concurring.
I write separately to offer a few brief observations on the dissent of Justice Bakes. I will address his two arguments in order.
I.
Justice Bakes necessarily is obliged to. rely on the High Court’s Daniels case which he briefly mentioned in his first opinion last spring, and which precipitated the petition for rehearing, as barring Anderson’s claim against the police officers. As Justice Bakes admits, Daniels only bars actions based on 42 U.S.C. § 1983 which are grounded in negligence. What Justice Bakes does not see, but what is nevertheless so obvious, is that Anderson’s claim against the police officers is ground*189ed in intentional misconduct, as well as negligence, the former of which Daniels does not bar.
Justice Bakes’ “careful analysis of plaintiff’s complaint” fails to quote and is seen to virtually ignore the following allegation therefrom:
On or about the 18th day of October, 1981, in the city of Pocatello, the defendants Black and Gentillon, in the course of their duty and the conducting of an investigation, did deliberately and intentionally shoot the plaintiff with handguns, thereby causing him to suffer physical and emotional injuries. R., p. 3 (emphasis added).1
Justice Bakes carefully relegates his discussion of this allegation, which is fatal to his argument, to his footnote no. 2. There, his argument self-destructs with this admission: “It is readily conceded by all that the officers did intentionally shoot Anderson.” Precisely so. The question to be answered at trial, however, is whether or not they did so reasonably.
Justice Bakes attempts to equate the intentional act of the officers of shooting Anderson with an intentional act such as speeding which unintentionally results in an injury to another. The two such circumstances are readily distinguishable. Simply put, it cannot be denied that it is an intentional tort to without justification aim at another, intending to shoot him or her, pull the trigger, and wound that person. If death ensued, absent a showing of reasonable conduct in justification, in criminal law it would be a homicide.
Justice Bakes perhaps wishes the facts more resembled those of Dunster v. Metropolitan Dade County, 791 F.2d 1516 (11th Cir.1986). There, an off-duty officer became involved in a barroom brawl. He drew and cocked his pistol. “At this point the deceased, James Dunster, who was not in [Officer] Aydelotte’s line of vision, allegedly jumped into Aydelotte and knocked him backwards. Aydelotte fell to the ground at which time the gun fired, fatally wounding James Dunster.” Id. at 1518. The Court explained:
In the district court, the plaintiffs contended that Officer Aydelotte and Dade County negligently violated the deceased’s right to due process under the Fourteenth Amendment. The district court charged the jury on negligence and the special interrogatories submitted to the jury were based on negligence. It is now clear, however, that negligent conduct of state officials cannot give rise to a valid Fourteenth Amendment claim. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Because the plaintiffs’ case was premised on a theory of negligence, the jury verdict cannot be sustained under the Fourteenth Amendment. Id. at 1518 (emphasis original, footnote omitted).
The instant officers were not knocked down, at which point their guns discharged. They were not aiming at a nearby tree, at which point Anderson leaped into their line of fire. They intentionally shot Anderson, as Justice Bakes “readily conceded.” Anderson’s case is not “premised on a theory of negligence,” id.', it is premised on deliberate and intentional use of excessive force. Such claims, as ought to be “readily conceded,” are not barred by Daniels. E.g., id.; Waggoner v. Mosti, 792 F.2d 595 (6th Cir.1986); New v. Minneapolis, 792 F.2d 724 (8th Cir.1986); Fernandez v. Leonard, 784 F.2d 1209 (1st Cir.1986).
II.
The remainder of Justice Bakes’ dissent consists of a remarkable attempt to draw all inferences and resolve all doubts against the party not moving for summary judgment. Never does Justice Bakes devote himself to what the rules of procedure *190require us to do, which is to draw inferences and resolve doubts for Anderson. His efforts on behalf of the police officers succeed only in arranging inferred facts into fragile house of cards. Moreover, this house of cards is built on quicksand, in that his contortions fall short of ruling out reasonable inferences supporting Anderson’s allegations of excessive force.
The record does not inform us of all the charges against Anderson, nor of how the jury was instructed as to those charges. Nevertheless, Justice Bakes is quite willing to resolve this uncertainty against the non-moving party in order to conclude that Anderson must have been convicted of aiming his shotgun at the officers. It is Justice Bakes who would “recast” the record.
The record contains conflicting testimony as to when Anderson aimed the shotgun. The testimony includes Anderson’s own, through his affidavit, that the aiming had ceased at the time he was shot. Nevertheless, Justice Bakes ignores that testimony and resolves these inconsistencies against the nonmoving party by making his own appellate factual determination that Anderson must have aimed at the officers only a split-second before he was shot.2
The record contains Anderson’s vague oral testimony at trial on the location of his wounds, augmented by a physical demonstration. However, the record also contains his testimony through his affidavit that he was shot in the back.3 Justice Bakes is willing to conclude that he was not shot in the back.
Even accepting, arguendo, Justice Bakes’ argument that Anderson is precluded from denying he aimed at the officers, and that he was only shot in the left side, it is quite possible to infer from the record, as we must, the following: Anderson walked out his door, and immediately aimed his shotgun at figures he could not identify as officers, and who did not identify themselves as officers, and then ceased aiming. These unidentified individuals yelled at him to “freeze” and “drop it.”4 He then turned to return to his apartment with the gun pointed upright when he was shot in the left side. At this point he was facing south, toward his door, and away from the officers. The time elapsed from his emergence and aiming to the point at which he was shot while facing away from the officers and toward his door could have been close to fifteen seconds. This construction of the facts, accepting Justice Bakes’ errant assumptions, but otherwise arrived at through resolving doubts and drawing other inferences in favor of the nonmoving party, paints a picture of the police officers using unreasonable force. Anderson alleges far more than merely that the officers failed to identify themselves and that he never aimed at the officers. He alleges that they shot him without justification under the circumstances then existing.
Of course, the officers and the other witnesses may vigorously dispute these “facts,” assuming Anderson persists in the suit. A jury will decide whom to believe. A majority of this Court will not usurp the jury’s function.
. Clearly this allegation, together with Anderson's allegations that the officers’ actions constituted an assault and battery which violated his constitutional rights, equates with the use of unreasonable force. Thus, Justice Bakes' accusation that we had "erroneously assertfed]” that Anderson’s complaint had alleged unreasonable force is false as well as inconsequential.
. Contrary to Justice Bakes’ suggestion, Anderson’s testimony that the gun at one point was "pointing" in the direction of the officers does not equate with an admission that he aimed it at them. Again, Justice Bakes resolves doubts against Anderson.
. Justice Bakes apparently failed to read the affidavit in his haste to accuse us of misrepresentation.
.We do not assume the officers were required to identify themselves. However, unlike Justice Bakes, we do recognize that the undisputed fact that they did not is relevant to and supports Anderson’s contention that the officers acted unreasonably in shooting him. Anderson contends: “If the officers had identified themselves, I would certainly have dropped the shotgun and cooperated fully.”