concurring and dissenting:

I agree with the majority outcome affirming the summary judgment in favor of Agent Woods and that in favor of Agent Fanter on the false imprisonment claims. But that is as far as I go with the majority.

The majority concludes that, under Johnson v. Jones, — U.S. -, 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995) (Johnson), any summary judgment on a record which contains “genuine issues” of material fact is not a final judgment and is, therefore, not appealable. This conclusion contradicts Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), where the Supreme Court ruled that a district court’s denial of qualified immunity is an appealable “final decision” for which a court of appeals has jurisdiction. Id. at 524-30 , 105 S.Ct. at 2817 . The majority’s approach would seem to deny appellate jurisdiction over appeals from denials of qualified immunity for any ease with disputed facts. Because I believe the majority misunderstands Johnson , I respectfully dissent.

In Mitchell , the Court held that qualified immunity is not a mere defense but rather an immunity from suit which would be lost if the case erroneously went to trial; therefore, denial of qualified immunity is an appropriate matter for interlocutory appeal. A determination of qualified immunity turns “on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law.” Id. at 526 , 105 S.Ct. at 2815 . In making this determination, an appellate court “need not consider the correctness of the plaintiffs version of the facts, nor even determine whether the plaintiffs allegations actually state a claim.” Id. at 528 , 105 S.Ct. at 2816 . That “the resolution of these legal issues will entail consideration of the factual allegations that make up the plaintiffs claim for relief’ does not make a determination of qualified immunity unappealable because the “question of immunity is separate from the merits of the underlying action.” Id.

As described in Mitchell , an appellate court’s job is to take a given set of facts— usually those made out in the plaintiffs claim for relief — and answer the “essentially legal question” of whether the conduct so described violates clearly established law.

Johnson did not change or overrule this doctrine. It states only that a district court may not decide the existence or nonexistence of a triable issue of fact for purposes of summary judgment. Johnson , — U.S. at -, 115 S.Ct. at 2157 . In Johnson , plaintiff Jones brought a constitutional tort action against five policemen for beatings he received while in custody. Three of the officers argued that there was not sufficient evidence to establish that they beat Jones or were present at his beatings. The evidence against the three officers consisted of Jones’s deposition and the officers’ depositions admitting their presence in or near the area where Jones was allegedly beaten. Id. at -, 115 S.Ct. at 2153-54 .

The officers argued that this evidence was insufficient to raise a genuine, triable issue of fact, and that therefore the district court incorrectly denied them qualified immunity. The Supreme Court responded that appellate courts do not have jurisdiction to determine whether an issue of fact, in this case the issue of the three officers’ involvement, is *938 genuine. Thus, the officers could not appeal the district court’s denial of qualified immunity. Johnson does not preclude an appellate court from reviewing whether an officer violated clearly established law under any given set of facts. Id. at-, 115 S.Ct. at 2159 . The majority goes afield by failing to perceive the difference between determining the existence of a triable issue of fact and reviewing assumed facts. As Johnson states, “if appellate courts try to separate an appealed order’s reviewable determination (that a given set of facts violates clearly established law) from its unreviewable determination (that an issue of fact is ‘genuine’), they will have great difficulty doing so.” Id.

Turning to this exact difficulty in the case before us, Johnson requires that an appellate court must first determine what exactly it is asked to review. Do we review a given set of facts to see whether they violate clearly established law or do we review a determination of which facts present “genuine” issues? In this case, I believe it is the former.

The Pellegrinos make no factual assertions which are challenged for insufficient supporting evidence. The government does not ask us to determine the existence of any factual, triable issues. Instead, the government asks us to review a given set of facts, as the Pellegrinos understand them, and to decide whether under those facts Fanter violated clearly established law. What this court must review is whether “in light of clearly established principles governing the conduct in question, the officer objectively could have believed that his conduct was lawful.” Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993) (citations omitted).

Turning to the Pellegrinos’ account which we must accept for purposes of this issue on appeal, it is undisputed that John Pellegri-no’s vehicle approached a parking lot at a San Diego pier with its headlights off, that the agents saw a woman sobbing as they approached the vehicle, that the agents observed Pellegrino with his pants down, and that the woman cried for help upon the agents’ approach. Given these facts, Fanter had probable cause to believe that a rape was occurring. Thus, his initial approach was reasonable.

Even if Pellegrino was not raping the woman, the reasonableness of Fanter’s subsequent use of force “must be judged from the perspective of a reasonable officer on the scene.” Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.1991), cert. denied, 506 U.S. 972 , 113 S.Ct. 460 , 121 L.Ed.2d 369 (1992), quoting Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865, 1872 , 104 L.Ed.2d 443 (1989). Fanter was entitled to use lethal force only if a reasonable officer could have believed that the use of such force was the only reasonable way of apprehending a suspect believed to have committed a crime involving the infliction of serious physical harm. Brower v. County of Inyo, 884 F.2d 1316, 1317-18 (9th Cir.1989).

Fanter fired three shots. It is undisputed that the first shot was fired while Fanter clung to the door of Pellegrino’s moving car. While clinging to the car, Fanter reasonably feared that he might collide with the tree in the parking lot island. He reasonably fired to protect his own life.

When the second shot was fired is disputed. Joseph Pellegrino, John’s brother, asserts that Fanter fired after dropping off the car door, while Fanter alleges that he fired while still clinging to the door. Taking Pelle-grino’s version, Fanter fired both the second and third shots while standing on the ground. In such a position — even at the distances which the Pellegrinos assert — Fanter reasonably feared that John, who was very intoxicated, would run over one or more of the individuals present. Considering these quickly transpiring events, I would rule that a reasonable officer in Fanter’s position could have believed that lethal force was needed to protect himself and others, and as such, his actions did not violate clearly established law.