                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1107



OLIVIA WALLER, Administrator of the Estate of
Rennie Edward Hunt, Jr., deceased,

                                            Plaintiff - Appellant,

          versus


CITY OF DANVILLE, VIRGINIA, a Municipal
Corporation; T. NEAL MORRIS, Chief of Police
of the City of Danville, Virginia, in both his
individual and official capacities; DAVID
STOWE; HUGH WYATT; GERALD FORD; TODD BROWN;
DENNIS HALEY; JONATHAN GRAHAM; B. C. ELLIOTT;
WILLIAM CHANEY; KENNETH FITZGERALD, in both
their individual and official capacities as
City of Danville Police Officers; JOHN DOES,
Police Officers of the City of Danville Police
Department, the identity and number of whom is
presently unknown; RICHARD ROES, Supervisory
police officers of the City of Danville, the
identity and number of whom is presently
unknown, in both their individual and official
capacities,

                                           Defendants - Appellees,

          and


CHRISTOPHER TILLMAN; JASON PRESLEY, in their
individual and official capacities as City of
Danville Police Officers,

                                                       Defendants.
---------------------------------------------
NATIONAL MENTAL HEALTH ASSOCIATION,

                                      Amicus Supporting Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Danville.   Jackson L. Kiser, Senior
District Judge. (4:03-cv-00039-jlk)


Argued:   September 19, 2006           Decided:   December 14, 2006


Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Traxler wrote the majority opinion, in which Judge
Motz joined. Judge Wilkinson wrote an opinion concurring in part
and dissenting in part.


ARGUED: Lani Rae Miller, O’MELVENY & MYERS, L.L.P., Washington,
D.C., for Appellant. Martha White Medley, DANIEL, MEDLEY & KIRBY,
P.C., Danville, Virginia, for Appellees. ON BRIEF: Janell M. Byrd,
THE COCHRAN FIRM, Washington, D.C.; Toby Heytens, Jason A. Abel,
O’MELVENY & MYERS, L.L.P., Washington, D.C., for Appellant. James
A. L. Daniel, M. Brent Saunders, DANIEL, MEDLEY & KIRBY, P.C.,
Danville, Virginia, for Appellees. Joseph R. Guerra, Matthew B.
Hsu, SIDLEY AUSTIN, L.L.P., Washington, D.C., for Amicus Supporting
Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
TRAXLER, Circuit Judge:

     Plaintiff-Appellant   Olivia      Waller,   individually   and   as

administrator of the estate of her brother Rennie Edward Hunt, Jr.,

brought this action under 42 U.S.C.A. § 1983 (West 2003), against

the City of Danville and several of its police officers, claiming

violations of the Fourth and Fourteenth Amendments to the United

States Constitution in connection with the May 11, 2002, shooting

death of Hunt.   Plaintiff also sought to recover damages under

Virginia’s wrongful death and survival statutes, and for assault

and battery, intentional and negligent infliction of emotional

distress, and gross negligence under Virginia state law. Plaintiff

claims that Hunt was unlawfully seized, subjected to excessive and

unreasonable force, and discriminated against on the basis of his

race and mental disability.    The district court granted summary

judgment to the defendants on all claims, and plaintiff appeals.

For the following reasons, we affirm in part, reverse in part, and

remand for further proceedings.


                                  I.

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

plaintiff, see Saucier v. Katz, 533 U.S. 194, 201 (2001), are as

follows.




                                  3
       On the evening of May 10, 2002, emergency services for the

City   of   Danville     received     a     911    call    from   Teressa   Jennings.

Jennings reported that she was concerned about her friend and

neighbor, Virginia Evans, because she had not seen or heard from

Evans since Evans’s live-in boyfriend, Rennie Hunt, had been

released from a recent hospitalization for psychiatric problems.

Hunt was known to be approximately 5'5" tall, 137 pounds, and 67

years old.       He was retired and walked with a cane.

       City of Danville police officers Christopher Tillman, Jason

Presley, and Eric Ellis were dispatched to Hunt’s apartment to

check on Evans.        When the officers arrived at the apartment and met

Jennings, Jennings told them that she had not seen or heard from

Evans for a couple of days and that, when she inquired as to

Evans’s     whereabouts,       Hunt   had    come     to   their    apartment     door,

“speaking about dead bodies in the street and acid in the backyard”

and refused to let Jennings see Evans.                     J.A. 49.     The officers

knocked     at   the   front    and   back        doors,   repeatedly    identifying

themselves as the Danville police.                 Hunt responded either that he

was “going to kick [their] ass” or “kiss his ass.”                     J.A. 54.    The

officers told Hunt that they were there to check on Evans, but Hunt

told the officers “not to be concerned with” her.                     J.A. 55.    When

the officers asked Evans to open the door, she responded, “I can’t

come to the door.        He won’t let me.”           J.A. 55.      When asked by the

                                            4
officer if she was all right, Evans replied through the door that

she was okay.

       The officers contacted their supervisor, Captain David Stowe,

for guidance.     Stowe came to the scene, identified himself to Hunt

as a police officer, and told Hunt that they were concerned about

Evans. Hunt again responded “[y]ou don’t need to be concerned with

Virginia.”    J.A. 555.      When Stowe persisted, Hunt repeatedly told

him that “[i]f you come in here, I’ve got something for you.”            J.A.

556.   Hunt also told Stowe that he was “not going to be sprayed in

the face,” which Stowe believed to be a reference to mace.               J.A.

557.    Stowe testified that, based on Hunt’s comments, he believed

Hunt had a weapon and that a confrontation would occur if they

attempted to enter the apartment.

       Unable to obtain cooperation from Hunt and having heard

nothing further from Evans, Stowe returned to the police department

to confer with Captain Kenneth Fitzgerald about the situation. The

officers checked Hunt’s criminal history and learned that Hunt had

been   arrested   in   the   past   for   drunk   and   disorderly   conduct,

resisting arrest, and, most recently, domestic assault upon Evans.

After consulting Assistant Police Chief B.C. Elliott about the

situation, the officers decided to contact Lieutenant Hugh Wyatt,

a hostage negotiator, for assistance.         In the meantime, Stowe was

in contact by telephone with Officer Presley, who was still at the

                                      5
scene.    Officer Presley informed Stowe that Evans’s sister had

arrived at the apartment and confirmed that she also had not heard

from Evans in several days.          Evans’s sister also advised the

officers that Hunt “had been in and out of mental institutions” and

“at one time she had been to the house and he had come to the door

with a knife in his hand.”      J.A. 85.

      Shortly thereafter, Lieutenant Wyatt, accompanied by Captain

Stowe    and   Officer   Tillman,   approached   the   back   door   of   the

apartment to begin negotiations. When Wyatt attempted to coax Hunt

into letting him speak with Evans, Hunt responded that “[y]ou ain’t

got to worry about her.      Go on and get the hell away.”       J.A. 119-

20.   When Wyatt persisted, Hunt yelled at Wyatt, “I’m going to blow

your goddamned head off.”     J.A. 120.    Deeming it unsafe to continue

negotiations from the open area at the back door, the officers

immediately retreated and returned to the front of the building.

      Until this point, the officers had expressed some indecision

as to whether they had probable cause for a warrantless entry into

the apartment to secure Evans’s safe exit. Hunt’s direct threat to

Lieutenant Wyatt and obvious reference to a firearm eliminated this

indecision and the officers began the process for obtaining an

arrest warrant for Hunt.       Based upon Hunt’s threat to Lieutenant

Wyatt, and the narrowness of the hallway leading to the front door

of Hunt’s apartment, the officers decided that the Emergency

                                     6
Response Team (“ERT”) should handle the arrest of Hunt and removal

of Evans from the apartment.

     The ERT was summoned and an operational plan was prepared.

The members of the team consisted of Officer Dennis Haley (the team

leader), and Officers Gerald Ford, Todd Brown, William Chaney,

Jonathan Graham, and Mark Haley.      According to the plan, Officer

Chaney was to knock and announce to Hunt the presence of the police

and that they had a warrant for his arrest.       If Hunt failed to

cooperate, Officer Graham was to deploy a flash-bang device1 at the

rear of the apartment to distract Hunt from the front entrance and

Officer Chaney was to breach the front door with a battering ram to

force entry.    Due to the narrowness of the hallway, the officers

could only enter the apartment single-file.2     Officer Ford was to

enter as the lead officer, carrying a bullet-proof shield for

protection.    Officer Brown was to follow Officer Ford, providing

cover and assistance to him.   Their job was to seize Hunt.   Officer

Dennis Haley was to enter third, as backup to Ford and Brown, and


     1
      A flash-bang device is a non-destructive diversionary device
that produces a loud noise, bright flash, and smoke when it is
deployed.
     2
      The operational plan took into account the preexisting
knowledge of the Danville police officers gained from prior calls
regarding Hunt and the layout of the apartment. They knew, for
instance, that entry had to be made through the front door due to
a barricade across the back door and that the narrowness of the
hallway would increase the risk to the officers.

                                  7
to deploy a second flash-bang device upon entry.             Officer Mark

Haley was to enter fourth, locate Evans, and remove her from the

apartment.      Officer Chaney, who would have dropped back after

breaching the door if necessary, would enter last.

     Lieutenant Wyatt videotaped the briefing of the ERT and

portions   of   their   subsequent   entry   into   the   apartment.   As

evidenced by this videotape and the uncontroverted testimony of the

officers, Officer Chaney repeatedly announced to Hunt that they

were police officers and informed Hunt that they had a warrant for

his arrest.     When Hunt did not respond after repeated requests,

Officer Graham deployed the flash-bang device at the rear door to

distract Hunt from the front entrance while Officer Chaney broke

down the front door.        However, the ERT encountered a second,

unexpected, locked door to the apartment, at the end of the

hallway.   Because Officer Chaney had fallen back and was unable to

quickly return to this second door, Officer Ford broke through the

door with his shoulder.        Officer Dennis Haley simultaneously

deployed a second flash-bang device, adding an additional layer of

protection for Officer Ford and the other officers as they entered

the doorway.

     According to the officers, when they breached the second

doorway into the apartment, Hunt rushed towards them yelling and

swinging what appeared to be a metal pole with a blade at the end

                                     8
in one hand and a knife in the other hand.       The officers described

the first weapon as “a pole with a hooked end that looked like a

culling-type object, like what some people would refer to as [a]

sickle-type pole,” J.A. 204, “what years ago people used to cut

grass with or clear an area with,” J.A. 206.        Officer Ford backed

up, yelling for Hunt to put the object down and yelling to the

others that Hunt had a knife.        As he was backing up and yelling,

Officer Ford also fired two or three shots towards Hunt.               Hunt

dropped the pole, but immediately picked it up and charged towards

Officer Ford again, this time striking him in the shield and

helmet. When Hunt made his second charge, Officers Ford, Brown and

Dennis Haley all began firing shots.            The shots knocked Hunt

backwards, through the doorway into an adjoining bedroom. Hunt was

transported to the hospital but died soon thereafter. It was later

determined that the object Hunt was wildly swinging was a modified

walking cane with a retrofitted handle. A screwdriver, which could

have been the perceived weapon in his other hand, was found nearby.


                                     II.

     Plaintiff brought this action against the City of Danville,

Police   Chief   Morris,   Captain    Stowe,   Captain   Fitzgerald,   and

Lieutenant Wyatt, five of the six ERT members (Dennis Haley, Gerald

Ford, Todd Brown, Jonathan Graham, and William Chaney), and two of



                                     9
the three officers who initially responded to the scene (Officers

Tillman   and     Presley),    alleging     fifteen    separate      claims   for

violations   of    Hunt’s     rights   under   the    Fourth   and    Fourteenth

Amendment, the Americans with Disabilities Act, see 42 U.S.C.A.

§§ 12131-12134 (West 2005), and the Rehabilitation Act, see 29

U.S.C.A. § 794 (West 1999 & Supp. 2006), and various claims under

state law.

     Counts I through III of the complaint set forth claims against

the City of Danville and the individual supervisory officers in

their official capacities. See Monell v. Dep’t of Social Services,

436 U.S. 658, 694 (1978) (holding that a municipality may be held

liable for damages for violations of an individual’s constitutional

rights by its agents or employees committed pursuant to municipal

policy or custom).          Count I alleges that the officers, acting

pursuant to the City’s policies and customs, unlawfully arrested

Hunt, used unreasonable and excessive force, and subjected Hunt to

discriminatory treatment on the basis of his mental illness and

race, in violation of Hunt’s Fourth And Fourteenth Amendment

rights.   Count II alleges that the City’s decision to use the ERT

to break into Hunt’s residence reflected deliberate indifference

and reckless disregard to a substantial and obvious risk of serious

injury to Hunt.       Count III alleges that the City developed and

maintained a policy of deficient training of its police force in

                                       10
the use of force, including the use of force by the ERT and the use

of force with mentally ill persons.                 Count VIII of the complaint

asserts a claim for supervisory liability against Chief Morris and

other unnamed supervisory personnel arising from the actions of the

officers in obtaining and serving the arrest warrant.

       Counts V, VII, IX, and X of the complaint set forth various

causes of actions against the individual defendants in their

individual    capacities,       alleging      that    they    subjected     Hunt   to

unreasonable and excessive force (Count V), conspired to use

unreasonable and excessive force (Count VII), failed to intercede

to prevent the use of excessive and unreasonable force (Count IX),

and subjected Hunt to false arrest (Count X).                 State law claims for

assault and battery related to the shooting (Count XI), intentional

and negligent infliction of emotional distress (Count XII), gross

negligence (Count XIII), survival (Count XIV), and wrongful death

(Count XV), are also asserted against the individual defendants.

       Finally,   the     complaint          sets     forth     two     claims     of

discrimination.         Count     IV    alleges       a   claim    of     disability

discrimination under the ADA and Rehabilitation Act against the

City   of   Danville,    based    upon       the    allegation     that    the   City

discriminated     against   Hunt       due    to    his   mental   disability      in

unlawfully arresting him, approving an excessive and unreasonable

use of force against him, and failing to train the officers in the

                                        11
appropriate     and     reasonable         police    practices      under      the

circumstances.        Count   VI    alleges    a    separate   claim   of     race

discrimination   under    the      Equal    Protection     Clause   against   the

individual    defendants,     alleging      that    they   subjected   Hunt    to

discriminatory treatment on the basis of race by treating similarly

situated white persons in a substantially different and more

favorable manner than Hunt.

     At the outset of the case, the district court issued an order

limiting discovery solely to matters related to the issue of

whether qualified immunity should be granted to the individual

officers on the claims brought against them.                The effect of this

limitation was to allow plaintiff full discovery regarding the

events that spanned the evening of May 10 and the early morning of

May 11, but prohibiting unfettered discovery on the policies,

customs, or training practices of the City of Danville and on

plaintiff’s claims of disability and race discrimination.

     In November 2004, the individual officers filed a motion for

partial summary judgment with respect to plaintiff’s § 1983 claims

for false arrest and excessive force under the Fourth Amendment.

The district court granted the motion.              With regard to the false

arrest claim, the district court ruled that the officers had acted

pursuant to a facially valid warrant, had probable cause to arrest

Hunt, and were justified in entering the apartment by an exigent

                                       12
need to check on Evans.       With regard to the excessive force claim,

the district court found that the force employed by the individual

officers    was   not   disproportional      and   that   they    had    acted

objectively reasonably in light of the circumstances confronting

them.     The court ordered discovery to proceed on the remaining

issues.

     In August 2005, however, defendants filed another motion for

summary judgment, arguing that -- although no further discovery had

taken place -- the district court’s findings and rulings on the

prior   Fourth    Amendment    claims     were   dispositive     of   each   of

plaintiff’s additional claims.          Plaintiff opposed the motion and

filed a motion to compel discovery on the remaining claims.             In the

meantime, the district court granted plaintiff’s motion to dismiss

Officers Tillman and Presley without prejudice because they did not

utilize force against Hunt and they were not decisionmakers whose

actions allegedly led to the shooting of Hunt.

     In December 2005, the district court granted the remaining

defendants’ motions for summary judgment, concluding that the lack

of a Fourth Amendment false arrest or excessive force violation

mandated that all remaining claims be dismissed.                  Plaintiff’s

request for additional discovery was dismissed.                  This appeal

followed.




                                     13
                                          III.

       We begin with plaintiff’s appeal from the district court’s

order granting summary judgment to the individual officers on the

claim that they violated Hunt’s Fourth Amendment right to be free

from unreasonable and excessive force, as well as the derivative

claims brought against the City of Danville and its supervisory

officials for these alleged violations.3 Plaintiff argues that the

ERT officers lacked justification for using lethal force against

Hunt because they outnumbered him five to one, were much larger,

younger, and healthier men, and were faced with an unarmed suspect.

Under the circumstances, plaintiff argues, no reasonable officer in

the position of an ERT member could have believed himself or others

to have been in imminent danger of serious harm.                We disagree.

                                           A.

       Under the doctrine of qualified immunity, police officers

performing their discretionary duties “are shielded from liability

for civil damages insofar as 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).        Because   “[q]ualified   immunity   is   an



       3
      Because plaintiff has not appealed the district court’s
ruling dismissing her false arrest claims, our remaining discussion
focuses only upon the claims of excessive force and discrimination.

                                           14
entitlement not to stand trial or face the other burdens of

litigation . . . rather than a mere defense to liability,” it is

important to “resolv[e] immunity questions at the earliest possible

stage in litigation.”     Saucier, 533 U.S. at 200-01 (internal

quotation marks omitted). When qualified immunity is asserted, the

court must consider the requisites of the defense in the proper

sequence. We must first evaluate whether, viewing the facts in the

light most favorable to the plaintiff, the officer has violated a

constitutional right; if so, we then proceed to determine whether

that right was clearly established at the time of the violation.

See id. at 201.

     A claim that a police officer used excessive force during an

arrest   is   analyzed   under   the   Fourth   Amendment    and   its

reasonableness standard. An officer’s actions are not excessive if

they “are ‘objectively reasonable’ in light of the facts and

circumstances confronting [him], without regard to [his] underlying

intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989).

“The intrusiveness of a seizure by means of deadly force is

unmatched.”   Tennessee v. Garner, 471 U.S. 1, 9 (1985).    But deadly

force may be employed “[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.”   Id. at 11.   “[I]f the suspect

threatens the officer with a weapon or there is probable cause to

                                 15
believe that he has committed a crime involving the infliction or

threatened infliction of serious physical harm, deadly force may be

used if necessary to prevent escape, and if, where feasible, some

warning has been given.”      Id. at 11-12.       Additionally, “[b]ecause

‘police officers are often forced to make split-second judgments ––

in circumstances that are tense, uncertain, and rapidly evolving,’

the facts must be evaluated from the perspective of a reasonable

officer on the scene, and the use of hindsight must be avoided.”

Waterman v. Batton, 393 F.3d 471, 476-77 (4th Cir. 2005) (quoting

Graham, 490 U.S. at 397) (internal citation omitted).

       Determining   the   reasonableness    of     the   challenged   actions

“requires a careful balancing of the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against

the countervailing governmental interests at stake.”             Graham, 490

U.S.   at   396   (internal   quotation     marks    omitted).     A   proper

assessment of “the objective reasonableness of force is to view it

in full context, with an eye toward the proportionality of the

force in light of all the circumstances.            Artificial divisions in

the sequence of events do not aid a court’s evaluation of objective

reasonableness.”     Rowland v. Perry, 41 F.3d 167, 173 (4th Cir.

1994).      Proper application of the test of reasonableness also

“requires careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue,

                                    16
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.

Ultimately,   “the   question   is    ‘whether   the   totality   of   the

circumstances justifie[s] a particular sort of . . . seizure.’”

Id. (quoting Garner, 471 U.S. at 8-9).

                                     B.

     Like the district court, we are satisfied that a reasonable

officer in the position of the ERT members could have believed that

Hunt posed a significant threat of serious physical harm to them,

as well as to Evans, thus justifying the use of deadly force.

     At the time of the officers’ entry into the apartment, Hunt

and Evans had not been seen for days, friends and family of Evans

were concerned about her well-being, and Hunt had a recent arrest

for domestic assault upon Evans.      Although Evans told the officers

early-on in the course of events that she was okay, this was

immediately upon the heels of her telling the officers that Hunt

would not let her come to the door and Evans made no further

communication with the police.

     Hunt had also given the officers reasonable grounds to believe

that he had a weapon and was prepared to use it.        Hunt repeatedly

told Officer Stowe that “[i]f you come in here, I’ve got something

for you.”     J.A. 72.    And, when Lieutenant Wyatt, the hostage

                                     17
negotiator, attempted to converse with Hunt, Hunt told Wyatt to

“get the hell away,” and threatened to “blow [his] goddamned head

off.”    J.A. 120.   This was sufficient to give the officers probable

cause to believe that Hunt was armed, and that the ERT, with its

specialized training, should serve the warrant for Hunt’s arrest

and remove Evans from the apartment.

     As evidenced by the videotape, the ERT repeatedly identified

themselves to Hunt and announced that they had a warrant for his

arrest before forcing entry.      When they entered the smoke-filled,

dark apartment, Hunt immediately charged at the agents with what

they reasonably perceived to be a sickle-type rod or pipe and a

screwdriver     which   the   officers   perceived   to   be   a   knife.

Momentarily halted by the first round of shots fired by Officer

Ford, Hunt picked up the cane and charged at the officer a second

time, striking Officer Ford’s shield and helmet with the modified

cane.    Three of the officers began firing, this time with deadly

consequence.4


     4
      On appeal, plaintiff contends that there is a genuine issue
of material fact as to whether Hunt had the screwdriver in one hand
because it was found near a toolbox, and as to whether Hunt
actually struck Officer Ford because there was no paint transfer on
the helmet or shield. We disagree. The lack of paint transfer and
ultimate location of the screwdriver is insufficient to contradict
the otherwise unrefuted testimony of several officers that Hunt
struck Officer Ford and that they perceived that Hunt possessed a
weapon in each hand as he charged towards Ford during that split-
second interval.

                                   18
      Under the totality of the circumstances, we are satisfied that

a reasonable officer would have believed that Hunt had a weapon

(including a gun and probably a knife), that he was holding Evans

against her will and refusing to allow her free movement, and that

he was an immediate threat to the officers and to Evans.             Informed

by this information and presented with the undisputed conduct of

Hunt in the volatile atmosphere with which they were faced, we

conclude that the split-second decision on the part of the ERT to

fire upon Hunt was a reasonable and proportional one.              See Sigman

v.   Town   of   Chapel   Hill,   161   F.3d   782,   788   (4th   Cir.   1998)

(concluding that an officer’s decision to fire is not unreasonable

“[w]here an officer is faced with a split-second decision in the

context of a volatile atmosphere about how to restrain a suspect

who is dangerous, who has been recently -- and potentially still is

-- armed, and who is coming towards the officer despite officers’

commands to halt”).

                                        C.

      We pause here to note that the plaintiff only challenges the

district court’s determination that the ERT members were entitled

to qualified immunity, arguing that no reasonable officer in their

position would have viewed Hunt as a threat to themselves or Evans.

The National Mental Health Association, via amicus brief, urges us

to also consider the conduct of the other defendants, and their

                                        19
decision to utilize the ERT in the first instance to serve the

warrant, in our evaluation of the totality of the circumstances.

Specifically, they argue that the “totality of the circumstances”

approach   in   the   excessive    force   context   should   include

consideration of the fact that the Danville police officers, and in

particular the supervisory officials, provoked and precipitated the

violent confrontation with Hunt.

     Although circuits differ on the question of how pre-shooting

conduct should be weighed in an excessive force case, this circuit

has repeatedly held that such conduct is generally not relevant and

is inadmissible.   See Waterman, 393 F.3d at 477 (holding that the

“reasonableness of the officer’s actions in creating the dangerous

situation is not relevant to the Fourth Amendment analysis; rather,

reasonableness is determined based on the information possessed by

the officer at the moment that force is employed”); Elliott v.

Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (noting that “[t]he

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, 792 (4th Cir. 1991) (rejecting the “argument that, in

determining reasonableness, the chain of events ought to be traced

backward to the officer’s misconduct of failing to comply with the

standard police procedures”).     Furthermore, the conduct challenged

                                   20
by amicus was not conduct engaged in by the members of the ERT.

The ERT members were not involved in the decision-making process

which led to their deployment, but rather possessed the sole

objective to serve the warrant for Hunt’s arrest and secure the

safe recovery of Evans from the apartment as ordered by their

superiors.     Thus, the conduct of the supervising officers is not

relevant to a determination of the reasonableness of the ERT’s

conduct in employing deadly force in the circumstances facing them,

or their liability for the use of such force.

                                         D.

        For the foregoing reasons, we hold that the use of deadly

force   by   the   ERT   members   was    objectively   reasonable   and   not

disproportional in light of the facts and circumstances presented

to the officers at the time.             Counts VII and IX, which allege,

respectively, that the individual defendants conspired with one

another to deprive Hunt of his constitutional right to be free from

unreasonable and excessive force and failed to intercede to prevent

the use of excessive and unreasonable force, fail for the same

reason.      Accordingly, we affirm the district court’s grant of

summary judgment for defendants as to Counts V, VII, and IX of the

complaint.

     We likewise affirm the district court’s grant of summary

judgment as to plaintiff’s Monell claims brought under the Fourth

                                         21
Amendment.   Plaintiff’s contends that, because the individual

officers violated Hunt’s Fourth Amendment rights, she was entitled

to discovery on her Monell claims, i.e., that the policies and

procedures of the supervisory defendants caused the deprivation of

Hunt’s Fourth Amendment rights by the individual officers.      We

disagree.    Although the district court’s discovery order did

prohibit plaintiff from fully inquiring into the policies and

customs of the Danville Police Department, plaintiff cannot, as a

matter of law, prevail on her claim that these constitutional

rights were violated pursuant to a municipal “policy or custom”

because we have found that Hunt was not subjected to an unlawful

seizure or unreasonable force under the Fourth Amendment by the

individual defendants in the first instance.      See City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“If a

person has suffered no constitutional injury at the hands of the

individual police officer, the fact that departmental regulations

might have authorized the use of constitutionally excessive force

is quite beside the point.”).

     Plaintiff’s supervisory liability claims against Chief Morris,

and other unnamed supervisory defendants, fail for the same reason.

Because these claims are dependent upon plaintiff’s claim that the

ERT members used excessive force against Hunt, “liability cannot be

placed on either the non-shooting officers, a supervisor, or the

                                22
City.” Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir.

1996); see also Sigman, 161 F.3d at 788.                      Accordingly, we also

affirm the district court’s grant of summary judgment to the

defendants on Counts I, II, and III, insofar as they allege claims

arising from the use of excessive force, and on Count VIII.5


                                             IV.

        We turn now to consider plaintiff’s claim that the district

court erred in granting summary judgment with respect to her claims

of disability and race discrimination.

      In Count IV of the complaint, plaintiff alleges that the City

of   Danville       knew   that      Hunt   suffered   from     mental   illness   and

discriminated against him due to his disability by arresting him,

approving the aggressive use of force against him, and failing to

train       its    officers    in    the    appropriate   and    reasonable   police

practices under the circumstances.                 The crux of the disability

discrimination claim appears to be that, given Hunt’s known mental

illness, the officers should have handled him differently than they

would       have     handled        non-mentally   ill    suspects       in   similar

circumstances.          For example, plaintiff argues that the officers

should      have    either     contacted      mental   health    professionals     for


        5
      We address below Count I’s allegation that the City’s
policies subjected Hunt to discriminatory treatment on the basis of
his mental illness and race.

                                             23
assistance in dealing with the barricaded-persons situation at hand

and,    more    generally,      should   have       approached      Hunt    in    a     less

aggressive manner. In other arguments, however, plaintiff seems to

advance     a    somewhat    different        claim,       i.e.,    that    the       ADA’s

prohibition       against    discrimination          was     violated      because       the

officers       treated   Hunt    worse   than       they    would   have     treated       a

similarly-situated non-disabled person.

       In Count VI of the Amended Complaint, plaintiff alleges an

Equal Protection claim against Chief Morris, and other unnamed

officers in their individual capacities, under the Fourteenth

Amendment,       claiming       that   the        officers     subjected         Hunt    to

discriminatory treatment on the basis of his race by treating

similarly situated white persons in a substantially different and

more favorable manner than Hunt was treated.

       The district court rejected both discrimination claims, but

did    so   based   solely      upon   its    earlier      determination      that       the

officers did not violate Hunt’s Fourth Amendment right to be free

from unreasonable and excessive force and its determination that,

because such actions were constitutionally permissible under the

Fourth Amendment, they were also legally permissible under the ADA

and Equal Protection Clause.             Plaintiff contends that an adverse

determination on the Fourth Amendment claim is not necessarily

determinative of the discrimination claims and that we should, at

                                             24
a minimum, remand the case for further proceedings as to these

claims.    We agree.

                                   A.

     Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services,

programs, or activities of a public entity or be subjected to

discrimination by any such entity.”     42 U.S.C.A. § 12132.   In Bates

v. Chesterfield County, 216 F.3d 367 (4th Cir. 2000), we addressed

a claim for violation of a plaintiff’s Fourth Amendment right to be

free from unreasonable seizure, along with a claim that he was

discriminated against on account of his disability in violation of

the ADA.   Bates asserted that the officers “should have been aware

of his autism” during the challenged “incident and should have

taken this condition into account when interacting with him.”      Id.

at 373.    Had they done so, Bates argued, “he would not have been

detained or arrested and the ensuring scuffle would not have

occurred.”    Id.      Having rejected the excessive force claim, we

rejected the ADA claim as well, but not on the merits of whether

the claim could be brought in this context.     Rather, we held that:

     [w]e need not undertake an independent ADA inquiry in
     this case because our Fourth Amendment scrutiny has
     already accounted for all the situation’s circumstances.
     For in evaluating the validity of an investigatory stop,
     a court must consider the totality of the circumstances -

                                   25
       the whole picture. And in examining a claim of excessive
       force a court must ask whether the officers’ conduct was
       objectively reasonable in light of the facts and
       circumstances confronting them.     Just like any other
       relevant personal characteristic -- height, strength,
       aggressiveness -- a detainee’s known or evident
       disability is part of the Fourth Amendment circumstantial
       calculus.

Id. at 373 (internal citations and quotation                  marks omitted).

Ultimately, we upheld dismissal of the ADA claim because the

evidence established that the seizure was “not by reason of Bates’

disability,    but     because    of     Bates’       objectively     verifiable

misconduct.          Such     reasonable          police   behavior        is   not

discrimination.”       Id.     It was “because of” a legitimate law

enforcement purpose rather than “because of [a] disability.”                    Id.

       This case, however, stands on a different footing than Bates.

The precise nature of the discrimination claim is not clear to us,

nor have the merits of the claim been briefed to either this court

or the district court. However, plaintiff has also been prohibited

from   conducting    discovery    into      her    allegations   of   disability

discrimination -- regardless of whether that claim is that the City

of Danville should have treated Hunt differently because of his

mental illness or that the City of Danville treated Hunt less

favorably    than    his    non-mentally     ill     counterparts     in   similar

circumstances.      No doubt, as we held in Bates, the officers were

entitled to take Hunt’s mental illness into account during their



                                       26
encounter with Hunt.      And it certainly appears that the officers

sought to seize Hunt not because of his mental illness but because

of his “objectively verifiable misconduct” towards the officers and

Evans.    However, given the existing record and the lack of any

meaningful briefing on the issue, we cannot say that there is no

set of facts from which an ADA violation could be found simply

because we have concluded that there has been no Fourth Amendment

violation by the ERT members.

     In   sum,   we   express    no    opinion   as   to    the   parameters   of

plaintiff’s ADA claim, whether the ADA would apply to the facts of

this case or the claim as ultimately defined, or the ultimate

merits of any such claim.          Rather, given the existing record and

the posture of the claims on appeal, we think it more prudent to

remand for further delineation of the discrimination claims by the

plaintiff,   inquiry    by   the      district   court     and,   if   necessary,

discovery into the claims as articulated by plaintiff.

                                        B.

     We reach the same conclusion with regard to plaintiff’s claim

of race discrimination against the individual officers.                 There is

no indication that the officers’ actions towards Hunt were tainted

by any race-based motivations, nor any evidence that Hunt was

treated   differently     from      similarly-situated        white    suspects.

Plaintiff’s counsel was unable to articulate any particular basis

                                        27
for this claim at argument, and it does not appear likely from the

existing record that discrimination was the motivating factor

behind the officers’ actions.      Nevertheless, because the district

court restricted discovery to Fourth Amendment issues related to

the shooting and the events immediately preceding it, plaintiff has

been foreclosed from any opportunity to investigate her claim that,

even if the force employed was not excessive for purposes of the

Fourth Amendment, white persons in substantially similar situations

have been treated in a less aggressive and more favorable manner.

Accordingly, we are also compelled to reverse and remand this claim

for further evaluation.       To the extent plaintiff’s Monell claims

rest    upon   these   same   allegations   of   race   and   disability

discrimination, we remand those portions of the claims for further

evaluation as well.


                                   V.

       Plaintiff’s final challenge is to the district court’s grant

of summary judgment on her state law claims for assault and battery

related to the shooting, intentional and negligent infliction of

emotional distress, gross negligence, survival, and wrongful death.

As in the case of the Monell claims, plaintiff argues only that we

should reverse summary judgment as to the state law claims because

the individual officers violated Hunt’s Fourth Amendment right to



                                   28
be free from excessive and unreasonable force and because no

independent discovery was conducted on the state law claims.            To

the   extent   plaintiff’s   state    law   claims   are   premised   upon

plaintiff’s allegations that the officers employed excessive force

against Hunt or engaged in an unlawful arrest of him, we affirm the

district court’s grant of summary judgment. To the extent they are

premised upon plaintiff’s allegations of discriminatory conduct, we

remand for an evaluation of the claims, and discovery if necessary,

along with the federal discrimination claims.


                                     VI.

      For the foregoing reasons, we reverse the district court’s

order granting summary judgment to the defendants on plaintiff’s

claims of race and disability discrimination under § 1983, as well

as plaintiff’s state law claims to the extent they are based upon

the allegations of race and disability discrimination, and remand

for further proceedings.     The remainder of the district court’s

order granting summary judgment to the defendants is affirmed.


                                              AFFIRMED IN PART, REVERSED
                                                   IN PART, AND REMANDED




                                     29
WILKINSON, Circuit Judge, concurring in part and dissenting in
part:

     I concur in the majority’s disposition of the excessive

force claims and would affirm the judgment of the district court

across the board.        Indeed, the majority makes such a fine and

thoughtful case for affirmance that it would surprise any reader

to learn that this litigation is not at an end.                  The City of

Danville police officers who confronted Rennie Edward Hunt, Jr.,

responded commendably to the apparent hostage situation, as the

majority     opinion    makes    clear.         Additional    proceedings     on

disability and race discrimination claims can amount under the

circumstances to no more than a fishing expedition.

     I   find   no    fault   with    the    majority’s   description   of    the

situation that the defendants confronted on May 11, 2002.                    When

Danville police officers arrived at Hunt’s apartment in response

to a 911 call from a neighbor, neither Hunt nor his girlfriend,

Virginia Evans, had been seen in the several days since Hunt’s

return from a psychiatric hospitalization.                Maj. Op. at 4, 16.

Evans’s friends and family expressed concern about her well-

being.     Id. at 16.    Evans herself told police that Hunt, who had

recently    been     arrested   for    domestic    assault    against   Evans,

refused to let her come to the door.              Id. at 16-17.     And while

she initially told the officers that she was okay, she soon



                                        30
ceased to respond to their attempts to contact her in order to

ensure that she was safe.     Id.

        Hunt’s own statements to the officers did nothing to dispel

fears of the worst.        As the majority writes, Hunt gave the

officers “reasonable grounds to believe that he had a weapon and

was prepared to use it,” telling one officer “[i]f you come in

here, I’ve got something for you,” and threatening to “blow [the]

goddamned head off” of another.      Id. at 17.

        Danville Police Department officials reasonably elected to

deploy the City’s Emergency Response Team to the building.     After

repeatedly identifying themselves and stating that they had a

warrant for Hunt’s arrest, members of the team forced entry into

the apartment. Id.       Hunt’s actions in the “smoke-filled, dark”

space gave the officers additional cause to fear for Evans’s

safety and their own.       Id.     “Hunt immediately charged at the

agents with what they reasonably perceived to be a sickle-type

rod or pipe and a screwdriver which the officers perceived to be

a knife.”     Id.    Officer Ford fired two or three shots from his

weapon, at which point Hunt picked up his cane and charged at the

officers again, hitting Officer Ford’s shield and helmet.     Id. at

9, 17-18.      During this second charge, three officers fired at

Hunt.    Id. at 9.




                                    31
      Under    these      circumstances,          as    the   majority        notes,   the

officers’ use of deadly force, though tragic, was reasonable and

proportional, because “a reasonable officer would have believed

that Hunt had a weapon (including a gun and probably a knife),

that he was holding Evans against her will and refusing to allow

her free movement, and that he was an immediate threat to the

officers and to Evans.”             Id. at 18.

      There    is    no      hint    of   discrimination          in    the     officers’

reasonable and proportional response.                    The majority goes out of

its way to emphasize as much.                     It writes that “it certainly

appears that the officers sought to seize Hunt not because of his

mental   illness       but     because      of    his    ‘objectively         verifiable

misconduct’     towards       the    officers      and   Evans,”       and    it   further

concludes     that   “[t]here        is   no     indication      that   the     officers’

actions towards Hunt were tainted by any race-based motivations,

nor   any     evidence       that    Hunt      was     treated     differently         from

similarly-situated white suspects.”                    Id. at 26.       Based upon the

majority’s description of the crisis, the majority writes with

some understatement when it says “it does not appear likely from

the existing record that discrimination was the motivating factor

behind the officers’ actions.”              Id. at 27.

      Indeed, it is not clear even to the majority precisely what

discrimination the plaintiff claims.                   With respect to disability,

                                            32
the    majority      writes     that     “[t]he       precise    nature       of   the

discrimination claim is not clear to us,” id. at 25, and with

respect to race, the majority notes that “[p]laintiff’s counsel

was unable to articulate any particular basis for this claim at

argument,” id. at 26-27.         Despite this, the majority remands “for

further proceedings.”           Id. at 3.            Thankfully, the majority’s

remand is narrow, calling upon the district court to engage in

“further delineation,” id. at 26, and “further evaluation,” id.

at 27, but not mandating discovery, id. at 26-28.

      Statutory protections may of course exceed constitutional

ones and “an adverse determination on the Fourth Amendment claim

is not necessarily determinative of the discrimination claims.”

Id. at 24.         This does not mean, however, that statutory and

constitutional       protections       must     be    placed    so    squarely     and

affirmatively at odds.           The qualified immunity balance between

vindicating meritorious claims and protecting officials from the

burdens      of   litigation    is     upset    when    plaintiffs      may    demand

discovery into the motivations of officials whose conduct was

outwardly blameless.          Harlow v. Fitzgerald, 457 U.S. 800, 815-18

(1982).      “[T]here is often no clear end to the relevant evidence”

in    such    inquiries,      making     them     “peculiarly        disruptive    of

effective government.”         Id. at 817.




                                         33
       Such considerations affect the availability of discovery, as

the Supreme Court has held that “a credible showing of different

treatment      of   similarly     situated          persons”      is     required        before

plaintiffs      may    put     officials       to    the       labor    and      expense       of

discovery      concerning       equal     protection            claims      of      selective

prosecution.          United   States     v.    Armstrong,         517      U.S.    456,    470

(1996); see also Marshall v. Columbia Lea Reg’l Hospital, 345

F.3d 1157, 1167 (10th Cir. 2003) (applying Armstrong limits to

equal protection claims concerning traffic stops and arrests);

United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir. 2002)

(applying Armstrong limits to claim that defendant was singled

out for law enforcement interview).                  To proceed with motivational

inquiries    under      disability      statutes         and    the    Equal       Protection

Clause where a neutral basis for action is so exceptionally clear

is to set the protections of immunity and the plain teaching of

Armstrong at naught.

       While the majority describes a remand as the “more prudent”

course, Maj. Op. at 26, prudence counsels against perpetuating

any further litigation based upon the encounter that the majority

describes.      There is ample basis to affirm on a record showing

that   Danville’s       officers       sought       to   protect       in     non-excessive

fashion   an    innocent       woman    they    reasonably            believed      to    be   a

hostage, while under attack by a man they reasonably believed to

                                           34
be armed and dangerous.       If in a desire to avoid litigation the

officers had waited and Evans had been harmed, they would have

been    faulted   all   the   more   through   the   lens   of   hindsight.

Continuing this lawsuit can only demoralize those who place their

lives at risk for others.

       I would affirm the judgment.




                                     35
