dissenting from order on application for rehearing en banc.
While the majority is correct in stating that “a majority of the judges who are in regular active service [have not] voted in favor” of rehearing en banc, Order on Reh’g, supra, at 283, it is more accurate and informative to state that the Court divided equally, eight to eight, on the motion for rehearing en banc. That tie vote is reflective of the difficulty which the judges of this Court have in reading and interpreting the decisions of the Supreme Court in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), as they speak to the core question involved in this appeal: do we have appellate jurisdiction to review the district court’s denial of summary judgment sought on the grounds of qualified immunity?
This case presents serious issues concerning our appellate jurisdiction in cases involving the denial of summary judgment on the grounds of qualified immunity. I express the following views in the hopes that they may help to attract the Supreme Court’s attention to the increasingly complex panorama of doctrine and dissent that has evolved as the courts of appeals have struggled to reconcile the holdings of Johnson and Behrens.
In light of the tie vote on whether to reconsider this case en banc, the panel opinion published at 130 F.3d 96 still stands as the opinion of this Court. I write now to expand on the dissent which I filed in the panel opinion, just as the majority expands on its original majority opinion. In Part I, I elaborate on the reasons which I first mentioned in my panel dissent as to why this Court does not have appellate jurisdiction over this controversy. In Part II, I respond to the new theory proposed by the majority in this order on rehearing as to how our Court does have appellate jurisdiction. Finally, in Part III, I explain how the majority’s approach to the problem presented in this case is at odds with the Supreme Court’s guidance regarding the competing policies behind the availability of both a remedy for deprivations of constitutional rights under the color of state law and a qualified immunity for government officials who have violated citizens’ rights in the course of executing their official duties.
I.
A. Our appellate jurisdiction to review “fi-. nal decisions,” 28 U.S.C. § 1291, does not encompass collateral orders to the extent that they implicate the substantive merits of a complaint.
The original panel opinion reversed the district court’s considered judgment that fact issues precluded summary judgment on the merits; and it dismissed the case based on its appellate determination that Trooper Bryan Barnhart acted in an “objectively reasonable” fashion when he shot Lorenzo Col-ston twice in the back. Appellate jurisdiction to make this judgment was, however, lacking. A straightforward application of the authorities relevant to exercising interlocutory appellate jurisdiction reveals that we may not review the objective reasonableness of Trooper Barnhart’s conduct on appeal from the district court’s denial of his motion for summary judgment. This is so primarily because applying that standard for determining whether Colston’s Fourth Amendment rights were violated, set forth in Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), is not, as Supreme Court precedent requires, separable from the merits of the controversy.
1. The collateral-order doctrine governs the review of qualified-immunity appeals from denial of summary judgment.
Appellate jurisdiction over interlocutory appeals from denials of summary judgment based on qualified immunity rests on three essential legal principles, as delineated by the Supreme Court in Johnson. See Johnson, 515 U.S. at 309-13, 115 S.Ct. at 2154-56. First, 28 U.S.C. § 1291, the only possible statutory basis for appellate jurisdiction in this case, provides that we may review only “final decisions” of a district court. Second, courts use a practical application of § 1291 to allow interlocutory review of certain orders *287which are considered final only because they are collateral to the core of the case. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). “To come within the ‘small class’ of ... Cohen, the order must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-45, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (footnote omitted)) (internal quotation marks omitted, alterations in original). Third, as an application of the collateral-order doctrine, interlocutory appeals from the denial of summary judgment have been permitted in the qualified-immunity context for the purpose of resolving the abstract legal question of whether the lawlessness of a defendant’s alleged acts had been clearly established at the time of their commission. See Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2814-15, 86 L.Ed.2d 411 (1985).
2. The collateral-order doctrine does not apply in this case because the “objective reasonableness” of Trooper Barnhart’s conduct is not separable from the merits of the controversy.
An interlocutory appeal from the denial of summary judgment in the qualified-immunity context is simply an application of the collateral-order doctrine. This much is clear from Johnson, in which the Supreme Court found no appellate jurisdiction to review the district court’s fact-based sufficiency-of-the-evidence determination that the defendants were not entitled to summary judgment based on qualified immunity. The Johnson Court specifically distinguished its decision from the Court’s earlier treatment of the clearly-established-law prong of qualified-immunity analysis in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). See Johnson, 515 U.S. at 314, 115 S.Ct. at 2157. Disputes over the application of the clearly-established-law prong of the qualified-immunity inquiry are separable from the merits of a controversy because “ ‘[a]n appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of the plaintiff’s version of the facts.’ ” Id. at 313, 115 S.Ct. at 2156 (quoting Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816) (alteration in original).1
Trooper Barnhart’s contention here on appeal — that his conduct was objectively reasonable and therefore Colston’s suit should be dismissed — is not reviewable precisely because it does not, as the doctrine of collateral orders requires, “resolve an important issue completely separate from the merits of the action.” Puerto Rico Aqueduct, 506 U.S. at 144-45, 113 S.Ct. at 688; Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2458. Johnson elaborated on the separability inquiry, noting that
The requirement that the matter be separate from the merits of the action itself means that review now is less likely to force the appellate court to consider approximately the same (or a very similar) matter more than once, and also seems less likely to delay trial court proceedings (for, if the matter is truly collateral, those proceedings might continue while the appeal is pending).
Johnson, 515 U.S. at 311, 115 S.Ct. at 2155 (citing 15A ChaRles Alan Wright, et al„ Federal PRACTICE and Prooedure § 3911, at 333-34 (2d ed.1992)) (emphasis in original).
Though the matter does not require elaborate exposition, Trooper Barnhart’s argument that his conduct was objectively reasonable plainly does not meet this standard. Rather than being a separate, distinct, collateral issue, the objective reasonableness of *288Trooper Barnhart’s actions is in fact the precise issue that would have been presented to the jury if Colston’s suit had gone to trial. Should there have been an eventual appeal from a final judgment on the merits of Col-ston’s claims, our Court would have been confronted with the exact same issue. And to top it all off, in this case the true hallmark of a collateral order — the continuation of trial proceedings while the appeal progressed— has not occurred. As is now apparent, it would have been a complete waste of time for the district court and the court of appeals to simultaneously adjudicate the objective reasonableness of shooting Colston twice in the back as he fled the scene.
The panel majority does not contend, because they could not possibly establish, that their review of the objective reasonableness of Trooper Barnhart’s arrest technique is separable from the merits of Colston’s complaint. That single factor is completely determinative of the absence of appellate jurisdiction over Trooper Barnhart’s appeal.
3. The panel majority’s approach imper-missibly engages in case-specific factual analysis to determine appealability.
As a final matter concerning the panel majority’s implicit determination that the district court’s denial of summary judgment was an appealable collateral order, I note that the panel majority’s treatment of this issue is utterly inconsistent with the yet another principle of the Cohen doctrine. Both Johnson and Behrens acknowledge that courts “decide appealability for categories of orders rather than individual orders,” Johnson, 515 U.S. at 315, 115 S.Ct. at 2157 (citing Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 863, 114 S.Ct. 1992, 1993, 128 L.Ed.2d 842 (1994) (syllabus)), and “ ‘[ajppeal rights cannot depend on the facts of a particular case,’” Behrens, 516 U.S. at 811, 116 S.Ct. at 841 (quoting Carroll v. United States, 354 U.S. 394, 405, 77 S.Ct. 1332, 1339, 1 L.Ed.2d 1442 (1957), and citing Digital Equip., 511 U.S. at 868, 114 S.Ct. at 1996). “[T]he issue of appealability under § 1291 is to be determined for the entire category to which a claim belongs, without regard to the chance that the litigation at hand might be speeded, or a ‘particular injustie[e]’ averted by a prompt appellate court decision.” Digital Equip., 511 U.S. at 868, 114 S.Ct. at 1996 (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S.Ct. 1945, 1953, 100 L.Ed.2d 517 (1988)) (alteration in original, internal citation omitted).
The majority’s approach to determining the propriety of interlocutory appellate jurisdiction violates this principle in spectacular fashion. The panel admits that its approach required it to “undertake a review of the record to determine whether we had jurisdiction over Trooper Barnhart’s appeal.” Order on Reh’g, supra, at 285. But what did the panel expect to find in the record other than facts? “Appeal rights cannot depend on the facts of a particular case.” Behrens, 516 U.S. at 311, 116 S.Ct. at 841 (internal quotation marks omitted, emphasis supplied).
The error of the panel opinion’s approach is evident. Neither Johnson nor Behrens contemplates a “cumbersome review of the record” for the threshold purpose of determining whether there is appellate jurisdiction. It is, rather, only a suggestion for how to proceed on determining whether the plaintiff alleged a violation of then-clearly-established law after appellate jurisdiction has already been determined.
To conclude, there is one, primary, eminently simple reason why interlocutory appeal was unavailable to Trooper Barnhart. In order for us to proceed under § 1291, there must be a final order. In the absence of a final judgment, the elements of the collateral-order doctrine must be satisfied to permit appeal under that statute. One of those elements is separability of the appealed order from the ultimate merits of the controversy, and that element is simply not present in this case. Moreover, the panel majority impermissibly tailors its jurisdictional analysis to the facts of the case. The collateral-order doctrine cannot be stretched to establish appellate jurisdiction in this ease, and the appeal should have been dismissed.
B. Behrens v. Pelletier does not ereate an exception to the collateral-order doctrine’s separability requirement.
The above reasoning notwithstanding, the majority relies upon language in Behrens to *289support its assumption of appellate jurisdiction. Seven months after it decided Johnson, the Supreme Court handed down its decision in Behrens. After disposing of the primary issue in the case,2 the Court went on to address two additional grounds upon which the respondent in that case argued that interlocutory appeal was not available. The discussion of the second of these two issues, which involved some elaboration on the holding in Johnson, is the source of much of the confusion which now exists in our Court and in other courts of appeals as to the impact and effect of Behrens on Johnson. See, e.g., Hart v. O’Brien, 127 F.3d 424 (5th Cir.1997); Elliott v. Leavitt, 99 F.3d 640 (4th Cir.1996), reh’g en banc denied 7-5 with opinions, 105 F.3d 174 (4th Cir.), cert. denied, — U.S. -, 117 S.Ct. 2512, 138 L.Ed.2d 1015 (1997).
The relevant discussion in Behrens begins by identifying and reaffirming the basic distinction that Johnson draws as to the appeal-ability of a district court’s decisions on “issues of law” and the nonappealability of those decisions on “issues of fact.” See Behrens, 516 U.S. at 305-06, 116 S.Ct. at 838-39; Johnson, 515 U.S. at 313-18, 115 S.Ct. at 2156-58. Behrens confirms that interlocutory appeal is not available when the trial court relies upon the existence of genuine factual disputes to deny summary judgment. See Behrens, 516 U.S. at 313, 116 S.Ct. at 842. Such disputes, Behrens reasons, are not collateral orders under the Cohen doctrine because they are not “truly separable” from the plaintiffs claim. See supra Part 1.A.2. When, on the other hand, the district court’s denial is based solely upon “an ‘abstract issu[e] of law5 related to qualified immunity — typically, the issue whether the federal right allegedly infringed was ‘clearly established,’ ” then the issue to be addressed on appeal is sufficiently distinct from the plaintiffs claim to support interlocutory appeal. Id. (quoting Johnson, 515 U.S. at 317, 115 S.Ct. at 2158) (internal citations omitted, alterations in original). On these points, Behrens and Johnson are in perfect agreement.
The confusion is created by the following passage from Behrens:
Here the District Court’s denial of petitioner’s summary-judgment motion necessarily determined that certain conduct attributed to petitioner (which was controverted) constituted a violation of clearly established law. Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)] standard of “objective legal reasonableness.” This argument was presented by petitioner in the trial court, and there is no apparent impediment to its being raised on appeal. And while the District Court, in denying petitioner’s summary-judgment motion, did not identify the particular charged conduct that it deemed adequately supported, Johnson recognizes that under such circumstances “a court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed.” Johnson, [515 U.S. at 319], 115 S.Ct. at 2159. That is the task now facing the Court of Appeals in this case.
Behrens, 516 U.S. at 313, 116 S.Ct. at 842.3
1. Behrens v. Pelletier refers only to determining “objective legal reasonableness” for qualified-immunity purposes under Harlow v. Fitzgerald — not other semantically similar merits-bound inquiries. ,
The second sentence of the above-quoted paragraph is where the ambiguities and un*290certainties first arise.4 The original panel opinion applies this sentence as if it gives Trooper Barnhart, who invoked qualified immunity, a license to seek interlocutory review of the denial of his summary judgment motion on the ground that, assuming the truth of whatever allegations Colston made, Trooper Barnhart’s conduct nevertheless met the Graham standard of being objectively reasonable.
The majority erred when it construed Beh-rens in that manner. Such a reading is not supported by Behrens, which refers to “the Harlow standard of ‘objective legal reasonableness.’” Behrens, 516 U.S. at 313, 116 S.Ct. at 842. Despite the Harlow standard’s semantic similarity to Graham’s “objectively reasonable” test, that prong of Harlow’s qualified-immunity inquiry is different and functionally distinct from the merits-bound Graham inquiry. The construction in the original panel opinion thus distorts a single isolated sentence to create a direct conflict with Johnson and with the logical analysis and reasoning in Behrens itself.
a. The function of Harlow v. Fitzgerald’s “objective legal reasonableness” qualified-immunity standard makes it a proper subject for interlocutory review.
Proper application of the “objective legal reasonableness” standard established in Har-ion) does not establish whether the conduct in question violated the law per se. Harlow’s reference to “objective legal reasonableness” speaks only to a facet of whether the plaintiff alleged a violation of “clearly established statutory or constitutional rights of which a reasonable person would have known” at the time an action occurred. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. When the law was clearly established, Harlow instructs that “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Id. at 818-19, 102 S.Ct. at 2738.
If the summary-judgment proof is sufficient to raise a genuine issue of material fact, a motion for summary judgment on the grounds of qualified immunity should be denied and the matter should be developed fully at trial.5 See Fed.R.Civ.P. 56(c). The primary task of an appellate court in an ordinary interlocutory qualified-immunity appeal from the denial of a motion for summary judgment is to address the abstract legal question of whether the law under which the plaintiff seeks relief was clearly established at the time of the official’s conduct. See, e.g., Mitchell, 472 U.S. at 528, 105 S.Ct. at 2815. If it was, the case should be remanded and the injured citizen should be given the oppor*291tunity to prove that the official’s conduct did in fact violate the law and did in fact produce the injury.
It is possible, of course, that the injured citizen might not prevail at trial. But if the law involved at the time of the conduct was clear and if the injured citizen presents sufficient proof at summary judgment to persuade the district court that a jury verdict for the injured citizen could be sustained, then the public official must bear the risk of trial just like any other civil defendant. See generally infra Part III. The policy — embodied by the judge-made qualified-immunity doctrine — of protecting public officials from frivolous claims based upon ambiguous concepts of the law must under these circumstances yield to another public policy — dictated by Congress and embodied in 42 U.S.C. § 1983 — of protecting citizens from damage and injury caused by the conduct of public officials which violates clearly established constitutional principles. Cf. Crawford-El v. Britton, — U.S. -, -, 118 S.Ct. 1584, 1594-96, 140 L.Ed.2d 759 (1998).
■li. The function of Graham v. Connor’s “objectively reasonable” substantive excessive-force standard makes it an improper subject for interlocutory review.
Instead of reading Johnson and Behrens in their proper context, the majority misreads the Behrens reference to “the Harlow standard of objective legal reasonableness” (which is closely related to the determination of whether the law was “clearly established” at any given time) to be interchangeable with the “objectively reasonable” test established in Graham. The Graham standard — the proper test for evaluating the merits of Col-ston’s claim6 — is used to determine whether an officer’s conduct was “excessive” such that it would violate the Fourth Amendment’s prohibition against' unreasonable seizures, but not to decide matters of qualified immunity.
This confusion was aptly demonstrated in several parts of the original majority opinion. At one point, the majority asserted: “We therefore have interlocutory jurisdiction to determine the legal issue of whether Trooper Barnhart’s conduct was objectively reasonable.” Colston, 130 F.3d at 98-99. In characterizing the issue of “whether Barnhart’s conduct was objectively reasonable” as a “legal issue” subject to interlocutory appeal, the majority cited Mitchell, Johnson, and Beh-rens. See id. All of those cited cases deal with the issue of qualified immunity; none of them address in any way the question of whether, on the merits, a defendant official’s conduct was “objectively reasonable.” Elsewhere, the majority claimed:
In Graham v: Connor the Supreme Court explained that the reasonableness inquiry in an excessive force case is an objective one; evaluating the officer’s conduct under the Fourth Amendment we must balance the amount of force used against the need for that force with reference to clearly established law at the time of the conduct in question.
Id. at 99 (internal citations omitted, emphasis supplied). But the problem with this quotation is that the italicized phrase requiring reference to clearly-established law does not appear anywhere in the text of Graham7
*292The majority’s approach is mistaken not only because it misre ids Behrens, but more fundamentally because it results in the core substantive issue in a case being reviewed as a collateral order. As discussed supra, the Cohen doctrine’s separability requirement forbids this result. The district court in this case identified two genuine and material issues of fact related to the objective reasonableness of Trooper Barnhart’s actions. These factual issues do not preclude evaluating — as plainly contemplated by Behrens— whether Trooper Barnhart’s actions satisfy the “Harlow standard of objective legal reasonableness,” which is a legal test relating to the legal determination of whether or not the law was clearly established at any given time. But when the proper Supreme Court precedents are utilized, the question of whether a police officer used excessive force in arresting a citizen is a question which cannot be answered without making factual determinations on the basis of the evidence and testimony in the individual case. Which is as it should be. As is suggested by the district court’s denial of summary judgment, the factual record simply has not been sufficiently developed to permit judgment as a matter of law. Consequently, the panel majority erred in determining that our Court had interlocutory jurisdiction to address the merits of the ultimate factual dispute as to whether under all of the circumstances Trooper Barnhart’s use of deadly force by shooting Colston twice in the back was or was not excessive.
2. Behrens v. Pelletier refers to “a cumbersome review of the record” for the sole purpose of establishing a universe of facts used to answer abstract legal issues related to qualified immunity — not other merits-bound purposes.
Another stumbling block in the infamous Behrens passage is the now-oft-quoted reference to circumstances, recognized by Johnson, in which “a court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the non-moving party, likely assumed.” Behrens, 516 U.S. at 313, 116 S.Ct. at 842; Johnson, 515 U.S. at 319, 115 S.Ct. at 2159. An examination of the full context of this particular sentence from Johnson resolves any perceived ambiguities between the language of Johnson and the language of Behrens.
This Johnson sentence was prompted by, and was intended to respond to, the claim that if a district court simply denies the motion for summary judgment without explanation, an appellate court would be unable to determine whether the district court’s decision was based upon fact-based issues that may not be immediately appealed or abstract legal issues that may be immediately appealed. See Johnson, 515 U.S. at 319, 115 S.Ct. at 2159. The Court rejected that claim, stating that the problem was not serious enough to require a rule making fact-based determinations appealable. See id. The Court then concluded that “[wjhen faced with an argument that the district court mistakenly identified clearly established law, the court of appeals can simply take, as given, the facts that the district court assumed when it denied summary judgment for that (purely legal) reason.” Id.
Thus Johnson, by its own terms, speaks of a “cumbersome review of the record” only in circumstances in which (1) the district court denied summary judgment without indicating its reasons for doing so, (2) there is a “given set of facts,” in other words, facts which the parties have stipulated or which are undisputed, and (3) the appellate court is faced with a contention “that the district court mistakenly identified clearly established law.” None of these circumstances existed in Johnson, and none exist here in this case.8 See id.
The language used in Behrens was appropriate to the circumstances involved in that *293case.9 The Supreme Court concluded that the issue of whether the law was “clearly established” needed to be addressed10 — a “legal issue” which Johnson recognized as being typically appealable. See Johnson, 515 U.S. at 311, 115 S.Ct. at 2155 (citing Mitchell, 472 U.S. at 580, 105 S.Ct. at 2817). It is, therefore, inappropriate to conclude that Behrens in any way overrides the Supreme Court’s clear statement of the law in Johnson, or that Johnson should not control our disposition in this case. The “cumbersome review of the record” contemplated by Johnson and Behrens is conducted for the limited purpose of establishing a set of facts (sufficiently supported by the evidence for the purposes of summary judgment) that are then used to answer the abstract legal question of whether the plaintiff has alleged a violation of clearly-established law. Behrens authorizes nothing more. It is therefore patent error for the panel majority in this case to construe Behrens as an implicit exception to the strictures of the collateral-order doctrine.
3. Thus, the panel majority fundamentally misapplied Behrens v. Pelletier in assuming appellate jurisdiction to determine the objective reasonableness of Trooper Barnhart’s actions.
In exercising appellate jurisdiction, the panel majority misconstrued Behrens in two key respects. First, Behrens’s reference to the “Harlow standard of ‘objective legal reasonableness,’ ” Behrens, 516 U.S. at 313, 116 S.Ct. at 842, must be construed in a fashion consistent with Harlow itself. It cannot be used to reach any other aspect of the case unrelated to qualified immunity which the appellate court may wish to review. There is no appellate jurisdiction to entertain an interlocutory appeal that presents issues which are inextricably intertwined with the merits of the plaintiffs complaint, for to do so would violate the collateral-order doctrine’s separability requirement. Second, Behrens does not broadly’ authorize courts of appeals to conduct de novo reviews of the record in interlocutory qualified-immunity appeals. Instead, the “cumbersome review of the record” contemplated by Johnson and Pelletier refers qnly to the limited review required to decide the distinct legal question of whether the conduct alleged by the plaintiff violated then-elearly-established law.
Because the “objective reasonableness” of the force applied'by Trooper Barnhart to arrest Colston is not an issue separable from-the merits of Colston’s complaint, it is not separable from the merits and is therefore not subject to interlocutory appeal. The majority erred by applying Behrens to achieve a contrary result.
*294II.
The new theory proffered by the panel majority as to how this Court has appellate jurisdiction is simple — perhaps even deceptively simple. It postulates that the decision of the district court to deny summary judgment because “a genuine issue of material fact exists” involves two fundamental decisions by the district court: (1) there is sufficient conflict in the factual testimony that a jury could find that the force used by Trooper Barnhart was excessive, or, that the force used by Trooper Barnhart was reasonable; and (2) the issue of whether the force used was excessive or unreasonable is a material issue in the case. The first of these issues is obviously factual and the second issue is essentially legal in nature. Therefore, according to the majority’s expanded theory, when the district court ruled that “a genuine issue of material fact exists,” it necessarily made a “legal” ruling which, under the majority’s analysis of Johnson and Behrens, authorizes us to exercise appellate jurisdiction.
I acknowledge that this theory is simple, but in my view it is simply wrong.
The panel majority’s use of the genuineness-or-materiality distinction is simply not a useful theory of appealability. The trouble is that the analysis makes every denial of summary judgment appealable. Such an interpretation of Behrens entirely swallows the rule in Johnson, and is therefore unacceptable.
When ruling on a motion for summary judgment, a district court must consider the materiality of the factual disputes before the court. See Fed.R.Civ.P. 56(c). If the district court concludes that the only genuinely disputed facts are not material, the district court would grant summary judgment, and that would be an appealable final decision. But what happens when a motion for summary judgment is denied? According to the panel majority, Behrens established that “an appellate court is free to review a district court’s determination that the issues of fact in question are material.” Order on Reh’g, supra, at 284. If that is the case, every single denial of summary judgment is appealable because every single denial of summary judgment embodies a “determination that the issues of fact in question are material.” See Fed.R.Civ.P. 56(e). To reiterate, if the issues of fact were not material, summary judgment would have been granted, not denied.
Obviously this is not what Behrens intended. The fact of the matter is that Behrens does not say that “an appellate court is free to review a district court’s determination that the issues of fact in question are material,” a cold fact belied by the panel majority’s failure to provide a citation to Behrens or any other case to support this assertion. See Order on Reh’g, supra, at 284. Quite to the contrary of the panel majority’s view, Beh-rens does not give the courts of appeals carte blanche to investigate whether or not the fact issues that precluded a grant of summary judgment were material. What Behrens does say is that “summary judgment determinations are appealable when they resolve a dispute concerning an ‘abstract issu[e] of law’ relating to qualified immunity — typically, the issue whether the federal right allegedly infringed was ‘clearly established.’ ” Behrens, 516 U.S. at 313, 116 S.Ct. at 842 (emphasis and alterations in original, internal citations omitted). The reference to the appealable “abstract issu[e] of law” is an attributed quote from Johnson, an opinion which makes unmistakably clear that the separability of the issue is an indispensable prerequisite to interlocutory appeal. See Johnson, 515 U.S. at 310-11, 115 S.Ct. at 2155.
Thus, as fully discussed supra, the panel majority’s Johnsow-swallowing interpretation of Behrens does not withstand scrutiny. No Supreme Court eases have been cited to support the primacy of the genuineness-materiality distinction. That is because there are none. The proper distinction as explained in both Johnson and Behrens is between ap-pealable legal determinations and nonap-pealable determinations of evidence sufficiency. The partial congruence that exists because genuineness relates to factual disputes while materiality relates to the legal significance of facts does not supplant the controlling dichotomy, which is between law-based decisions and fact-based decisions. Moreover, the fact that there is a dispute about materiality tells us absolutely nothing *295about the separability of that legal dispute, which was the key factor in the Johnson Court’s determination that- the district court’s resolutions about the sufficiency of the evidence for the purposes of qualified immunity are inseparable from the merits and therefore are not subject to interlocutory appeal. See id. at 313-18, 115 S.Ct. at 2156-58. The Supreme Court has made it abundantly clear that the appropriate focus in determining our appellate jurisdiction in interlocutory qualified-immunity appeals is the “appropriate interpretation of § 1291.” Johnson v. Fankell, — U.S. -, -, 117 S.Ct. 1800, 1807, 138 L.Ed.2d 108 (1997). Genuineness and materiality are merely incidental; they are not a controlling part of that picture.
Instead of trying to understand the nuances that differentiate Johnson and Beh-rens, the panel majority’s approach simply seeks to articulate a theory to justify jurisdiction. Their approach, as explained in the new opinion on denial of rehearing, ensures that unless the district court satisfies an undefined and therefore wholly arbitrary standard of specificity,11 there will always be grounds for the appellate court to conduct a roving review of the record to investigate possible grounds for appellate jurisdiction. And, once that step has been taken, the grounds for exercising appellate jurisdiction can be easily manufactured.12 The majority transforms Behrens’s reference to a “cumbersome review of the record” into an invitation to review de novo the record in all interlocutory qualified-immunity appeals. This is a transparent device fpr creating appellate jurisdiction at the discretion of the appellate court, and it is entirely inconsistent with the reasons the Supreme Court gave for its decisions in Johnson and Behrens.
III.
Finally, I must register my fundamental disagreement with the panel majority’s general approach to implementing the policies which support qualified immunity. I support the application of those important and necessary policies to the extent that we maintain fidelity to the numerous Supreme Court opinions on the subject. I cannot support, however, our Court’s steady development of a reflexive habit of substituting appellate judgment for that of the district courts on interlocutory matters in the name of protecting public officials from the burdens of litigation. As the Supreme Court has made abundantly plain, qualified immunity in and of itself is a substantial concession to the needs of faithful and efficient execution of public duties. It is not, therefore, necessary or appropriate to contort ancillary legal doctrines (such as the original panel opinion’s misapplication of the collateral-order doctrine) for the purpose of terminating litigation early when, in the judgment of the district court, genuine factual issues remain that merit further consideration.
*296A. Qualified immunity is an important policy goal which already embodies substantial deference to public officials.
The Supreme Court has recently revisited and reaffirmed the policy goals which under-gird the doctrine of qualified immunity. The first of these goals is “a strong public interest in protecting public officials from the costs associated with the defense of damages actions.” Crawford-El, — U.S. at - -, 118 S.Ct. at 1592-93; see Harlow, 457 U.S. at 814, 102 S.Ct. at 2736. In addition, we are concerned that legal process not be used to manipulate public officials through “allegations of subjective motivation [which] might have been used to shield baseless lawsuits from summaiy judgment,” so we apply an objective standard based on the state of the law at the time of the alleged conduct Crawford-El, — U.S. at -, 118 S.Ct. at 1593; see Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2737-38. Last, we seek to avoid “the unfairness of imposing liability on a defendant who ‘could not reasonably be expected to anticipate subsequent legal developments, nor ... fairly be said to “know” that the law forbade conduct not previously identified as unlawful.’ ” Crawfordr-El, — U.S. at -, 118 S.Ct. at 1593 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738); see Scheuer v. Rhodes, 416 U.S. 232, 239-40, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974).
The parameters of the qualified-immunity defense have been carefully laid out by the Supreme Court, and they represent the full extent to which a court accommodate the above-mentioned policy interests. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 990, 47 L.Ed.2d 128 (1976).
B. The substantial policy interest in adjudicating Colston’s claims cannot be ignored.
Despite our real concern about the policy interests protected by qualified immunity, we cannot forget that our fellow citizens also have a legitimate interest in vindicating their rights as provided by law. Congress has provided by statute that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
42 U.S.C. § 1983. Qualified immunity is intended to extinguish some legitimate claims arising under § 1983 which are frivolous or ambiguous in nature, and that is a recognized and accepted consequence of applying the doctrine. But in a case where the plaintiff has alleged a violation of his then-elearly-established constitutional rights and claims serious and demonstrable damages from the official’s conduct which was not objectively reasonable, the plaintiff should be entitled to proceed to trial so long as the allegations are sufficiently supported by evidence to survive a motion for summary judgment. “[I]t is not unfair to hold liable the official who knows or should know he is acting outside the law.” Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2911 (1978).
C.The majority erred by tipping the scales of justice in Trooper Barnhart’s favor.
The primary lesson of the recently decided cáse of Crawford-El v. Britton, — U.S. -, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), is that the courts of appeals should not go beyond the basic qualified-immunity framework to deprive plaintiffs of their “day in court.” Crawfordr-El contains a number of observations which should inform the way we proceed in a case like this one. For example, the Supreme Court noted that the “holding in Harlow, which related only to the scope of an affirmative defense, provides no support for making any change in the nature of the plaintiffs burden of proving a constitutional violation.” Crawfordr-El, — U.S. at -, 118 S.Ct. at 1592. The Supreme Court is telling us that the policies that give rise to the affirmative defense of qualified immunity do not stretch so far as to justify stacking the deck against the substance of the plaintiffs underlying claims. The panel majority’s erroneous interpretation in this litigation in Trooper Barnhart’s favor are functionally in*297distinguishable from the D.C. Circuit’s now-disapproved practice of requiring “ ‘clear and convincing evidence on the state-of-mind issue at summary judgment.’ ” Id. at -, 118 S.Ct. at 1589 (quoting Crawford-El v. Britton, 93 F.3d 813, 815 (D.C.Cir.1996) (en banc)).
The Supreme Court also strained to point out that there is no reason for the courts of appeals to “deal under the table” in order to impede lawsuits against public officials. The Court has endorsed “firm application of the Federal Rules of Civil Procedure” which “may lead to the prompt disposition of insubstantial claims,” id. at-, 118 S.Ct. at 1596 (internal quotation marks omitted), and went to great lengths to detail procedural barriers that the district courts should use to dispose of insubstantial claims, see id. at-, 118 S.Ct. at 1596-98.
Perhaps most importantly, the Court reiterated that a claim which may have merit should be heard unless the plaintiff fails to survive a fair application of qualified-immunity analysis.
[Qualified immunity’s] rationale of fairness does not provide any justification for the imposition of special burdens on plaintiffs who allege misconduct that was plainly unlawful when it occurred. While there is obvious unfairness in imposing liability— indeed, even in compelling the defendant to bear the burdens of discovery and trial — for engaging in conduct that was objectively reasonable when it occurred, no such unfairness can be attributed to holding one accountable for actions that she knew, or should have known, violated the constitutional rights of the plaintiff. Harlow itself said as much: “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Id. at 818-819, 102 S.Ct. at 2738; see also Butz , 438 U.S. at 506, 98 S.Ct. at 2910-11 (“[I]t is not unfair to hold liable the official who knows or should know he is acting outside the law....”).
Crawfordr-El, — U.S. at -, 118 S.Ct. at 1593.
If this case had proceeded as usual and gone to trial, it is possible that Colston might left the courthouse with empty pockets. He was, however, entitled under the evidence available at summary judgment to step to the bar and take his fair chances.
Colston’s claim was not insubstantial. The right which he alleges was violated — the right to be free from police brutality — is one of our civil rights which is of most vital concern to significant portions of our population. The alleged violation of his rights resulted in serious and permanent injuries. Colston has alleged facts which would support a jury finding that Trooper Barnhart improperly used deadly force to accomplish his seizure. The law, as clarified in Crawford-El, is plain; our Court should not have intervened when Trooper Barnhart’s motion for summary judgment was denied on the basis that the facts were not sufficiently established to justify summary judgment.
IV.
For the foregoing reasons, and with all due respect to my colleagues, I dissent from the panel majority’s additional opinion on rehearing, and I dissent from our Court’s denial of rehearing en banc.
. In the present case, there is no dispute over the distinct and separate legal issue of whether the law had been clearly established in this case. There is no doubt that Colston’s constitutional right under the Fourth Amendment to be free from Trooper Barnhart’s use of unreasonable and excessive force arising out of this police stop was clearly established long before the circumstances involved in this case occurred. The panel majority opinion explicitly recognizes both that this constitutional right was clearly established and that Colston appropriately alleged a violation of his constitutional rights in this § 1983 action. See Colston, 130 F.3d at 99.
. The Supreme Court granted certiorari in Beh-rens to evaluate the Ninth Circuit’s rule that there can be only one interlocutory appeal on the issue of qualified immunity. The Court rejected that rule, holding that the mere fact that the public official in Behrens had already appealed the trial court's denial of his motion to dismiss under Fed.R.Civ.P. 12(b)(6) did not preclude a further appeal when the trial court denied his motion for summary judgment on the grounds of qualified immunity. See Behrens, 516 U.S. at 308-10, 116 S.Ct. at 840.
. The first sentence of this paragraph points out that by denying summary judgment the trial court implicitly ruled that if the conduct giving *290rise to the lawsuit was what was alleged in the complaint, it violated clearly established law. This makes sense because if a trial court were to determine that the pertinent law was not clearly established at the time of the defendant’s conduct, the trial court would grant the defendant’s motion for summary judgment on qualified immunity, not deny it. See, e.g., Winfield v. Bass, 106 F.3d 525, 529 (4th Cir.1997) (en banc). That inherent determination is immediately appeal-able even when, as in Behrens, the district court may also have noted the existence of nonap-pealable factual disputes. See, e.g., id. at 529-30.
. I note that after generally tracking the language of Johnson, this is where the Behrens opinion departs from previously-familiar territory. The semantic switch from discussing the typical qualified-immunity issue of "clearly established law” to a hypothetical (in Behrens) issue of "objective legal reasonableness” creates many of the problems that are now plaguing the courts of appeals.
Neither the phrase "deemed sufficiently supported” nor the phrase "objective legal reasonableness” appear anywhere in the Johnson opinion. Moreover, Harlow is cited only once in Johnson. See Johnson, 515 U.S. at 311, 115 S.Ct. at 2155 (citing Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). Neither the portion of Johnson that cites Harlow nor the portion of Harlow which is cited in Johnson has anything to do with determining what the trial court found or did not find in its order denying summary judgment.
. In this regard the Supreme Court also said:
By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.
Id. at 2739; see also Crawford-El v. Britton, - U.S. -, -, 118 S.Ct. 1584, 1593, 140 L.Ed.2d 759 (1998).
. See Graham, 490 U.S. at 396-97, 109 S.Ct. at 1871-72. Of course, in Colston's casé the proper application of the Graham standard is informed by the Supreme Court’s observations about the Fourth Amendment’s restrictions on the use of deadly force. See generally Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
. This is not surprising because Graham did not involve any claim of qualified immunity at all, see Graham, 490 U.S. at 399 n. 12, 109 S.Ct. at 1873 n. 12, and the case was actually tried before a jury in the district court. Rather, Graham concerned the questions of which constitutional provision protects a citizen from excessive force during arrest and how to define the criteria for measuring whether the force used to effect a particular seizure was reasonable or unreasonable under the Fourth Amendment. In this latter regard the Supreme Court in Graham held:
Because ’'[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical operation,” its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, .whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
Graham, 490 U.S. at 396, 109 S.Ct. at 1872 (alterations in original, internal citation omitted) (citing Garner, 471 U.S. at 8-9, 105 S.Ct. at 1699-1700).
. It is also important to note that both Johnson and Colston’s complaint deal with the Fourth Amendment right to be free from unreasonable seizures. In Behrens, on the other hand, the plaintiff asserted that the conduct of the defendant violated his right to procedural due process and deprived him of substantive due process under "clearly established and Constitutionally protected property and liberty rights ... to specific employment and to pursue his profession free frdm undue governmental influence.” Behrens, 516 U.S. at 302, 116 S.Ct. at 837 (internal quotation marks omitted). In Behrens, two of the three circumstances required by Johnson were present: the trial court simply denied the motion for summary judgment, and the defen*293dant asserted that his actions had not violated any “clearly established” right of the respondent regarding his employment. See id. at 304, 116 S.Ct. at 838.
. In Behrens, Pelletier complained that Behrens, acting in his capacity as a supervisory agent for the Federal Home Loan Bank Board, had written a letter disapproving Pioneer Savings and Loan Association’s request for approval of the hiring of Pelletier as its managing officer. Id. at 302, 116 S.Ct. at 836-37. As a result of this letter, Pioneer asked Pelletier to resign and when he refused, fired him. Three years later, Pelletier brought suit in federal court, charging that Beh-rens's action in writing the letter had effectively discharged him from his post at Pioneer. Pelletier claimed that his discharge, in summary fashion and without notice or opportunity to be heard, violated his right to procedural due process. Id. at 302, 116 S.Ct. at 837.
Thus, Behrens presented a serious question as to whether the law was "clearly settled” at the time the letter was written in 1986, such that the author of such a letter could be personally liable for the resulting discharge of respondent. Id. The trial court denied Behrens's summary judgment motion, implicitly finding that if the facts alleged by Pelletier were established, there could be a violation of clearly established law. Beh-rens appealed, arguing that the law was not clearly established. Id. The court of appeals rejected that argument, finding that it was not before the court. Id. at 304, 116 S.Ct. at 838. On remand, the district court again denied Behrens's motion for summary judgment on qualified immunity, this time with an "unadorned” statement that material issues of fact precluded summary judgment. Id. When Behrens tried to appeal again, the Ninth Circuit declined to address the issue because of its rule prohibiting more than one appeal on qualified immunity issues. Id.
. The Ninth Circuit’s opinion on remand from the Supreme Court confirms that there was no basis for holding that Behrens's conduct deprived Pelletier of any clearly established liberty or property interest in specific employment at the time of writing the letter. See Pelletier v. Federal Home Loan Bank, 130 F.3d 429 (9th Cir.1997), modified on reh’g, 145 F.3d 1084 (9th Cir.1998).
. I pause here to note not only that the district court stated the grounds for denying summary judgment with all due specificity for the purposes of our determining appellate jurisdiction, but also that the panel majority knew full well what factual disputes led the district court to this decision.
The district court’s Memorandum and Order stated that the court was denying Trooper Barn-hart’s motion for summary judgment because it found "that issues of material fact exist which preclude summary judgment.” The court further stated:
Among these factual disputes are what information Trooper Barnhart possessed immediately prior to and at the moment he fired the three shots at the fleeing suspect and whether Officer Barnhart had a reasonable belief of danger from the fleeing suspect which would justify the use of deadly force in self-defense.
The majority actually contends that this statement "lacked sufficient specificity to permit us to determine whether we had jurisdiction over Barnhart’s appeal." Order on Reh’g, supra, at 285.
. This very case is a beautiful example. The majority states in amazingly conclusory fashion:
[Bjecause we determined that Barnhart's version of the facts mirrored the version of the facts that we determined the district court like- ,, ly assumed, we concluded that Barnhart was properly challenging the materiality of the factual issues the district court believed in dispute and that we therefore possessed jurisdiction over this appeal.
Id. at 285. Considering the fact that the district court denied summary judgment, the majority's statement that "that Barnhart's version of the facts mirrored the version of the facts that we determined the district court likely assumed” is simply incredible.