Circuit Judge, dissenting from denial of rehearing en banc:
Because the issue presented here is an important one that will frequently confront us and because the panel’s resolution of this issue is contrary to recent and controlling Supreme Court precedent, I respectfully dissent from the court’s refusal to rehear this case en banc. Under the principles set forth *179in Johnson v. Jones, — U.S. -, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and reiterated just last term in Behrens v. Pelletier, — U.S. -, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), the instant case is not immediately appealable.
Today my colleagues in the majority ignore Johnson’s holding that “a defendant ... may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial,” Johnson, — U.S. at -, 115 S.Ct. at 2159, and allow a panel to trade its determination of evidentiary sufficiency for the district court’s. All of the rhetoric in the concurrence cannot obscure the panel’s decision to replace the district court’s finding that “the evidence could support a finding that particular conduct occurred,” Behrens, — U.S. at -, 116 S.Ct. at 842, with the conclusion of the panel and concurrence that “every shred of relevant evidence” supports the opposite conclusion. Even if the panel and concurrence were right on the facts (which they are not), they cannot replace the district court’s “determination[ ] of evidentia-ry sufficiency” with their own under Behrens and Johnson. Behrens, — U.S. at -, 116 S.Ct. at 842.
I.
On June 18, 1995, Officer Jason Leavitt stopped twenty-four year old Archie Elliott III, a drunken motorist. Archie complied with the officer’s request for his driver’s license and registration, stating he just wanted to go home. After Officer Leavitt called for backup, he administered several sobriety tests, which Archie failed. Then the officer handcuffed Archie’s hands behind his back and searched him; Archie was only wearing shorts and sneakers (no shirt or socks). Finding no weapon or other contraband, Officer Leavitt, with the help of Officer Wayne Cheney who had just arrived on the scene, seatbelted Archie in a police cruiser, with the doors locked and windows rolled up. The officers left no weapons in the cruiser.
Leavitt and Cheney testified that minutes later they looked into the cruiser and saw Archie had twisted his arms (which were still handcuffed) to the right side of his body, released the seat belt, and had a small gun in his hands pointed at the officers. Officer Cheney yelled “Gun!” and ordered Archie to drop the gun. After a few seconds, when Archie did not respond, both Cheney and Leavitt fired multiple rounds at Archie, killing him. In-all, Cheney and Leavitt fired 22 bullets at Archie; ten bullets remained in their weapons. After the shooting, Cheney opened the car door, retrieved a small gun from Archie’s hands, and placed it on the trunk of the cruiser; Archie was still handcuffed.
The above account is entirely based on the deposition testimony of Cheney and Leavitt. Officer Leavitt’s supervisor, Sergeant Brown, who arrived at the scene shortly before the killing, testified that he never saw Archie with a gun:
Q. When Officer Leavitt yelled drop it, drop it, was he directing his comments towards the suspect in the police vehicle?
A Yes, he was.
Q. Did you observe any or could you observe from where you were standing any activity on the part of the suspect in the vehicle?
A. No, I could not.
Sergeant Brown also testified he never saw the place from which Officer Cheney retrieved the small gun:
Q. Could you see from what part of the suspect person Officer Cheney retrieved the gun?
A No.
Q. Why is that?
A. Officer Cheney was directly in front of me.
Q. So you have no knowledge as to where the gun was retrieved?
A. That’s correct.1
*180The only other party in a position to know if Archie had a gun, Archie himself, of course, could not dispute the officers’ account.
During the ensuing investigation, it was learned that there was a fiber on the small gun that matched Archie’s shorts, that the gun was unloaded, that the gun had never been fingerprinted, that a medical examiner believed that the injury in Archie’s right hand could best be “explained by the deceased having held an object at the time that he sustained his injuries,” that an excessive force complaint had previously been lodged against Officer Leavitt, and that fifteen months after the shooting, a witness gave a statement to police officers that, five months before the shooting, Archie had threatened him with the same small gun.
Archie’s parents, Dorothy Elliott and Archie Elliott, Jr., sued Officers Leavitt and Cheney, alleging that Archie had had no gun, and that the officers had planted the gun after they had killed Archie. The officers asserted qualified immunity and moved for summary judgment. If Archie had a gun, circuit precedent entitles the officers to qualified immunity; but if Archie had no gun, not even the officers claim they would be entitled to qualified immunity. Thus, if the defendant officers’ version of the facts is accepted, the Elliotts have not alleged a violation of clearly established law, but if the Elliotts’ version is accepted, they obviously have alleged such a violation. The only issue is whether the Elliotts have produced sufficient evidence that could support a finding that events took place as they allege, e.g., .Archie had no gun. Or put differently, have the Elliotts produced sufficient evidence to demonstrate a dispute as to a material fact— whether Archie had a gun.
The district court concluded that the plaintiffs, Mr. and Mrs. Elliott, had indeed produced sufficient evidence to demonstrate a dispute as to a material fact and, for this reason, refused to grant the officers summary judgment.
II.
Whether or not we agree with the district court, its holding is not immediately appeal-able. Generally, a federal appellate court only has jurisdiction to consider final decisions. 28 U.S.C. § 1291 (1994).
Under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), some interlocutory, non-injunctive orders are appealable, but only if they constitute “collateral” orders.
In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court explained that “a district court’s order denying a defendant’s motion for summary judgment was an immediately appealable ‘collateral order’ ... under Cohen where (1) the defendant was a public official asserting a defense of ‘qualified immunity,’ and (2) the issue appealed concerned ... whether or not certain given facts showed a violation of ‘clearly established’ law.” Johnson v. Jones, — U.S. -, -, 115 S.Ct. 2151, 2155, 132 L.Ed.2d 238 (1995) (citing Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816-17). Two years ago, in Johnson v. Jones, a unanimous Supreme Court clarified that “the exception to the general rule that interlocutory orders are not immediately appealable— fashioned in Mitchell — for orders denying officials qualified immunity prior to trial, did not extend to such orders when they “resolved a/ací-related dispute.’ ” Buonocore v. Harris, 65 F.3d 347, 360 (4th Cir.1995) (emphasis in original) (quoting Johnson, — U.S. at -, 115 S.Ct. at 2153). In sum, Johnson “unequivocally holds that an order denying summary judgment on qualified immunity grounds insofar as it determines whether ‘the pretrial record sets forth a genuine issue of fact’ is not immediately appealable.” Id. at 361 (quoting Johnson, — U.S. at -, 115 S.Ct. at 2159).
Earlier this year in Behrens v. Pelletier, — U.S. -, 116 S.Ct. 834,133 L.Ed.2d 773 (1996), the Supreme Court reiterated that principle. The respondent in that case had asserted that an immediate appeal of the denial of the summary judgment motion was not available because “material issues of fact remain.” Behrens, — U.S. at -, 116 S.Ct. at 842’.. The Supreme Court rejected that argument, noting that Johnson does not mean that “every such denial of summary judgment is nonappealable.” Id. Rather, *181“summary judgment determinations are immediately appealable when they resolve a dispute concerning an ‘abstract issue of law1 relating to qualified immunity....” Id. (quoting Johnson, — U.S. at -, 115 S.Ct. at 2158). However, the Behrens Court was quite clear in reaffirming Johnson’s holding that:
[DJeterminations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly “separable” from the plaintiff’s claim, and hence there is no “final decision” under Cohen and Mitchell.
Id. (quoting Johnson, — U.S. at - -, 115 S.Ct. at 2156-57).
The panel opinion states this principle and purports to find that the case at hand is immediately appealable under Behrens because “it does not involve whether ‘particular conduct occurred.’” Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir.1996) (quoting Behrens, — U.S. at -, 116 S.Ct. at 842). If that assessment were accurate, I would agree that this case would be immediately appealable; but that assessment simply does not square with the district court’s holding. The district court denied summary judgment because it believed there was:
[A] significant issue of credibility... . [U]nder these circumstances there are enough circumstances that a judge making this as a preliminary call could say that a reasonable trier of fact could come to a conclusion that things simply did not happen as the officers say they did. And under those circumstances I don’t think that I am able at this point to grant summary judgment on the grounds of the nonexistence of a genuine issue of material fact. There are significant issues of material fact that are present in this case, given the unusual circumstances of the way it occurred.
The district court further explained that Archie was “dressed in such a way as [he was] not likely to have a weapon” and was “searched by an officer, who one would think if he’s presumed to have acted regularly, might have found the weapon and did not.”
In short, the district court held that there was a question of whether “particular conduct occurred,” i.e., the court held that there was sufficient evidence to support the El-liotts’ version of the story and deny summary judgment. This decision is precisely the type that Behrens and Johnson conclude is not an immediately appealable, final decision. Behrens and Johnson direct that an appellate court cannot hear appeals of district court decisions which involve a finding that particular conduct occurred, or might have occurred, unless the appellate court can “take, as given, the facts that the district court assumed” and rule as a matter of law. Johnson, — U.S. at -, 115 S.Ct. at 2159. See also Behrens, — U.S. at -, 116 S.Ct. at 842. In this ease the panel simply disagrees with the district court’s reading of the facts, and impermissibly replaces its reading of the evidence for the district court’s.
An examination of the panel opinion itself demonstrates this error. The panel does not apply a purely legal analysis, which Behrens and Johnson require on immediate appeal, but rather engages in impermissibly reweighing the evidence, which Johnson and Behrens reserve to the district court. For example, the panel dismisses “[t]he district court’s concern that the number of shots fired was excessive,” concluding that this concern was “misplaced” because the firing of twenty-two shots at a eoneededly drunk and handcuffed, but allegedly armed, man does “not suggest the officers shot mindlessly as much as it indicates that they sought to ensure the elimination of a deadly threat.” Elliott, 99 F.3d at 643. The panel thus replaces the district court’s assessment of the facts with its own.
Similarly, the panel substitutes its reading of the record on the key issue in the ease— whether Archie, who had been searched by the police and was dressed only in sneakers and shorts had a gun — for that of the district court. Compare the panel’s conclusion that “the officers’ claim that [Archie] Elliott was holding a gun when they shot him is corroborated by substantial evidence,” Elliott, 99 *182F.3d at 644, with the district court’s conclusion that the officers’ version was “on [its] face improbable enough — not to say untrue— but improbable enough that they do raise issues of fact that a reasonable trier of fact could differ on.” It is simply impermissible under Johnson and Behrens for an appellate court on an interlocutory appeal from a denial of summary judgment to reweigh a district court’s reading of the sufficiency of the evidence. See Behrens, — U.S. at -, 116 S.Ct. at 842 (“[Determinations of eviden-tiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case.”).
Perhaps the clearest indication that the only issue appealed here is evidentiary sufficiency is the defendant officers’ appellate brief. There, they repeatedly assert precisely the sort of “insufficiency of the evidence” arguments that Johnson and Behrens hold are not appealable. See, e.g., Brief of Appellants at 21 (“Plaintiffs at bar offered no evidence, direct or circumstantial, to controvert the testimony of Officers Leavitt and Cheney.”); id. at 22 (“Plaintiffs at bar pointed to no evidence .... ”); id. at 23 and 24 (“Plaintiffs offered no evidence whatsoever ....”); id. at 26 and 27 (“No evidence was demonstrated _”); id. at 27 (“Plaintiffs’‘dispute’ over what the officers observed is also without evidentiary support .... ”); id. at 28 (Plaintiffs “offer rio evidence to support an inference that he did not have a weapon.”); id. at 29 (“Plaintiffs do not offer any evidence, direct or circumstantial, to suggest that Officers Leavitt and Cheney had any reason to fabricate their testimony.”); id. at 32 (“[T]here is no evidence of any pause in the firing _”); id. (“Plaintiffs have failed to demonstrate evidence of a constitutional violation.”); id. at 33 (“There are no facts to support the district court’s finding.”). Of course, who can blame the defendants for making these forbidden arguments — they were successful before the panel.
It is also worth noting that in reassessing every nook and cranny of the record below the panel fails to comply with Johnson’s requirement that an appellate court “take, as given, the facts that the district court assumed when it denied summary judgment.” Johnson, — U.S. at -, 115 S.Ct. at 2159. The concurrence does quote Johnson’s statement that a “detailed evidence-based review of the record” will sometimes be necessary but, like the panel, ignores the Johnson’s admonition that this sort of “cumbersome review of the record” is only appropriate when a district court has “denfied] summary judgment without indicating their reasons for doing so.” Id. When denying summary judgment here the district court fully stated both its “reasons for doing so” and the facts supporting its reasoning.
Lastly, the panel opinion cannot be justified by the claim that the district court’s holding was “unsupported by any evidence.” Even if the panel could properly replace a district court’s sufficiency of the evidence determination with its own, there certainly was evidence in this case that Archie did not have a gun. Officer Leavitt himself testified that he searched Archie — who was clothed only in shorts and tennis shoes — and did not find one. Archie was drunk, with his hands cuffed behind his back. The gun he assert-edly planned to use was unloaded. These are significant handicaps if his goal was to shoot both officers and escape. There was also evidence that an excessive force complaint had previously been lodged against Officer Leavitt. Finally, although the panel relied on the restraint the officers exhibited in forgoing the use of ten available bullets, a jury could infer that the firing of twenty-two bullets at a handcuffed man evinces a motive other than self-defense. The very implausibility of the incident happening as claimed by the officers could support an inference that the plaintiffs’ version of the events was true. The jury wouldn’t have to, and perhaps shouldn’t, find for the Elliotts on any of these inferences, but it could.2,
*183III.
Before concluding I must respond to some remarks in the concurrence. The first is the concurrence’s suggestion that precedent from our sister circuits somehow supports the panel opinion. This is simply not so. Out-of-circuit cases, including the cases cited by the concurrence, offer no support for the extraordinary panel opinion.
In none of the cases relied on by the concurrence did an appellate court overrule a district court’s stated factual basis for determining that particular conduct alleged by the plaintiff might have occurred. Indeed, each of the cases cited by the concurrence recognize that “[o]rders that resolve a fact-related dispute of ‘evidence sufficiency,’ i.e. which facts a party may, or may not, be able to prove at trial ... are not immediately ap-pealable and must await final judgment.” Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir.1996) (some quotation marks omitted); Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir.1996) (“Because the issue appealed here concerns not which facts the parties may be able to prove but whether certain given facts show a violation of clearly established law, we conclude that we have jurisdiction.”); Prosser v. Ross, 70 F.3d 1005, 1006 (8th Cir.1995) (Mitchell appeals are limited to “abstract issues of law.”); Lennon v. Miller, 66 F.3d 416, 422 (2d Cir.1995) (“Thus, where a court’s denial of summary judgment is based on a determination that certain factual findings are essential to resolving the qualified immunity question, the denial is not reviewable_”).
In fact, contrary to the suggestion of the concurrence, our sister circuits have uniformly followed the Behrens-Johnson rule, just as I would, and have held that an appellate court cannot review a district court’s eviden-tiary sufficiency decision. Thus, in every case in which a district , court has set forth the issues of fact that prevented it from granting a defendant summary judgment on qualified immunity grounds, our sister circuits have held they lacked jurisdiction and so dismissed the appeal. See, e.g., Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996) (“The [defendants] further argue that [the plaintiff] failed to show a genuine issue of material fact.... As to that question we lack jurisdiction.”); Shinault v. Cleveland County Bd. of County Comm’rs., 82 F.3d 367, 370 (10th Cir.1996) (“The scope of [Mitchell] appeals, however, is limited to ‘purely legal’ challenges to the district court’s ruling.... We lack jurisdiction over [this] appeal.”); Woolfolk v. Smith, 81 F.3d 741, 743 (8th Cir.1996) (finding no jurisdiction in a case of an officer shooting a suspect because “this is the type of fact-based qualified immunity decision that is not appropriate for interlocutory appeal”); Rambo v. Daley, 68 F.3d 203, 207 (7th Cir.1995) (“The essential dispute, therefore, concerns whether the plaintiffs version of the facts is true_ [T]he Mitchell exception does not allow us to hear [factual] disputes....”); Tamez v. City of San Marcos, 62 F.3d 123, 125 (5th Cir.1995) (Because the lower court found “that genuine issues of material fact exist[ed] which preclude[d] summary judgment... .[W]e lack jurisdiction over [this] interlocutory appeal.”); see also Stella v. Kelley, 63 F.3d 71, 75 (1st Cir.1995) (“[W]e lack the power to inquire into, or address ... the fact-based question of what the evidence does (or does not) show concerning whether the [defendant’s] actions violated the asserted right.”).
In sum, rather than being consistent with out-of-circuit precedent, the panel opinion is distinctly out of sync. Indeed, the panel opinion appears to be the only circuit court opinion that has simply refused to follow the rule clearly enunciated in Behrens and Johnson.
The concurrence also mischaracterizes my views in several crucial respects. Neither I, nor any proper application of Johnson and Behrens, would allow “plaintiffs [to] assert some factual dispute — however irrelevant- to the question of qualified immunity — to ensure themselves of a trial.” Indeed, the factual disputes asserted by a plaintiff on appeal *184are meaningless under Johnson and Behrens. What matters is the district court’s assessment of the facts. Rather than offering “an automatic trial” to plaintiffs who assert that “the police are lying,” I simply follow the Supreme Court’s mandate: when a district court denies summary judgment because of a purely factual question that decision is not immediately appealable.
This mischaracterization of my views by the concurrence demonstrates a fundamental flaw in its approach, it utterly disregards the critical role of district courts. It is the district court’s job to assess the facts at summary judgment. The concurrence’s suggestion that to-follow Behrens and Johnson, as I do, would allow plaintiffs to make wild-eyed assertions that appellate courts would rubber-stamp on to trial ignores the fact that district courts must, and do, weed out almost all baseless claims. Although a district court may occasionally find disputes as to material fact that the concurrence does not fancy, the Supreme Court has made clear that an appellate court lacks jurisdiction to overturn such a decision; it is the district court’s job to assess the sufficiency of evidence at summary judgment.
Finally, I must briefly respond to the charge of my colleagues joining in the concurrence that I would “require police officers to gamble with their lives in order to avoid civil liability” or “stand still and Be shot.” That rhetoric and the entire tenor of the opinion concurring in the denial of rehearing en banc unfairly and fundamentally misehar-acterizes the basis for my dissent. I dissent not because I am unsympathetic to the frequently difficult choices police officers are called upon to make or because I want to deny them qualified immunity and force them to trial. Rather, I dissent because Supreme Court precedent requires it. The Court has directed that when, as here, the only matter at issue is “whether the evidence could support a finding that particular conduct occurred” a district court’s decision denying qualified immunity is not immediately appealable. Behrens, — U.S. at -, 116 S.Ct. at 842. Obeying the Supreme Court, as we are in any event bound to do, would neither require police officers to place their lives in peril, nor even necessarily require them to go to trial. All that it would do is eliminate an immediate appeal from a district court’s denial of summary judgment on evi-dentiary sufficiency grounds.
Officers Leavitt and Cheney may ultimately be held entitled to immunity. The district court may even have erred in denying them immunity at this juncture. But, unquestionably the basis for the district court’s denial was its assessment that “the evidence could support a finding that particular conduct [Archie had no gun] occurred.” Id. Equally clearly, the basis for the majority’s decision to reverse is its assessment that the same evidence could not “support a finding” that this “particular conduct occurred.” Id. Beh-rens and Johnson forbid an appellate court from making this reassessment on interlocutory appeal.
Fundamental to our existence as a free and democratic society is the principle that we are a nation in which no person — even a courageous police officer in the line of fire or a sympathetic appellate judge — is greater than the law. The Supreme Court has proclaimed the law here. We must follow it. When a panel refuses to do this and the case presents an important and reoccurring issue, as this case does, the en banc court should reconsider the case. I respectfully dissent from the refusal of the majority of the court to do so.
Judge K.K. HALL, Judge MURNAGHAN, Judge ERVIN, and Judge MICHAEL join in this dissent.. Sergeant Brown testified he saw the small gun after the officers shot Archie; contrary to the suggestion of the concurrence, Sergeant Brown never testified to seeing the small gun at all before the officers shot Archie.
. This discussion of the facts is included only in response to the extensive invocation of the facts in the panel opinion and concurrence. Obviously, if an appellate court may not consider "determinations of evidentiary sufficiency,” Behrens, -U.S. at -, 116 S.Ct. at 842, or "whether or not the pretrial record sets forth a 'genuine' issue of fact for trial," Johnson, - U.S. at -, 115 *183S.Ct. at 2159, what an appellate court thinks of the sufficiency of the evidence on appeal is irrelevant. That the panel and concurrence repeatedly detail the evidence assertedly supporting their position simply demonstrates that they are indeed doing precisely what the Supreme Court has prohibited — reassessing the evidence on this interlocutory appeal.