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Civil rights lawyers around the country shook their heads in amazement last week when they learned of a recent decision on the issue of qualified immunity by the 11th U.S. Circuit Court Appeals. In the case of Vaughan v. Cox, No. 00-14380, a three-judge panel on Aug. 29 reversed itself after twice finding immunity for a police officer sued for shooting a fleeing suspect in a high-speed car chase. Given the 11th Circuit’s reputation as a sympathetic court to law enforcement, the about-face in favor of the plaintiff was surprising enough. But what shocked court watchers was that the panel acted on its own, without any motions by either side in the case and without any prompting by the U.S. Supreme Court. In fact, the justices seemingly had put the issue to rest on June 2, when they denied the plaintiff’s petition to review the 11th Circuit’s latest decision in the matter. “I had completely given up,” said Jeffrey J. Dean, the Dalton, Ga., lawyer who represents Jerry Charles Vaughan, the suspect who was paralyzed in 1998 when the officer shot him during a car chase. But when Dean returned from the Labor Day weekend, he received a congratulatory call from a lawyer telling him the case had been revived. “I thought he was kidding,” said Dean, a partner in Waycaster, Morris, Johnson & Dean. The lawyer was telling the truth. Eleventh Circuit Senior Judge Emmett Ripley Cox, Judge Edward E. Carnes and, visiting from the 9th Circuit, Senior Judge John T. Noonan Jr. had vacated, sua sponte, their previous two rulings and substituted a new one. The new opinion declared that Coweta County sheriff’s deputy Fred Lawrence Cox — who is unrelated to Judge Cox — was not entitled to qualified immunity. Qualified immunity would have shielded the deputy from liability even if his firing on the truck in which Vaughan was riding violated the constitutional ban against unreasonable searches and seizures. Courts grant qualified immunity to officers whose actions do not violate clearly established constitutional rights. “We are loath to second-guess the decisions made by police officers in the field,” wrote Cox for the panel. “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 Supreme Court’s standards for using deadly force. In the first two decisions, Cox and Carnes voted in favor of the deputy’s immunity, but Noonan dissented. How Noonan — a 1985 appointee of President Reagan who recently wrote a book criticizing the U.S. Supreme Court’s states’ rights decision — convinced Cox and Carnes to switch sides is unknown. Frank M. Lowrey IV, who represents the deputy, tried to put the flip-flop into perspective: “Everyone knows it’s theoretically possible” for a court to bring a case back to life in this manner, he said. But Lowrey, who clerked for the 11th Circuit and has spent much of his 10-year practice doing appellate work, said he never had seen a court reverse itself nine months after issuing a decision without some kind of motion from one of the parties. “It’s unusual,” said Lowrey, a partner with Atlanta’s Bondurant, Mixson & Elmore. He said he had not decided whether to ask the full 11th Circuit or the Supreme Court to review the new decision. A ‘BIZARRE’ REVERSAL Other lawyers, particularly those who have argued that the 11th Circuit gives police officers far too much leeway in civil rights cases, were left almost speechless by the sudden reversal. “I am absolutely stunned,” said Barbara Ann Heyer, a Fort Lauderdale, Fla., lawyer who’s fighting an 11th Circuit ruling that granted qualified immunity to two officers who shot her client during an altercation. Heyer’s courtroom opponent, George P. Roberts Jr., of West Palm Beach, Fla., called the 11th Circuit’s sudden reversal in Vaughan “bizarre.” Roberts added that he did not fear that the new Vaughan decision was a harbinger of a switch in his case. The facts in his case, he said, were very different from Vaughan’s. The 11th Circuit’s qualified immunity decisions have come under scrutiny since the Supreme Court’s 2002 ruling in Hope v. Pelzer, 122 S. Ct. 2508. In that case, the justices voted 6-3 to reverse an 11th Circuit decision that had granted qualified immunity to Alabama prison guards who handcuffed a man to a hitching post while he was assigned to chain-gang duty. Writing for the majority, Justice John Paul Stevens said the 11th Circuit had been unduly rigid in requiring the facts of the hitching post case to be similar to those of other cases in which constitutional violations were found. To Stevens and the other five justices in the majority, the use of the hitching post was “obvious cruelty.” But in subsequent qualified immunity cases — such as the one between Heyer and Roberts’ clients, and another in which Clayton County officers won qualified immunity after they looked for a missing $26 by strip-searching fifth graders — the 11th Circuit found that the Hope decision did not remove the liability shield from the officers. Atlanta lawyer Craig T. Jones, who represented the winning side in Hope, called the switch in Vaughan “extraordinary.” He speculated there might be a shift occurring in which the 11th Circuit is accepting Hope more broadly. Maybe, suggested Jones, “the judges are trying to reconcile their conservatism with the law handed down from above.” Karen M. Blum, a Suffolk University law professor who has urged the 11th Circuit to apply the Hope decision broadly to its qualified immunity decisions, said there has been a flurry of activity on the Internet over the new Vaughan ruling. “There are a lot of plaintiffs’ attorneys in the 11th Circuit who have renewed hope that some [civil rights] cases will actually get by summary judgment and the qualified immunity defense,” she said. A ROLLING ROADBLOCK These cases appear to depend highly on the individual facts — and Vaughan shows how complicated a qualified immunity case can be. This is how the incident occurred, according to the 11th Circuit’s decisions, which, for the sake of qualified immunity decisions, assume the plaintiff’s version of events. It started on the morning of Jan. 5, 1998, along I-85 just south of I-285. Coweta County sheriff’s deputies Cox and Jeff Looney pursued a red pickup truck matching the description of a truck that had been reported stolen. Freddy Rayson was driving the truck, and Vaughan was in the passenger seat. Officers Cox and Looney, who were driving separate cruisers, decided to stop the pickup by using a “rolling roadblock.” Looney came up behind the truck, which was pulling a trailer with two jet skis, while Cox sped up and passed it. Cox braked, and the truck, which was traveling almost at the speed limit, struck the back of his cruiser. Cox then moved into the left lane and slowed. When the truck pulled alongside the cruiser, Cox turned on his rooftop lights. Rayson responded by speeding up to about 80 to 85 mph. Cox then fired three rounds into the truck, admitting later that he did not warn Rayson or Vaughan before opening fire. Vaughan was hit, and his spine was punctured. Cox testified in depositions that he fired because the pickup swerved as if it might smash into his cruiser. His plan in shooting, he said, was to disable the truck or Rayson. After an extended chase, the truck hit a cement median and stopped. Dean, Vaughan’s lawyer, said that his client and Rayson were charged in the truck’s theft; the case, however, has not been prosecuted. Dean would not answer any questions about the guilt or innocence of the two men. Vaughan sued Cox, Coweta County and its sheriff, Michael S. Yeager, claiming they violated his civil rights. But U.S. District Judge Jack T. Camp threw the case out on summary judgment. In 2001, Senior Judge Cox and Carnes concluded that a jury could have found the deputy’s shooting violated the Constitution’s guarantee against unreasonable seizures. But they added that the law was not sufficiently established for the deputy to know he had to warn suspects posing a danger to other motorists before opening fire. Noonan dissented, pointing out that in 1985 the U.S. Supreme Court held that it was unconstitutional for police to shoot suspected burglars without warning, even if the thief has a good chance of escaping. Thus, Noonan argued, the deputy should have known it was wrong to shoot at two human beings, “who were probably thieves in flight but who certainly had lives more valuable than the property the policeman was so dangerously and so stupidly and so unconstitutionally seeking to protect.” Vaughan v. Cox, 264 F.3d 1027 (11th Cir. 2001). After the U.S. Supreme Court decided the Hope case in 2002, it sent Vaughan back to the 11th Circuit to let the appeals court apply the new qualified immunity precedent. But looking at the car chase case again, Cox and Carnes concluded that the deputy still could not have known from previous cases that shooting at the truck was unconstitutional. The cases Vaughan relied on, wrote Cox, “failed to provide fair warning to [the deputy] that his application of deadly force violated the Fourth Amendment.” Noonan dissented again. Just as the hitching post was so obviously cruel that the Alabama prison guards were on notice not to use it, Noonan wrote, “so the obvious danger inherent in shooting into the occupied seat of a car gave [the deputy] ‘some notice’ of the unconstitutional character of his alleged action.” Vaughan v. Cox, 316 F. 3d 1210 (11th Cir. 2003) (Daily Report, Jan. 10, 2003). When the court looked at Vaughan a third time, Noonan’s view prevailed.

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