We affirm the order of the trial court denying the motion for summary judgment based on a claim of qualified immunity in this civil rights claim emanating under federal law. We do not want this affirmance to be construed, however, as a holding that appellants are not entitled to qualified immunity as a matter of law. Rather, it is our view that there are material issues of fact as to the reasonableness of appellant police officers’ use of deadly force which would preclude deciding this issue on a summary judgment. See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (qualified immunity defense calls for a determination of whether a constitutional right asserted and allegedly violated was clearly established at time and a determination of whether the officer’s actions were objectively reasonable).
Our earlier denial of appellees’ motion to dismiss this appeal on these same grounds did not mean we disagreed with appellees’ assertion that the trial court’s denial of summary judgment was based on material issues of fact. Either way, such a question needs to be based on the merits not by motion to dismiss or summary judgment.
AFFIRMED.
GLICKSTEIN, POLEN and SHAHOOD, JJ., concur.