Filed: November 14, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 01-2312

(CA-00-1771-DKC)

Marion Gray-Hopkins, etc.,

Plaintiff - Appellee,

versus

Prince George’s County, Maryland, et al.,

Defendants - Appellants.

O R D E R

The court amends its opinion filed October 30, 2002, as

follows:

On page 12, second full paragraph, lines 6-7 -- the sentence

is corrected to read “Neither statutory nor common law immunity is

available to a Maryland public official who acts with malice.”

For the Court - By Direction

/s/ Patricia S. Connor 

 Clerk 
PUBLISHED 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

4444444444444444444444444444444444444444444444447

MARION GRAY-HOPKINS, in her

individual capacity, as mother,

Personal Representative and next

friend of Gary Hopkins, Deceased,

 Plaintiff-Appellee,

 v.

PRINCE GEORGE'S COUNTY,

MARYLAND; BRIAN C. CATLETT, A

Police Officer of Prince George's

County, Maryland,

 Defendants-Appellants,

 and No. 01-2312 

PRINCE GEORGE'S COUNTY POLICE

DEPARTMENT; JOHN DOE, A Police

Officer of Prince George's County,

Maryland and Supervisor of Brian

Catlett; DEVIN C. WHITE, A Police

Officer of Prince George's County,

Maryland; JAMES SKYRM, A Police

Officer of Prince George's County,

Maryland and Supervisor,

 Defendants.

JOHN S. FARRELL,

 Movant.

4444444444444444444444444444444444444444444444448

Appeal from the United States District Court 

for the District of Maryland, at Greenbelt. 

Deborah K. Chasanow, District Judge. 

(CA-00-1771-DKC) 

Argued: April 2, 2002 

Decided: October 30, 2002 
Before MOTZ, Circuit Judge, Walter K. STAPLETON, 

Senior Circuit Judge of the United States Court of Appeals 

for the Third Circuit, sitting by designation, and 

W. Craig BROADWATER, United States District Judge 

for the Northern District of West Virginia, 

sitting by designation. 

____________________________________________________________

Reversed and remanded by published opinion. Senior Judge Stapleton

wrote the opinion, in which Judge Motz and Judge Broadwater joined.

____________________________________________________________

COUNSEL 

ARGUED: Crystal Renee Mittelstaedt, COUNTY ATTORNEY'S

OFFICE, Upper Marlboro, Maryland, for Appellants. Walter L. Blair,

College Park, Maryland; C. William Michaels, Baltimore, Maryland,

for Appellee. ON BRIEF: Sean D. Wallace, County Attorney, John

A. Bielec, Deputy County Attorney, Upper Marlboro, Maryland, for

Appellants. Johnnie L. Cochran, Jr., THE COCHRAN FIRM, New

York, New York, for Appellee.

____________________________________________________________

OPINION 

STAPLETON, Senior Circuit Judge:

 This civil rights action arises from an incident in which a Prince

George's County police officer killed the son of plaintiff/appellee,

Marion Gray-Hopkins. The officer, Brian Catlett, appeals from the

District Court's denial of his motion for summary judgment based on

a claim of qualified immunity. He and the County also appeal from

the District Court's refusal to grant them summary judgment with

respect to certain of Gray-Hopkins' state law claims.

I. BACKGROUND 

 Officer Catlett shot and killed Gary Hopkins, on November 27,

1999, following a dance at the West Lanham Fire Department in

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Prince George's County, Maryland. The parties hotly dispute the

events leading up to this shooting. The District Court reviewed both

parties' version of the facts and found sufficient evidence, in the form

of witness affidavits and DNA analysis, to support each of those proffered versions.

 According to appellants, after the dance a fight broke out in the

parking lot. Two off-duty police officers working as private security

guards at the dance, Officers Catlett and Marriott, were at the scene.

A crowd formed, which they were unable to disperse. Catlett called

the dispatcher to send on-duty officers to assist.

 The occupants of a cream-colored Cutlass and a black, four-door

Cadillac were the primary participants in the fighting. Marriott heard

a person in the crowd state that an individual in the Cutlass had a gun.

The information regarding the presence of the gun was radioed to the

other officers who were on their way to the scene. Officer Devin

White was one of these officers who heard this information as he

approached the firehouse.

 When White arrived at the firehouse, he stopped his marked police

vehicle in the front of the driveway. The Cutlass was not moving

when White approached it with his gun drawn. He then asked those

in the vehicle several times to let him see their hands. The passenger

in the front seat got out of the vehicle and disappeared into the crowd.

The driver complied with White's request. Gary Hopkins was sitting

in the rear of the vehicle. He did not raise his hands, but instead

reached out of the car and grabbed at White's gun. Officer White then

backed away from the Cutlass with his gun still in his hands. Gary

Hopkins then got out of the car.

 White continued to back away from the car. He ordered Hopkins,

who was then completely out of the car to "Stop. Let me see your

hands." Hopkins and White then struggled for control of White's

weapon. In the course of this struggle, White repeatedly yelled for

Hopkins to "Get off, let go, let me see your hands." While still engaging in a struggle with Hopkins over the control of his weapon, White

heard a shot, which apparently forced Hopkins to let go of the

weapon. Catlett fired that gunshot, which fatally struck Gary Hopkins.

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 In support of their version of events, appellants rely upon the deposition testimony of Dr. Fowler and Agent Smrz. According to Dr.

Fowler, Hopkins had a laceration on his left index finger that was

caused by the sharp edge of the front sight of a Beretta handgun

issued by the Prince George's County Police Department. Hopkins'

DNA was recovered from White's handgun, according to Agent

Smrz's testimony.

 The appellees present a strikingly different account of the events

leading up to the shooting. Although appellees do not dispute that a

"scuffle" ensued after the dance was shut down around 2:30 a.m., they

present testimony that Hopkins was a peacemaker. He suggested that

everyone should leave the parking lot and go to his mother's house.

As the car Hopkins was riding in was attempting to exit the parking

lot, White stopped the car. After Hopkins exited the vehicle, he was

in a neutral position with his hands raised and at no point threatened

White or grabbed his gun. According to a witness, Tyrone Freeman,

Hopkins' hands were raised and he was facing White when Catlett

fired his gun.

 The District Court found material facts to be in dispute, and viewing the facts in the light most favorable to Gray-Hopkins, held that

Catlett was not entitled to summary judgment on his claim for qualified immunity. Specifically, the Court found that there was a genuine

dispute as to whether excessive force was used and whether a reasonable officer would have known that his actions were unlawful. The

District Court further held that summary judgment was not warranted

on certain of Gray-Hopkins' state law claims.

II. THE FEDERAL CLAIM 

 Gray-Hopkins asserts that Catlett used excessive force against her

son in violation of his rights under the Fourth and Fourteenth Amendments. Catlett insists that he is entitled to qualified immunity from

suit on this claim. He is entitled to that immunity unless a reasonable

officer in his position would have known that firing his weapon at

Gary Hopkins would violate his constitutional right to be free of

excessive force. Anderson v. Creighton, 483 U.S. 635 (1987). Catlett

asks that we reverse the District Court's determination that he was not

so entitled on the current record. As a threshold matter, we must

4 
determine whether we have jurisdiction to review the District Court's

determination and, if so, the scope of that jurisdiction.

A. Jurisdiction 

 We have jurisdiction to review final orders of district courts under

28 U.S.C. § 1291. Under the collateral order doctrine, an order is final

for purposes of § 1291, even if it does not terminate proceedings in

the district court, so long as it conclusively determines the disputed

question, resolves an important issue completely separate from the

merits of the action, and would be effectively unreviewable on appeal

from a final judgment. Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541 (1949). Because qualified immunity is an immunity from

having to litigate, as contrasted with an immunity from liability, "it

is effectively lost if a case is erroneously permitted to go to trial."

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As a result, a district

court's order denying a motion for summary judgment based on qualified immunity is effectively unreviewable on appeal from a final

judgment and, assuming the other two requirements are met, is

appealable as a final order under the collateral order doctrine. Id.

 Our jurisdiction to review orders denying a summary judgment

motion based on qualified immunity is limited, however, to the

review of legal issues. Johnson v. Jones, 515 U.S. 304 (1995).

Accordingly, "we possess jurisdiction to consider an appeal from a

decision of a district court rejecting a government official's claim of

entitlement to qualified immunity to the extent that the official maintains that the official's conduct did not violate clearly established

law." Winfield v. Bass, 106 F.3d 525, 529 (4th Cir. 1997). On the

other hand, "to the extent that the appealing official seeks to argue the

insufficiency of the evidence to raise a genuine issue of material fact

—for example, that the evidence presented was insufficient to support

a conclusion that the official engaged in the particular conduct alleged

—we do not possess jurisdiction under § 1291 to consider the claim."

Id. at 529-30. In Bass we summarized and restated the principles

articulated by the Supreme Court in Johnson as follows:

In other words we possess no jurisdiction over a claim that

a plaintiff has not presented enough evidence to prove that

the plaintiff's version of the events actually occurred, but we

5 
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.

 Where, as here, the District Court articulates the facts as it viewed

them in determining that summary judgment was inappropriate, the

task of an appellate court is relatively straightforward. It must accept

those facts and then determine whether, based on those facts, a reasonable person in the defendant's position could have believed that he

or she was acting in conformity with the clearly established law at the

time. To the extent the appellant argues that the record evidence,

viewed in the light most favorable to the appellee, is insufficient to

support the facts as articulated by the District Court, the reviewing

court lacks jurisdiction to entertain the appeal. Id. at 529-30.

 These principles dictate that we decline to entertain most of

Catlett's arguments with respect to the excessive force claim. The

District Court's opinion concludes that there is evidence in the record

from which a trier of fact could conclude, inter alia, that Hopkins did

not resist police commands or struggle outside of the car with White

for his gun and that he was standing still with his hands raised over

his head when he was shot. We cannot consider Catlett's arguments

that the record will not support those findings.

 Appellants, for example, point to the testimony of Dr. Fowler and

Agent Smrz and challenge the District Court's finding that there is a

genuine issue of material fact regarding whether Gary Hopkins

grabbed for White's gun once he was out of the car. The District

Court concluded, however, that the fact that Hopkins' DNA was

found on the front sight of White's handgun is not dispositive of the

question of whether Hopkins resisted after exiting the vehicle, given

the testimony that he lunged for the gun twice, once before getting

completely out of the car. Appellants are not here arguing a point of

law. Rather, they are arguing "the insufficiency of the evidence to

raise a genuine issue of material fact." Winfield, 106 F.3d at 529. We

lack jurisdiction to consider this argument.

6 
B. Qualified Immunity 

 In order to determine whether the District Court erred in rejecting

Catlett's claim to qualified immunity, we must first ask whether a violation of a right secured by the Fourth Amendment occurred; we must

then inquire whether that right was so clearly established at the time

of the violation that a reasonable officer in Catlett's position could not

have believed he was acting legally. Rogers v. Pendleton, 249 F.3d

279, 286 (4th Cir. 2001). Once we accept the facts that the District

Court determined to be supported by the record, these issues are not

difficult.

 The following Fourth Amendment law was clearly established at

the time of the events giving rise to this suit. Whether the State used

excessive force is determined under the Fourth Amendment's "objective reasonableness standard."1 Graham v. Connor, 490 U.S. 386,

388, 394 (1989). Applying this standard "requires a careful balancing

of `the nature and quality of the intrusion on the individual's Fourth

Amendment interests' against the countervailing government interests

at stake." Id. at 396 (quoting United States v. Place, 462 U.S. 696,

703 (1983)). The analysis of an excessive force claim further "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others and whether he is actively resisting arrest or attempting to evade

arrest by flight." Id. Moreover, because police officers are often

forced to make split-second judgments — in circumstances that are

____________________________________________________________

 1 In addition to asserting that Catlett violated Hopkins' Fourth Amendment right, Gray-Hopkins contends that he also violated Hopkins' Fourteenth Amendment substantive due process rights. In Graham, the

Supreme Court held that "a free citizen's arrest, investigatory stop, or

other `seizure' of his person, . . . are properly analyzed under the Fourth

Amendment's `objective reasonableness' standard, rather than under a

substantive due process standard." 490 U.S. at 388. The Court held that

such a claim "is most properly characterized as one invoking the protections of the Fourth Amendment" and that the validity of an excessive

force claim "must then be judged by reference to th[is] specific constitutional standard which governs that right." Id. at 394. Thus, we need not

address Gray-Hopkins' claim regarding the alleged violation of Gary

Hopkins' substantive due process rights.

7 
tense, uncertain, and rapidly evolving, the facts must be evaluated

from the perspective of a reasonable officer on the scene, and the use

of hindsight must be avoided. Tennessee v. Garner, 471 U.S. 1, 8-9

(1985)). Deadly force, however, "is . . . justified only where a reasonable officer would have `sound reason to believe that a suspect poses

a threat of serious physical harm to the officer or others.'" Clem, 284

F.3d at 550 (citing Elliot v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)).

 Based on the plaintiff's version of the events giving rise to this

case, which the District Court found to be supported by competent

evidence, Hopkins was standing still with his hands raised over his

head at the time of the fatal shot, he was not resisting arrest, and he

was not posing a threat to the safety of the officers or others. Based

on these facts, a trier of fact could clearly conclude that a Fourth

Amendment violation occurred and that a reasonable officer in

Catlett's position could not have believed he was acting lawfully.

III. THE STATE LAW CLAIMS 

 The complaint alleges (1) a violation of Articles 24 and 26 of the

Maryland Declaration of Rights, (2) wrongful death and survivorship

claims, (3) an assault and battery claim, and (4) a general negligence

claim. Each claim is based on essentially the same factual allegations

as the federal claim. In response to each of these claims, Catlett

asserted a public official immunity defense and the County asserted

a governmental immunity defense. The District Court held that each

was entitled to immunity with respect to the negligence claims but not

entitled to immunity with respect to the constitutional and intentional

tort claims. Catlett and the County asked us to review the District

Court's refusal to grant them summary judgment on the constitutional

and intentional tort claims.

A. Appellate Jurisdiction 

 In determining whether appellate jurisdiction exists"`the parties

. . . in a federal action such as this one involving pendent state claims,

are bound by federal procedural rules governing appeals, including

the collateral order doctrine.'" In re City of Philadelphia Litigation,

49 F.3d 945, 957 (3d Cir. 1995) (citing Brown v. Grabowski, 922 F.2d

1097, 1106 (3d Cir. 1990)); see also Sorey v. Kellett, 849 F.2d 960,

8 
962 (5th Cir. 1988); Marrical v. Detroit News, Inc., 805 F.2d 169,

172 (6th Cir. 1986). We must look to substantive state law, however,

in determining the nature and scope of a claimed immunity. In re City

of Philadelphia Litigation, 49 F.3d at 957.

 Appellants' brief asserts that they are entitled to summary judgment on the merits of the assault and battery claims and that the complaint "fails to state a claim [for] wrongful death and survival." The

collateral order doctrine does not provide us with appellate jurisdiction over contentions, like these, that are unrelated to immunity

issues, and we know of no other basis for such jurisdiction. See O'Bar

v. Pinion, 953 F.2d 74 (4th Cir. 1991).

 To the extent these appeals challenge the District Court's refusal

to honor claims of public official and governmental immunity, we

must apply the collateral order doctrine with due regard to the nature

and scope of the immunity. We have appellate jurisdiction if, under

state law, the immunity is an immunity from suit, but we lack such

jurisdiction if it is an immunity from liability only. Where immunity

from liability is involved, any error of the district court is effectively

reviewable in an appeal from the final judgment. As the Third Circuit

Court of Appeals explained in Brown v. Grabowski, 922 F.2d 1097,

1106-7 (3d Cir. 1990):

A Mitchell analysis coupled with the teachings of Erie Railroad v. Tomkins, 304 U.S. 64 (1938) dictates that the right

to an interlocutory appeal from the denial of a claim of

absolute or qualified immunity under state law can only

exist where the state has extended an underlying substantive

right to be free from the burdens of litigation arising from

acts taken in the course of official duties.

See also Sheth v. Webster, 145 F.3d 1231, 1236 (11th Cir. 1998).

1. Governmental immunity 

 Governmental immunity, which is enjoyed by counties and municipalities under Maryland law, is a more limited form of the sovereign

immunity enjoyed by the State. Austin v. City of Baltimore, 405 A.2d

9 
255, 256-57 (Md. 1979). Counties are afforded governmental immunity only when they perform governmental, as opposed to propriety

functions. While that immunity is, accordingly, "much narrower than

the immunity of the State, [it is] nevertheless . . . derived from the

State's sovereign immunity." Board of Educ. of Prince George's

County v. Town of Riverdale, 578 A.2d 207, 210 (Md. 1990).

 The sovereign immunity of the State of Maryland is an immunity

from suit. Since this is its source, governmental immunity is of the

same nature. See Maryland v. Hogg, 535 A.2d 923, 927 (Md. 1988)

("[T]he State's sovereign immunity not only protects the public treasury but also protects the State and its instrumentalities from standing

trial."); City of District Heights v. Denny, 719 A.2d 998, 1004 (Md.

Ct. App. 1998) ("[W]here the effect of the denial of a motion for summary judgment is to reject a defendant's claim of governmental

immunity, an appeal `does apparently lie under the collateral order

doctrine.' ").

2. Public official immunity 

 The nature and scope of the public official immunity enjoyed by

municipal and county officials acting in a discretionary capacity in

Maryland is less clear. On two occasions the Maryland Court of Special Appeals has permitted appeals under the collateral order doctrine

from denials of summary judgment with respect to claims of common

law public official immunity, thus implying that this immunity is an

immunity from suit. Baltimore Police Dept. v. Cherkes, 780 A.2d 410

(Md. Ct. App. 2001); Port Deposit v. Petetit, 688 A.2d 54 (Md. Ct.

App. 1997).2

 The Maryland Court of Appeals has yet to provide guidance on the issue, however. In the absence of such guidance, we pre-

____________________________________________________________

 2 "In Maryland, public official immunity is recognized both at common

law and by statute." City of District Heights v. Donny, 719 A.2d 998,

1002 (Md. Ct. App. 1998). Appellants take the position that the common

law of public official immunity "has been codified within § 5-507(b)(1)

of the Md. Code Ann. Cts. & Jud. Process" and thus do not suggest that

there is a material difference between the two. Appellants Opening Br.

p. 25 n.2. See Ashton v. Brown, 660 A.2d 447, 470 n. 23 (Md. 1995)

(reviewing legislative history suggesting that § 5-507(b)(1) was intended

to codify the common law).

10 
dict that the Maryland Court of Appeals, if required to determine this

issue, would look to the common law of official immunity and reach

the same conclusion that the Supreme Court of the United States has

reached based on that common law in fashioning the federal doctrine

of qualified immunity from civil rights liability.

 In Pierson v. Ray, 386 U.S. 547 (1967), the Supreme Court held

that "the defense of good faith and probable cause . . . available to

[police] officers in the common law action for false arrest and imprisonment is also available to them in the action under § 1983." There

followed a series of decisions in which the Supreme Court fashioned

the law of qualified immunity by looking to the common law. See,

e.g., Harlow v. Fitzgerald, 457 U.S. 800, 806-08 (1982); Owen v. City

of Independence, 445 U.S. 622, 638 (1980). Each of its "decisions on

§ 1983 immunities . . . [has been] predicated upon a considered

inquiry into the immunity historically accorded by the relevant common law and the interests behind it." Imbler v. Pachtman, 424 U.S.

409, 421 (1976). When presented directly with the issue of whether

qualified immunity is an immunity from suit in Mitchell v. Forsyth,

472 U.S. 511, 525-26 (1985), the Supreme Court looked to the interests traditionally viewed as supporting common law immunity for

public officials:

The conception animating the qualified immunity doctrine

as set forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982),

is that "where an official's duties legitimately require action

in which clearly established rights are not implicated, the

public interest may be better served by action taken`with

independence and without fear of consequences.'" Id., at

819, quoting Pierson v. Ray, 386 U.S. 547, 554 (1967). As

the citation to Pierson v. Ray makes clear, the "consequences" with which we were concerned in Harlow are not

limited to liability for money damages; they also include

"the general costs of subjecting officials to the risks of

trial—distraction of officials from their governmental

duties, inhibition of discretionary action, and deterrence of

able people from public service." Harlow, 457 U.S. at 816.

Indeed, Harlow emphasizes that even such pretrial matters

as discovery are to be avoided if possible, as "[i]nquiries of

11 
this kind can be peculiarly disruptive of effective government." Id. at 817.

 We predict that the Maryland Court of Appeals would find that the

common law of official immunity was founded in part on the same

concerns and would reach a similar conclusion. On that basis, we hold

that we have jurisdiction to review the District Court's refusal to

honor Catlett's claims of public official immunity.

B. Public Official Immunity 

 The District Court held that Catlett was not entitled to public official immunity with respect to the state law constitutional and intentional tort claims because the "[p]laintiff's version of the facts, if

accepted, would justify a conclusion that . . . Catlett shot and killed

Mr. Hopkins with malice and without justification." App. 341. We

agree. Neither statutory nor common law immunity is available to

a Maryland public official who acts with malice. DiPino v. Davis, 729

A.2d 354, 370 (Md. 1999) (common law public official immunity is

not available "if the officer . . . acts with malice"); Md. Code Ann.

Cts. & Jud. Proc. § 5-507(b)(1) (official of a municipal corporation is

entitled to immunity only "while acting in a discretionary capacity,

without malice, and within the scope of [his] employment.").3

C. Governmental Immunity 

 We also agree with the District Court's determination that the

County is not entitled to governmental immunity with respect to the

constitutional claims. DiPino, 729 A.2d at 371; Clea v. City of Baltimore, 541 A.2d 1303, 1305 (Md. 1988). We conclude, however, that

____________________________________________________________

 3 Appellee insists that public official immunity is never available in

Maryland with respect to a constitutional or intentional tort. Given our

conclusion with respect to malice, we have no occasion to reach these

issues. See Md. Code Ann. Cts. & Jud. Proc. § 5-507(b)(1) (conferring

immunity on officials of municipal corporations without an express

exclusion of constitutional or intentional torts) and Thomas v. City of

Annapolis, 688 A.2d 448, 457 (Md. Ct. App. 1997) (noting that the Court

of Appeals has not decided whether § 5-507(b)(1) "codifies common law

immunity or whether it applies to intentional and constitutional torts").

12 
the County enjoys governmental immunity with respect to the claims

that seek to impose respondeat superior liability for an intentional tort

committed by Catlett. Under Maryland law, a county "is immune

from liability for tortious conduct committed while the entity was acting in a governmental capacity." DiPino, 729 A.2d at 370. Assuming

that Catlett was acting within the scope of his employment so as to

render respondeat superior applicable, he clearly was performing a

governmental function. Id. (holding that law enforcement is a governmental function).

 The fact that Catlett is not entitled to public official immunity with

respect to intentional torts does not mean that the County is without

governmental immunity with respect to such torts. In DiPino, a

municipal police officer was sued for false imprisonment, malicious

prosecution and abuse of process, all intentional torts. The plaintiff

also sought to impose respondeat superior liability on the municipality for those torts. The Maryland Court of Appeals held that while the

officer was not entitled to public official immunity, the municipality

was entitled to governmental immunity because the officer was

alleged to be performing a governmental function. Id. at 370.

IV. CONCLUSION 

 With one exception, we agree with the District Court's disposition

of all of the issues we have jurisdiction to review. We must reverse

the order appealed from, however, to the extent it denied the County's

motion for summary judgment on the plaintiff's intentional tort

claims. We will remand for further proceedings consistent with this

opinion.

REVERSED AND REMANDED 

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