dissenting:
This case raises the question whether Deputy Jackson was entitled to qualified immunity when he used deadly force against Paul Reynolds. The answer to that question depends on whether “the totality of the circumstances ... justified the particular type of seizure” that sadly was carried out by Deputy Jackson. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.1991). Because material factual questions remain unanswered, I believe a jury should determine whether the totality of the circumstances that Deputy Jackson faced warranted his use of deadly force against Reynolds. Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir.1994). Accordingly, I dissent.
I agree that we should not use the “20/20 vision of hindsight” to second guess the actions of police officers when they use deadly force to defend themselves from imminent harm. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989). But this does not mean that a finding of qualified immunity is automatic. Rather, courts must assess whether the use of deadly force to effect a seizure was reasonable according to the requirements of the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). Part of this analysis requires us to determine whether the suspect posed “a threat of serious physical harm *1172either to the officer or to others.” Id. at 11, 105 S.Ct. at 1701. This inquiry is usually a question of fact for the jury. Sloman, 21 F.3d at 1468; Hopkins v. Andaya, 958 F.2d 881, 885 (9th Cir.1992).1
I am concerned that the facts as stated in the majority opinion leave unanswered factual questions regarding the actual threat of serious physical harm that Reynolds, who was sitting on the ground, posed to Deputy Jackson. Before he used lethal force, Deputy Jackson had his knee in Reynolds’s back and the barrel of his gun on Reynolds’s neck. Reynolds then suddenly “twisted” to the right, “swinging” a three-inch marlin spike in a backward motion towards Deputy Jackson. Jackson pulled the trigger of his gun, but the gun failed to fire. Jackson then stepped back and successfully fired his gun directly at Reynolds’s neck. In these circumstances a jury could reasonably conclude that Deputy Jackson should have dealt with the threat by using a billy club to subdue Reynolds, by stepping back further and trying to talk him into submitting, or by using other non-deadly means to take Reynolds into custody.
A jury could also find that Reynolds posed no threat to the public that would require an immediate deadly seizure of his person. There is no indication that Reynolds was trying to escape. If anything, the facts depict a disoriented individual, perhaps in need of medical attention, rather than someone attempting to kill or commit violent mischief against another person. Given these facts, a reasonable jury could have concluded that Reynolds did not actually pose a “threat of serious physical harm either to the officer or to others.” Garner, 471 U.S. at 11, 105 S.Ct. at 1701. Such a finding would preclude a grant of qualified immunity in this case. See Alexander v. City and County of San Francisco, 29 F.3d 1355, 1356 (9th Cir.1994) (Kozinski, J., concurring) (noting that in dealing with “a half-blind recluse, an eccentric, perhaps in need of medical attention,” who posed a non-dangerous nuisance to the community, the use of deadly force was a “mas-sivefly] disproportional[ ]” response to the problem).
In short, I believe a reasonable jury could conclude that Deputy Jackson’s seizure of Reynolds evinced an unwarranted use of deadly force, especially because the facts could support a finding that Reynolds posed no immediate threat of serious physical harm to the officer or other members of the community. I would reverse.
. In excessive force cases, the issue of qualified immunity should be considered together with the question whether the use of deadly force was reasonable. As we explained in Hopkins:
Police officers are entitled to assert a defense of qualified immunity from section 1983 liability if they reasonably believed in good faith that their actions were constitutional. In Fourth Amendment unreasonable force cases ... the qualified immunity inquiry is the same as the inquiry made on the merits.
958 F.2d at 885 n. 3 (citations omitted).