PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GARY SIGMAN, individually and as
administrator of the estate of Mark
Anthony Sigman; BRIGIT ELLEN
SIGMAN,
Plaintiffs-Appellants,

v.                                                                 No. 97-1652

TOWN OF CHAPEL HILL; CHAPEL HILL
POLICE DEPARTMENT; RALPH V.
PENDERGRAPH, Police Chief;
STEPHEN K. RIDDLE,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CA-95-364-1)

Argued: May 6, 1998

Decided: December 2, 1998

Before NIEMEYER and MICHAEL, Circuit Judges, and
FRIEDMAN, United States District Judge for the Eastern District
of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Friedman joined. Judge Michael wrote a dissenting
opinion.

_________________________________________________________________
COUNSEL

ARGUED: Timothy Stig Nugent, NUGENT, WILSON & ASSO-
CIATES, Winston-Salem, North Carolina, for Appellants. Dan
McCord Hartzog, CRANFILL, SUMNER & HARTZOG, L.L.P.,
Raleigh, North Carolina, for Appellees. ON BRIEF: Kari L. Russ-
worm, CRANFILL, SUMNER & HARTZOG, L.L.P., Raleigh, North
Carolina, for Appellees.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

After Mark Sigman was fatally shot during a standoff with Chapel
Hill, North Carolina police officers, Sigman's parents brought suit
under 42 U.S.C. § 1983 against the police officers and the town of
Chapel Hill, alleging excessive force in violation of the Fourth,
Eighth, and Fourteenth Amendments, and under N.C. Gen. Stat.
§ 28A-18-2, alleging wrongful death. The district court granted the
defendants' motion for summary judgment on both claims, holding
that the police officer who shot Sigman acted reasonably in the cir-
cumstances confronting him. We affirm.

I

About 9:30 p.m. on May 22, 1993, Donna Solomon yelled to her
neighbors to call 911 to request help in connection with a domestic
dispute between her and her live-in boyfriend, Mark Sigman. When
Chapel Hill police officers Anthony Brooks and Jack Terry arrived at
the duplex where Solomon and Sigman lived, Solomon met them on
the front lawn and told them that Sigman was inside the house and
out of control and that she wanted the police to help calm him down.
She also told the officers that Sigman had recently been laid off from
his job and had drunk five or six beers. Although she initially told the
officers that she did not think Sigman had access to any weapons, she
later told Officer Terry that Sigman had a knife.

When the two officers approached the duplex and knocked on the
front door, Sigman told them to "get the hell away from the door."

                    2
Because Officer Terry was familiar with Sigman, he attempted to
engage Sigman in conversation. But as he did, the officers heard beat-
ing and banging at the door, and Sigman began screaming, "You had
better get on down the road," "Go get on down the road, or I'm going
to cut your head off," and "I'm going to kill her." He also broke a
glass window beside them. The officers drew their guns and retreated.
The two officers then called for the assistance of the on-duty supervi-
sor, Officer Stephen Riddle.

When Officer Riddle arrived on the scene, Officer Terry informed
him of the situation, telling him that Sigman was inside the house
enraged, was throwing things, and was armed with a knife. Donna
Solomon informed Officer Riddle that Sigman had been drinking, that
he had cut himself, and that he was destroying things inside the house.
At this point, Officers Peter Wan, John McKerlie, and Rebecca Sny-
der arrived on the scene. As the commanding officer on the scene,
Officer Riddle instructed the other officers to form a perimeter around
the house.

Officer Riddle then attempted to talk to and calm Sigman, whom
Riddle perceived to be "highly volatile." In response, Sigman called
him a "mother f--ker," and said, "I'm going to kill you." He threw
objects at Officer Riddle through the broken window and reached
through the window with his knife "to emphasize his point." Officer
Riddle then approached the window, broke the rest of the glass with
his baton, and attempted to pepper spray Sigman. But Sigman began
swinging a knife at Riddle through the window, and Riddle retreated.
Riddle then trained his police car lights on the house and called a spe-
cial emergency response team for back up. Sometime during this
interaction, Officer Riddle asked Sigman to come out, but Sigman
replied with words similar to, "If you want me, come in and get me.
But you're going to get hurt."

Before the emergency response team could arrive, Sigman stepped
out of the house, and, according to all of the police officers, he held
a knife in his right hand. He was disheveled and bloody, and the knife
he carried was a chef's knife with the tip broken off. Officers Riddle,
Brooks, and Terry yelled for Sigman to drop the knife and stop
approaching. Although they gave these warnings several times, Sig-
man ignored them, making statements such as, "Go ahead and shoot

                    3
me" and "I want to die." By this time, a crowd had gathered along the
street behind the officers some distance away and was cheering Sig-
man on. Sigman continued to walk toward Officer Riddle, holding his
knife in a threatening manner. By this time, Officers Terry, Brooks,
Riddle, and Snyder had drawn their guns. As Sigman continued to
approach and was 10 to 15 feet away from Officer Riddle, Riddle shot
Sigman twice in rapid succession, mortally wounding him. Officer
Riddle states that, at the time of the shooting, he believed that Sigman
presented a danger to his life and safety and to the life and safety of
others.

Officers Riddle and McKerlie approached Sigman, who was now
lying on the ground on his back. On the ground near Sigman's hand
was the chef's knife with a broken tip, which Officer McKerlie kicked
away from Sigman's reach. The officers found that Sigman had been
hit by one bullet in his abdomen and was now unconscious and hav-
ing trouble breathing. They administered first aid to Sigman until an
emergency medical team arrived. Sigman died in the hospital six
hours later.

According to the officers, the Chapel Hill police department trains
them in dealing with persons armed with knives. As Officer Snyder
stated, "We are trained -- twenty-one feet is the closest you let some-
one get with an edged weapon because they can cut you or kill you
before you can even fire." This policy is confirmed by a police expert,
who stated that the 21-feet standard "is based on studies which have
shown that an armed individual within twenty-one feet of an officer
still has time to get to the officer and stab and fatally wound the offi-
cer even if the officer has his weapon brandished and is prepared to
or has fired a shot."

Two years after Sigman's death, Sigman's parents filed this action,
in two counts, on behalf of themselves and as administrators of Sig-
man's estate, naming as defendants Officer Riddle, the town of
Chapel Hill, its police department, and its police chief. The first
count, brought under 42 U.S.C. § 1983, alleged violations of Sig-
man's Fourth, Eighth, and Fourteenth Amendment rights based on the
claim that Officer Riddle acted unreasonably when he shot Sigman
while he was about 15 feet away. It also alleged that the police chief
and police department trained Officer Riddle in a way that deprived

                     4
Sigman of his constitutional rights. The second count, brought under
North Carolina General Statute § 28A-18-2, alleged wrongful death
based on the claim that the defendants breached their duty to exercise
due care in dealing with Sigman. The plaintiffs demanded both com-
pensatory and punitive damages.

The defendants filed a motion for summary judgment, contending
that the officers are protected from liability in their individual capac-
ity by qualified immunity, that the officers did not use unreasonable
force, and that unreasonable force was not a custom or practice of the
police department. Among the materials submitted, the defendants
included affidavits of two police experts who, after reviewing the
record, asserted that Officer Riddle did exactly what a reasonable
police officer would have done in similar circumstances and what
police officers are trained to do in those circumstances.

In response to the defendants' motion for summary judgment and
over three-and-a-half years after Sigman's death, the plaintiffs' law-
yer located three witnesses, Kecia Roberson, Tejuana Roberson, and
Charlotte Davis, who were among the cheering crowd across the
street from Sigman's duplex on May 22, 1993. Each of these wit-
nesses signed an affidavit in identical form, on the same date, and
with the same error that they observed the incident on May 23, a day
after the incident. In their affidavits they stated that pursuant to the
police officers' numerous commands, "Sigman came out of the house,
with his hands raised"; that they "could clearly see Mark Sigman's
hands and that he had nothing in them"; that Sigman was intoxicated;
that the officers shot Sigman three steps from the front door; and that
based on their observations, "Mark Sigman represented no threat of
any kind to officer and that the officer shot him for no reason."

In granting the defendants' motion for summary judgment, the dis-
trict court stated that the affidavits of Roberson, Roberson, and Davis
were not sufficient to create a material issue of fact. The court
observed that, "at best," the affidavits created "a difference of opinion
as to what the three witnesses observed . . . and what Riddle observed
and did in reaction to the conduct of Sigman." The court held that
nothing contradicted the fact that a reasonable officer would have per-
ceived Sigman as a dangerous threat. It therefore concluded that Sig-
man's constitutional rights were not violated. The court also held that,

                     5
because Officer Riddle's actions were objectively reasonable as a
matter of law, the plaintiffs' state law claims also failed.

This appeal followed.

II

Sigman's parents contend that the affidavits of the three witnesses,
Roberson, Roberson, and Davis, create a genuine issue of material
fact and therefore that the district court erred in granting the defen-
dants' motion for summary judgment. They argue that the affidavits
create factual disputes as to whether Sigman had a knife when he was
shot, as to whether Officer Riddle's perception that Sigman had a
knife was reasonable, and as to whether Sigman was a threat to the
officers when he was shot. They also contend that the town of Chapel
Hill, the police department, and the police chief should be subject to
liability because they improperly trained their officers to shoot when
an armed person comes within 21 feet of them.

We address first the question of whether Sigman's parents created
a factual dispute with respect to the issue of qualified immunity.

Police officers are protected by qualified immunity when perform-
ing their duties within the scope of their employment insofar as their
conduct does not breach "clearly established statutory or constitu-
tional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Because qualified
immunity is an immunity from suit, and not merely a defense to lia-
bility, courts must scrutinize and dismiss appropriate cases on quali-
fied immunity grounds early in the litigation. See Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). Indeed, when a district court declines to
give a qualified immunity defense a hard look at an early stage in the
litigation, either pursuant to a Rule 12(b)(6) motion to dismiss or a
summary judgment motion, it risks the forfeiture of some of the pro-
tections afforded by the defense because the immunity includes "an
entitlement not to stand trial or face the other burdens of litigation,
conditioned on the resolution of the essentially legal question."
Behrens v. Pelletier, 516 U.S. 299, 306 (1996) (quoting Mitchell, 472
U.S. at 526); see also Pittman v. Nelms, 87 F.3d 116, 119 (4th Cir.
1996) ("One of the purposes of immunity . . . is to spare a defendant

                    6
not only unwarranted liability, but unwarranted demands customarily
imposed upon those defending a long drawn out lawsuit" (quoting
Siegert v. Gilley, 500 U.S. 226, 232 (1991))).

In the case where a plaintiff alleges that a police officer has uncon-
stitutionally used deadly force, the officer's actions are judged on a
standard of objective reasonableness. See Graham v. Connor, 490
U.S. 386, 396-97 (1989). And in determining objective reasonable-
ness, the court must consider what a "reasonable officer on the scene"
would have done, taking into account such factors as"the severity of
the crime at issue, 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." Id. at 396. This evalua-
tion is guided by the pragmatic considerations of the moment and not
by those that can be hypothesized from an armchair. Thus,

          [t]he "reasonableness" of a particular use of force must be
          judged from the perspective of a reasonable officer on the
          scene, rather than with the 20/20 vision of hindsight. . . .
          The calculus of reasonableness must embody allowances for
          the fact that police officers are often forced to make split-
          second judgments -- in circumstances that are tense, uncer-
          tain, and rapidly evolving -- about the amount of force that
          is necessary in a particular situation.

Id. at 396-97.

On the record before us, it is undisputed that, at the moment that
Sigman stepped out of the house, Officer Riddle had ample knowl-
edge of Sigman's dangerousness. Riddle knew that Sigman had a
knife and was enraged inside the house, cutting himself. He knew that
Sigman had been drinking and throwing things. He knew that Sigman
was willing to use his knife on others because Sigman had slashed at
him through the window. He knew that Sigman had made threats on
his life, on his fellow officers' lives, and on Donna Solomon's life.
And he knew that Sigman had not previously responded to his
requests to calm down or come out of the house. Furthermore, when
Sigman emerged from the house, he did not obey the officers' com-
mands. Rather, he took a number of steps towards Officer Riddle.
Riddle, and all of the officers at the scene, perceived that Sigman was

                     7
holding a knife as he moved forward towards Officer Riddle, and the
crowd behind Riddle was "taunting [Sigman] to continue." It is undis-
puted that the atmosphere was volatile and threatening. These circum-
stances are exactly the kind that a qualified immunity analysis
requires us to consider. See Graham, 490 U.S. at 396-97; Elliott v.
Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) ("The 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"). Faced with this tense and dangerous situation, we con-
clude that Officer Riddle reasonably perceived a threat to his safety
and the safety of others and that his response therefore was objec-
tively justified and reasonable.

The plaintiffs argue that the affidavits of the Robersons and of
Davis create a material issue of fact as to whether Officer Riddle rea-
sonably perceived that Sigman had a knife. But "[i]t will nearly
always be the case that witnesses . . . differ over what occurred. That
inevitable confusion, however, need not signify a difference of triable
fact. What matters is whether the officers acted reasonably upon the
reports available to them and whether they undertook an objectively
reasonable investigation with respect to that information in light of
the exigent circumstances they faced." Gooden v. Howard County,
954 F.2d 960, 965 (4th Cir. 1992) (en banc) (emphasis added). The
three witnesses in this case were located across the street amidst a
crowd cheering Sigman on, as if the confrontation were a game or
contest.* Their observations cannot effectively impact the credibility
_________________________________________________________________
*The record shows that the incident occurred in front of the house after
Sigman came out of the front door. The officers secured the streets,
blocking traffic and moving the crowd across the street, which was
observing from a rise across the street, probably more than 50 feet away.
The house was over 30 feet from the curb. J.A. 346T. Because the sides
of the house and the streets around it were secured, any observer would
have been from among the crowd across the street. J.A. 163, 169, 195,
237, 269, 295. Indeed, all three of the witnesses claimed to observe from
across the street, stating, "I was living in Pritchard Park across from
Mark Sigman when I witnessed police arrive," etc. It was this crowd that
cheered Sigman on. As Officer Snyder testified:

          Q. Did it appear to you that the crowd of onlookers was some-
          how encouraging him in advancing when he was doing that
          -- towards Riddle?

                    8
of Officer Riddle's testimony (or that of all five other officers on the
scene) as to his perceptions of what he saw from an entirely different
-- and closer -- vantage point, especially when Officer Riddle had
special knowledge of Sigman's dangerousness and of the threats that
Sigman had made on his life.

Furthermore, even if the affidavits can be considered for what Offi-
cer Riddle perceived and thereby cast doubt on whether Riddle saw
something that was not there, a police officer need not, in all circum-
stances, "actually detect the presence of an object in a suspect's hands
before firing on him." McLenagan v. Karnes , 27 F.3d 1002, 1007 (4th
Cir. 1994). The affidavits do not dispute the fact that a large knife was
recovered from the ground near Sigman after he was felled by shots.
Notwithstanding the possibility of a dispute about whether a knife
was actually in Sigman's hand at the moment of the shooting, Officer
Riddle, and the other officers present, acted on the perception that
Sigman had a knife in his hand. Where 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, we conclude that the officer's
decision to fire is not unreasonable. Accordingly, we reject the argu-
ment that a factual dispute about whether Sigman still had his knife
at the moment of shooting is material to the question of whether Offi-
cer Riddle is entitled to the protections of qualified immunity in the
particular circumstances of this case.

Because we conclude that Officer Riddle's actions were reason-
able, we need not address in any great length the plaintiffs' federal
claims against the police department, the chief of police, and the town
of Chapel Hill because "[i]n the absence of any underlying use of
_________________________________________________________________

            A. Yes, sir. Yes, sir. They were screaming and yelling. They
            had all crowded up on top of the hill at Pritchard Park and
            were screaming and yelling, you know. I remember feeling
            that they were taunting him to continue instead of to give
            up.

J.A. 305.

                      9
excessive force . . ., liability cannot be placed on either the non-
shooting officers, a supervisor, or the City." Hinkle v. City of
Clarksburg, 81 F.3d 416, 420 (4th Cir. 1996). We do note, however,
that municipal liability can only ensue when an injury is caused by
the execution of a municipal policy or custom when that policy or
custom is a result of "policymaker fault of at least the degree of delib-
erate indifference to or reckless disregard for the constitutional rights
of persons within police force jurisdiction." Spell v. McDaniel, 824
F.2d 1380, 1390 (4th Cir. 1987). The only municipal policy that the
plaintiffs have identified is the department's training rule that an offi-
cer may use deadly force to stop a threatening individual armed with
an edged weapon when that individual comes within 21 feet. As the
basis for this rule, the department identified studies which have
shown that an assailant with an edged weapon within 21 feet of an
armed police officer can kill the officer before the officer can get off
a disabling shot.

Sigman's parents argue that this policy amounts to"deliberate
indifference" and that it makes a constitutional violation "almost
bound to happen." See Spell, 824 F.2d at 1390. There are two reasons
why these arguments fail, however. First, the plaintiffs have not pro-
duced a shred of evidence that the policy is unreasonable. They have
not called an expert, adduced any testimony, or in any way contested
or brought into dispute the department's reasons for the policy. With-
out such evidence, no factual dispute is created. And second, the
plaintiffs' whole case rests on the proposition that Sigman was not
armed with an edged weapon. If he was not so armed, then this policy
had no relevance to Sigman's death.

Because we conclude that Officer Riddle's actions were reason-
able, it follows that the other defendants cannot be liable under the
federal causes of action. Therefore we need not reach the defendants'
other asserted federal defenses.

III

The plaintiffs contend finally that the defendants should be subject
to a state law wrongful death action. They argue that the defendants
waived their immunity under North Carolina law by taking out insur-
ance and that Officer Riddle's actions were at least negligent, creating

                     10
liability for both the officer and the town of Chapel Hill. However,
because we have concluded that Officer Riddle's actions were, as a
matter of law, reasonable in the circumstances of this case, they can-
not be negligent or wrongful, as required by N.C. Gen. Stat. § 28A-
18-2(a).

Because the plaintiffs have no state law claim, we need not reach
the issue of whether state governmental immunity was waived.

AFFIRMED

MICHAEL, Circuit Judge, dissenting:

This case comes to us on appeal from the grant of summary judg-
ment for the Town of Chapel Hill, Officer Stephen Riddle, and all
other defendants. Consequently, our task is a narrow one. We must
decide whether the evidence offered by the plaintiffs, the parents of
Mark Sigman, is legally sufficient to reach a jury. We must accept the
plaintiffs' evidence as true and make all justifiable inferences in their
favor. With this narrow task in mind, this case boils down to a single
question: would a reasonable police officer have perceived a threat of
serious harm to himself or others that justified firing on Sigman after
he walked out of his house. The majority apparently believes that
Officer Riddle was justified as a matter of law in using deadly force
on the facts of this case. Tempting as it is to grant summary judgment
to the police, there is enough here for a jury to evaluate the credibility
of three eyewitnesses who say that Sigman had his hands up and they
were empty when Officer Riddle shot him. In other words, on the
present record there is a sufficient factual dispute about the threat
posed by Sigman to create a genuine issue for trial. 1 I respectfully dis-
sent.
_________________________________________________________________

1 On remand I would give the defendants the opportunity (before trial)
to expand the record in an effort to support a renewed motion for sum-
mary judgment. See part III, infra.

                    11
I.

A.

Our review of an award of summary judgment is de novo. See
Motor Club of America Ins. Co. v. Hanifi, 145 F.3d 170, 174 (4th Cir.
1998). If the papers filed in district court show a"genuine issue as to
any material fact," summary judgment is inappropriate. See Fed. R.
Civ. P. 56(c); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-51
(1986). In other words, when the parties dispute a material fact and
"the evidence is such that a reasonable jury could return a verdict for
the nonmoving party," summary judgment must be denied. See
Anderson, supra at 248; see also Motor Club, 145 F.3d at 174. In
determining whether a reasonable jury could find for the nonmoving
party, a court must "view[ ] the facts and the inferences drawn there-
from in the light most favorable to the nonmoving party." See Motor
Club, 145 F.3d at 174; Porter v. United States Alumoweld Co., 125
F.3d 243, 245 (4th Cir. 1997). "[T]he judge's function is not himself
to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial." Anderson, 477
U.S. at 249. Accordingly, the nonmoving party's"version of any dis-
puted issue of fact . . . is presumed correct." See Eastman Kodak Co.
v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). With these
controlling principles in mind, I now turn to the facts in this case.

B.

On May 22, 1993, Mark Sigman had lost his job, was drunk and
belligerent, and had threatened to harm himself, his girlfriend, and the
police. As the majority recounts, Sigman had locked himself in his
house, had repeatedly cut himself with a knife, had slashed at Officer
Riddle with a knife as Riddle tried to pepper spray him through a win-
dow, and had refused police instructions to come outside. But the
majority's version of the facts is flawed from the point Sigman
opened his front door to come out of the house. From that point the
record reveals contradictory versions of the facts.

It is true that Officer Riddle testified in deposition that Sigman
came out of the house with a chef's knife in his right hand. He also
testified that Sigman held the knife "out in front of him" and "below

                    12
his shoulder." Riddle was standing between the curb of the road and
a line of trees when Sigman left the house. Riddle claims that he
yelled to Sigman, "Drop the knife" and "don't come forward." Riddle
then took a defensive position behind a tree and drew his revolver.
According to Riddle, Sigman did not halt but kept walking forward.
Then, Riddle claims that he fired at Sigman when Sigman, armed
with the knife, was ten to fifteen feet away from him.

The other police officers on the scene also testified that Sigman
was armed with a knife, but their stories are somewhat inconsistent.2
The variation in the officers' description of the knife and the manner
in which Sigman held it might affect the credibility of their stories if
the evidence was weighed by a jury. But that is beside the point for
now. At this stage we must accept as true the three affidavits of Kecia
Roberson, Tajuana Roberson, and Charlotte Davis. 3 Each affiant
_________________________________________________________________
2 For example, although Riddle testified that Sigman held the knife
below his shoulder, Officer Brooks testified that he held it "up by his
head in his right hand" with the blade pointing forward. Officer Terry
stated that the knife was held above Sigman's shoulder, Officer McKer-
lie said it was held about shoulder height, and Officer Snyder recalled
that Sigman held the knife above his head and was waving it around in
an aggressive manner. Similarly, their description of the knife varies a
great deal. Officer Terry stated that the knife was nine inches or more in
length with a "very wide blade," adding that it was "not something that
you would mistake." Nevertheless, McKerlie believed the knife was only
six or seven inches long, and Snyder testified that it was "a long thin
knife -- not very wide" and was approximately twelve to fourteen inches
long. After Sigman was shot, a knife was found on the scene by a police
investigator who estimated that it was six inches in length.
3 While the majority suggests that the three lay witnesses were a part
of the crowd that was "cheering Sigman on, as if the confrontation were
a game or contest," ante at 8, there is no evidence that these witnesses
encouraged Sigman to be defiant. The record reveals simply that Rober-
son, Roberson, and Davis witnessed the shooting.

It appears that these witnesses were on the other side of the residential
street bordering Sigman's residence at the time of the shooting, although
the record does not specify their exact location. While the majority
implies that these witnesses were too far away to observe the shooting
accurately, see ante at 4, 8-9, the affidavits contradict this. Each affidavit
states that the witness "could clearly see Mark Sigman's hands." The evi-
dence we have now would allow a reasonable jury to conclude that
bystanders across the street were in a position to see the shooting.

                     13
states that "Sigman came out of the house, with his hands raised. I
could clearly see Mark Sigman's hands and that he had nothing in
them." For purposes of the summary judgment motion, we must
accept this as true. See Eastman Kodak, 504 U.S. at 456; Anderson,
477 U.S. at 249.

We also must accept as true the three witnesses' statements that
Mark Sigman was "clearly intoxicated and staggering" when he exited
the house and that he "was not more than three steps from the front
door when the officer shot him." This account is consistent with Offi-
cer Terry's testimony that Sigman took two to four steps and stopped
before he was shot. The deposition testimony of Officers Terry, McK-
erlie, and Snyder add that Sigman was walking "fairly slowly," "slow-
[ly]," or "very slow[ly]," before he was shot.

For the purposes of summary judgment, the facts can therefore be
summarized as follows. After a contentious and tense standoff with
the police, in which Sigman threatened the police and was repeatedly
instructed to come out of the house, Sigman stepped through the front
door. His empty hands were clearly visible and raised in the air.
Although the officers yelled at Sigman to halt, Sigman walked for-
ward slowly, taking approximately three steps before he paused. As
he began to move again, Officer Riddle shot him twice, fatally
wounding him. It is under this set of facts that we must evaluate the
case.

II.

The basic issue of qualified immunity is simple. Law enforcement
officers are entitled to immunity from suit whenever their use of
deadly force is objectively reasonable. See Graham v. Connor, 490
U.S. 386, 394-97 (1989) (Fourth Amendment not violated by objec-
tively reasonable use of force); Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) (qualified immunity exists when "conduct does not violate
clearly established . . . constitutional rights of which a reasonable per-
son would have known"). Such force is appropriate when an objec-
tively reasonable officer could believe that the suspect poses a threat
of serious physical harm to himself or others. See Graham, 490 U.S.
at 397; Tennessee v. Garner, 471 U.S. 1, 11 (1985) (deadly force).
The reasonableness of this perception, and not whether the perception

                     14
is ultimately correct, determines whether the officer is entitled to
qualified immunity from civil lawsuits. See Gooden v. Howard
County, 954 F.2d 960, 965 (4th Cir. 1992) (en banc); see also
Graham, 490 U.S. at 396.

The majority today affirms the district court's dismissal on quali-
fied immunity with two alternative rulings. First, it holds that the affi-
davits of three witnesses who saw Sigman exit his house with empty
hands in the air "cannot effectively impact the credibility of Officer
Riddle's testimony . . . as to his perceptions." See ante at 8-9 (empha-
sis added). Alternatively, the majority holds that whether Sigman had
a knife in his hand when he came out of the house is"[im]material"
to the question of whether Officer Riddle reasonably perceived a
threat of serious physical harm to himself or others. See ante at 9. I
believe that the majority errs in both holdings.

A.

The majority impermissibly displaces the role of the jury by weigh-
ing the credibility of Riddle's deposition testimony against the affida-
vits of three eyewitnesses. It is hornbook law that at summary
judgment "the judge's function is not himself to weigh the evidence
and determine the truth of the matter but to determine whether there
is a genuine issue for trial." See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). Indeed, we must accept the three eyewitness
affidavits as true, and we must draw all justifiable inferences in favor
of the plaintiffs.

Although courts must determine whether an officer's perception of
a threat was reasonable, the qualified immunity inquiry "focuses on
the objective facts" of the case in order to measure the defendant's
actions against those of a reasonable police officer in the same cir-
cumstances. See Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994)
(emphasis added). Specifically, we must ask if the defendant's "per-
ceptions of the objective facts" were reasonable. See id. For example,
an officer under certain circumstances could reasonably (but mis-
takenly) perceive that a beer bottle was a knife. See Slattery v. Rizzo,
939 F.2d 213, 215 (4th Cir. 1991). Likewise, a reasonable officer
might perceive that an armed suspect intended to shoot him even

                     15
though the suspect claimed that he was handing over his gun in sur-
render. See Wilson v. Meeks, 52 F.3d 1547, 1550 (10th Cir. 1995).

A very different set of facts is presented here, however. Three eye-
witnesses have come forward, swearing that they"could clearly see
Mark Sigman's hands and that he had nothing in them." Officer Rid-
dle and his colleagues swear that Sigman had a knife. The officers
and the eyewitnesses were all in a position to see. A determination of
what was actually happening during the event is therefore necessary
to evaluate the reasonableness of Officer Riddle's perceptions and
actions. Vathekan v. Prince George's County, 154 F.3d 173, 179-80
(4th Cir. 1998); Rainey v. Conerly, 973 F.2d 321, 324 (4th Cir. 1992).
This requires a trial to sort through the conflicting versions of events
told by the officers and the eyewitnesses. See Taylor v. Farmer, 13
F.3d 117, 120 (4th Cir. 1993). This determination of what happened
depends on an assessment of the credibility of the respective wit-
nesses, a matter that is inappropriate for resolution on summary judg-
ment. Rainey, 973 F.2d at 324.

We have vastly different stories about what happened in the
moments before Sigman was shot, and it is not our place to evaluate
the credibility of the competing versions. Put simply, the plaintiffs
have presented affidavits which, if true, undermine the police offi-
cers' claim to qualified immunity. The affidavits create a genuine dis-
pute over a material fact.

B.

The majority also errs in its alternative ruling that whether Sigman
had a knife in his hand at the moment of shooting is immaterial to the
question of whether Riddle reasonably perceived a threat of serious
bodily harm to himself or others. Under the facts of this case, the
issue is quite material to the reasonableness of Riddle's perception of
a threat justifying deadly force.

The majority bases its ruling on a quotation from McLenagan v.
Karnes, 27 F.3d 1002 (4th Cir. 1994), that is out of context. See ante
at 9. A quick review of McLenagan reveals that this quotation has no
application to this case. In McLenagan a sheriff's deputy (Smith) was
in an office building guarding two seated arrestees who were hand-

                    16
cuffed with their hands in front of them. See 27 F.3d at 1005. When
one of the arrestees jumped up and ran into another room that Smith
knew contained a loaded revolver, Smith ran from the room "waving
her arms in the air and yelling, `The man has got a gun!'" Id.
McLenagan, the other arrestee, ran after Deputy Smith in an effort to
escape from danger. Because McLenagan was handcuffed, he ran in
a crouched position that concealed his hands. See id. As Deputy
Smith ran down a hallway with McLenagan close behind, she passed
Officer Karnes and again yelled, "`The man has got a gun!'" See id.
Karnes reacted immediately by drawing his gun and shooting
McLenagan, even though he could not see if McLenagan had a
weapon. In this context this court said, "we do not think it wise to
require a police officer, in all instances, to actually detect the presence
of an object in a suspect's hands before firing on him." Id. at 1007.
While this conclusion was appropriate on McLenagan's facts, it is not
appropriate on the facts here.

In this case we must accept that Sigman came out of the house with
his hands visible, empty, and raised in the air. Moreover, Sigman did
not run out of the house in a threatening manner. The police officers
on the scene agree that he walked out of the house slowly or very
slowly. Unlike McLenagan where the officer"did not see a gun in
McLenagan's hands" and "could not confirm that McLenagan was
unarmed," id. at 1007, Officer Riddle was in a position to determine
whether Sigman was armed with a knife in his hands. Consequently,
the majority's reliance on McLenagan is misplaced.

I cannot accept the majority's conclusion that whether Sigman was
actually armed is immaterial to whether Officer Riddle's actions were
objectively reasonable. Surely any reasonable police officer would
consider this to be a critical factor in assessing the threat in the facts
and circumstances of this case. I would hold that the presence or
absence of a weapon (or at least something resembling a weapon) is
material to the question of whether a reasonable officer would per-
ceive that Sigman posed a serious threat.

III.

On the record before us, I would reverse the district court's award
of summary judgment to the defendants. I do note that the three

                     17
bystanders who say, in short affidavits, that Sigman was unarmed
have not been deposed. On remand I would permit the defendants to
depose these witnesses. Thereafter (and before any trial), the defen-
dants could renew their motion for summary judgment if they have
grounds to assert that a fuller account by the lay witnesses reveals that
there is no genuine issue of material fact. On the basis of what we
now know, however, I must respectfully dissent.

                     18
