                                          Filed:     November 26, 1996


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                            Nos. 96-1150(L)
                           (CA-93-4078-PJM)



Dorothy C. Elliott, etc., et al,

                                              Plaintiffs - Appellees,

           versus

Jason Leavitt, etc.,

                                               Defendant - Appellant.




                              O R D E R


    The Court amends its opinion filed November 8, 1996, as

follows:
    On page 3, section 2, line 3 -- Andrew Jensen Murray's title

is corrected to read "Associate County Attorney."

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                      Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DOROTHY C. ELLIOTT, Individually
and as Co-Personal Representative
of the Estate of Archie Elliott, III;
ARCHIE ELLIOTT, JR., Individually
and as Co-Personal Representative
of the Estate of Archie Elliott, III,
Plaintiffs-Appellees,

v.

JASON LEAVITT, Police Officer for
District Heights, MD,
                                        No. 96-1150
Defendant-Appellant,

and

PRINCE GEORGE'S COUNTY,
MARYLAND; DAVID B. MITCHELL,
Prince George's County Police
Chief; WAYNE CHENEY, Police
Officer; CITY OF DISTRICT HEIGHTS,
MD; MICHAEL CONBOY, Police Chief
for District Heights, MD,
Defendants.
DOROTHY C. ELLIOTT, Individually
and as Co-Personal Representative
of the Estate of Archie Elliott, III;
ARCHIE ELLIOTT, JR., Individually
and as Co-Personal Representative
of the Estate of Archie Elliott, III,
Plaintiffs-Appellees,

v.

WAYNE CHENEY, Police Officer,
Defendant-Appellant,
                                                    No. 96-1151
and

JASON LEAVITT, Police Officer for
District Heights, MD; PRINCE
GEORGE'S COUNTY, MARYLAND;
DAVID B. MITCHELL, Prince George's
County Police Chief; CITY OF
DISTRICT HEIGHTS, MD; MICHAEL
CONBOY, Police Chief for District
Heights, MD,
Defendants.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-93-4078-PJM)

Argued: September 25, 1996

Decided: November 8, 1996

Before WILKINSON, Chief Judge, and WILKINS and
WILLIAMS, Circuit Judges.

_________________________________________________________________

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Reversed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Wilkins and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Daniel Karp, ALLEN, JOHNSON, ALEXANDER &
KARP, Baltimore, Maryland, for Appellant Leavitt; Andrew Jensen
Murray, Associate County Attorney, Upper Marlboro, Maryland, for
Appellant Cheney. Robert W. Mance, III, MUNDY, HOLT &
MANCE, Washington, D.C., for Appellees. ON BRIEF: Denise
Ramsburg Stanley, ALLEN, JOHNSON, ALEXANDER & KARP,
Baltimore, Maryland, for Appellant Leavitt.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

The parents of Archie Elliott III brought suit under 42 U.S.C.
§ 1983 alleging that police officers Jason Leavitt and Wayne Cheney
used excessive force in the course of arresting Elliott for driving
while intoxicated. The district court denied the officers' motion for
summary judgment, and the officers filed this appeal challenging the
court's refusal to grant them qualified immunity. We reverse the judg-
ment of the district court, finding that the officers' use of deadly force
in response to an obvious, serious, and immediate threat to their
safety was reasonable under Graham v. Connor, 490 U.S. 386 (1988).
The Constitution simply does not require police to gamble with their
lives in the face of a serious threat of harm.

I.

On June 18, 1995, police officer Jason Leavitt stopped motorist
Archie Elliott. Elliott smelled of alcohol, and he admitted that he had
been drinking excessively. Elliott failed several sobriety tests and was
having trouble walking. Leavitt called for backup, handcuffed Elliott,
and advised him that he was under arrest for driving while intoxi-
cated. Leavitt briefly searched Elliott, finding no weapon or other

                     3
contraband. Leavitt remembers checking the back side of Elliott's
body but does not recall whether he checked the front.

Officer Wayne Cheney soon joined Leavitt on the scene. Cheney
assisted Leavitt in placing Elliott in the front passenger seat of
Leavitt's police car with the seatbelt fastened, the door closed, and the
window rolled up.

The officers were talking by the passenger side of the car when
Leavitt noticed a movement and looked to find Elliott with his finger
on the trigger of a small handgun pointed at Leavitt and Cheney.
Cheney also saw the gun. Elliott was very thin; he had released the
seat belt and twisted his arms to the right side of his body to position
the weapon. Leavitt yelled, "Gun!," and ordered Elliott to drop it.
After Elliott did not respond, Leavitt and Cheney commenced firing,
killing Elliott. The officers did not discharge all of their bullets; 22
were fired while 10 were found still in their weapons. Cheney then
retrieved the gun, which had remained clasped in Elliott's hand.

A grand jury declined to take action on the shooting, and an inter-
nal affairs investigation recommended that both officers be exoner-
ated. The investigation revealed that a few months prior to the
shooting, Elliott had threatened a motorist with a handgun. In a sworn
statement, the motorist identified the gun recovered from Elliott's
body as the same one used to threaten him. An FBI lab report
revealed that a blue fiber caught on the gun came from Elliott's
shorts. Elliott's parents, as representatives of his estate, then brought
this § 1983 excessive force claim against Leavitt and Cheney.

II.

Claims that law enforcement officers used excessive force when
making an arrest "should be analyzed under the Fourth Amendment
and its `reasonableness' standard." Graham, 490 U.S. at 395. The
standard of review is an objective one. The intent or motivation of the
officer is irrelevant; the question is whether a reasonable officer in the
same circumstances would have concluded that a threat existed justi-
fying the particular use of force. Id. at 396-97. A police officer may
use deadly force when the officer has sound reason to believe that a

                    4
suspect poses a threat of serious physical harm to the officer or others.
Tennessee v. Garner, 471 U.S. 1 (1985).

This circuit has recognized the doctrine of qualified immunity in
excessive force cases, and the inquiry under Graham must reflect the
considerations underlying the analysis of an immunity defense. See
Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991). A reviewing court
may not employ "the 20/20 vision of hindsight" and must make "al-
lowance for the fact that police officers are often forced to make split-
second judgments -- in circumstances that are tense, uncertain, and
rapidly evolving." Graham, 490 U.S. at 396-97. The court's focus
should be on the circumstances at the moment force was used and on
the fact that officers on the beat are not often afforded the luxury of
armchair reflection. Greenidge v. Ruffin, 927 F.2d 789, 791-92 (4th
Cir. 1991) (citing Graham, 490 U.S. 386).

A.

Appellees suggest that Elliott did not pose a real threat to the offi-
cers, noting that his hands were handcuffed behind his back, that he
was placed in the front passenger seat with the seatbelt fastened and
the window up, and that the officers were outside the car at the time
of the shooting. Such a conclusion, however, is untenable in light of
uncontroverted evidence that immediately before firing, Leavitt and
Cheney confronted an intoxicated individual pointing a gun at them
from only a few feet away with his finger on the trigger. The car win-
dow was no guarantee of safety when the pointed gun and the officers
at whom it was aimed were in such close proximity. Moreover, expert
testimony in the summary judgment record emphasized that even sus-
pects with their hands handcuffed behind their backs have been able
to position a concealed weapon so as to fire at an arresting officer.

We have upheld the use of deadly force in cases where the nature
and extent of the threat was much less clear to the officers than it was
in the case before us. In Greenidge, 927 F.2d 789, for example, we
affirmed the judgment in favor of Officer Ruffin although Ruffin was
unable to confirm the nature of the weapon before she used deadly
force to protect herself. Ruffin witnessed two individuals performing
an illegal sex act in a car. She drew her revolver when neither
responded to her order to place their hands in view. Ignoring a second

                    5
order, one of the passengers reached for a long cylindrical object
behind the seat. Although the object turned out to be a wooden night-
stick, Ruffin believed that it was a shotgun and fired in self-defense.
In contrast, here both Leavitt and Cheney clearly saw that Elliott had
a handgun. We also note that, like Officer Ruffin, the officers did not
immediately use deadly force but fired only after Elliott ignored the
order to drop his weapon.

In Slattery, 939 F.2d 213, we held that an officer reasonably felt
threatened in a situation where he could not see the suspected weapon
at all. During a narcotics arrest, Officer Rizzo went to take custody
of Slattery, a passenger in a suspect's car. Rizzo drew his revolver
after Slattery ignored repeated orders to place his hands in view.
Rizzo could not see Slattery's left hand but could tell that it was par-
tially closed around an object. In response to yet another order to raise
his hands, Slattery turned his entire upper body toward the officer.
Believing that Slattery was coming at him with a weapon, Rizzo fired.
The object later was identified as a beer bottle. We upheld Rizzo's
use of force even though he could not confirm that the suspect was
holding a weapon and even though it was not entirely clear that Slat-
tery's movement was the beginning of an attack. Here it was obvious
that Elliott had a gun pointed at the officers ready to fire. Given the
significantly greater clarity of the threat in this case, Greenidge and
Slattery compel us to conclude that Leavitt and Cheney's use of
deadly force was reasonable under the circumstances.

B.

Both appellees and the district court suggest to us several grounds
on which Greenidge and Slattery might be distinguished. None of
those grounds, however, serve to vitiate the use of force employed in
this case.

The district court stated that "arguably it's not clear what [Elliott
was] intending to do with the weapon except perhaps move his hands
around and be threatening, but the officers on the outside certainly
don't have to go on the inside; they can move farther away." This
suggestion that the officers might have responded differently is
exactly the type of judicial second look that the case law prohibits.
Furthermore, even if Elliott's specific intent were relevant, it is not

                    6
clear what other evidence of intent the district court would require --
Elliott was pointing his gun at the officers with his finger on the trig-
ger and ignored the order to drop his weapon. Given the officers'
proximity to the car, it is also unclear that they could have moved
away from the car quickly enough to avoid being shot.

The critical point, however, is precisely that Elliott was "threaten-
ing," threatening the lives of Leavitt and Cheney. The Fourth Amend-
ment does not require police officers to wait until a suspect shoots to
confirm that a serious threat of harm exists. The court's comment that
the officers could have moved away from the car is, unfortunately, a
suggestion more reflective of the "peace of a judge's chambers" than
of a dangerous and threatening situation on the street. See Graham,
490 U.S. at 396.

The district court's concern that the number of shots fired was
excessive is likewise misplaced. The number of shots by itself cannot
be determinative as to whether the force used was reasonable. Both
officers fired almost simultaneously; neither officer emptied his gun;
and the evidence indicates that the shooting took place within a matter
of seconds. That multiple shots were fired does not suggest the offi-
cers shot mindlessly as much as it indicates that they sought to ensure
the elimination of a deadly threat.

Appellees make much of the fact that Leavitt searched Elliott only
cursorily before placing him in the car. Even assuming Leavitt should
have conducted a more intensive search, this issue is irrelevant to the
excessive force inquiry. As we noted in Greenidge, Graham requires
us to focus on the moment force was used; conduct prior to that
moment is not relevant in determining whether an officer used reason-
able force. Greenidge, 927 F.2d at 791-92. In Greenidge we specifi-
cally rejected appellants' argument that Officer Ruffin's failure to
obtain proper backup and employ a flashlight was relevant: In light
of "the Supreme Court's focus on the very moment when the officer
makes the `split-second judgments,' . . . events which occurred before
Officer Ruffin opened the car door and identified herself to the pas-
sengers are not probative of the reasonableness of Ruffin's decision
to fire the shot." Id. at 792.

Finally, we must reject appellees' contention that Elliott's intoxica-
tion somehow made him less threatening. The record suggests the

                     7
contrary. Elliott's aggressive, intoxicated behavior appears to have
motivated Leavitt to focus on handcuffing Elliott and placing him in
the car rather than on conducting an exacting search which would
have forced Leavitt to remain in close proximity to Elliott. Expert tes-
timony was also placed in the summary judgment record supporting
the unremarkable proposition that intoxicated suspects are often more
dangerous to police officers than sober ones.

No citizen can fairly expect to draw a gun on police without risking
tragic consequences. And no court can expect any human being to
remain passive in the face of an active threat on his or her life. As
Greenidge and Slattery illustrate, the Fourth Amendment does not
require omniscience. Before employing deadly force, police must
have sound reason to believe that the suspect poses a serious threat
to their safety or the safety of others. Officers need not be absolutely
sure, however, of the nature of the threat or the suspect's intent to
cause them harm -- the Constitution does not require that certitude
precede the act of self protection.

C.

Appellees maintain finally that the denial of summary judgment
was proper due to the existence of factual disputes between the par-
ties. Because there is no evidence to demonstrate the existence of a
genuine issue of material fact, however, we find that the officers'
appeal of the denial of qualified immunity is properly before us and
that the officers are entitled to summary judgment.

We note first that although the district court denied summary judg-
ment on the ground that a material issue of fact exists, this interlocu-
tory appeal is not improper under Johnson v. Jones, 115 S. Ct. 2151
(1995). In Johnson, the Court held that "a defendant, entitled to
invoke a qualified-immunity defense, may not appeal a district court's
summary judgment order insofar as that order determines whether or
not the pretrial record sets forth a `genuine' issue of fact for trial." Id.
at 2159. The next term, however, the Court qualified this potentially
broad proposition. See Behrens v. Pelletier, 116 S. Ct. 834 (1996).
The Behrens Court stated that Johnson does not invariably prohibit
appeal of a denial of summary judgment where the denial is based on
the alleged existence of an issue of fact. Behrens, 116 S. Ct. at 842.

                     8
"Every denial of summary judgment ultimately rests upon a determi-
nation that there are controverted issues of material fact," the Court
noted, "and Johnson surely does not mean that every denial of sum-
mary judgment is nonappealable." Id. (emphasis in the original).

This appeal is properly before us under Behrens because it does not
involve whether "particular conduct occurred," but rather an issue of
law -- whether uncontroverted conduct represented the use of exces-
sive force. As to the material facts here, there is no genuine dispute
because plaintiff has come forward with no evidence. See id. at 840
("On summary judgment, however, the plaintiff can no longer rest on
the pleadings, and the court looks to the evidence before it" in deter-
mining whether a defendant is entitled to qualified immunity.).

With regard to material facts, appellees provide only speculation.
They claim that the officers' account of events is not credible because
it is improbable, but present no evidence to contradict the officers'
testimony. Their only specific, material factual contention is that
Elliott did not in fact have a gun at the time of the shooting. Appellees
fail, however, to point to any evidence in the summary judgment
record that would support their theory that the gun was planted by
police.

In contrast, the officers' claim that Elliott was holding a gun when
they shot him is corroborated by substantial evidence. A medical
examiner, for example, testified that the best explanation for wounds
on Elliott's right hand was that he had been holding something at the
time of the shooting. In addition, the FBI lab report concluded that the
blue fiber caught on the gun came from Elliott's shorts. Finally, the
motorist that Elliott had threatened a few months before identified the
gun in an affidavit as the one Elliott had used in that prior incident.

The other facts referenced by appellees are not controverted and do
not alter the inescapable conclusion that the officers were confronted
with a serious threat to their safety. Leavitt's search, Elliott's intoxi-
cation, the number of shots fired, the positioning of Elliott and the
officers at the time of the shooting, and the manner in which Elliott
was restrained do not change the fact that Leavitt and Cheney faced
an individual at close range who was pointing a gun at them with his
finger on the trigger.

                     9
III.

Inasmuch as the force used by the officers was objectively reason-
able under Graham, we reverse the judgment of the district court. We
remand the case with directions that it be dismissed.

REVERSED

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