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 & ASSOCIATES, Winston-Salem, North Carolina, for Appellants. Dan

McCord Hartzog, CRANFILL, SUMNER & HARTZOG, L.L.P.,

Raleigh, North Carolina, for Appellees. ON BRIEF: Kari L. Russworm, 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 circumstances 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."

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Because Officer Terry was familiar with Sigman, he attempted to

engage Sigman in conversation. But as he did, the officers heard beating 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 supervisor, 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 Snyder 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 special 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, Sigman 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 Sigman 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 having 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 someone 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 officer 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 Sigman'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 Sigman'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

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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 compensatory and punitive damages.

The defendants filed a motion for summary judgment, contending

that the officers are protected from liability in their individual capacity 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' lawyer 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 witnesses 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 district 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 perceived Sigman as a dangerous threat. It therefore concluded that Sigman'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 defendants' 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 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."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Because qualified

immunity is an immunity from suit, and not merely a defense to liability, courts must scrutinize and dismiss appropriate cases on qualified 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 protections 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 unconstitutionally 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 reasonableness, 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 evaluation 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 splitsecond judgments -- in circumstances that are tense, uncertain, 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 knowledge 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' commands. 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 undisputed that the atmosphere was volatile and threatening. These circumstances 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 conclude that Officer Riddle reasonably perceived a threat to his safety

and the safety of others and that his response therefore was objectively 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 reasonably 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 somehow 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 Officer Riddle perceived and thereby cast doubt on whether Riddle saw

something that was not there, a police officer need not, in all circumstances, "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 splitsecond 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 argument that a factual dispute about whether Sigman still had his knife

at the moment of shooting is material to the question of whether Officer 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 reasonable, 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 nonshooting 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 deliberate 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 officer 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 produced 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. Without 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 reasonable, 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 insurance 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 cannot be negligent or wrongful, as required by N.C. Gen. Stat. § 28A18-2(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 judgment 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 dissent.

_________________________________________________________________

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 summary 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 therefrom 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 disputed 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 window, 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

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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 McKerlie 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 Roberson, 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 evidence we have now would allow a reasonable jury to conclude that

bystanders across the street were in a position to see the shooting.

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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 Officer Terry's testimony that Sigman took two to four steps and stopped

before he was shot. The deposition testimony of Officers Terry, McKerlie, 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 forward 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 objectively 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 person would have known"). Such force is appropriate when an objectively 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 qualified immunity with two alternative rulings. First, it holds that the affidavits 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 (emphasis 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 weighing the credibility of Riddle's deposition testimony against the affidavits 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 circumstances. See Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994)

(emphasis added). Specifically, we must ask if the defendant's "perceptions of the objective facts" were reasonable. See id. For example,

an officer under certain circumstances could reasonably (but mistakenly) 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 surrender. See Wilson v. Meeks, 52 F.3d 1547, 1550 (10th Cir. 1995).

A very different set of facts is presented here, however. Three eyewitnesses have come forward, swearing that they"could clearly see

Mark Sigman's hands and that he had nothing in them." Officer Riddle 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 witnesses, a matter that is inappropriate for resolution on summary judgment. 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 officers' claim to qualified immunity. The affidavits create a genuine dispute 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-

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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 perceive 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

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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 defendants 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.

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