concurring in the denial of rehearing en banc:
So it has come to this — my dissenting colleagues would require police officers to gamble with their lives in order to avoid civil liability. It is one thing for courts to deny qualified immunity on the basis of a violation of clearly established law. It is quite another to demand as a condition of that immunity that officers actually await the bullet.
The court’s opinion in this case sets forth my position, 99 F.3d 640 (4th Cir.1996), and I would respond to the call for an en banc hearing only briefly here. The dissent effectively reads Johnson v. Jones, — U.S. —, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and Behrens v. Pelletier, — U.S. —, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), to abolish the right of law enforcement officers to bring interlocutory appeals within this circuit. It converts even a mere statement that a material fact is undisputed into a forbidden debate over genuineness. If the dissent’s position were to prevail, the role of courts under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), in promoting the purposes of qualified immunity on given facts will be severely stricken.
If qualified immunity does not obtain here, it will not obtain anywhere. All plaintiffs need do to receive an automatic trial is simply assert, without any evidence, that “the police are lying.” The assertion that Elliott had no gun was only that — an assertion unsupported by any evidence, and I do not understand such bald assertions to substitute for material issues of fact. A skeptical look at police conduct is one thing, but the contention that the officers planted a gun on Elliott requires that courts embrace conspiracy theories of which Oliver Stone would be proud. In fact, not even appellees were so bold as to directly claim either that Elliott did not have a gun or that the gun found on him was planted by the police. Those assertions arise from insinuation embellished by imagination, and that is no replacement for material disputes of fact.
This case is not, as the dissent would have it, a contest over the officers’ credibility. Faced with the potential danger of an aggressive, intoxicated suspect, officer Leavitt handcuffed Elliott and placed him in the police car. Shortly thereafter, he and officer Cheney saw Elliott pointing a gun at them at close range with his finger on the trigger. Extensive independent evidence corroborated the officers’ account of events. A blue fiber was found caught on the trigger of the gun when it was retrieved from the scene of the incident. FBI laboratory analysis matched the blue fiber to those found on Elliott’s blue shorts, indicating that Elliott indeed had the gun concealed on his person when he was stopped. Several months before the shooting, a motorist was involved in an altercation with Elliott where Elliott jumped on the motorist’s car, smashed in a window -with his foot, verbally abused the motorist, and drew his gun. The motorist signed an affidavit in which he identified the gun recovered from Elliott’s body as the same weapon with which Elliott had threatened him in the prior incident. In addition, the medical report on Elliott’s wounds concluded that “[t]he injuries of the right fingertips and base of the thumb” were “best explained by the deceased’s having held an object at the time he sustained his injuries.” This corroborates the officers’ testimony that Elliott was pointing a gun.
The testimony of Leavitt’s supervisor, Sergeant Brown, likewise supports Leavitt and Cheney’s testimony that Elliott had the gun *176out when they fired at him. In his deposition, Sergeant Brown stated that immediately before the officers began firing, he heard Leavitt yell “gun, gun” and order Elliott to drop the weapon. This testimony may be discounted only if one assumes either that Leavitt spontaneously put on a masterful theatrical performance to deceive Sergeant Brown or that Sergeant Brown also participated in the “coverup.” Brown also testified that the officers were standing immediately next to the passenger side of the police cruiser, where Elliott was seated, when the shooting took place.*
Critical portions of the evidence could not have been planted. The gun, for instance, had distinguishing features, a cut off barrel and white plastic grips. These are the very features which enabled the motorist to identify the weapon as Elliott’s. Moreover, the officers could not have manufactured the wounds indicating that Elliott was holding a gun at the time he was shot. Together, this evidence substantiates the critical element of the officers’ claim, that Elliott was pointing a gun when they shot him. Appellees’ coverup theory also fails to explain the fact that the two officers reacted to the threat instantly and simultaneously, hardly the stuff of scripted conspiracy. In order to conclude that Elliott did not have a gun, one would have to ignore all this evidence and suppose that the defendant officers, Sergeant Brown, the motorist, and the medical examiner’s staff were all part of an elaborate coverup. To expand the allegations that far transforms appellees’ theory from the baseless to the absurd.
Even the dissent’s efforts to create a case for plaintiffs falter. The fact that a suspect was intoxicated makes him no less dangerous and the fact that he was handcuffed tells us nothing about whether he was armed. The dissent’s observation that the gun was unloaded does not alter the fact that Elliott had a gun, and that the officers saw the gun pointed directly at them. The officers’ subjective intent in firing twenty-two bullets is simply irrelevant to the question whether the officers’ behavior was objectively reasonable under Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The number of bullets fired is likewise irrelevant; if it was objectively reasonable for the officers to use deadly force, it was also objectively reasonable for the officers to continue firing until they were sure the threat to their lives had ceased.
Nothing in Johnson or Behrens ' sought to abolish interlocutory appeals in cases where the material facts are not in dispute. Disputed facts will exist in virtually every confrontation between citizens and law enforcement officers, but Behrens made clear that the mere existence of contested facts does not eliminate the right of officials to appeal a denial of qualified immunity. In fact, the Supreme Court stated as much in a sentence the dissent refuses to heed: “Denial of summary judgment often includes a determination that there are controverted issues of material fact, and Johnson surely does not mean that every such denial of summary judgment is nonappealable.” Behrens, — U.S. at —, 116 S.Ct. at 842. When reviewing an interlocutory appeal pursuant to Mitchell v. Forsyth, Johnson instructs us not to second-guess a trial court on questions of “evidence sufficiency.” See Johnson, — U.S. at —, 115 S.Ct. at 2156. Where the material facts are undisputed, however, an appellate court’s determination that the defendant officers are entitled to qualified immunity does not require any reweighing of the evidence. Such a determination is a purely legal one involving only “whether or riot certain'given facts show[ ] a violation of *177‘clearly established’ law.” Id. at —, 115 S.Ct. at 2155.
It is instructive to note just how pitifully little my dissenting colleagues would say suffices to vitiate qualified immunity and dismiss an appeal. Despite Johnson’s recognition that appellate review of a denial of qualified immunity will at times require a “detailed evidence-based review of the record,” id. at —, 115 S.Ct. at 2159, the dissent finds even so much as a mere reference to the evidence on defendants’ side of the case to involve an impermissible reweighing. In fact, the dissent chastises the defendants’ appellate brief for deigning to argue that plaintiffs’ case lacked any relevant evidentiary support. The dissent’s approach is thus apparent: plaintiffs need only assert some factual dispute — however irrelevant to the question of qualified immunity— to ensure themselves a trial, and defendants will not even be permitted to argue that the material facts are undisputed because, according to the dissent, merely making that argument suffices to dismiss their appeal. Consequently, neither the appellate court nor the officers themselves are so much as permitted to make reference to the record for fear of engaging in the forbidden reevaluation of the evidence. It becomes transparent that the upshot of the dissent will be to dispense with interlocutory appeals altogether and with any meaningful concept of qualified immunity overall.
This cannot be what the Supreme Court had in mind in Johnson and Behrens. I do not understand Johnson to suddenly disavow a decision, Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that has been a staple of that Court’s jurisprudence for many years. Indeed, the Court’s holding was premised on the fact that the sufficiency question before it was distinguishable from the qualified immunity issues subject to interlocutory appeal under Mitchell. Johnson, — U.S. at —-—, 115 S.Ct. at 2156-58. Behrens even more strongly reaffirmed Mitchell. The main holding in Behrens, of course, was that officials asserting qualified immunity are entitled to not one but two interlocutory appeals on the question of immunity. That case was not the action of a Court bent upon impairing immunity appeals. Instead, Behrens ’ warning that appellate jurisdiction is not abolished simply because the case involves asserted factual disputes was an apparently vain attempt to preempt precisely the sort of over-reading of Johnson proposed by my dissenting colleagues. Under Behrens, we are to respect the role reserved for the trial court by Johnson, but we are not to slam the door to interlocutory appeals on the district court’s mere recitation of the mantra that “a genuine issue of fact exists.” If this mantra were sufficient to insulate a district court’s order from appellate scrutiny, it would become boilerplate in every denial of an immunity defense. While the dissent expresses the respect that each of us has for the efforts of district judges, surely the few brief remarks on the critical issue in this case are not what the dissent desires by way of explication when a defense of qualified immunity is denied.
Other circuits have not hesitated to correct the erroneous application of immunity doctrine on the basis of given material facts. See Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir.1996) (awarding immunity and finding that Johnson allows immediate review where “the facts alleged in the record before us are not in dispute”); Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir.1996) (awarding immunity and finding that Johnson allows immediate review where “[i]n contrast to Johnson, there is no significant fact-related dispute about [defendants’] actions”); Prosser v. Ross, 70 F.3d 1005, 1006-07 (8th Cir.1995) (awarding immunity and finding that Johnson allows immediate review where “the facts required to determine whether [the defendant] is entitled to qualified immunity are not genuinely in dispute”); Lennon v. Miller, 66 F.3d 416, 422 (2d Cir.1995) (awarding immunity and finding that Johnson allows immediate review where an appeal “poses only a legal question about the objective reasonableness of the defendants’ action under undisputed facts”). These circuit decisions all followed Johnson. All of these cases involved interlocutory appeals, and all of them resulted in reversal of a district court’s denial of qualified immunity.
*178It is regrettable to have to belabor basic maxims here, but it is necessary to do so because the dissent pays them so little respect. Because the societal costs of lawsuits against public officers stem as much from the trial of such suits as from actual judgments, the Supreme Court has emphasized that qualified immunity “is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. This point has been repeated many, many times. See Behrens, — U.S. at -, 116 S.Ct. at 838; Swint v. Chambers County Commission, — U.S. -, -, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995); Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, -, 114 S.Ct. 1992, 1997, 128 L.Ed.2d 842 (1994); Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991); Siegert v. Gilley, 500 U.S. 226, 232-33, 111 S.Ct. 1789, 1793-94, 114 L.Ed.2d 277 (1991); Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 1949, 100 L.Ed.2d 517 (1988). Indeed, the Supreme Court has stated in countless qualified immunity cases that “insubstantial claims should not proceed to trial.” Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982); accord Behrens, — U.S. at -, 116 S.Ct. at 838; Hunter, 502 U.S. at 227, 112 S.Ct. at 536; Burns v. Reed, 500 U.S. 478, 494 n. 8, 111 S.Ct. 1934, 1944 n. 8, 114 L.Ed.2d 547 (1991); Anderson v. Creighton, 483 U.S. 635, 640 n. 2, 107 S.Ct. 3034, 3039 n. 2, 97 L.Ed.2d 523 (1987); Motley v. Briggs, 475 U.S. 335, 341, 106, S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815-16; Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019-20, 82 L.Ed.2d 139 (1984); Butz v. Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911-12, 57 L.Ed.2d 895 (1978). The right to avoid trial is partly assured by the objective reasonableness standard of Harlow and partly by interlocutory appeals under Mitchell. In the face of this long, unbroken line of precedent stressing the need to protect officials from a stream of trials from baseless lawsuits, it defies belief that the Supreme Court walked silently and unobtrusively away from interlocutory appeals in the Johnson decision.
In the instant case, every shred of relevant evidence — the FBI laboratory analysis of the fiber, the medical examination of Elliott’s wounds, the distinctive characteristics of Elliott’s gun, the affidavit of the threatened motorist, and the observations of Leavitt’s supervisor — demonstrates that the officers were confronted with an intoxicated man threatening them point blank with a gun. What would the dissent have the officers do — stand still and be shot?
The dissent makes a show of following precedent even as it ignores the teachings of Mitchell, Harlow, and their progeny, and the lessons of Graham v. Connor and Tennessee v. Garner, supra, on the objectively reasonable use of force. Under the dissent’s view, no officer will ever be secure using force in self-defense no matter how obvious, immediate, or extreme the danger faced. Indeed, the dissent would make the moment of greatest personal danger for the officer the moment of greatest hesitation. As we sit in comfort in our chambers, we should pause to ponder what the dissenters have decreed for the streets: a rule that would question every action, second-guess every judgment, and scrutinize every move made by a policeman in an instant of personal peril. It is no violation of clearly established law for an officer to act to save his own life. I should have thought that the Court in Garner/Graham made one thing clear — that those in robes should not strip those in uniform even of the right to self protection.
Judge DONALD S. RUSSELL, Judge WIDENER, Judge WILKINS, Judge NIEMEYER, Judge LUTTIG, and Judge WILLIAMS join in this opinion.
In contrast, the dissent's extensive quotation of Sergeant Brown's testimony is beside the point. Sergeant Brown never testified that Elliott did not have a gun, clearly stating at his deposition that he saw Elliott’s weapon:
Q. Did you see the gun?
A. Yes, I did.
Q. What type of gun was it?
A. It appeared to be a small caliber handgun maybe 22 or 25 caliber revolver.
Q. Now, do you have any reason to believe that that gun was not on the person of the suspect at the time of the shooting?
A. No, I do not.
The testimony quoted by the dissent indicates only that Sergeant Brown was not in position to see the weapon at the precise moment of the shooting.