                                             Filed:   November 14, 2002

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 01-2312
                           (CA-00-1771-DKC)



Marion Gray-Hopkins, etc.,

                                                 Plaintiff - Appellee,

           versus


Prince George’s County, Maryland, et al.,

                                              Defendants - Appellants.



                              O R D E R



     The court amends its opinion filed October 30, 2002, as

follows:

     On page 12, second full paragraph, lines 6-7 -- the sentence

is corrected to read “Neither statutory nor common law immunity is

available to a Maryland public official who acts with malice.”

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
                            PUBLISHED

           UNITED STATES COURT OF APPEALS

                FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447
MARION GRAY-HOPKINS, in her
individual capacity, as mother,
Personal Representative and next
friend of Gary Hopkins, Deceased,
       Plaintiff-Appellee,

     v.

PRINCE GEORGE'S COUNTY,
MARYLAND; BRIAN C. CATLETT, A
Police Officer of Prince George's
County, Maryland,
      Defendants-Appellants,

      and                                            No. 01-2312
PRINCE GEORGE'S COUNTY POLICE
DEPARTMENT; JOHN DOE, A Police
Officer of Prince George's County,
Maryland and Supervisor of Brian
Catlett; DEVIN C. WHITE, A Police
Officer of Prince George's County,
Maryland; JAMES SKYRM, A Police
Officer of Prince George's County,
Maryland and Supervisor,
      Defendants.

JOHN S. FARRELL,
    Movant.
4444444444444444444444444444444444444444444444448

          Appeal from the United States District Court
           for the District of Maryland, at Greenbelt.
             Deborah K. Chasanow, District Judge.
                      (CA-00-1771-DKC)

                     Argued: April 2, 2002

                  Decided: October 30, 2002
      Before MOTZ, Circuit Judge, Walter K. STAPLETON,
     Senior Circuit Judge of the United States Court of Appeals
          for the Third Circuit, sitting by designation, and
      W. Craig BROADWATER, United States District Judge
             for the Northern District of West Virginia,
                       sitting by designation.

____________________________________________________________

Reversed and remanded by published opinion. Senior Judge Stapleton
wrote the opinion, in which Judge Motz and Judge Broadwater joined.

____________________________________________________________

                             COUNSEL

ARGUED: Crystal Renee Mittelstaedt, COUNTY ATTORNEY'S
OFFICE, Upper Marlboro, Maryland, for Appellants. Walter L. Blair,
College Park, Maryland; C. William Michaels, Baltimore, Maryland,
for Appellee. ON BRIEF: Sean D. Wallace, County Attorney, John
A. Bielec, Deputy County Attorney, Upper Marlboro, Maryland, for
Appellants. Johnnie L. Cochran, Jr., THE COCHRAN FIRM, New
York, New York, for Appellee.

____________________________________________________________

                              OPINION

STAPLETON, Senior Circuit Judge:

   This civil rights action arises from an incident in which a Prince
George's County police officer killed the son of plaintiff/appellee,
Marion Gray-Hopkins. The officer, Brian Catlett, appeals from the
District Court's denial of his motion for summary judgment based on
a claim of qualified immunity. He and the County also appeal from
the District Court's refusal to grant them summary judgment with
respect to certain of Gray-Hopkins' state law claims.

                         I. BACKGROUND

   Officer Catlett shot and killed Gary Hopkins, on November 27,
1999, following a dance at the West Lanham Fire Department in

                                  2
Prince George's County, Maryland. The parties hotly dispute the
events leading up to this shooting. The District Court reviewed both
parties' version of the facts and found sufficient evidence, in the form
of witness affidavits and DNA analysis, to support each of those prof-
fered versions.

   According to appellants, after the dance a fight broke out in the
parking lot. Two off-duty police officers working as private security
guards at the dance, Officers Catlett and Marriott, were at the scene.
A crowd formed, which they were unable to disperse. Catlett called
the dispatcher to send on-duty officers to assist.

   The occupants of a cream-colored Cutlass and a black, four-door
Cadillac were the primary participants in the fighting. Marriott heard
a person in the crowd state that an individual in the Cutlass had a gun.
The information regarding the presence of the gun was radioed to the
other officers who were on their way to the scene. Officer Devin
White was one of these officers who heard this information as he
approached the firehouse.

    When White arrived at the firehouse, he stopped his marked police
vehicle in the front of the driveway. The Cutlass was not moving
when White approached it with his gun drawn. He then asked those
in the vehicle several times to let him see their hands. The passenger
in the front seat got out of the vehicle and disappeared into the crowd.
The driver complied with White's request. Gary Hopkins was sitting
in the rear of the vehicle. He did not raise his hands, but instead
reached out of the car and grabbed at White's gun. Officer White then
backed away from the Cutlass with his gun still in his hands. Gary
Hopkins then got out of the car.

   White continued to back away from the car. He ordered Hopkins,
who was then completely out of the car to "Stop. Let me see your
hands." Hopkins and White then struggled for control of White's
weapon. In the course of this struggle, White repeatedly yelled for
Hopkins to "Get off, let go, let me see your hands." While still engag-
ing in a struggle with Hopkins over the control of his weapon, White
heard a shot, which apparently forced Hopkins to let go of the
weapon. Catlett fired that gunshot, which fatally struck Gary Hopkins.

                                  3
    In support of their version of events, appellants rely upon the depo-
sition testimony of Dr. Fowler and Agent Smrz. According to Dr.
Fowler, Hopkins had a laceration on his left index finger that was
caused by the sharp edge of the front sight of a Beretta handgun
issued by the Prince George's County Police Department. Hopkins'
DNA was recovered from White's handgun, according to Agent
Smrz's testimony.

    The appellees present a strikingly different account of the events
leading up to the shooting. Although appellees do not dispute that a
"scuffle" ensued after the dance was shut down around 2:30 a.m., they
present testimony that Hopkins was a peacemaker. He suggested that
everyone should leave the parking lot and go to his mother's house.
As the car Hopkins was riding in was attempting to exit the parking
lot, White stopped the car. After Hopkins exited the vehicle, he was
in a neutral position with his hands raised and at no point threatened
White or grabbed his gun. According to a witness, Tyrone Freeman,
Hopkins' hands were raised and he was facing White when Catlett
fired his gun.

   The District Court found material facts to be in dispute, and view-
ing the facts in the light most favorable to Gray-Hopkins, held that
Catlett was not entitled to summary judgment on his claim for quali-
fied immunity. Specifically, the Court found that there was a genuine
dispute as to whether excessive force was used and whether a reason-
able officer would have known that his actions were unlawful. The
District Court further held that summary judgment was not warranted
on certain of Gray-Hopkins' state law claims.

                      II. THE FEDERAL CLAIM

   Gray-Hopkins asserts that Catlett used excessive force against her
son in violation of his rights under the Fourth and Fourteenth Amend-
ments. Catlett insists that he is entitled to qualified immunity from
suit on this claim. He is entitled to that immunity unless a reasonable
officer in his position would have known that firing his weapon at
Gary Hopkins would violate his constitutional right to be free of
excessive force. Anderson v. Creighton, 483 U.S. 635 (1987). Catlett
asks that we reverse the District Court's determination that he was not
so entitled on the current record. As a threshold matter, we must

                                   4
determine whether we have jurisdiction to review the District Court's
determination and, if so, the scope of that jurisdiction.

                            A. Jurisdiction

    We have jurisdiction to review final orders of district courts under
28 U.S.C. § 1291. Under the collateral order doctrine, an order is final
for purposes of § 1291, even if it does not terminate proceedings in
the district court, so long as it conclusively determines the disputed
question, resolves an important issue completely separate from the
merits of the action, and would be effectively unreviewable on appeal
from a final judgment. Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541 (1949). Because qualified immunity is an immunity from
having to litigate, as contrasted with an immunity from liability, "it
is effectively lost if a case is erroneously permitted to go to trial."
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As a result, a district
court's order denying a motion for summary judgment based on quali-
fied immunity is effectively unreviewable on appeal from a final
judgment and, assuming the other two requirements are met, is
appealable as a final order under the collateral order doctrine. Id.

    Our jurisdiction to review orders denying a summary judgment
motion based on qualified immunity is limited, however, to the
review of legal issues. Johnson v. Jones, 515 U.S. 304 (1995).
Accordingly, "we possess jurisdiction to consider an appeal from a
decision of a district court rejecting a government official's claim of
entitlement to qualified immunity to the extent that the official main-
tains that the official's conduct did not violate clearly established
law." Winfield v. Bass, 106 F.3d 525, 529 (4th Cir. 1997). On the
other hand, "to the extent that the appealing official seeks to argue the
insufficiency of the evidence to raise a genuine issue of material fact
—for example, that the evidence presented was insufficient to support
a conclusion that the official engaged in the particular conduct alleged
—we do not possess jurisdiction under § 1291 to consider the claim."
Id. at 529-30. In Bass we summarized and restated the principles
articulated by the Supreme Court in Johnson as follows:

          In other words 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

                                   5
          have jurisdiction over a claim that there was no violation of
          clearly established law accepting the facts as the district
          court viewed them.

Id. at 530.

   Where, as here, the District Court articulates the facts as it viewed
them in determining that summary judgment was inappropriate, the
task of an appellate court is relatively straightforward. It must accept
those facts and then determine whether, based on those facts, a rea-
sonable person in the defendant's position could have believed that he
or she was acting in conformity with the clearly established law at the
time. To the extent the appellant argues that the record evidence,
viewed in the light most favorable to the appellee, is insufficient to
support the facts as articulated by the District Court, the reviewing
court lacks jurisdiction to entertain the appeal. Id. at 529-30.

   These principles dictate that we decline to entertain most of
Catlett's arguments with respect to the excessive force claim. The
District Court's opinion concludes that there is evidence in the record
from which a trier of fact could conclude, inter alia, that Hopkins did
not resist police commands or struggle outside of the car with White
for his gun and that he was standing still with his hands raised over
his head when he was shot. We cannot consider Catlett's arguments
that the record will not support those findings.

    Appellants, for example, point to the testimony of Dr. Fowler and
Agent Smrz and challenge the District Court's finding that there is a
genuine issue of material fact regarding whether Gary Hopkins
grabbed for White's gun once he was out of the car. The District
Court concluded, however, that the fact that Hopkins' DNA was
found on the front sight of White's handgun is not dispositive of the
question of whether Hopkins resisted after exiting the vehicle, given
the testimony that he lunged for the gun twice, once before getting
completely out of the car. Appellants are not here arguing a point of
law. Rather, they are arguing "the insufficiency of the evidence to
raise a genuine issue of material fact." Winfield, 106 F.3d at 529. We
lack jurisdiction to consider this argument.

                                   6
                         B. Qualified Immunity

    In order to determine whether the District Court erred in rejecting
Catlett's claim to qualified immunity, we must first ask whether a vio-
lation of a right secured by the Fourth Amendment occurred; we must
then inquire whether that right was so clearly established at the time
of the violation that a reasonable officer in Catlett's position could not
have believed he was acting legally. Rogers v. Pendleton, 249 F.3d
279, 286 (4th Cir. 2001). Once we accept the facts that the District
Court determined to be supported by the record, these issues are not
difficult.

    The following Fourth Amendment law was clearly established at
the time of the events giving rise to this suit. Whether the State used
excessive force is determined under the Fourth Amendment's "objec-
tive reasonableness standard."1 Graham v. Connor, 490 U.S. 386,
388, 394 (1989). Applying this standard "requires a careful balancing
of `the nature and quality of the intrusion on the individual's Fourth
Amendment interests' against the countervailing government interests
at stake." Id. at 396 (quoting United States v. Place, 462 U.S. 696,
703 (1983)). The analysis of an excessive force claim further "re-
quires careful attention to the facts and circumstances of each particu-
lar case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or oth-
ers and whether he is actively resisting arrest or attempting to evade
arrest by flight." Id. Moreover, because police officers are often
forced to make split-second judgments — in circumstances that are
____________________________________________________________
   1
     In addition to asserting that Catlett violated Hopkins' Fourth Amend-
ment right, Gray-Hopkins contends that he also violated Hopkins' Four-
teenth Amendment substantive due process rights. In Graham, the
Supreme Court held that "a free citizen's arrest, investigatory stop, or
other `seizure' of his person, . . . are properly analyzed under the Fourth
Amendment's `objective reasonableness' standard, rather than under a
substantive due process standard." 490 U.S. at 388. The Court held that
such a claim "is most properly characterized as one invoking the protec-
tions of the Fourth Amendment" and that the validity of an excessive
force claim "must then be judged by reference to th[is] specific constitu-
tional standard which governs that right." Id. at 394. Thus, we need not
address Gray-Hopkins' claim regarding the alleged violation of Gary
Hopkins' substantive due process rights.

                                   7
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. Tennessee v. Garner, 471 U.S. 1, 8-9
(1985)). Deadly force, however, "is . . . justified only where a reason-
able officer would have `sound reason to believe that a suspect poses
a threat of serious physical harm to the officer or others.'" Clem, 284
F.3d at 550 (citing Elliot v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)).

   Based on the plaintiff's version of the events giving rise to this
case, which the District Court found to be supported by competent
evidence, Hopkins was standing still with his hands raised over his
head at the time of the fatal shot, he was not resisting arrest, and he
was not posing a threat to the safety of the officers or others. Based
on these facts, a trier of fact could clearly conclude that a Fourth
Amendment violation occurred and that a reasonable officer in
Catlett's position could not have believed he was acting lawfully.

                    III. THE STATE LAW CLAIMS

    The complaint alleges (1) a violation of Articles 24 and 26 of the
Maryland Declaration of Rights, (2) wrongful death and survivorship
claims, (3) an assault and battery claim, and (4) a general negligence
claim. Each claim is based on essentially the same factual allegations
as the federal claim. In response to each of these claims, Catlett
asserted a public official immunity defense and the County asserted
a governmental immunity defense. The District Court held that each
was entitled to immunity with respect to the negligence claims but not
entitled to immunity with respect to the constitutional and intentional
tort claims. Catlett and the County asked us to review the District
Court's refusal to grant them summary judgment on the constitutional
and intentional tort claims.

                       A. Appellate Jurisdiction

     In determining whether appellate jurisdiction exists"`the parties
. . . in a federal action such as this one involving pendent state claims,
are bound by federal procedural rules governing appeals, including
the collateral order doctrine.'" In re City of Philadelphia Litigation,
49 F.3d 945, 957 (3d Cir. 1995) (citing Brown v. Grabowski, 922 F.2d
1097, 1106 (3d Cir. 1990)); see also Sorey v. Kellett, 849 F.2d 960,

                                    8
962 (5th Cir. 1988); Marrical v. Detroit News, Inc., 805 F.2d 169,
172 (6th Cir. 1986). We must look to substantive state law, however,
in determining the nature and scope of a claimed immunity. In re City
of Philadelphia Litigation, 49 F.3d at 957.

    Appellants' brief asserts that they are entitled to summary judg-
ment on the merits of the assault and battery claims and that the com-
plaint "fails to state a claim [for] wrongful death and survival." The
collateral order doctrine does not provide us with appellate jurisdic-
tion over contentions, like these, that are unrelated to immunity
issues, and we know of no other basis for such jurisdiction. See O'Bar
v. Pinion, 953 F.2d 74 (4th Cir. 1991).

    To the extent these appeals challenge the District Court's refusal
to honor claims of public official and governmental immunity, we
must apply the collateral order doctrine with due regard to the nature
and scope of the immunity. We have appellate jurisdiction if, under
state law, the immunity is an immunity from suit, but we lack such
jurisdiction if it is an immunity from liability only. Where immunity
from liability is involved, any error of the district court is effectively
reviewable in an appeal from the final judgment. As the Third Circuit
Court of Appeals explained in Brown v. Grabowski, 922 F.2d 1097,
1106-7 (3d Cir. 1990):

          A Mitchell analysis coupled with the teachings of Erie Rail-
          road v. Tomkins, 304 U.S. 64 (1938) dictates that the right
          to an interlocutory appeal from the denial of a claim of
          absolute or qualified immunity under state law can only
          exist where the state has extended an underlying substantive
          right to be free from the burdens of litigation arising from
          acts taken in the course of official duties.

See also Sheth v. Webster, 145 F.3d 1231, 1236 (11th Cir. 1998).

                       1. Governmental immunity

   Governmental immunity, which is enjoyed by counties and munici-
palities under Maryland law, is a more limited form of the sovereign
immunity enjoyed by the State. Austin v. City of Baltimore, 405 A.2d

                                    9
255, 256-57 (Md. 1979). Counties are afforded governmental immu-
nity only when they perform governmental, as opposed to propriety
functions. While that immunity is, accordingly, "much narrower than
the immunity of the State, [it is] nevertheless . . . derived from the
State's sovereign immunity." Board of Educ. of Prince George's
County v. Town of Riverdale, 578 A.2d 207, 210 (Md. 1990).

    The sovereign immunity of the State of Maryland is an immunity
from suit. Since this is its source, governmental immunity is of the
same nature. See Maryland v. Hogg, 535 A.2d 923, 927 (Md. 1988)
("[T]he State's sovereign immunity not only protects the public trea-
sury but also protects the State and its instrumentalities from standing
trial."); City of District Heights v. Denny, 719 A.2d 998, 1004 (Md.
Ct. App. 1998) ("[W]here the effect of the denial of a motion for sum-
mary judgment is to reject a defendant's claim of governmental
immunity, an appeal `does apparently lie under the collateral order
doctrine.' ").

                      2. Public official immunity

   The nature and scope of the public official immunity enjoyed by
municipal and county officials acting in a discretionary capacity in
Maryland is less clear. On two occasions the Maryland Court of Spe-
cial Appeals has permitted appeals under the collateral order doctrine
from denials of summary judgment with respect to claims of common
law public official immunity, thus implying that this immunity is an
immunity from suit. Baltimore Police Dept. v. Cherkes, 780 A.2d 410
(Md. Ct. App. 2001); Port Deposit v. Petetit, 688 A.2d 54 (Md. Ct.
App. 1997).2 The Maryland Court of Appeals has yet to provide guid-
ance on the issue, however. In the absence of such guidance, we pre-
____________________________________________________________
   2
     "In Maryland, public official immunity is recognized both at common
law and by statute." City of District Heights v. Donny, 719 A.2d 998,
1002 (Md. Ct. App. 1998). Appellants take the position that the common
law of public official immunity "has been codified within § 5-507(b)(1)
of the Md. Code Ann. Cts. & Jud. Process" and thus do not suggest that
there is a material difference between the two. Appellants Opening Br.
p. 25 n.2. See Ashton v. Brown, 660 A.2d 447, 470 n. 23 (Md. 1995)
(reviewing legislative history suggesting that § 5-507(b)(1) was intended
to codify the common law).

                                  10
dict that the Maryland Court of Appeals, if required to determine this
issue, would look to the common law of official immunity and reach
the same conclusion that the Supreme Court of the United States has
reached based on that common law in fashioning the federal doctrine
of qualified immunity from civil rights liability.

    In Pierson v. Ray, 386 U.S. 547 (1967), the Supreme Court held
that "the defense of good faith and probable cause . . . available to
[police] officers in the common law action for false arrest and impris-
onment is also available to them in the action under § 1983." There
followed a series of decisions in which the Supreme Court fashioned
the law of qualified immunity by looking to the common law. See,
e.g., Harlow v. Fitzgerald, 457 U.S. 800, 806-08 (1982); Owen v. City
of Independence, 445 U.S. 622, 638 (1980). Each of its "decisions on
§ 1983 immunities . . . [has been] predicated upon a considered
inquiry into the immunity historically accorded by the relevant com-
mon law and the interests behind it." Imbler v. Pachtman, 424 U.S.
409, 421 (1976). When presented directly with the issue of whether
qualified immunity is an immunity from suit in Mitchell v. Forsyth,
472 U.S. 511, 525-26 (1985), the Supreme Court looked to the inter-
ests traditionally viewed as supporting common law immunity for
public officials:

         The conception animating the qualified immunity doctrine
         as set forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982),
         is that "where an official's duties legitimately require action
         in which clearly established rights are not implicated, the
         public interest may be better served by action taken`with
         independence and without fear of consequences.'" Id., at
         819, quoting Pierson v. Ray, 386 U.S. 547, 554 (1967). As
         the citation to Pierson v. Ray makes clear, the "conse-
         quences" with which we were concerned in Harlow are not
         limited to liability for money damages; they also include
         "the general costs of subjecting officials to the risks of
         trial—distraction of officials from their governmental
         duties, inhibition of discretionary action, and deterrence of
         able people from public service." Harlow, 457 U.S. at 816.
         Indeed, Harlow emphasizes that even such pretrial matters
         as discovery are to be avoided if possible, as "[i]nquiries of

                                  11
         this kind can be peculiarly disruptive of effective govern-
         ment." Id. at 817.

   We predict that the Maryland Court of Appeals would find that the
common law of official immunity was founded in part on the same
concerns and would reach a similar conclusion. On that basis, we hold
that we have jurisdiction to review the District Court's refusal to
honor Catlett's claims of public official immunity.

                     B. Public Official Immunity

   The District Court held that Catlett was not entitled to public offi-
cial immunity with respect to the state law constitutional and inten-
tional tort claims because the "[p]laintiff's version of the facts, if
accepted, would justify a conclusion that . . . Catlett shot and killed
Mr. Hopkins with malice and without justification." App. 341. We
agree. Neither statutory nor common law immunity is available to
a Maryland public official who acts with malice. DiPino v. Davis, 729
A.2d 354, 370 (Md. 1999) (common law public official immunity is
not available "if the officer . . . acts with malice"); Md. Code Ann.
Cts. & Jud. Proc. § 5-507(b)(1) (official of a municipal corporation is
entitled to immunity only "while acting in a discretionary capacity,
without malice, and within the scope of [his] employment.").3

                      C. Governmental Immunity

   We also agree with the District Court's determination that the
County is not entitled to governmental immunity with respect to the
constitutional claims. DiPino, 729 A.2d at 371; Clea v. City of Balti-
more, 541 A.2d 1303, 1305 (Md. 1988). We conclude, however, that
____________________________________________________________
   3
     Appellee insists that public official immunity is never available in
Maryland with respect to a constitutional or intentional tort. Given our
conclusion with respect to malice, we have no occasion to reach these
issues. See Md. Code Ann. Cts. & Jud. Proc. § 5-507(b)(1) (conferring
immunity on officials of municipal corporations without an express
exclusion of constitutional or intentional torts) and Thomas v. City of
Annapolis, 688 A.2d 448, 457 (Md. Ct. App. 1997) (noting that the Court
of Appeals has not decided whether § 5-507(b)(1) "codifies common law
immunity or whether it applies to intentional and constitutional torts").

                                  12
the County enjoys governmental immunity with respect to the claims
that seek to impose respondeat superior liability for an intentional tort
committed by Catlett. Under Maryland law, a county "is immune
from liability for tortious conduct committed while the entity was act-
ing in a governmental capacity." DiPino, 729 A.2d at 370. Assuming
that Catlett was acting within the scope of his employment so as to
render respondeat superior applicable, he clearly was performing a
governmental function. Id. (holding that law enforcement is a govern-
mental function).

    The fact that Catlett is not entitled to public official immunity with
respect to intentional torts does not mean that the County is without
governmental immunity with respect to such torts. In DiPino, a
municipal police officer was sued for false imprisonment, malicious
prosecution and abuse of process, all intentional torts. The plaintiff
also sought to impose respondeat superior liability on the municipal-
ity for those torts. The Maryland Court of Appeals held that while the
officer was not entitled to public official immunity, the municipality
was entitled to governmental immunity because the officer was
alleged to be performing a governmental function. Id. at 370.

                          IV. CONCLUSION

   With one exception, we agree with the District Court's disposition
of all of the issues we have jurisdiction to review. We must reverse
the order appealed from, however, to the extent it denied the County's
motion for summary judgment on the plaintiff's intentional tort
claims. We will remand for further proceedings consistent with this
opinion.

                                        REVERSED AND REMANDED

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