              Case: 11-14722      Date Filed: 10/12/2012    Page: 1 of 12

                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT



                                     No. 11-14722


                    D. C. Docket No. 3:10-cv-00695-HES-TEM

JOANN COOPER,
individually and as next friend of D.C.,

                                                       Plaintiff-Appellee,

                                         versus

JOHN RUTHERFORD,
in his official capacity as Sheriff of the
Consolidated City of Jacksonville and
Duval County, Florida, et al.,

                                                       Defendants,

RYAN BLACK,

                                                       Defendant-Appellant.



                    Appeal from the United States District Court
                        for the Middle District of Florida


                                  (October 12, 2012)

                         ON PETITION FOR REHEARING
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Before DUBINA, Chief Judge, JORDAN and ALARCÓN,* Circuit Judges.

PER CURIAM:

       Before the court is Appellees’ petition for rehearing. We grant the petition,

vacate our previous opinion in Cooper v. Rutherford, ___ F. App’x ___ (11th Cir.

2012), and substitute the following opinion in lieu thereof:

       This case arises from a tragic situation involving innocent bystanders

caught in the middle of a police chase of an armed suspect. Appellees Joann

Cooper (“Cooper”) and her son (collectively “Appellees”) were seriously injured

when an armed bank robber attempted to elude the police by attempting to steal

the car in which they were riding. Rather than allow the armed bank robber to

escape with hostages, the officers on the scene fired their weapons at the suspect

until he was neutralized. Unfortunately, Cooper and her son were both hit by

bullets intended for the bank robber. Appellant Officer Ryan Black was one of the

officers on the scene. He appeals the district court’s order finding that he is not

entitled to qualified immunity for his actions stemming from this tense

confrontation. Despite our sympathy for the Appellees, we reverse the district

court’s order denying Officer Black qualified immunity, and remand this case with


       *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
designation.

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directions that Officer Black be granted qualified immunity and dismissed from

this case with prejudice.

                                          I.

      On March 26, 2010, the Jacksonville Sheriff’s Office dispatched officers to

respond to the robbery of a Wachovia Bank and informed the officers that the

suspect was armed. Officers arrived on the scene and observed the suspect

running to a nearby Wendy’s with a gun still in his hand. At the same time,

Cooper was in her automobile with her two children waiting in the Wendy’s drive-

thru lane. The suspect approached the car and forced Cooper into the passenger

seat to gain control of the vehicle.

      Multiple police officers, including Officer Black, arrived at the Wendy’s

restaurant and observed the attempted carjacking. The officers ordered the suspect

to stop and show his hands. Though Cooper successfully wrenched the gun from

the suspect’s hand, the officers continued to believe the suspect to be armed.

Officer Black also observed the children in the back seat of the car.

      Officer Jessie York fired his shotgun twice at the open car door. Upon

hearing these gunshots, officers on the scene concluded, albeit incorrectly, that the

suspect had begun to fire upon the officers. Officer Black, along with Officers

Darries Griffith and York, began to fire at the car. After firing all of the


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ammunition in his gun’s magazine, Black reloaded his weapon and continued

firing as Cooper’s car began to move past him. The suspect then attempted to exit

the car. In total, Officer Black, who continued to fire his weapon until the suspect

was neutralized, fired 24 shots—four times as many shots as the officer who fired

the second most bullets.

       Unfortunately, Cooper and her son were struck by bullets during this

confrontation. Cooper was hit in the right foot and required surgery. Her son was

shot in the arm and upper torso. He was rushed to the hospital with critical

injuries, including a collapsed lung and multiple fractures.

       Cooper filed a lawsuit on behalf of herself and her son against the officers

involved in the shooting in their individual capacities, asserting claims premised

upon liability pursuant to 42 U.S.C. § 1983 for: (1) an unreasonable seizure by the

individual officers, in violation of the Fourth and Fourteenth Amendments; and (2)

a deprivation of liberty without due process, in violation of the Fourteenth

Amendment.1 The officers moved to dismiss on the basis of qualified immunity,

which the district court granted for all officers save Officer Black. The district

court denied Officer Black’s motion to dismiss, finding that he was not entitled to




       1
        Cooper and her son also brought claims against Sheriff John Rutherford in his official
capacity as Sheriff of Jacksonville. Those claims are not a part of this appeal.

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qualified immunity because his actions, firing 24 shots compared to six or four,

were unreasonable and “shocked the conscience.”

                                          II.

      When a defendant raises the defense of qualified immunity in a motion to

dismiss, this court “review[s] the denial of [the] motion . . . de novo and

determine[s] whether the complaint alleges a clearly established constitutional

violation, accepting the facts alleged in the complaint as true, drawing all

reasonable inferences in [Appellees’] favor, and limiting our review to the four

corners of the complaint.” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir.

2010) (citation omitted).

                                         III.

      When faced with a question of qualified immunity, this court conducts a

two-step analysis to determine whether Appellees carried their burden of

“establishing both that [Black] committed a constitutional violation and that the

law governing the circumstances was already clearly established at the time of the

violation.” Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010) (per curiam)

(citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815–816 (2009)).

We may consider “the two prongs of the qualified immunity analysis” in any

order, at our discretion. Pearson, 555 U.S. at 236, 129 S. Ct. at 818.


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      With regard to both the unreasonable seizure claim and the substantive due

process claim, discussed infra, our analysis begins and ends with the clearly

established prong. Assuming, without deciding, that Officer Black committed a

constitutional violation, Appellees have not demonstrated that Black’s conduct

violated clearly established law. A plaintiff can “demonstrate that his right was

clearly established in a number of ways.” Mercado v. City of Orlando, 407 F.3d

1152, 1159 (11th Cir. 2005). He can show “a materially similar case has already

been decided, giving notice to the police.” Id. Or he can “show that a broader,

clearly established principle should control” his situation. Id. Finally, the case

may fit “within the exception of conduct which so obviously violates the

[C]onstitution that prior case law is unnecessary.” Id. In the Fourth Amendment

context, where cases are very fact-specific, “pre-existing, factually similar cases

are—not always, but (in our experience) usually—needed to demonstrate that

officials were fairly warned that their application of force violated the victim’s

constitutional rights.” Willingham v. Loughnan, 321 F.3d 1299, 1303 (11th Cir.

2003). See also Ryburn v. Huff, ___ U.S. ___, 132 S. Ct. 987, 990 (2012) (per

curiam) (“No decision of this Court has found a Fourth Amendment violation on

facts even roughly comparable to those present in this case.”). Appellees have not

provided us with any cases suggesting that Black’s alleged conduct violated the


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Fourth or Fourteenth Amendments. Therefore, Appellees have not carried their

burden of showing that the alleged constitutional violations were clearly

established under prevailing United States Supreme Court, Florida Supreme Court,

or Eleventh Circuit law. See Thomas v. Roberts, 323 F.3d 950, 955 (11th Cir.

2003) (“[O]nly Supreme Court cases, Eleventh Circuit caselaw, and [state]

[s]upreme [c]ourt caselaw can ‘clearly establish’ law in this circuit.”).

                                          A.

      Regarding the Fourth Amendment unreasonable seizure claim, Appellees

point to two cases, Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400 (2007)

and Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003), that they believe clearly

establish that the events on March 26, 2010, amount to a seizure for the purposes

of the Fourth Amendment. However, the facts underpinning those cases are not

materially similar to the case at bar and neither clearly establishes that a Fourth

Amendment seizure occurred. In Brendlin, the Supreme Court merely held that

when officers stop a car during a routine traffic stop, the driver and passengers

alike are seized. 551 U.S. at 251, 127 S. Ct. at 2403. The Supreme Court never

mentioned the use of deadly force, hostages, innocent bystanders, or any other

facts that are remotely similar to the case at bar. Therefore, even if the Supreme

Court intended Brendlin to apply to the events that took place in this case, it could


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not have provided Officer Black with fair notice that a seizure was taking place

and thus cannot be used to satisfy the requirement that the law be clearly

established. See Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir. 2011).

      Meanwhile, this court in Vaughan certainly clearly established that if a

passenger-suspect is shot by a bullet intended to stop his fleeing during a chase

with police officers, then he is seized for purposes of Fourth Amendment analysis.

343 F.3d at 1329 (holding a seizure occurs when a passenger of a car “[is] hit by a

bullet that [is] meant to stop him”) (emphasis added)). However, this court just as

clearly acknowledged the difference between the events in Vaughan and the exact

situation in this case—when an innocent bystander or hostage is accidentally shot

by police officers chasing a fleeing suspect. Vaughan, 343 F.3d at 1328 n.4

(noting that the innocent bystander and hostage cases from other circuits were

unhelpful in deciding Vaughan because the passenger shot during the chase was

also a suspect that the police officers were trying to apprehend). Therefore, pre-

existing case law does not clearly establish that Appellees were seized when

Officer Black’s bullet accidentally struck them during the confrontation with the

armed bank robber.

      Nor is this a case involving an instance in which “a general constitutional

rule already identified in the decisional law. . . appl[ies] with obvious clarity to the


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specific conduct in question[.]” See United States v. Lanier, 520 U.S. 259, 271,

117 S. Ct. 1219, 1227 (1997); see also Priester v. City of Riviera Beach, Fla., 208

F.3d 919 (11th Cir. 2000) (“When . . . ‘the official’s conduct lies so obviously at

the very core of what the Fourth Amendment prohibits that the unlawfulness of the

conduct was readily apparent to the official, notwithstanding the lack of caselaw,’

the official is not entitled to the defense of qualified immunity.”). The existing

case law regarding whether Appellees were seized for the purposes of the Fourth

Amendment is far from settled, as evidenced by the varying decisions from our

sister circuits analyzing similar situations. Compare Childress v. City of Arapaho,

210 F.3d 1154 (10th Cir. 2000) (no seizure), Schaefer v. Goch, 153 F.3d 793 (7th

Cir. 1998) (no seizure), Medeiros v. O’Connell, 150 F.3d 164 (2d Cir. 1998) (no

seizure), Rucker v. Harford Cnty., 946 F.2d 278 (4th Cir. 1991) (no seizure), and

Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st Cir. 1990) (no seizure), with

Fisher v. City of Memphis, 234 F.3d 312 (6th Cir. 2000) (seizure).

      Moreover, even if we determine that it is clearly established that Appellees

were seized for the purposes of the Fourth Amendment, we are unaware of any

case that clearly establishes that Officer Black’s actions were constitutionally

unreasonable. The district court determined that the other officers who fired their

weapons acted reasonably because the use of deadly force against the fleeing


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armed bank robber was appropriate, see Robinson v. Arrugueta, 415 F.3d 1252,

1255 (11th Cir. 2005), and they only fired between four and six times. However,

the district court also found that Officer Black was unreasonable for firing 24

times. We agree that deadly force against the armed robber was appropriate, but

we cannot find a single case in this circuit or from the Supreme Court that clearly

establishes that a large number of shots fired makes a reasonable use of deadly

force unreasonable. In fact, this court recently held that “[a] police officer is

entitled to continue his use of force until a suspect thought to be fully armed is

‘fully secured.’” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 822–23 (11th Cir.

2010) (quoting Crenshaw v. Lister, 556 F.3d 1283, 1293 (11th Cir. 2009)).

      Once the car started moving forward, Officer Black was faced with the

choice of either allowing the suspect to escape with multiple hostages and perhaps

leading police on a high speed chase through the busy streets of Jacksonville or

ensuring that the suspect could not leave the Wendy’s parking lot. We cannot say

that it is clearly established he made the wrong choice and committed a

constitutional violation. Because “preexisting law [did not] provide [Black] with

fair notice that” firing 24 shots was unreasonable in these circumstances, he is

entitled to qualified immunity as to Appellees’ Fourth Amendment claim for




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unreasonable seizure. See Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir.

2011).

                                           B.

      For the same reasons Officer Black is entitled to qualified immunity for

Appellees’ Fourth Amendment claims, he is also entitled to qualified immunity for

the Fourteenth Amendment substantive due process claims. If Officer Black’s

actions did not constitute a seizure of Appellees, then the non-custodial nature of

the interaction precludes liability unless Officer Black’s actions were “arbitrary or

conscience shocking.” White v. Lemacks, 183 F.3d 1253, 1257 (11th Cir. 1999)

(quoting Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S. Ct. 1061,

1070 (1992)). Again, assuming without deciding that Officer Black violated

Appellees’ constitutional rights, we conclude that it was not clearly established

that his actions violated Appellees’ substantive due process rights under the

Fourteenth Amendment. “[O]nly the most egregious official conduct can be said

to be ‘arbitrary in the constitutional sense[.]” Cnty. of Sacramento v. Lewis, 523

U.S. 833, 846, 118 S. Ct. 1708, 1716 (1998) (quoting Collins, 503 U.S. at 129,

112 S. Ct. at 1070). When officers are forced to make immediate, hasty decisions,

“even precipitate recklessness fails to inch close enough to harmful purpose to

spark the shock that implicates . . . [the Constitution]. . . . [A] purpose to cause


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harm is needed . . . for due process liability in a pursuit case.” Id. at 853–54, 118

S. Ct. at 1720. There is no case law from this circuit or the Supreme Court that

clearly established that Officer Black’s actions shock the conscience. Therefore,

we conclude that he is entitled to the defense of qualified immunity as to

Appellees’ substantive due process claim.

                                         IV.

      For the aforementioned reasons, we reverse the district court’s order finding

that Officer Black is not entitled to qualified immunity as to Appellees’ Fourth

and Fourteenth Amendment claims and remand this case with directions that

Officer Black be granted qualified immunity and dismissed from this cause with

prejudice.

      REVERSED and REMANDED.




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