UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ESTATE OF ROOSEVELT WILLIAMS, by
Cawthorne Ray Williams, Co-
Executor of the Estate of Roosevelt
Williams, deceased; CAWTHORNE
RAY WILLIAMS; DREMA WILLIAMS;
HARRIETT WILLIAMS,
Plaintiffs,

and

CAROLYN ANN JOHNSON, as Co-
Executor of the Estate of Roosevelt
Williams, and individually; JAMES
ANDREW HARDY, as Co-Executor of
the Estate of Roosevelt Williams,
                                                             No. 96-2425
and individually,
Intervenors-Appellants,

v.

P. D. CLEMENS, Sergeant; R. B.
KUENZEL, Trooper; J. C. CHAMBERS,
Trooper,
Defendants-Appellees,

and

DEPARTMENT OF PUBLIC SAFETY,
STATE OF WEST VIRGINIA; WEST
VIRGINIA STATE HIGHWAY PATROL,
Defendants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.

(CA-95-4-2)
Submitted: July 15, 1997

Decided: November 7, 1997

Before HALL, WILKINS, and NIEMEYER,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Joan G. Hill, Henry M. Hills, III, CRANDALL, PYLES & HAVI-
LAND, Logan, West Virginia, for Appellants. Steven P. McGowan,
Jeffrey K. Phillips, STEPTOE & JOHNSON, Charleston, West Vir-
ginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Two of three co-executors of the estate of Roosevelt Williams
appeal the district court's judgment in this action filed pursuant to 42
U.S.C. § 1983 (1994), and West Virginia state law. The action con-
cerns the fatal shooting of Williams during an encounter with state,
city, and county law enforcement officers. The district court con-
cluded that the three state troopers who remained as defendants did
not violate Williams's constitutional rights and, alternatively, are enti-
tled to qualified immunity. We affirm.

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I

Williams, an 81-year-old disabled black male, was shot and killed
by police in his home on January 3, 1993. At the time of the shooting,
police were trying to take Williams into custody pursuant to a mental
hygiene warrant obtained by his daughter, Carolyn Ann Johnson. On
January 1, Johnson became concerned when her father refused to go
to the hospital although he was not feeling well and she saw signs of
vomited blood. After leaving his home, she repeatedly tried to call
him, but the phone was not answered. The next day, Williams would
not admit his grandson when he came to deliver food. Johnson called
the police, who met her at Williams's house and tried to gain admit-
tance. They heard a shot, and Williams called a neighbor to tell police
to leave the house. The group dispersed, but Johnson soon called
police to help her again. She was told to obtain a mental hygiene war-
rant. When Johnson and city police returned to the house with the
warrant, shots were fired from within, one almost striking an officer
on the porch.

By the time the state police were called to the scene, local police
had been trying for hours to persuade Williams to leave his house
peacefully. State troopers were dispatched in response to a report that
law enforcement officers were being fired on.

After making repeated attempts to reach Williams, police obtained
Johnson's permission to use tear gas. When Williams came to a door-
way with a gun in his hand officers pleaded with him to lay down the
weapon and come out. He failed to respond, and went back in the
house. Trooper Wigal and Trooper Chambers entered the house to
determine Williams's location. When they shined a flashlight on him
in a back bedroom, Williams shot at Chambers. Later, Trooper Wigal
shined a flashlight through a window into the bedroom, and Williams
fired at him. Wigal returned fire and fled for cover. More tear gas was
deployed. In an effort to monitor the effects of the gas, Wigal again
shined a flashlight in the window. Williams fired two shots in Wigal's
direction. The latter returned four shots, and one more shot was fired
from the house, striking a tree near Wigal.

At about 3:20 a.m., officers decided to enter the building while it
was still dark to check on Williams. Sergeant Clemens, Trooper

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Chambers and Trooper Kuenzel entered the house. Chambers and
Kuenzel placed themselves outside the bedroom doorway. Clemens
stayed behind them, with his view of subsequent events obstructed by
a wall. When the room was partly illuminated by Chem-light sticks
and a flashlight, Chambers and Kuenzel saw Williams sitting on the
floor, leaning against the bed. According to the troopers' depositions,
Kuenzel identified himself as a police officer and instructed Williams
not to move. Williams looked over his shoulder toward the door and
began turning his torso; Kuenzel repeated the warning. Williams con-
tinued moving, his right hand holding a revolver with his finger on
the trigger guard. Trooper Kuenzel yelled, "gun," and Chambers fired
a warning shot into the ceiling. Williams ignored two more verbal
warnings, and continued to rotate his body, bringing the gun toward
the officers. Chambers and Kuenzel fired several times at Williams.
Other officers not in the immediate area heard Kuenzel's verbal warn-
ings before the shots. Williams died from the officers' shots.

When other officers entered the bedroom after the shooting, they
observed Williams's body with a pistol in the right hand, and several
rounds of ammunition in the left hand. The postmortem attributed
Williams's death to three gunshot wounds that entered Williams's
right back.

II

We analyze a claim that law enforcement personnel used excessive
force in making an arrest under the Fourth Amendment reasonable-
ness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). Force
is not excessive if it is objectively reasonable under the circum-
stances, without regard to the underlying intent of the officers. Id. at
397. Objective reasonableness is judged from the point of view of a
reasonable officer on the scene. Id. at 396. An officer may use deadly
force when he or she has probable cause to believe the suspect pres-
ents a threat of serious physical harm to the officer or others.
Tennessee v. Garner, 471 U.S. 1, 11 (1985). Under Graham, the court
must focus on the moment force was used, so that actions prior to that
moment are irrelevant in evaluating whether the officer used reason-
able force. Elliot v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996).

Here, the officers are entitled to summary judgment if they reason-
ably decided that deadly force was called for because there was prob-

                    4
able cause to believe that Williams presented a threat of serious harm
to them or others. Clearly, the troopers did have reason to believe
Williams posed such a threat. He had been shooting at officers off and
on for hours, despite their assurances that they intended no harm, that
they wanted to take him for help, and that his daughter was concerned
about him. He was resisting a lawful arrest warrant. He ignored
repeated warnings to drop his gun and be still. He disregarded a warn-
ing shot to the ceiling. He was turning toward the troopers with a pis-
tol in his hand. Under these circumstances, the officers obviously and
reasonably perceived a threat of serious physical harm.

III

Appellants assert that genuine issues of material fact precluded the
district court's entry of summary judgment. We review the district
court's grant of summary judgment based on a finding of qualified
immunity de novo, as a matter of law. Jean v. Collins, 107 F.3d 1111,
1112 (4th Cir. 1997). In order to prevail on a summary judgment
motion, the moving party must establish the absence of genuine issues
of material fact and that he or she is entitled to judgment as a matter
of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If
the moving party carries that burden, the nonmoving party may not
rest on the allegations in his or her pleading. Id. at 324. The nonmov-
ing party must produce sufficient evidence that demonstrates that a
genuine issue exists for trial. Id. We view the facts in the light most
favorable to the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).

Appellants assert that the affidavit of a private investigator experi-
enced in forensic ballistic reconstruction shows that a genuine issue
of fact exists to preclude summary judgment--whether the officers in
fact faced an immediate threat of serious harm. Keyser asserts that,
in his opinion, Williams's death could not have occurred as reported
by police, as the location of the gunshot wounds and the amount of
blood lost are not consistent with Williams's position described by
police. We agree with the district court that any possible discrepan-
cies in the precise unfolding of events are not sufficient to create a
genuine issue of material fact that would preclude summary judg-
ment. The affidavit does not challenge the essence of the officers'
statements--that Williams was holding a gun, pointing it toward

                    5
them, and ignoring their warnings and directions. We conclude, as did
the district court, that reasonable officers, encountering Williams in
a semi-lit room with a gun in his hand, after he had shot at officers
several times during the night, could perceive a serious threat of phys-
ical harm.

We conclude that summary judgment was properly entered for the
troopers. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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