erroneously applied a fleeing felon analysis, and misidentified the governmental interest at stake in this self defense case. The facts cited by the District *597 Court as precluding summary judgment under its erroneous analysis are not relevant to a self defense inquiry, where the government interests at stake are the lives of police officers. In this regard, Appellants [defendants] do not dispute the facts identified by the District Court as the basis for the denial of summary judgment because those facts are not material to the relevant qualified immunity issues in this case.
As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. See generally 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2725, pp. 93–95 (1983). This materiality inquiry is independent of and separate from the question of the incorporation of the evidentiary standard into the summary judgment determination. That is, while the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs.
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Thus, under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes “reasonable” action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.
Thus one can postulate with medical probability that both arms were impaired from a functional standpoint by bullet wounds.... Admittedly we do not know if these upper extremity and axillary bullet wounds were suffered before or after the alleged turning toward police officer.... However with probability even without these extremity and axillary wounds there was severe impairment of ability to turn and with medical probability Mr. Boyd could not assume a defined posture which would signal his intent and capability to return fire at that point.
At the summary judgment stage, whether the legal violation alleged was clearly established at the time of the incident, as well as whether a genuine issue of material fact exists as to whether the alleged violation occurred, are questions of law for the court.
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