DUI / Implied Consent
THE STATE v. COLLIER., S04G1409., SUPREME COURT OF GEORGIA , 2005 Ga. LEXIS 294,  April 26, 2005, Decided

Use of Force
Supreme Court Of The United States
Rochelle Brosseau V. Kenneth J. Haugen
On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit, No. 03—1261.Decided December 13, 2004

Per Curiam.

Officer Rochelle Brosseau, a member of the Puyallup, Washington, Police Department, shot Kenneth Haugen in the back as he attempted to flee from law enforcement authorities in his vehicle. Haugen subsequently filed this action in the United States District Court for the Western District of Washington pursuant to Rev. Stat. §1979, 42 U.S.C. § 1983. He alleged that the shot fired by Brosseau constituted excessive force and violated his federal constitutional rights.1 The District Court granted summary judgment to Brosseau after finding she was entitled to qualified immunity. The Court of Appeals for the Ninth Circuit reversed. 339 F.3d 857 (2003). Following the two‑step process set out in Saucier v. Katz, 533 U.S. 194 (2001), the Court of Appeals found, first, that Brosseau had violated Haugen’s Fourth Amendment right to be free from excessive force and, second, that the right violated was clearly established and thus Brosseau was not entitled to qualified immunity. Brosseau then petitioned for writ of certiorari, requesting that we review both of the Court of Appeals’ determinations. We grant the petition on the second, qualified immunity question and reverse.
The material facts, construed in a light most favorable to Haugen, are as follows.2 On the day before the fracas, Glen Tamburello went to the police station and reported to Brosseau that Haugen, a former crime partner of his, had stolen tools from his shop. Brosseau later learned that there was a felony no‑bail warrant out for Haugen’s arrest on drug and other offenses. The next morning, Haugen was spray‑painting his Jeep Cherokee in his mother’s driveway. Tamburello learned of Haugen’s whereabouts, and he and cohort Matt Atwood drove a pickup truck to Haugen’s mother’s house to pay Haugen a visit. A fight ensued, which was witnessed by a neighbor who called 911.
Brosseau heard a report that the men were fighting in Haugen’s mother’s yard and responded. When she arrived, Tamburello and Atwood were attempting to get Haugen into Tamburello’s pickup. Brosseau’s arrival created a distraction, which provided Haugen the opportunity to get away. Haugen ran through his mother’s yard and hid in the neighborhood. Brosseau requested assistance, and, shortly thereafter, two officers arrived with a K—9 to help track Haugen down. During the search, which lasted about 30 to 45 minutes, officers instructed Tamburello and Atwood to remain in Tamburello’s pickup. They instructed Deanna Nocera, Haugen’s girlfriend who was also present with her 3‑year‑old daughter, to remain in her small car with her daughter. Tamburello’s pickup was parked in the street in front of the driveway; Nocera’s small car was parked in the driveway in front of and facing the Jeep; and the Jeep was in the driveway facing Nocera’s car and angled somewhat to the left. The Jeep was parked about 4 feet away from Nocera’s car and 20 to 30 feet away from Tamburello’s pickup.
An officer radioed from down the street that a neighbor had seen a man in her backyard. Brosseau ran in that direction, and Haugen appeared. He ran past the front of his mother’s house and then turned and ran into the driveway. With Brosseau still in pursuit, he jumped into the driver’s side of the Jeep and closed and locked the door. Brosseau believed that he was running to the Jeep to retrieve a weapon.
Brosseau arrived at the Jeep, pointed her gun at Haugen, and ordered him to get out of the vehicle. Haugen ignored her command and continued to look for the keys so he could get the Jeep started. Brosseau repeated her commands and hit the driver’s side window several times with her handgun, which failed to deter Haugen. On the third or fourth try, the window shattered. Brosseau unsuccessfully attempted to grab the keys and struck Haugen on the head with the barrel and butt of her gun. Haugen, still undeterred, succeeded in starting the Jeep. As the Jeep started or shortly after it began to move, Brosseau jumped back and to the left. She fired one shot through the rear driver’s side window at a forward angle, hitting Haugen in the back. She later explained that she shot Haugen because she was “ ‘fearful for the other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Haugen’s] path and for any other citizens who might be in the area.’ ” 339 F.3d, at 865.
Despite being hit, Haugen, in his words, “ ‘st[ood] on the gas’ ”; navigated the “ ‘small, tight space’ ” to avoid the other vehicles; swerved across the neighbor’s lawn; and continued down the street. Id., at 882. After about a half block, Haugen realized that he had been shot and brought the Jeep to a halt. He suffered a collapsed lung and was airlifted to a hospital. He survived the shooting and subsequently pleaded guilty to the felony of “eluding.” Wash. Rev. Code §46.61.024 (1994). By so pleading, he admitted that he drove his Jeep in a manner indicating “a wanton or wilful disregard for the lives . . . of others.” Ibid. He subsequently brought this §1983 action against Brosseau.

When confronted with a claim of qualified immunity, a court must ask first the following question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S., at 201. As the Court of Appeals recognized, the constitutional question in this case is governed by the principles enunciated in Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989). These cases establish that claims of excessive force are to be judged under the Fourth Amendment’s “ ‘objective reasonableness’ ” standard. Id., at 388. Specifically with regard to deadly force, we explained in Garner that it is unreasonable for an officer to “seize an unarmed, nondangerous suspect by shooting him dead.” 471 U.S., at 11. But “[w]here 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.” Ibid.
We express no view as to the correctness of the Court of Appeals’ decision on the constitutional question itself. We believe that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.3
Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Saucier v. Katz, 533 U.S., at 206 (qualified immunity operates “to protect officers from the sometimes ‘hazy border between excessive and acceptable force’ ”). Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer’s conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.
It is important to emphasize that this inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id., at 201. As we previously said in this very context:
“[T]here is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson [v. Creighton,] ‘that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ 483 U.S. [635,] 640 [(1987)]. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id., at 201—202.
The Court of Appeals acknowledged this statement of law, but then proceeded to find fair warning in the general tests set out in Graham and Garner. 339 F.3d, at 873—874. In so doing, it was mistaken. Graham and Garner, following the lead of the Fourth Amendment’s text, are cast at a high level of generality. See Graham v. Connor, supra, at 396 (“ ‘[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application’ ”). Of course, in an obvious case, these standards can “clearly establish” the answer, even without a body of relevant case law. See Hope v. Pelzer, 536 U.S. 730, 738 (2002) (noting in a case where the Eighth Amendment violation was “obvious” that there need not be a materially similar case for the right to be clearly established). See also Pace v. Capobianco, 283 F.3d 1275, 1283 (CA11 2002) (explaining in a Fourth Amendment case involving an officer shooting a fleeing suspect in a vehicle that, “when we look at decisions such as Garner and Graham, we see some tests to guide us in determining the law in many different kinds of circumstances; but we do not see the kind of clear law (clear answers) that would apply” to the situation at hand). The present case is far from the obvious one where Graham and Garner alone offer a basis for decision.
We therefore turn to ask whether, at the time of Brosseau’s actions, it was “ ‘ “clearly established” ’ ” in this more “ ‘particularized’ ” sense that she was violating Haugen’s Fourth Amendment right. Saucier v. Katz, 533 U.S., at 202. The parties point us to only a handful of cases relevant to the “situation [Brosseau] confronted”: whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.4 Ibid. Specifically, Brosseau points us to Cole v. Bone, 993 F.2d 1328 (CA8 1993), and Smith v. Freland, 954 F.2d 343 (CA6 1992).
In these cases, the courts found no Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to others. Cole v. Bone, supra, at 1333 (holding the officer “had probable cause to believe that the truck posed an imminent threat of serious physical harm to innocent motorists as well as to the officers themselves”); Smith v. Freland, 954 F.2d, at 347 (noting “a car can be a deadly weapon” and holding the officer’s decision to stop the car from possibly injuring others was reasonable). Smith is closer to this case. There, the officer and suspect engaged in a car chase, which appeared to be at an end when the officer cornered the suspect at the back of a dead‑end residential street. The suspect, however, freed his car and began speeding down the street. At this point, the officer fired a shot, which killed the suspect. The court held the officer’s decision was reasonable and thus did not violate the Fourth Amendment. It noted that the suspect, like Haugen here, “had proven he would do almost anything to avoid capture” and that he posed a major threat to, among others, the officers at the end of the street. Ibid.
Haugen points us to Estate of Starks v. Enyart, 5 F.3d 230 (CA7 1993), where the court found summary judgment inappropriate on a Fourth Amendment claim involving a fleeing suspect. There, the court concluded that the threat created by the fleeing suspect’s failure to brake when an officer suddenly stepped in front of his just‑started car was not a sufficiently grave threat to justify the use of deadly force. Id., at 234.
These three cases taken together undoubtedly show that this area is one in which the result depends very much on the facts of each case. None of them squarely governs the case here; they do suggest that Brosseau’s actions fell in the “ ‘hazy border between excessive and acceptable force.’ ” Saucier v. Katz, supra, at 206. The cases by no means “clearly establish” that Brosseau’s conduct violated the Fourth Amendment.
The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

Notes

1.   Haugen also asserted pendent state‑law claims and claims against the city and police department.  These claims are not presently before us.
2.   Because this case arises in the posture of a motion for summary judgment, we are required to view all facts and draw all reasonable inferences in favor of the nonmoving party, Haugen. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
3.   We have no occasion in this case to reconsider our instruction in Saucier v. Katz, 533 U.S. 194, 201 (2001), that lower courts decide the constitutional question prior to deciding the qualified immunity question. We exercise our summary reversal procedure here simply to correct a clear misapprehension of the qualified immunity standard.
4.   The parties point us to a number of other cases in this vein that postdate the conduct in question, i.e., Brosseau’s February 21, 1999, shooting of Haugen. See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 763 (CA2 2003); Pace v. Capobianco, 283 F.3d 1275, 1281—1282 (CA11 2002); Scott v. Clay County, Tennessee, 205 F.3d 867, 877 (CA6 2000); McCaslin v. Wilkins, 183 F.3d 775, 778—779 (CA8 1999); Abraham v. Raso, 183 F.3d 279, 288—296 (CA3 1999). These decisions, of course, could not have given fair notice to Brosseau and are of no use in the clearly established inquiry.

Death Penalty/ Juvenile
ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. SIMMONS,
certiorari to the supreme court of Missouri, No. 03-633.
Argued October 13, 2004--Decided March 1, 2005

At age 17, respondent Simmons planned and committed a capital murder. After he had turned 18, he was sentenced to death. His direct appeal and subsequent petitions for state and federal postconviction relief were rejected. This Court then held, in Atkins v. Virginia, 536 U. S. 304, that the Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the execution of a mentally retarded person. Simmons filed a new petition for state postconviction relief, arguing that Atkins’ reasoning established that the Constitution prohibits the execution of a juvenile who was under 18 when he committed his crime. The Missouri Supreme Court agreed and set aside Simmons’ death sentence in favor of life imprisonment without eligibility for release. It held that, although Stanford v. Kentucky, 492 U. S. 361, rejected the proposition that the Constitution bars capital punishment for juvenile offenders younger than 18, a national consensus has developed against the execution of those offenders since Stanford.

Held: The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. Pp. 6-25.

(a) The Eighth Amendment’s prohibition against “cruel and unusual punishments” must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework this Court has established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be “cruel and unusual.” Trop v. Dulles, 356 U. S. 86, 100-101. In 1988, in Thompson v. Oklahoma, 487 U. S. 815, 818-838, a plurality determined that national standards of decency did not permit the execution of any offender under age 16 at the time of the crime. The next year, in Stanford, a 5-to-4 Court referred to contemporary standards of decency, but concluded the Eighth and Fourteenth Amendments did not proscribe the execution of offenders over 15 but under 18 because 22 of 37 death penalty States permitted that penalty for 16-year-old offenders, and 25 permitted it for 17-year-olds, thereby indicating there was no national consensus. 492 U. S., at 370-371. A plurality also “emphatically reject[ed]” the suggestion that the Court should bring its own judgment to bear on the acceptability of the juvenile death penalty. Id., at 377-378. That same day the Court held, in Penry v. Lynaugh, 492 U. S. 302, 334, that the Eighth Amendment did not mandate a categorical exemption from the death penalty for mentally retarded persons because only two States had enacted laws banning such executions. Three Terms ago in Atkins, however, the Court held that standards of decency had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and unusual punishment. The Atkins Court noted that objective indicia of society’s standards, as expressed in pertinent legislative enactments and state practice, demonstrated that such executions had become so truly unusual that it was fair to say that a national consensus has developed against them. 536 U. S., at 314-315. The Court also returned to the rule, established in decisions predating Stanford, that the Constitution contemplates that the Court’s own judgment be brought to bear on the question of the acceptability of the death penalty. Id., at 312. After observing that mental retardation diminishes personal culpability even if the offender can distinguish right from wrong, id., at 318, and that mentally retarded offenders’ impairments make it less defensible to impose the death penalty as retribution for past crimes or as a real deterrent to future crimes, id., at 319-320, the Court ruled that the death penalty constitutes an excessive sanction for the entire category of mentally retarded offenders, and that the Eighth Amendment places a substantive restriction on the State’s power to take such an offender’s life, id., at 321. Just as the Atkins Court reconsidered the issue decided in Penry, the Court now reconsiders the issue decided in Stanford. Pp. 6-10.

(b) Both objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question, and the Court’s own determination in the exercise of its independent judgment, demonstrate that the death penalty is a disproportionate punishment for juveniles. Pp. 10-21.

(1) As in Atkins, the objective indicia of national consensus here—the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice—provide sufficient evidence that today society views juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average criminal,” 536 U. S., at 316. The evidence of such consensus is similar, and in some respects parallel, to the evidence in Atkins: 30 States prohibit the juvenile death penalty, including 12 that have rejected it altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. Moreover, even in the 20 States without a formal prohibition, the execution of juveniles is infrequent. Although, by contrast to Atkins, the rate of change in reducing the incidence of the juvenile death penalty, or in taking specific steps to abolish it, has been less dramatic, the difference between this case and Atkins in that respect is counterbalanced by the consistent direction of the change toward abolition. Indeed, the slower pace here may be explained by the simple fact that the impropriety of executing juveniles between 16 and 18 years old gained wide recognition earlier than the impropriety of executing the mentally retarded. Pp. 10-13.

(2) Rejection of the imposition of the death penalty on juvenile offenders under 18 is required by the Eighth Amendment. Capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” Atkins, 536 U. S. at 319. Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. Juveniles’ susceptibility to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson v. Oklahoma, 487 U. S. 815, 835. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, supra, at 395. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. The Thompson plurality recognized the import of these characteristics with respect to juveniles under 16. 487 U. S., at 833-838. The same reasoning applies to all juvenile offenders under 18. Once juveniles’ diminished culpability is recognized, it is evident that neither of the two penological justifications for the death penalty—retribution and deterrence of capital crimes by prospective offenders, e.g., Atkins, 536 U. S., at 319--provides adequate justification for imposing that penalty on juveniles. Although the Court cannot deny or overlook the brutal crimes too many juvenile offenders have committed, it disagrees with petitioner’s contention that, given the Court’s own insistence on individualized consideration in capital sentencing, it is arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on an offender under 18. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. While drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest. Stanford should be deemed no longer controlling on this issue. Pp. 14-21.

(c) The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court’s determination that the penalty is disproportionate punishment for offenders under 18. See, e.g., Thompson, supra, at 830-831, and n. 31. The United States is the only country in the world that continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom. Pp. 21-25.
112 S. W. 3d 397, affirmed.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. O’Connor, J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined.

Strip Search and Body Cavity Search
IN THE UNITED STATES COURT OF APPEALS, FOR THE ELEVENTH CIRCUIT,
No. 02-16424, D. C. Docket No. 01-00009-CV-JTC-3
PETER EVANS, DETREE JORDAN, Plaintiffs-Appellees,
versus
CITY OF ZEBULON, GA, ROBERT LOOMIS, individually and in his official capacity as Police Chief of the City of Zebulon, GA, Defendants,
DENIS STEPHENS, Defendant-Appellant. (November 18, 2003)
Honorable Robert B. Propst, United States District Judge for the Northern District of Alabama.

1 Because this is a review of a the denial of a motion for summary judgment by the
appellant, we will recount the facts favorably to the appellees. Rodriguez v. Farrell, 280 F.3d 1341, 1343 n. 1 (11^th Cir. 2002). The facts recounted here are drawn primarily from the district court’s order and the deposition testimony of the appellees.
2  Before ANDERSON and BIRCH, Circuit Judges, and PROPST*, District Judge.  ANDERSON, Circuit Judge:
Officer Denis Stephens, of the Zebulon, Georgia, police force, appeals the
district court’s order denying his motion for summary judgment on the basis of qualified immunity. Plaintiffs-appellees Peter Evans and Detree Jordan contend in their action under 42 U.S.C. § 1983 that Stephens unconstitutionally subjected them to a strip search and body cavity search after arresting them on January 22, 1999, and that Stephens conducted the searches in an abus