dissenting:
Although there is little question that Officers Waits and Roseberry were faced with an extremely difficult, threatening, crisis situation, I cannot agree that the case was properly resolved as a matter of law on summary judgment.
The majority is correct on the substantive legal standards. Whether a police officer’s use of force violates a person’s right to substantive due process does depend on “ ‘the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Gilmere v. City of Atlanta, 774 F.2d 1495, 1500-01 (11th Cir.1985) (en banc) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). Likewise, excessive force will constitute an unreasonable seizure in violation of the fourth amendment if “‘the importance of the governmental interests alleged to justify the intrusion’ ” do not outweigh “ ‘the nature and quality of the intrusion.’ ” Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)). Thus, my dispute with the majority rests not on the appropriate legal standards, but on how the recited standards are to be applied, and whether the weighing process is for this court or the ultimate fact finder.
As I read the majority opinion, a substantive due process or fourth amendment inquiry with respect to the use of deadly force effectively ends with a finding on either the first or third Gilmere factors: that the police officer was in danger of harm or that he acted in good faith. The opinion recites the second Gilmere factor— “the relationship between the need [for force] and the amount of the force that was used” — but it does not examine the facts relevant thereto in any meaningful way. In both the district court’s opinion and the majority’s opinion here, no mention whatsoever is made of the affidavit of the plaintiffs expert. That affidavit, sworn to by an expert in police training who has developed procedures for the United States Justice Department, the Atlanta Police Department and the Louisville Police Department, states that the officers here, had they been trained properly, had several alternatives short of shooting O’Neal three times that could have accomplished the officers’ objective of incapacitating and disarming him. See Record, Vol. Ill, Tab 51, Exh. E at 4-6 (discussing use of baton, mace, negotiation, service revolver rather than shotgun and shooting at legs). In at least generalized terms, a number of treatises confirm this view. See, e.g., J. Cope & K. Goddard, Weaponless Control for Law Enforcement and Security Personnel 23 (1979); J. Hubbard & B. Fried, Weaponless Defense: A Law Enforcement Guide to Non-Violent Control 90-91, 164-65 (1980); D. Schultz & M. Slepecky, Police Unarmed Defense Tactics 57-63 (1973); see also A. Goldstein, P. Monti, T. Sardino & D. Green, Police Crisis Intervention 70-71 (1977) (discussing the inappropriateness of approaching mentally unstable person with aggressiveness); Institute for Defense Analyses, Science and Technology: Report to the President’s Commission on *660Law Enforcement and Administration of Justice 14 (1967) (recognizing value of nonlethal weapons for “[restraining a psychotic intent upon attacking bystanders or upon self-destruction”); F. Wilerman, Model Policy Manual for Police Agencies 359-60 (1976) (discussing the use of batons and chemicals for temporary disabling). Indeed, the DeKalb County Police Department itself has issued orders suggesting the use of batons and mace “under extreme, hazardous assault conditions.” Record, Vol. II, Tab 35, Exh. 2 at 7; see also id. at 4. There is also no mention in the majority opinion of Officer Roseberry’s testimony that he was never trained in (1) disarming an individual with a knife by the use of any weapon other than a firearm, (2) what one might realistically say in persuading someone to drop their weapon, or (3) handling the mentally unstable. Id., Deposition of Rickie Emmit Roseberry at 32, 36, 46.
While there may have been virtually no dispute on the historical facts of O’Neal’s shooting,1 there is conflict in the record on the proportionality of the force used, and such conflict is for the ultimate fact finder, not this court, to resolve and then weigh against the fact that O’Neal lost his life. A jury might find that the officers acted unreasonably in not pursuing alternative, less drastic measures, and that the constitutional deprivation actually resulted from the county’s failure to train them in the use of such measures. To usurp the fact finder’s function by turning the case entirely on the need for force and/or the officers’ good faith is inappropriate and a good example of hard cases making bad law. I therefore dissent.
. I use the phrase "virtually no dispute" because there are some minor discrepancies on the record before us. For example, Officer Rose-berry’s report to his superiors, filed soon after the shooting, indicates that O'Neal was some fifteen feet away from him when he fired. His deposition testimony indicates O’Neal was approximately eight feet away from him, and Officer Waits testified that O’Neal was approximately six feet away. There is also some conflict between the way the two officers described O’Neal’s position just before and at the time the shots were fired. I do not point up these slight discrepancies for the purpose of making anything of them, only to indicate that these nuances are most appropriate for a fact finder to consider.