UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSE VASQUEZ ISQUIERDO,

Plaintiff-Appellant,

v.

WILLIAM JOSEPH FREDERICK, in his

individual capacity; GREGORY

MARSHALL COX, in his individual

No. 96-1713

capacity,

Defendants-Appellees,

v.

CITY OF SANFORD, NC; SANFORD

POLICE DEPARTMENT,

Parties in Interest.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Paul Trevor Sharp, Magistrate Judge.

(CA-94-689-1)

Submitted: July 15, 1997

Decided: August 5, 1997

Before HAMILTON and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William W. Plyler, MCMILLAN, SMITH & PLYLER, Katherine E.

Jean, Raleigh, North Carolina, for Appellant. Tyrus V. Dahl, Jr.,
Ursula M. Henninger, WOMBLE, CARLYLE, SANDRIDGE &

RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jose Vasquez Isquierdo appeals the entry of summary judgment

against him on federal and state claims arising from an incident in

which he was shot by police. The magistrate judge ruled that Officers

William Frederick and Gregory Cox are entitled to qualified immunity protecting them from suit. We affirm.

I

Isquierdo lived in Sanford, North Carolina, with Linda Polito and

her four children. Isquierdo is the father of the two younger children,

Megan, 3, and Jose, 2. On November 26, 1993, Thanksgiving Day,

Isquierdo arrived home about 11 p.m. with two friends. The two older

children were not home. Isquierdo and his friends drank beer and listened to music. Polito and the two children were in bed together.

Around midnight, Isquierdo woke the children and brought them out

to show his friends. The children were crying, and he sent them back

to bed.

Isquierdo's friends soon left. Shortly after midnight, Isquierdo took

a .32 caliber pistol, went outside, and began shooting into the air. He

reloaded, went back outside, and shot again. He then fired shots inside

the apartment. Isquierdo entered the bedroom where Polito and the

children were, and fired into the ceiling. According to Isquierdo's

deposition, he got to his knees beside the bed, apologizing in Spanish

and telling the three he loved them. He rose from his knees and was

walking toward the door to put the gun away when he was shot

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through the window by police. His blood alcohol level, measured at

the hospital, was .328.

The police version of events varies somewhat from that of

Isquierdo and Polito. At around midnight, Officers Frederick and Cox

heard gunfire, and the Sanford Police Department dispatched them

and other officers to investigate. They heard more shots while on their

way to Isquierdo's, and heard shots coming from inside the house

when they arrived. Officers Cox and Frederick approached a lighted

bedroom window. The curtains were drawn, but there was a threeinch, triangular opening at the bottom. The officers saw Isquierdo

through the opening with an automatic weapon in his hand. Polito and

the children were lying on the bed, and the children were crying.

According to Frederick and Cox, Isquierdo was speaking in a loud,

threatening manner in Spanish, which the officers did not understand,

and in English. He had the gun in his hand, near a child's head.

Frederick reported to Officer Cox and the dispatcher that this was a

possible hostage situation. Officer Frederick was convinced that

Isquierdo would shoot Polito and the children. The officers did not

know that Isquierdo lived in that apartment with Polito, that the

children were Isquierdo's, or that Isquierdo was drunk.

Officers Frederick and Cox crouched beneath the bedroom window, and were talking of ways to deal with the situation, when they

heard three more shots. Cox stood and saw Isquierdo standing at the

foot of the bed holding his gun. He sighted and fired twice. Frederick

stated that he also fired once. Isquierdo denies that Frederick fired; no

spent shell casing was found for his weapon. Isquierdo was shot in the

back. He is paralyzed from just below the knees down, and can walk

only short distances using leg braces. He is impotent and cannot control bowel and bladder functions. Isquierdo suffers severe back pain,

which disturbs his sleep.

The magistrate judge ruled that, although there were certain factual

disputes between the parties, they were not genuine, material issues

that would preclude the entry of summary judgment. He held that a

reasonable officer faced with the situation in question could perceive

a life or death circumstance, in which the use of deadly force was necessary to prevent loss of life. Therefore, he granted the officers' sum-

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mary judgment motion based on qualified immunity and dismissed

the state law claims. Isquierdo appeals.

II

We analyze a claim that law enforcement personnel used excessive

force in making an arrest de novo, under the Fourth Amendment reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989).

A district court first must determine whether defendants' conduct violated the plaintiff's constitutional rights, resolving what happened and

whether that conduct was unconstitutional. Pittman v. Nelms, 87 F.3d

116, 119 (4th Cir. 1996). If the defendant's acts did violate the plaintiff's constitutional rights, then the court must determine whether

defendant is entitled to qualified immunity from suit. The immunity

question depends on whether the relevant law was clearly established

at the time and whether a reasonable person in defendant's place

should have known the conduct was illegal. Id. 

At the summary judgment stage of an excessive force claim in

which qualified immunity is asserted, the district court can combine

these steps and resolve whether plaintiff has alleged the violation of

a clearly established constitutional right. Pittman v. Nelms, 87 F.3d

116, 119 (4th Cir. 1996). If the answer is a positive one, then the court

must decide whether the officers knew or should have known their

actions were illegal. Pittman, 87 F.3d at 119. If so, the defendants are

not entitled to immunity.

Force is not excessive if it is objectively reasonable under the circumstances, without regard to the underlying intent of the officers.

Graham, 490 U.S. at 397. Objective reasonableness is judged from

the point of view of a reasonable officer on the scene. Id. at 396. An

officer may use deadly force when he or she has good reason to

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

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

Graham, the court must focus on the moment force was used, so that

actions prior to that moment are irrelevant in evaluating whether the

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

Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3742 (U.S. June

27, 1997) (No. 96-1714).

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In this case, Isquierdo asserts that issues of fact exist that preclude

the entry of summary judgment. He claims that his evidence would

show that he did not threaten to kill Polito and the children. He also

asserts that the officers could see clearly into the bedroom, so Officer

Cox could see that Isquierdo's back was toward the bed, and he was

leaving the room. In addition, Isquierdo and Polito would testify that

he was not yelling at Polito and the children. Therefore, he asserts, he

was not posing a threat of deadly force at the time he was shot

and his shooting was unreasonable under the Fourth Amendment.

Isquierdo alleges that these facts must be resolved by a jury, citing

Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993), and Rainey v.

Connerly, 973 F.2d 321 (4th Cir. 1992). But unlike Kane and Rainey,

here the key issue is not how much force was used, but whether the

officers could reasonably perceive that Isquierdo posed a threat of

serious harm.

Isquierdo also argues that the decision to "take him out" was made

in advance by Officer Frederick, the ranking officer on the scene,

rather than by Officer Cox, who did all the shooting in Isquierdo's

factual scenario. Thus, he argues that the decision to shoot was not

a split-second judgment, made in tense, rapidly evolving circumstances, but a cool-headed decision. But according to the depositions

and statements of the officers, each made an independent decision to

shoot Isquierdo because of his threatening conduct and use of deadly

force in the presence of a woman and two small children. Both officers believed that if they did not react Isquierdo would have shot one

or more of the others. Isquierdo presented nothing to contradict their

statements. As the magistrate judge stated, even if Isquierdo was

walking toward the door and Cox saw him do so, there was no way

to tell whether he was pacing, going to reload the weapon, or about

to turn toward the bed and shoot.

We hold that the officers were entitled to summary judgment

based on qualified immunity. A reviewing court must not judge the

officers' conduct with "the 20-20 vision of hindsight." Graham, 490

U.S. at 396-97. Here, a reasonable officer on the scene could perceive

Isquierdo as a threat of serious harm to the other occupants of the

bedroom. Therefore, we affirm the entry of judgment on the § 1983

claims.

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III

Isquierdo's state law claims also fail. Law enforcement officers

may not be held liable for acting within the scope of their authority

unless their actions were corrupt or malicious. Smith v. North

Carolina, 222 S.E.2d 412, 430 (N.C. 1976). Under N.C. Gen. Stat.

§ 15A-401(d)(2) (Supp. 1996), an officer can use deadly force in an

arrest to defend himself or another from what he reasonably believes

is the imminent use of deadly force. Thus, judgment was properly

granted on the state claims, as well.

We affirm the judgment in favor of Officers Frederick and Cox.

We deny appellant's motion for oral argument. 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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