concurring in part and dissenting in part:
I agree with the majority that the district court properly denied summary judgment as to the defendant officers’ claim of qualified immunity in regards to their entering and searching the apartment. However, I disagree with the Opinion’s resolution of the qualified immunity question in the contexts of the unreasonable force and provoking a confrontation issues.
1. FACTS/EVIDENCE1
Initially, further consideration of the facts/evidence is warranted.2 On June 6, 2006 at approximately 8:28 p.m., a dispatch call went out over the San Francisco Emergency Communications Department (“ECD”) system for an officer to conduct a premises check at 2 Garces Drive located in the Park Merced apartment complex.3 San Francisco Police Department Officer *540Paulo Morgado responded at 8:33 p.m. After he had opened the door to the premises and saw the bloody T-shirt hanging on an interior door, between 8:40 and 8:43 p.m., he made requests over the ECD system for another police unit to assist in conducting a walk-through to check out the premises. In doing so, he specifically referenced “a T-shirt ... hanging on the door with blood all over it.”
Officers Michelle Alvis and John Keesor heard Morgado’s transmission and responded at about 8:50 p.m. Additional police units also arrived thereafter. Morgado, Alvis, Keesor and Officer Yukio Oshita entered the premises, announcing that they were San Francisco police officers. They did not encounter anyone on the first floor. Moving up to the second floor, there were a number of closed doors, one of which was to a bathroom. The door to the first bedroom was locked, but there were sounds of movement from within. The officers again announced that they were police officers and ordered the occupants to open the door. After a period of time, entry was obtained and the officers encountered Jason Martin. The officers ordered Martin to the ground. He complied and was handcuffed.
While dealing with Martin, the bedroom closet door was open and the officers heard movement above them. Believing that another person was trying to gain access to the roof, Morgado announced through the ECD system that “we got one going on the roof.” Keesor went back downstairs and out of the building to determine if he could locate anyone on the roof. Eventually, personnel from the apartment complex informed Keesor that there was no roof-top exit from the attic, and he called in that information. Keesor then returned to the second floor of the premises and, with other officers, checked out a second bedroom. It was unoccupied. Although it had a closet, there was no access to the attic from that room. Upon Keesor’s return to the first bedroom, Martin was searched for weapons and a four inch “ninja” knife was located in his back pocket. It did not appear to have any blood on it.
At about 8:56 p.m., Officer Erik Leung spoke with Keesor about setting up a perimeter. Morgado spoke with the dispatcher (“Dispatch”) about getting a search dog unit. Around 9:02 p.m., Dispatch reported that it was “negative” as to the dog unit.
The officers elected to investigate the attic. Access to the attic was solely through an approximate 2-21/2 foot hole at the top of the first bedroom’s closet. To enter one had to utilize the closet’s shelving to lift oneself up. Once inside, the attic was extremely dark with no lighting. The attic was triangular-shaped but even at its center there was not enough room for the taller officers to stand. The floor of the attic was transversed at regular intervals by wood beams approximately six inches in height, in between which had been placed copious amounts of cotton-like white insulation material. Also inter-spaced at regular intervals were both vertical wood beams from floor to ceiling and outstretched diagonal rafters supporting the roof. There were also heating ducts and other obstructions present.
Alvis was the first officer up into the attic, followed by Keesor and Morgado. Because of a lack of space, Oshita remained half-way through the opening. They announced themselves as police officers. There was no verbal response. Using their flashlights and with guns drawn, the officers began searching the attic for any persons. Eventually, Alvis spotted Asa Sullivan, who was wearing a black T-*541shirt, jeans, heavy boots, and eyeglasses.4 Sullivan was sitting/reclining in between two of the wooden beams and was partially covered by insulation. Avis was the nearest officer to Sullivan, approximately 15 feet away. There were wood beams, rafters and other obstructions between the officers and Sullivan. Avis ordered Sullivan to show the officers his hands, Sullivan did not comply and verbally indicated that he would not be taken into custody. Morgado announced through the ECD system, “Stand by, he’s gonna be a 148, stand by.” “148” is code for “resisting arrest.”5 At that point, all three officers (i.e., Avis, Keesor and Morgado) had their flashlights and guns trained on Sullivan.
Thereafter, the officers tried to get Sullivan to cooperate. He did not do so and continued to make statements indicating his intent to resist. Dispatch finally made contact with a dog unit that responded that it would be there in a few minutes. Avis announced to Dispatch, “Be advised, this subject is refusing to show us his hands. I cannot see what is in his hands. Be advised.” Morgado stated, “He’s also said he’s not coming into custody.” Around that point, someone asked whether the officers could use “less than lethal.” “Less than lethal” refers to a shotgun that has been fitted to shoot bean bags rather than pellets, and is usually not deadly unless fired at very close range. Morgado responded over the ECD system, “Hey Sarge, there’s no way we can use less lethal. We’re in the attic with rafters.”
At about 9:06 p.m., it was reported that Sullivan had begun to pound the floor with his foot in an apparent attempt to make a hole through the floor into the bathroom below. Leung, who was in the bathroom, stated that “there doesn’t appear to be any access.” At some point, Martin began yelling to Sullivan from the bedroom to “just come on down, it’s okay.” Morgado asked the officers in the bedroom with Martin to inquire if he could tell them the name and date of birth of the person in the attic in order to check on his criminal status. Leung reported that Martin “doesn’t know his name or his date of birth.”
At around 9:07 p.m., Sullivan began getting more agitated and made statements of a threatening nature to the officers. Morgado reported via the EDC system that Sullivan was “trying to 801 by cop. Can’t see his hands. He’s claiming to have something.” “801” is code for “person attempting suicide.” During this period, Sullivan had continued to kick on the flooring and had managed to break open a small hole above the bathroom tub. Certain officers tried to use a pole with a hook to enlarge the hole in order to be able to pull Sullivan through it or to secure him. The ceiling material would not give way. At approximately 9:12 p.m., Officer Tracy McCray asked Morgado through the EDC system whether the less than lethal option could be used through the hole. Leung, who was in the bathroom, responded that “we can’t identify a target through a dark hole. So why don’t we slow it down, see if we can get a hostage negotiator or something, because this guy’s not listening to us.”
Shortly thereafter, Avis announced through the EDC system, “He’s bringing his hand around, he’s got something, hold on. * * * * The suspect’s under the insulation, cannot see it, he’s making movement.” An officer on the ground reported *542that the canine unit had arrived. At about 9:15 p.m., McCray shouted over the EDO “shots fired, shots fired!”
The evidence as to what happened immediately before the shooting started varies somewhat among the four officers who were in the attic. Each officer was in a different location from the others.6
In the recorded interview of Alvis taken in the early morning of June 7, 2006 by inspectors from the San Francisco Police Department Investigations Unit, Alvis stated that she repeatedly asked Sullivan to show the officers his hands but he did not do so. He then began to move his right hand under the insulation and behind his back and then rapidly moved his right arm up. She heard a “pop” and saw what she thought was a “muzzle flash.” Believing that she was being fired on, Alvis shot her own weapon. Alvis’s February 22, 2008 deposition testimony and her June 16, 2008 declaration are consistent with her interview statements except that in her deposition and declaration she said that, when she saw Sullivan suddenly move his right arm, she “moved” / “fell backward,” then heard the sound she believed was gunfire and saw the muzzle flash, and made the decision to fire her weapon. Also, in her deposition, Alvis stated that, just before the shooting, Sullivan did bring up his left hand and was doing something with it, but she is certain he did not have a weapon in that hand.
Keesor in his June 7, 2006 interview stated that just prior to the shooting he had been talking to Sullivan trying to get him to cooperate. Sullivan — who had been responding verbally — stopped and gave Keesor “this weird look; and he takes a deep breath.” Thereafter, he saw Sullivan appear to raise his hand(s)7 holding a “black oblong thing” which looked to Keesor to be a barrel of a gun. He then heard a “pop” and Alvis fell from his peripheral field of vision. Believing that Sullivan had shot Alvis, Keesor opened fire. Keesor’s February 12, 2008 deposition testimony and his June 18, 2008 declaration are generally consistent with his interview statements except that in his declaration it is unclear whether he fired his weapon upon seeing Sullivan raising his hand(s) with the dark object therein or if it was after also hearing what he though was gunfire. Keesor in his deposition stated that he did not see any muzzle flash coming from Sullivan’s direction.
In his June 7, 2006 interview, Morgado stated that Sullivan had been repeating “tell my mom, tell my girlfriend I love them,” followed by Alvis saying something that he couldn’t understand, and then shots were fired. Upon hearing gunfire, Morgado was about to also fire his weapon but Keesor got in front of him and he elected not to shoot his gun. In his deposition, when asked when he first realized that “a gun had gone off in the attic,” Morgado responded that it was when he “saw sudden movement of Mr. Sullivan .... I saw his right shoulder move in a forward direction over his waist to the left ....“ In his June 16, 2008 declaration, Morgado stated that:
While the Suspect was seated, after he made the statements that caused me to believe he may attempt to force us to shoot him, he made a sudden movement with the right side of his body that I *543thought was consistent with producing a firearm. Believing he was about to shoot at us, I began to depress the trigger on my weapon. Before I could fire, however, I realized that Officer Keesor may be in my way and I held fire. As a result, I did not discharge my weapon during this incident. Shortly after I saw the sudden movement of the right side of the Suspect’s body I heard the sound of gunshots, some of which I believed were coming from the Suspect.
In his June 10, 2008 declaration, Oshita stated that before the shooting, Sullivan said: “hey, tell my mom that I love her, and tell my girl that I love her. You guys, I’m gonna make my move and you’ll be sorry.” Shortly thereafter, he heard gunshots and saw muzzle flashes.
No firearm or other weapon was found on or near Sullivan’s body. A dark eyeglass case was located underneath his right forearm.
II. UNREASONABLE FORCE
A. Applicable Law
As noted in Billington v. Smith, 292 F.3d 1177 (9th Cir.2002):
In Saucier v. Katz, [533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001),] the Supreme Court instructed lower courts deciding summary judgment motions based on qualified immunity to consider “this threshold question: Taken in light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” [Id. at 201, 121 S.Ct. 2151.] If not, then “there is no necessity for further inquiries concerning qualified immunity.” [M] If so, then “the next, sequential step is to ask whether the right was clearly established.” [Id.] A constitutional right is clearly established when, “on a favorable view of the other parties’ submissions” “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” [Id.] In Saucier, the Supreme Court overruled Ninth Circuit precedent holding that “the inquiry as to whether officers are entitled to qualified immunity for the use of excessive force is the same as the inquiry on the merits of the excessive force claim.” The Court rejected our view because an officer might be reasonably mistaken as to the facts justifying his actions, or as to the law governing his actions, so that an officer could use objectively excessive force without clearly violating the constitution.
A police officer may reasonably use deadly force where he “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others. We analyze excessive force claims in the arrest context under the Fourth Amendment’s reasonableness standard. We balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake” and ask whether, under the circumstances, “including the severity of the crime at issue, the suspect poses an immediate threat to the safety of the officers or others, or whether he is actively resisting arrest or attempting to evade arrest by flight.” The reasonableness inquiry is objective, without regard to the officer’s good or bad motivations or intentions.
Id. at 1183-84 (footnote and citations omitted). As further observed in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989):
*544The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. * * * * The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.
Id. at 396-97, 109 S.Ct. 1865. Finally, Tekle v. United States, 511 F.3d 839, 844-45 (9th Cir.2006), states that:
The legal framework is clearly established. The first factor in determining whether the force used was excessive is the severity of the force applied. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir.2003). The second factor, and the most important, is the need for the force. Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003). The amount of force used is “permissible only when a strong government interest compels the employment of such force.” Drummond, 343 F.3d at 1057 (quoting Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir.2001)). * * * *
Finally, we must balance the force used against the need, to determine whether the force used was “greater than is reasonable under the circumstances.” Santos v. Gates, 287 F.3d 846, 854 (9th Cir.2002). This determination
“requires careful attention to the facts and circumstances of each particular case” and a “careful balancing” of an individual’s liberty with the government’s interest in the application of force. Because such balancing nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly. This is because police misconduct cases almost always turn on a jury’s credibility determinations.
Id. at 853 (quoting Graham, 490 U.S. 396, 109 S.Ct. 1865) (internal citations omitted).
B. Analysis
1. The Officers’ Pointing their Guns at Sullivan
There were two instances of force applied as to Sullivan which must be addressed and analyzed. First is the officers’ act of training their firearms on Sullivan.8 As stated in Tekle, 511 F.3d at 845, “[w]e have held that the pointing of a gun at someone may constitute excessive force, even if it does not cause physical injury. See Robinson v. Solano County, 278 F.3d 1007, 1014-15 (9th Cir.2002) (en banc).” Second is the actual shooting of the firearms by Officers Alvis and Keesor.
Turning to the facts and circumstances confronting the officers, while encountering the bloody T-shirt would not by itself constitute probable cause to believe that a crime had been committed, it would certainly give rise to a reasonable belief that caution (because of possible danger to the officers) was appropriate.9 Another factor was the officers’ being denied immediate *545access to the first bedroom following their identifying themselves as police officers and requests for the door to be opened. Thereafter, the officers found Martin in the bedroom who cooperated with their commands. From the sounds of movement coming from the attic at that point, it was rational to conclude that there was another individual who was attempting to flee from the officers and who was in the attic or on the roof. Before climbing into the attic, a knife was found on Martin’s person. Upon entering the attic, the officers found it to be extremely dark, illuminated only by the flashlights which they carried in one hand, and filled with rafters and other obstructions which hampered both movement and vision. When the person in the attic did not respond to their presence or announcements and remained hidden, in light of all of the referenced factors, it was objectively reasonable for the officers to have drawn their guns because of the possibility of danger to the officers in that situation.10
Thereafter, the officers located Sullivan who was in a position in between sitting and lying down on his back between two wooden beams on the floor, and partly covered by the insulation material. Despite the officers’ repeated demands for him to show them his hands, he never raised his right hand which was underneath the insulation and, periodically, he would move his left hand in and out of the insulation material. Consequently, at no time during the entire incident could the officers have determined whether or not Sullivan was armed with a gun, knife or other weapon. Sullivan was a 25 year old able-bodied, five foot nine inch, 208 pound man. Thus, pointing their weapons at him cannot be found to have been objectively unreasonable. The facts of this case are clearly distinguishable from Ninth Circuit precedent finding excessive force from the mere act of aiming weapons at an individual.11 Here, Sullivan was not cooperative, was indicating that he would not be taken into custody, and was possibly armed with a weapon, plus all of the participants were in a dark, confined and obstructed location. In light of the above facts, the defendant officers are entitled to qualified immunity *546as to this portion of plaintiffs’ unreasonable force claim.
2. Officers Alvis and Keesor’s Shooting of Sullivan
The problem with the district court’s analysis of the unreasonable force issue in regards to Sullivan’s shooting is that the court focused solely on the “provoking a confrontation” aspect without any consideration as to whether the undisputed facts/evidence show that the officers’ firing of their weapons was objectively reasonable at the point in time of the shooting. As discussed below, the district court’s conclusions as to the provoking a confrontation issue are incorrect. Hence, this portion of the case should be reversed and remanded for the district court to decide whether the undisputed facts establish that Officers Alvis and Keesor’s firing of their weapons was objectively reasonable.
On the issue of the shooting, all of the previously discussed facts/evidence would come into play. Furthermore, the officers continually made requests throughout the incident for Sullivan to show both his hands, but he never did so. Additionally, he made statements which: 1) indicated his intent not to be taken into custody; 2) were of a threatening nature in regards to the officers’ safety; and 3) led the officers to believe that he was contemplating “suicide by cop.”12 In addition, once the officers encountered Sullivan in the attic, they did not act precipitously. They did not rush and attempt to subdue him. As the time elapsed, they considered options such as using less than lethal weapons and trying to force a larger hole through the bathroom ceiling/attic flooring to gain access to Sullivan’s person. Also, they had made a request for a canine unit and were waiting for it to arrive.
Finally, and most importantly, one must consider what was happening just before the officers’ use of the force.13 Here, there was testimony that immediately preceding the shooting, there were: 1) Sullivan’s sudden movement of his right hand behind his back, 2) Sullivan’s sudden lifting of his right arm, 3) Sullivan’s raising something in one or both of his hands, 4) the sound of a “pop” that, to certain of the officers, was like a gunshot, and 5) a muzzle flash as if from a gun. Officer Alvis stated that she believed that Sullivan was shooting a gun at her so she returned fire. Officer Keesor testified that he thought that Sullivan had shot Alvis after he heard the pop and she fell from his peripheral view. He then opened fire. Although it is not disputed that Sullivan had no firearm to shoot, the question not addressed by the district court is whether Alvis and Keesor had objectively reasonable beliefs that Sullivan had a gun and was using it at the time they fired their weapons.14
*547III. PROVOKING A CONFRONTATION
A. Applicable Law
Alexander v. City and County of San Francisco, 29 F.3d 1355 (9th Cir.1994), involved a case where San Francisco police officers, pursuant to merely an administrative inspection warrant, decided to storm into the home of a man known to be “a mentally ill, elderly, half-blind recluse who threatened to shoot anybody who entered [his house].” Id. at 1366. He was shot and killed when he pointed and tried to fire a handgun at the entering officers. This court held that, if the officers committed an independent Fourth Amendment violation by using unreasonable force to enter the decedent’s house, then they could be held liable for shooting him — even though it was objectively reasonable to use their guns at the moment of the shooting — because they “used excessive force in creating the situation which caused [the decedent] to take the actions he did.” Id. The district court’s analysis of the excessive force issue, although citing to the Billington decision, actually rests on the initial concepts delineated in Alexander,15
However, as noted in Billington, 292 F.3d at 1188-90:
We have since placed important limitations on Alexander. In Scott v. Henrich [, 39 F.3d 912 (9th Cir.1994) ], we held that even though the officers might have had “less intrusive alternatives available to them,” and perhaps under departmental guidelines should have “developed a tactical plan” instead of attempting an immediate seizure, police officers “need not avail themselves of the least intrusive means of responding” and need only act “within that range of conduct we identify as reasonable.” [Id. at 915.] We reinforced this point in Reynolds v. County of San Diego, [84 F.3d 1162 (9th Cir.1996),] which distinguished Alexander because “the court must allow for the fact that officers are forced to make split second decisions.” [Id. at 1169.] We affirmed summary judgment for the defendant police officers despite experts’ reports stating — like the expert report in the case at bar — that the officers should have called and waited for backup, rather than taking immediate action that led to deadly combat. We held that, even for summary judgment purposes, “the fact that an expert disagrees with the officer’s action does not render the officer’s action unreasonable.” [Id. *548at 1170.] Together, Scott and Reynolds prevent a plaintiff from avoiding summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless. Rather, the court must decide as a matter of law “whether a reasonable officer could have believed that his conduct was justified.” Id.
We placed an additional limitation on Alexander in Duran v. City of Maywood [, 221 F.3d 1127 (9th Cir.2000)]. In Duran, police officers responding to a report of shots fired in a residential neighborhood walked up the plaintiffs’ driveway toward their garage silently, without identifying themselves, and holding their guns. Then they heard someone cocking a pistol and saw an armed man in the garage. They shot him after he ignored their orders to drop his gun and pointed his gun at them. The plaintiffs appealed the jury’s defense verdict because the district court did not instruct the jury, under Alexander, that the officers could violate the Fourth Amendment by provoking the use of deadly force. We affirmed, holding that an Alexander instruction is unnecessary where there is no “evidence to show that the officer’s actions were excessive and unreasonable” and caused the “escalation that led to the shooting,” and where the evidence does not show that the officer’s actions “should have provoked an armed response.” [Id. at 1131.]
We read Alexander, as limited by Duran, to hold that where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force. In Alexander, the officers allegedly used excessive force because they committed an independent Fourth Amendment violation by entering the man’s house to arrest him without an arrest warrant, for a relatively trivial and non-violent offense, and this violation provoked the man to shoot at the officers. Thus, even though the officers reasonably fired back in self-defense, they could still be held liable for using excessive force because their reckless and unconstitutional provocation created the need to use force.
Alexander's requirement that the provocation be either intentional or reckless must be kept within the Fourth Amendment’s objective reasonableness standard. The basis of liability for the subsequent use of force is the initial constitutional violation, which must be established under the Fourth Amendment’s reasonable-ness standard. Thus, if a police officer’s conduct provokes a violent response, as in Duran, but is objectively reasonable under the Fourth Amendment, the officer cannot be held liable for the consequences of that provocation regardless of the officer’s subjective intent or motive. But if an officer’s provocative actions are objectively unreasonable under the Fourth Amendment, as in Alexander, liability is established, and the question becomes the scope of liability, or what harms the constitutional violation proximately caused. [Footnotes omitted.]
B. Analysis
Even accepting the proposition that Officers Alvis, Keesor and Morgado’s presence in the attic was not constitutionally proper,16 they cannot be found to have pro*549voked a confrontation under the Alexander/Billington line of cases. First of all, unlike the facts in Alexander, the officers here had no advance knowledge that, when they got into the attic, they would meet an individual who was definitely armed and/or mentally unstable. Also, the officers’ actions were not excessive and/or unreasonable in light of the developing events that transpired in the attic. Furthermore, the evidence does not demonstrate that the officers’ conduct either caused an escalation that led to the shooting or should have provoked an armed or violent response. See Billington, 292 F.3d at 1189. Indeed, had Sullivan cooperated with the officers’ commands as did Martin, there is no doubt that he would have been treated in the same manner and survived the encounter.
One last point should be made: it is not disputed that the only entrance to (or exit from) the attic known to the officers was through the hole in the closet ceiling. As they indicated in their statements/testimony which is uncontradicted by the evidence in the record, once they encountered Sullivan in the attic, the officers reasonably believed they could not safely retreat and exit the attic without first determining whether or not he had a gun, knife or other weapon. To climb down through the hole, one had to use both hands/arms to lower oneself, which would render the officer defenseless to an attack. Thus, until such time as the officers could make a determination as to whether Sullivan had a weapon, they could not safely retreat or leave the attic.
IV. CONCLUSION
For the reasons stated, I dissent from the majority’s affirmation of the district court’s denial of the defendant officers’ motion for summary judgment on the basis of qualified immunity as to the issues of excessive force and provoking a confrontation.
.Northern District of California Civil Local Rule 56-l(a) states that "Unless required by the assigned Judge, no separate statement of undisputed facts or joint statement of undisputed facts shall be submitted.”
The record herein, does not contain any separate or joint statement of undisputed facts. Furthermore, aside from Defendants' Second Objection to and Motion to Strike Evidence Offered by Plaintiffs in Support of their Opposition to Motion for Summary Judgment (which mostly challenged the evidentiary basis for plaintiffs’ expert's opinions), no evidentiary objections (or rulings thereon) have been provided.
The following factual summary has been made from a review of the entire record submitted on this appeal, noting any relevant factual disputes.
. As observed in Blanford v. Sacramento County, 406 F.3d 1110, 1115 (9th Cir.2005), an analysis of an excessive force claim under the objective reasonableness standard of the Fourth Amendment requires "consideration of tire totality of the facts and circumstances in the particular case [emphasis added].”
. The specified times cited herein are based upon the transcript of the audio dispatch recording of the communications over the ECD system that were made while the events herein were transpiring ("transcript”). The ECD system automatically records the times at which the calls are generated. A copy of that transcript was placed into the record, apparently without objection as to its accuracy.
. According to the Coroner's Report, Sullivan was 25 years old, five feet nine inches in height and weighed 208 pounds.
. Included in the transcript was a table as to the meaning of the code words utilized by the officers during the incident.
. Alvis was standing and closest to Sullivan (about fifteen feet away). Morgado was a number of feet behind and to the left of Alvis. Keesor was even further away from Alvis but in a prone position on the attic floor. Oshita was still half-way through the opening into the attic.
. Keesor was unsure if Sullivan raised only one hand or both hands.
. Defendant Morgado is alleged to have used excessive force even though he did not fire his weapon at Sullivan or otherwise make physical contact with him. Hence, the only basis for an unreasonable force claim against Morgado would rest on his aiming his gun at Sullivan.
. As conceded in the Opinion, supra at page 3659, the presence of the bloody shirt in the interior of the apartment and the knife found *545on Martin "may have suggested some risk of harm.”
. In Motley v. Parks, 432 F.3d 1072, 1089 (9th Cir.2005) (en banc), in the context of conducting a warrantless search of a parolee's purported residence not based on probable cause but solely upon a mandatory condition of parole, this court held that "While it may have been reasonable for [the police officer] to have drawn his firearm during the initial sweep of a known gang member's house, his keeping the weapon trained on the infant, as he was alleged to have done, falls outside the Fourth Amendment’s objective reasonableness standard.” “[A] police officer may well act reasonably in drawing his gun while he approaches a [person] in an uncertain situation.” In re Joseph R., 65 Cal.App.4th 954, 961, 76 Cal.Rptr.2d 887 (1998).
. For example, in Tekle, "twenty-three armed officers saw a barefoot [and unarmed] eleven-year old boy, clad in shorts and a T-shirt” emerge from a garage and, even after he cooperated with the officers’ instructions, certain agents “held a gun to his head, searched him handcuffed him, pulled him up from behind by the chain of the handcuffs, and sat him on the sidewalk, still handcuffed, with their guns pointed at him, for ten to fifteen minutes.” 511 F.3d at 845-46.
In Robinson, 278 F.3d at 1015, this court en banc, while finding that the law "was not sufficiently established in this circuit in 1995 to override the officers’ claim of qualified immunity,” held that "[t]he development of the law with respect to arrests and detentions now allows us to recognize as a general principle that pointing a gun to the head of an apparently, unarmed suspect during an investigation can be a violation of the Fourth Amendment, especially where the individual poses no particular danger. [Emphasis added].”
. As to the validity of the "suicide by cop” concept, see generally Boyd v. City and County of San Francisco, 576 F.3d 938, 945-46 (9th Cir.2009).
. It does not appear that the district court specifically considered the facts and circumstances confronting the officers at this critical period of time.
. The majority Opinion seems to imply that there are factual questions in regards to the use of deadly force because Officers Keesor and Alvis emptied their entire magazines when firing at Sullivan and because, in the majority’s view, Sullivan "had not initially caused this situation.” A question arises as to why the majority feels that, under the facts herein, it makes any difference whether the officers fired one bullet or "12 shots.” If there was a reasonable basis to believe that deadly force was appropriate in the situation, given the darkness of the location, the rafters and other obstructions, and additional factors which impeded the officers’ determination as to the accuracy of their shots, there is no basis to believe that it would have been rational for the officers to count the number of *547bullets fired and to stop at some arbitrary figure.
Additionally, to claim that Sullivan “had not initially cause this situation” is highly questionable. Had Sullivan remained in the first bedroom when the officers announced their presence, had he shown both of his hands when repeatedly requested to do so by the officers, and had he not made the statements to the officers which were of a threatening and uncooperative nature, then the “situation” would have been entirely different.
. As specifically stated in the district court's Order re Parties' Cross-Motions for Summary Judgment:
The Court's determination that it cannot find as a matter of law that Officers Alvis and Keesor’s warrantless entry and search did not violate the Fourth Amendment also precludes granting summary adjudication as to whether the officers' use of deadly foixe was reasonable. "[W]here an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.” Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir.2002). In addition to the questions of fact regarding whether Officers Keesor and Alvis' entry and search was an independent violation of Sullivan's Fourth Amendment rights, the Court finds there are questions of fact as to whether the officers' entry and search provoked the officers' use of deadly force.
. The fact that the officers may have been negligent when they decided to climb up into the attic will not give rise to liability for the *549use of reasonable force thereafter. As stated in Billington,
Under Alexander, the fact that an officer negligently gets himself into a dangerous situation will not make it unreasonable for him to use force to defend himself. The Fourth Amendment’s "reasonableness” standard is not the same as the standard of "reasonable care” under tort law, and negligent acts do not incur constitutional liability. An officer may fail to exercise "reasonable care” as a matter of tort law yet still be a constitutionally “reasonable” officer. Thus, even if an officer negligently provokes a violent response, that negligent act will not transform an otherwise reasonable subsequent use of force into a Fourth Amendment violation.
292 F.3d at 1190 (footnote omitted).