* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. R. 36.3. UNITED STATES COURT OF APPEALS Filed 6/27/96 FOR THE TENTH CIRCUIT

______ JOHNATHAN MARTIN WARWICK, ) ) Plaintiff-Appellant, ) ) v. ) No. 95-5250 ) (D.C. No. 95-C-454-B) PHILLIP EDWARD SNOW, individually ) (N. Dist. of Okla .) and in his official capacity as a ) police officer of the City of ) Tulsa, Oklahoma; BRYAN KEITH SMITH,) Individually and in his official ) capacity as a police officer of the) City of Tulsa; JOHN M. CRAWFORD, ) individually and in his official ) capacity as a police officer of the) City of Tulsa; and other presently ) unknown officers and officials, ) individually and in their official ) capacities as employees of the ) Tulsa Police Department, ) ) Defendants-Appellees. )

______ ORDER AND JUDGMENT *

______ Before SEYMOUR, BARRETT, and LIVELY*, Circuit Judges.

______ *The Honorable Pierce Lively, Senior Judge, United States Circuit Court of Appeals for the Sixth Circuit, sitting by designation.- 2 - ______
Jonathan Martin Warwick (Warwick) appeals from an o rder and judgment of the district court granting summary jud gment in favor of Phillip Snow (Snow), Bryan Smith (Smith), and Jo hn Crawford (Crawford), individually, and in their official cap acities as police officers of the City of Tulsa, Oklahoma (Cit y of Tulsa), and the City of Tulsa, hereinafter collectively referre d to as “appellees.” A summary of the stipulated facts fol lows. During the early morning hours of November 29, 1993 , Snow, while in uniform and acting in the scope of his emp loyment as a Tulsa Police officer, responded to a call reportingthat a suicidal subject was in the LaFortune Towers Apartments witha gun. Upon arrival, Snow met with the complaining witness and then proceeded with Smith to the eighth floor of the apartment hou se to look for the subject. At approximately 4:20 a.m., as Snow and Smith were checking an apartment, they heard someone approaching them frombehind. When they turned around, they observed Warwick walking d own the hallway toward them. Warwick had a .22 calibre pistol in h is hand, with the barrel in his mouth. Warwick, who had been dri nking alcohol, was mumbling that he had no reason to live and that he wanted to die. The officers positioned themselves at the cor ners and at the end of the hallway which was lined with resident ap artments. They- 3 -

yelled for Warwick to stop and not point the gun at them. Two apartment residents opened their doors into the hal lway. At the officers’ requests, the residents returned to theirapartments and closed their doors. At that point, Warwick, who was on Snow’s side of t he hallway, leaned against the wall, crouched down, pulled the gun out of his mouth and pointed it at Snow. Snow immediately fir ed multiple shots at Warwick in rapid succession. Warwick was hit by the shots and he dropped his gun. Although Warwick went down, he was conscious and it appeared to the officers that he was trying to grab his gun. The officers approached Warwick and Snow handcuffed him. Snow u sed minimal force to get Warwick’s hands behind his back and to secure the
handcuffs. At the time of the encounter, Snow and Smith had th e “cover” of a hallway corner while Warwick was fully exposedin an open hallway. Warwick had stopped his approach toward the officers and was not attempting to flee. Snow and Smith had re quested backup which they expected to arrive soon. During a heari ng, it was established that at the time of the incident Warwic k was intoxicated and that his gun was loaded. Warwick was subsequently charged with feloniously p ointing a deadly weapon at Snow. Because of Warwick’s two pr ior felonies involving drugs and weapons, the charge carried a maximum sentence- 4 -

of thirty years imprisonment. Warwick pled guilty pursuant to a plea agreement and was sentenced to five years impr isonment. Thereafter, Warwick filed this suit pursuant to 42 U.S.C. § 1983 alleging that the officers had used excessive force in violation of his Fourth Amendment rights; Snow and Smith had inadequate training; a conspiracy existed to suppr ess the number of shots actually fired at him; and, a conspiracy e xisted to undermine the investigation into the shooting. Sno w, Smith, and Crawford moved for summary judgment. The City of T ulsa moved to dismiss. The district court treated it as a motionfor summary judgment. The district court granted appellees summary judgme nt, finding/concluding that the officers were entitledto the defense of qualified immunity and that Warwick’s allegation s of a conspiracy were without merit. On appeal, Warwick contends that the district court erred in granting summary judgment in favor of appellees.
I. We review a district court’s grant or denial of summary judgment de novo , applying the same legal standard used by the district court. Lancaster v. Air Line Pilots Ass’nInt’l. , 76 F.3d 1509, 1516 (10th Cir. 1996). Summary judgment is a ppropriate if there is no genuine issue as to any material fact a nd the moving party is entitled to judgment as a matter of law. Hagelin for- 5 -

President Comm. of Kansas v. Graves , 25 F.3d 956, 959 (10th Cir. 1994), cert . denied , ___ U.S. ___ (1995). When applying this standard, we examine the factual record and reasona ble inferences therefrom in the light most favorable to the non-mo ving/opposing party. Wolf v. Prudential Ins. Co. of Am. , 50 F.3d 793, 796 (10th Cir. 1995).
II. Warwick contends that there were genuine issues of material facts relative to his claims of excessive force whi ch made summary judgment based on the appellees’ defense of qualifi ed immunity premature and improper. Warwick asserts that the genuine issues of material facts included: whether he was shot fir st in the back or in the stomach; whether it was physically possib le for Snow to have shot him in the back at the same instant he wa s pointing a weapon at Snow; the distance between the officers a nd him; the number of shots which Snow fired; and, the availabi lity of cover. Warwick maintains that although “[u]ltimately, Qual ified Immunity may [] be granted to Officer Snow and others . . . the actual material facts must first be established by a fact finding and not by the Court[sic].” (Opening Brief for the Appella nt at 19). Excessive force claims are analyzed under the reaso nableness
standard of the Fourth Amendment. Graham v. Connor , 490 U.S. 386, 394 (1989). The reasonableness inquiry is an objec tive one and highly fact dependent. Dixon v. Richer , 922 F.2d 1456, 1462 (10th- 6 -

Cir. 1991). The factors to be considered in determ ining whether the force used by an officer was reasonable include the severity of the crime at issue, whether the subject poses an immediate threat to the safety of the officer, and the whether the s ubject is resisting arrest. Graham , 490 at 396. “The ‘reasonableness’ of a particular use of force must be judged from the per spective of a reasonable officer on the scene, rather than with t he 20/20 vision of hindsight.” Id . “An officer’s use of deadly force in selfdefense is not constitutionally unreasonable.” Rom ero v. Board of County Comm’rs , 60 F.3d 702, 704 (10th Cir. 1995), cert . denied , ___ U.S. ___ (1996). Deadly force may be used if a n “officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to o thers.”
Tennessee v. Garner , 471 U.S. 1, 11 (1985). Qualified immunity is an affirmative defense agains t § 1983 claims alleging excessive force. Wilson v. Meeks , 52 F.3d 1547, 1553 (10th Cir. 1995). The defense provides immuni ty from suit, not merely from liability. Mitchell v. Forsyth , 472 U.S. 511, 526 (1985). Once the defense of qualified immunity is asserted, the plaintiff bears the burden of coming forward with f acts “sufficient to show both that the defendant’s alleged conduct v iolated the law and that that law was clearly established when the violation occurred.” Pueblo Neighborhood Health Ctrs., Inc. v . Losavio , 847 F.2d 642, 646 (10th Cir. 1988).- 7 -

The plaintiff “initially bears a heavy” burden and “must articulate the clearly established constitutional r ight and the defendant’s conduct which violated the right with s pecificity.” Mick v. Brewer , 76 F.3d 1127, 1134 (10th Cir. 1996). “To be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official wouldunderstand that what he is doing violates that right.’” Albright v . Rodriguez , 51 F.3d 1531, 1535 (10th Cir. 1995)(quoting Anderson v . Creighton , 483 U.S. 635, 640 (1987)). Applying these standards, we hold that the district court did not err in granting appellees summary judgment on W arwick’s excessive force claims based on the affirmative def ense of qualified immunity. Warwick failed to come forward with facts “sufficie nt to show both that [Snow’s] conduct violated the law and tha t the law was clearly established when the violation occurred,” P ueblo Neighborhood Health Ctrs., Inc. , 847 F.2d at 646. Moreover, Snow’s action was reasonable and withstood Warwick’s exces sive force claims. The parties stipulated, interalia , that: Snow was responding to a call within the course and scope ofhis duties as a City of Tulsa police officer; Warwick was intoxi cated in the hallway of an occupied apartment building at 4:20 a .m. with a gun stuck in his mouth; Warwick was threatening to kill himself and his girlfriend and mumbling that he had no reason to li ve and that he- 8 -

wanted to die; several apartment occupants had open ed their doors into the hallway during the time Warwick was in the hallway with a gun; Snow did not fire at Warwick until after Warwi ck had taken his gun out of his mouth and pointed it at Snow; and, S now immediately fired multiple shots at Warwick in rapid succession
. Significantly, Warwick acknowledged that his suit should be terminated if Snow was entitled to the defense of q ualified immunity and further acknowledged that the evidence was undisputed and uncontroverted that Snow had fired at him in re sponse to his pointing his gun at Snow:
The Court: I’m curious, if . . . Warwick is pointi ng a loaded weapon at Snow, and they’re 15 to 20 feet ap art in a lighted area, and Snow is genuinely in fear of da nger for himself and his life, and perhaps that of his partner, does he have a right to shoot this guy or not? What is your position on that? Or is he supposed t o stand there and let him shoot first? Mr. Low (Defense Counsel): He should not stand the re and let him shoot him first. This is a question of qua lified immunity, if it was reasonable for him to shoot himthen he should have shot him. He also had the cover - - The Court: In other words, you don’t contest that if it’s reasonable? If he was generally in fear that Warwick was pointing his gun at him and was capable of firing that weapon and shooting Snow first, that pe rhaps it may have been reasonable, is that your point? Mr. Low: If a reasonable officer would have though t it proper to shoot Warwick, yes, sir, then qualified immunity would kick in and the suit would be termin ated. We maintain it was not reasonable based on the tota lity of the circumstances.
* * *- 9 -

The Court: Does our record in this case undisputed reflect that Officer Snow was responding to a loade d weapon, at least what he thought was a loaded weapo n, being pointed at him 15 or twenty feet away and tha t’s the reason he fired? Is that what our record, uncontroverted establishes?
Mr. Low: Yes.
(Opening Brief for the Appellant, Addendum B at 14- 15 and 22). We hold that Snow’s actions were clearly reasonable , rendering summary judgment based on the affirmative defense o f qualified immunity appropriate. See Wilson v. Meeks , 52 F.3d at 1555 (“Any police officer in Officer Meeks’ position would rea sonably assume his life to be in danger when confronted with a manwhose finger was on the trigger of a .357 magnum revolver pointe d in his general direction.”).
III. Warwick states that the district court erred in gra nting appellees summary judgment on his conspiracy claim. Warwick reasons that the officers illegally conspir ed by under reporting the number of shots which Snow fire d at him. This conspiracy, according to Warwick, “was in effect anactual deprivation of [his] rights, as the completion of t he conspiracy substantially reduced the apparent amount of force used against [him].” (Opening Brief for the Appellant at 23). A conspiracy to deprive a plaintiff of a constituti onal or federally protected right under color of state law is actionable.- 10 -

Snell v. Turner , 920 F.2d 673, 701 (10th Cir. 1990), cert . denied , 499 U.S. 976 (1991). However, to prevail on such a claim, “a plaintiff must plead and prove not only a conspirac y, but also an actual deprivation of rights; pleading and proof ofone without the other will be insufficient.” Dixon v. City of Lawt on, Okla. , 898 F.2d 1443, 1449 (10th Cir. 1990). Warwick failed to prove “an actual deprivation of r ights.”
See Part II, supra . Furthermore, Warwick acknowledged that “[i]f a reasonable officer would have thought it proper t o shoot Warwick, yes, sir, then qualified immunity would kick in andthe suit would be terminated.” (Opening Brief for the Appellant, Addendum B at 14-15). Under these circumstances, we hold that th e district court did not err in granting appellees summary jud gment on Warwick’s conspiracy claims.
AFFIRMED
.

Entered for the Court:

James E. Barrett, Senior United States Circuit Judge