* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 96-40634

_____________________________________

LORENZO COLSTON,

Plaintiff-Appellee,

and

YOLANDA MICHELLE COLSTON,

Individually and as Next Friend of

Lauren Colston and Quinton Colston, Minor Children

Intervenors-Appellees,

VERSUS

BRYAN BARNHART, Texas Department of Public Safety Officer,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(6:94-CV-207)

______________________________________________________ November 19, 1997

Before KING, DAVIS, and DeMOSS, Circuit Judges

DAVIS, Circuit Judge: *

Trooper Br yan Barnhart appeals the denial of his motion for

summary judgment based on qualified immunity. Because Barnhart’s

use of deadly force to defend himself and others from plaintiff

Lorenzo Colston was objectively reasona ble, we conclude that the2

district court erred in denying summary judgment on grounds of

qualified immunity. Accordingly, we reverse and render.

I.

On September 29, 1993, at approximately 9:30 p.m., Texas State

Policeman Bryan Barnhart was driving on a dark, isolated part of

U.S. 175 in Henderson County, Texas. Around that time, Trooper

Barnhart directed Marcus Fields to the shoulder of the road because

Fields' automobile had a defective headlight. Appellee Colston was

a passenger in Fields’ car. Barnhart learned during a routine

license check that Fields had an outstanding traffic warrant and

placed him under arrest. Fields informed Barnhart that his wrists

hurt because of recent surgery. As a result, Barnhart did not use

handcuffs to secure Fields' arms behind his body; instead, he used

a flex cuff to secure Fields' hands in front of his body. Barnhart

decided that he w ould release Fields’ car to Colston if he had a

driver’s license and could safely drive the vehicle. Barnhart

asked Fields if Colston had a driver’s license. Fields said that he

did.

Barnhart then approached the passenger side of Fields’ car and

asked Colston to step out so he could see his driver’s license. As

he stepped ou t of the car, Colston told Barnhart that he did not

have a license and that he did not drive. Colston was

approximately 6'1" and weighed 225 pounds; Barnhart was about 5'6"

and weighed 160 pounds.1 The record shows that Colston was 29 years old.

3 Around the time that Barnhart bega n talking to Colston,

Henderson County Deputy Sheriff Jim Langford arrived at the scene,

but stood n ear Barnhart’s patrol car and did not immediately

approach Barnhart and Colston.

Barnhart proceeded to question Colston. He first asked

Colston how old h e was, and Colston replied that he was 18 years

old. 1 Barnhart asked Colston if he had ever driven before; Colston

stated that he had not. After retrieving his clipboard from his

car, Barnhart asked Colston to spell his last name; Colston

complied. Barnhart then asked Colston for his first name. Colston

stated that it was “Sylvester,” which he was unable to spell. After

two failed attempts at spelling “Sylvester,” Colston told Barnhart

his name was Leo. Barnhart asked Colston what his name was three

more times; Colston stated it was Leo. Barnhart then asked Colston

what his middle name was, and he replied that he did not have one.

Barnhart walked over to Fields and asked him w hat Colston’s

name was; Fields answered that it was Leo. Barnhart asked Fields

about the name Sylvester. Fields stated that he thought it was

Colston’s middle name.

Barnhart returned to Colston and again asked him what his

middle name was. Colston again said that he did not have a middle

name. Barnhart placed his clipboard on Field's car, and asked

Colston wh ether he was carrying any weapons. Colston responded2 Although Barn hart was unaware of their presence, a shotgun

and a knife were later recovered from Fields’ car.

3 Colston states that he lifted his leg in preparation to run.

4 that he was not. 2

Barnhart asked Colston to turn and face the other direction,

Colston took two steps back but did not turn around. Barnhart

ordered Colston to get down on his knees; Colston turned and placed

his hands above his head, but did not get on his knees. Barnhart

repeated the order. As Colston went to his knees, Barnhart pulled

his baton. Once Colston was on his knees, Barnhart told Colston to

remain still and cross his feet, and Colston complied. Colston

asked Barnhart, “why y’all treating me like thi s?” Barnhart

replied that it was because Colston would not tell him who he was.

Colston then informed Barnhart that his name was Lorenzo Colston

and that he did have a driver’s license in his wallet. Colston

then turned his head and looked at Barnhart.

Barnhart ordered Colston to look straight ahead and to get to

the ground. Colston got on all fours, but then lifted one leg up. 3

Langford, who had walked over to Barnhart's side moments earlier,

also ordered Colston to get on the ground. Colston told the

officers he would not g et on the ground and began to stand up.

Both officers pushed Colston in an attempt to prevent him from

standing up. As they were doing this, Barnhart and Langford

repeatedly ordered Colston to get down. Colston resisted their

efforts and forced his way to his feet. Barnhart began striking5

Colston with his baton, and Langford tried to grab Colston.

Colston violently resisted and knocked Langford to the ground with

a single hard blow. With Langford down, Barnhart struggled to

c ontrol Colston; Colston struck Barnhart in the face and knoc ked

him to the ground. The blow broke Barnhart’s glasses and dazed

him. Langford regained his feet and charged Colston. Colston

knocked him to the ground next to Barnhart, leaving him limp and

motionless.

From his prone position, Barnhart drew his gun. Barnhart

aimed at Colston, who was standing between him and Langford, and

fired a shot that missed. Colston turned, stepped over Barnhart’s

outstretched legs, and took about two steps away from Barnhart

directly toward Barnhart’s patrol car, where Barnhart’s shotgun was

located. At this moment Barnhart fired twice, hitting Colston in

the back of his right arm and in his buttocks.

A video recorde r mounted on Barnhart's patrol unit was

operating from the time Barnhart stopped his vehicle. The incident

described above was captured on videotape, which is part of the

record.

Colston filed a 42 U.S.C. § 1983 action alleging, inter alia

,

that Barnhart violated his Fourth Amendment r ights by using

excessive force against him. Barnhart moved for summary judgment

on the ground of qualified immunity. The district court denied

Barnhart’s motion for summary judgment after concluding that

material issues of fa ct were presented which precluded summary6

judgment.

II.

A.

We have jurisdiction to hear appeals from district court

orders denying summary judgment on the basis of qualified immunity

when the appeal is based on a n issue of law. C antu v. Rocha

, 77

F.3d 795, 802 (5th Cir. 1996). The district court’s determination

that fa ct issues were presented that precluded summary judgment

does not necessarily deny us jurisdiction over this appeal.

Coleman v. HISD

, 113 F.3d 528, 531 (5th Cir. 1997). We can

determine as a matter of law whether Barnhart is entitled to

qualified immunity after accepting all of Colst on’s factual

allegations as true. See Cantu , 77 F.3d at 802-3. We therefore

have interloc utory jurisdiction to determine the legal issue of

whether Bar nhart’s conduct was objectively reasonable. I d

.

Mitchell v. Forsyth

, 472 U.S. 511 (1985); Johnson v. Jones

, -- U.S.

--, 115 S.Ct. 2151 (1995); Beherens v. Pelletier , -- U.S. --, 116

S.Ct. 834 (1996); Nerren v. Livingston Police Dep’t , 86 F.3d 469,

472 (5th Cir. 1996).

B.

We review de novo the district court’s order denying summary

judgment on grounds of qualified immunity. N erren

, 86 F.3d at 471.

Qualified immunity shields government officials performing

discretionary functions from civil damage liability if their7

actions were objectively reasonable in light of clearly established

law. F raire v. City of Arlington

, 957 F.2d 1268, 1273 (5th Cir.),

cert. denied , 506 U.S. 973 (1992). The evaluation of a qualified

immunity claim involves a two-step inquiry

. H arper v. Harris

C ounty

, 21 F.3d 597, 600 (5th Cir. 1994). The first step is to

determine whether the plainti ff has alleged a violation of a

clearly established constitutional right. I d

. There is no dispute

t hat Colston has met this burden; the use of excessive for ce to

apprehend a subject implicates the Fou rth Amendment’s guarantee

against unreasonable seizures. See Tennessee v. Garner , 471 U.S.

1 (1985); Graham v. Connor , 490 U.S. 386 (1989).

The second step requires the court to determi ne whether

Barnhart’s conduct was objectively reasonable under existing

clearly established law. H arper

, 21 F.3d at 600. In G raham v.

Connor

, 490 U.S. 386, 395 (1989), the Supreme Court explained that

the reasonableness inquiry in an excessive force case is an

objective one; evaluating the o fficer's conduct under the Fourth

Amendment we must balance the amount of force used against the need

for that force with reference to clearly established law at the

time of the conduct in questi on. I d

. at 396; see also S pann v.

Rainey

, 987 F.2d 1110, 1115 (5th Cir. 1993); F raire

, 957 F.2d at

1273.

The Supreme C ourt instructs that in determining the

reasonableness of Barnhart’s conduct, we are not to e mploy “the

20/20 vision of hindsight,” Graham

, 490 U.S. at 396, and that we8

must consider “the fact that police officers are often forced to

make split se c ond judgments--in circumstances that are tense,

uncertain, and rapidly evolving--about the amount of force that is

necessary in a particular situation.” Id . at 396-7.

We turn now to the issue of whether it was objectively

reasonable for Barnhart to use deadly force, given the totality of

the circumstanc es confronting him. Barnhart argues that it was

objectively reasonable, under Tennessee v. Garner

, 471 U.S. 1

(1985), for him to use deadly force because a reasonable officer in

his circumstances would have believed that Colston posed a threat

of serious bodily harm or death to himself or Langford. Colston

maintains tha t it was not objectively reasonable for Barnhart to

believe that Colston posed a danger to either officer at the time

Colston was shot because he was unarmed and attempting to flee.

At the time Barnhart fired his weapon at Colston, the video

tape and the remaining summary judgment evidence establish the

following: Colston had not answered all of Barnhart’s questions

honestly and he had disobeyed both Barnhart’s and Langford’s orders

to get on the ground. Colston, who was much larger than Barnhart,

had vio lently and forcefully resisted the officers’ attempts to

gain control of him. Colston quickly subdued both officers and

knocked them to the ground with some force. Barnhart was dazed and

his vision was blurred. Langford, who had a loaded weapon on him,

was lying limp and motionless next to Barnhart. Colston was on his

feet near the officer ’s outstretched legs. Barnhart's earlier9

attempts to control Colston with non-de adly force, including

hitting him with a baton, had failed. At the time Barnhart drew

his weapon and fired the first shot, Colston was standing between

Barnhart and Langford in a position to inflict serious harm on the

officers with or without a weapon. When Barnhart fired the two

shots that hit Colston, Colston had moved only two steps from

Barnhart, toward Barnhart’s patrol car, where his shotgun was

located.

Although Colston asserts that he was attempting to flee,

Barnhart had no wa y to know whether Colston intended to flee or

inflict further injury or death on the officers. We cannot say

that a reasonable officer in Barnhart’s place would not have

believed that Colston posed an immediate danger of serious bodily

h arm or death to Barnhart or Langford. As a result, Barnhart’s

decision to use deadly force was objectively reasonable.

Colston argues that Barnhart’s failure to warn him before he

discharged his weapon makes Barnhart’s conduct objectively

unreasonable. We disagree. In T ennessee v. Garner

, the Supreme

Court held that an officer who determines that deadly force is

necessary to protect himself or others should give a warning if it

is “feasible.” G arner

, 471 U.S. at 10. Barnhart, lying on his

back with Colston nearby, had to immediately decide whether to

shoot. In light of the totality of the circumstances facing

Barnhart, Barnhart’s failure to give a warning was not objectively

unreasonable.10 III.

Because a reasonable officer in Barnhart's position could have

believed that he and Langford were in imminent danger of serious

bodily harm or death at the hand of Colston, Barnhart was

objectively reasonable in shooti n g Colston. Accordingly, the

district court's order denying Barn hart's motion for summary

judgment on grounds of qualified immunity is reversed and judgment

is rendered granting that motion.

REVERSED and RENDERED.

D E MOSS, Circuit Judge, dissenting:

Appellant Bryan Barnhart, who is white and a state policeman,

twice shot Appellee Lorenzo Colston, who is black, in the back. At

the time Barnhart’s shots were fired, Colston was fleeing a scene

where he had been unjustifiably beaten by Barnhart and Jim

Langford, who is white and a deputy sheriff. Colston was not under

arrest. Colston did not have a gun nor a knife nor a club nor any

other weapon on his person. Neither Barnhart nor Langford was

injured in the altercation which preceded Colston’s flight, but

Barnhart nevertheless fired two shot s which seriously injured

Colston and resulted in his permanent disability and disfigurement.

Notwithstanding these facts, Barnhart has asked this Court to

reverse the district court’s denial of his motion for summary

j udgment and adjudge him qualifiedly immune because his act ions-11-

were objectively reasonable as a matter of law. Because this Court

lacks appella t e jurisdiction to decide Barnhart’s appeal, and

because I disagree with the majority’s conclusion that Barnhart’s

shooting of Colston was objectively reasonable, I dissent.

I. Appellate Jurisdiction

The appeal from the district court’s deni al of summary

jud gment should be dismissed because this Court lacks appellate

jurisdiction over Barnhart’s appeal from that ruling.

Ordinarily, this Court has power only to review a “final

decision.” 28 U.S.C. § 1291. A “collateral order” doctrine has

developed to al low courts of appeals to consider interlocutory

appeals in certain circumstances. See Cohen v. Beneficial Indus.

Loan Corp.

, 337 U.S. 541 (1949). “To come within the ‘small class’

of decisions excepted from the final-j udgment rule by C ohen

, the

order must conclusively determine the disputed question, resolve an

important issue completely separate from the merits of the action,

and be effectively unreviewable on appeal from a final judgment.”

Coopers & Lybrand v. Livesay , 437 U.S. 463, 468 (1978).

The denial of a substantial claim of qualified immunity may be

appealable before final judgme nt. S ee Mitchell v. Forsyth

, 472

U.S. 511, 525 (1985). The right to appeal from such a denial of

summary judgment is not, however, absolute. In Johnson v. Jones

,

515 U.S. 304 (1995), the Supreme Court clarified its standard,-12-

noting that

a district court’s order denying a defendant’s

motion for summary judgment [is] an immediately

appealable “collateral order” ( i.e.

, a “final

decision”) under Cohen

, where (1) the defendant was

a public official asserting a defense of “qualified

immunity,” and (2) the issue appealed concern[s],

not which facts the parties might be able to prove,

but, rather, whether or not certain given facts

showed a violation of “clearly established” law.

Johnson

, 515 U.S. at 311 (quoting Mitchell

, 472 U.S. at 528).

Johnson involved a plaintiff’s § 1983 claim arising from the

alleged use of excessive force by police officers. Because the

plaintiff, a diabetic, was having an insulin seizure at the time of

his beating at the hands of the police, he was unable to

specifically identify the officers who had beat him. Three

officers who were named as defendants moved for summary judgment,

pointing out that they were not identified as the perpetrators and

that other officers could have committed the offense. The motion

was denied; the officers appealed. See id. at 307-08. Affirming

the Seventh Circuit’s dismissal of the appeal, the Supreme Court

concluded that there was a lack of appellate jurisdiction because

there was no question of law at issue, but rather the appeal merely

concerned a question of the “evidence sufficiency” of the officers’

contention that “we didn’t do it.” Id. at 313, 316. The present

case is controlled by Johnson

.

First, the competing claims in this case resemble Johnson in

light of the “I didn’t do it” aspect of Barnhart’s defense.-13-

Colston claims that he was shot in the back as he escaped from the

scene; in contrast, Barnhart claims that he fired his weapon in

self-defense. The district court stated its grounds for denying

Barnhart’s motion for summa ry judgment in plain language: “The

Court has reviewed the summary judgment evidence and is convinced

that issues of material fact exist which preclude summary judgment

in this case.” Thus, just as in the case of the J ohnson officers’

“we didn’t do it” defense, in this case “the District Court’s

determination that the summary judgment record in this case raised

a genuine issue of fact

. . . was not a ‘final decision’ within the

meaning of the relevant statute.” I d. ; see also Cantu v. Rocha

, 77

F.3d 795, 803 (5th Cir. 1996).

Behrens v. Pelle tier , 116 S. Ct. 834 (1996), is not to the

cont rary. B ehrens reaffirms the Mitchell holding: “an order

denying qualified immunity, to the extent it turns on an ‘issue of

law,’ is immediately appealable.” B ehrens

, 116 S. Ct. at 841

(citation omitted); see also Cantu

, 77 F.3d at 803. Moreover, the

Court explicitly reiterated the Johnson holding, that:

determinations of evidentiary sufficiency at

summary judgment are not immediately appealable

merely be cause they happen to arise in a

qualified-immunity case; if what is at issue in the

sufficiency determination is nothing more than

whether the evidence could suppo rt a finding that

particular conduct occurred, the question decided

is not truly “separable” from the plaintiff’s

claim, and hence there is no “final decision” under

Cohen and Mitchell

.-14-

Be hrens , 116 S. Ct. at 842 (citing J ohnson

, 515 U.S. at 312-15).

Behrens therefore does not control this case, which is unappealable

precisely because of the absence of an issue of law.

Furthermore, our Court lacks appellate jurisdiction even if

the dispute is not characterized as a Johnson -style “I didn’t do

i t” scenario. The state of the record was determined by the

district court to be insufficiently developed to permit findings of

f act upon which an evaluation of the objective reasonableness of

Barnhart’s actions could be based. In such a case, our Court lacks

appellate jurisdiction over an appeal from denial of summary

judgment. S ee Naylor v. Louisiana , 123 F.3d 855, 857 (5th Cir.

1997); see also Hart v. O’Brien , No. 96-40151, slip op. 548, 584-

87, 1997 WL 656282, at *152-*159 (5th Cir. Nov. 6, 1997)

(Benavides, J., dissenting); Tamez v. City of San Marcos , 62 F.3d

123, 124-25 (5th Cir. 1995); Harper v. Harris County

, 21 F.3d 597,

601 (5th Cir. 1994).

The district court in this case declared that an issue of

material fact exists which undermines any determination at summary

judgment of “whether Officer Barnhart had a reasonable belief of

danger from the fleeing suspect which would justify the use of

deadly force in self-defense.” The court therefore concluded that

summary judgment was inappropriate because both Barnhart’s claim of

qualified immunity and Colston’s claim under 42 U.S.C. § 1983 hinge

on a determination of the objective reasonableness of Barnhart’s-15-

actions. See Graham v. Connor

, 490 U.S. 386, 394 (1989); Tennessee

v. Garner

, 471 U.S. 1, 7-12 (1985). That decision was based on an

evaluation of the facts in the case; this appeal thus contains no

cognizable issue of law.

The majority attempts to establish appellate jurisdiction by

assuming away the disputed issues of material fact found by the

district court. Specifically, the majority purports to accept

Colston’s factual allegations as true. It then turns to the

question of the objective reasonableness inquiry, which our Court

has acknowledged to be a question of law that may be decided by a

judge in t he absence of any dispute over material facts. S ee

Cantu

, 77 F.3d at 802. But the majority then goes astray, drawing

inferences in the wrong direction and viewing the record in the

light most favorable to Barnhart.

In light of the district court’s conclusion that the objective

reasonableness of Barnhart’s actions could not be dete rmined at

s ummary judgment because of the unsettled state of the record --a

conclusion based solely on the district court’s evaluation of

“evidence sufficiency”--our Court has no appellate jurisdiction to

review that judgment. S ee Naylor

, 123 F.3d at 857; see also Tamez

,

62 F.3d at 124-25 ; Harper

, 21 F.3d at 601. The resolution of

disputed material facts is not to be achieved by a judge through

summary judgment. S ee Anderson v. Liberty Lobby, Inc.

, 477 U.S.

242

, 249-50 (1986). A dispute concerning material fact issues can-16-

only be resolved through resort to the finder of fact--in this

case, a jury.

This appeal does not present an issue separable from the

merits of Barnhart’s claim, as is required by Coopers & Lybrand

,

Mit chell a nd Johnson

. The absence of an issue of law regarding

Barnhar t’s qualified immunity claim that is separable from the

ultimate merits of Colston’s la wsuit removes this case from the

collateral-order category of fina l decisions and deprives this

Court of appellate jurisdiction. Furthermore, the issue of whether

Barnhart used excessive force in this case can be reviewed by this

Court upon appeal from a final judgment by the district court, and

such later review will have the benefit of all of the evidence

produce d at trial and the jury’s resulting findings of fact. In

two respects, therefore--the absence of an issue separate from the

merits and the ultimate reviewa bility of Barnhart’s defense on

appeal from final judgment--this case fails t o pass the

separability test of Co hen

, C oopers & Lybrand

, and Mitchell for

interlocutory appeal.

II. Summary Judgment

Assuming, arguendo, that appellate jurisdiction does exist

with respect to Barnhart’s appeal, the district court’s denial of

summary judgment should be affirmed.

The Fourth Amendment’s protection against unreasonable-17-

seizures of the person has been applied in causes of action under

42 U.S.C. § 1983 to impose liability on police offic ers who use

excessive force against citizens. The relevant inquiry is one of

objective reasonableness. S ee Mitchell

, 490 U.S. at 397. The

majority’s conclusion that Barnhar t ’s shooting of Colston was

objectively reasonable is highly dubious.

As a threshold matter, I again note that the majority does not

accept all of Colston’s factual allegations as true, as it purports

to do. Instead, the majority takes the opposite approach and

allows numerous inferences in Barnhart’s favor. For example,

Colston frames his complaint in terms of excessive force used in

preventing hi s attempted escape from abusive treatment. The

majority, however, describes a scene in which Colston violently

resisted the police, physically overpowered them, and then remained

on the scene, standing ready to inflict serious injuries had

Barnhart not resorted to using his firearm. The majority’s

treatment departs radically from the ordinary practice of indulging

factual inferences on summary judgment in favor of the nonmovant.

In light of the majority’s hostile view of Colston’s charge,

it is perhaps not surprising that the y erroneously conclude that

Barnhart’s conduct was objectively reasonable. A number of factors

lead me to the opposite conclusion.

First, it is significant that Colston’s assault on the

officers never involved the use of a weapon. Not only did Colston-18-

never use a weapon against Barnhart and Langford, but he did not

disarm them in any way. The ultimate balance of power was at all

times in the officers’ favor. Colston may have initially overcome

the officers with his bare fists, but it is not too much to expect

that police officers be pr epared to subdue an unruly detainee

without having to resort to the use of a firearm.

Second, the nature of the injuries inflicted by Colston does

not suggest t hat a resort to deadly force was objectively

reasonable. The record bears no indication that either Barnhart or

Langford required medical attention after the incident. It is true

that they were both knocked down, that they may have been

temporarily d azed, and that Barnhart’s glasses were broken. But

the effects of Colston’s backlash (against what a reasonable jury

could find was unnecessary violence initiated by the officers) were

not injuries of any serious or life-threatening magnitude.

Finally, because the officers never asserted their authority

to arrest Colston, we should be hesitant to indulge in Barnhart’s

favor the law’s recognition of factors wh ich may support the

reaso nableness of using deadly force against a fleeing person.

See, e.g.

, Garner

, 471 U.S. at 3 (officer called out “police,

halt”); Brothers v. Klevenhagen

, 28 F.3d 452 (5th Cir.) (individual

escaping from custody during transport from on e holding cell to

another), cert. denied

, 513 U.S. 1045 (1994); Fraire v. City of

Arlington

, 957 F.2d 1268 (5th Cir.) (officer yelled “Stop, police,”-19-

or “Halt, police,” several times ), c ert. denied

, 506 U.S. 973

(1992); Jamieson v. Shaw

, 772 F.2d 1205 (5th Cir. 1985) (high-speed

car chase). Regardless, Barnhart’s failure to give a warning,

which he was obliged to give, if feasible, before the use of deadly

force against Colston, see Garner

, 471 U.S. at 11-12, cuts strongly

against a finding on summary judgment that Barnhart’s actions were

objectively reasonable.

* * *

The district court’s ruling that there are disputed facts

material to determining the objective reasonableness of Barnhart’s

conduct should preclude appellate review of Colston’s assertion of

qualified immunity at this stage of the proceedings. Furthermore,

assuming that we do have jurisdiction, the judgment of the district

court should be affirmed because Colston has alleged a violation of

his constitutional rights, and a jury’s determination that

Barnhart’s conduct was not reasonable could be supported by the

summary judgment record.

In deciding that Barnhart’s conduct was objectively

reasonable, the majority stret ches the holding of T ennessee v.

Garner far beyond that decision’s progeny. It is notable that the

core result of Garner was a restriction, not an expansion, of the

use of deadly force by law enforcement officers. To the extent

that language in Garner attempts to trace the boundaries of the

constitutional use of deadly force by the police, it is very20

g:\opin\96-40634.dis difficult indeed to conclude that Barnhart’s actions fall within

the purview of Garner ’s guidance.

To give this Court’s stamp of approval to Barnhart’s actions

is to ignore the Supreme Court’s poignantly relevant observation:

It is not better that all felony suspects die than

that they escape. Where the suspect poses no

immediate threat to the officer and n o threat to

others, the harm resulting from failing to

apprehend him does not justify the use of deadly

force to do so. It is no doubt unfortunate when a

suspect who is in sight escapes, but the fact that

the police arrive a little late or are a little

slower afoot does n ot always justify killing the

s uspect. A police officer may not seize an

unarmed, nondangerous suspect by shooting him dead.

Garner , 471 U.S. at 11.

I respectfully dissent.