UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEONARD EDMUNDSON, Administrator
of the Estate of James Richard
Turnage, Deceased; ALENE ROUSE
YELVERTON; ROBERT YELVERTON;
CRAIG YELVERTON; KAREN BENNETT;
KATHY EDMUNDSON; LIBBY PEELE;
ERIN JANNELL SHIRLEY, a minor, by
and through her guardian, Janice
Stocks; JANICE STOCKS, as Guardian
ad Litem for the above,
Plaintiffs-Appellees,

v.

GRAYHAM KEESLER, individually and
in his official capacity as an officer
of the City of Goldsboro Police
Department; DANIEL PETERS,
                                         No. 95-3125
individually and in his official
capacity as an officer of the City of
Goldsboro Police Department; JAMES
P. MORGAN, individually and in his
official capacity as Police Chief of
the City of Goldsboro Police
Department; CHESTER HILL,
individually and in his official
capacity as the Police Chief for the
City of Goldsboro Police
Department,
Defendants-Appellants,

and

THE CITY OF GOLDSBORO POLICE
DEPARTMENT; CITY OF GOLDSBORO,
Defendants.
LEONARD EDMUNDSON, Administrator
of the Estate of James Richard
Turnage, Deceased; ALENE ROUSE
YELVERTON; ROBERT YELVERTON;
CRAIG YELVERTON; KAREN BENNETT;
KATHY EDMUNDSON; LIBBY PEELE;
ERIN JANNELL SHIRLEY, a minor, by
and through her guardian, Janice
Stocks; JANICE STOCKS, as Guardian
ad Litem for the above,
Plaintiffs-Appellees,

v.

CITY OF GOLDSBORO,
Defendant-Appellant,

and
                                         No. 95-3132
GRAYHAM KEESLER, individually and
in his official capacity as an officer
of the City of Goldsboro Police
Department; DANIEL PETERS,
individually and in his official
capacity as an officer of the City of
Goldsboro Police Department; JAMES
P. MORGAN, individually and in his
official capacity as Police Chief of
the City of Goldsboro Police
Department; CHESTER HILL,
individually and in his official
capacity as the Police Chief for the
City of Goldsboro Police
Department; THE CITY OF GOLDSBORO
POLICE DEPARTMENT,
Defendants.

                 2
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-94-467-5-BO(3))

Argued: September 26, 1996

Decided: November 27, 1996

Before HALL, NIEMEYER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Vacated and remanded with instructions by unpublished opinion.
Judge Hamilton wrote the majority opinion, in which Judge Niemeyer
joined. Judge Hall wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Kenneth Ray Wooten, WARD & SMITH, P.A., New
Bern, North Carolina, for Appellants. Zebulon Dyer Anderson,
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL &
JERNIGAN, L.L.P., Raleigh, North Carolina, for Appellees. ON
BRIEF: John R. Green, WARD & SMITH, P.A., New Bern, North
Carolina, for Appellants. James K. Dorsett, III, Steven M. Sartorio,
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL &
JERNIGAN, L.L.P., Raleigh, North Carolina, for Appellees.

_________________________________________________________________

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

_________________________________________________________________

                    3
OPINION

HAMILTON, Circuit Judge:

Pursuant to 42 U.S.C. § 1983, the plaintiff/appellee, Leonard
Edmundson, administrator of the estate of James Richard Turnage,
sued the defendants/appellants, Officers Grayham Keesler and Daniel
Peters, alleging that Keesler and Peters deprived Turnage of his rights
guaranteed by the Fourth and Fourteenth Amendments when Turnage
was shot while attempting to flee. The plaintiff also alleged that the
defendants/appellants, Chester Hill, Chief of Police of the Goldsboro
Police Department, and James Morgan, former Chief of Police of the
Goldsboro Police Department, were liable for the shooting of Turnage
under a theory of supervisory liability, and that the defendant/
appellant, the City of Goldsboro, North Carolina, was independently
liable for providing its officers inadequate training. See 42 U.S.C.
§ 1983.1 The defendants appeal the district court's denial of their
motion for summary judgment on the plaintiff's § 1983 claims. For
reasons that follow, we vacate the district court's order denying the
defendants' motion for summary judgment on the plaintiff's § 1983
claims and remand with instructions to enter judgment in favor of the
defendants on these claims. Because all of the federal claims are with-
out merit, we instruct the district court on remand to dismiss without
prejudice the remaining state-law claims.

I

The evidence submitted by the defendants in support of their
motion for summary judgment revealed the following. According to
Keesler and Peters, on July 2, 1992, they went to the Franklin Baking
Company in Goldsboro, North Carolina, to arrest James Richard Tur-
nage, a Franklin Baking Company employee, for felony possession
with intent to distribute and distribution of marijuana. When the offi-
cers presented Turnage with the arrest warrant, Turnage asked if he
could finish unloading his delivery truck. The officers acquiesced.
_________________________________________________________________
1 In addition to the constitutional claims, several state law claims were
raised by the estate and members of Turnage's family, none of which are
before the court.

                    4
While Turnage was unloading his truck, he ran from the bakery
warehouse to his personal pickup truck, which was located in the
gravel parking lot adjacent to the warehouse. A fence surrounded the
parking lot, with one gate providing the only means of exiting the lot.

Seeing Turnage run for his truck, Keesler and Peters ran after him,
calling for him to stop. Refusing to heed the officers' command, Tur-
nage got into his truck, locked the doors, and started the engine. Tur-
nage then backed up his truck in a semi-circular manner so that the
front of his truck was facing the gate exiting the parking lot. When
the truck stopped, Keesler was positioned in front of the truck, toward
the passenger's side, and Peters was positioned near the driver's side
door.

As Turnage accelerated quickly forward and slightly to the right,
toward the exit, the truck struck Keesler but did not knock him down.
At this point, Keesler stood with his chest and left hand on the hood
and with his gun pointed at Turnage. To avoid being run over by the
truck, Keesler continued to back up as the truck accelerated forward.
When Keesler perceived that "Turnage was not going to stop, but that
he was going to continue accelerating into [him]," (J.A. 182), Keesler
fired one shot through the windshield. Believing that Keesler's life
was in danger, Peters fired two shots through the driver's side win-
dow.

After the shots, the truck proceeded through the gate, into the
street, and stopped after it hit a pole. As a result of the injuries he
received from the shots, Turnage died.

The defendants also submitted the affidavits of two witnesses to the
shooting who confirmed the officers' account. One witness, E.T.
Franklin Sr., observed Keesler in front of Turnage's truck and firing
only after Turnage drove toward Keesler. Franklin also observed
Peters on the driver's side of the truck and firing his shots after Kees-
ler's. Another witness, Jimmy Stewart, observed Keesler in front of
Turnage's truck with his left hand on the hood as Turnage drove for-
ward toward Keesler. Stewart also averred that Keesler fired his
weapon as the truck moved toward Keesler.

The defendants also submitted the affidavits of two experts who
examined and evaluated the physical evidence. Their examination and

                     5
evaluation of the physical evidence also confirmed the officers'
account. Tire impressions on the gravel parking lot revealed that the
truck accelerated quickly backward and then accelerated forward.
Ballistic reports revealed that one bullet was fired from Keesler's
weapon, and two from Peters' weapon. The physical evidence showed
that the path of one bullet was from a position in front of and slightly
to the left of the truck's front center. The physical evidence also
showed that one bullet came from a position slightly in front of the
driver's side door and another from a position beside the driver's side
door. Finally, Keesler's left palm print was found on the passenger
side of the hood of the truck.

In response to the defendants' motion for summary judgment, the
plaintiff submitted affidavits from two of Turnage's supervisors, Lio-
nel Ginn and William Tyson. According to Ginn, as Turnage's truck
moved backwards in a semi-circular direction, Keesler followed the
truck, placing him in a position two to three feet from the front corner
on the driver's side of the truck. As the truck moved forward and to
the right toward the exit, Keesler fired his weapon at Turnage and
then ran beside the truck shooting again twice into the driver's side.
According to Tyson, as Turnage's truck moved forward and to the
right toward the exit, Keesler "pushed off the truck and moved over
to the driver's side of the truck out of the path of the truck." (J.A.
313). Keesler then fired into the truck through the driver's side win-
dow. According to Ginn and Tyson, Peters was neither behind the
truck nor in their field of vision. As the truck left the lot, Ginn and
Tyson saw Peters near the front gate of the parking lot.

The district court denied the defendants' motion for summary judg-
ment based on qualified immunity, concluding that the affidavits of
the plaintiff's two eyewitnesses created "a genuine issue of material
fact critical to the legal determination of whether reasonable officers
would have known that their actions were unconstitutional." (J.A.
324). The defendants appeal.2
_________________________________________________________________
2 Because this interlocutory appeal concerns the issue of whether, based
on the facts viewed in a light most favorable to the plaintiff, the officers'
conduct violated clearly established law, we have jurisdiction. See
Behrens v. Pelletier, 116 S. Ct. 834 (1996); Johnson v. Jones, 115 S. Ct.
2151 (1995).

                    6
II

We first address the defendants' contention that Keesler and Peters
were entitled to qualified immunity. Under the doctrine of qualified
immunity, government officials are immune from liability "as long as
their actions could reasonably have been thought consistent with the
rights they are alleged to have violated." Anderson v. Creighton, 483
U.S. 635, 638 (1987). Consequently, qualified immunity attaches
when the government actor's conduct "does not violate clearly estab-
lished statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A qualified immunity defense is established if: (1) the government
actor's action did not violate clearly established law, or (2) it was
objectively reasonable for the government actor to believe that his
action did not violate such law. See Anderson , 483 U.S. at 641;
Harlow, 457 U.S. at 818-19.

It is clearly established that under the Fourth Amendment individu-
als have the right to be free of excessive force and that there are con-
stitutional limitations on the use of deadly force during the course of
an arrest. See Graham v. Connor, 490 U.S. 386, 395-96 (1989). Thus,
Keesler and Peters' entitlement to qualified immunity turns on an
assessment of the objective reasonableness of their belief that their
conduct did not violate Turnage's right to be free of excessive force.

In determining whether the force used to effect a seizure was rea-
sonable, and, therefore, not excessive, we apply an objective reason-
ableness test that examines "the facts and circumstances of each
particular case," including, among other factors,"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.

The objective reasonableness test is met if "officers of reasonable
competence could disagree" on the legality of the defendant's actions.
Malley v. Briggs, 475 U.S. 335, 341 (1986). The Supreme Court has
made it clear that an officer's actions are not to be assessed with
20/20 hindsight. Graham, 490 U.S. at 396. Rather, "qualified immu-
nity serves to protect police from liability and suit when they are

                    7
required to make on-the-spot judgments in tense circumstances."
Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995).

Here, the facts in a light most favorable to the plaintiff demonstrate
that Keesler, while positioned within two or three feet of a rapidly
moving truck, fired all three shots, and Peters was at no time in the
vicinity of the truck. Even in this light, the officers were entitled to
qualified immunity because at the moment when Keesler used deadly
force against Turnage, it was objectively reasonable for Keesler to
view the use of deadly force as not excessive when considering the
extremely dangerous circumstances confronted by the officers--a
rapidly moving truck driven by a fleeing felon and Keesler's close
proximity to the truck. Indeed, in similar circumstances, we have
upheld the use of deadly force.

For example, in Drewitt v. Pratt, after observing Drewitt driving
recklessly, Officer Pratt ran toward the car with his gun drawn, order-
ing Drewitt to stop. 999 F.2d 774, 776 (4th Cir. 1993). Instead,
Drewitt sped up, catching Pratt on the hood of the car. Id. At that
point, Pratt fired. Id. We affirmed the district court's holding that
Pratt's actions were objectively reasonable and, therefore, Pratt was
entitled to qualified immunity. Id. at 780.

We reached a similar result in Pittman v. Nelms , 87 F.3d 116 (4th
Cir. 1996). There, the plaintiff was a passenger in a vehicle driven by
Timothy Hudson. Officers Nelms and Banks approached the vehicle
and confronted Hudson. As Hudson attempted to drive away, Banks's
arm became entangled inside the window of the vehicle. Banks was
dragged twenty-five to thirty feet before his arm finally came free,
and he was thrown aside. Id. at 118. Banks then rose and fired at the
car. Nelms, who could see that Banks had not been run over and
killed, also shot at the vehicle when it was approximately twenty-five
feet away; the shot that Nelms fired struck Pittman. Id. at 120. We
held that the force used by Officer Nelms was not excessive, and,
therefore, Nelms properly was entitled to qualified immunity. Id.

This case is nearly indistinguishable from Drewitt and Pittman.
Similar to Drewitt and Pittman, this case involved circumstances that
were "tense, uncertain, and rapidly evolving." Graham, 490 U.S. at
397. In addition, as in Drewitt and Pittman, an officer, here Keesler,

                     8
was in serious danger of injury--Keesler was within two to three feet
of a rapidly moving truck. The law does not require that an officer be
struck before he can discharge his weapon in an effort to protect him-
self from harm. Indeed, similar perceptions of danger have served as
a basis for qualified immunity even where those perceptions were
mistaken. See, e.g., Slattery v. Rizzo , 939 F.2d 213, 216 (4th Cir.
1991) (holding that officer's perception that suspect was reaching for
gun reasonable when suspect was in fact holding only a bottle).

Under the circumstances confronted by Keesler, "an objectively
reasonable officer certainly could have believed that his decision to
fire was legally justified." Pittman, 87 F.3d at 120. Accordingly,
Keesler was entitled to qualified immunity.

With regard to Peters, plaintiff's evidence places him at a distance
from the events and suggests that he did not apply any force to Tur-
nage. Because Keesler was entitled to qualified immunity, Peters, as
a non-shooter, was as well. See Hinkle v. City of Clarksburg, 81 F.3d
416, 420 (4th Cir. 1996) ("In the absence of any underlying use of
excessive force against Wilson, liability cannot be placed on either
the non-shooting officers, a supervisor, or the City.").3

III

Our conclusion that the officers acted reasonably is dispositive of
the § 1983 claims against Hill, Morgan, and the City of Goldsboro.
In the absence of any constitutional violation by the officers, the
claims against Hill, Morgan, and the City of Goldsboro fail. See id.;
Temkin v. Frederick County Comm'rs, 945 F.2d 716, 724 (4th Cir.
1991) (holding that a claim of inadequate training cannot be estab-
lished under § 1983 absent a finding of a constitutional violation by
the person being supervised), cert. denied, 502 U.S. 1095 (1992); see
also Belcher v. Oliver, 898 F.2d 32, 36 (4th Cir. 1990) ("Because . . .
there was no constitutional violation we need not reach the question
_________________________________________________________________
3 We note that with respect to Peters, we would reach the same result
even if he discharged his weapon, which is the case under the defen-
dants' version of the facts. Under Drewitt and Pittman, in light of the
dynamic circumstances confronted by the officers, Peters could have rea-
sonably believed that Keesler was in imminent danger.

                    9
of whether a municipal policy was responsible for the officers'
actions . . . . Plaintiff's effort to turn this lawsuit into one for inade-
quate training of personnel . . . is unavailing where there has been no
underlying constitutional infraction.").

IV

For reasons stated herein, we vacate the district court's order deny-
ing the defendants' motion for summary judgment on the plaintiff's
§ 1983 claims and remand with instructions to enter judgment in
favor of the defendants on these claims. On remand, we instruct the
district court to dismiss the state-law claims without prejudice. See
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly,
if the federal claims are dismissed before trial, . . . the state claims
should be dismissed as well."); Taylor v. Waters, 81 F.3d 429, 437
(4th Cir. 1996) (directing dismissal without prejudice of state-law
claims on remand after holding district court erred in failing to grant
summary judgment to the defendant on the plaintiff's§ 1983 claims
on the basis of qualified immunity).

VACATED AND REMANDED WITH INSTRUCTIONS

HALL, Circuit Judge, dissenting:

"Interlocutory appeals . . . are the exception, not the rule." Johnson
v. Jones, 115 S. Ct. 2151, 2154 (1995). I would dismiss this interlocu-
tory appeal because I believe that the district court's order "deter-
mines only a question of `evidentiary sufficiency,' i.e., which facts a
party may, or may not, be able to prove at trial." Id. at 2156.

With regard to situations involving fleeing suspects, the law was
clearly established in 1992 that the use of deadly force is only justi-
fied if the officers have "probable cause to believe that [the suspect]
pose[d] a significant threat of death or serious injury to the officer or
others." Tennessee v. Garner, 471 U.S. 1, 3 (1985). I agree that the
analysis of qualified immunity in excessive force cases requires an
examination of the particular circumstances faced by the officers to
determine whether it was objectively reasonable for the officers to act
as they did. Anderson v. Creighton, 483 U.S. 635, 638 (1987). I dis-

                     10
agree with the majority's conclusion that the order involved in this
interlocutory appeal turned on whether the plaintiff's version of the
facts made out a violation of clearly established law. See ante at 6 n.2.

After a detailed examination of the evidence, the district court con-
cluded that "the submission by plaintiffs of the affidavits of two
eyewitnesses1 is sufficient to create a genuine issue of material fact
critical to the legal determination of whether reasonable officers
would have known that their actions were unconstitutional."
Edmundson v. Keesler, No. 5:94-CV-467-BO(3) at 8-9 (E.D.N.C.
Nov. 6, 1995) (order). In other words, the district court felt that the
picture painted by Ginn and Tyson was that Keesler ran alongside the
truck as it was pulling away from him, and that a permissible infer-
ence from this picture was that the shots were fired solely to stop the
fleeing Turnage. Under what I think we all agree was the established
law, this is a picture of excessive force.

The majority reduces the picture drawn by the plaintiff to "ex-
tremely dangerous circumstances confronted by the officers--a rap-
idly moving truck driven by a fleeing felon and Keesler's close
proximity to the truck." Ante at 8. The district court, however, felt that
much of what actually happened was open to dispute, particularly
whether the truck was coming toward Keesler or moving away from
him and toward the parking lot exit when the shots were fired.
Whether Keesler was actually in danger, whether he appeared to be
in danger, whether he could reasonably have thought he was in dan-
ger, and whether he and his partner fired solely to stop the fleeing
Turnage, are clearly material facts. Whether we believe the record
supports or even dictates a finding in the officers' favor on the immu-
_________________________________________________________________
1 Affidavit of Lionel Ginn: "Officer Keesler was completely out of the
way of the pickup truck as it moved forward and rightward toward the
parking lot gate. As Mr. Turnage began to drive by Officer Keesler,
Keesler then shot his gun toward Mr. Turnage. . . . When I saw him shoot
his gun, Officer Keesler was not in danger of being hit by the truck. I
could not believe what I was seeing."

Affidavit of William Scott Tyson: "Officer Keesler was not in danger
of being struck by the truck and his life was not in danger at the time he
shot Ricky Turnage, as the truck was moving away from him and toward
the parking lot exit."

                     11
nity issue2 is irrelevant to the inquiry under Johnson v. Jones; all that
matters at this point is that the district court thought that these factual
disputes were genuine.

I respectfully dissent.
_________________________________________________________________
2 Pittman v. Nelms, 87 F.3d 116 (4th Cir. 1996), which is relied upon
by the majority, see ante at 8, and which involved facts very similar to
those in our case, was an appeal from a final order.

                     12
