Adams v. St. Lucie County Sheriff's Department , 962 F.2d 1563 ( 1992 )

HATCHETT, Circuit Judge:

In affirming the district court, we reject the appellant-deputy sheriffs’ contention that intentionally ramming the automobile of a fleeing misdemeanant, causing it to crash (killing an occupant) did not constitute a seizure under the Fourth Amendment and did not violate clearly established rights of which a deputy sheriff would have known.

I. FACTS

In order to investigate reports of a petty theft, Deputy Sheriff Donnie Ingram of the St. Lucie County Sheriffs Department stopped an automobile on May 8, 1985, driven by Robert Adams, Jr. Donald De-masco Adams, Sr. was a passenger in the automobile’s back seat. . After being stopped, Robert approached Ingram’s patrol car and informed Ingram that he was driving without a valid license in order to take the former operator of the automobile home. Ingram radioed the communications center to report the stop and learned that a warrant for Robert’s arrest was outstanding for failure to appear in court on the misdemeanor offense of petty theft. No warrants had been issued for Donald’s arrest.

Deputy Ingram, who on previous occasions had stopped and then released Robert, told Robert that he would have to go to jail. Robert stated that Ingram knew his identity and address, and returned to his automobile to drive away. Following these comments, a high-speed chase ensued through a residential neighborhood. Deputy Sheriff Robert Soesbe joined in the chase which covered approximately ten miles. During the chase, Soesbe asked J.M. Lindsey, a supervisor with the sheriff’s department, whether he should try to “take out” the automobile. Lindsey advised Soesbe to shoot a bullet through the radiator of the automobile. Continuing the chase, Soesbe intentionally rammed the automobile several times. After the last contact between the automobiles, the Adams automobile went out of control, struck a telephone pole and a house, and was demolished. The driver, Robert, walked away with minor injuries, but his brother, Donald, died from injuries sustained in the crash.

The personal representative for the estate of Donald (the decedent’s representative) brought this action against five defendants: Ingram, Soesbe, Lindsey, Sheriff Robert Knowles, and St. Lucie County, Florida. The amended complaint alleged that the conduct of the sheriff and the deputies was intentional, malicious, willful, wanton, and-in reckless disregard of Donald’s rights, or grossly negligent in that this conduct shocks the conscience and is fundamentally offensive to civilized society. Additionally, the amended complaint alleged that the conduct violated Robert’s Fourth Amendment right to be free from unreasonable seizures.

Before trial, the claims against St. Lucie County were dismissed, and the court entered summary judgment in favor of Sheriff Knowles who was being sued only in his official capacity. Additionally, the court granted summary judgment in favor of Soesbe, Ingram, and Lindsey as to claims brought against' them in their official capacities. The case proceeded to trial on the claims brought against Soesbe, Ingram, and Lindsey in their individual capacities. At the close of evidence, the court directed a verdit in favor of Ingram. The jury found that no constitutional violation occurred and returned verdicts in favor of Lindsey and Soesbe. On November 1, 1989, after a hearing on post-trial' motions, the district court granted a new trial. Lindsey and Soesbe attempted to appeal on the basis that the granting of a new trial in effect denied the qualified immunity defense. This court declined to accept jurisdiction. The deputies then filed a motion for summary judgment on the basis of qualified immunity. The district court denied the motion for summary judgment.

II. ISSUE

The issue is whether the district court erred in denying the deputies’ motion for summary judgment based on a claim of qualified immunity.

III. CONTENTIONS

The deputies contend that they did not violate clearly established law of which a reasonable law enforcement officer would have been aware and were thus entitled to summary judgment on the basis of qualified immunity. On the other hand, the decedent’s representative contends that the law was clearly established at the time of the incident, and that it would have been apparent to a reasonable officer operating under similar circumstances that the deputies’ actions constituted an unreasonable seizure violative of the Fourth Amendment.

IV. DISCUSSION

Specifically, the deputies contend that before the date of the incident in this case, the law was not clearly established that a law enforcement officer’s intentional ramming of an automobile during a high-speed chase, causing it to crash, and thereby terminating the freedom of movement of a passenger in the automobile constituted an unreasonable seizure violative of the Fourth Amendment.¹

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials generally are shielded from liability for civiF'damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. This objective standard which refined the general announcement of a qualified immunity rule in Butz v. Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911-2912, 57 L.Ed.2d 895 (1978), was created to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. In Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984), the Supreme Court reaffirmed the objective reasonableness standard created in Harlow and also held that “[n]o other circumstances are relevant in the issue of qualified immunity.” Davis, 468 U.S. at 191, 104 S.Ct. at 3017.

To ensure that insubstantial claims were decided at the summary judgment phase, the Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) held “that a district court’s denial of a claim of qualified immunity to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817. The Supreme Court pointed out in Mitchell that the entitlement of qualified immunity “is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815.

The Eleventh Circuit followed the “immunity from suit” rationale of Mitchell in Ansley v. Heinrich, 925 F.2d 1339 (11th Cir.1991) when it held that

qualified immunity is a question of law that may be asserted in three ways: (1) on a pretrial motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim; (2) as an affirmative defense in the request for judgment on the pleading pursuant to Federal Rule of Civil Procedure 12(c); or (3) on a summary judgment motion pursuant to Federal Rule of Civil Procedure 56(e). All three motions precede the trial and require the district court to rule as a matter of law, whether the official is entitled to the defense of qualified immunity.

Ansley, 925 F.2d at 1347 (citations omitted). The court concluded in Ansley that “[t]he Supreme Court’s qualified immunity precedent aims at one goal: to keep the public official out of the courtroom, free to exercise discretionary duties under clearly established law without the constant threat of lawsuits.” Ansley, 925 F.2d at 1345.

This court must determine as a matter of law whether the deputies are entitled to qualified immunity before the trial in order to keep them out of the trial if possible. See Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815; Ansley, 925 F.2d at 1347. If this court reverses the district court’s denial of the motion for summary judgment, the deputies are entitled to qualified immunity and the case is at an end. See Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816; Ansley, 925 F.2d at 1348. On the other hand, if this court affirms the district court’s denial of the motion for summary judgment, the deputies are not entitled to qualified immunity, and the jury should determine the factual issues without further mention of qualified immunity.² See Ansley, 925 F.2d at 1348.

The objective reasonableness standard announced in Harlow afford broad qualified immunity protection to' “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). In applying the standard, this court must “conduct its review through the eyes of an objective, reasonable government official.” Nicholson v. Georgia Dept. of Human Resources, 918 F.2d 145, 147 (11th Cir.1990). The relevant inquiry is “could a reasonable official have believed his or her actions to be lawful in light of, clearly established law and the information possessed by the official at the time the conduct occurred.” Nicholson, 918 F.2d at 147. The court further defined the relevant inquiry in Nicholson with the statement that “[ujnless it can be said that the state of the law was of such clarity that a reasonable official should have been on notice that his or her challenged conduct was unlawful, that official is entitled to qualified immunity.” Nicholson, 918 F.2d at 147; see also Clark v. Evans, 840 F.2d 876, 880 (11th Cir.1988).

The Supreme Court revisited its objective reasonableness standard in Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) to define the term “clearly established” as used in the language of Harlow. The Supreme Court stated that

[t]he contours of the right must be sufficiently clear that a- reasonable official would understand that what he is doing violates that right.' This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law, the unlawfulness must be apparent.

Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (citations omitted). In accord with Anderson, the Eleventh Circuit has stated that

the plaintiff must draw the court’s attention to a more particularized and fact specific inquiry. Under this inquiry, the plaintiff need not point to one or more cases that resolve the precise factual issues at issue in his or her case. Although the standard is fact specific, it is not one of factual rigidity.

Nicholson, 918 F.2d at 147 (citations omitted). The holding of Anderson, adopted in Nicholson, seeks a balance between unnecessarily burdening officials with the responsibility of divining what general constitutional and statutory terms might require and unreasonably failing to assess liability unless the specific action has been found unlawful. See Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39. Officials are required, however, to relate established law to analogous factual settings. People of Three Mile Island v. Nuclear Regulatory Commissioners, 747 F.2d 139, 144 (3d Cir.1984).

This court held in Rich v. Dollar, 841 F.2d 1558 (11th Cir.1988) that the objective reasonableness standard for qualified immunity is to be applied through the use of the following two-part analysis:

(1) The defendant public official must first prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ (2) Once the defendant public official satisfies his burden of moving forth with the evidence, the burden shifts to the plaintiff to show lack of good faith on the defendant’s part. This burden is met by proof demonstrating that the defendant public official’s actions ‘violated clearly established constitutional laws.’

Rich, 841 F.2d at 1563-64 (quoting Zeigler v. Jackson, 716 F.2d 847 (11th Cir.1983) (per curiam)). Additionally, this court noted in Rich that “a government official can prove he acted within the scope of his discretionary authority by showing ‘objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope" of his authority.’ ” Rich, 841 F.2d at 1564 (quoting Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir.Unit A 1981).

The deputies have satisfied the' first prong of the Rich analysis since they were clearly acting within the scope of their discretionary authority when the allegedly wrongful acts occurred. It is axiomatic that a law enforcement officer has the discretionary authority to pursue and apprehend a fleeing suspected offender. The deputies’ actions were undertaken pursuant to the performance of their duties since Robert was driving without a valid license and a warrant for his arrest was outstanding.

The second prong of the objective reasonableness test poses the following two questions of law which must be answered: (1) what was the clearly established law at the time of the deputies’ actions, and (2) whether the deputies’ conduct violated that clearly established law? Rich, 841 F.2d at 1564. To decide whether, at the time of this incident, persons in a fleeing car whose driver was suspected of a misdemeanor had a clearly established right not to be subjected to intentional ramming from a police car at high speed, the court must look to established law in the area. See Greason v. Kemp, 891 F.2d 829, 833 (11th Cir.1990).

In surveying the law in this area, we begin with Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) which was decided approximately six weeks before the time of the incident involved in this case. In Garner, a law enforcement officer shot an unarmed fleeing suspected felon in order to prevent his escape. The Supreme Court held in Garner that “there can be no question that apprehension, by the use of deadly force is a seizure subject to the reasonableness requirement of the fourth amendment.” Garner, 471 U.S. at 7, 105 S.Ct. at 1699. Additionally, the Supreme Court held in Garner that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. ... A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” Garner, 471 U.S. at 11, 105 S.Ct. at 1701. The Supreme Court also emphasized in Gamer that it has long been the common law rule that the use of deadly force to apprehend a misdemeanant is forbidden since such action was disproportionately severe. Garner, 471 U.S. at 15, 105 S.Ct. at 1703. In this case, the deputies used a police car as a deadly weapon instead of the usual weapon — a gun.

This court held in Stewart v. Baldwin County Board of Education, 908 F.2d 1499 (11th Cir.1990) that “[t]he very conduct in question need not have been explicitly held to be unlawful prior to the time the official acted; rather, ‘in light of the preexisting law the unlawfulness must be apparent.’ ” Stewart, 908 F.2d at 1504 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. at 3039). Additionally, the court in Stewart cited with approval People of Three Mile Island which held that “[although officials need not ‘predic[t] the future course of constitutional law,’ they are required to relate established law to analogous factual settings.” People of Three Mile Island, 747 F.2d at 144 (quoting Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967)), cited with approval in Stewart, 908 F.2d at 1504. The district court correctly pointed out in its order denying summary judgment that

if defendants had stopped a suspect fleeing on foot by using a bow and arrow, or a knife, they would be charged with knowledge of Garner and earlier cases defining ‘seizure,’ and that they most certainly could not argue that it was not clearly established that the use of these weapons to stop a fleeing suspect constitutes a seizure. The result should be no different simply because defendant Soesbe allegedly used a patrol car as his deadly weapon.

Adams v. Lindsey, 759 F.Supp. 795, 799 (S.D.Fla.1991). The deputies were required to relate the established law of Garner to the analogous factual setting in this case. See People of Three Mile Island, 747 F.2d at 144, cited with approval in Stewart, 908 F.2d at 1504.

Justice O’Connor notes in her Garner dissent that “[b]y declining to limit its holding to the use of firearms, the court ... implies that the fourth amendment constrains the use of any practice that is potentially lethal, no matter how remote the risk.” Garner, 471 U.S. at 31, 105 S.Ct. at 1711. Justice O’Connor’s dissent points out that Garner recognizes that the use of deadly force against arrestees has limitations, regardless of the nature of the instrumentality used in applying the force. See Garner, 471 U.S. at 31, 105 S.Ct. at 1711; Mathis v. Parks, 741 F.Supp. 567, 572 (E.D.N.C.1990). This case is legally indistinguishable from Garner with the following two notable factual distinctions: (1) the instrumentality used in applying the force was an automobile instead of a gun, and (2) the officers were trying to apprehend a fleeing suspected misdemeanant instead of a fleeing suspected felon. Thus, the district court correctly held that “the concept of a seizure is clearly defined and sufficiently well developed such that it would be apparent to a reasonable official that a car moving at high speed can be the physical force used to apprehend a suspect just as can a gun.” Adams, 759 F.Supp. at 800.

The district court also correctly noted that in Brower v. Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989),

the Court did not resolve any unsettled law in stating that the use of a car to sideswipe a suspect’s car is a seizure. To the contrary, the Court relied on this hypothetical as an obvious example of a seizure in order to explain more thoroughly the basis for its holding.

Adams, 759 F.Supp. at 801.³ Nevertheless, the deputies continue to argue that the law in this case was unsettled because until the Supreme Court decided Brower, the courts were in disagreement as to whether a seizure could result from a high-speed police chase which ends in a crash. The district court correctly pointed out that in each of the cases the deputies cited, “the plaintiff either lost control of or was a passenger in a vehicle that crashed without being hit by a patrol car, was a third party who was accidentally hit, or less often, had hit a roadblock.” Adams, 759 F.Supp. at 801. None of the cases which the deputies cite involve the intentional use of a speeding patrol car to ram a plaintiff off the road. Thus, the cases the deputies cite at best support the proposition that the law was unsettled before Brower as to whether a seizure occurs when a fleeing suspect either loses control of a car or runs into a roadblock. We cannot ignore the crucial distinguishing fact of “intentional ramming” alleged in the amended complaint.

Before the incident in this case, the law was clearly established that the Fourth Amendment applies to all high-speed chases, regardless of the method of apprehension or termination of movement. See Colorado v. Bannister, 449 U.S. 1, 4 n. 3, 101 S.Ct. 42, 43, n. 3, 66 L.Ed.2d 1 (1980). In Bannister, the Supreme Court noted that “[t]here can be no question that the stopping of a vehicle and the detention of its occupants constitute a “seizure” within the meaning of the fourth amendment.” Bannister, 449 U.S. at 4 n. 3, 101 S.Ct. at 43 n. 3. Additionally, as early as 1976, a federal district court held that shooting out the tires of a suspect’s car during a high-speed chase in order to bring it to a stop constituted a seizure. United States v. Matthews, 417 F.Supp. 813, 817 (E.D.Pa.), aff'd, 547 F.2d 1165 (3d Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1148, 51 L.Ed.2d 565 (1977). Thus, it has long been well established that the intentional successful use of physical force applied directly to an automobile in order to apprehend its occupants implicates the Fourth Amendment and constitutes a seizure.

Judge Edmondson points our attention to the case of Wright v. Whiddon, 951 F.2d 297 (11th Cir.1992). In Wright, a policeman shot and killed a pretrial detainee who attempted to escape from a courthouse. Although Garner had been decided six months earlier, this court held that the police officer was entitled to qualified immunity in the detainee’s parents’ section 1983 lawsuit alleging a violation of the Fourth Amendment. Judge Edmondson reasons that if the law was not clearly established that a police officer could not shoot a fleeing pretrial detainee in light of Garner, then this court cannot hold that the law was clearly established that a police officer could not intentionally ram the vehicle of a fleeing misdemeanant.

Our panel in Wright, however, distinguished that case from Gamer (and the facts of this case) when it recognized that “Garner involved a person who had not yet been taken into official custody fleeing to avoid custody, while this case involved a person who had been captured, arrested, and detained awaiting trial, who then sought to escape custody.” Wright, 951 F.2d at 300. Our panel also recognized that the Supreme Court has indicated that whether the fleeing individual is trying to avoid custody or escape custody may constitute a constitutionally significant distinction. See Wright, 951 F.2d at 300. The Supreme Court noted in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) that

[o]ur cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that question today. It is clear, however, that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.

Graham, 109 S.Ct. at 1871 n. 10. Thus, the panel ruling in Wright that the police officer was entitled to qualified immunity was based primarily upon the possible inapplicability of the Fourth Amendment when the seizure or arrest ripens into detention. The area of law explored in Wright, as the Supreme Court indicated in Graham, is not settled.

Nevertheless, the law is clearly established in the area of suspects fleeing to avoid custody. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). This case involves persons in a fleeing car who had not yet been taken into official custody and whose driver was suspected of a misdemeanor. The facts of this case are more analogous to Gamer than to Wright. Thus, the law in this case was clearly established, and the disposition of the case is consistent with established Eleventh Circuit precedent.

Although it was clearly established that the alleged events constituted a seizure, the deputies are still entitled to qualified immunity if it would not have been apparent to a reasonable official in their position that the seizure was “unreasonable” and thus violative of the Fourth Amendment. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039.

The Supreme Court held in Garner that “it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out.” Garner, 471 U.S. at 8, 105 S.Ct. at 1699; see also United States v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975); Terry v. Ohio, 392 U.S. 1, 28-29, 88 S.Ct. 1868, 1883-1884, 20 L.Ed.2d 889 (1968). Additionally, the Court held in Gamer that the use of deadly force to apprehend a fleeing felon constitutes an unreasonable seizure unless the officer has probable cause to believe that the suspect poses a threat of serious bodily harm, either to the officer or to others. Garner, 471 U.S. at 11, 105 S.Ct. at 1701. Judge Edmondson turns our attention to the case of Smith v. Freland, 954 F.2d 343 (6th Cir.1992). In Smith, a police officer shot and killed a motorist who was trying to avoid custody and had fled from the police officer at speeds in excess of ninety miles an hour. Judge Edmondson again reasons that in a factual setting close to Gamer, a federal court of appeals held that the police officer violated no Fourth Amendment right. Thus, Judge Edmondson would hold that the law is not clearly established that the officers in this case violated the Fourth Amendment rights of Adams.

The Sixth Circuit opinion in Smith, however, fully embraces this court’s reasoning and extension of Gamer. The facts of Smith, however, fitted squarely into the exception to the rule of Garner. The Supreme Court noted in Garner that “where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Garner, 471 U.S. at 11, 105 S.Ct. at 1701. The Sixth Circuit found in Smith that the motorist posed a threat of serious physical harm to others since he had demonstrated that he would do almost anything to avoid capture. The motorist in Smith had assaulted the police officer by attempting to ram the police car in order to break through a road block, and the motorist was proceeding at extremely high speeds in a residential neighborhood.

In this case, the deputies do not contend that this case falls within the exception of Gamer. In their pleadings and briefs they do not contend that the persons fleeing to escape custody in this case posed a serious threat of physical harm either to the officers or to others. The issue that was dis-positive in Smith — the applicability of the Garner exception — has not been raised in this case and is not properly before this court.

In Gamer, the Court also emphasized the common law rule that the use of deadly force to apprehend a misdemeanant is forbidden since such action was disproportionately severe. Garner, 471 U.S. at 15, 105 S.Ct. at 1703. The district court correctly noted that in this case,

plaintiffs complaint alleges that despite having stopped and released the driver on prior occasions, despite knowing his identity, his address, and his status as a fleeing nondangerous misdemeanant, despite knowing that he was only a fleeing nondangerous misdemeanant, and despite knowing that plaintiff’s decedent had no outstanding warrants, defendant Soesbe deliberately used his car to ram them off the road in a residential neighborhood at high speed, thereby causing plaintiff decedent’s death.

Adams, 759 F.Supp. at 803. When the principles of Garner are applied to these facts, this court concludes that it would have been apparent to a reasonable official in the deputies’ position that their conduct violated Donald’s clearly established Fourth Amendment right to be free from an unreasonable seizure.

V. CONCLUSION

We hold that before the date of the incident in this case, the law was clearly established that a law enforcement officer’s action of intentionally ramming an automobile during a high-speed chase, causing it to crash, and thereby terminating the freedom of movement of a passenger in the car constituted an unreasonable seizure which would have been apparent to a reasonable officer operating under similar circumstances. Accordingly, the deputies are not entitled to qualified immunity, and the district court’s denial of summary judgment was proper.⁴

The district court’s ruling is affirmed.

AFFIRMED.

1 . For purposes of qualified immunity, the police officers may take the position that the plaintiff's allegations are true. If the officers create a “genuine issue of material fact" when seeking qualified immunity, the district court may deny their motion for summary judgment. See Hudgins v. City of Ashburn, Ga., 890 F.2d 396, 403 (11th Cir.1989). The officers may admit to an intentional ramming for qualified immunity purposes (to forego a trial), but may deny an intentional ramming at trial (to avoid liability). Therefore, a ruling denying the officers’ motions for summary judgment does not render the officers liable. The district court correctly noted that:

The Court may resolve Defendants' motion notwithstanding the existence of factual disputes relevant to the determination of whether a reasonable official could have believed Defendants' actions to be lawful in light of the information then known to Defendants. Factual disputes do not preclude the Court from granting summary judgment if the plaintiffs complaint does not allege a violation of clearly established law because, if the complaint does not meet this threshold requirement, any factual disputes existing at the summary judgment stage are not ‘material.' See Bennett v. Parker, 898 F.2d 1530, 1536 n. 2 (11th Cir.1990) (Tjoflat, C.J., concurring) (‘The court considers in the light most favorable to the plaintiff all facts fairly inferable from the record — regardless of factual disputes — and decides whether, under those facts, defendant’s conduct violated law clearly established at the time'); McDaniel v. Woodard, 886 F.2d 311, 313 (11th Cir.1989) (‘That factual disputes remain does not preclude summary judgment based on qualified immunity.').

Adams v. Lindsey, 759 F.Supp. 795, 797 n. 4 (S.D.Fla.1991).

2 . Qualified immunity is a legal question which the district court can decide either before the trial on a summary judgment motion, during the trial on a directed verdict motion, or after the trial on a motion for judgment notwithstanding the verdict. It is axiomatic that while the district court's term is in existence, the district court has “plenary power ... to modify [its] judgment for error of fact or law or even revoke it altogether.” Zimmern v. United States, 298 U.S. 167, 169-170, 56 S.Ct. 706, 706-707, 80 L.Ed. 1118 (1936). Qualified immunity, however, cannot be argued to the jury as a defense to liability. See Ansley v. Heinrich, 925 F.2d 1339 (11th Cir.1991). Qualified immunity is more related to whether a state public official must stand trial than whether the public official may successfully defend against the plaintiffs claims.

3 . In Brower, the driver of a stolen car was killed during a high-speed chase when he crashed into a concealed police roadblock. The Supreme Court held that the alleged facts constituted a seizure because the driver was stopped through intentionally applied governmental means. As an obvious example of a seizure in order to explain the basis for its holding, the Supreme Court offered the following hypothetical: "If, ... the police cruiser had pulled along side the fleeing car and sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure.” Brower, 489 U.S. at 597, 109 S.Ct. at 1381.

4 . The deputies also raise the issue of whether the court should exercise pendent appellate jurisdiction and review the trial court's ruling granting a new trial. In this case, the district court refused to give any instructions defining excessive force or deadly force. Additionally, the district court refused to give any instruction regarding the circumstances under which deadly force was reasonable or justified. In light of the foregoing analysis of the district court's denial of summary judgment, the instructions taken as a whole clearly did not adequately cover the issues which the plaintiff raised and thereby prejudiced him. Thus, the district court did not abuse its discretion in granting the motion for new trial. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).