ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FREDERICK P. HENRY,
Plaintiff-Appellant,
v. No. 08-7433
ROBERT PURNELL,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(1:04-cv-00979-JFM)
Argued: March 24, 2011
Decided: July 14, 2011
Before TRAXLER, Chief Judge, and WILKINSON,
NIEMEYER, KING, GREGORY, SHEDD, DUNCAN,
AGEE, DAVIS, KEENAN, WYNN, and DIAZ,
Circuit Judges.1
Reversed and remanded by published opinion. Judge Gregory
wrote the opinion, in which Chief Judge Traxler and Judges
Wilkinson, King, Duncan, Davis, Keenan, Wynn, and Diaz
joined. Judge Davis wrote a concurring opinion. Judge Shedd
1
Judge Motz did not hear oral argument or participate in the decision of
this case.
2 HENRY v. PURNELL
wrote a dissenting opinion, in which Judges Niemeyer and
Agee joined. Judge Niemeyer wrote a separate dissenting
opinion.
COUNSEL
ARGUED: Katherine Louise Bushman, GEORGETOWN
UNIVERSITY LAW CENTER, Appellate Litigation Pro-
gram, Washington, D.C., for Appellant. John Francis Breads,
Jr., Hanover, Maryland, for Appellee. ON BRIEF: Steven H.
Goldblatt, Director, Charlotte J. Garden, Supervising Attor-
ney, May K. Chiang, Student Counsel, Kate G. Henningsen,
Student Counsel, GEORGETOWN UNIVERSITY LAW
CENTER, Appellate Litigation Program, Washington, D.C.,
for Appellant.
OPINION
GREGORY, Circuit Judge:
Without warning, Officer Robert Purnell shot Frederick
Henry, an unarmed man wanted for misdemeanor failure to
pay child support, when he started running away. In the ensu-
ing § 1983 action, the parties stipulated that Purnell had
intended to use his Taser rather than his gun and the district
court granted him summary judgment. However, because
Tennessee v. Garner prohibits shooting suspects who pose no
significant threat of death or serious physical threat, and
because Purnell’s use of force could be viewed by a jury as
objectively unreasonable, we reverse and remand.
I.
Since this case stems from the grant of summary judgment
for Purnell, we recount the facts in the light most favorable to
HENRY v. PURNELL 3
the non-movant, Henry. See George & Co. LLC v. Imagina-
tion Entm’t Ltd., 575 F.3d 383, 392 (4th Cir. 2009).
In 2003, a Maryland state court ordered Henry to either pay
child support or report to jail on September 8, 2003. When
Henry did not comply, a warrant was issued for his arrest on
October 9, 2003 for second degree escape. Maryland law
defines second degree escape as "knowingly fail[ing] to obey
a court order to report to a place of confinement." Md. Code
Ann., Crim. Law, § 9-405(a)(2). "A person who violates this
section is guilty of the misdemeanor of escape in the second
degree . . . ." Id. § 9-405(b) (currently codified at § 9-405(c)).
Eleven days later, on October 20, 2003, Purnell first
attempted to serve the warrant at Henry’s last known address,
a trailer home in Eden, Maryland. Purnell approached a man
who was sitting on the front steps of the trailer and who iden-
tified himself as Henry’s friend. The man said Henry worked
at American Paving Company and offered to give Purnell’s
name and number to Henry’s wife, who was inside the trailer.
Purnell then went to the American Paving Company, where
an employee said that Henry had not worked in three months,
and showed Purnell a photo of Henry. The photo appeared to
match the man who had identified himself as Henry’s friend.
Purnell returned to the trailer home later that day and spoke
with Henry’s wife. She told Purnell that Henry was not home,
allowed Purnell to enter the trailer, and said that Henry
worked for a man in a white pickup truck. Purnell seemed
"very upset" and told her that he was going to "get [Henry]
for pulling a whammy" on him. J.A. 534-35. The next day,
October 21, 2003, Henry’s wife called Purnell to add that she
had given Henry the message and that he was traveling to
Baltimore to try to raise bail money.
On October 23, 2003, while in the vicinity for other rea-
sons, Purnell passed by a white pickup truck. Purnell followed
the truck and found it parked in the driveway of the trailer
home he had previously visited. Purnell approached the truck,
4 HENRY v. PURNELL
which contained a driver, Thomas Walston, and two passen-
gers, Gene Moore and Henry. Purnell came to the driver’s
side window and asked each man if he was Henry. Each ini-
tially said no, but when Purnell asked again, Henry admitted
his identity. Henry then exited the vehicle and proceeded to
the back of the truck with Purnell. Henry then "started to run
towards the front of his truck which was in the direction of the
trailer where [he] lived." J.A. 537-58. Eyewitness Walston
described Henry as "kind of jogging a little bit." J.A. 13-14.
"Within a second," Purnell started running after him; Purnell
was roughly five to ten feet away. J.A. 257, 538.2
Purnell had holstered two weapons on his right leg: on his
hip was a service revolver, a Glock .40 caliber handgun. On
his thigh was an electroshock weapon, a Taser M26 (hereaf-
ter, the "Taser"). The Taser was "just underneath [the] service
pistol," approximately twelve inches apart. J.A. 139, 200. Pur-
nell un-holstered his Glock and held it in the horizontal firing
position for "[t]hree to five seconds." J.A. 269, 271. He did
not issue any verbal warning messages, commands, or instruc-
tions to halt. Purnell then fired a single shot, striking Henry
in the elbow. Walston, an eyewitness, said Purnell "shot
[Henry] before he got past the far end of the trailer." J.A.
13-14. Purnell caught up with Henry, who was lying on the
ground, repeating "[h]e shot me, [h]e shot me," and talking
about how much it hurt. J.A. 13. Purnell said he "never
intended to shoot Mr. Henry, that [he] had grabbed the wrong
weapon." J.A. 139. Purnell called an ambulance and retrieved
medical supplies to slow Henry’s bleeding.
2
Henry claimed that he never had any physical contact with Purnell. In
his affidavit, Purnell stated that "although I had stumbled backward when
Mr. Henry pushed away, I recovered and reached for my Taser." J.A. 139.
In his deposition, Purnell said that Henry "pushed away" with "both arms,"
and that Purnell "fell backwards and caught himself" on his "car and [ ]
right leg." J.A. 256.
HENRY v. PURNELL 5
II.
This case has a long procedural history: In March 2004,
Henry brought this § 1983 action alleging Purnell violated his
Fourth Amendment right to be free from seizures effectuated
by excessive force.
In May 2004, Purnell motioned for the district court to dis-
miss the case or grant summary judgment in his favor. Purnell
contended that he had not "seized" Henry and, alternatively,
that he was entitled to qualified immunity. The district court
denied Purnell’s motion because his "assertions [that he drew
the wrong weapon] necessarily depend upon his credibility
and therefore give rise to a genuine dispute of material fact."
J.A. 16.
In June 2004, Purnell filed an interlocutory appeal, claim-
ing that the record did not support the district court’s conclu-
sion that he was not entitled to qualified immunity. We
dismissed the appeal for lack of jurisdiction because "Pur-
nell’s argument . . . challenges the district court’s factual find-
ing." Henry v. Purnell, 119 Fed. Appx. 441, 443 (4th Cir.
2005) (unpublished) (per curiam) (hereafter, "Purnell I").
In June 2005, Henry moved for leave to file an amended
complaint, which the district court granted. Henry added a
claim for excessive force based on the Maryland Constitu-
tion’s Declaration of Rights.
On November 10, 2005, the parties entered into a stipula-
tion "for the purposes of this litigation, that on October 22,
2003, [Purnell] intended to un-holster and discharge his Taser
M26 which was mounted in a thigh holster below his service
weapon, a Glock .40 caliber handgun. Instead, he un-holstered
and fired his service weapon, believing that it was his Taser
M26." J.A. 30.
In November 2005, Purnell filed a second motion for sum-
mary judgment, arguing that the Fourth Amendment was
6 HENRY v. PURNELL
inapplicable because he never intended to seize Henry with a
gun. Alternatively, Purnell argued he was entitled to qualified
immunity and was also immune from state tort liability.
Henry opposed summary judgment on the grounds that the
shooting was a seizure, that outstanding issues of material fact
had to be resolved by a jury, and that Purnell was not entitled
to qualified immunity. Henry stressed several factors which
made Purnell’s conduct unreasonable, such as his failure to
give a warning or command before firing. Henry also pointed
out Purnell’s failure to notice physical differences between
the Taser and Glock, including the Taser’s safety switch,
weight, color, and holster position. The parties also disputed
the production of additional evidence about Taser training.
In April 2006, the district court issued its first opinion,
denying Purnell’s motion for summary judgment and granting
Henry’s motion to compel new evidence about Taser training
materials. Henry v. Purnell, 428 F. Supp. 2d 393, 395-98 (D.
Md. 2006). It found "the evidence on summary judgment
[was] fully sufficient to create a jury issue on the question of
whether Purnell was grossly negligent." Id. The district court
also proposed "a ‘heightened culpability element’ should be
added to a Fourth Amendment civil claim." Id. at 399. The
court acknowledged that this was "arguably inconsistent with
current law," "difficult to reconcile with a strict reading of"
the objective reasonableness test set out in Graham v. Con-
nor, 490 U.S. 386 (1989), and partially "inconsistent with the
literal language of Graham." Henry, 428 F. Supp. 2d at
399-400, 401 n.9.3
3
Instead, the court advocated a narrow reading of Graham, reasoning
that it was "not entirely clear, that [objective reasonableness] was the
[Supreme] Court’s intended meaning (or that it would have been the
Court’s intended meaning had it foreseen the confused manner in which
the law subsequently developed)." Henry, 428 F. Supp. 2d at 401. Under
any reading of Graham, the district court concluded that "the time has
come for appellate courts to revisit the issue of whether an element of cul-
pability greater than negligence should explicitly be made a component of
a Fourth Amendment civil claim." Id. at 402.
HENRY v. PURNELL 7
Purnell appealed to this Court again, claiming that the dis-
trict court erred in concluding that he "seized" Henry and
denying him qualified immunity. J.A. 7-8. In September
2007, we affirmed in part and vacated in part. Henry v. Pur-
nell, 501 F.3d 374 (4th Cir. 2007) (hereafter, "Purnell II").4
We affirmed the district court’s determination that Purnell’s
shooting of Henry was a "seizure" under the Fourth Amend-
ment. Id. at 381-82. But we vacated and remanded the case
for the district court to "reassess the issue of whether a consti-
tutional violation occurred in light of the proper burden of
proof and the discovery materials that it ordered Purnell to
produce." Id. at 384. If on remand Henry "establish[ed] that
the seizure in this case was unreasonable (i.e., that Purnell’s
mistake in using the Glock rather than the Taser was unrea-
sonable)," then we suggested that Purnell would "have the
opportunity to demonstrate his entitlement to qualified immu-
nity." Id. at 384.
On remand, Henry received the additional discovery he had
requested about Purnell’s weapons training and the sheriff’s
use of force policy. These included more than two hundred
pages of training materials and depositions.5 See generally,
4
The opinion was filed by two judges, a quorum of the panel under 28
U.S.C. § 46(d), because a third judge heard oral argument but did not par-
ticipate in the decision. 501 F.3d at 376 n.1.
5
On August 21, 2003, Purnell took a three-and-a-half hour Taser train-
ing class with six or seven other individuals and was certified in Taser use.
That training included a PowerPoint presentation with 150 slides, which
discussed the "Pro’s & Con’s" of different holster configurations. J.A.
297-447. The training explicitly discussed the dangers of carrying a gun
and Taser on the same leg, known as a "dominant side carry." J.A. 332.
The training warned that this creates a "Higher Risk of Confusion Depend-
ing on Training." J.A. 332. The presentation also detailed "3 incidents of
accidental shootings by mistaken weapon," in California and Minnesota.
J.A. 332. As a result of these accidents, one of which was fatal, the train-
ing warned that "[a]ll three agencies have since switched to a support side
carry and have yellow M26s." J.A. 332. The closing statement of the train-
ing read as follows: "The most important decision an officer can make is
whether or not to engage deadly force upon a person." J.A. 450. The class
also included a hands-on component where Purnell shot a Taser into a tar-
get.
8 HENRY v. PURNELL
J.A. 285-514, 539-542, 549. Discovery also revealed several
physical differences between the Glock and Taser.6
In March 2008, Purnell filed his third motion for summary
judgment, stressing that he had "no field training with, or field
use of, the Taser prior to the occurrence." J.A. at 115. Purnell
also emphasized that the Taser’s manufacturer had warned
about holstering two weapons on the same leg, but that warn-
ing was "never imparted to [Purnell] or anyone else." J.A.
115. In opposing the motion Henry argued that material facts
remained in dispute and that Purnell’s mistake was unreason-
able because he did not "comply with multiple police depart-
ment regulations," which resulted in a "reckless failure to take
steps to avoid the impermissible use of excessive force." J.A.
at 520-21. Henry stressed that "[i]t has been clearly estab-
lished . . . [that] reckless conduct on the part of a police offi-
cer that directly leads to an accidental or unintentional
shooting violates the suspect’s Fourth Amendment rights."
J.A. 526 (citing Jenkins v. Averett, 424 F.2d 1228, 1232 (4th
Cir. 1970)). Henry also maintained his state law claim.
In June 2008, the district court issued its second opinion,
granting Purnell’s motion for summary judgment. Henry v.
Purnell, 559 F. Supp. 2d 648 (D. Md. 2008). The court
stressed that "the dispositive question is whether, under the
circumstances and filtered through the lens of the officer’s
perception, it was reasonable for Purnell to believe that the
weapon he upholstered and fired was the Taser." Id. at 651-52
(quotations and citations omitted). The court concluded that
Purnell’s belief was reasonable because his training was
6
A Taser M26 weighed 19.2 ounces, was 8.30 inches long (with a car-
tridge), 6.00 inches tall, and 1.75 inches wide. The Taser had yellow col-
oring on both sides and the back of the weapon and contained a laser sight
and a battery light. A Glock .45 (similar to Purnell’s .40 caliber) weighed
38 ounces (with a magazine), was 7.59 inches long, 5.47 inches tall, and
1.27 inches wide. The Glock was colored black and had no laser sight or
lights. The holster straps of the two weapons were made of different mate-
rials.
HENRY v. PURNELL 9
"quite minimal" and there was apparently "no discussion
about the possibility of erroneous weapon usage." Id. at 652.7
In September 2010, a divided panel of this court affirmed
the district court decision. Henry v. Purnell, 619 F.3d 323 (4th
Cir. 2010); see also id. at 343 (Gregory, J., dissenting). Henry
moved for rehearing and rehearing en banc. We granted
rehearing en banc and now, reverse and remand for trial.
III.
Henry first maintains that the district court erred in granting
summary judgment to Purnell on Henry’s § 1983 claim. We
agree.
Whether a party is entitled to summary judgment is a ques-
tion of law we review de novo using the same standard
applied by the district court. Canal Ins. Co. v. Distrib. Servs.,
Inc., 320 F.3d 488, 491 (4th Cir. 2003). Summary judgment
is appropriate only if taking the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party, "no material facts are disputed and the
moving party is entitled to judgment as a matter of law."
Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir.
2003).
Purnell contends that he was rightly granted summary judg-
ment on the basis of qualified immunity because the parties
stipulated that he mistakenly used his firearm instead of his
Taser. Henry argues that we should disregard Purnell’s sub-
jective intent (to draw his Taser) and that Purnell’s conduct
was objectively unreasonable.
7
The district court also mused that "[p]erhaps . . . Purnell’s employer[ ]
and/or the Taser manufacturer were negligent in not providing greater
training," but they "are not defendants in this action . . . ." 559 F. Supp.
2d at 652. The court disregarded the fact that Purnell "may not have com-
plied with the [Sheriff’s] Taser policy" and did not notice various physical
differences between his weapons. Id. at 652 n.3.
10 HENRY v. PURNELL
Qualified immunity protects officers who commit constitu-
tional violations but who, in light of clearly established law,
could reasonably believe that their actions were lawful. Sau-
cier v. Katz, 533 U.S. 194, 206 (2001), overruled in part,
Pearson v. Callahan, 129 S. Ct. 808 (2009); see also Brock-
ington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011). "Fol-
lowing the Supreme Court’s recent decision in Pearson[ ], we
exercise our discretion to use the two-step procedure of Sauci-
er[ ], that asks first whether a constitutional violation occurred
and second whether the right violated was clearly estab-
lished." Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010)
(citations omitted). "If [an officer] did not violate any right,
he is hardly in need of any immunity and the analysis ends
right then and there." Abney v. Coe, 493 F.3d 412, 415 (4th
Cir. 2007).
The Fourth Amendment’s prohibition on unreasonable sei-
zures includes the right to be free of "seizures effectuated by
excessive force." Schultz v. Braga, 455 F.3d 470, 476 (4th
Cir. 2006). Whether an officer has used excessive force is
analyzed under a standard of objective reasonableness. Scott
v. Harris, 550 U.S. 372, 381 (2007); see also Kentucky v.
King, 131 S. Ct. 1849, 1859 (2011) ("Our [Fourth Amend-
ment] cases have repeatedly rejected a subjective approach,
asking only whether the circumstances, viewed objectively,
justify the action.") (internal quotation marks and citations
omitted). Thus, courts determine "whether the officers’
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation." Graham v. Connor, 490
U.S. 386, 397 (1989). In considering whether an officer used
reasonable force, a court must focus on the moment that the
force is employed. Elliott v. Leavitt, 99 F.3d 640, 643 (4th
Cir. 1996). At the summary judgment stage, once we have
viewed the evidence in the light most favorable to the nonmo-
vant, the question of whether the officer’s actions were rea-
sonable is a question of pure law. Scott, 550 U.S. at 381 n.8.
It is in light of these legal principles that we address whether
HENRY v. PURNELL 11
the evidence, viewed in the light most favorable to Henry,
shows that Purnell used objectively unreasonable force.
A.
A police officer who shoots a fleeing suspect without
"probable cause to believe that the suspect poses a significant
threat of death or serious physical injury to the officer or oth-
ers" violates that suspect’s Fourth Amendment rights. Tennes-
see v. Garner, 471 U.S. 1, 3 (1985). "Where the suspect poses
no immediate threat to the officer and no threat to others, the
harm resulting from failing to apprehend him does not justify
the use of deadly force to do so." Id. at 11.8
The objective circumstances of this case are that Purnell
shot a fleeing suspected misdemeanant whom he had no rea-
son to believe was a threat. Henry had an eleven-day old war-
rant issued for a misdemeanor — failure to pay child support.
Nothing in the record suggested Henry had any history of vio-
lence. That Henry had previously hidden his identity does not
imply he was prone to aggression. Purnell had already been
inside Henry’s home. Henry’s home address, wife’s identity,
former employer, and employer’s car were all known. The
officer also knew that Henry had left town to raise bail money
and thereafter planned to return to pay for bail. When police
approached Henry’s car, he voluntarily identified himself and
exited the car. He then began running away.
Thus, critically, this case presents nothing to suggest Henry
posed any threat whatsoever — no menacing conduct and no
violent criminal history. To the contrary — police had signifi-
8
In Graham v. Connor, the Supreme Court extended Garner and held
"that all claims that law enforcement officers have used excessive force —
deadly or not — in the course of an arrest, investigatory stop, or other ‘sei-
zure’ of a free citizen should be analyzed under the Fourth Amendment
and its reasonableness standard, rather than a ‘substantive due process’
approach." 490 U.S. 386, 395 (1989). See also Abney, 493 F.3d at 415
(citing Graham).
12 HENRY v. PURNELL
cant information about Henry’s likely whereabouts, motives,
associations, and appearance. In sum, a reasonable officer in
these circumstances would have had no grounds for believing
Henry was armed or dangerous.9 The parties do not seriously
dispute as much.
The parties have stipulated, however, that the shooting here
was based on a mistake of fact insofar as Purnell believed he
was firing his Taser rather than his Glock. Based on this stipu-
lation, Purnell attempts to defend the constitutionality of his
actions by maintaining that he simply made an "honest mis-
take." Appellee’s Br. 22 (internal quotation marks omitted).
But it is not the honesty of Purnell’s intentions that deter-
mines the constitutionality of his conduct; rather it is the
objective reasonableness of his actions. It is certainly true that
mistaken, but reasonable, decisions do not transgress constitu-
tional bounds. See, e.g., McLenagan v. Karnes, 27 F.3d 1002
(4th Cir. 1994). All actions, however, mistaken or otherwise,
are subject to an objective test.
There were several facts that Purnell knew or should have
known that would have alerted any reasonable officer to the
fact that he was holding his Glock. First, and most basically,
Purnell knew he carried his Taser in the holster on his right
thigh, which was about a foot lower than the holster on his hip
that held his Glock. See Sevigny v. Dicksey, 846 F.2d 953, 957
n.5 (4th Cir. 1988) ("Objective inquiry into the reasonable-
ness of an officer’s perception of the critical facts leading to
9
Purnell stated in his deposition that he was concerned that because
Henry was in his neighborhood, he could have run somewhere and picked
up a weapon. However, that possibility did not make Henry an immediate
threat. Purnell also testified that he did not know whether Henry was
armed since he had not searched him. But Purnell had no reason to
believe, or even suspect, that Henry was armed. When the dissent stresses
Purnell’s personal hypotheses about what Henry might have done, dissent-
ing op. at 33-34, it slips into the subjective and implies that all fleeing sus-
pects may be apprehended through the use of deadly force. Garner and
Graham hold otherwise.
HENRY v. PURNELL 13
an arrest . . . must charge him with possession of all the infor-
mation reasonably discoverable by an officer acting reason-
ably under the circumstances. Indeed his subjective beliefs
about the matter, however induced, are actually irrelevant to
the inquiry.") (internal quotation marks omitted). Second,
Purnell could feel the weight of the weapon he held in his
hand, which, at about 38 ounces, was nearly twice the weight
of his Taser. Third, Purnell knew the Taser had a thumb
safety that had to be flipped to arm the weapon. The Glock
he was holding had no thumb safety.10 This was not a situation
in which the facts known to the officer led to multiple reason-
able inferences.
It bears emphasis that this also was not a situation in which
circumstances deprived Purnell of the opportunity to fully
consider which weapon he had drawn before firing.11 See Gra-
ham, 490 U.S. at 397 (explaining that courts must make "al-
lowance for the fact that police officers are often forced to
make split-second judgments — in circumstances that are
tense, uncertain, and rapidly evolving"). As he pursued Henry
in an attempt to arrest him for a fairly minor, non-violent
crime, Henry had his back to Purnell and was not threatening
him or anyone else in any way. There was no evidence indi-
cating that Purnell did not have the split-second he would
10
Purnell claims that the firearm he previously carried, fourteen months
before the day of the shooting, had a thumb safety. He claims that on the
occasions when he trained with his Glock he noticed that he still made the
same instinctive thumb motion that he used to make with his prior
weapon. For that reason, he maintains that it was reasonable for him not
to notice the lack of a thumb safety on his Glock. However, regardless of
whether he continued to instinctually attempt to flip his thumb safety on
his Glock, a reasonable officer would have noticed that he was not push-
ing anything with his thumb when he made that motion.
11
Purnell admitted in his deposition that while he was never "told
directly" during his Taser training, nonetheless "[i]t was implied" and "un-
derstood" that he should make sure he had drawn his Taser rather than his
firearm before firing. J.A. 512.
14 HENRY v. PURNELL
have needed to at least glance at the weapon he was holding
to verify that it was indeed his Taser and not his Glock.12
For all of the reasons set out above, when the record is
viewed in the light most favorable to Henry, Henry can show
Purnell’s actions were not objectively reasonable.13 Thus, the
evidence forecasted in the record by Henry is sufficient to
show that Purnell violated Henry’s Fourth Amendment rights.14
12
As we have noted, the Glock was completely black, while the Taser
had yellow coloring on both sides. Also, the barrel of the Glock resembles
a traditional handgun barrel, cylindrical and narrow, while the Taser’s
"barrel" is box-shaped.
13
It bears recognizing that at trial, of course, the jury will not be
required to view the evidence in the light most favorable to Henry.
14
The dissent avoids qualified immunity altogether by reasoning that
"the Fourth Amendment does not address the accidental effects of other-
wise lawful government conduct . . . ." Dissenting op. at 41. That conclu-
sion paraphrases Brower v. County of Inyo, but miscomprehends its legal
import. 489 U.S. 593, 596 (1989) (discussing "the accidental effects of
otherwise lawful government conduct."). Brower held that a police road-
block which accidentally killed a fleeing suspect constituted a seizure. Id.
at 599. Brower’s discussion of police intent, id. at 596-597, stands for
nothing more than the unremarkable proposition that intent can be a pre-
condition for whether a Fourth Amendment seizure occurred in the first
place, infra n.15. Brower could have chosen to exempt all accidents from
the Fourth Amendment. But instead, the Court remanded the case to con-
sider if the roadblock was unreasonable and preserved the objective stan-
dard: "It may well be that [police] here preferred, and indeed earnestly
hoped, that Brower would stop on his own, without striking the [road-
block], but we do not think it practicable to conduct such an inquiry into
subjective intent." 489 U.S. at 598.
Moreover, the dissent itself concedes that "[n]one of the[ ] cases [it
cites] involves the precise factual situation present here. . . ." Dissenting
op. at 40. For example, Milstead v. Kibler involved a bloody gun and knife
fight where two men were wrestling and police shot the wrong one. 243
F.3d 157, 165 (4th Cir. 2001). That reasonable reaction to a deadly threat
is already constitutional under Garner, but it differs markedly from the sit-
uation before us here.
HENRY v. PURNELL 15
B.
Having concluded based on the facts we must accept at the
summary judgment stage that Purnell’s use of force would
have been unreasonable, we now turn to the second prong in
the qualified immunity analysis, which requires this Court to
decide "whether the [constitutional] violation was of a
‘clearly established’ right." Valladares v. Cordero, 552 F.3d
384, 388 (4th Cir. 2009). The second prong is "a test that
focuses on the objective legal reasonableness of an official’s
acts." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). An
official will not be held liable unless "[t]he contours of the
right [he is alleged to have violated were] sufficiently clear
that a reasonable official would understand that what he is
doing violates that right." Anderson v. Creighton, 483 U.S.
635, 640 (1987). "The qualified immunity standard ‘gives
ample room for mistaken judgments’ by protecting ‘all but the
plainly incompetent or those who knowingly violate the
law.’" Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). "The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted."
Saucier, 533 U.S. at 202.
Here, Henry can show under prong one of the qualified
immunity analysis that a reasonable officer would have real-
ized he was holding a firearm when shooting. Under prong
two, it would have been clear to a reasonable officer that
shooting a fleeing, nonthreatening misdemeanant with a fire-
arm was unlawful. This basic legal principle had been estab-
lished by the Supreme Court years earlier in Garner.
Purnell nevertheless argues that he is entitled to qualified
immunity because it was not clearly established at the time of
the shooting that it would be unconstitutional for an officer to
fire his weapon at the suspect under these facts when he
believed he was holding his Taser. But Purnell fails to under-
16 HENRY v. PURNELL
stand that his subjective beliefs or intentions have no place in
our constitutional analysis, which concerns the objective rea-
sonableness of the officer’s conduct in light of the relevant
facts and circumstances.15 Graham, 490 U.S. at 397 (explain-
ing that in resolving qualified immunity questions, courts
inquire "whether the officers’ actions are ‘objectively reason-
able’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation"); Har-
low, 457 U.S. at 818 (explaining that qualified immunity pro-
tects government officials "from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known"). Indeed, objectivity has been the touch-
stone of qualified immunity law for nearly thirty years.16 The
Supreme Court has made clear that the "Fourth Amendment
inquiry is one of ‘objective reasonableness’ under the circum-
stances, and subjective concepts . . . have no proper place in
that inquiry." Graham, 490 U.S. at 399. "[A]ll claims that law
enforcement officers have used excessive force . . . should be
analyzed under the Fourth Amendment and its ‘reasonable-
ness’ standard." Id. at 395 (emphasis in original). See also
Anderson, 483 U.S. at 641 (holding that an officer’s subjec-
tive belief about the nature of his conduct is "irrelevant" for
qualified immunity purposes).
15
Of course, an officer’s subjective intentions are quite relevant on the
question of whether the officer "seized" the suspect within the meaning of
the Fourth Amendment, but we resolved that question against Purnell in
a prior appeal, see Henry v. Purnell, 501 F.3d 374, 381-82 (4th Cir. 2007),
and it is not now before us.
16
There was briefly a time when qualified immunity included subjective
factors, namely an officer’s "permissible intentions." Wood v. Strickland,
420 U.S. 308, 322 (1975). But the Supreme Court soon eliminated subjec-
tive considerations altogether because "the subjective element of the
good-faith defense frequently [had] proved incompatible with our admoni-
tion . . . that insubstantial claims should not proceed to trial." Harlow v.
Fitzgerald, 457 U.S. 800, 815-816 (1982). Specifically, Harlow reasoned
that "[j]udicial inquiry into subjective motivation therefore may entail
broad-ranging discovery," which would incur "substantial costs" and be
"peculiarly disruptive of effective government." Id. at 816-17.
HENRY v. PURNELL 17
Similarly, our Court has consistently conducted an objec-
tive analysis of qualified immunity claims and stressed that an
officer’s subjective intent or beliefs play no role. In Melgar
v. Greene, we made clear that "‘an officer’s good intentions’
do not make objectively unreasonable acts constitutional."
593 F.3d at 361 (citations omitted). We reiterated in Owens
v. Lott that the qualified immunity "determination ‘is an
objective one, dependent not on the subjective beliefs of the
particular officer at the scene, but instead on what a hypothet-
ical, reasonable officer would have thought in those circum-
stances.’" 372 F.3d 267, 279 (4th Cir. 2004) (quoting Wilson
v. Kittoe, 337 F.3d 392, 402 (4th Cir. 2003)). And in Clem v.
Corbeau, we held that "[w]e may assume that [an officer]
subjectively believed that the force he used was not excessive;
that, however, is not the question. The question is ‘whether it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’" 284 F.3d 543,
552-553 (4th Cir. 2002) (citations omitted). See also Jones v.
Buchanan, 325 F.3d 520, 527 (4th Cir. 2003) ("We do not
consider the officer’s ‘intent or motivation.’") (citing Elliott
v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)); Rowland v.
Perry, 41 F.3d 167, 173 (4th Cir. 1994) ("Subjective factors
involving the officer’s motives, intent, or propensities are not
relevant.").
In the end, this may be a case where an officer committed
a constitutionally unreasonable seizure as the result of an
unreasonable factual mistake. If he did, he is no more pro-
tected from civil liability than are the well-meaning officers
who make unreasonable legal mistakes regarding the constitu-
tionality of their conduct. See Pearson, 129 S. Ct. at 815
("The protection of qualified immunity applies regardless of
whether the government official’s error is a mistake of law,
a mistake of fact, or a mistake based on mixed questions of
law and fact.") (internal quotation marks omitted). Although
officers are only human and even well-intentioned officers
may make unreasonable mistakes on occasion, the doctrine of
18 HENRY v. PURNELL
qualified immunity does not serve to protect them on those
occasions.
IV.
Purnell argues that even if the district court erred in grant-
ing his summary judgment motion on the federal claim, he
was nonetheless entitled to summary judgment on the state
claim on the basis of statutory immunity. We disagree.
Maryland Declaration of Rights Articles 24 and 26 prohibit
employment of excessive force during a seizure. Randall v.
Peaco, 927 A.2d 83, 89 (Md. Ct. Spec. App. 2007). The stan-
dards for analyzing claims under these articles are the same
as for analyzing Fourth Amendment claims. Id. Thus, from
our conclusion that the facts, viewed in the light most favor-
able to Henry, showed Purnell violated Henry’s Fourth
Amendment rights, it follows that Purnell also violated his
rights under Articles 24 and 26.
However, Maryland officials are granted immunity under
the Maryland Tort Claims Act ("MTCA"), Md. Code State
Gov’t, §§ 12-101 et seq., for state constitutional violations
committed within the scope of their duties when the violations
are made "without malice or gross negligence." Lee v. Cline,
863 A.2d 297, 307 (Md. 2004); Md. Code State Gov’t
§§ 12-101(a)(6), 12-105. And, "[u]nlike qualified immunity
from claims of violations of federal rights under § 1983, the
question of immunity for State personnel from State law torts
is a subjective one." Newell v. Runnels, 967 A.2d 729, 763
(Md. 2009).
An officer’s actions are grossly negligent when they are "so
heedless and incautious as necessarily to be deemed unlawful
and wanton, manifesting such a gross departure from what
would be the conduct of an ordinarily careful and prudent per-
son under the same circumstances so as to furnish evidence of
indifference to consequences." State v. Albrecht, 649 A.2d
HENRY v. PURNELL 19
336, 348 (Md. 1994) (internal quotation marks and citation
omitted). Whether an officer’s actions are grossly negligent,
and therefore unprotected by statutory immunity, is generally
a question for the jury. Taylor v. Harford County Dep’t of
Soc. Servs., 862 A.2d 1026, 1034 (Md. 2004).
We conclude that a reasonable jury could find that Purnell
was grossly negligent in failing to make even a minimal effort
to verify that he had drawn his Taser. Although Purnell stated
that he was never "told directly" during his training, he said
that "[i]t was implied" and "understood" that he should make
sure that he was in fact holding his Taser rather than a firearm
before firing. J.A. 512. Especially in light of the fact that the
Taser and firearm were holstered on the same side of Pur-
nell’s body, a reasonable jury could conclude that such verifi-
cation would only amount to common sense. In this case, in
a situation where there was no particular exigency and where
Purnell was attempting to arrest a nondangerous person for a
relatively minor crime, a jury could reasonably find that his
decision to fire his weapon without attempting to verify that
he had drawn his Taser rather than his Glock amounted to
gross negligence.
V.
Purnell’s use of deadly force against Henry was objectively
unreasonable and violated clearly established law, namely
Tennessee v. Garner’s prohibition against shooting suspects
who pose no significant threat of death or serious physical
injury to the officer or others. Nothing removes this case from
the straightforward context of Garner. Consequently, we hold
that Purnell was not entitled to qualified immunity.17 Further-
17
We recognize of course that the substantive Fourth Amendment
inquiry and the matter of qualified immunity are not always one and the
same. See Saucier, 533 U.S. at 203-07. Here, however, we think qualified
immunity was properly denied and that the reasonableness of the officer’s
actions on the merits is a matter for the jury.
20 HENRY v. PURNELL
more, we hold that a jury could reasonably find that Purnell’s
conduct amounted to gross negligence. For these reasons, the
decision of the district court is
REVERSED AND REMANDED.
DAVIS, Circuit Judge, concurring:
A rookie deputy sheriff (albeit one with more than two dec-
ades of relevant law enforcement experience), Deputy Pur-
nell, having been provided with "minimal training" in the use
of a Taser, goes, alone and without back-up officers, to the
home of an offender, Henry, wanted on a misdemeanor war-
rant for failure to pay child support, to take the offender into
custody on the warrant. The deputy has reason to believe, and
indeed has actual knowledge, that Henry has no record of vio-
lence or threatening conduct toward law enforcement officers
(or anyone else); indeed, this no doubt explains the absence
of any back-up officers. When Henry pointlessly runs away
from Deputy Purnell, the deputy (who is carrying his
newly-issued Taser on his "dominant side" inches from his
Glock service pistol) mistakenly draws his Glock (which he
had never before used in the field) instead of the Taser (with
which he had only practiced once before) and, despite easily
measurable differences in the weight and features of the two
weapons, immediately discharges his Glock pistol and shoots
and wounds the offender.
I am pleased to join Judge Gregory’s fine opinion for the
en banc majority. The court holds that whether, under the
totality of the circumstances of this case (properly drawing all
inferences of fact in favor of Henry as the non-movant under
Fed. R. Civ. P. 56), Deputy Purnell’s mistaken use of his
Glock pistol to shoot Henry was reasonable, is a question for
the jury and not properly determined as a matter of law. I
write briefly to make three observations in response to the
principal dissent (hereafter, "the dissent").
HENRY v. PURNELL 21
First. The dissent (in some passages) seems to be in agree-
ment with the en banc majority (and the parties) that this case
does not present the hypothetical issue of whether the inten-
tional use of the Taser by Deputy Purnell under the circum-
stances would have comported with the Fourth Amendment.
See Dissenting Op. at 31 ("The dispositive question in this
case is not whether it was reasonable for Deputy Purnell to
use deadly force to stop Henry or even whether it was reason-
able for the deputy to attempt to use his Taser.") (emphasis
added); id. at 41 n.8 ("Henry does not claim that Deputy Pur-
nell’s decision to use the Taser was unreasonable . . . . There-
fore, we need not decide that issue.") (emphasis added). But
then, later on in the dissent, there is an implied finding on the
very issue not presented: that actual use of the Taser would
have been entirely appropriate. See id. at 48 (declaring, with-
out qualification, that Deputy Purnell "made a mistake in his
execution of an otherwise proper action"). It is even more per-
plexing that, in still another passage, the dissent demands an
answer from the majority of the en banc court to the very
question that is not presented: "[C]ould the deputy have used
the Taser at all?" Dissenting Op. at 46.
The dissent’s serial disclaimers that "Taser use" is at issue
here does little to obscure the dissent’s transparent confidence
that the intentional use of a Taser by Deputy Purnell under the
circumstances in the case before us would have comported
with the Fourth Amendment. The dissent’s disappointment
that this case is not about "Taser use" is entirely understand-
able upon close scrutiny of its reasoning. This is because the
entire dissent rests on the following tidy (but deeply flawed)
syllogism:
* An officer’s use of a Taser is always permissible
under the Fourth Amendment to effect the arrest of
any fleeing suspect;
* An officer is permitted to make reasonable mis-
takes in effecting seizures without thereby violating
the Fourth Amendment; therefore
22 HENRY v. PURNELL
* As a matter of law, Deputy Purnell’s mistaken
use of weapon one [the Glock] instead of weapon
two [the Taser] to effect a seizure of the fleeing
Henry was reasonable and therefore did not violate
the Fourth Amendment.
In other words, under the dissent’s perspective on this case,
it is the very reasonableness (purportedly, as a matter of law)
of the intended use of the Taser against an unarmed, nonvio-
lent misdemeanant fleeing on foot that renders the mistaken
use of the Glock "a reasonable mistake."
That this is the dissent’s mode of analysis is made clear
(again, despite the serial disclaimers) by the dissent’s citation,
as "instructive," see Dissenting Op. at 41 n.8, to a case
decided several days after the en banc argument in this case,
McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011) (affirm-
ing lower court’s grant of summary judgment that use of
Taser on a fleeing misdemeanor offender did not constitute an
unreasonable seizure). Even a cursory examination of McKen-
ney, however, demonstrates that the facts in that case are not
remotely similar to the facts in the case at bar. The dissent’s
citation to that case in no manner undermines the majority’s
reasoning or the outcome in this case.
In McKenney, the offender had earlier fled by automobile
from the arresting officer, who had made a traffic stop of the
offender. Id. at 356-57. Three arrest warrants were issued for
the offender. Id. Several weeks after the initial encounter dur-
ing the traffic stop, the offender was actually arrested on the
three warrants while in the second floor bathroom of his resi-
dence while naked. Id. at 357. The two arresting officers
escorted the offender to a nearby bedroom and allowed him
to dress before handcuffing him and removing him from the
residence. Id. Significantly, they observed that as he was
donning his clothing, he looked about suspiciously toward an
uncovered window, which opened out to a porch roof below
the second floor.
HENRY v. PURNELL 23
Upon making this observation, one officer unholstered her
Taser and orally warned the suspect "not to do anything stu-
pid," id., and admonished him, "you don’t want to be tased."
Id. Despite the warning, the offender made a sudden break for
the window, and the officer discharged her Taser. Id. As a
result of being tased, the offender went through the window
uncontrollably, somehow missed the porch roof or otherwise
continued his fall such that he came off the porch roof and
landed on the ground. He died four days later from head
trauma suffered in his fall. Id. at 357-58.
The Eighth Circuit affirmed the district court’s grant of
summary judgment as to, inter alia, the Fourth Amendment
excessive force claim instituted by the offender’s mother
based on the officer’s use of the Taser. In affirming the dis-
trict court’s determination that, as a matter of law, the use of
the Taser under the circumstances was not an instance of
actionable Fourth Amendment excessive force, our sister cir-
cuit reasoned as follows:
When Barnes made a sudden movement toward
the window, which the officers reasonably inter-
preted as an active attempt to evade arrest by flight,
the officers were entitled to use force to prevent
Barnes’s escape and effect the arrest . . . . Although
the charges were limited to misdemeanors, the offi-
cers executing the warrant were not required to let
Barnes run free.
Despite the fatal consequences of the incident, the
level of force employed also was not unreasonable.
Pollreis used only a single Taser shock. She was
required to react in a split second as Barnes sought
to escape through a window only six to eight feet
away. The alternative of attempting to subdue
Barnes by tackling him posed a risk to the safety of
the officer and did not ensure a successful arrest. The
officers had warned Barnes. Just before he lunged,
24 HENRY v. PURNELL
Harrison told Barnes not to do anything stupid, and
Pollreis said "you don’t want to be tased." And
although the outcome was tragic, a reasonable offi-
cer, knowing that a Taser is designed to incapacitate
instantly, could have believed that the force would
incapacitate Barnes before he reached the window,
while he was not in an "elevated position" and likely
to fall. Under these circumstances, we conclude that
the force used by Pollreis was reasonable.
Id. at 360 (citation and footnote omitted). It is quite clear that
the circumstances of the case at bar could not be more unlike
those presented in McKenney, which involved a suspect (who
had only weeks previously sped off in an automobile from
law enforcement during a traffic stop*) in the actual custody
of two law enforcement officers in a closed room, acting sus-
piciously as if he was planning to escape, and who ignored
express oral warnings by one of the officers who had unhol-
stered her Taser and who had it at the ready when the offend-
er’s sudden movement prompted her to discharge the Taser.
The dissent’s unbridled confidence that use of a Taser
would have been permissible here is unwarranted, of course,
because neither party to this case has presented or argued that
issue. It is unwarranted, as well, based on the thoughtful con-
curring opinion of Circuit Judge Murphy in McKenney, who
forthrightly acknowledged that the objective reasonableness
of the use of Tasers continues to pose difficult challenges to
*Recently, in the context of the Supreme Court’s evolving sentencing
jurisprudence, the Court explained the commonsense reasons why a sus-
pect’s knowing or intentional use of an automobile to flee from law
enforcement significantly raises the stakes in the potential for violence by
such suspects. See Sykes v. United States, No. 09-11311, 2011 WL
2224437, *6-8 (U.S. June 9, 2011) (holding that a conviction under Indi-
ana law of the driver of an automobile who knowingly or intentionally
flees from a police officer constitutes a "violent felony" prior conviction
under the federal Armed Career Criminal Act, 18 U.S.C. § 924(e)).
HENRY v. PURNELL 25
law enforcement agencies and courts alike. It is, indeed, Judge
Murphy’s opinion that is most "instructive":
While I concur in the opinion of the court, I
believe that law enforcement use of tasers merits fur-
ther reflection. This case illustrates one kind of
tragic result that can follow the employment of a
taser. The developing law on taser use must consider
the unique nature of this type of weapon and the
increased potential for possibly lethal results created
by newer models.
Our cases have reacted to a variety of circum-
stances where tasers have been used, and they some-
times reflect unexpected consequences. In Mahamed
v. Anderson, 612 F.3d 1084, 1086 (8th Cir. 2010),
for example, a jailer used a taser on a screaming
inmate lying on the floor of his own locked cell. The
taser probes lodged in the inmate’s testicle and hand,
assertedly causing long term impotence, inconti-
nence, and nerve damage. Qualified immunity was
denied the jailer in that case. Id. at 1087. An officer
who tased a woman refusing to leave her car during
a traffic stop was also denied qualified immunity.
Brown v. City of Golden Valley, 574 F.3d 491,
499-500 (8th Cir. 2009). A panel majority granted
summary judgment in Cook v. City of Bella Villa,
582 F.3d 840, 849 (8th Cir. 2009), to an officer who
had tased an angry man approaching him while he
was trying to arrest the man’s wife. Judge Shepherd
dissented after concluding that it was unreasonable
to "discharge [a] Taser simply because of insolence,"
especially given the tremendous pain tasers cause.
Id. at 859-60.
In deciding claims of excessive force, we balance
"the nature and quality of the intrusion . . . against
the countervailing governmental interests at stake."
26 HENRY v. PURNELL
Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct.
1865, 104 L.Ed.2d 443 (1989); see Maj. Op. at 359.
As we have previously observed, "case law related
to the Taser is [in the] developing" stage. Brown,
574 F.3d at 498 n. 5. While "the Taser, in general,
is more than a non-serious or trivial use of force but
less than deadly force . . . , there is a lot of room
between those end points." Mattos v. Agarano, 590
F.3d 1082, 1087 (9th Cir. 2010).
That the law is still evolving is illustrated in cases
granting qualified immunity for that very reason.
See, e.g., Bell v. Kansas City Police Dep’t, No.
08-456, at 4-5 (W.D.Mo. Mar. 22, 2010) (granting
qualified immunity to police officer in "close case"
because "there is not enough law warning defendant
against tasering to justify this [excessive force] liti-
gation"). Local law enforcement policies also reflect
differing views of where the taser fits on the "force
continuum." Some allow taser use only as an alterna-
tive to deadly force, while others call for taser use
whenever any force is justified. U.S. Gov’t Account-
ability Office, GAO-05-464 Taser Weapons: Use of
Tasers by Selected Law Enforcement Agencies 9-10
(2005) ("GAO Report").
* * *
In this case Officer Pollreis used her taser’s dart
mode on James Barnes when she perceived that he
might try to escape out a window. The taser’s two
metal probes lodged in his lower back. The weapon
then did exactly what it was designed to do: it com-
pletely incapacitated Barnes’s entire body. Instead of
falling to the floor as Pollreis expected, Barnes
smashed through the window and over the porch and
fell onto the ground. The taser’s paralyzing effect
apparently made Barnes unable to break his fall, and
HENRY v. PURNELL 27
he died of massive brain trauma a few days later.
Even though the officers were serving only misde-
meanor warrants, Pollreis was faced with "circum-
stances that [were] tense, uncertain, and rapidly
evolving," Graham, 490 U.S. at 397, 109 S.Ct. 1865,
and she mistakenly believed she could stop Barnes
safely. She was wrong.
Just as officers may use guns only against suspects
posing a threat of serious physical harm, Tennessee
v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85
L.Ed.2d 1 (1985), the use of tasers requires sufficient
justification for their use to be reasonable. The
Supreme Court refused to let "police technology . . .
erode the privacy guaranteed by the Fourth Amend-
ment" in Kyllo v. United States, 533 U.S. 27, 34, 121
S.Ct. 2038, 150 L.Ed.2d 94 (2001), and the particu-
lar factual circumstances in which a taser has been
used must be examined in the context of Fourth
Amendment protections against excessive force.
Id. at 361-64.
Judge Murphy’s insightful observations wisely counsel
caution against a hasty determination of the reasonableness
vel non of Taser use by law enforcement officers in the
abstract. See also Zivojinovich v. Barner, 525 F.3d 1059,
1073 (11th Cir. 2008) ("We have previously held that in a
‘difficult, tense and uncertain situation’ the use of a taser gun
to subdue a suspect who has repeatedly ignored police
instructions and continues to act belligerently toward police
is not excessive force. Draper v. Reynolds, 369 F.3d 1270,
1278 (11th Cir. 2004).") (emphasis added); Parker v. Gerrish,
547 F.3d 1, 8-11 (1st Cir. 2008) (affirming jury verdict that
officer used excessive force in tasering an arrestee).
Henry chose not to assert a hypothetical claim of excessive
force based on Deputy’s Purnell’s intended use of the Taser
28 HENRY v. PURNELL
in the circumstances of this case, and the majority of the en
banc court appropriately leaves for another day (and for con-
sideration in a case in which the issue is actually presented)
determination of that issue.
Second. The dissent protests that "[its] analysis does not
even address, much less justify, the intentional use of deadly
force." Dissenting Op. at 43 n.10. And yet, one of the princi-
pal cases on which the dissent relies to support its conclusion
that Henry failed to project sufficient evidence that Deputy
Purnell committed a Fourth Amendment excessive force vio-
lation involved an officer’s "intentional use of deadly force."
See Dissenting Op. at 38, 43-44 (citing, quoting, and reason-
ing on the basis of Anderson v. Russell, 247 F.3d 125 (4th Cir.
2001)). Russell was not a case of "mistaken" use of deadly
force; to the contrary, it was a case in which the use of deadly
force was, manifestly, "intentional."
There, a local police officer, Russell, working supplemental
employment as a shopping mall security guard, learned from
a mall patron that an intoxicated man, Anderson, wearing ear-
phones and a hat, who was openly drinking wine while walk-
ing around the mall, appeared to be armed. Id. at 127-28.
Thereafter, Russell surveilled and observed Anderson for
more than twenty minutes and, specifically, he observed a
bulge under Anderson’s sweater precisely where one might
expect a firearm to be secreted, thereby "corroborating the cit-
izen’s report." Id. at 128. Thus, as the panel in Russell cor-
rectly recognized, the officer had at least reasonable suspicion
to seize the man, make inquiry, and to conduct a pat down
search, and to do so in a manner that provided an assurance
of safety for the officers and any persons in the immediate
area. Id. at 130 ("Once Russell perceived a bulge consistent
with the shape of a gun, he was justified in believing that
Anderson was armed and dangerous.").
With their guns drawn, Russell and another officer con-
fronted Anderson and ordered Anderson to "raise his hands
HENRY v. PURNELL 29
and get down on his knees." Id. Although Anderson at first
raised his hands, before the officers could conduct a pat-down
and secure the situation, he began lowering his hands and
"reaching toward what Russell believed to be a gun." Id. at
131. Thus, Officer Russell, having more than a reasonable
basis for believing that the man was armed and that he was
reaching for a firearm in defiance of a direct order by the
police, shot Anderson three times. Id. In fact, the bulge
observed by the mall patron (and later, by the officer) was an
eyeglass case. Anderson (who was wearing earphones) had
been reaching to remove the radio from his back pocket; he
was not armed. Id.
Anderson survived his wounds and sought damages against
the shooter pursuant to § 1983 based on Russell’s alleged
excessive force in effecting a seizure in violation of the
Fourth Amendment. The jury returned a verdict for Anderson,
finding that (1) the officer used excessive force and (2) the
officer was not entitled to qualified immunity. Officer Russell
renewed his motion for judgment as to each of those issues
after the verdict; the district court denied the motion as to
excessive force but granted the motion as to qualified immu-
nity. On cross-appeals by the parties, we concluded, as men-
tioned above, that "as a matter of law, Russell’s use of force
did not violate the Fourth Amendment and, therefore, that the
§ 1983 excessive force claim should not have been submitted
to the jury." Id. at 129.
Thus, Russell was not a case of a "mistake" in any sense
relevant to the case at bar. Both the mall patron and the sur-
veilling officer drew an inference, a reasonable inference, as
this court repeatedly noted, that the man was armed and,
indeed, later, that he was attempting to draw a firearm in
response to an order by the officer that he raise his hands. A
reasonable inference based on percipient witness observations
is nonetheless reasonable even where the factual basis under-
lying the inference is other than as supposed. Such a reason-
able inference is not for that reason a mistaken inference.
30 HENRY v. PURNELL
Most assuredly, in Russell, the officer intended to discharge
his firearm at the suspect, and he did so, shooting him three
times.
Like so many of the other cases relied on by the dissent,
e.g., those dealing with mistaken searches of the wrong apart-
ment, Russell bears no resemblance whatsoever to the case at
bar. Plainly, an accumulation of abstract legal propositions
extracted from dissimilar cases provides scant assistance in
the decision of actual cases; rather, it is the careful application
of legal principles to the summary judgment record presented
before us that does so.
Third. The dissent apparently finds it odd that the majority
is not granting summary judgment in favor of Plaintiff Henry
since, in its view, there is no genuine dispute of material fact
evident in this record. That is plainly incorrect. The dissent
asserts, and all agree, that where there exists no genuine dis-
pute of material fact, the objective reasonableness of a partic-
ular use of force is an issue of law for the court. Scott v.
Harris, 550 U.S. 372, 378-79 & n.5 (2007) (holding that
video recording of plaintiff’s encounter with police "sp[oke]
for itself" and established the absence of any genuine dispute
of material fact bearing on objective reasonableness). In the
case at bar, of course, the issue is not the reasonableness of
Deputy Purnell’s use of his Glock to seize Henry. All agree
that the use of the Glock to seize Henry was unreasonable
under the facts and circumstances of this case. The issue pre-
sented, as the dissent further acknowledges, is the reasonable-
ness of Deputy Purnell’s mistake in unholstering and dis-
charging his Glock. If the mistake was reasonable, then the
Fourth Amendment renders the seizure reasonable. As the
majority opinion makes perfectly clear, genuine disputes of
material historical and inferential facts absolutely surround
the issue of the reasonableness of Deputy Purnell’s mistake,
and a jury of his peers is the proper factfinder as to the ulti-
mate question. The dissent’s insistence on blinking at those
facts and circumstances, or its inability or refusal to draw
HENRY v. PURNELL 31
those inferences in favor of Henry because, as discussed
above, it wants this case to be about the intended use of the
Taser, does not alter that reality. Cf. Scott, 550 U.S. at 383
("[I]n the end we must still slosh our way through the fact-
bound morass of ‘reasonableness.’").
With these additional observations, I am pleased to join
Judge Gregory’s opinion for the en banc court.
SHEDD, Circuit Judge, dissenting:
Deputy Purnell, an experienced law enforcement officer,
attempted to arrest Henry pursuant to a lawful warrant. Before
the deputy could search Henry for weapons, Henry fled
toward his residence. The parties have stipulated that during
the ensuing foot chase, Deputy Purnell "intended to unholster
and discharge his Taser M26" but, instead, "unholstered and
fired his service weapon, believing that it was his Taser
M26." J.A. 30. Deputy Purnell unfortunately shot Henry with
his firearm as a result of this mistake.
The dispositive question in this case is not whether it was
reasonable for Deputy Purnell to use deadly force to stop
Henry or even whether it was reasonable for the deputy to
attempt to use his Taser. Rather, the question is whether the
deputy’s mistake in drawing and firing his Glock while in hot
pursuit of Henry was constitutionally reasonable. See Henry
v. Purnell, 501 F.3d 374 (4th Cir. 2007) ("Henry I").1 When
properly viewed in light of controlling precedent, which coun-
sels that we must view the facts of this potentially dangerous
arrest without engaging in hindsight second-guessing, the
1
In Henry I, we noted: "Purnell does not argue that an intentional use
of the Glock would have been reasonable; likewise, Henry does not argue
that Purnell’s decision to use the Taser was unreasonable." 501 F.3d at
382 n.11. Further, we remanded the case for the district court to determine
in the first instance whether Henry had met his burden of establishing that
Purnell’s mistake in using the Glock rather than the Taser was unreason-
able. Id. at 384.
32 HENRY v. PURNELL
undisputed material evidence clearly establishes that the dep-
uty’s mistake is constitutionally reasonable. Accordingly,
Henry has failed as a matter of law to meet his burden of
establishing a Fourth Amendment violation, and the district
court properly granted summary judgment in favor of Deputy
Purnell on Henry’s federal and state-law claims on that basis.2
I
For our purposes, the material facts are undisputed.3 On
October 23, 2003, Deputy Purnell attempted to arrest Henry
pursuant to a lawful warrant. The warrant charged Henry with
second degree escape based on his failure to comply with a
court order to report to the county detention center for service
of a 47-day sentence.4
2
There are, of course, two separate issues in a case such as this, where
an officer asserts qualified immunity: (1) whether the plaintiff has estab-
lished that the defendant violated a constitutional right and (2) if so,
whether the defendant is entitled to qualified immunity. See Pearson v.
Callahan, 555 U.S. 223 (2009). Although the majority states that I am
somehow "avoiding" the issue of qualified immunity, see Majority Op., at
14 n.14, my view that Henry has failed to establish a Fourth Amendment
violation renders it unnecessary for me to address qualified immunity.
Thus, what the majority views as my "avoidance" of the issue is, in fact,
entirely proper. See Saucier v. Katz, 533 U.S. 194, 201 (2001) ("If no con-
stitutional right would have been violated were the allegations established,
there is no necessity for further inquiries concerning qualified immu-
nity.").
3
The only potentially material fact that is in dispute is whether Henry
pushed Deputy Purnell when he began to flee. For purposes of my conclu-
sion that Deputy Purnell did not violate the Fourth Amendment, I accept
Henry’s version that he did not push the deputy, and this factual issue is
therefore immaterial. Of course, if this issue is ultimately resolved in Dep-
uty Purnell’s favor, it would further underscore the reasonableness of his
actions.
4
Under Maryland law, an individual who knowingly fails to obey a
court order to report to a place of confinement is guilty of the misdemea-
nor crime of second degree escape and is subject to a term of imprison-
ment not exceeding 3 years or a fine not exceeding $5,000, or both. MD
HENRY v. PURNELL 33
The attempted arrest occurred in Henry’s driveway, where
Henry was one of three people in a parked truck. Deputy Pur-
nell, who was alone, approached the vehicle, and Henry even-
tually acknowledged his identity. After Deputy Purnell
advised Henry that he had a warrant for his arrest, Henry
exited the vehicle. The driver of the vehicle and the other pas-
senger remained inside.
Henry initially appeared cooperative after exiting the vehi-
cle, but he fled toward his trailer before Deputy Purnell could
arrest him. At that time, Deputy Purnell did not know whether
Henry was armed or whether he was fleeing in an attempt to
arm himself. As Deputy Purnell explained:
Q: And what danger did you feel that you were in?
A: Because [Henry] was in his neighborhood, he
could have gone anywhere, gotten anything,
could have run to the back, gotten a shovel,
gone back in the house, gotten a gun. Anything.
Besides that, I didn’t know if he had anything
on him. I never had an opportunity to search
him.
...
Q: At that point . . . did you consider him a danger-
ous or violent subject?
A: Yes.
Code Ann., Crim. Law, § 9-405. A state judge had ordered Henry to report
to the Somerset County Detention Center on September 8, 2003, to serve
a term of 47 days, but also provided him with an opportunity to avoid hav-
ing to serve the sentence by complying with certain requirements. Henry
neither complied with those requirements nor reported to serve his sen-
tence.
34 HENRY v. PURNELL
...
Q: And did you perceive him as a threat as he con-
tinued to run?
A: Yes, sir.
Q: Because he may have gotten a weapon; is that
correct?
A: That’s correct, sir.
Q: And during this entire time that he was run-
ning, your opinion did not change —?
A: That’s correct.
J.A. 258-61.
After Henry fled, Deputy Purnell began a chase that lasted
3-5 seconds. While he was running, Deputy Purnell kept his
eyes focused on the fleeing Henry, and he reached for his
Taser, which was holstered on his right side below his Glock.
However, Deputy Purnell mistakenly drew his Glock rather
than his Taser. Because he was running and focused on
Henry, Deputy Purnell did not realize that he had mistakenly
unholstered the Glock. As Henry continued to flee, Deputy
Purnell — believing that he was holding the Taser — shot
Henry in the arm. Henry then began to slow down, and Dep-
uty Purnell quickly overtook him.5
Deputy Purnell immediately recognized his mistake, and he
told Henry that he had not intended to shoot him. He then
5
Because Deputy Purnell was attempting to lawfully arrest Henry, and
Henry has stipulated that Deputy Purnell mistakenly used his firearm, the
fact that Deputy Purnell may have been annoyed at Henry for "pulling a
whammy" on him (see Majority Op., at 3) on an earlier date is immaterial.
HENRY v. PURNELL 35
escorted Henry back to the truck and radioed for medical
assistance. Deputy Purnell rendered first-aid to Henry, and he
permitted Henry’s companions to exit the truck and assist
him. During this time, he reiterated that he had grabbed the
Glock by mistake and never intended to shoot Henry. Deputy
Purnell remained with Henry until other law enforcement
units arrived and relieved him.
At the time of this incident, Deputy Purnell had been
employed with the Somerset County Sheriff’s Office for
approximately one year. Before that, he spent 25 years as an
officer with the Maryland Natural Resources Police. Deputy
Purnell had only been carrying the Taser for a few months
before this incident, and he had never previously deployed it
in the field. Indeed, he had only used it one time in a training
exercise. Likewise, he had only been carrying the Glock for
a relatively short time, and he had never fired it in the field.
He carried the Taser and Glock on the same side of his body
(his dominant side) in a holster because he had been
instructed to do so. Although there are differences between
the two weapons, such as their weight and the manner in
which they function, the Taser and the Glock appear to be
remarkably similar in shape. See J.A. 288-89.
Approximately two months before the shooting, the Somer-
set County Sheriff issued Special Order 03-04, regarding
Taser usage. Among other things, that order explains that the
Taser could be used "to control a dangerous or violent subject
when deadly force is not justified and attempts to control the
subject by other tactics have been ineffective," and "to safely
effect an arrest." J.A. 285. It also instructs that "[w]hen practi-
cal" officers should use verbal commands and point the laser
sight at the subject before discharging it. J.A. 286.6
6
I note this order merely for background purposes, and I do not contend
that Deputy Purnell’s compliance with it is pertinent to the Fourth Amend-
ment analysis. See Abney v. Coe, 493 F.3d 412, 419 (4th Cir. 2007) ("It
is . . . settled law that a violation of departmental policy does not equate
with constitutional unreasonableness.").
36 HENRY v. PURNELL
II
"It goes without saying that the Fourth Amendment bars
only unreasonable searches and seizures." Maryland v. Buie,
494 U.S. 325, 331 (1990). The purpose of the Fourth Amend-
ment is "to protect the people of the United States against
arbitrary action by their own Government," United States v.
Verdugo-Urquidez, 494 U.S. 259, 266 (1990), and it "ad-
dresses ‘misuse of power,’ not the accidental effects of other-
wise lawful government conduct," Brower v. County of Inyo,
489 U.S. 593, 596 (1989) (citation omitted). Section 1983 (42
U.S.C.) allows a plaintiff "to seek money damages from gov-
ernment officials who have violated his Fourth Amendment
rights," Wilson v. Layne, 526 U.S. 603, 609 (1999), but it
"does not purport to redress injuries resulting from reasonable
mistakes," McLenagan v. Karnes, 27 F.3d 1002, 1008 (4th
Cir. 1994).7
A.
Arrest is, of course, a form of seizure, and "the right to
make an arrest . . . necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect
it." Graham v. Connor, 490 U.S. 386, 396 (1989). In consid-
ering whether an officer acted reasonably in making an arrest,
we must bear in mind that "American criminals have a long
tradition of armed violence, and every year in this country
many law enforcement officers are killed in the line of duty,
and thousands more are wounded." Terry v. Ohio, 392 U.S. 1,
23 (1968). Thus, "[t]he public interest . . . includes the sub-
stantial public concern for the safety of police officers law-
fully carrying out the law enforcement effort." United States
v. Sakyi, 160 F.3d 164, 167 (4th Cir. 1998).
7
The standard for liability on Henry’s federal and state-law claims is the
same. See Henry I, 501 F.3d at 382 n.10.
HENRY v. PURNELL 37
A "custodial arrest is fluid and ‘[the] danger to the police
officer flows from the fact of the arrest, and its attendant
proximity, stress, and uncertainty.’" Thornton v. United
States, 541 U.S. 615, 621 (2004) (citation omitted) (emphasis
in original). Because "[t]here is no way for an officer to pre-
dict reliably how a particular subject will react to arrest or the
degree of the potential danger," "[e]very arrest must be pre-
sumed to present a risk of danger to the arresting officer."
Washington v. Chrisman, 455 U.S. 1, 7 (1982) (emphasis
added). The risk to the officer is heightened when an arrestee
flees, as "[t]he act of resisting arrest poses a threat of direct
confrontation between a police officer and the subject of the
arrest, creating the potential for serious physical injury to the
officer and others." United States v. Wardrick, 350 F.3d 446,
455 (4th Cir. 2003).
B.
"What is reasonable depends upon all of the circumstances
surrounding the search or seizure and the nature of the search
or seizure itself." United States v. Montoya De Hernandez,
473 U.S. 531, 537 (1985). "Because of the necessarily ad hoc
nature of any determination of reasonableness, there can be no
inflexible rule of law which will decide every case." Scott v.
United States, 436 U.S. 128, 139 (1978). "[T]he Fourth
Amendment’s commands, like all constitutional requirements,
are practical and not abstract," United States v. Ventresca, 380
U.S. 102, 108 (1965), and "[w]e are to approach the Fourth
Amendment . . . with at least some measure of pragmatism"
and to avoid "pressing inflexible rules," Mora v. City of Gai-
thersburg, MD, 519 F.3d 216, 222 (4th Cir. 2008).
"A creative judge engaged in post hoc evaluation of police
conduct can almost always imagine some alternative means
by which the objectives of the police might have been accom-
plished." United States v. Sharpe, 470 U.S. 675, 686-87
(1985). However, reasonableness for purposes of the Fourth
Amendment "is evaluated from the perspective of the officer
38 HENRY v. PURNELL
on the scene, not through the more leisurely lens of hind-
sight." Abney, 493 F.3d at 416; see also Waterman v. Batton,
393 F.3d 471, 477 (4th Cir. 2004) (noting that "reasonable-
ness is determined based on the information possessed by the
officer at the moment that force is employed"). As Judge Wil-
kinson of this Court recently noted: "It’s always tempting to
go the could-have/should-have route in hindsight, but that is
not how the Supreme Court has structured the objective rea-
sonableness inquiry." Hunsberger v. Wood, 583 F.3d 219, 222
(4th Cir. 2009) (Wilkinson, J., concurring in denial of rehear-
ing en banc). For this reason, courts should not "second-guess
the split-second judgment of a trained police officer merely
because that judgment turns out to be mistaken. . . ." McLena-
gan, 27 F.3d at 1007-08.
The Fourth Amendment "does not require omniscience,"
and officers "‘need not be absolutely sure . . . of the nature of
the threat or the suspect’s intent to cause them harm’" before
using force. Anderson v. Russell, 247 F.3d 125, 132 (4th Cir.
2001) (quoting Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir.
1996). Moreover, "[o]fficers are not required to use the least
intrusive means available; they simply must act within the
range of reasonable conduct." Brooks v. City of Seattle, 599
F.3d 1018, 1025 (9th Cir. 2010); see also Board of Ed. of Ind.
Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S.
822, 837 (2002) (noting that "this Court has repeatedly stated
that reasonableness under the Fourth Amendment does not
require employing the least intrusive means, because ‘[t]he
logic of such elaborate less-restrictive alternative arguments
could raise insuperable barriers to the exercise of virtually all
search-and-seizure powers.’" (citation omitted)).
Importantly, reasonableness "does not, by definition, entail
perfection," United States v. Phillips, 588 F.3d 218, 227 (4th
Cir. 2009), and courts must "allow some latitude for honest
mistakes that are made by officers in the dangerous and diffi-
cult process of making arrests," Maryland v. Garrison, 480
U.S. 79, 87 (1987). Elaborating on this point, the Supreme
HENRY v. PURNELL 39
Court has stated: "Because many situations which confront
officers in the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes on their
part." Brinegar v. United States, 338 U.S. 160, 176 (1949).
Accordingly, "a mistaken understanding of the facts that is
reasonable in the circumstances can render a seizure based on
that understanding reasonable under the Fourth Amendment."
Milstead v. Kibler, 243 F.3d 157, 165 (4th Cir. 2001). Nearly
two decades ago, our en banc Court recognized the chilling
effect that a contrary rule would have on law enforcement: "If
every mistaken seizure were to subject police officers to per-
sonal liability under § 1983, those same officers would come
to realize that the safe and cautious course was always to take
no action." Gooden v. Howard County, Md., 954 F.2d 960,
967 (4th Cir. 1992) (en banc); see also Torchinsky v. Siwinski,
942 F.2d 257, 261 (4th Cir. 1991) ("If reasonable mistakes
were actionable, difficult questions of discretion would
always be resolved in favor of inaction, and effective law
enforcement would be lost.").
Both the Supreme Court and this Court have repeatedly
found that reasonable mistakes made by law enforcement offi-
cers did not constitute Fourth Amendment violations. For
example, in Garrison, Mazuz v. Maryland, 442 F.3d 217 (4th
Cir. 2006), and United States v. Patterson, 278 F.3d 315 (4th
Cir. 2002), the officers’ mistaken searches of the wrong prem-
ises were found to be constitutionally reasonable. Similarly,
in Illinois v. Rodriguez, 497 U.S. 177 (1990), the officers’
mistaken belief that they had third-party consent to enter and
search a premises was found to be constitutionally reasonable.
Likewise, in Hill v. California, 401 U.S. 797 (1971), the
Court found a mistaken arrest of the wrong person to be rea-
sonable under the Fourth Amendment.
Our decision in Milstead is particularly instructive. There,
the police officer had intended to shoot a fleeing criminal sus-
pect, but he mistakenly shot and killed an innocent person.
We held that the officer’s seizure of the innocent person did
40 HENRY v. PURNELL
not violate the Fourth Amendment because the officer’s mis-
take was reasonable. See also Culosi v. Bullock, 596 F.3d 195,
201 (4th Cir. 2010) ("A mistaken use of deadly force . . . is
not necessarily a constitutional violation under the Fourth
Amendment.").
None of these cases involves the precise factual situation
present here, "but, as in all Fourth Amendment cases, we are
obliged to look to all the facts and circumstances of this case
in light of the principles set forth" in prior precedent. South
Dakota v. Opperman, 428 U.S. 364, 375 (1976). These cases
instruct that where, as here, an officer has made a mistake
during a search or seizure, we must consider the facts and cir-
cumstances as the officer perceived them and then apply an
objective standard over those facts to determine whether the
officer’s mistake was reasonable. In doing so, we must avoid
the temptation to second-guess the officer’s actions, espe-
cially in a case involving an exigency such as hot pursuit.
C.
Henry bears the burden of proof on the issue of whether a
constitutional violation occurred. Henry I, 501 F.3d at 377.
We review an award of summary judgment de novo, applying
the same familiar Rule 56 standards applicable in the district
court. See Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006)
(en banc). Summary judgment is appropriate if "there is no
genuine dispute as to any material fact and the movant is enti-
tled to judgment as a matter of law." Fed. R. Civ. P. 56(a). For
purposes of summary judgment consideration, the substantive
law identifies which facts are material, and "[o]nly disputes
over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In Scott v. Harris, 550 U.S. 372, 381 n.8 (2007),
the Supreme Court instructed that at the summary judgment
stage, once a court has determined the relevant set of facts and
drawn all inferences in favor of the nonmoving party to the
HENRY v. PURNELL 41
extent supportable by the record, the reasonableness of an
officer’s actions for Fourth Amendment purposes "is a pure
question of law" to be decided by the court rather than the
jury. In my view, the district court properly analyzed this case
and reached the correct result.
What I stated above bears repeating: the Fourth Amend-
ment does not address the accidental effects of otherwise law-
ful government conduct, and § 1983 does not purport to
redress injuries resulting from reasonable mistakes. The
undisputed material facts establish as a matter of law that
Deputy Purnell in no way intentionally "misused" the power
of his office. Rather, he was lawfully attempting to arrest
Henry, which in itself is a potentially dangerous encounter,
and Henry heightened the danger by his decision to flee.
Properly recognizing the limitation on the use of deadly force,
Deputy Purnell attempted to use the Taser to stop Henry.8 In
8
As noted, "the right to make an arrest . . . necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it."
Graham, 490 U.S. at 396. Henry does not claim that Deputy Purnell’s
decision to use the Taser was unreasonable. See Henry I, 501 F.3d at 382
n.11. Therefore, we need not decide that issue. Nonetheless, I believe that
a recent case from the Eighth Circuit is instructive on this issue.
In McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011), the police used
a Taser while attempting to stop a misdemeanant suspect from fleeing
from arrest. Upon being hit by the Taser, the suspect fell out of a sec-
ond-story window to his death. In support of the suspect’s § 1983 lawsuit,
which was predicated on the Fourth Amendment, the administrator of the
suspect’s estate argued that the Taser use was excessive because the arrest
warrants were based on minor offenses, the suspect never threatened the
officers, the officers had no reason to believe that the suspect had a
weapon, and the result of the force was the suspect’s death. The adminis-
trator also argued that a rational jury could have found that the officer
failed to follow police department procedures by (among other things) not
calling out "Taser" before deploying it. 635 F.3d at 359-60.
Properly recognizing that the reasonableness of the officer’s actions
must not be judged in hindsight, the Eighth Circuit affirmed the entry of
summary judgment in favor of the officers. In reaching this conclusion,
the court held that the officers could have reasonably interpreted the sus-
42 HENRY v. PURNELL
the rapidly evolving situation, Deputy Purnell mistakenly
drew the Glock and fired it.
Again, the Supreme Court has instructed that we must
"allow some latitude for honest mistakes that are made by
officers in the dangerous and difficult process of making
arrests." Garrison, 480 U.S. at 87. Deputy Purnell’s mistake
is indeed unfortunate, but it was nonetheless one that was
made in the tense and potentially dangerous circumstances
arising from Henry’s flight from arrest. Henry has failed to
present any material evidence to demonstrate that this mistake
was anything other than an honest one.9 Therefore, the mis-
pect’s sudden movement toward the window during the arrest as an
attempt to evade arrest, and they were thus entitled to use force to prevent
the suspect’s escape. The court noted that "[a]lthough the charges were
limited to misdemeanors, the officers executing the warrant were not
required to let [the suspect] run free." Id. at 360. The court further held
that despite the fact that the suspect died, the use of the Taser was not
excessive. The court pointed out that the officer "was required to react in
a split second as [the suspect] sought to escape through a window only six
to eight feet away," and "[t]he alternative of attempting to subdue [the sus-
pect] by tackling him posed a risk to the safety of the officer and did not
ensure a successful arrest." Id.
McKenney is not binding precedent for this Court. However, it certainly
suggests that Deputy Purnell acted reasonably in making the decision to
use the Taser. Even before the day in question, Henry had demonstrated
his intent to avoid apprehension, and his flight from arrest simply con-
firmed that intent. Like the officers in McKenney, had Deputy Purnell
decided against using the Taser, his options were either to (1) stop chasing
Henry and allow him to get away or (2) chase Henry and risk having to
engage him in a physical encounter (assuming he could even catch him).
Of course, under either option, Deputy Purnell faced the prospect that
Henry was either armed or could arm himself during his flight. Unques-
tionably, the Fourth Amendment did not require Deputy Purnell to pursue
either of these courses of action.
9
The majority chides Deputy Purnell for arguing that he is entitled to
summary judgment because he made an "honest mistake," noting that it is
"not the honesty of Purnell’s intentions that determines the constitutional-
ity of his conduct." See Majority Op., at 12. Of course, "honest mistake"
HENRY v. PURNELL 43
take is reasonable within the meaning of the Fourth Amend-
ment as a matter of law. For this reason, Deputy Purnell did
not violate Henry’s Fourth Amendment right to be free from
an unreasonable seizure, and summary judgment in the depu-
ty’s favor is appropriate. See, e.g., Russell, 247 F.3d at 130
("Given the uncontroverted evidence as to what Russell per-
ceived immediately before firing, we do not believe that there
is a legally sufficient evidentiary basis for a rational jury to
find for Anderson on the issue of excessive force. Accord-
ingly, we hold that Russell was entitled to judgment as a mat-
ter of law on the excessive force claim." (emphasis added)).10
D.
The majority concludes otherwise, holding that the question
of whether Henry has established a Fourth Amendment viola-
is a term of common parlance denoting an act that is done unintentionally
and without malice. The "honest mistake" standard relied upon by Deputy
Purnell comes directly from Supreme Court precedent, and it obviously
refers to an objectively reasonable mistake. However, in assessing the
objective reasonableness of the mistake, we must consider the officer’s
subjective intention in order to understand that he in fact made a mistake.
See, e.g., Hill, 401 U.S. at 803-04 ("The upshot was that the officers in
good faith believed Miller was Hill and arrested him. They were quite
wrong as it turned out, and subjective good-faith belief would not in itself
justify either the arrest or the subsequent search. But sufficient probability,
not certainty, is the touchstone of reasonableness under the Fourth
Amendment and on the record before us the officers’ mistake was under-
standable and the arrest a reasonable response to the situation facing them
at the time.").
10
The majority asserts that my analysis “implies that all fleeing suspects
may be apprehended through the use of deadly force.” See Majority Op.,
at 12 n.9. Either the majority misunderstands or is indifferent to the con-
trolling law, the material facts, or my opinion. To be clear, when analyzed
properly, this case is not about the reasonableness of Deputy Purnell’s use
of deadly force. It is about the reasonableness of his stipulated mistake in
attempting to use what he believed to be a Taser. My analysis does not
even address, much less justify, the intentional use of deadly force, which
even Henry agrees is not present.
44 HENRY v. PURNELL
tion is for a jury. In doing so, the majority equates Deputy
Purnell’s conduct with that of a rogue officer who intention-
ally shoots at an unarmed misdemeanant. See Majority Op.,
at 11 ("The objective circumstances of this case are that Pur-
nell shot a fleeing suspected misdemeanant whom he had no
reason to believe was a threat."). I believe the majority erro-
neously reaches this conclusion by improperly viewing this
case through the lens of hindsight to minimize not only the
inherent danger involved in every arrest, but also the specific
danger in this case that stemmed from Henry’s decision to
flee before being searched.
For example, the majority repeatedly emphasizes that the
arrest warrant was for a relatively minor crime. See, e.g.,
Majority Op., at 3, 11. However, the danger faced by an offi-
cer making a custodial arrest flows from the fact of the arrest
itself and "not from the grounds for arrest." United States v.
Robinson, 414 U.S. 218, 234 n.5 (1973). Moreover, as we
explained in Russell, even if the suspected criminal activity is
relatively minor, "that factor would prove irrelevant to our
excessive force analysis because our focus is on the circum-
stances as they existed at the moment force was used." 247
F.3d at 132.11
The majority further states that "critically, this case pre-
sents nothing to suggest Henry posed any threat whatsoever
— no menacing conduct and no violent criminal history."
Majority Op., at 11. This assertion incorrectly focuses on
11
Even the most seemingly minor arrest can lead to tragic consequences
for law enforcement officers. See, e.g., State v. Bryant, 642 S.E.2d 582,
585 (S.C. 2007) ("In June 2000, Cpl. Dennis Lyden . . . was placing Bry-
ant under arrest for driving with a suspended license when Bryant sud-
denly turned and wrestled Cpl. Lyden to the ground. During the course of
the struggle, Bryant managed to obtain Cpl. Lyden’s flashlight and pistol
magazine from the officer’s duty belt and used them to severely beat Cpl.
Lyden about the head. After beating the officer unconscious, Bryant took
Cpl. Lyden’s pistol from his holster and shot him in the head at close
range." (emphasis added)).
HENRY v. PURNELL 45
Henry, the arrestee, and ignores the Supreme Court’s admoni-
tion concerning the potential danger that flows from the fact
of the arrest itself, as well as our admonition that an act of
resistance increases the danger to both an officer and bystand-
ers. Without question, a suspect’s known dangerousness can
heighten the potential danger of an arrest, but the fact that a
suspect may not appear at first glance to be dangerous does
not necessarily negate the inherent danger of the arrest.
In any event, the majority’s assertion ignores the specific,
undisputed fact that at the time Henry fled, Deputy Purnell
had no way of knowing if he was dangerous because, among
other reasons, he had not yet searched him. See Knowles v.
Iowa, 525 U.S. 113, 118 (1998) (noting that "the authority to
conduct a full field search as incident to an arrest [is] a
‘bright-line rule,’ which [is] based on the concern for officer
safety"). Moreover, Henry’s flight, which allowed him to
evade the search incident to the arrest certainly was sufficient
to cause the deputy, like any reasonable officer, to suspect
that Henry, like any other suspect in similar circumstances,
may have been concealing something on his person. See Illi-
nois v. Wardlow, 528 U.S. 119, 124 (2000) ("Headlong flight
— wherever it occurs — is the consummate act of evasion:
It is not necessarily indicative of wrongdoing, but it is cer-
tainly suggestive of such."). Incredibly, the majority discounts
any potential danger arising from the arrest and Henry’s flight
because Deputy Purnell knew such mundane facts as where
Henry lived, who his wife and former employer are, and that
he had some vague intention of posting bail after he was
arrested. See Majority Op., at 11. Surely, the majority must
concede that facts of this nature could be present in cases
involving even the most dangerous of individuals.12
12
Henry was running in the direction of his trailer. Had he entered the
trailer before Deputy Purnell was able to catch him, the deputy would
have been entitled to follow him inside to apprehend him. See United
States v. Santana, 427 U.S. 38, 42-43 (1976). Of course, the potential dan-
ger to the deputy would have been magnified in that instance. See Buie,
46 HENRY v. PURNELL
Simply put, under the majority’s view of the facts, Henry
presented no danger at all to Deputy Purnell. Of course, this
raises the question of what the majority would have had the
deputy do in this situation. It is not enough merely to declare
that he should have been more careful. Rather, the context of
this incident matters, and the objective reasonableness test
must factor in that context. If, as the majority believes, this
was not a dangerous situation, could the deputy have used the
Taser at all? Should the deputy have been required to forego
use of the Taser and, instead, to chase Henry with the hope
of catching up to him and subduing him by physical force, an
act that would have subjected both men to the risk of signifi-
cant injury (and a possible excessive force claim against Dep-
uty Purnell), or should he have simply let Henry run away,
taking solace in the fact that he knew who his wife is and
where he lived? As I noted earlier, the Fourth Amendment
does not require a law enforcement officer to resort to these
lesser alternatives.
In addition to erroneously minimizing the potentially dan-
gerous nature of this arrest, the majority also errs by engaging
in inappropriate second-guessing. See, e.g., Majority Op., at
12-14. Perhaps the most telling example of this is contained
in the following passage:
As he pursued Henry in an attempt to arrest him for
a fairly minor, non-violent crime, Henry had his
back to Purnell and was not threatening him or any-
one else in any way. There was no evidence indicat-
ing that Purnell did not have the split-second he
494 U.S. at 333 ("The risk of danger in the context of an arrest in the
home is as great as, if not greater than, it is in an on-the-street or roadside
investigatory encounter. . . . [U]nlike an encounter on the street or along
a highway, an in-home arrest puts the officer at the disadvantage of being
on his adversary’s ‘turf.’ An ambush in a confined setting of unknown
configuration is more to be feared than it is in open, more familiar sur-
roundings.").
HENRY v. PURNELL 47
would have needed to at least glance at the weapon
he was holding to verify that it was indeed his Taser
and not his Glock.
Majority Op., at 13-14. Of course, we now know that Henry
— who "had his back to Purnell" — was not armed. However,
Deputy Purnell did not have the luxury of that knowledge in
the rapidly evolving situation, and he did what officers are
trained to do: he focused on the fleeing suspect, who could
have turned with a weapon at any moment, in order to protect
himself and any innocent bystanders. The majority’s belief
that the deputy should have taken a "split-second" to focus his
attention away from Henry might be fine in a perfect world,
but in the real world it is those split-seconds during which law
enforcement officers (and bystanders) are wounded or killed.13
13
Most states, including Maryland, have waived sovereign immunity
and permit some claims for injury from the negligent acts of state employ-
ees. A potential right to recover for such negligence, however, has no
bearing on the entirely separate issue of whether a federal constitutional
claim against the officer is cognizable under § 1983. As we have
explained, "allegations of a defendant’s negligence do not state constitu-
tional claims against such a defendant." Covenant Media of SC, LLC v.
City of N. Charleston, 493 F.3d 421, 436 (4th Cir. 2007) (citation and
punctuation omitted); see also Dow Chem. Co. v. United States, 476 U.S.
227, 232 (1986) ("State tort law does not define the limits of the Fourth
Amendment.").
Moreover, even if Deputy Purnell was insufficiently trained to use the
Taser, it is difficult to discern how his potential personal liability for a
constitutional violation hinges on whether his superiors adequately trained
him. Cf. City of Canton, OH v. Harris, 489 U.S. 378, 391 (1989) (noting
that "adequately trained officers occasionally make mistakes; the fact that
they do says little about the training program or the legal basis for holding
the city liable"). To the extent that the training issue has been involved in
this case, it arose during proceedings in the district court, and we did not
endorse its relevance in Henry I. See 501 F.3d at 383 (quoting district
court orders regarding training); 501 F.3d at 384 ("Apart from our deter-
mination that a seizure occurred, we express no opinion on the ultimate
merits of the case.").
48 HENRY v. PURNELL
III
In closing, I cannot help but reflect upon the peculiar result
created by the majority’s decision when compared to our prior
precedent. In Robles v. Prince George’s County, Md., 302
F.3d 262, 271 (4th Cir. 2002), we held that police officers
who tied an arrestee to a metal pole in a deserted parking lot
and left him there in the middle of the night were immune
from federal constitutional liability even though they "should
have known, and indeed did know, that they were acting inap-
propriately." We did so while noting that their conduct was a
"type of Keystone Kop activity that degrades those subject to
detention and that lacks any conceivable law enforcement
purpose." Id.
The same certainly cannot be said about Deputy Purnell’s
conduct. Instead of doing something that he knew was inap-
propriate, Deputy Purnell attempted to do the right thing
under the rapidly evolving and potentially dangerous circum-
stances he was in. However, because he made a mistake in his
execution of an otherwise proper action, he (unlike the "Key-
stone Kops" in Robles) is potentially personally liable for
monetary damages under § 1983. This does not accord with
the practical construction which must be given to the Fourth
Amendment.14 Cf. Gooden, 954 F.2d at 967 ("It is a mis-
guided application of § 1983 to expose to liability those who
by all objective indicia were only trying to help."). As we
recently stated in Melgar v. Greene, 593 F.3d 348, 361 (4th
Cir. 2010), "undisputed good intentions should not be used to
make an officer a more inviting target for monetary dam-
ages." (emphasis in original). Yet, compared to Robles, that is
exactly the result reached by the majority today.
14
I recognize that in Robles we held that the officers violated the plain-
tiff’s constitutional rights and granted them qualified immunity. Although
in my view we need not decide the issue of qualified immunity in this
case, the result in Robles illustrates the odd result reached today by the
majority.
HENRY v. PURNELL 49
In deciding this case as they do, my colleagues in the
majority perhaps take comfort in the fact that the outcome of
Deputy Purnell’s mistake is rather extreme (although certainly
much less extreme than the fatal mistake in Milstead) and that
a jury may in any event ultimately find in his favor.15 None-
theless, I believe that law enforcement officers should pay
close attention to how today’s opinion appears to change the
law in this circuit. Henceforth, law enforcement officers are
on notice that apparently (1) this Court does not share the
Supreme Court’s view that arrests are presumptively danger-
ous; (2) this Court is prepared in a given case, including one
involving hot pursuit, to substitute its judgment for the diffi-
cult and dangerous circumstances they face on the streets and
to second-guess their actions literally on a second-by-second
basis; and (3) when an officer has made an honest mistake in
the otherwise proper execution of his duties, this Court is con-
tent to equate that mistake with intentional misconduct of the
worst sort and to permit a jury to do the same. For these rea-
sons, I believe that the decision today represents a significant
departure from the precedent of this Court and the Supreme
Court. Only time will tell whether this decision has the chill-
ing effect that this Court, sitting en banc, warned about almost
20 years ago: that is, prompting law enforcement officers to
choose inaction in order to avoid risking personal liability.
See Gooden, 954 F.2d at 967.
Based on the foregoing, I respectfully dissent.
Judge Niemeyer and Judge Agee have authorized me to
indicate that they join in this opinion.
15
The majority correctly cites Scott for the proposition that once we
view the facts in the light most favorable to Henry, the reasonableness of
Deputy Purnell’s conduct is a pure question of law. See Majority Op., at
10-11. However, instead of applying this principle, the majority remands
the issue for a jury to make that decision.
50 HENRY v. PURNELL
NIEMEYER, Circuit Judge, dissenting:
In its effort to deal with Officer Purnell’s conceded mistake
in shooting Henry while fleeing, the majority opinion blurs
and applies, in a mix, three distinct standards of reasonable-
ness — (1) the constitutional standard of reasonableness for
measuring the use of deadly force; (2) the qualified immunity
standard of reasonableness of an officer’s awareness or under-
standing of clearly established law; and (3) the reason-
able-man standard for the common law tort of negligence.
And to confuse matters more, the majority declines to
address, in its analysis, Officer Purnell’s mistake because, it
concludes, the mistake was limited to Officer Purnell’s "sub-
jective beliefs or intentions [which] have no place in our con-
stitutional analysis." It thus disregards the substantial
objective evidence of mistake, as well as the parties’ stipula-
tion that Officer Purnell made a mistake.
In addition, the majority fails to recognize, when rejecting
Officer Purnell’s qualified immunity, that no officer can have
preexisting knowledge of a mistake before the mistake is
made. The Supreme Court and our court have repeatedly
acknowledged the fact that reasonable officers do, indeed,
make mistakes in undertaking their duties, and when the mis-
take is an honest mistake, they are not held liable for violating
the Fourth Amendment of the Constitution.
I am pleased to concur in Judge Shedd’s fine opinion, and
I write separately here only to address the majority’s analysis,
which, I respectfully submit, takes our qualified immunity
jurisprudence far afield and hereafter will subject
well-intentioned officers who make mistakes in the field to a
level of liability that is unprecedented.
I
Officer Purnell, a 29-year veteran law enforcement officer,
did, as the majority relates, attempt to serve Henry with an
HENRY v. PURNELL 51
outstanding warrant for his arrest, as it was the officer’s duty
to do. After Officer Purnell identified Henry, he told him he
was under arrest and attempted to handcuff him. As Officer
Purnell stated, "I had a hold, I don’t [recall] if it was the right
or left arm, but I was trying to get him handcuffed." At that
point, Henry resisted and pushed Officer Purnell (a fact dis-
puted by Henry) such that Officer Purnell "fell backwards"
and caught himself on his car and his right leg. Officer Purnell
testified that he considered Henry’s action to be an assault on
him. When Henry then ran, Officer Purnell pulled out what he
thought was his Taser to stop Henry. When he fired it at
Henry, however, Officer Purnell heard "a pop, and realized a
mistake." Purnell stated that at that point "I immediately ran
to him. I told him I was sorry I pulled the wrong weapon. I
picked up my mic which was carried on my thing here and
radioed Somerset Central, advised them that a man had been
shot." Purnell then told the person that was with Henry to go
to the house to get some ice and a wet rag to put on Henry’s
forehead, and Purnell himself administered first aid. Purnell
then remained with Henry until medical assistance and other
officers arrived.
Henry does not disagree with these facts, except as to his
pushing Officer Purnell. Indeed, in the district court he stipu-
lated to the fact that Officer Purnell had mistakenly used his
handgun instead of his Taser.
This fact of honest mistake should require our finding, as
Judge Shedd has ably set forth in his opinion, that Officer
Purnell’s seizure of Henry did not violate the Fourth Amend-
ment. While Officer Purnell deliberately intended to use a
Taser to stop Henry, his use of a handgun to shoot Henry was
neither intended nor deliberate nor plainly incompetent, so as
to constitute an unreasonable seizure under the Fourth
Amendment.
II
The majority opinion, applying three separate standards of
reasonableness, conducts a syllogism basically to ignore the
52 HENRY v. PURNELL
fact of mistake. The opinion begins with the unremarkable
observation that when a police officer shoots a fleeing suspect
without probable cause to believe that the suspect poses a sig-
nificant threat of death or serious physical injury to the officer
or others, the officer violates the suspect’s Fourth Amend-
ment rights, citing Tennessee v. Garner, 471 U.S. 1 (1985).
Observing that "this case presents nothing to suggest Henry
posed any threat whatsoever," the majority concludes that
Officer Purnell’s conduct in shooting Henry was therefore
objectively unreasonable. Ante, at 11.
Turning to address the stipulated mistake, the majority
states that "it is not the honesty of Purnell’s intentions that
determines the constitutionality of his conduct; rather it is the
objective reasonableness of his actions." Ante, at 12 (empha-
sis added). Rather than addressing any mistake, the majority
opinion then makes what I suggest is the first major wrong
turn. It justifies its conclusion that Officer Purnell’s seizure of
Henry was constitutionally unreasonable by concluding that
Officer Purnell’s actions were not reasonable under a tort
standard of negligence. It begins this negligence analysis,
"There were several facts that Purnell knew or should have
known that would have alerted any reasonable officer to the
fact that he was holding his Glock." Ante, at 12. The opinion
then devotes substantial attention to the facts of Officer Pur-
nell’s negligence. It lists at least four to justify its finding: (1)
"Purnell knew he carried his Taser in the holster in his right
thigh, which was about a foot lower than the holster on his hip
that held his Glock." Ante, at 12. (2) "Purnell could feel the
weight of the weapon he held in his hand, which, at about 38
ounces, was nearly twice the weight of his Taser." Ante, at 13.
(3) "Purnell knew the Taser had a thumb safety that had to be
flipped to arm the weapon. The Glock he was holding had no
thumb safety." Ante, at 13. And, (4) "There was no evidence
indicating that Purnell did not have the split-second he would
have needed to at least glance at the weapon he was holding
to verify that it was indeed his Taser and not the Glock." Ante,
at 13-14.
HENRY v. PURNELL 53
After pointing out these facts, the majority opinion then
concludes that Officer Purnell’s actions were "not objectively
reasonable." Ante, at 14. That conclusion would surely lead to
the further conclusion that Officer Purnell was negligent
because his actions were not those of a reasonable man. But
this is not the conclusion that must be reached in order to
decide whether Purnell should receive qualified immunity.
To determine whether Officer Purnell enjoyed qualified
immunity, the dispositive inquiry would have to be whether
a reasonable officer, in light of clearly established law, could
reasonably believe that his actions were lawful. Saucier v.
Katz, 533 U.S. 194, 206 (2001). "The general rule of qualified
immunity is intended to provide government officials with the
ability ‘reasonably [to] anticipate when their conduct may
give rise to liability for damages.’" Anderson v. Creighton,
483 U.S. 635, 646 (1987) (emphasis added) (quoting Davis v.
Scherer, 468 U.S. 183, 195 (1984)). This reasonableness
inquiry related to the determination of qualified immunity is
designed to objectively consider the knowledge or under-
standing that an officer would have about the law applicable
to his actions in the circumstances he faced.
In other words, the qualified immunity analysis is meant to
determine whether a reasonable officer in the defendant’s
shoes should have known that his conduct was unlawful.
Under this standard, an officer who makes an honest mis-
take will always receive qualified immunity because he can
never be on notice that his conduct is unlawful. Officer Pur-
nell did not intend to use his gun as he set out to stop Henry
with a Taser and mistakenly shot him with a gun. He could
not have had prior knowledge and therefore understood that
he was about to shoot Henry. In the language of the qualified
immunity standard, he could not have "reasonably believed"
or "reasonably anticipated" that his actions would violate
clearly established law. The Supreme Court has acknowl-
edged, "Federal officials will not be liable for mere mistakes
54 HENRY v. PURNELL
in judgment, whether the mistake is one of fact or one of
law." Butz v. Economou, 438 U.S. 478, 507 (1978).
Moreover, the relevant conduct for purposes of determining
qualified immunity would be the mistake, the act of Purnell’s
reaching for the Taser and in fact pulling his gun. And of
course, it can readily be concluded that there is no clearly
established law governing when such a mistake would be
unreasonable under the Fourth Amendment.
The majority opinion, however, fails to address the quali-
fied immunity standard. It completes its syllogism, after con-
cluding that Officer Purnell’s conduct was unreasonable in the
tort sense, by (1) dismissing Officer Purnell’s mistake as
"good intentions," (2) concluding that Officer Purnell’s "sub-
jective intent or beliefs play no role" in the constitutional
analysis, and (3) returning to its premise, stating what is
undisputed but irrelevant, "under prong two [of the qualified
immunity analysis], it would have been clear to a reasonable
officer that shooting a fleeing, nonthreatening misdemeanant
with a firearm was unlawful," a conclusion that never
addresses the stipulated mistake.
In concluding that the mistake in this case could not be
taken into account, because it was limited to Officer Purnell’s
subjective intent, the majority commits its final error. It fails
to recognize the existence of the substantial objective evi-
dence in the record, beyond Officer Purnell’s subjective state
of mind, which indisputably pointed to the fact of mistake. As
witnessed by numerous persons at the scene, after Officer
Purnell shot Henry, Purnell immediately ran to Henry and
apologized to him in the presence of others, telling Henry that
he did not intend to shoot him with the gun. Purnell then cal-
led for medical assistance; requested ice and a wet rag for
Henry’s forehead; administered first aid; and remained with
Henry until assistance came. Were this not enough, Henry
then stipulated in this case that Officer Purnell had indeed
made a mistake.
HENRY v. PURNELL 55
Accordingly, in dismissing the mistake from the constitu-
tional analysis because it was limited to Purnell’s subjective
intent, the majority had to overlook the substantial objective
evidence and the parties’ stipulation.
The fact of mistake in this case is, to be sure, an element
that may render the traditional constitutional analysis for qual-
ified immunity nonsensical because it is nonsensical to ask
whether an officer reasonably believes that a mistake, about
which he could have no advance knowledge, would violate
clearly established law. Inherently, a mistake is not known or
understood beforehand so as to enable an officer to have the
understanding or belief about whether it would violate clearly
established law.
Instead of grappling with the difficulty of fitting this core
fact into the qualified immunity analysis, the majority simply
deems the mistake to be irrelevant. And when the majority
purports to apply the objective standard of constitutional rea-
sonableness — a standard that measures a reasonable officer’s
belief or understanding about the lawfulness of his actions in
given circumstances — it ignores the primary factor going
into the officer’s decisionmaking, the fact that he meant to
shoot a Taser instead of a gun. Instead, it considers only the
officer’s ultimate act of shooting the gun and then concludes
that Officer Purnell was unreasonable.
The majority’s analysis also has the difficulty of now sug-
gesting that an officer can violate the Fourth Amendment with
merely negligent conduct.
We should be most reluctant to narrow the scope of quali-
fied immunity as we do in this case. "[I]n determining what
circumstances a court may consider in deciding claims of
qualified immunity, we choose ‘between the evils inevitable
in any available alternative.’ . . . The qualified immunity doc-
trine recognizes that officials can act without fear of harassing
litigation only if they reasonably can anticipate when their
56 HENRY v. PURNELL
conduct may give rise to liability for damages and only if
unjustified lawsuits are quickly terminated." Davis v. Scherer,
468 U.S. 183, 195 (1984) (emphasis added) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 813-14 (1982)).
To be sure, this case presents a difficult analysis for the
general qualified immunity jurisprudence. And its difficulty is
reflected in the fact that the case has been before the Fourth
Circuit three times, giving rise to divergent opinions among
the judges of the court. But if this court is uncertain as to the
state of the Fourth Amendment in cases involving mistake,
surely no reasonable officer could have fully understood the
limits of liability. See Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2085 (2011) (holding that an officer was not plainly incompe-
tent and did not knowingly violate the law "not least because
eight Court of Appeals judges agreed with his judgment in a
case of first impression").
At bottom, I believe that this case undermines our qualified
immunity jurisprudence and, unfortunately, subjects this offi-
cer to personal liability for making what was unquestionably
an honest mistake in carrying out his official duties.
I would affirm for the reasons advanced by Judge Shedd.