                                                                      [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                        FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                         ________________________           ELEVENTH CIRCUIT
                                                                January 3, 2003
                                                             THOMAS K. KAHN
                                 No. 00-14380                      CLERK
                          ________________________
                      D. C. Docket No. 99-00006-CV-JTC-3

JERRY CHARGES 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
                       _________________________
                              (January 3, 2003)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before CARNES, COX and NOONAN*, Circuit Judges.

COX, Circuit Judge:

      *
            Honorable John T. Noonan, Jr., United States Circuit Judge for the
Ninth Circuit, sitting by designation.
      The issue presented by this case is whether Deputy Fred Lawrence Cox is

entitled to qualified immunity and, consequently, is shielded from Jerry Charles

Vaughan’s suit seeking damages under 42 U.S.C. § 1983 for alleged violations of his

Fourth Amendment rights arising out of a police chase. This case is before us on

remand from the Supreme Court. In our earlier opinion, Vaughan v. Cox, 264 F.3d

1027 (11th Cir. 2001), we concluded that a reasonable jury could find that Deputy

Cox’s use of deadly force was unconstitutional, but we affirmed the district court’s

grant of summary judgment to Deputy Cox in his individual capacity because he was

protected by qualified immunity. Id. at 1035, 1037. The Supreme Court vacated our

judgment and remanded the case for reconsideration in light of its recent decision in

Hope v. Pelzer, 536 U.S. ___, 122 S. Ct. 2508 (2002). We asked the parties to file

supplemental briefs addressing the effect of Hope on the outcome of this case. Having

reconsidered this case in light of Hope, we hold that Deputy Cox is entitled to

qualified immunity.

      The facts of this case are presented in our original opinion, and we need not

repeat the story. See Vaughan, 264 F.3d at 1030-32. Vaughan filed suit for damages

under 42 U.S.C. § 1983 alleging that Deputy Cox violated his Fourth Amendment

rights by employing deadly force (firing a shot that paralyzed Vaughan) in violation

of the constitutional requirements of Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694


                                          2
(1985). Because Vaughan has alleged a constitutional violation and Deputy Cox has

asserted a qualified immunity defense, we must conduct a two-part inquiry.1 Saucier

v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 2155 (2001). 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 Vaughan’s constitutional rights have been violated under the facts

alleged, we must determine whether Vaughan’s right was 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.

      In our original opinion, we addressed Vaughan’s purported constitutional

violation and held that a reasonable jury could conclude – if the facts alleged by

Vaughan were proven – that a constitutional violation occurred. Vaughan, 264 F.3d

at 1034-35. The Supreme Court’s decision in Hope does not modify our analysis of

the underlying Fourth Amendment violation.

      Having concluded that the facts alleged could support a constitutional violation,

we now revisit the qualified immunity question: whether it would be clear to a

reasonable officer that Deputy Cox’s conduct was unlawful. It is well-settled that a


      1
         We review de novo a district court’s grant of summary judgment, drawing
all inferences in favor of the nonmoving party, Vaughan. Korman v. HBC Fla.,
Inc., 182 F.3d 1291, 1293 (11th Cir. 1999).
                                          3
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 or apply those rules to

factual circumstances to determine if a reasonable public official, who is charged with

knowledge of such opinions, 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 gave the defendants “fair warning” that their alleged conduct was

unconstitutional. Hope, 536 U.S. at ___, 122 S. Ct. at 2516. We reconsider the

qualified immunity issue in light of Hope.2



       2
          Even if the caselaw fails to make sufficiently clear to a reasonable public
official the constitutional infirmity of his conduct, the official may not be entitled
to qualified immunity if his 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.” Smith v. Mattox, 127
F.3d 1416, 1419 (11th Cir. 1997). This exception is narrow. See Lee v. Ferraro,
284 F.3d 1188, 1199 (11th Cir. 2002). The Supreme Court’s opinion in Hope
neither eviscerated nor modified this court’s decision in Smith, and on remand,
Vaughan does not contend that Deputy Cox’s conduct falls within Smith’s narrow
scope.
                                             4
      On remand, Vaughan relies exclusively on the rule announced in Tennessee v.

Garner. His reliance is misplaced. In Garner, the Supreme Court held that deadly

force is permissible if (1) the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or to others, (2) the use

of deadly force is necessary to prevent escape, and (3) some warning has been given,

if feasible. 471 U.S. at 11-12, 105 S. Ct. at 1701; Acoff v. Abston, 762 F.2d 1543,

1547 (11th Cir. 1985). Although a general constitutional rule “may apply with

obvious clarity to the specific conduct in question” in limited circumstances, we

conclude that the rule announced in Garner does not apply with “obvious clarity” to

Deputy Cox’s conduct in this case. United States v. Lanier, 520 U.S. 259, 271, 117

S. Ct. 1219, 1227 (1997). The Garner rule does not always provide “a clear answer

as to whether a particular application” of deadly force will be deemed unjustified by

the courts. Cf. Saucier, 533 U.S. at 205, 121 S. Ct. at 2158 (concluding that the

general constitutional rule in Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865

(1989), regarding the proper application of non-deadly force did not apply with

obvious clarity to clearly establish that an officer’s conduct was unlawful in the

situation he confronted). Whether Deputy Cox had arguable probable cause, whether

deadly force was necessary to prevent Vaughan’s escape, and whether a warning was

feasible in the instant case are all questions that the general Garner rule does not


                                           5
clearly answer. Because the Garner rule, standing alone, does not apply with

“obvious clarity” such that Deputy Cox was given fair warning that his alleged

conduct was unconstitutional, we must consider whether, in light of Hope, the cases

applying the Garner rule provided fair warning to Deputy Cox that his conduct

violated Vaughan’s constitutional rights.

      We conclude that prior decisions did not provide fair warning to Deputy Cox

that his alleged conduct violated Vaughan’s Fourth Amendment rights. Although the

Hope decision can be read to invite Vaughan to offer analogous, though not

necessarily factually identical, Fourth Amendment cases to show that the law was

clearly established at the time of the shooting, Vaughan has failed to do so. Vaughan

concedes that similar cases do not exist, (Vaughan Supp. Reply Br. at 5), and he cites

only three cases – Garner, Graham, and Acoff – for the proposition that the law

provided fair warning to Deputy Cox as of January 1998 that his conduct was

unconstitutional. Garner and Graham, as noted above, establish general constitutional

rules that do not apply with “obvious clarity” to the incident at issue in this case.

Acoff was brought to our attention when this case was originally before us. See

Vaughan, 264 F.3d at 1034. We conclude that Acoff, which involved a quite different

factual circumstance and invalidated a general police policy that contravened the

principles established in Garner, failed to provide fair warning to Deputy Cox that his


                                            6
application of deadly force violated the Fourth Amendment. Acoff, 762 F.2d at 1547-

48.

      The dissent concludes that summary judgment is improper because a reasonable

jury, under Vaughan’s version of the events, could find that Deputy Cox’s conduct

violated the Fourth Amendment. The dissent reasons that if the jury were to reach

such a conclusion, Deputy Cox necessarily would have been on notice at the time of

the shooting that his conduct was unconstitutional. This approach fails to acknowledge

that law enforcement officers like Deputy Cox may reasonably but mistakenly

conclude that probable cause exists to justify the use of deadly force. For qualified

immunity purposes, therefore, we ask whether officers had “arguable probable cause”

– that is, whether the officer reasonably could have believed that probable cause

existed. Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). In contrast, the

dissent’s approach would deny qualified immunity in any case in which the jury could

conclude that the officer actually lacked probable cause, effectively reading

“arguable” out of the “arguable probable cause” standard. See, e.g., Knight v.

Jacobson, 300 F.3d 1272, 1274 (11th Cir. 2002); St. George v. Pinellas County, 285

F.3d 1334, 1337 (11th Cir. 2002). We decline to adopt such an approach. In our prior

opinion, we concluded that Deputy Cox had arguable probable cause, see Vaughan,

264 F.3d at 1036, and we reaffirm that decision today.




                                          7
      We reinstate our prior decision in its entirety and supplement, by this opinion,

our previous discussion of qualified immunity.

      SO ORDERED.

NOONAN, Circuit Judge, dissenting:

      The petition for a writ of certiorari in this case was granted, and the judgment

of this court was vacated. Vaughan v. Cox, 122 S. Ct. 2653 (June 28, 2002). The case

was remanded to us “for further consideration in light of Hope v. Pelzer, 536 U.S.

___, 122 S. Ct. 2508 (2002).” Hope v. Pelzer had reversed another decision by the

Eleventh Circuit Court of Appeals, 240 F.3d 975 (11th Cir. 2001). That case had held

that prison officials in Alabama would not be on notice that tying a prisoner to a

hitching post for seven hours, his back bare to the sun, his wrists tortured by handcuffs

that swelled with the heat, while he was denied any release to urinate or defecate and

was denied any water by a guard who gave water from a pitcher to a dog but spilled

it on the ground before the prisoner, was cruel and unusual punishment. The Eleventh

Circuit in Hope found the conduct of the prison officials unconstitutional but held that

there were no cases with “materially similar facts” that would have put the officials

on notice that their conduct was cruel and unusual. Id. at 981. Reversing the circuit

court decision, the Supreme Court noted that the “focus in the case was the Eleventh

Circuit’s position that a violation is not clearly established unless it is the subject of

a prior case of liability on facts ‘materially similar’ to those charged.” The Supreme

                                            8
Court noted that the circuit court’s decision “exposes the danger of a rigid

overreliance on factual similarity.” Hope, 122 S. Ct. at 2517. The Court went on to

cite analogous binding Fifth Circuit precedents and to add: “The obvious cruelty

inherent in this practice should have provided respondents with some notice that their

alleged conduct violated Hope’s constitutional protection against cruel and unusual

punishment.” Id. at 2511.

      Invited to give “further consideration” to Vaughan’s case in the light of Hope,

the majority comes to the same conclusion it reached before. The majority states:

“Whether Deputy Cox had arguable probable cause, whether deadly force was

necessary to prevent Vaughan’s escape, and whether a warning was feasible in the

instant case are all questions that the general Garner rule does not clearly answer.”

Op. at p.5.

      In the prior opinion the court held that “a reasonable jury could find that Deputy

Cox acted unreasonably in firing at the pickup. First, material issues of fact remain

as to whether Vaughan and Rayson’s continued escape presented an immediate threat

of serious harm to Cox or others. Assuming Vaughan’s version of events, it is not

clear 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 or were likely to menace

other innocent drivers. What Deputy Cox was faced with at the time he fired his

weapon was simply two suspects who were evading arrest and had accelerated to

                                           9
eighty or eighty-five miles per hour 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.

       “Second, a reasonable jury could find that it was feasible for Cox to warn the

truck’s occupants of the potential application of deadly force.             According to

Vaughan’s version of events, Cox pulled his cruiser parallel to the truck, turned his

rooftop lights on and waited for thirty to forty-five seconds before firing his weapon.

A reasonable jury could therefore 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.” Vaughan v. Cox, 264 F.3d at 1034-35.

       If a reasonable jury found the facts the court says it could find, Cox with time

to warn Vaughan discharged his weapon three times into a small area containing two

human beings. I do not see how Cox’s conduct, if so found, differed in any material

respect from the conduct found to be unconstitutional in Tennessee v. Garner, 471

U.S. 1 (1985). Surely it is not for this court to preempt the jury and resolve all

material facts in dispute against Vaughan. See Saucier v. Katz, 121 S. Ct. 2151, 2156;

Behrens v. Pelletier, 516 U.S. 299, 309 (1996). If, as the court has stated, these facts

could be resolved in Vaughan’s favor, then Cox was on notice that to shoot a fleeing

felon without notice is a seizure in violation of the Fourth Amendment. As the dissent

in our first consideration of this case suggested, it is difficult to discern why, if police

                                            10
officers in Tennessee and Minnesota and Connecticut were on notice that the use of

lethal force to restrain a suspect is unreasonable, Georgia police officers should be

supposed slow to have learned. See Vaughan, at 264 F.3d 1027 (dissent). Not only

case law gave notice. Just as “the obvious cruelty” inherent in their actions gave

“some notice” to the Alabama prison officials in Hope, so the obvious danger inherent

in shooting into the occupied front seat of a car gave Cox “some notice” of the

unconstitutional character of his alleged action.




                                          11
