UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL RICHARD REED, a minor, by

his legal guardian and next friend

Mary Suthard; ESTATE OF MICHAEL

DONALD REED, by Mary Suthard,

Personal Representative,

Plaintiffs-Appellants,

v.

WAYNE CHENEY, individually and as

a police officer in the Police

Department of Prince George's No. 97-1335

County,

Defendant-Appellee,

and

IRVIN PAGAN, individually and as a

police officer in the Police

Department of Prince George's

County; PRINCE GEORGE'S COUNTY,

MARYLAND,

Defendants.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CA-95-3732-AW)

Submitted: December 9, 1997

Decided: January 22, 1998

Before WIDENER, HALL, and LUTTIG, Circuit Judges.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

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COUNSEL

John Joseph Yannone, EUGENE M. ZOGLIO, P.A., Bowie, Maryland, for Appellants. Laura J. Gwinn, Sean D. Wallace, Jay H.

Creech, Upper Marlboro, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In the early morning hours of February 18, 1995, Michael Reed

was driving in Prince George's County, Maryland, with Ruffin Smith

as a passenger. Officer Irvin Pagan, driving in a marked cruiser,

observed Reed speeding, weaving, and otherwise driving recklessly.

Pagan turned on his overhead lights and siren in an attempt to pull the

car over, but to no avail. Pagan called for back-up, and Officer Wayne

Cheney joined in pursuit. Reed's vehicle struck a mailbox on the side

of the road; according to the officers, he then placed both hands out

of the window "as if he was trying to get rid of something." Reed then

sped away, going fifty to sixty miles per hour in a residential neighborhood. Cheney checked to see if anything had been thrown down,

but found nothing.

Further down the road, Reed pulled into a residential driveway.

Pagan stopped behind Reed's car, and Cheney parked on the road.

Pagan got out of his cruiser with his gun in a ready position. According to the officers, Reed exited his car and took several steps toward

Pagan. When Pagan and Cheney identified themselves as police and

ordered him to show his hands, Reed turned and ran the opposite

direction. Reed appeared to Pagan to throw something to the ground;

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Reed then began to reach into his waistband with his right hand.

Cheney shot Reed, who died later at the hospital. An autopsy report

showed that he had PCP and alcohol in his blood.

Passenger Ruffin Smith stated in his deposition,"That night is still

real fuzzy to me." When asked whether Reed was obeying the police

instructions, he responded, "as far as I seen . .. but like I say, I

couldn't hear exactly what they was saying." He saw Reed's hands in

view when Reed walked past the car, but could not see him the entire

time.

This complaint was filed in district court alleging state and federal

civil rights violations, wrongful death, and survival. The district court

ordered that the claims against Pagan and Cheney be bifurcated from

those against Prince George's County, that discovery be stayed as to

the latter claims, and that the wrongful death and survival actions

against the County be dismissed. Pagan and Cheney moved for summary judgment, and the plaintiffs opposed the motion. A hearing was

held, and summary judgment was granted on the civil rights count

against Cheney. That count was voluntarily dismissed as to Pagan.

The district court declined to exercise supplemental jurisdiction over

the state tort claims.

On appeal, Appellants allege that the district court erred in granting

summary judgment. They assert that genuine issues of material fact

make summary judgment improper. We conclude, however, that

Cheney was entitled to summary judgment on qualified immunity

grounds.

We analyze a claim that a police officer used excessive force in

attempting to make an arrest under the Fourth Amendment reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989).

Force is not excessive if it is objectively reasonable under the circumstances facing the officer, without regard to his underlying intent. Id.

at 397. An officer may use deadly force when he has good reason to

believe that the suspect presents a threat of serious physical harm to

himself or others. Tennessee v. Garner, 471 U.S. 1, 11 (1985). Under

Graham, we must focus on the moment that force was used.

Greenidge v. Ruffin, 927 F.2d 789, 791-92 (4th Cir. 1991). Actions

prior to that moment are not relevant in evaluating whether the force

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used was reasonable. Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.

1996), cert. denied, ___ U.S. #6D6D 6D#, 65 U.S.L.W. 3742 (U.S. June 27,

1997) (No. 96-1714).

If the officer asserts qualified immunity from suit, we must determine whether the relevant law was clearly established at the time and

whether a reasonable officer in defendant's place should have known

the conduct was illegal. Pittman v. Nelms, 87 F.3d 116, 119 (4th Cir.

1996). At the summary judgment stage of an excessive force claim

where qualified immunity is asserted, these steps can be combined in

one: whether plaintiff alleges the violation of a clearly established

constitutional right. If the answer is no, the defendant is entitled to

immunity without further inquiry. If the answer is yes, then we must

decide whether the officer knew or should have known his actions

were illegal. Id.

Appellants' arguments that genuine issues of material fact bar entry

of summary judgment are unavailing. This Court has held on prior

occasions that a suspect's failure to show his hands in accordance

with police commands can support an officer's belief that the suspect

is armed, Slattery v. Rizzo, 939 F.2d 213, 215-16 (4th Cir. 1991), even

if the officer has not actually seen an object he believes to be a

weapon. McLenagan v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994).

Contrary to Appellants' assertions, Reed had been fleeing lawful

arrest in his car. When he stopped, Reed got out of the car and ran

toward Pagan and then away from him, appeared to throw something

away, and then reached across his torso into his waistband area,

where it is reasonable to believe that someone might carry a gun. In

view of the "tense, uncertain, and rapidly evolving" circumstances,

Graham, 490 U.S. at 397, Cheney's action on his belief that he and

Officer Pagan were in serious danger of injury from Reed was not

unreasonable. Nothing that Reed offers in opposition to the summary

judgment contradicts Officer Cheney's explanation of why he acted

as he did or makes it objectively unreasonable for him to have so

acted.

It is true that the officers had no prior information that Reed was

armed or dangerous. They were not in a high crime area, and the officers had witnessed no crime other than dangerous, erratic driving and

failing to stop when signaled to do so. The record does not reflect that

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anything was ever found that had been discarded by Reed. No weapon

was discovered either on Reed or in the car. There is a factual dispute

as to the passenger's actions once the car stopped. None of these

issues, however, are material in light of Officer Cheney's perception

that Reed was reaching to pull a weapon from his waistband. Based

on the facts that are not disputed, a reasonable officer in the same situation could have believed that Reed posed a serious danger.

Even assuming that all the facts are as stated by Appellants, at the

crucial moment it was reasonable for an officer to perceive, in light

of Reed's erratic behavior, his failure to stop and show his hands, and

his hand's movement across his body toward his waist, that he was

reaching for a weapon. Therefore, Officer Cheney's reaction with

deadly force was not unreasonable, and he is entitled to qualified

immunity.

We affirm the district court's grant of summary judgment. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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