                                            Filed:   April 5, 2001

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                             No. 00-1539
                            (CA-98-75-5)



Matthew Milstead, etc.,

                                               Plaintiff - Appellant,

          versus


Chad Kibler, et al.,

                                              Defendants - Appellees.



                             O R D E R



     The court amends its opinion filed March 15, 2001, as follows:

     On page 3, third full paragraph, line 7 -- the last word on

the page is corrected to read “plaintiff.”

                                         For the Court - By Direction




                                         /s/ Patricia S. Connor
                                                  Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MATTHEW MILSTEAD, Administrator
of the Estate of Mark Milstead,
Plaintiff-Appellant,

v.                                                              No. 00-1539

CHAD KIBLER; SCOTT PROCTOR;
LESTER WHETZEL,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CA-98-75-5)

Argued: January 22, 2001

Decided: March 15, 2001

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
Malcolm J. HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Chief Judge Wilkinson and Judge Howard joined.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey S. Parker, Great Falls, Virginia, for Appellant.
Mark Dudley Obenshain, WHARTON, ALDHIZER & WEAVER,
P.L.C., Harrisonburg, Virginia, for Appellees. ON BRIEF: James R.
Tate, TATE & BYWATER, LTD., Vienna, Virginia, for Appellant.
OPINION

NIEMEYER, Circuit Judge:

The Administrator of the Estate of Mark Milstead brought this
action under 42 U.S.C. § 1983, alleging that three police officers used
excessive force in violation of the Fourth and Fourteenth Amend-
ments when one of the officers accidentally shot Milstead, mistaking
him for an assailant who had just shot Milstead and his fiancee. The
district court granted the officers' motion for summary judgment,
relying on qualified immunity. Finding no constitutional violation, we
affirm.

I

Following an emergency call on October 26, 1996, from Mark Mil-
stead to the 911 operator in Shenandoah County, Virginia, Officers
Chad Kibler and Scott Proctor, deputy sheriffs in Shenandoah
County, and Lester Whetzel, a Woodstock, Virginia town police offi-
cer, were dispatched to 59 Indian Camp Trail at Bear Paw Road, in
a secluded area in Shenandoah County in response to Milstead's call
for help. Milstead reported that he and his fiancee were being attacked
by an intruder, Steven Ramey, his fiancee's former boyfriend. The
911 operator reported Milstead's call to the officers, telling them that
a man had been shot in the neck and a woman stabbed.11 The officers
received the call shortly after midnight and responded immediately.
Upon their arrival at the house, they saw a van parked in front of the
house, with the door open, and fresh blood on the van and on the steps
leading to the house. They also heard calls for help from inside the
house. As Officer Whetzel walked around the house, Officer Proctor,
followed by Officer Kibler, proceeded to the front door. Proctor
kicked open the door, yelled "police," and took a couple of steps into
the house. It is unclear whether Kibler, who was following closely
behind, actually made it inside. Both officers saw two figures wres-
tling on the floor, one of whom withdrew from the altercation and
warned them that the other had a gun. The person with the gun
_________________________________________________________________

1 In fact, the 911 operator misreported somewhat the substance of Mil-
stead's call. Milstead had actually reported that his fiancee had been shot
and might be dead and that he had been shot in the throat.

                  2
pointed it at Officer Proctor, whereupon Proctor stopped, began to
back up, and fired four shots from his pistol. While backing up, Proc-
tor fell backwards onto the deck outside the door. Kibler, believing
that Proctor had been shot, retreated to the outside corner of the house
where the steps from the front desk exited, and took a defensive posi-
tion. Kibler then heard one of the people -- presumably Ramey --
say that he was going to "kill all of you." About 15 seconds after Offi-
cer Kibler's initial retreat from the front door, someone came crashing
through the door "in a run" and turned toward where Officer Kibler
was positioned. Kibler fired two shots, bringing the person down.
While the person's hands were about chin level, Kibler did not see
anything in them; the only light in the area was an outside wall light
behind the person whom Kibler shot.

Officer Kibler explained later that when he fired his gun he
believed that the target had to be the assailant Ramey because Mil-
stead had been shot in the neck and could not therefore have been
running. He also explained that Ramey had a gun, and that, shortly
before the person believed to be Ramey came out of the house, some-
one said he was going to "kill you all." Kibler concluded that Ramey
was making good on this threat.

Still alive, the person Officer Kibler shot told him, "He is still
inside." Kibler then realized that he had shot Milstead and not Ramey.
After talking with Milstead, Kibler went to the other side of the house
and told Officer Proctor that he had shot "the good guy." Proctor told
Kibler to return to cover and be watchful for Ramey. After backup
arrived several minutes later, the officers removed Milstead and trans-
ported him to the hospital, where he died shortly thereafter from the
shots fired by Officer Kibler. The officers determined later that
Ramey had killed himself with a shot to his head and that Milstead's
fiancee had also died.

Milstead's estate commenced this action under 42 U.S.C. § 1983,
alleging that Officer Kibler had used excessive force in violation of
the Fourth and Fourteenth Amendments and alleging state claims
based on the fact that the officers failed to seek medical care in time
to save Milstead's life. The district court granted the officers' motion
for summary judgment, dismissing the federal claims on qualified
immunity and dismissing the state claims because the plaintiff

                  3
failed to advance sufficient proof in support of them. This appeal fol-
lowed, challenging only the qualified immunity ruling.

II

The Administrator of the Estate contends that the "unjustified kill-
ing of an innocent person by the police . . . who had been summoned
. . . to protect and assist" Milstead constituted excessive force, in vio-
lation of the Fourth and Fourteenth Amendments, and that, in finding
the officers in this case immune from liability, the district court "fail-
[ed] to consider the full evidentiary record, it improperly weigh[ed]
evidence, it fail[ed] to consider the totality of the circumstances, it
fail[ed] consistently to apply the correct objective standard of con-
duct, it fail[ed] to draw all permissible inferences in favor of the non-
moving party, and ultimately degenerate[d] into fact-finding by the
trial judge." The Administrator argues that if the record is taken as a
whole and in a light most favorable to Milstead and if the correct
legal standard is applied, "the killing of Mark Milstead was unreason-
able as a matter of law."

The legal principles governing qualified immunity analysis are well
established. "Police officers are protected by qualified immunity
when performing their duties within the scope of their employment
insofar as their conduct does not breach `clearly established statutory
or constitutional rights of which a reasonable person would have
known.'" Sigman v. Town of Chapel Hill, 161 F.3d 782, 786 (4th Cir.
1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
reasonableness inquiry is an objective one, "measured by reference to
clearly established law." Harlow, 457 U.S. at 818. At bottom, police
officers performing a discretionary function enjoy an immunity that
shields them from liability for civil damages unless (1) the officers'
conduct violates a federal statutory or constitutional right, and (2) the
right was clearly established at the time of the conduct, such that (3)
an objectively reasonable officer would have understood that the con-
duct violated that right. See Wilson v. Layne, 526 U.S. 603, 614-15
(1999); Anderson v. Creighton, 483 U.S. 635, 638-40 (1987); Harlow,
457 U.S. at 818-19.

The "first inquiry" in the analytical structure by which the qualified
immunity defense is addressed is whether a violation of a constitu-

                   4
tional right has been alleged. Siegert v. Gilley, 500 U.S. 226, 231
(1991). Thus, when the qualified immunity defense is asserted, "on
summary judgment, the judge appropriately may determine, not only
the currently applicable law, but whether that law was clearly estab-
lished at the time an action occurred." Id. (quoting Harlow, 457 U.S.
at 818) (internal quotation marks omitted (alteration removed)). And
"concomitant" to these determinations is the determination "of
whether the plaintiff has asserted a violation of a constitutional right
at all." Id. at 232. In Siegert, after establishing this framework, the
Court then proceeded to determine first whether the plaintiff alleged
a violation of the Constitution.

This analytical sequence was confirmed in Wilson v. Layne, 526
U.S. 603 (1999), in which the Court reiterated that "[a] court evaluat-
ing a claim of qualified immunity `must first determine whether the
plaintiff has alleged the deprivation of an actual constitutional right
at all, and if so, proceed to determine whether that right was clearly
established at the time of the alleged violation'" Id. at 609 (emphasis
added) (quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)). This
procedure applies even when the non-constitutional issues in the anal-
ysis may resolve the immunity issue more easily than the underlying
question of constitutional law. See County of Sacramento v. Lewis,
523 U.S. 833, 841 n.5 (1998). Were courts to rule on qualified immu-
nity without determining the constitutionality of the challenged con-
duct, "standards of official conduct would tend to remain uncertain,
to the detriment both of officials and individuals. An immunity deter-
mination, with nothing more, provides no clear standard, constitu-
tional or nonconstitutional." Id.

Accordingly, in this case we turn first to the question of whether
the Administrator has alleged or demonstrated that the conduct of any
of the three officers violated Milstead's constitutional rights. Only if
we find a constitutional violation may we proceed further in the analy-
sis.2
    2 See Wilson, 526 U.S. at 609.
_________________________________________________________________

2 Because it was Officer Kibler who fired the two shots that ultimately
killed Mark Milstead, the analysis focuses through the lens of his per-
spective. While Officers Proctor and Whetzel are also named defendants,
the complaint fails to allege that either violated any of Mark Milstead's
constitutional rights. Accordingly, we direct our analysis to whether
Officer Kibler deprived Mark Milstead of a constitutional right in shoot-
ing him on October 26, 1996.

                  5
"[A]ll claims that law enforcement officers have used excessive
force -- deadly or not -- in the course of an arrest, investigatory stop,
or other `seizure' of a free citizen should be analyzed under the
Fourth Amendment and its `reasonableness' standard." Vathekan v.
Prince George's County, Md., 154 F.3d 173, 178 (4th Cir. 1998)
(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)) (emphasis in
Graham, alteration in Vathekan, internal quotation marks omitted).
"The test of reasonableness under the Fourth Amendment is not capa-
ble of precise definition or mechanical application," Bell v. Wolfish,
441 U.S. 520, 559 (1979), but "requires careful attention to the facts
and circumstances of each particular case, including 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," Graham, 490 U.S. at
396. Thus, in determining the constitutionality of the use of deadly
force, a court must decide "whether the totality of the circumstances
justified" the use of deadly force in the particular circumstances of the
case before it. Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). But the
use of deadly force is justified only in circumstances where "it is nec-
essary to prevent the escape [of the suspect] and the officer has proba-
ble cause to believe that the suspect poses a significant threat of death
or serious physical injury to the officer or others." Id. at 3. An offi-
cer's use of force is "judged from the perspective of a reasonable offi-
cer on the scene, rather than with the 20/20 vision of hindsight,"
allowing for the fact that "police officers are often forced to make
split-second judgments -- in circumstances that are tense, uncertain,
and rapidly evolving -- about the amount of force that is necessary
in a particular situation." Graham, 490 U.S. at 396, 397. Thus, the
objective facts "must be filtered through the lens of the officer's per-
ceptions at the time of the incident in question." Rowland v. Perry,
41 F.3d 167, 173 (4th Cir. 1994). This "limits second-guessing the
reasonableness of actions with the benefit of 20/20 hindsight" and
"limits the need for decision-makers to sort through conflicting ver-
sions of the `actual' facts, and allows them to focus instead on what
the police officer reasonably perceived." Id .; see also Gooden v. How-
ard County, Md., 954 F.2d 960, 965 (4th Cir. 1992) (en banc).

In this case, we determine first whether the totality of the circum-
stances known to Officer Kibler would give a reasonable officer prob-
able cause to believe that the person who crashed through the door in

                  6
a run and turned toward him "posed a threat of serious physical harm,
either to [Officer Kibler] or to others." Garner, 471 U.S. at 11. If we
assume for the moment that this person had been Ramey, we believe
that the use of deadly force in the circumstances would clearly have
been justified. Kibler knew that Ramey had shot Milstead in the neck
and stabbed his former girlfriend. He also believed that Ramey had
shot Officer Proctor. He knew that Ramey had a gun, and he had
heard Ramey shout from within the house that he was going to "kill
you all." While Kibler waited the seconds before the believed-to-be
assailant came crashing out, he recognized that the only door to the
house exited to the deck and down the steps to where he had taken
his position. And when the believed-to-be assailant actually came
crashing through the door "in a run" and turned toward his position,
presumably with a gun, Officer Kibler had no more than a second or
two to react. From the perspective of a reasonable officer, Ramey
obviously would have posed a deadly threat to both Kibler and the
other officers at this dark, remote location, and therefore the use of
deadly force against Ramey would have been justified.

But, as it turned out, the person who came crashing through the
door was not Ramey, but rather Milstead. There is no dispute that at
the time Officer Kibler fired his two shots, he did not know this. Only
after he shot Milstead, when Milstead revealed the reality of the situa-
tion by his statement, "He is still inside," did Officer Kibler first rec-
ognize his mistake. He promptly went to Officer Proctor and told him
that he had just shot "the good guy." Thus, just as clearly as Officer
Kibler intended to shoot Ramey when he came out the door, he
clearly did not intend to shoot Milstead. This leaves us with the ques-
tion of whether, in making this mistake, Officer Kibler violated Mil-
stead's Fourth Amendment rights.

A mistake of this type generally takes on one of two forms. One
is typified by the officer who shoots (with justification) at a suspect
but misses, accidently hitting a bystander. The officer intended to
direct deadly force against the suspect but not against the innocent
victim. The second form is typified by the officer who shoots (with
justification) at a person he believes to be the suspect and hits the
intended target, but in fact, the target was misidentified and turns out
to be an innocent victim. In that situation, the officer intended to

                  7
direct deadly force against an innocent victim, but did so under a mis-
taken belief that he was the suspect.

Under the first form of mistake, where the seizure is directed
appropriately at the suspect but inadvertently injures an innocent per-
son, the innocent victim's injury or death is not a seizure that impli-
cates the Fourth Amendment because the means of the seizure were
not deliberately applied to the victim. See Brower v. County of Inyo,
489 U.S. 593, 596-97 (1989); Landol-Rivera v. Cruz Cosme, 906 F.2d
791, 794-95 (1st Cir. 1990). In this vein, we have held that when offi-
cers shoot at a suspect, but hit a bystander instead, no Fourth Amend-
ment seizure occurs. Rucker v. Harford County, Md., 946 F.2d 278,
281 (4th Cir. 1991) ("[O]ne is `seized' within the fourth amendment's
meaning only when one is the intended object of a physical restraint
by an agent of the state" (emphasis in original)).

But the circumstances in this case fall under the second form of
mistake where the officer deliberately directs his force against an
innocent victim, believing him, although mistakenly, to be the sus-
pect. This seizure of the innocent victim implicates the Fourth
Amendment, but it is not necessarily unreasonable and therefore in
violation of the Fourth Amendment. See Hill v. California, 401 U.S.
797, 803-04 (1971) (holding that when police have probable cause to
arrest one party and they reasonably mistake a second party for the
first, then the arrest of the second party is valid); cf. Vathekan, 154
F.3d at 178 (noting that officer's release of attack dog that "cannot
discriminate between a criminal and an innocent person" and that
attacks an innocent victim is a seizure implicating the Fourth Amend-
ment).

In Hill, the police officers had probable cause to arrest Hill for bur-
glary, and when they went to Hill's apartment to effect his arrest, Mil-
ler, who fit the description of Hill, answered the door. Miller said that
he was not Hill but was waiting for him, and produced evidence to
prove his identity. But the police, disbelieving Miller, proceeded to
arrest him and search the apartment, discovering evidence that ulti-
mately convicted Hill. In upholding the arrest of Miller, the Supreme
Court noted that fake identifications were not an uncommon method
employed to evade arrest, that Miller resembled Hill, and that Miller's
lack of explanation for his mode of entry into the apartment, which

                   8
had a lock on the door, was not convincing to the officers. In finding
both the arrest and the search reasonable and valid under the Fourth
Amendment, the Court stated that even though the officers turned out
to be "quite wrong," "sufficient probability, not certainty, is the touch-
stone of reasonableness under the Fourth Amendment and on the
record before us the officers' mistake was understandable and the
arrest a reasonable response to the situation facing them at the time."
Id. at 804.

The principle that the Supreme Court applied in Hill -- that no
Fourth Amendment violation occurs when the "officers' mistake was
understandable and the arrest a reasonable response to the situation
facing them at the time" -- is at the root of several of our holdings
concluding that officers' use of force was reasonable in situations
where they had probable cause to believe that the suspect had a
weapon, but their belief turned out to be mistaken. See, e.g., McLena-
gan v. Karnes, 27 F.3d 1002 (4th Cir. 1994) (noting the reasonable-
ness of an officer's conduct where the officer shot a suspect upon
receiving a warning from a third person that the suspect had a gun,
even though the suspect actually had no weapon); Slattery v. Rizzo,
939 F.2d 213 (4th Cir. 1991) (holding force reasonable where an offi-
cer could have had probable cause to believe that a suspect posed a
deadly threat even though the suspect turned out to be unarmed); cf.
Sigman, 161 F.3d at 788 (concluding that an officer's conduct was
reasonable when he shot a suspect, believing that the suspect had a
knife, even though onlookers said that they saw no knife). In all of
these cases, the objective facts, filtered through the lens of the offi-
cer's perception, gave the officer probable cause to believe that his
use of force was justified. And when the force would have been justi-
fied if the belief had been correct, we have found no Fourth Amend-
ment violation. In short, a mistaken understanding of the facts that is
reasonable in the circumstances can render a seizure based on that
understanding reasonable under the Fourth Amendment.

In this case, we believe that Officer Kibler's mistaken understand-
ing did not make his use of force unreasonable. The information that
Kibler had at the time he shot Milstead was that (1) a female had been
stabbed, (2) Milstead had been shot in the neck, (3) the intruder,
Ramey, was armed with a gun, (4) Ramey had apparently shot at Offi-
cer Proctor, and (5) Ramey had threatened to kill all of the officers.

                   9
Blood had already been shed, as Officer Kibler witnessed upon his
arrival at the scene. As Kibler waited the few seconds in the dark after
Officer Proctor and Ramey apparently exchanged gunfire, he did not
know where Milstead or Ramey was. He did know, however, that
Milstead had been shot in the neck, and therefore he believed that,
when someone crashed through the front door in a run, it had to be
Ramey. Although he did not see a gun, he knew that Ramey had a gun
only seconds earlier. Moreover, because of the poor lighting, he could
not be sure that he was not holding a gun. In the second or two after
the person's crashing exit through the door, Kibler had to decide
whether to fire. In this instant of mortal danger, he fired, intending to
end the threat posed by Ramey. His mistake was tragic.

But courts cannot second guess the split-second judgments of a
police officer to use deadly force in a context of rapidly evolving cir-
cumstances, when inaction could threaten the safety of the officers or
others. See Graham, 490 U.S. at 396-97; McLenagan, 27 F.3d at
1007-08. While we know in hindsight that Officer Kibler mistakenly
shot Milstead, instead of Ramey, this mistake does not negate the jus-
tification for the use of deadly force where Officer Kibler had an
objectively reasonable belief that Milstead was Ramey. "[T]he Fourth
Amendment addresses `misuse of power,’ not the accidental effects
of otherwise lawful conduct." Brower, 489 U.S. at 596 (internal cita-
tion omitted).

Because no Fourth Amendment violation was shown, we need not
proceed with the remainder of the qualified immunity analysis, i.e.,
to determine whether the right was clearly established at the time of
the conduct or to resolve whether the contours of such a clearly estab-
lished right were sufficiently clear that a reasonable officer would
understand that he was violating the right. See Wilson, 526 U.S. at
614-15.

We acknowledge that the facts of this case -- triggered by the
criminal conduct of Ramey -- sound a tragic knell of classical pro-
portions. Ramey murdered Milstead's fiancee, who was pregnant.
Officer Kibler attempted to perform his duty to assist Milstead, but
instead killed him by mistake. And Ramey in the end committed sui-
cide. Officer Kibler and the families of the innocent, as well as the
family of the suspect, must live with these painful memories. Pre-

                  10
sented with this lawsuit by Milstead's family against Officer Kibler,
we can only decide the limited legal question of whether a constitu-
tional lawsuit lies against Officer Kibler. We conclude that it does
not.

AFFIRMED

                  11
