                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-1071


GEORGE COOPER, SR.,

                 Plaintiff – Appellee,

           and

GEORGE COOPER, JR.,

                 Plaintiff,

           v.

JAMES SHEEHAN; BRIAN CARLISLE,

                 Defendants – Appellants,

           and

BRUNSWICK COUNTY SHERIFF’S DEPARTMENT; SHERIFF RONALD
HEWETT; DAVID CROCKER; GENE CAISON; KEVIN HOLDEN; JOHN
INGRAM,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:10-cv-00014-D)


Argued:   September 20, 2013                 Decided:   November 7, 2013


Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Wilkinson and Judge Wynn joined.


ARGUED:   Christopher J. Geis, WOMBLE CARLYLE SANDRIDGE & RICE,
PLLC, Winston-Salem, North Carolina, for Appellants.      Laura
Conner, Robert M. Tatum, TATUM & ATKINSON, PLLC, Raleigh, North
Carolina, for Appellee. ON BRIEF: James R. Morgan, Jr., James
A. Dean, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem,
North Carolina, for Appellants.




                               2
KING, Circuit Judge:

      Late in the evening of May 2, 2007, George Cooper, Sr., was

alerted to the sound of unknown persons outside his mobile home

in   rural    Leland,       North       Carolina.          Lowered     shotgun        in   hand,

Cooper stepped out onto his back porch to investigate.                                   Seconds

later,   he    was      struck     by    gunfire.          The     shots    were      fired    by

Brunswick      County       deputy       sheriffs          James    Sheehan        and     Brian

Carlisle     (the       “Officers”),       who      were    investigating         a    reported

domestic disturbance on Cooper’s property.                         Cooper survived, and

he   subsequently         initiated       this      civil     action       in   the      Eastern

District      of    North    Carolina,        alleging       claims       under    42      U.S.C.

§ 1983, as well as state law claims, arising from the shooting

incident.

      The Officers moved for summary judgment, which was granted

in part and denied in part.                         See Cooper v. Brunswick Cnty.

Sheriff’s      Dep’t,       896    F.    Supp.       2d    432     (E.D.N.C.       2012).     In

pertinent      part,        the    district          court       denied     the       Officers’

assertions         of   qualified       and    public       officers’       immunity       from,

respectively, Cooper’s federal and state excessive force claims.

Invoking      the       collateral       order       doctrine,       the    Officers         seek

appellate      relief       from    the       immunity       aspects       of   the      court’s

decision.      As explained below, we affirm.




                                                3
                                             I.

                                             A.

       On the day of the shooting, Cooper and his cousin Paul

Herring         spent   several    hours    repairing      the   floor    of    a   nearby

relative’s home. 1            Upon finishing the work, Herring agreed to

join Cooper for dinner.               At around 9:00 p.m., Herring arrived at

Cooper’s residence, and the two men enjoyed the evening in the

backyard,         talking     about     “[f]ootball    games     [and]    old    fights.”

Cooper, 896 F. Supp. 2d at 436. 2                    Cooper may have enjoyed the

mid-spring evening a little too much, smoking marijuana laced

with cocaine, and chasing “three or four beers” with a pint of

brandy.          Id. at 437.          Afterward, the men retired to Cooper’s

mobile home to prepare the meal.

       Just after 11:00 p.m., a neighbor called 911 “to report

that       an    altercation      was    occurring    at   the     Cooper      property.”

Cooper, 896 F. Supp. 2d at 437 n.2.                   The 911 dispatcher relayed

the    call       to    the    Officers,     reporting      that    the     disturbance

“sound[ed] like two males screaming at each other.”                         Id. at 437.



       1
       In light of our limited jurisdiction over collateral
orders denying claims of qualified immunity, see infra Part II,
we are obliged to accept the facts “as the district court viewed
them.” See Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997)
(en banc).
       2
       All internal quotation marks from the district court’s
opinion are omitted.



                                             4
The dispatcher did not indicate whether the men were armed or

otherwise dangerous.          Around 11:30 p.m., the Officers arrived in

the     vicinity    of   Cooper’s    mobile     home,     Carlisle   driving    a

standard patrol car and Sheehan in an unmarked vehicle.                  Neither

of the Officers activated his blue lights or siren.                  As Carlisle

approached in his vehicle, he “could hear screaming . . . coming

from [the] property.”          Id.      He also saw “a black male” — not

Cooper — “standing on the [mobile home’s] back porch.”                        Id.3

Carlisle    perceived     that    the    man   on   the    porch   observed    the

approaching police cars, after which he went inside the mobile

home.     Sheehan also saw a man standing on the porch.

      The Officers parked on the grass at the edge of Cooper’s

property and approached the mobile home on foot.                     They could

hear what sounded like a heated argument inside, but could not

make out any words.        Carlisle also heard “screaming” and “people

walking around inside the [mobile home].”                 Cooper, 896 F. Supp.

2d at 438.         To alert the occupants of the Officers’ presence,

Sheehan     “tapp[ed]    on    the   window”    with      his   flashlight,    but

neither of the Officers announced his presence or identified

himself as a deputy sheriff.            Id.




      3
       Cooper was in the mobile home’s kitchen when the Officers
arrived, and he never saw the Officers’ police vehicles.



                                          5
      In response to the sound at his window, Cooper uttered some

obscenities, which the Officers heard.                  Cooper then peered out

the   back   door    (the   mobile     home’s    primary      entrance),   but   saw

nothing.     Cooper called out for anyone in the yard to identify

himself, but no one responded.                Electing to venture outside to

investigate the noise, Cooper retrieved the twenty-gauge shotgun

he kept by the door.           With the butt of the firearm in his right

hand and its muzzle pointed toward the ground, Cooper “opened

the back door and took two or three steps on to his darkened

porch.”      Cooper, 896 F. Supp. 2d at 437.                  By that time, the

Officers had progressed to an adjacent area and were advancing

toward the porch.        Within a few feet of the porch steps, Sheehan

stumbled     over    a   concrete      block.      As   Sheehan      regained    his

balance, Cooper emerged with his shotgun.

      Reacting      to   the   sight    of    Cooper    and    his   shotgun,    the

Officers drew their service weapons and commenced firing without

warning. 4    Cooper felt two bullets hit his body and then turned

toward the mobile home’s door.               The Officers continued shooting,

      4
       The district court observed that the parties had presented
“dramatically different accounts” of the moments immediately
preceding the shooting. Cooper, 896 F. Supp. 2d at 438. In the
Officers’ version, the back door “flew open,” after which Cooper
immediately “raise[d] [the shotgun] up to his hip and fire[d]
one time.”     Id.    For purposes of the qualified immunity
analysis, however, the court concluded that it had to accept
Cooper’s account — that the shotgun was unloaded and he did not
shoot. Id. at 446.



                                          6
and Cooper felt himself hit “a couple of more times” before

collapsing to the ground.         Cooper, 896 F. Supp. 2d at 439.              The

Officers    discharged     between     eleven    and    fourteen    rounds,   and

Cooper was hit five or six times, incurring wounds in the elbow,

ankle, back, buttocks, and stomach.

                                       B.

     On January 29, 2010, Cooper filed this lawsuit, naming as

defendants    the     Brunswick      County     Sheriff’s       Department,   the

current and former Sheriffs, plus several deputies, including

the Officers. 5      The Complaint included eighteen counts, alleging

violations of both state and federal law. 6                 The claims against

the Sheriff’s Department were dismissed early in the litigation.

Following    discovery,      on   February       1,     2012,    the   remaining

defendants moved for summary judgment.                 In addition to various

defenses, the Officers asserted qualified immunity from Cooper’s

federal    claims,    as   well   as    public    officers’       immunity    from



     5
        Cooper’s eight-year-old son, George Cooper, Jr., was
present in the mobile home when the shooting occurred, and he
was a named plaintiff in the Complaint.    Because the necessary
procedural steps to pursue the case on Cooper Jr.’s behalf were
never taken, the elder Cooper proceeds as the sole plaintiff.
     6
       The federal claims were that the defendants violated
Cooper’s Fourth and Fourteenth Amendment rights, made actionable
by 42 U.S.C. § 1983, and that the defendants were motivated to
do so by racial animus, as proscribed by 42 U.S.C. § 1981. The
state law claims included several common law torts, violations
of North Carolina’s constitution, and civil conspiracy.



                                        7
Cooper’s state law claims.              By its September 27, 2012 decision,

the district court granted summary judgment to all defendants on

most counts.          The only claims reserved for trial were asserted

against the Officers — Cooper’s Fourth Amendment excessive force

claims and his state law assault, battery, negligence, and gross

negligence claims.

       In allowing those claims to go forward as to the Officers,

the    district     court    specifically         rejected    their     assertions     of

federal and state immunity.                The court relied heavily on our

unpublished opinion in Pena v. Porter, 316 F. App’x 303 (4th

Cir. 2009).        There, a pair of officers searching for a fugitive

came    to    Pena’s    door     late    at       night,    but   did   not    identify

themselves.        Pena awoke to the sound of his dogs barking and,

with no knowledge that the police were outside, opened his door

while holding a rifle pointed toward the ground.                             One of the

officers saw the firearm and immediately fired two shots that

struck Pena.        Pena sued under § 1983 and North Carolina law, and

the officers asserted qualified and public officers’ immunity.

Viewing      the   facts    in   the    light      most    favorable    to    Pena,   the

district      court    denied    the    officers’         immunity   claims,    and    we

affirmed.      We agreed that, under the circumstances, Pena had a

“perfectly reasonable” rationale for holding the rifle, which

“should have been apparent to [the officers] at the time of the

shooting.”         Id. at 312.         For purposes of summary judgment, we

                                              8
concluded that Pena’s rights had been violated because “[a]bsent

any additional factors which would give the [officers] probable

cause to fear for their safety or the safety of others, the mere

presence of a weapon is not sufficient to justify the use of

deadly force.”         Id.

        Finding        Pena’s        facts     analogous        and         its     reasoning

persuasive,          the   district        court      here    concluded           that    “Pena

supports [Cooper’s] argument” against the Officers’ claims of

qualified immunity.            Cooper, 896 F. Supp. 2d at 446.                     “Accepting

[Cooper’s]          account    as    true,”     the    court     resolved          that    “the

totality       of    the   circumstances        [did]    not    establish          that    [the

Officers]       had     probable      cause     to    believe        that    [Cooper]       was

dangerous when [he] stepped onto his unlit porch at 11:30 p.m.,

holding    a    shotgun       pointing     down,      asked    who    was     there,      heard

nothing, and then was shot a few seconds later.”                            Id.     The court

acknowledged that “if [Cooper] had . . . stepped onto a dark

porch     armed       despite       knowing    law     enforcement          officers       were

approaching his door, that certainly could affect a reasonable

officer’s       apprehension          of      dangerousness.”               Id.     at     447.

Critically, however, the court determined that “no reasonable

officer could have believed that [Cooper] was aware that two

sheriff deputies were outside” when he stepped onto the porch.

Id.



                                               9
      Thus, “[a]bsent a threatening act, like raising or firing

the   shotgun,”    the    district   court    ruled    that     the   Officers’

decision to use deadly force was not objectively reasonable.

Cooper, 896 F. Supp. 2d at 447-48.             Moreover, after reviewing

the   applicable     legal    principles,     the     court    observed      that

Cooper’s   “Fourth       Amendment   right   to     remain    free    from   the

unreasonable use of deadly force was clearly established” at the

time of the shooting incident.             Id. at 448.        On the basis of

those conclusions, the court decided that the Officers were not

entitled to qualified immunity from Cooper’s § 1983 excessive

force claims. 7    The Officers thereafter timely noted this appeal,

asserting jurisdiction under the collateral order doctrine.



                                     II.

      Because this is not a typical final order appeal, we first

satisfy ourselves of our jurisdiction in this proceeding.                     See

Mort Ranta v. Gorman, 721 F.3d 241, 245 (4th Cir. 2013).                  Absent




      7
       The district court determined that Cooper’s state law
excessive force claims “arise out of the same facts” as his
Fourth Amendment excessive force claims.   Cooper, 896 F. Supp.
2d at 453. Recognizing that resolution of the state law claims
likewise turned on the “reasonableness” of the Officers’ use of
deadly force, the court denied summary judgment on those claims
by reference to its analysis of the federal claims. Id. at 453-
54.



                                      10
jurisdiction, we would be constrained to dismiss the Officers’

appeal, regardless of its merits.

     Pursuant     to   the   collateral   order   doctrine,   we   are

authorized to review an appeal from a district court’s denial of

qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511, 530

(1985), unless the order determined only a question of “evidence

sufficiency,” see Johnson v. Jones, 515 U.S. 304, 313 (1995).

Put another way, “we possess no jurisdiction over a claim that a

plaintiff has not presented enough evidence to prove that the

plaintiff’s version of the events actually occurred, but we have

jurisdiction over a claim that there was no violation of clearly

established law accepting the facts as the district court viewed

them.”     Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en

banc). 8


     8
        Inasmuch as every denial of summary judgment, by
definition, involves a determination that the evidence is
sufficiently disputed to raise triable issues, the mere
existence of disputed facts — even critical facts — does not
deprive us of jurisdiction. See Winfield, 106 F.3d at 529. As
long as the appellants do not argue the sufficiency or validity
of the facts on appeal, but rather, as in Mitchell v. Forsyth,
seek to apply clearly established law to a given set of facts,
we are properly vested with jurisdiction. See Johnson, 515 U.S.
at 313.    Indeed, “[i]f this central question, whether given
facts show a violation of established law, is not subject to
immediate appeal, a public official’s right to appeal denials of
qualified immunity will be of less than little worth.”
Winfield, 106 F.3d at 535 (Wilkinson, J., concurring).




                                  11
      The Officers’ contentions on appeal fall squarely within

the   category     of   claims,    described    in   Winfield,         that      we   are

permitted to review.            Although the Officers mention evidence

that they believe will ultimately disprove Cooper’s version of

the facts, for purposes of this appeal they have accepted the

facts as viewed by the district court.                    Proceeding from that

foundation, the Officers make the legal argument that they did

not     contravene      Cooper’s   constitutional         rights.           In     these

circumstances, we are satisfied of our jurisdiction under the

collateral order doctrine, and we proceed to the merits of the

Officers’ qualified immunity claims.



                                      III.

                                       A.

      Section 1983 of Title 42 creates a cause of action against

any person who, acting under color of state law, abridges a

right    arising     under   the   Constitution      or   laws    of    the       United

States.     Nevertheless, a government official sued under § 1983

is entitled to invoke qualified immunity, which is more than a

mere defense to liability; it is immunity from suit itself.                           See

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).                          As we have

explained,    “qualified        immunity    protects      officers      who       commit

constitutional        violations     but     who,    in    light       of        clearly

established    law,     could    reasonably    believe     that     their        actions

                                       12
were lawful.”        Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc).

       The    Officers      maintain     that   the      district       court   erred   in

denying them qualified immunity from Cooper’s excessive force

claims under § 1983.          We review de novo the legal issues arising

from    a     district       court’s       denial     of     qualified          immunity.

Washington v. Wilmore, 407 F.3d 274, 281 (4th Cir. 2005).                                In

assessing whether a defendant is entitled to qualified immunity,

a court must “use the two-step procedure of Saucier v. Katz, 533

U.S.    194    (2001),      that    asks    first     whether       a    constitutional

violation occurred and second whether the right violated was

clearly established.”          Melgar ex rel. Melgar v. Greene, 593 F.3d

348, 353 (4th Cir. 2010).                A constitutional right is “clearly

established” when “its contours [are] sufficiently clear that a

reasonable      official      would      understand      that     what    he    is   doing

violates that right.”           Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(internal quotation marks omitted).

       The Complaint alleges that the Officers violated Cooper’s

constitutional rights through the use of excessive force.                               See

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

(explaining        that     seizure       effectuated       by      excessive        force

contravenes        Fourth     Amendment).           We     have     instructed        that

“[w]hether an officer has used excessive force is judged by a

standard of objective reasonableness.”                      Clem v. Corbeau, 284

                                           13
F.3d 543, 550 (4th Cir. 2002).                   As further explained in Clem,

“recognizing     that   police       officers      are     often    forced       to    make

split-second      judgments      —     in    circumstances         that    are     tense,

uncertain, and rapidly evolving — we take care to consider the

facts from the perspective of a reasonable officer on the scene,

and avoid judging the officer’s conduct with the 20/20 vision of

hindsight.”      Id. (internal quotation marks omitted).

     A    reasonable    officer        is    entitled      to     use     deadly      force

“[w]here   the    officer   has      probable      cause     to    believe    that      [a]

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

officer or to others.”            Tennessee v. Garner, 471 U.S. 1, 11

(1985).       Nevertheless,       as    the       Officers      concede,     the      mere

possession of a firearm by a suspect is not enough to permit the

use of deadly force.             Thus, an officer does not possess the

unfettered    authority     to    shoot      a   member    of     the   public     simply

because that person is carrying a weapon.                    Instead, deadly force

may only be used by a police officer when, based on a reasonable

assessment, the officer or another person is threatened with the

weapon.    See id. at 11-12. 9



     9
       To be clear, an armed suspect need not engage in some
specific action — such as pointing, aiming, or firing his weapon
— to pose a threat.     Pursuant to Tennessee v. Garner and its
progeny, there are many circumstances under which a police
officer could reasonably feel threatened.



                                            14
       The Officers rely on several decisions concluding that a

police officer was entitled to qualified immunity after shooting

an individual whom the officer mistakenly believed to be armed.

In   Anderson     v.   Russell,      for   example,     the   officers    ordered   a

detainee to his hands and knees, and then shot him when he

reached for a bulge in his waistband that turned out to be a

radio.      See   247    F.3d       125   (4th   Cir.   2001).    In     an   earlier

decision, McLenagan v. Karnes, a bystander was shot as he ran

toward a police officer moments after the officer learned that

an armed arrestee was on the loose in the area.                        See 27 F.3d

1002 (4th Cir. 1994).           And in Slattery v. Rizzo, an officer shot

a suspect who ignored commands to show his hands before turning

quickly toward the officer with what turned out to be only a

beer bottle in a clinched fist.                   See 939 F.2d 213 (4th Cir.

1991).    If deadly force was justified in such circumstances, the

Officers contend, it is even more appropriate in this setting,

where    Cooper    wielded      a    shotgun     in   plain   view.      Instead    of

supporting the Officers’ contentions, however, those decisions

emphasize why the use of deadly force against Cooper was not

constitutionally permissible:               in each of the above scenarios,

the objective basis for the threat was real, but the gun was

not.     Here, the shotgun was real, but — taking the facts as the

district court viewed them — the threat was not.



                                            15
     When    the   Officers   fired      on     Cooper,     he    stood    at   the

threshold of his home, holding the shotgun in one hand, with its

muzzle pointed at the ground.           He made no sudden moves.           He made

no threats.      He ignored no commands.          The Officers had no other

information suggesting that Cooper might harm them.                    Thus, the

facts fail to support the proposition that a reasonable officer

would have had probable cause to feel threatened by Cooper’s

actions.

     Importantly,     the   Officers     never       identified    themselves    —

even when asked by Cooper.         If the Officers had done so, they

might have been safe in the assumption that a man who greets law

enforcement with a firearm is likely to pose a deadly threat.

See Elliot v. Leavitt, 99 F.3d 640, 644 (4th Cir. 1996) (“No

citizen    can   fairly   expect   to    draw    a    gun   on    police   without

risking tragic consequences.”).              Instead, we are constrained to

agree with the district court that “no reasonable officer could

have believed that [Cooper] was aware that two sheriff deputies

were outside,” as he stepped onto his back porch.                    Cooper, 896

F. Supp. 2d at 447. 10      As in Pena v. Porter, on which the court


     10
        The Officers contend that they did not need to announce
their presence while approaching the mobile home, because they
believed the unidentified man on Cooper’s back porch had
observed them in their police vehicles.    The Officers surmised
that the unidentified man’s observation led him to perceive that
the vehicles were headed to Cooper’s mobile home, which in turn
prompted him to go inside to warn the occupants.         If the
(Continued)
                                        16
relied, Cooper’s “perfectly reasonable” rationale for bearing a

firearm while investigating a nocturnal disturbance on his own

property “should have been apparent to [the Officers] at the

time of the shooting.”        See 316 F. App’x 303, 312 (4th Cir.

2009).

      With respect to the second part of the Saucier analysis,

the   precedent   discussed   herein     amply   demonstrates      that    the

contours of the constitutional right at issue — that is, the

right to be free from deadly force when posing no threat — were

clearly   established   at    the   time   the   Officers   shot    Cooper.

Accordingly, the district court properly denied, at the summary

judgment stage, the Officers’ invocation of qualified immunity

from Cooper’s § 1983 excessive force claims.

                                    B.

      The Officers also seek relief from the district court’s

denial of public officers’ immunity with respect to Cooper’s

state law tort claims.       Under the collateral order doctrine, we

possess jurisdiction to review the denial of claims for state

law immunities that provide insulation from suit, as opposed to

those that merely protect an official from liability.           See Gray-

Hopkins v. Prince George’s Cnty., Md., 309 F.3d 224, 231 (4th



Officers   predicated  their   use  of   deadly  force             on     such
assumptions, it was unreasonable for them to do so.



                                    17
Cir. 2002).         Indeed, pursuant to the collateral order doctrine,

we have exercised appellate jurisdiction to review a pretrial

order denying North Carolina public officers’ immunity.                          See

Bailey v. Kennedy, 349 F.3d 731, 738 (4th Cir. 2003).

      As the district court properly explained, “[t]he merits of

[Cooper’s]     assault,      battery,     negligence,   and    gross   negligence

claims   are    tied     to    the   reasonableness      of    [the    Officers’]

actions.”      Cooper, 896 F. Supp. 2d at 454.                  That ruling was

predicated on the proposition that, under North Carolina law,

public officers’ immunity is unavailable to a police officer who

acts with malice.        See Bailey, 349 F.3d at 731; see also Grad v.

Kassa, 321 S.E.2d 888, 890 (N.C. 1984).                 An officer acts with

malice when he “does that which a man of reasonable intelligence

would know to be contrary to his duty,” i.e., when he violates a

clearly established right.              Bailey, 349 F.3d at 742.            And, at

the   time     of    this     incident     in   May   2007,    it   was     clearly

established that a North Carolina law enforcement officer could

use   deadly    force       only   when    reasonably   necessary      to    defend

against “the use of or imminent use of deadly physical force.”

N.C. Gen. Stat. § 15A-401(d)(2)(a).              Inasmuch as the analysis of

public   officers’       immunity     is    functionally      identical     to   our

discussion of the Officers’ entitlement to qualified immunity

with respect to the § 1983 claims, the state law claims are

“subsumed within the federal excessive force claim[s] and so go

                                           18
forward as well.”   See Rowland v. Perry, 41 F.3d 167, 174 (4th

Cir. 1994).



                               IV.

     Pursuant to the foregoing, we reject the Officers’ immunity

claims and affirm the district court.

                                                        AFFIRMED




                               19
