                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


WILBERT WESLEY LEWIS,                   
                Plaintiff-Appellee,
                 v.
W. G. BOUCHER, personally and in
his official capacity as a Police
Officer for the City of Roanoke,
                 Defendant-Appellant,           No. 01-1584
                and
CITY OF ROANOKE; ATLAS GASKINS,
personally and in his official
capacity as Chief of Police for the
City of Roanoke,
                          Defendants.
                                        
           Appeal from the United States District Court
         for the Western District of Virginia, at Roanoke.
              Samuel G. Wilson, Chief District Judge.
                         (CA-00-566-7)

                      Argued: December 3, 2001

                        Decided: May 9, 2002

    Before WIDENER, MICHAEL, and KING, Circuit Judges.



Affirmed in part and dismissed in part by unpublished per curiam
opinion.
2                         LEWIS v. BOUCHER
                             COUNSEL

ARGUED: Jim Harold Guynn, Jr., GUYNN LAW OFFICES, Roa-
noke, Virginia, for Appellant. Lawrence Ulysses Davidson, III, Char-
lotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                             OPINION

PER CURIAM:

   Shortly after midnight on December 31, 1999, Officer William G.
Boucher of the Roanoke City Police Department shot Wilbert Wesley
Lewis during a traffic stop. Lewis suffered serious abdominal injuries,
and he brought this excessive force claim under 42 U.S.C. § 1983
against Boucher, Atlas Gaskins (Roanoke’s Chief of Police), and the
City of Roanoke. The district court granted summary judgment to
Gaskins and the City. Officer Boucher also moved for summary judg-
ment on the ground of qualified immunity, but the court denied his
motion. The court explained that Lewis had raised a genuine issue of
material fact about whether Boucher shot Lewis in the back or the
stomach. A jury’s resolution of this question, the court concluded,
was "indispensable in deciding whether a reasonable officer could
have believed that the use of force against Lewis was objectively rea-
sonable." Lewis v. City of Roanoke, 2001 WL 418724, at *3 (W.D.
Va. March 28, 2001). Boucher filed this interlocutory appeal, arguing
mainly that the district court erred by ruling that a reasonable jury
could find that Boucher shot Lewis in the back. We dismiss this por-
tion of Boucher’s appeal because a district court’s determination
about the sufficiency of a plaintiff’s evidence in a § 1983 case is not
immediately appealable. If Boucher’s brief is read charitably, he also
raises the purely legal question of whether the district court erred by
concluding that Boucher would not be entitled to qualified immunity
if a jury found that he shot Lewis in the back during a routine traffic
                           LEWIS v. BOUCHER                            3
stop. We do have jurisdiction to consider this issue, and we affirm the
district court’s resolution of it.

                                   I.

   Lewis filed his § 1983 claim in the United States District Court for
the Western District of Virginia on July 14, 2000. During discovery
three distinct stories emerged about the shooting and the events that
led up to it. Because the factual differences between these accounts
are crucial to the case, we set them out in some detail.

   Lewis presented the following account of the shooting in a deposi-
tion he gave on February 9, 2001. Late in the evening of December
30, 1999, Lewis borrowed his sister’s car to drive to the Roanoke bus
station so that he could buy a ticket for a trip he planned to take a few
days later. Lewis found that the bus station was closed, and he
decided to stop at a convenience store to buy cigarettes before return-
ing to his sister’s house. While on the way to the store, Lewis noticed
that he was being closely followed by a police patrol car. Officer
Boucher, the patrol car’s driver, turned on his blue lights to signal
Lewis to pull over. There were no parking places available in the
immediate area, so Lewis continued to drive for a block and a half
until he found a lighted place to park on Patton Avenue. Lewis parked
his car, and Boucher pulled in behind him. Lewis quickly got out of
the car, neglecting to place the car’s transmission in park or to set the
parking brake. He left the door of the car open and the engine run-
ning. Lewis raised his hands in the air and turned toward the police
car, finding that Officer Boucher was standing beside his patrol car
with his police dog at his side and his gun drawn and pointed at
Lewis. (At a different point in his deposition, Lewis said that when
he got out of the car, he immediately placed his hands on top of the
car.) Boucher told Lewis to get on the ground, but Lewis did not com-
ply because he has bad knees. Lewis admits, however, that he did not
tell Boucher about his bad knees and that he did not respond to Bou-
cher’s commands in any way. According to Lewis, Boucher seemed
"excited" and "was treating [Lewis] like [he] was a dangerous, harsh
criminal." At this point, Lewis’s car began to roll forward slightly. He
does not recall whether his car hit the car in the next parking space.
Lewis turned and reached into the car with his right hand and right
foot, putting his foot on the brake and shifting the transmission of the
4                         LEWIS v. BOUCHER
car into park. About half of his body was inside the car as he did this.
Lewis then got back out of the car, keeping his hands in full view at
all times. Lewis stood facing Boucher with his hands at eye level and
his palms open. He made no threatening movements or verbal threats
toward Boucher. Lewis admits, however, that he was afraid of Bou-
cher’s police dog and that he "might have" dropped his right hand to
about hip level at one point in order to ward off the dog, though he
does not remember doing so. Boucher then shot Lewis in the stomach.
Lewis asked Boucher why Boucher had shot him, but Boucher did not
answer.

   Officer Boucher provided a significantly different story in an affi-
davit dated February 19, 2001. (Boucher has not been deposed.)
According to Boucher, he was on patrol late on the night of December
30, 1999, when he saw a car with no lights on. (Lewis says that one
of the headlights on the car was not working, but that the rest of the
car’s lights were on.) Boucher began following Lewis’s car to see
whether it would turn its lights on, and Boucher soon turned on his
blue lights. At this point, Lewis accelerated and ran a red light.
(Lewis contends that the light was green and that he did not increase
his speed after Boucher turned on his blue lights.) Boucher pursued
Lewis for several blocks until Lewis locked up his brakes and
swerved to the right side of the road. Lewis immediately got out of
the car. Boucher believed that Lewis was going to flee, so he got out
of his patrol car with his police dog at his side. Lewis got back into
his car and drove it forward, hitting a parked car. Lewis then got back
out of the car, and Boucher says it looked as though Lewis "stopped
to reach for something" as he did so. Boucher dropped to one knee,
holding his dog with his left hand and pointing his gun at Lewis with
his right. Lewis turned towards Boucher but kept his right hand hid-
den behind his back. Boucher gave Lewis at least five commands to
show his hands or to get down on the ground, but Lewis did not com-
ply. After the last command, Lewis "lunged forward jerking his right
arm out and straight towards [Boucher]." Boucher then shot Lewis
because he believed that Lewis had a weapon and posed a threat to
Boucher’s life. It is undisputed that Lewis did not have a gun or any
other kind of weapon on his person or in the car.

   Although these two versions of the shooting differ in many
respects, both versions indicate that Boucher shot Lewis in the stom-
                           LEWIS v. BOUCHER                            5
ach while Lewis was facing Boucher. The third version of the shoot-
ing changes this critical fact. On March 2, 2001, Dr. Bruce A. Long,
the surgeon who operated on Lewis the night of the shooting, signed
an affidavit stating that he had believed since the time of the surgery
that Lewis had been shot in the back rather than from the front. He
based this conclusion on his observations during the surgery that the
cone-shaped pattern of damage to Lewis’s abdomen increased in size
from back to front, and he explained that wounds typically enlarge as
they pass through solid tissue.1 Dr. Long was later deposed, and he
opined "to a reasonable degree of medical certainty that the entrance
[of the bullet that struck Lewis] was from behind, and the exit from
in front." Lewis filed an affidavit on March 6, 2000, which presented
a version of the shooting that stands in some tension with the account
given in his February 9 deposition. In the affidavit Lewis claimed that
when he first got out of the car, he placed his hands "on the top of
the car in full view." (He had given a similar account in his deposi-
tion, but he had not explained the inconsistency between this account
and his claim that he stood facing Boucher with his hands in the air
when he first got out of the car.) Lewis then said that after he got back
into the car to prevent the car from rolling, he "got out of the car a
second time and was attempting to place [his] hands again on top of
the car." It was at this point, Lewis said, that he "heard a pop like a
gunshot and felt pain in [his] stomach."

   Boucher, Chief Gaskins, and the City moved for summary judg-
ment. In an order and memorandum opinion dated March 28, 2001,
the district court granted Gaskins’s and the City’s motions but denied
Boucher’s motion on the ground that the presence of disputed issues
of material fact prevented the court from concluding that Boucher was
entitled to qualified immunity at the summary judgment stage. The
district court explained that "the factual determination of whether
Boucher shot Lewis in the front or in the back is indispensable in
deciding whether a reasonable officer could have believed that the use
of force against Lewis was objectively reasonable. . . . Dr. Long’s
opinion [that Lewis was shot in the back] is inconsistent with Bou-
  1
   Lewis’s medical records indicate that the bullet entered Lewis from
the front, but Dr. Long testified that these records were prepared by an
intern who simply recorded what Lewis told him about the manner in
which he had been shot.
6                          LEWIS v. BOUCHER
cher’s account of events, especially Boucher’s statement that Lewis
lunged forward toward him, and creates a genuine issue of material
fact for a jury to decide." Lewis, 2001 WL 418724 at *3. Boucher
filed this interlocutory appeal, claiming that we have jurisdiction
under 28 U.S.C. § 1291.

                                   II.

   A district court’s order denying a government official’s qualified
immunity defense is an immediately appealable final decision under
28 U.S.C. § 1291 to the extent that the appeal concerns "not which
facts the parties might be able to prove, but . . . whether or not certain
given facts showed a violation of ‘clearly established’ law." Johnson
v. Jones, 515 U.S. 304, 311 (1995) (citations omitted). Thus, § 1291
permits a government official to claim in an interlocutory appeal that
he is entitled to qualified immunity because "all of the conduct which
the District Court deemed sufficiently supported for purposes of sum-
mary judgment met the . . . standard of ‘objective legal reasonable-
ness’ [set out in Harlow v. Fitzgerald, 457 U.S. 800 (1982)]."
Behrens v. Pelletier, 516 U.S. 299, 313 (1996). On the other hand,
"determinations of evidentiary sufficiency at summary judgment are
not immediately appealable merely because they happen to arise in a
qualified-immunity case." Id. As we explained in Winfield v. Bass,
106 F.3d 525 (4th Cir. 1997) (en banc), "we possess no jurisdiction
over a claim that a plaintiff has not presented enough evidence to
prove that the plaintiff’s version of events actually occurred, but we
have jurisdiction over a claim that there was no violation of clearly
established law accepting the facts as the district court viewed them."
Id. at 530. With these jurisdictional considerations in mind, we now
turn to the specifics of Officer Boucher’s appeal.

   Boucher devotes nearly all of his brief to the argument that the dis-
trict court erred by ruling that Dr. Long’s affidavit and deposition tes-
timony created a genuine issue of material fact about whether
Boucher shot Lewis from the front or from the back. He urges us to
adopt the Virginia rule that "a party is bound by his own testimony
and cannot rise any higher than that testimony." Brief of Appellant
W.G. Boucher at 9 (citing Massie v. Firmstone, 114 S.E. 652, 656
(Va. 1922)). Accordingly, Boucher would have us rule that Lewis is
bound by his initial deposition testimony that Boucher shot him from
                           LEWIS v. BOUCHER                            7
the front and that the district court should not have denied Boucher
summary judgment on the basis of Dr. Long’s testimony. Whether or
not this argument has merit, Boucher fails to recognize that under
Behrens, Johnson, and Winfield we simply have no jurisdiction to
consider it at this interlocutory stage. Boucher asks us to review the
district court’s determination that the evidence was sufficient to create
a triable issue of fact about whether Lewis was shot in the back, but
as we have just explained, "determinations of evidentiary sufficiency
at summary judgment are not immediately appealable merely because
they happen to arise in a qualified-immunity case." Behrens, 516 U.S.
at 313. See also Winfield, 106 F.3d at 530 (stating that the plaintiffs
had asserted in part that "the evidence presented . . . was insufficient
to raise a genuine issue of material fact necessitating a trial . . . and
to that extent, we lack jurisdiction pursuant to § 1291 to consider it").
Consequently, we dismiss the bulk of Boucher’s appeal for want of
jurisdiction.

                                  III.

   Under Winfield we do have jurisdiction to address a government
official’s purely legal argument that, even accepting the facts as the
district court viewed them, the official is entitled to qualified immu-
nity because his conduct did not violate "clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here, this
means that we have jurisdiction over Officer Boucher’s appeal to the
extent he argues that the district court should have granted his sum-
mary judgment motion because he did not violate Lewis’s clearly
established rights even if he shot Lewis in the back. In the final two
pages of his brief, Boucher appears to raise this argument when he
claims that whether Lewis was shot from the front or the back is not
a material fact for summary judgment purposes. We briefly address
the merits of this argument.

   In denying Boucher’s summary judgment motion, the district court
necessarily ruled that in the light of factual findings that could be
made by a reasonable jury, Boucher would not be entitled to qualified
immunity because a reasonable officer would have known that shoot-
ing Lewis was an unconstitutional use of excessive force. We can
decide the correctness of the court’s legal ruling on qualified immu-
8                          LEWIS v. BOUCHER
nity only if we know which facts it believed that a reasonable jury
could find. This requirement is unproblematic when the district court
has fully specified the facts it assumed for purposes of its legal ruling
on the qualified immunity issue. However, where the district court
fails to fully specify the facts it assumed, we may have to review the
record to determine "what facts the district court, in the light most
favorable to the nonmoving party, likely assumed." Johnson, 515 U.S.
at 319. We explained in Winfield that the proper way to decide what
the district court "likely assumed" is to "review the materials submit-
ted to the district court to determine what the record, viewed in the
light most favorable to the nonmoving party, discloses." Winfield, 106
F.3d at 533.

   Here, the district court explicitly stated that a reasonable jury could
find that Boucher shot Lewis in the back, but it did not fully set forth
the other facts it assumed to be supported by the summary judgment
record when it rejected Boucher’s qualified immunity defense. We
have therefore undertaken the inquiry mandated by Winfield in order
to identify the facts that the district court likely assumed in making
its qualified immunity ruling. We conclude that, viewed in the light
most favorable to Lewis, the evidence in the summary judgment
record would allow a reasonable jury to conclude that Lewis was
pulled over for a minor traffic violation (driving with a headlight out);
that Lewis was completely unarmed; that in the moments before he
was shot, Lewis kept his hands visible in compliance with Officer
Boucher’s request "to show [Boucher] his hands or to get down on the
ground;" that Lewis did not threaten Boucher physically or verbally;
and that Boucher issued no verbal warning before he shot Lewis.
Along with the fact that Boucher shot Lewis in the back, these are the
facts the district court likely assumed in its summary judgment ruling.
They provide the factual basis for our review of the district court’s
legal conclusion that Boucher was not entitled to qualified immunity
on Lewis’s excessive force claim.

   Assuming this factual basis, we have no difficulty in concluding
that the district court correctly denied Boucher’s motion for summary
judgment on the ground of qualified immunity. Under the Supreme
Court’s decision in Graham v. Connor, 490 U.S. 386 (1989), we
decide excessive force claims by determining whether the force
employed was objectively reasonable under all the circumstances,
                            LEWIS v. BOUCHER                             9
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." Id. at 396. Reasonableness "must be judged from the perspec-
tive of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight." Id. The district court likely assumed that a jury
could find that the crime at issue was a minor traffic offense, that
Lewis was not attempting to flee, and that Lewis posed no immediate
threat to Boucher when he was shot in the back.2 On these facts any
reasonable officer would have known that the use of deadly force was
excessive. Accordingly, we conclude that to the extent we have juris-
diction over this appeal, the district court’s order denying Boucher’s
summary judgment motion on grounds of qualified immunity must be
affirmed.

                                   IV.

   For the foregoing reasons, we dismiss Officer Boucher’s appeal to
the extent that it seeks to challenge the district court’s rulings on the
  2
    Boucher suggests in his brief that even taking the facts in the light
most favorable to Lewis, Boucher’s decision to fire was prompted by
Lewis’s gesture of moving his right hand from eye level to hip level and
that "[i]n the admittedly short time that elapsed between Lewis’s threat-
ening gesture, Boucher’s decision to shoot, and pulling the trigger, Lewis
may well have had time to spin and face away from Boucher." Appellant
Boucher’s Brief at 15. Accordingly, Boucher argues that he could have
acted reasonably even if he shot Lewis in the back. There are at least two
obvious problems with this argument. First, Lewis only said in his depo-
sition that he "might have" dropped his hand to ward off the dog, but he
did not remember doing so. A reasonable jury could choose to believe
that Lewis never made this gesture. This is particularly true when Bou-
cher’s own account of Lewis’ actions (that Lewis whipped his right hand
from behind his back and lunged toward Boucher) is markedly different.
Second, there is nothing in the record from either Lewis or Boucher to
support the theory that Lewis suddenly spun away from Boucher in the
instant before he was shot. Perhaps a reasonable jury could draw this
inference, but surely a reasonable jury would not be required to draw it.
In short, we believe that in the circumstances of this case a jury conclud-
ing that Boucher shot Lewis in the back could reasonably infer from this
fact that Lewis did not pose an immediate threat to Boucher’s safety.
10                        LEWIS v. BOUCHER
sufficiency of Lewis’s evidence to raise genuine issues of material
fact. We have jurisdiction over Boucher’s appeal to the extent that he
argues that the district court erred in denying him qualified immunity
even if he shot Lewis in the back, and we affirm the district court’s
ruling on that issue.

                       AFFIRMED IN PART; DISMISSED IN PART
