S. at 11-12, 105 S. Ct. at 1701. And, under those facts, the risk presented by

Cox’s allowing Rayson and Vaughan’s flight to continue is starkly different. Rather

than the simple risk of an unintended accident, Cox may have been faced with the

danger of intended harm brought about by Vaughan and Rayson. Cox may seek
19

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. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996); Kelly v. Curtis,

21 F.3d 1544, 1546-47 (11th Cir. 1994).

B. Vaughan’s Substantive Due Process Claim

We conclude that Vaughan’s substantive due process claim, which is

predicated on the Fourteenth Amendment and based on Cox’s alleged deliberately

indifferent and conscience-shocking conduct, lacks merit. The Supreme Court has

held that in cases in which police officers are required to make quick judgments about

the proper course of action and therefore cannot deliberate before acting, even a

showing that the officer’s recklessness caused the plaintiff’s injury is insufficient to

support a substantive due process claim. See County of Sacramento v. Lewis, 523

U.S. 833, 853-54, 118 S. Ct. 1708, 1720 (1998). Instead, a violation of substantive

due process will be found only when a plaintiff can show that the officer had “a

purpose to cause harm unrelated to the legitimate object of arrest.” Id. at 836, 118 S.

Ct. at 1711. Vaughan has not presented any evidence to suggest that Cox’s actions

were motivated by anything but the desire to arrest Vaughan and Rayson.

Accordingly, we affirm the grant of summary judgment to all Defendants on

Vaughan’s substantive due process claim.
8

It is not clear what entity is sued in Vaughan’s official-capacity claims against Cox

and Yeager.

20

IV. CONCLUSION

Viewing the facts in the light most favorable to Vaughan, Deputy Cox is not

entitled to summary judgment based on qualified immunity on Vaughan’s Fourth

Amendment claims. Accordingly, we VACATE the district court’s judgment to the

extent that it granted summary judgment in Cox’s favor on Vaughan’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 Sheriff

Yeager,8

 or whether Coweta County could 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, and leave these issues to the district court to

address in the first instance. And, because we reinstate the federal claims, we

VACATE the district court’s discretionary dismissal of the state law claims. The

district court’s judgment is otherwise AFFIRMED.

AFFIRMED IN PART; VACATED IN PART AND REMANDED.