UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES ROBERT ROSS, JR.,
Plaintiff-Appellant,

v.                                                               No. 95-2589

L. T. HELTON,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CA-93-122-4-T)

Argued: May 7, 1996

Decided: July 23, 1996

Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and
CHAPMAN, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Pamela Anne Hunter, Charlotte, North Carolina, for
Appellant. Joseph Patrick Dugdale, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Michael F. Easley, Attorney
General, Isaac T. Avery, III, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this § 1983 action against a state trooper, appellant Charles Ross
challenges the district court's summary judgment ruling in favor of
the appellee, L.T. Helton, on qualified immunity grounds. Appellant
contends that the trooper's use of a racial slur soon after an arrest
increases the likelihood that the force he used during the arrest was
excessive and unreasonable. We disagree. The test of the reasonable-
ness of a law enforcement officer's actions is objective, not subjec-
tive. Because the trooper's actions were objectively reasonable under
the circumstances, we affirm the district court's ruling.

I.

Shortly before midnight on July 16, 1990, State Trooper Helton
attempted to stop a white Pontiac Grand Prix, driven by Ross, for
driving 61 m.p.h. in a 45 m.p.h. zone. Lights flashing and siren blar-
ing, Helton followed the car for about four tenths of a mile before it
stopped in the travel lane. When Helton approached the car on foot,
it sped off. Helton again pursued until the car drove down a dead-end
street, off the road, and into a yard. Ross fled on foot towards a brick
retaining wall with Trooper Helton close behind.

Here the stories told by Ross and Helton diverge. Ross claims that
as he was climbing the wall, Helton struck his ankle repeatedly with
a heavy flashlight and then pushed him over the wall. Helton says he
did not strike Ross' ankle or push him, but instead entered the yard
through a gate and caught Ross on the other side after Ross fell from
the wall. Both agree that Ross' left ankle was by then broken and that
a struggle followed as Helton tried to handcuff Ross. Ross claims that
Helton continued to strike him unprovoked with his flashlight. Helton
claims he only defended himself from Ross' blows. A second officer
arrived and assisted Helton in putting the handcuffs on Ross. A

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bystander at the scene says he heard Helton, speaking with another
officer, utter a racial epithet about Ross.

Ross was then taken to the hospital for treatment of his broken
ankle. Both the emergency room physician and the emergency medi-
cal technician (EMT) who transported Ross report that Ross did not
at that time accuse Helton of hitting him. Ross told the EMT that he'd
broken his ankle in the fall from the wall, and the physician said that
Ross' ankle injury was the type of injury consistent with falling off
a wall but not consistent with being struck by a blunt object.

Police found an open fifth of Seagram's Extra-Dry Gin in Ross'
car. He was later convicted of driving while impaired, driving with a
revoked license, failing to stop, driving with an expired registration,
and resisting arrest.

Ross filed this § 1983 action against Trooper Helton on July 14,
1993, alleging excessive use of force during the arrest. The district
court granted Helton's motion for summary judgment on July 21,
1995, ruling that Helton's actions were reasonable under the circum-
stances and he was therefore entitled to immunity. The racial epithet
did not affect the reasonableness calculation, the judge found, because
it was uttered after the fact.

II.

A.

Ross' primary contention is that summary judgment should not
have been granted on qualified immunity grounds because the racial
slur used by Trooper Helton makes it more likely that Helton used
excessive force which was not reasonable under the circumstances.
The consideration of slurs and epithets, however, moves us into the
subjective realm of personal motive which the Supreme Court has
rejected as the basis for qualified immunity determinations.

The Court first articulated the objective reasonableness test for
qualified immunity in Harlow v. Fitzgerald, 

(1982). The
Court held that "government officials performing discretionary func-

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tions, generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or con-
stitutional rights of which a reasonable person would have known."

in Anderson v. Creighton , 

, 641 (1987),
the Court admonished parties not to "reintroduce into qualified immu-
nity analysis the inquiry into officials' subjective intent that Harlow
sought to minimize." And more recently, in Graham v. Connor, 

, 397 (1989), the Court declared that "[a]n officer's evil
intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force; nor will an officer's good inten-
tions make an objectively unreasonable use of force constitutional."

Ross' argument that the racial slur in this case should be consid-
ered when assessing the reasonableness of the force used is merely an
endrun around Harlow and its progeny, a reformulation of the subjec-
tive test with the intent to ascribe "evil intentions" to Helton. As such
we cannot entertain it.

B.

Thus, under Harlow, Anderson, and Graham, the proper question
for this court is whether the force Helton used was objectively reason-
able under the circumstances. We believe that it was. Even if we
assume, as Ross now contends, that Helton hit him in the ankle with
a heavy flashlight as he climbed the wall and again as Helton was
struggling to handcuff Ross, Helton's actions were reasonable given
the situation. Ross had tried to outrun a police car. He had sped away
after Helton had pulled him over and gotten out of the patrol car. Ross
had driven off the road into a yard and had fled on foot. At the time
of the alleged blows to the ankle, Ross was climbing over a brick
fence into the yard of a private house, posing an unknown threat to
the safety of the residents. Trooper Helton had no idea why Ross was
so intent upon fleeing from the police, nor whether he was armed. An
officer in Helton's shoes could reasonably use non-lethal force, such
as blows to the ankle, to effect a lawful arrest.

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III.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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