                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-1382


ESTATE OF TARIK K. RODGERS, by and through his
administrators Michael Rodgers and Brenda
Rodgers; MICHAEL RODGERS, as parent of the
decedent; BRENDA RODGERS, as parent of the
decedent,

                                          Plaintiffs - Appellants,

          versus


STEVE SMITH, individually and in his official
capacity as Chief of Police of the City of
Williamston Police Department, North Carolina;
KEITH ROACH, individually and in his official
capacity as the Sheriff for Martin County;
WALTER J. FARROW, III, individually and in his
official capacity as a Martin County Deputy
Sheriff; WILLIAM R. WATERS, JR., individually
and in his official capacity as a Williamston
North Carolina police officer; MELANIE COX,
individually and in her official capacity as a
Williamston North Carolina police officer;
CHARLIE BROWN, individually and in his
official capacity as a Williamston North
Carolina police officer; ELVIE FORNEY, III,
individually and in his official capacity as a
Williamston North Carolina police officer;
SCOTT MCFARLAND, individually and in his
official capacity as a Martin County Deputy
Sheriff; BRIAN EDMONDSON, individually and in
his official capacity as a Martin County
Deputy Sheriff; BRIAN HARDISON, individually
and in his official capacity as a Williamston
North Carolina police officer; TRAVIS COWAN,
individually and in his official capacity as a
Williamston North Carolina police officer;
STACEY PIPPIN, individually and in his
official capacity as a Williamston North
Carolina   police    officer;   DAVID   CROSS,
individually and in his official capacity as a
Martin County Deputy Sheriff; THE CITY OF
WILLIAMSTON, NORTH CAROLINA,

                                           Defendants - Appellees,

           and


DONNIE PITTMAN, individually and in his
official capacity as the County Manager for
Martin County, North Carolina; MARTIN COUNTY,
NORTH CAROLINA,

                                                        Defendants.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CA-03-44-4-H)


Argued:   December 1, 2005                 Decided:   June 26, 2006


Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and Walter D.
KELLEY, Jr., United States District Judge for the Eastern District
of Virginia, sitting by designation.


Affirmed by unpublished opinion. Chief Judge Wilkins wrote the
majority opinion, in which Judge Kelley joined.     Judge Gregory
wrote an opinion concurring in part and dissenting in part.


ARGUED: Teresa Louise Smallwood, Windsor, North Carolina; Robert
Arlington Berry, Harrisburg, Pennsylvania, for Appellants.       ON
BRIEF: Gary S. Parsons, BAILEY & DIXON, Raleigh, North Carolina;
Mark Allen Davis, WOMBLE, CARLYLE, SANDRIDGE & RICE, Raleigh, North
Carolina, for Appellees. ON BRIEF: K. Jameson Lawrence, Baltimore,
Maryland, for Appellants.     Gavin B. Parsons, BAILEY & DIXON,
L.L.P., Raleigh, North Carolina, for Appellees S. Smith, W. R.
Waters, M. Cox, C. Brown, E. Forney, B. Hardison, T. Cowan & City
of Williamston.




                                2
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
WILKINS, Chief Judge:

     The Estate of Tarik K. Rodgers (the Estate) brought this

federal civil rights action, see 42 U.S.C.A. § 1983 (West 2003),

claiming violations of the Fourth Amendment in connection with the

death of Tarik Rodgers (Rodgers).          The Estate now appeals a

decision of the district court granting summary judgment, on the

basis of qualified immunity, to certain of the defendants.1                For

the reasons set forth below, we affirm.



                                   I.

     The pertinent facts, viewed in the light most favorable to the

Estate, see Wilson v. Flynn, 429 F.3d 465, 466 (4th Cir. 2005), are

as follows.   On April 14, 2002, a Martin County, North Carolina

Sheriff’s deputy served a restraining order on Rodgers.           The order

prohibited Rodgers from coming into contact with his girlfriend,

Angela Freeman, and their two children.

     At   approximately   10:00    that   evening,    Rodgers     drove    to

Freeman’s house and abducted her at gunpoint.             He drove her to a

remote area, where they discussed the protective order.                 After

resolving   their   differences,   they   engaged    in    consensual     sex.

Rodgers was upset about his conduct that evening and wondered aloud


      1
       The district court had previously dismissed other claims
 against these defendants and the claims against other defendants.
 The Estate does not appeal those dismissals.

                                    3
to Freeman how he was going to explain himself to their children.

At one point he asked Freeman to shoot him, but she refused.

     Around midnight, Rodgers drove by Freeman’s home to see if any

police officers were there.    (Although Rodgers had warned those

present in Freeman’s home not to call the police, the police had

nevertheless been contacted and informed that Rodgers had abducted

Freeman at gunpoint.)   Rodgers eventually passed a patrol car and

“took off.”   J.A. 93 (internal quotation marks omitted).   A high-

speed chase ensued that involved Martin County Deputy Sheriff

Walter Farrow and City of Williamston, North Carolina police

officers William Waters, Elvie Forney, Melanie Cox, and Charles

Brown.   The chase, which continued until nearly 2:00 a.m. on the

morning of April 15, was later joined by Scott McFarlane, a plain-

clothes narcotics officer from another jurisdiction.   The officers

engaged in the chase were aware that Rodgers had abducted Freeman

and that he was considered armed and dangerous.

     Rodgers ended the chase by stopping abruptly in a parking lot,

causing Officer Waters to crash into the rear of Rodgers’ vehicle.

Officer Waters exited his vehicle with his trained police dog.

Officer Waters released the dog, which mistakenly attacked Officer

McFarlane, biting him on the left leg.

     As Officer Waters was commanding the police dog to release

Officer McFarlane, Rodgers was attempting to exit his vehicle

through the damaged driver’s side door, and the other officers who


                                 4
had been involved in the chase were approaching Rodgers’ vehicle.

Freeman, who was still in the passenger seat of the automobile,

heard Rodgers saying “holdup” as he tried to get out.          Id. at 109.

Rodgers had his hands up and, at that point, had nothing in them.

However, Freeman did not notice whether Rodgers’ weapon, which had

been between his seat and the center console, was still there.            As

Rodgers emerged from the car, Freeman could only see his left side,

not his right.

      Officer Brown grabbed Rodgers by the shirt to get him out of

the car.   Rodgers did not have a weapon at that time, but as Brown

was pulling him out of the vehicle, Rodgers leaned back in and

grasped his firearm.     Officer Brown yelled “Gun!” and backed away

from the vehicle.       Officer Waters heard this warning and saw

Rodgers emerging from his vehicle.         Officer Waters did not see a

weapon,2 but he observed that Rodgers had his right hand under his

shirt. Deputy Farrow, however, did observe Rodgers emerge from his

vehicle with a firearm in his right hand.       Officer Waters deployed

the   police   dog,   which   initially   engaged   Rodgers   by   the   arm.


       2
       The record contains three evidentiary items concerning
 Officer Waters’ observations: the State Bureau of Investigation
 (SBI) statement he made shortly after the incident, an affidavit
 sworn in late November 2004, and a transcript of his deposition
 testimony, given in October 2004. The affidavit indicates that
 Officer Waters saw Rodgers with a firearm before he deployed the
 police dog, while the SBI statement indicates that he did not see
 the weapon until after the deployment. Officer Waters’ deposition
 testimony (at least the portion included in the record) does not
 directly address this topic.     We assume the truth of the SBI
 statement, as that is most favorable to the Estate.

                                     5
Officer Waters then saw Rodgers point the firearm at him (Officer

Waters).    In the ensuing seconds, Officer Waters and Deputy Farrow

fired their weapons.        Bullets from Officer Waters’ firearm struck

Rodgers multiple times, killing him.

       Some of the events surrounding the shooting were captured on

videotape by a camera located in Officer Forney’s patrol vehicle.

The    recording   begins    as   Officer   Forney   turns   his   vehicle   to

approach the crash scene.          Officer Forney stopped behind Deputy

Farrow’s vehicle, thus placing Deputy Farrow’s vehicle between the

video camera and Rodgers’ and Officer Waters’ vehicles.

       At 1:50:56 on the recording, Deputy Farrow can be seen in the

center of the screen, climbing up the side of his vehicle from

behind the open driver’s side door.           (He later testified that he

was trying to stay out of the way of the police dog.)                 Officer

McFarlane is to the left of Deputy Farrow’s vehicle, crouched on

the ground with his firearm in his right hand.          At 1:51:01, Officer

Waters comes into view from the left of the screen with the police

dog.    Officer Waters brings the dog forward a few feet and releases

it, at which point the dog is out of view in front of Deputy

Farrow’s vehicle.      Having released the dog, Office Waters moves

forward a few more steps and appears to be quite close to Rodgers.

       As Officer Waters deploys the dog, Rodgers can be seen.

Because of the location of Deputy Farrow’s vehicle with respect to

the video camera, Rodgers at first is viewable only through the


                                       6
back and front windshields of Deputy Farrow’s vehicle.             He appears

to be leaning slightly forward, and his arms are contrasted against

the white shirt he is wearing.        At 1:51:03, Rodgers appears to rise

up, raising his left arm.       Deputy Farrow is standing on the ground

behind the driver’s side door of his vehicle, and Officer McFarlane

is kneeling a few feet to the left.                Both officers have their

weapons drawn.     At 1:51:04, Rodgers’ left arm has come down and he

is falling backward, evidently having been engaged by the police

dog. Officer McFarlane is now standing on his uninjured right leg.

At 1:51:06, Rodgers is out of view, Officer Brown is backing away,

and Officer McFarlane has advanced a small distance.                  Officer

Forney    comes   into   view   on   the   left,   behind   the   other   three

officers.

     Rodgers appears again at 1:51:07, coming toward the officers

as he falls.       Rodgers has moved to the left of Deputy Farrow’s

vehicle and is no longer obscured by it.           He is moving sideways and

is facing the video camera; thus, he is falling to his right,

toward the officers.       Two muzzle flashes can be seen as Officer

Waters draws and fires his weapon.         As Rodgers falls to the ground,

his firearm can be seen leaving his hand and landing a few feet

away.     At 1:51:08, Rodgers is on the ground and now unarmed, and

Officer Waters fires again.           At 1:51:10-11, three more muzzle

flashes    are    seen   from   Officer    Waters’    weapon.      The    other

officers--except Deputy Farrow, who continues to use the door of


                                       7
his vehicle as a shield--back away as the incident ends.                           Rodgers

is lying on the ground but is still being pulled by the police dog,

which is out of view but evidently has engaged Rodgers’ leg.                           The

time elapsed from when Rodgers first appears on the video recording

until the firearm is seen leaving his hand is no more than seven

seconds.

     Rodgers was transported to the hospital and pronounced dead.

Examination      of    the   body   revealed       that       Rodgers    had   been   shot

multiple times in the head and body.                   He also exhibited bite marks

on his right arm, hand, abdomen, and thigh.                     It is undisputed that

shots    fired    by   Officer      Waters       killed    Rodgers;       Deputy    Farrow

discharged       his   weapon    but   did       not    hit    Rodgers,    and     Officer

McFarlane never discharged his weapon.

     The Estate subsequently brought this action alleging multiple

claims    against      the   officers    involved         in    the     shooting,     other

individuals, and Martin County and the City of Williamston.                           As is

relevant here, the Estate alleged that Rodgers’ Fourth Amendment

rights were violated by the deployment of the police dog without

prior warning and by the use of deadly force by Deputy Farrow and

Officer Waters.        We address each of these claims below.



                                         II.

        Government officials performing discretionary functions are

entitled to qualified immunity from liability for civil damages to


                                             8
the extent that “their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified immunity protects “all but the plainly incompetent or

those who knowingly violate the law,” Malley v. Briggs, 475 U.S.

335, 341 (1986); it protects law enforcement officers from “bad

guesses in gray areas” and ensures that they are held liable only

“for transgressing bright lines,” Maciariello v. Sumner, 973 F.2d

295, 298 (4th Cir. 1992).            Because qualified immunity “is an

entitlement not to stand trial or face the other burdens of

litigation,” Saucier v. Katz, 533 U.S. 194, 200 (2001) (internal

quotation marks omitted), the question of its applicability should

ordinarily    be   resolved    at    the   summary   judgment    stage,    see

Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005).

     When a defendant asserts entitlement to qualified immunity,

the court must consider two questions. The first is “whether a

constitutional right would have been violated on the facts alleged”

by the plaintiff.      Saucier, 533 U.S. at 200.           If so, the next

question is whether the right asserted was clearly established at

the time of the alleged violation.           See id.   The law is clearly

established   “not   only     when   the   very   action   in   question   has

previously been held unlawful, but also when pre-existing law makes

the unlawfulness of the act apparent.”            Meeker v. Edmundson, 415

F.3d 317, 323 (4th Cir. 2005) (internal quotation marks omitted).


                                       9
On appeal, we review de novo the resolution of these questions by

the district court.      See Rogers v. Pendleton, 249 F.3d 279, 285

(4th Cir. 2001).

     The right the Estate alleges was violated here is Rodgers’

Fourth Amendment right to be free of unreasonable seizures, a right

that includes seizures accomplished by excessive force.        See Jones

v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003). The test for

whether force employed to effect a seizure is excessive is one of

“objective reasonableness under the circumstances.”            Graham v.

Connor,   490   U.S.   386,   399   (1989)   (internal   quotation   marks

omitted).

                 A.    Excessive Force--Deputy Farrow

     The Estate first contends that the district court erred in

granting summary judgment to Deputy Farrow.         There is no dispute

that while Deputy Farrow did fire his weapon, no bullets from that

weapon struck Rodgers. Based on this, the district court concluded

that Deputy Farrow had not seized Rodgers within the meaning of the

Fourth Amendment. The Estate disputes this conclusion, maintaining

that it is sufficient that Deputy Farrow intended to achieve

Rodgers’ submission through the use of force.        We disagree.

     “From the time of the founding to the present, the word

‘seizure’ has meant a taking possession.          For most purposes at

common law, the word connoted not merely grasping, or applying

physical force to, the animate or inanimate object in question, but


                                     10
actually bringing it within physical control.”                      California v.

Hodari D., 499 U.S. 621, 624 (1991) (internal quotation marks &

citations omitted; emphasis added).                 Thus, a seizure occurs only

when there is a physical touching or a submission to a show of

authority.3          See id. at 625-26; United States v. Letsinger, 93 F.3d

140, 143 (4th Cir. 1996).             Here, there was no seizure because the

bullets from Deputy Farrow’s weapon never touched Rodgers.                     See

Carr v. Tatangelo, 338 F.3d 1259, 1267, 1270-71 (11th Cir. 2003)

(noting that excessive force claim asserted by individual who was

shot at by law enforcement officers, but not touched by bullets,

did not involve Fourth Amendment seizure).

                B.    Excessive Force--Deployment of Police Dog

      The Estate next contends that the district court erred in

granting summary judgment on the Estate’s claim that Officer Waters

unreasonably deployed the police dog without first warning Rodgers.

See Vathekan v. Prince George’s County, 154 F.3d 173, 178 (4th Cir.

1998) (“An attack by an unreasonably deployed police dog in the

course     of    a     seizure   is    a   Fourth     Amendment   excessive   force

violation.”).

      This court has twice addressed the constitutionality of the

deployment of a police dog without prior warning.                 In Kopf v. Wing,

942   F.2d      265,    266   (4th    Cir.   1991),    law   enforcement   officers



       3
       The Estate does not claim that Rodgers submitted to a show
 of authority by Deputy Farrow, or by any other officer.

                                             11
deployed a police dog without prior warning on two suspects who

were hiding in an “extremely narrow passage” between a shed and a

fence and who were thought to be armed.        This court concluded that

the officer responsible for the deployment was not entitled to

summary judgment on the basis of qualified immunity, reasoning that

failure to provide a warning and time for the suspects to surrender

was unreasonable, given that they were surrounded and unable to

escape.   See id. at 268.       In Vathekan, the facts viewed in the

light   most   favorable   to   the   plaintiff   indicated   that   a   law

enforcement officer deployed a police dog, without prior warning,

into a residence that he believed had been broken into.                  See

Vathekan, 154 F.3d at 176-77.         This court concluded that doing so

was unreasonable, see id. at 180, and noted that “Fourth Circuit

precedent existing in 1995 clearly established that failure to give

a warning before releasing a police dog is objectively unreasonable

in an excessive force context,” id. at 179.

     Citing Kopf and Vathekan, the Estate contends that deployment

of a police dog without a verbal warning is always objectively

unreasonable.    This cannot be so, however.        As noted in Vathekan

itself, a Fourth Amendment excessive force claim is evaluated under

the reasonableness standard set forth in Graham. See Vathekan, 154

F.3d at 178; see also Kopf, 942 F.2d at 267-68 (quoting Graham).

The application of this test “requires careful attention to the

facts and circumstances of each particular case, including the


                                      12
severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

arrest by flight.”   Graham, 490 U.S. at 396.     Moreover, “[t]he

calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments--in

circumstances that are tense, uncertain, and rapidly evolving--

about the amount of force that is necessary in a particular

situation.”   Id. at 396-97.    Thus, Vathekan cannot be viewed as

holding anything more than that the unwarned deployment at issue in

that case was unreasonable.

     Applying this test to the particular facts that faced Officer

Waters when he deployed the police dog without first warning

Rodgers, we conclude that there was no Fourth Amendment violation.

When Officer Waters deployed the police dog, he had heard Officer

Brown shout “Gun!”, and he observed that Rodgers’ right hand was

out of view under his shirt.4     These observations were combined

with Officer Waters’ knowledge that Rodgers had kidnapped his


      4
       Citing Freeman’s statement to the police and her deposition
 testimony, the Estate asserts that there is “compelling evidence
 that the unarmed ... Rodgers had his hands in the air when he was
 viciously attacked by the K-9 Officer.” Br. of Appellants at 27.
 As set forth in Part I.A., however, Freeman’s statement and
 deposition testimony establish that she viewed Rodgers’ hands only
 for a brief period as he began to emerge from his vehicle. The
 uncontradicted testimony of officers outside the vehicle--who
 observed Rodgers when Freeman could not--and what can be seen on
 the videotape indicate that Rodgers’ hands were not raised in
 surrender when the police dog was deployed.

                                 13
girlfriend at gunpoint, had led police on a high-speed chase, and

had stopped abruptly in a manner that caused Officer Waters’

vehicle to collide with Rodgers’ vehicle.       At the time of the

deployment, Officer Waters was no more than 10 feet away from

Rodgers.   Officer Waters testified during his deposition that he

deployed the dog without warning because “I was close and there was

no cover between [Rodgers] and I.      And I didn’t want to draw any

more attention to myself than I had to.”      J.A. 285.   Under these

circumstances, we cannot say that Officer Waters’ judgment was an

unreasonable one.   We therefore conclude that there was no Fourth

Amendment violation in the manner Officer Waters deployed the

police dog.

     Even if Officer Waters’ deployment of the police dog without

prior warning did violate the Fourth Amendment, the unlawfulness of

his conduct was not clearly established on April 15, 2002.       Kopf

and Vathekan stand at most for the principle that the Fourth

Amendment is violated when an officer who faces no immediate threat

deploys a police dog without prior warning.      For the reasons set

forth above, that was not the case here.

                    C.   Excessive Force--Shooting

     The Estate next contends that Officer Waters used excessive

force in shooting Rodgers.      “The intrusiveness of a seizure by

means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S.

1, 9 (1985).   Nevertheless, a police officer may employ deadly


                                  14
force when the officer “has probable cause to believe that the

suspect poses a threat of serious physical harm, either to the

officer or to others.”        Id. at 11; see Cox v. County of Prince

William, 249 F.3d 295, 299 (4th Cir. 2001).

     The record evidence, viewed in the light most favorable to the

Estate, supports the conclusion that when Rodgers initially emerged

from his vehicle, his hands were up, and they were empty.               This

much can be reasonably inferred from Freeman’s testimony and from

the testimony of Officer Brown.       We will therefore assume that at

that point, the use of deadly force would have violated the Fourth

Amendment.      However, no deadly force was used then.         Rather, the

uncontradicted record evidence establishes that at some point after

initially emerging from the car, Rodgers acquired his firearm,

either by reaching back into the car and grabbing it (as Officer

Brown’s testimony would indicate), or by some other means (such as

removing   it    from   the   waistband   of    his   pants,   an   inference

consistent with Freeman’s testimony).          Further, the uncontradicted

record evidence indicates that Officer Brown shouted “Gun!” and,

critically, that Rodgers waved the weapon around and pointed it

directly at Officer Waters and Deputy Farrow.              Indeed, Officer

Waters testified that he saw Rodgers point the firearm at him after

Rodgers had been engaged by the police dog.            When Officer Waters

was presented with these circumstances, he also knew that Rodgers

had abducted his estranged girlfriend at gunpoint, had led officers


                                    15
on a lengthy high-speed chase, and had caused one of the pursuing

vehicles to crash into his own.          We therefore hold that Officer

Waters’ use of deadly force was not objectively unreasonable in

light of the circumstances known to him at the time of the

shooting.

     The Estate further contends, however, that even if the use of

deadly force was justified when Officer Waters fired the initial

shots, that justification ended when Rodgers fell to the ground.

We disagree.    The reasonableness of an officer’s actions rests on

the information possessed by the officer at the moment that force

is employed.    See Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.

1996).      Therefore,   “force   justified   at   the   beginning   of   an

encounter is not justified even seconds later if the justification

for the initial force has been eliminated.”          Waterman v. Batton,

393 F.3d 471, 481 (4th Cir. 2004); see Hopkins v. Andaya, 958 F.2d

881, 887 (9th Cir. 1992) (per curiam) (holding that second use of

deadly force was unreasonable when “the exigency of the situation

lessened dramatically” after the first use of deadly force).

     In Elliott, we assessed the reasonableness of the use of

deadly force by police officers who had placed a suspect, with his

hands cuffed behind his back, in a police cruiser.        See Elliott, 99

F.3d at 641-42.    Moments later, the officers observed the suspect

pointing a firearm at them, and they fired 22 shots in a matter of

seconds, killing the suspect.       See id. at 642.       We rejected the


                                    16
contention that the number of shots fired rendered the use of force

excessive, noting that the shooting took place in a matter of

seconds.   See id. at 643.   “That multiple shots were fired does not

suggest the officers shot mindlessly as much as it indicates that

they sought to ensure the elimination of a deadly threat.”    Id.   In

contrast, in Waterman we considered a situation in which officers

fired at a suspect as he accelerated his vehicle toward and then

past them.    See Waterman, 393 F.3d at 474-75.        We held that

officers exceeded constitutional bounds by continuing to fire after

the vehicle passed them, at which point the officers knew or should

have known that the immediate threat of harm had passed.     See id.

at 482.

     We conclude that Elliott is controlling here.     The videotape

establishes that Rodgers fell to the ground, with his arms in the

vicinity of his waist, no later than 1:51:08.         At this time,

Rodgers appears to be slightly curled up, thus presenting the top

or back of his head to Officer Waters.    Only two seconds later, at

1:51:10, Officer Waters fires three more shots.         Importantly,

although Rodgers’ firearm left his hands as he fell, nothing in the

record indicates that Officer Waters knew that Rodgers had dropped

his weapon, and thus was no longer a threat.     We conclude that on

this evidence, a reasonable factfinder could only conclude that

Officer Waters was acting to ensure the neutralization of a deadly

threat.


                                  17
      Even if the second volley of shots were unconstitutional, that

unconstitutionality was by no means clearly established as of

April 15, 2002.    Waterman required us to decide whether it was

clearly established in November 2000 that an officer may not use

deadly force in the seconds after a serious threat had abated.   See

Waterman, 393 F.3d at 482-83.     We concluded that although other

circuits had reached this conclusion prior to the relevant time,

the Fourth Circuit had not.     See id. at 483.    In light of the

uncertainty of the law existing at the time of the incident, we

held that the unconstitutionality of the use of force in the

seconds after a threat has abated was not clearly established. See

id.   Because the law on this point did not become clear until 2004,

when Waterman was decided, we conclude that even if Officer Waters

had violated the Constitution, he would be entitled to qualified

immunity on the basis that the unconstitutionality of his actions

was not clearly established at the time of the incident.5




       5
       In light of our conclusion that all of the officers involved
 in the incident are entitled to qualified immunity, the Estate’s
 claims against Martin County Sheriff Keith Roach and against the
 City of Williamston necessarily fail. See Kopf, 942 F.2d at 269
 (noting that municipal liability “is derivative of, but narrower
 than, the officers’”).

                                 18
                               III.

     This case is no doubt a tragic one.    It is possible, as the

Estate contends, that Rodgers was attempting to surrender when he

was engaged by the police dog and shot at by the officers.    Even if

this was the case, however, the circumstances presented to the

officers at the outset of the encounter--the kidnapping, the high-

speed chase, the wielding of a firearm and pointing it at the

officers--gave them probable cause to believe otherwise, and to use

deadly force to eliminate a serious and immediate threat to their

lives.   We therefore affirm the district court.


                                                             AFFIRMED




                                19
GREGORY, Circuit Judge, concurring in part and dissenting in part:

        I agree with the majority’s conclusion that Deputy Farrow did

not seize Rodgers within the meaning of the Fourth Amendment.

Accordingly, I concur that this officer is entitled to qualified

immunity.     However, because I cannot conclude as a matter of law

that Officer Waters’ deployment of his police dog was objectively

reasonable under the circumstances, I dissent from the majority’s

holding that this defendant is also entitled to qualified immunity.

        “An attack by an unreasonably deployed police dog in the

course of a seizure is a Fourth Amendment violation.”       Vathekan v.

Prince George’s County, 154 F.3d 173, 178 (4th Cir. 1998).       As the

majority recognizes, this court has twice addressed the issue of

whether releasing a police dog without issuing a prior warning

constituted unreasonable deployment.        See id.; Kopf v. Wing, 942

F.2d 265 (4th Cir. 1991).      In both cases, this court concluded that

it did.      In this case, it is undisputed that Officer Waters

deployed his police dog against the decedent without issuing a

prior     warning.     The    majority,   however,   distinguishes   the

circumstances faced by Officer Waters in this case from those faced

by the officers in Vathekan and Kopf, apparently on the grounds

that Waters, unlike the officers in those cases, faced an imminent

threat of harm.      See Op. at 14-15.       Accordingly, the majority

concludes that it was not unreasonable for Waters to deploy his dog

without prior warning.       In my view, however, Waters did not face an


                                     20
imminent threat from Rodgers, and, thus, I cannot meaningfully

distinguish the circumstances of this case from those of Kopf.

       Although the majority provides a brief summary of the facts of

Kopf, I believe that a more complete recitation is required. After

receiving a radio report of an armed robbery, police officers

initiated a high-speed pursuit of the vehicle in which the suspects

were riding.     Kopf, 942 F.2d at 266.              Shortly thereafter, the

suspects abruptly stopped their car and fled on foot.                 Id.   After

a cursory search of the vehicle failed to uncover the handgun used

in the robbery, the officers reasonably concluded that the suspects

likely were armed.    Id.    Although officers apprehended one of the

three suspects during the ensuing foot pursuit, two suspects were

able to conceal themselves behind a shed in the backyard of a

residential neighborhood.      Id.      The suspects’ hiding place “was an

extremely narrow passage between the shed’s wall and a fence.” Id.

After the officers located these defendants and surrounded the

shed, one officer deployed a police dog into the passageway without

a forewarning.     Before the officers entered the passageway, the

police dog severely mauled the suspects.             See id. at 267.

       In reviewing the propriety of the district court’s grant of

summary judgment in favor of the officer who had deployed the dog,

this   court   concluded    that   he    was   not    entitled   to   qualified

immunity. Notwithstanding the officer’s reasonable belief that the

suspects were armed, the court concluded that the officer’s failure


                                        21
to provide a warning (and therefore an opportunity to surrender)

before deploying the dog was unreasonable.    See id. at 268.   As the

majority recognizes, central to this conclusion was this court’s

finding that the suspects were surrounded and unable to escape.

See id.

     The majority relies on Officer Waters’ knowledge of the

circumstances leading up to the high speed pursuit as well as his

statements regarding his perceptions of Rodgers once that pursuit

ended to conclude that Waters acted reasonably in deploying his

police dog without warning.     However, the evidence in the record,

when viewed in the light most favorable to the decedent, portrays

a scene indistinguishable from the one faced by the officers in

Kopf.

     The video of this incident indicates that several officers had

positioned themselves around the parking lot before Rodgers exited

his vehicle.    Thus, as in Kopf, the decedent was surrounded and

unable to escape.    However, the majority concludes that Waters,

unlike the officers in Kopf, faced an imminent threat of harm.     In

so doing, the majority points to Waters’ assertions that he heard

someone yell “Gun!”, that he observed that Rodgers’ right hand was

out of view under his shirt, and that he (Waters) was so close to

the decedent that he had no choice but to deploy his dog without

warning.   See Op. at 14-15.   Viewing the evidence in the light most




                                  22
favorable to the decedent, however, I believe that the majority’s

reliance on these assertions is misguided.

     First,        as    the   majority     notes,   Officer   Waters   gave    two

distinctly different versions of what he saw in Rodgers’ hand

before he deployed the dog.                In his initial SBI statement taken

shortly after the shooting, Waters asserted that he did not see

Rodgers’ right hand, but that “it may have been up under his

shirt.”    J.A. 345.        Contrarily, in a sworn affidavit, Waters later

claimed that Rodgers had “advanced toward [him] with his handgun

drawn     in   a    threatening      manner.”        J.A.   135.    The   patent

inconsistency           between    these    two   statements    undermines      the

credibility of Waters’ assertions as to the imminent threat posed

by the decedent.

     Second, Officer Waters’ and the other officers’ actions, as

portrayed on the video, provide strong evidence that Rodgers did

not have a gun in his hand prior to being engaged by the dog.

Beginning at 1:51:01, Officer Waters, without drawing his gun, can

be seen rushing across the parking lot to within a few feet of

where Rodgers is standing, hurling the dog towards him, and then

continuing to advance until he is within inches of Rodgers.                    Four

seconds later, at 1:51:05, Officer Waters, who is now standing in

front of Rodgers watching the dog attack, begins to back away from

Rodgers (and the dog).            Officer Waters does not draw his gun until

1:51:06, when Rodgers, who at this point is desperately attempting


                                            23
to extricate the dog from his leg, reaches towards his waistband.

Had Waters actually heard his fellow officer shout “Gun!” or turned

around to see Rodgers pointing a weapon at him, as he later

claimed, it is doubtful that the officer would have approached and

stood in front of Rodgers in such a vulnerable manner.            Further,

the video shows that neither Officer McFarlane or Deputy Farrow has

his gun raised at Rodgers as Officer Waters rushes towards him with

the dog.   Officer McFarlane, who is crouched on the ground with his

gun in his right hand, does not raise his weapon at Rodgers until

Waters releases the dog (1:51:03), and Deputy Farrow does not draw

and aim his gun at Rodgers until five seconds after McFarlane

(1:51:08).      This is further evidence that Rodgers did not have a

gun in his hand prior to Waters’ release of the dog.

      Finally, Waters’ contention that he was so close to Rodgers

that he had no choice but to deploy the dog without warning is

belied by his actions and previous statement.         As noted above, the

video shows Waters advancing across the parking lot to within two

or three feet of Rodgers before releasing the dog. Further, Waters

initially asserted in his SBI statement that, while the high speed

pursuit was still in progress, he had radioed the other officers to

warn them that he intended to deploy the dog against Rodgers once

the   pursuit    ended.   See   J.A.    344.   This   statement    further

undermines Waters’ claim that he made a split-second decision to

deploy the dog based on his close proximity to Rodgers.


                                   24
      In sum, the video portrays a scene where a police officer

deployed   his   dog    without     warning      against   a   suspect    who   was

completely surrounded and who, as evidenced by the officers’ own

actions, had not drawn his gun or otherwise endangered his--or his

fellow officers’--safety.           I, therefore, conclude that Officer

Waters’    deployment    of   the    dog    in   this   case   is   not   readily

distinguishable from the unlawful deployment in Kopf and would hold

that Waters is not entitled to qualified immunity.*

     As the majority aptly notes, this is a tragic case.                        I,

however, cannot join the majority in concluding that Rodgers’

actions in bringing about this encounter justified Officer Waters’

subsequent response. Ultimately, viewing the evidence in the light

most favorable to the decedent, I believe a jury could conclude

that Rodgers got out of his vehicle with empty hands in an attempt

to surrender.    Although it is undisputed that Rodgers eventually

drew a gun, a jury could reasonably find that he did so only after

he was attacked by the dog--and only then, in a desperate attempt

to defend that attack. But for Officer Waters’ unwarned deployment

of the dog, this tragedy may have been averted.

     I respectfully dissent in part.



      *
       The unlawfulness of deploying a dog without prior warning in
 these circumstances was clearly established by our decision in
 Kopf, which this court decided eleven years before the events
 giving rise to this case occurred. Thus, I would also conclude
 that the decedent has satisfied the second element for defeating
 qualified immunity as to Officer Waters.

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