Scott

Opinion by Judge KOZINSKI; Dissent by Judge NORRIS.

ORDER

The opinion and dissent filed on September 9, 1994, are withdrawn. The attached revised opinion and dissent shall be filed in their place.

OPINION

Doris Scott contends that the police officer defendants acted unreasonably by killing her husband John Scott. 1 We consider the amount of proof needed to overcome a motion for summary judgment in a deadly force case under section 1983.

Facts

Officers Flamand and 'Henrich were called to 701 West Park Street in Butte, Montana, in response to reports that a man was firing a gun there. A few minutes earlier, they had received reports of shots fired at a nearby address. When the officers arrived at the 701 West Park area, a motel manager pointed to the two-story apartment building across the street where the gunman 'had entered via one of the street-level doors. A boy named Jason Smith told Flamand that “he had seen a man fire a shot or a couple of shots ... and that [the man] was acting strange or crazy and he was staggering.” Flamand then observed a man in the second-story window of the building.

Flamand and Henrich quickly approached the street-level door. Henrich banged and…

dissenting:

John Scott lived in a two-story apartment house -in a residential neighborhood in Butte, Montana. On August 4, 1984, Mr. Scott had attempted to evict some troublesome tenants. Twice that day, Mr. Scott called the Butte-Silver Bow Law Enforcement Agency complaining of disturbances caused by these tenants. Among the police officers who responded to the calls and talked to Scott in person was Officer James Henrieh. Later the same day, a neighbor called the police and reported hearing gunshots in front of Mr. Scott’s building. When Officers Henrieh and David Flamand of the Butte-Silver Bow Law Enforcement Agency responded to the call, they were informed that the man who allegedly fired the shots was acting “crazy” and had entered a nearby apartment.

*917 As the District Court described the scene, the officers, with “weapons drawn ... immediately approached the door of the apartment where they had been advised the perpetrator had entered.” Scott v. Henrich, Memorandum and Order (No. CV-87-003-BU) (January 3, 1991), p. 2-3. The officers then “banged and kicked the door and yelled ... ‘Police, police officers, open up.’ ” Majority Opinion, at 914. A man, later identified as…