UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSE VASQUEZ ISQUIERDO,
Plaintiff-Appellant,

v.

WILLIAM JOSEPH FREDERICK, in his
individual capacity; GREGORY
MARSHALL COX, in his individual
                                                                    No. 96-1713
capacity,
Defendants-Appellees,

v.

CITY OF SANFORD, NC; SANFORD
POLICE DEPARTMENT,
Parties in Interest.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Paul Trevor Sharp, Magistrate Judge.
(CA-94-689-1)

Submitted: July 15, 1997

Decided: August 5, 1997

Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William W. Plyler, MCMILLAN, SMITH & PLYLER, Katherine E.
Jean, Raleigh, North Carolina, for Appellant. Tyrus V. Dahl, Jr.,
Ursula M. Henninger, WOMBLE, CARLYLE, SANDRIDGE &
RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Jose Vasquez Isquierdo appeals the entry of summary judgment
against him on federal and state claims arising from an incident in
which he was shot by police. The magistrate judge ruled that Officers
William Frederick and Gregory Cox are entitled to qualified immu-
nity protecting them from suit. We affirm.

I

Isquierdo lived in Sanford, North Carolina, with Linda Polito and
her four children. Isquierdo is the father of the two younger children,
Megan, 3, and Jose, 2. On November 26, 1993, Thanksgiving Day,
Isquierdo arrived home about 11 p.m. with two friends. The two older
children were not home. Isquierdo and his friends drank beer and lis-
tened to music. Polito and the two children were in bed together.
Around midnight, Isquierdo woke the children and brought them out
to show his friends. The children were crying, and he sent them back
to bed.

Isquierdo's friends soon left. Shortly after midnight, Isquierdo took
a .32 caliber pistol, went outside, and began shooting into the air. He
reloaded, went back outside, and shot again. He then fired shots inside
the apartment. Isquierdo entered the bedroom where Polito and the
children were, and fired into the ceiling. According to Isquierdo's
deposition, he got to his knees beside the bed, apologizing in Spanish
and telling the three he loved them. He rose from his knees and was
walking toward the door to put the gun away when he was shot

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through the window by police. His blood alcohol level, measured at
the hospital, was .328.

The police version of events varies somewhat from that of
Isquierdo and Polito. At around midnight, Officers Frederick and Cox
heard gunfire, and the Sanford Police Department dispatched them
and other officers to investigate. They heard more shots while on their
way to Isquierdo's, and heard shots coming from inside the house
when they arrived. Officers Cox and Frederick approached a lighted
bedroom window. The curtains were drawn, but there was a three-
inch, triangular opening at the bottom. The officers saw Isquierdo
through the opening with an automatic weapon in his hand. Polito and
the children were lying on the bed, and the children were crying.
According to Frederick and Cox, Isquierdo was speaking in a loud,
threatening manner in Spanish, which the officers did not understand,
and in English. He had the gun in his hand, near a child's head.
Frederick reported to Officer Cox and the dispatcher that this was a
possible hostage situation. Officer Frederick was convinced that
Isquierdo would shoot Polito and the children. The officers did not
know that Isquierdo lived in that apartment with Polito, that the
children were Isquierdo's, or that Isquierdo was drunk.

Officers Frederick and Cox crouched beneath the bedroom win-
dow, and were talking of ways to deal with the situation, when they
heard three more shots. Cox stood and saw Isquierdo standing at the
foot of the bed holding his gun. He sighted and fired twice. Frederick
stated that he also fired once. Isquierdo denies that Frederick fired; no
spent shell casing was found for his weapon. Isquierdo was shot in the
back. He is paralyzed from just below the knees down, and can walk
only short distances using leg braces. He is impotent and cannot con-
trol bowel and bladder functions. Isquierdo suffers severe back pain,
which disturbs his sleep.

The magistrate judge ruled that, although there were certain factual
disputes between the parties, they were not genuine, material issues
that would preclude the entry of summary judgment. He held that a
reasonable officer faced with the situation in question could perceive
a life or death circumstance, in which the use of deadly force was nec-
essary to prevent loss of life. Therefore, he granted the officers' sum-

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mary judgment motion based on qualified immunity and dismissed
the state law claims. Isquierdo appeals.

II

We analyze a claim that law enforcement personnel used excessive
force in making an arrest de novo, under the Fourth Amendment rea-
sonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989).
A district court first must determine whether defendants' conduct vio-
lated the plaintiff's constitutional rights, resolving what happened and
whether that conduct was unconstitutional. Pittman v. Nelms, 87 F.3d
116, 119 (4th Cir. 1996). If the defendant's acts did violate the plain-
tiff's constitutional rights, then the court must determine whether
defendant is entitled to qualified immunity from suit. The immunity
question depends on whether the relevant law was clearly established
at the time and whether a reasonable person in defendant's place
should have known the conduct was illegal. Id.

At the summary judgment stage of an excessive force claim in
which qualified immunity is asserted, the district court can combine
these steps and resolve whether plaintiff has alleged the violation of
a clearly established constitutional right. Pittman v. Nelms, 87 F.3d
116, 119 (4th Cir. 1996). If the answer is a positive one, then the court
must decide whether the officers knew or should have known their
actions were illegal. Pittman, 87 F.3d at 119. If so, the defendants are
not entitled to immunity.

Force is not excessive if it is objectively reasonable under the cir-
cumstances, without regard to the underlying intent of the officers.
Graham, 490 U.S. 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 good reason to
believe the suspect presents 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 reasonable force. Elliott v. Leavitt, 99 F.3d 640, 643 (4th
Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3742 (U.S. June
27, 1997) (No. 96-1714).

                    4
In this case, Isquierdo asserts that issues of fact exist that preclude
the entry of summary judgment. He claims that his evidence would
show that he did not threaten to kill Polito and the children. He also
asserts that the officers could see clearly into the bedroom, so Officer
Cox could see that Isquierdo's back was toward the bed, and he was
leaving the room. In addition, Isquierdo and Polito would testify that
he was not yelling at Polito and the children. Therefore, he asserts, he
was not posing a threat of deadly force at the time he was shot
and his shooting was unreasonable under the Fourth Amendment.
Isquierdo alleges that these facts must be resolved by a jury, citing
Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993), and Rainey v.
Connerly, 973 F.2d 321 (4th Cir. 1992). But unlike Kane and Rainey,
here the key issue is not how much force was used, but whether the
officers could reasonably perceive that Isquierdo posed a threat of
serious harm.

Isquierdo also argues that the decision to "take him out" was made
in advance by Officer Frederick, the ranking officer on the scene,
rather than by Officer Cox, who did all the shooting in Isquierdo's
factual scenario. Thus, he argues that the decision to shoot was not
a split-second judgment, made in tense, rapidly evolving circum-
stances, but a cool-headed decision. But according to the depositions
and statements of the officers, each made an independent decision to
shoot Isquierdo because of his threatening conduct and use of deadly
force in the presence of a woman and two small children. Both offi-
cers believed that if they did not react Isquierdo would have shot one
or more of the others. Isquierdo presented nothing to contradict their
statements. As the magistrate judge stated, even if Isquierdo was
walking toward the door and Cox saw him do so, there was no way
to tell whether he was pacing, going to reload the weapon, or about
to turn toward the bed and shoot.

We hold that the officers were entitled to summary judgment
based on qualified immunity. A reviewing court must not judge the
officers' conduct with "the 20-20 vision of hindsight." Graham, 490
U.S. at 396-97. Here, a reasonable officer on the scene could perceive
Isquierdo as a threat of serious harm to the other occupants of the
bedroom. Therefore, we affirm the entry of judgment on the § 1983
claims.

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III

Isquierdo's state law claims also fail. Law enforcement officers
may not be held liable for acting within the scope of their authority
unless their actions were corrupt or malicious. Smith v. North
Carolina, 222 S.E.2d 412, 430 (N.C. 1976). Under N.C. Gen. Stat.
§ 15A-401(d)(2) (Supp. 1996), an officer can use deadly force in an
arrest to defend himself or another from what he reasonably believes
is the imminent use of deadly force. Thus, judgment was properly
granted on the state claims, as well.

We affirm the judgment in favor of Officers Frederick and Cox.
We deny appellant's motion for oral argument. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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