UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-1282



JULIA F. GREGORY, as personal representative of the Estate of
Asberry Wylder, and in her individual capacity,

                Plaintiff - Appellant,

          v.


JON R. ZUMULT, Chief; COYLE KINARD, Captain; CHARLES A. SMITH,
Deputy Chief; RICHARD DEAN, Corporal; TIMOTHY JAMES HANDY,
Officer; MICHAEL D. SUTTON, Officer; MATTHEW B. HUGHES,
Officer; DAVID A. NEUMANN, Officer; STEVEN S. EVANS, Officer;
MATTHEW J. LAWLESS, Officer; JAMES WALLEY, Sergeant; NORTH
CHARLESTON POLICE DEPARTMENT; CITY OF NORTH CHARLESTON; J. AL
CANNON, JR., Sheriff of the Charleston County Jail,

                Defendants - Appellees.


Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:05-cv-3061-PMD)


Submitted:   July 17, 2008               Decided:   September 26, 2008


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark W. Hardee, THE HARDEE LAW FIRM, Columbia, South Carolina, for
Appellant. Stephanie P. McDonald, Sandra J. Senn, SENN, MCDONALD
& LEINBACH, LLC, Charleston, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Julia F. Gregory, the personal representative of Asberry

Wylder, appeals the district court’s grant of Appellees’ Fed. R.

Civ. P. 50 motion for judgment as a matter of law dismissing her

wrongful death, survival, and loss of consortium claims under 42

U.S.C. § 1983 (2000).         We have reviewed the record and find no

reversible error.

            On the afternoon of November 7, 2003, Wylder walked into

a grocery store in North Charleston, South Carolina.                            Wylder

threatened grocery store clerks with a serrated steak knife and

took a package of ham before leaving the store.                      Police officers

confronted      Wylder   outside   the    store      and,     according    to    their

testimony    and   the    testimony      of    several      nearby     eyewitnesses,

repeatedly told him to drop the knife and get on the ground.

Wylder refused and ignored the warnings while backing away from the

officers, leading them across the street.                      Wylder eventually

dropped   the    ham,    reached   into       his   pocket,    and    pulled    out   a

screwdriver that he had sharpened to a point.                 The officers failed

in their attempts to disarm Wylder by using pepper spray and

batons.     During one of the attempts, Wylder cut Officer David

Neumann on the lip and chin with the knife.                 When Wylder advanced

toward the officers, Officer James Handy drew his firearm and fired

a single shot that hit Wylder.            Wylder fell to one knee, but he

refused to drop the knife and attempted to get back to his feet.


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Handy fired a second shot and Wylder fell to the ground, where

officers subdued and handcuffed him.     Wylder died as a result of

the gunshot wounds.

          This court reviews de novo the grant of a Fed. R. Civ. P.

50 motion for judgment as a matter of law, viewing the facts in the

light most favorable to the nonmoving party.     A Helping Hand, LLC

v. Baltimore County, 

, 365 (4th Cir. 2008). “Judgment

as a matter of law is proper only if ‘there can be but one

reasonable conclusion as to the verdict.’”      Ocheltree v. Scollon

Prods., Inc., 

, 331 (4th Cir. 2003) (en banc) (quoting

Anderson v. Liberty Lobby, Inc., 

, 250 (1986)).    “Such

a motion is properly granted if the nonmoving party failed to make

a showing on an essential element of his case with respect to which

he had the burden of proof.”    Wheatley v. Wicomico County, 

, 332 (4th Cir. 2004) (internal quotation marks and citation

omitted); see Fed. R. Civ. P. 50(a)(1).

          Gregory claims the district court failed to look at the

evidence in the light most favorable to her when it found Wylder

possessed the weapons and threatened the police officers.       Five

bystanders testified they neither saw weapons in Wylder’s hands nor

saw him provoke the officers.    While the district court had to draw

all reasonable inferences in favor of Gregory, it also could

consider uncontradicted and unimpeached evidence from disinterested

witnesses. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.


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133, 150 (2000).    Two store employees, unimpeached disinterested

witnesses, testified Wylder threatened them with the knife from a

short distance.    The coroner, also an unimpeached disinterested

witness, found cuts on Wylder’s hand consistent with holding a

serrated knife.    None of the witnesses dispute that a knife and

screwdriver matching the descriptions provided by the witnesses who

saw the weapons were recovered from the ground near Wylder.        One of

Gregory’s   witness,   James   Blankenship,   saw   the   knife,   as   did

disinterested witnesses Michael Branham and Charles Hall.

            In Sigman v. Town of Chapel Hill, 

(4th Cir.

1998), Mark Sigman threatened police officers with a knife from

inside a house.     When he exited the house, the officers warned

Sigman to stop, but when he continued to approach they shot him

twice, mortally wounding him.     

held that the statements of persons who claimed to
     have observed, from a cheering mob on the other side of
     the street, that the suspect was unarmed did not create
     a triable issue of material fact where the officers
     closest to the encounter unanimously testified that they
     perceived the suspect to be armed. [Sigman, 161 F.3d] at
     787. The Sigman Court concluded that given the volatile
     and dangerous atmosphere and the need to make a
     split-second self-defense decision, the question of
     whether the suspect had a knife was not necessarily
     material to the question of whether a reasonable officer
     could have perceived him to be a violent threat. 

v. Pendleton, 

, 292-93 (4th Cir. 2001) (footnote

omitted).




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            In the present case, there was uncontroverted evidence

that Wylder had threatened to hurt the store employees with a

knife.      The   five   officers   who     testified   gave   detailed   and

consistent testimony describing Wylder’s possession of the knife

and screwdriver. The officers, who were closer than any bystander,

uniformly testified to Wylder’s volatile and unpredictable actions

and how Handy acted quickly when he perceived Wylder as a threat to

the officers.

     In a rapidly evolving scenario such as this one, a
     witness’s account of the event will rarely, if ever,
     coincide perfectly with the officers’ perceptions because
     the witness is typically viewing the event from a
     different angle than that of the officer.       For that
     reason, minor discrepancies in testimony do not create a
     material issue of fact in an excessive force claim,
     particularly when, as here, the witness views the event
     from a worse vantage point than that of the officers.

Anderson v. Russell, 

, 130-31 (4th Cir. 2001) (citing

).     The discrepancies between the officers’

testimony and the observations of the bystanders who did not see

the knife or Wylder’s aggressive actions are not enough to raise a

material question of fact disputing the version of events described

by the unimpeached witnesses and the consistent testimony of the

officers.     We conclude the district court did not err in its

factual conclusions when it granted the Rule 50 motion.

            A claim that police used excessive force is examined

under the Fourth Amendment to determine whether the force used was

objectively reasonable.       Graham v. Connor, 

, 394-97


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(1989).   Under Graham, a court must focus on the moment that force

was used.    Greenidge v. Ruffin, 

, 791-92 (4th Cir.

1991). Actions prior to that moment are not relevant in evaluating

whether the force used was reasonable, even if the suspected

criminal activity is relatively minor.           

;

Elliott v. Leavitt, 

, 643 (4th Cir. 1996).                             “An

officer’s    [decision]   is    ‘judged       from   the    perspective      of    a

reasonable officer on the scene, rather than with the 20/20 vision

of hindsight,’ allowing for the fact that ‘police officers are

often forced to make split-second judgments — in circumstances that

are tense, uncertain, and rapidly evolving.’”              Milstead v. Kibler,

, 163 (4th Cir. 2001) (quoting 

,

397).

            “The intrusiveness of a seizure by means of deadly force

is   unmatched.”     Tennessee    v.    Garner,      

,    9   (1985).

However, such deadly force may be employed “[w]here the officer has

probable cause to believe that the suspect poses a threat of

serious physical harm, either to the officer or to others.”                  

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.”                     

6 -
           Here, the officers repeatedly warned Wylder to stop, drop

his weapons, and get on the ground.    The officers knew of Wylder’s

threats to harm the store employees and saw him strike Officer

Neumann.   The officers unsuccessfully attempted to use nonlethal

force to disarm Wylder, but he resisted.   When he perceived Wylder

as a threat to the safety of the officers, Handy made a split-

second decision to shoot Wylder.

           Even if Wylder was not actually about to attack the

officers, Handy and the other officers acted on their reasonable

perception that Wylder was about to do so. “[T]he Fourth Amendment

does not require omniscience. . . . Officers need not be absolutely

sure . . . of the nature of the threat or the suspect’s intent to

cause them harm - the Constitution does not require that certitude

precede the act of self protection.”    

; see

also Slattery v. Rizzo, 

, 215-16 (4th Cir. 1991)

(finding deadly force appropriate when suspect failed to comply

with officer’s order to raise his hands and officer reasonably

believed suspect to be coming at him with a weapon, although the

“weapon” turned out to be a beer bottle).        The situation had

escalated to the point that the officers believed the use of deadly

force was necessary to prevent harm to themselves.

           Gregory argues Handy’s actions were unreasonable and he

could have used a lesser degree of force.       Notwithstanding the

officers’ use of pepper spray and batons, the “suggestion that the


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officers might have responded differently is exactly the type of

judicial second look that the case law prohibits.”       

.   The district court properly declined to look back in

hindsight to second—guess Handy’s decision to use deadly force

instead of a lesser degree of force.

            Handy’s split-second decision to use deadly force against

Wylder was reasonable in light of Handy’s well-founded belief that

Wylder was threatening to harm the officers.    Thus, Handy’s use of

deadly force does not constitute a Fourth Amendment violation.    As

Handy’s actions were reasonable, we need not address any claims

against the other officers, the police department, the chief of

police, and the town of North Charleston because “[i]n the absence

of any underlying use of excessive force . . ., liability cannot be

placed on either the non-shooting officers, a supervisor, or the

City.”   Hinkle v. City of Clarksburg, 

, 420 (4th Cir.

1996).

            Because the district court did not err when it granted

Appellees’ motion for judgment as a matter of law, we affirm the

judgment.    We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                            AFFIRMED




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