UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEAN S. STOUT, Administratrix of the
Estate of Edwin L. Plunkett,
deceased,
Plaintiff-Appellant,

v.
                                                                     No. 99-1526
G. F. BINGEMAN; T. D. KANODE,
individually and in their official
capacities as officers of the
Roanoke City Police Department;
THE CITY OF ROANOKE, VIRGINIA,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-97-6-7)

Argued: January 27, 2000

Decided: April 4, 2000

Before NIEMEYER, Circuit Judge,
HAMILTON, Senior Circuit Judge, and
Frederic N. SMALKIN, United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Senior Judge Hamilton and Judge Smalkin joined.

_________________________________________________________________
COUNSEL

ARGUED: Thomas Dene, DENE & DENE, P.C., Abingdon, Vir-
ginia, for Appellant. Jim Harold Guynn, Jr., GUYNN & DILLON,
P.C., Roanoke, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

After Edwin Plunkett was fatally shot by officers of the Roanoke,
Virginia police force, Jean Stout, the administratrix of Plunkett's
estate, filed this action under 42 U.S.C. § 1983 against the police offi-
cers and the City of Roanoke, alleging excessive force in violation of
the Fourth and Fourteenth Amendments. The district court granted the
defendants' motion for summary judgment, holding that the officers'
actions were objectively reasonable under the circumstances and that
Stout had therefore failed to establish any violation of a constitutional
right. Alternatively, the court held that the officers were entitled to
qualified immunity. On Stout's appeal, we affirm.

I

On March 24, 1996, a dispatcher for the Roanoke City Police
received a call from Billie Patton, who reported a domestic distur-
bance at the home she shared with Edwin Plunkett. The dispatcher
alerted Officers Troy Kanode and Gerald Bingeman to the situation,
and advised them that Plunkett had reportedly gone"downstairs to get
a gun." Officer Kanode was the first to arrive on the scene, encounter-
ing Patton in front of her next-door neighbor's home. She told Officer
Kanode that Plunkett was violently drunk and had physically abused
her. Officer Kanode observed that Patton had red marks on her legs,
arms, and neck.

                    2
While Officer Kanode was conversing with Patton, Officer Binge-
man arrived. Officer Kanode briefed Officer Bingeman on the cir-
cumstances and expressed his intent to arrest Plunkett for assaulting
Patton. Officer Kanode also told Officer Bingeman that he had previ-
ously been involved in an arrest of Plunkett in which it had been nec-
essary to use force to subdue him.

As Officers Kanode and Bingeman approached Plunkett's house,
Plunkett appeared at his front door, partially opened the screen door
and began yelling, demanding that the officers leave his property.
Officer Bingeman took hold of the screen door, opening it fully, and
Officer Kanode explained to Plunkett that they "just wanted to get his
side of the story," but Plunkett continued to be uncooperative. At that
point, Officer Kanode advised Plunkett that he was under arrest and
demanded that Plunkett, who was partially concealed behind the door-
jamb, put his hands where the officers could see them. According to
the officers, Plunkett then took a step backwards, revealing that he
was holding a high-powered hunting rifle in his left hand. Plunkett
continued to retreat from the doorway, raising the rifle so that it was
leveled at the officers and bringing his right hand toward the trigger.
The officers drew their weapons, and Officer Bingeman yelled for
Plunkett to drop his rifle. Plunkett refused to comply and Officer
Bingeman, fearing he was about to be shot, fired the first shot. Hear-
ing the shot, and uncertain who had fired, Officer Kanode also began
firing at Plunkett. The officers continued firing until Plunkett fell to
the floor.

Paramedics declared Plunkett dead at the scene. The autopsy indi-
cated that Plunkett had been struck by either six or seven bullets, at
least five of which appeared to have entered from the rear, including
the fatal shot to the back of the head.

Jean Stout, the administratrix of Plunkett's estate, brought suit
under 42 U.S.C. § 1983 against Officers Kanode and Bingeman, as
well as the City of Roanoke, alleging that Kanode and Bingeman had
used excessive force in violation of the Fourth and Fourteenth
Amendments. On the defendants' motion for summary judgment, the
district court ruled that the force that the officers used was objectively
reasonable in the circumstances and that Stout had therefore failed to
establish any violation of a constitutional right. Alternatively, the

                     3
court found that the officers were entitled to qualified immunity. This
appeal followed.

II

In the case where a plaintiff alleges that a law enforcement officer
unconstitutionally used deadly force, the officer's actions are judged
by a standard of objective reasonableness. See Graham v. Connor,
490 U.S. 386, 396-97 (1989). And in demanding objective reason-
ableness, the court must evaluate the use of force

          from the perspective of a reasonable officer on the scene,
          rather than with the 20/20 vision of hindsight. . . . The calcu-
          lus 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 neces-
          sary in a particular situation.

Id.

On the record before us, it is undisputed that Plunkett leveled a
rifle at Officers Kanode and Bingeman, who were standing on his
front stoop. When Plunkett began to move his right hand toward the
trigger of the rifle, the officers were entitled to protect themselves.
"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." Elliott
v. Leavitt, 99 F.3d 640, 644 (4th Cir. 1996). We therefore agree with
the district court's conclusion that the actions of Officers Kanode and
Bingeman were objectively reasonable.

Stout argues that summary judgment was improper on two
grounds. First, she claims that the threat posed by Plunkett was "pre-
cipitated" by the officers' attempt to illegally arrest Plunkett in his
home without a warrant. This characterization of the facts, even if
true, would not alter the analysis. The uncontradicted evidence shows
that at the time Plunkett brandished his rifle, the officers had not
effected an arrest and were still outside his home and that their

                     4
response to this lethal threat was made from outside of the house
before Plunkett was in custody.

Stout also maintains that disputed issues of material fact preclude
summary judgment. In particular, she claims that the officers' account
of the events is not credible because they testified that Plunkett was
facing them at all times when they were shooting, whereas the
autopsy evidence indicates that many of the bullets struck Plunkett
from the rear. But Officers Kanode and Bingeman testified only to
their recollection that Plunkett never turned or spun away from them
during the shooting. Indeed, Officer Kanode stated that "the events
occurred so quickly, that I can't say for certain that he didn't spin
around." In any case, it is immaterial whether Plunkett remained fac-
ing the officers throughout the shooting, which lasted only a few sec-
onds. The material evidence in the record establishes that Plunkett
pointed a loaded rifle at the officers. Under these circumstances, the
officers were justified in responding with deadly force.

Because we conclude that the actions of Officers Kanode and
Bingeman in the particular circumstances of this case were objec-
tively reasonable, Plunkett's claim of excessive force must fail. For
the same reason, Stout's challenge to the district court's alternative
finding of qualified immunity would also fail. See Wilson v. Layne,
119 S. Ct. 1692, 1697 (1999) ("A court evaluating a claim of qualified
immunity must first determine whether the plaintiff has alleged the
deprivation of an actual constitutional right at all.") (citation and
internal quotation marks omitted).* The judgment of the district court
is therefore

AFFIRMED.
_________________________________________________________________
*Because Stout's excessive force claim against the officers fails,
Stout's claims against the City of Roanoke necessarily fail. See, e.g.,
Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir. 1996).

                    5
