Henry v. Purnell

Rehearing en banc granted, January 4, 2011

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 23, 2010

Decided: September 24, 2010

Before GREGORY and AGEE, Circuit Judges, and
Eugene E. SILER, Jr., Senior Circuit Judge of the
United States Court of Appeals for the Sixth Circuit,
sitting by designation.

Affirmed in part, reversed in part, and remanded with instruc-
tions by published opinion. Judge Agee wrote the majority
opinion, in which Senior Judge Siler joined. Judge Gregory
wrote a dissenting opinion.

COUNSEL

ARGUED: Katherine Louise Bushman, GEORGETOWN
UNIVERSITY LAW CENTER, Appellate Litigation Pro-
2 HENRY v. PURNELL
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

AGEE, Circuit Judge:

Robert Purnell, a deputy sheriff in Somerset County, Mary-
land, attempted to execute a warrant for Frederick Henry’s
arrest. Henry fled on foot and Deputy Purnell gave chase,
mistakenly drawing his firearm, instead of his taser, and
shooting Henry in the elbow. As a result of this incident,
Henry filed a § 1983 suit against Deputy Purnell in the United
States District Court for the District of Maryland, asserting
that Purnell used excessive force in effecting his arrest. The
district court ultimately concluded that Deputy Purnell’s mis-
take was reasonable and granted his motion for summary
judgment. For the following reasons, we affirm in part and
reverse in part the judgment of the district court, and remand
with instructions.

I.

We begin by summarizing the factual background, viewed
in the light most favorable to Henry, as this is the appropriate
standard in reviewing the facts upon an award of summary
judgment. See George & Co. LLC v. Imagination Entm’t Ltd.,
575 F.3d 383, 392 (4th Cir. 2009). In 2003, the Circuit Court
for Somerset County, Maryland ordered Henry either to pay
child support or report to jail on a specified date. When Henry
failed to comply with the court’s order, the Somerset County
 HENRY v. PURNELL 3
state’s attorney charged him with second degree escape and
obtained a warrant for his arrest.1 Deputy Purnell was tasked
with executing Henry’s arrest warrant.

Purnell went to Henry’s last known address and encoun-
tered an unidentified male sitting on the steps of a nearby
trailer. The unidentified male indicated that he was a friend of
the family who was helping to mow the grass and that Henry
was not present. The man explained to Deputy Purnell that
Henry lived "somewhere on Hampton Avenue in Princess
Anne" and that he was working in Ocean City for a company
called American Paving. Joint Appendix ("J.A.") at 220.

Purnell asked the man to tell Henry that there was an out-
standing warrant for his arrest and that if Henry would contact
him, he "would try to help him out." Id. at 221. Purnell also
wrote his name and telephone number on a piece of paper,
which he asked the man to give to Henry. The unidentified
male stated that he would give the paper to Henry’s wife, who
was inside the trailer. The man entered the trailer and then
returned, stating that he had given the note to Henry’s wife.
Although Deputy Purnell suspected the man was Henry, he
thanked the man and left.

Deputy Purnell subsequently drove to the local office of
American Paving to inquire about Henry’s employment. He
was informed that Henry no longer worked for American Pav-
ing, but that the company’s business records contained a per-
sonnel photograph. From this photograph, Purnell was able to
determine that the unidentified male at the trailer was, in fact,
Henry.
1
Under Maryland law, an individual who "knowingly fail[s] to obey a
court order to report to a place of confinement" is guilty of second degree
escape. MD. Code Ann., Crim. Law, § 9-405(a)(2) (West 2003). A person
guilty of the "misdemeanor of escape in the second degree . . . is subject
to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or
both." Id. § 9-405(b).
4 HENRY v. PURNELL
Upon returning to Henry’s residence, Deputy Purnell
knocked on the trailer door and spoke to Henry’s wife. Mrs.
Henry had not received the note Purnell had left earlier that
day, but she allowed him to enter the home to search for Mr.
Henry, who was not present. She also informed Deputy Pur-
nell that her husband’s employer drove a white truck and
lived in Princess Anne, Maryland. The following day Purnell
received a phone message from Mrs. Henry indicating that
she had given Mr. Henry his message and that Mr. Henry had
traveled to Baltimore to raise money for bail.

Several days later, on October 23, 2003, Deputy Purnell
was parked in his patrol car when he observed a white truck
with three male occupants heading in the direction of Henry’s
trailer. As the truck passed, the man seated next to the truck’s
passenger window turned his head away from Deputy Purnell.
His suspicions aroused, Purnell drove to Henry’s residence
and found the white truck parked in the driveway.

Deputy Purnell parked his patrol car behind the truck,
exited his vehicle, and determined that all three men were still
in the truck. He approached the driver’s side of the vehicle
and asked each man if he was Frederick Henry. Each man ini-
tially said no. When Purnell asked the same question a second
time, however, Henry admitted his identity. At this point,
Henry exited the truck and moved along with Deputy Purnell
to the rear of the truck. Henry then ran in the direction of his
residence with Purnell giving chase. While running in pursuit
of Henry and keeping his eye on "the target," i.e., Henry,
Deputy Purnell drew what he believed was his taser. Id. at
269. After three to five seconds, Purnell discharged what was,
in fact, his firearm, striking Henry in the elbow.2

Only when Purnell heard the distinctive "pop" of the fire-
arm did he realized his mistake. Id. at 272. Deputy Purnell
2
It is undisputed that the entire flight, chase, and shooting spanned no
more than ten seconds.
 HENRY v. PURNELL 5
told Henry that he "was sorry" for the shooting and that he
had "pulled the wrong weapon." Id. at 273. He also contacted
the dispatcher to obtain medical assistance for Henry and
allowed one of Henry’s companions to retrieve ice and a
towel from Henry’s residence. Once another officer arrived
on the scene, Deputy Purnell took a pressure bandage from
his vehicle and applied it to Henry’s arm. An ambulance sub-
sequently transported Henry for medical treatment.

II.

We now turn to this case’s lengthy procedural history.
Henry filed suit under 42 U.S.C. § 1983 in the United States
District Court for the District of Maryland on March 24, 2004,
alleging that Purnell violated his Fourth Amendment right to
be free from seizures effectuated by excessive force. In
response, Deputy Purnell filed a motion requesting that the
district court dismiss Henry’s complaint or grant summary
judgment in his favor. Purnell argued that he had not "seized"
Henry and, in the alternative, that he was entitled to qualified
immunity. After concluding that disputed issues of material
fact did not permit judgment as a matter of law, the district
court denied Purnell’s motion.

Upon appeal to this Court, Purnell argued the record did
not support the district court’s conclusion that a factual dis-
pute precluded it from granting judgment as a matter of law
and that he was entitled to qualified immunity. Because we
lacked jurisdiction to entertain an interlocutory appeal on
qualified immunity based on "the district court’s factual find-
ings," we dismissed the appeal. Henry v. Purnell, 119 Fed.
Appx. 441, 443 (4th Cir. 2005) (unpublished).

Henry subsequently was granted permission from the dis-
trict court to amend his complaint to add a claim for excessive
force predicated on the Maryland Constitution’s Declaration
of Rights. The parties also engaged in discovery and entered
into an evidentiary stipulation that Deputy Purnell "intended
6 HENRY v. PURNELL
to unholster and discharge his Taser M26 which was mounted
in a thigh holster below his service weapon, a Glock .40 cali-
ber handgun. Instead, he unholstered and fired his service
weapon, believing that it was his Taser M26." J.A. at 30.

Thereafter, Deputy Purnell filed a second motion for sum-
mary judgment in which he argued that Henry had not been
"seized" and that the parties’ stipulation that the shooting was
an unintentional mistake disposed of Henry’s Fourth Amend-
ment claim. Henry opposed the motion on three grounds, pos-
iting that the shooting did constitute a seizure, that
outstanding issues of material fact required resolution by a
jury, and that Purnell was not entitled to qualified immunity.3
Henry also requested the district court compel Purnell to dis-
close information relating to his taser and firearm training and
departmental policy regarding the use of force. Based on its
conclusions that (1) Deputy Purnell had "seized" Henry
within the meaning of the Fourth Amendment and (2) several
outstanding factual issues precluded an award of qualified
immunity, the district court denied Purnell’s motion for sum-
mary judgment and granted Henry’s motion to compel. See
Henry v. Purnell, 428 F. Supp. 2d 393, 395-98 (D. Md. 2006).

Purnell appealed the district court’s order and contended
that the court erred in concluding that he "seized" Henry and
in failing to accord him qualified immunity. We affirmed the
district court’s determination that Purnell’s shooting of Henry
resulted in a Fourth Amendment "seizure." Henry v. Purnell,
501 F.3d 374, 381-82 (4th Cir. 2007). But we questioned
whether the district court applied the appropriate burden of
3
In his response to Deputy Purnell’s second motion for summary judg-
ment, Henry argued that several outstanding factual issues bore on the
question of whether Purnell’s mistaken use of his firearm was reasonable,
including (1) the omission of a verbal warning before Purnell fired, (2) the
lack of a thumb safety device found on the taser but not on the firearm,
and (3) the failure to utilize the visible laser sight emitted once the taser’s
safety mechanism was disengaged.
 HENRY v. PURNELL 7
proof at the dual stages of the qualified immunity analysis.4
See id. at 383-84. Accordingly, we remanded the case for the
district court to "reassess the issue of whether a constitutional
violation occurred in light of the proper burden of proof and
the discovery materials that it ordered Purnell to produce." Id.
at 384. If Henry succeeded in "establishing that the seizure in
this case was unreasonable (i.e., that Purnell’s mistake in
using the Glock rather than the [t]aser was unreasonable)," we
indicated that Purnell would "have the opportunity to demon-
strate his entitlement to qualified immunity." Id.

On remand, Henry received the requested discovery relat-
ing to Purnell’s weapons training and the use of force policy.
Deputy Purnell then filed his third motion for summary judg-
ment, which emphasized that he had "no field training with,
or field use of, the [t]aser prior to the occurrence." J.A. at 115.
With this factor in mind, Purnell maintained that his mistaken
use of the firearm was reasonable, particularly as the holsters
issued by the sheriff’s department placed both the firearm and
the taser on the right side of his body.5

Henry opposed the motion by arguing that material facts
remained in dispute and that he had successfully established
a violation of the Fourth Amendment. On the merits, Henry
claimed that Deputy Purnell’s mistake was unreasonable
because he did not "comply with multiple police department
regulations," resulting in a "reckless failure to take steps to
avoid the impermissible use of excessive force." J.A. at 520-
21. Qualified immunity, in Henry’s view, was also improper
because it was clearly established that "reckless conduct on
4
We clarified that the plaintiff bears the burden of proof on the question
of whether the defendant’s conduct violated a constitutional right, while
the defendant bears the burden of proof on the question of whether that
right was clearly established at the time of the event. See Henry, 501 F.3d
at 377-78.
5
The holsters issued to Deputy Purnell placed the firearm on his right
hip and the taser on his right thigh.
8 HENRY v. PURNELL
the part of a police officer that directly leads to an accidental
or unintentional shooting violates the suspect’s Fourth
Amendment rights." Id. at 526. In any case, Henry maintained
that his state-law claim should survive a summary judgment
motion because statutory immunity under Maryland law
would apply only if a jury determined that Purnell’s conduct
was not "grossly negligent and/or reckless." Id. at 529.

The district court agreed with Purnell on the issue of rea-
sonableness and granted his motion for summary judgment.
See Henry v. Purnell, 559 F. Supp. 2d 648, 653 (D. Md.
2008). In reaching that conclusion, the district court framed
its analysis based on its understanding of the remand order
from this Court:

It is apparent from the opinion in Purnell II that
even when, in the Fourth Circuit’s view, the underly-
ing facts of the Henry/Purnell incident, viewed most
favorably to Henry, do not themselves give rise to an
inference that Purnell’s use of his Glock was unrea-
sonable. Otherwise, the court would have ruled (as
did I) that regardless of additional facts that might be
learned from discovery on the training issues, genu-
ine issues of material fact existed as to the reason-
ableness question. Therefore, I will focus my
analysis here upon whether any of the facts (and rea-
sonable inferences therefrom) that have been estab-
lished during the course of the additional discovery
would give rise to a finding of unreasonableness.

Id. at 652.

The court answered this last query in the negative after its
review of the additional discovery materials indicated "the
training that Purnell received concerning the use of a [t]aser
was quite minimal." Id. In ruling in Deputy Purnell’s favor,
the district court rejected Henry’s assertion that there were
factual issues related to Purnell’s failure to comply with his
 HENRY v. PURNELL 9
training, which precluded the court from granting judgment as
a matter of law. The court indicated, for example, that it was
"not reasonably inferable from the record that Henry would
have complied with" a verbal warning or command to stop or
be tased. Id. at 652 n.3. It also dismissed as "speculative"
Henry’s claim that had the visible laser sight been used, a rea-
sonable officer would have known that he had drawn his gun
and not his taser. Id. Furthermore, the court deemed reason-
able Deputy Purnell’s failure to note the lack of a thumb
safety mechanism on his Glock, but present on his taser,
because Purnell had developed an "instinctive thumb motion"
while previously using a handgun that incorporated a similar
device. Id.

Because Maryland courts construe Article 26 of the Mary-
land Declaration of Rights "in pari materia with the Fourth
Amendment," Jones v. State, 962 A.2d 393, 400 n.2 (Md.
2008), the district court’s determination that Henry failed to
establish a Fourth Amendment violation disposed of both his
federal and state law claims. The district court, therefore, did
not consider whether Deputy Purnell was entitled to immunity
under federal or state law. See Henry, 559 F. Supp. 2d at 649
n.1.

Henry timely appealed the district court’s judgment and we
have jurisdiction under 28 U.S.C. § 1291.

III.

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. See Canal Ins. Co. v. Distribu-
tion Servs., Inc., 320 F.3d 488, 491 (4th Cir. 2003); Dixon v.
Edwards, 290 F.3d 699, 710 (4th Cir. 2002). Summary judg-
ment is appropriate only if taking the evidence and all reason-
able 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."
10 HENRY v. PURNELL
Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir.
2003). Under this standard, courts in qualified immunity cases
usually adopt "the plaintiff’s version of the facts." Iko v.
Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (quotation omitted).

IV.

What is now before us is Henry’s challenge to the district
court’s order granting summary judgment in favor of Deputy
Purnell. Henry contends that the district court erred on two
grounds. First, he contends the district court erred in its
Fourth Amendment analysis by focusing only on the evidence
related to Deputy Purnell’s training, rather than on the totality
of the circumstances. See Opening Brief at 17. Second, Henry
maintains the district court erred in resolving disputed factual
issues in favor of Purnell and in failing to view the facts and
related inferences in the light most favorable to him. See id.
at 38-40.

Henry recognizes, however, that even if summary judgment
should not have been granted on his Fourth Amendment
claim, Purnell may still claim entitlement to qualified immu-
nity. Consequently, he also argues that Deputy Purnell vio-
lated clearly established law in using "deadly force against a
fleeing, unarmed, and non-dangerous suspect." Id. at 42. And
even if qualified immunity invalidates his federal claim,
Henry posits that his state law claim should survive summary
judgment because "[w]hether an officer’s actions are grossly
negligent, and therefore unprotected by statutory immunity, is
generally" a question reserved for the jury. Id. at 47.

Deputy Purnell responds that the short time period in which
he had to act and his unfamiliarity with the gun and taser ren-
dered his mistaken use of the firearm objectively reasonable.
See Response Brief at 19. Arguing that our prior decision in
this case "was the first to hold that the Fourth Amendment
was even implicated in the event of a mistaken application of
deadly force through weapon confusion," Purnell further
 HENRY v. PURNELL 11
asserts his entitlement to qualified immunity. Id. at 20. He
also seeks the protection of state statutory immunity based on
the absence of "evidence in [the] record of gross negligence."
Id.

We consider these arguments in turn.

A.

The Fourth Amendment’s prohibition on unreasonable
searches and seizures encompasses the right to be free of "sei-
zures effectuated by excessive force." Schultz v. Braga, 455
F.3d 470, 476 (4th Cir. 2006). Whether a degree of force is
reasonable is measured "by a standard of objective reason-
ableness." Clem v. Corbeau, 284 F.3d 543, 550 (4th Cir.
2002). Courts accordingly inquire "whether the officers’
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them." Graham v. Connor, 490
U.S. 386, 397 (1989). With this foundation in mind, we first
consider Henry’s argument that the district court erred in
focusing its Fourth Amendment analysis on the additional dis-
covery related to Deputy Purnell’s weapons training.

Properly applying the test of objective reasonableness
requires courts to give "careful attention to the facts and cir-
cumstances of each particular case." Id. at 396. The reason-
ableness of an officer’s use of force is a fact-bound question,
which turns on the "totality of the circumstances." Young v.
Prince George’s County, 355 F.3d 751, 757 (4th Cir. 2004).
Determining "what a ‘reasonable officer on the scene’ would
have done" thus depends on a careful weighing of all of the
relevant facts. Sigman v. Town of Chapel Hill, 161 F.3d 782,
787 (4th Cir. 1998) (quoting Graham, 490 U.S. at 396). In
other words, courts determining whether an application of
force is objectively reasonable must consider "‘the totality of
the circumstances,’" which includes (1) the severity of the
crime at issue, (2) whether the suspect posed an immediate
threat to the officer or others, and (3) whether the suspect was
12 HENRY v. PURNELL
attempting to resist or evade arrest. Graham, 490 U.S. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 9 (1985)). With all
of the relevant circumstances before it, a court may then prop-
erly balance an individual’s Fourth Amendment interests and
the Government’s countervailing law enforcement concerns.
See id.

Here, the district court "focus[ed]" its Fourth Amendment
analysis on whether "any of the facts . . . established during
the course of the additional discovery [gave] rise to a finding
of unreasonableness." Henry, 559 F. Supp. 2d at 652. In con-
fining its Fourth Amendment analysis to this limited factual
basis, we conclude the district court erred.

Our prior opinion remanded this case to afford Henry "the
opportunity to present all potentially relevant evidence"
before the district court decided whether he "met his burden
of establishing that [his] seizure . . . was unreasonable."
Henry, 501 F.3d at 384. Apart from our conclusion that Dep-
uty Purnell "seized" Henry within the meaning of the Fourth
Amendment, we rendered "no opinion on the ultimate merits
of the case" and did not circumscribe the full range of evi-
dence which a review of the totality of the circumstances
would require. Id. The district court, therefore, should not
have assumed that "the underlying facts of the Henry/Purnell
incident" were less relevant to its determination of the reason-
ableness of Purnell’s mistaken use of the firearm than "the
additional discovery" related to Purnell’s weapons training.
Henry, 559 F. Supp. 2d at 652.

The district court thus erred in limiting the scope of its
Fourth Amendment reasonableness analysis to the adequacy
of Deputy Purnell’s weapons training, instead of examining
the totality of the circumstances.

B.

Notwithstanding the district court’s error as to the totality-
of-the-circumstances standard used in evaluating the objective
 HENRY v. PURNELL 13
reasonableness of an officer’s conduct, the judgment may still
be affirmed if qualified immunity applies. The essential ques-
tion thus becomes whether Purnell is entitled to qualified
immunity, a doctrine which shields government actors from
liability if they establish either that (1) the plaintiff’s allega-
tions fail to make out a violation of a constitutional right, or
(2) the right at issue was not clearly established at the time of
the alleged misconduct. See Pearson v. Callahan, 129 S. Ct.
808, 815-16 (2009). In this case, Henry’s federal and state law
claims would both be invalidated if, as a matter of law, Pur-
nell’s mistaken use of his firearm was objectively reasonable
and therefore no constitutional right of Henry’s was violated.
See Melgar ex rel. Melgar v. Greene, 593 F.3d 348, 360 (4th
Cir. 2010) (noting that Article 26 of the Maryland Declaration
of Rights "is interpreted in pari materia with the Fourth
Amendment").

However, if an objective reasonableness determination
could not be made due to the existence of outstanding mate-
rial issues of fact, Purnell may still prevail on the federal
claim if the constitutional right that forms the basis for
Henry’s suit was not clearly established at the time of the
shooting. As explained below, our analysis of the second
prong of the qualified immunity inquiry may not dispose of
Henry’s state law claim. We therefore exercise our discretion
to employ the traditional, two-step qualified immunity proce-
dure laid down in Saucier v. Katz, 533 U.S. 193, 201 (2001)
to determine if Henry’s federal and state claims are resolved
by an analysis of his rights under the Fourth Amendment.6 See
Pearson, 129 S. Ct. at 818.
6
The Supreme Court’s recent decision in Pearson overruled that part of
Saucier which mandated that courts conduct the two-step qualified immu-
nity inquiry in sequential order. See Pearson, 129 S. Ct. at 813. Courts
now "have the discretion to decide whether that procedure is worthwhile"
and "determine the order of decisionmaking [that] will best facilitate the
fair and efficient disposition of each case." Id. at 821. Otherwise, Saucier
remains as binding precedent. As noted above, employing the full Saucier
analysis is prudent in this case due to the possible disparate treatment of
Henry’s federal and state claims.
14 HENRY v. PURNELL
Under Saucier, we first consider whether Henry’s allega-
tions make out the violation of a constitutional right, see 533
U.S. at 201, a question on which Henry bears the burden of
proof. See Henry, 501 F.3d at 377. The only constitutional
right at issue here is the Fourth Amendment right to be free
from seizures effectuated by excessive force. Establishing a
violation of that right requires Henry to demonstrate that "the
seizure in this case was unreasonable (i.e., that Purnell’s mis-
take in using the Glock rather than the [t]aser was unreason-
able)." Id. at 384; see also Milstead v. Kibler, 243 F.3d 157,
164-65 (4th Cir. 2001), abrogated on other grounds by Pear-
son, 129 S. Ct. at 818. This "reasonableness" inquiry is
undertaken "from the perspective of a reasonable officer on
the scene," bereft of "the 20/20 vision of hindsight."7 Graham,
490 U.S. at 396.

Qualified immunity does not "override the ordinary rules
applicable to summary judgment proceedings," Willingham v.
Crooke, 412 F.3d 553, 559 (4th Cir. 2005), nor does it "give
special substantive favor to the defense." Wilson v. Kittoe,
337 F.3d 392, 397 (4th Cir. 2003) (quotation omitted). Hence,
our longstanding instruction that courts "reserve[ ] for trial"
genuine issues of material fact relating to an "officer’s con-
7
Under the totality of the circumstances, we "gauge" Fourth Amend-
ment reasonableness by examining an officer’s actions and "measur[ing]
them against what a reasonable police officer would do under the circum-
stances." Schultz, 455 F.3d at 477 (quotations omitted). "[M]any situations
which confront officers in the course of executing their duties are more or
less ambiguous." Mazuz v. Maryland, 442 F.3d 217, 225 (4th Cir. 2006),
abrogated on other grounds by Pearson, 129 S. Ct. at 818. The Fourth
Amendment thus allows "for some mistakes" by officers, provided their
missteps are objectively reasonable. Id. To determine whether a mistake
is objectively reasonable, we "filter[ ]" the "objective facts . . . through the
lens of the officer’s perceptions at the time of the incident in question,"
focusing "on what the police officer reasonably perceived." Milstead, 243
F.3d at 163 (quotations omitted). "In short, 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." Id. at
165.
 HENRY v. PURNELL 15
duct or its reasonableness under the circumstances." Pritchett
v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). For summary
judgment to be appropriate, there must be "no genuine issues
of material fact" and the "undisputed facts" must establish that
"the defendant . . . is entitled to judgment as a matter of law."8
Id.

The record reflects, however, that unresolved questions of
material fact render a merits resolution of Henry’s excessive
force claim inappropriate for summary judgment, at least as
to the issue of objective reasonableness. See Melgar, 593 F.3d
at 356. The district court summarily dismissed Henry’s argu-
ments that a reasonable officer would have issued a warning
before attempting to fire his taser, and that the taser’s visible
laser sight and thumb lock would have caused a reasonable
officer to be aware that he had mistakenly drawn his firearm
instead. See Henry, 559 F. Supp. 2d at 652 n.3. We hold that
the district court’s reasoning in this regard was speculative; a
jury could legitimately view each of these factors differently,
particularly after considering the testimony of an expert wit-
ness. See, e.g., Wellington v. Daniels, 717 F.2d 932, 934 (4th
Cir. 1983) (recounting the testimony of "an expert on police
procedure and equipment"). At this stage of the proceeding,
there remain material factual issues in dispute on the failure
to warn, to utilize the laser sight, and to distinguish the differ-
ent safety locks, all of which are relevant to a decision on the
objective reasonableness of the seizure. The district court’s
determination that Deputy Purnell’s conduct was reasonable
as a matter of law was thus in error.
8
Although, as just noted, the district court employed the wrong standard
in evaluating the evidence on the question of objective reasonableness, we
may still uphold the district court’s judgment in Deputy Purnell’s favor if,
as a matter of law, no genuine issues of material fact remain outstanding.
See Pitt County v. Hotels.com, L.P., 553 F.3d 308, 311 (4th Cir. 2009)
(recognizing that we may affirm the district court’s judgment based "on
any grounds apparent from the record") (quotation omitted).
16 HENRY v. PURNELL
To be clear, we do not decide the merits of Henry’s claim
for excessive force (i.e., whether Purnell’s mistaken use of his
firearm was reasonable). See Henry, 501 F.3d at 384. We
merely recognize that "the issue before us on summary judg-
ment is fairly narrow." Schultz, 455 F.3d at 479. Because
material factual issues exist as to the reasonableness of Dep-
uty Purnell’s actions, summary judgment based on that issue
should not have been granted. See Clark v. Alexander, 85 F.3d
146, 150 (4th Cir. 1996).

C.

Having determined that the first prong of the Saucier
inquiry does not support the award of summary judgment to
Purnell, we now turn to the second prong. In that regard, the
Supreme Court has long emphasized that qualified immunity
is designed "to spare a defendant not only unwarranted liabil-
ity, but unwarranted demands customarily imposed upon
those defending a long drawn out lawsuit." Siegert v. Gilley,
500 U.S. 226, 232 (1991). Accordingly, the Court has "repeat-
edly . . . stressed the importance of resolving immunity ques-
tions at the earliest possible stage in litigation." Pearson, 129
S. Ct. at 815 (quotation omitted). We thus strive to avoid
"forc[ing] the parties to endure additional burdens of suit . . .
when the suit otherwise could be disposed of more readily."
Id. at 818 (quotation omitted).

Although "qualified immunity is an immunity from suit"
designed to be resolved at the "earliest possible stage" of the
case, id. at 815 (quotations omitted), the case at bar is now in
its sixth year and on its third appeal to this Court, see Henry,
501 F.3d at 374; Henry, 119 Fed. Appx. at 441. The history
of this case exemplifies the strong public policy justifications
for resolving the question of qualified immunity at the earliest
stage in the litigation. Moreover, both parties have asked that
we resolve the qualified immunity issue now. Clearly, resolv-
ing this purely legal issue at this time "will best facilitate the
 HENRY v. PURNELL 17
fair and efficient disposition of" the case.9 Pearson, 129 S. Ct.
at 821. Accordingly, we exercise our discretion to determine
whether a Fourth Amendment right, "in light of the specific
context of the case," was clearly established at the time of the
shooting. Saucier, 533 U.S. at 201; see, e.g., Edwards v. City
of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999).

The qualified immunity test originally set out by the
Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982)
has been expressed in a variety of ways. For example, the
Court has inquired whether "[t]he contours of" a plaintiff’s
asserted right were "sufficiently clear that a reasonable offi-
cial would understand that what he is doing violates that
right," i.e., whether "in the light of pre-existing law the
unlawfulness" of "an official action is . . . apparent." Ander-
son v. Creighton, 483 U.S. 635, 640 (1987). The Court has
also phrased "[t]he dispositive inquiry in determining whether
a right is clearly established [as] whether it would be clear to
a reasonable officer that his conduct was unlawful in the situ-
ation he confronted," Saucier, 533 U.S. at 202, or "whether a
reasonable officer could have believed that [his actions were]
lawful, in light of clearly established law and the information
[he] possessed." Wilson v. Layne, 526 U.S. 603, 615 (1999).

Regardless of which formulation is used, it is clear under
Saucier that the purpose of the qualified immunity inquiry is
"to ensure that before they are subjected to suit, officers are
on notice their conduct is unlawful."10 533 U.S. at 206. This
principle serves fundamental concerns of fairness: "Officers
9
See also Willingham, 412 F.3d at 559 (noting that the second prong of
the Saucier test "is always capable of decision at the summary judgment
stage," as "[t]he existence of disputed material facts . . . does not alter the
‘essentially legal’ nature of" our analysis (quotation omitted)).
10
See also Davis v. Scherer, 468 U.S. 183, 195 (1984) ("The qualified
immunity doctrine recognizes that officials can act without fear of harass-
ing litigation only if they reasonably can anticipate when their conduct
may give rise to liability for damages and only if unjustified lawsuits are
quickly terminated.").
18 HENRY v. PURNELL
sued in a civil action for damages under 42 U.S.C. § 1983
have the same right to fair notice as do defendants charged
with . . . criminal offense[s] . . . ." Hope v. Pelzer, 536 U.S.
730, 739 (2002). "[T]he qualified immunity test is simply the
adaptation of the fair warning standard to give officials (and,
ultimately, governments) the same protection from civil liabil-
ity and its consequences that individuals have traditionally
possessed in the face of vague criminal statutes." United
States v. Lanier, 520 U.S. 259, 270-71 (1997).

"That is not to say that an official action is protected by
qualified immunity unless the very action in question has pre-
viously been held unlawful . . . ." Hope, 536 U.S. at 739. A
right may be clearly established "even in novel factual cir-
cumstances," id. at 741, "but [i]f the law [does] not put the
officer on notice that his conduct would be clearly unlawful,
summary judgment based on qualified immunity is appropri-
ate." Saucier, 533 U.S. at 202. And rightly so, for the
Supreme Court has made clear "that the Harlow standard . . .
gives ample room for mistaken judgments," Malley v. Briggs,
475 U.S. 335, 343 (1986), "protecti[ng] . . . all but the plainly
incompetent or those who knowingly violate the law." Id. at
341.

In particular, the principles laid out by the Supreme Court
in Saucier guide the resolution of the case at bar. Saucier was
also a case where the plaintiff’s cause of action was based on
a claim of excessive force in violation of the Fourth Amend-
ment. See 533 U.S. at 198-99. The defendant police officer
moved for summary judgment on the grounds of qualified
immunity, but the district court denied the motion because
material facts remained in dispute on the excessive force
claim. See id. at 199. The district court held "that in the
Fourth Amendment context, the qualified immunity inquiry is
the same as the inquiry made on the merits." Id. (quotation
and alteration omitted). The Ninth Circuit agreed, concluding
"that qualified immunity is merely duplicative in an excessive
force case, eliminating the need for the second step where a
 HENRY v. PURNELL 19
constitutional violation could be found based on the allega-
tions." Id. at 203.

While the concurring opinion in Saucier approved this
methodology for establishing qualified immunity, see id. at
213-15 (Ginsburg, J., concurring in the judgment), the major-
ity of the Supreme Court flatly rejected it: "This approach
cannot be reconciled with Anderson v. Creighton, 483 U.S.
635 (1987)." Id. at 200. Writing for the majority, Justice Ken-
nedy explained:

The approach the Court of Appeals adopted—to
deny summary judgment any time a material issue of
fact remains on the excessive force claim—could
undermine the goal of qualified immunity to "avoid
excessive disruption of government and permit the
resolution of many insubstantial claims on summary
judgment." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). If the law did not put the officer on notice
that his conduct would be clearly unlawful, summary
judgment based on qualified immunity is appropri-
ate. See Malley v. Briggs, 475 U.S. 335, 341 (1986)
(qualified immunity protects "all but the plainly
incompetent or those who knowingly violate the
law").

Id. at 202.11

Specifically, the Supreme Court rejected the argument
advanced by the minority concurring opinion that "[o]nce it
has been determined that an officer violated the Fourth
Amendment by using ‘objectively unreasonable’ force as that
term is explained in Graham v. Connor, there is simply no
11
The restriction noted in Malley has no application in the case at bar
because Henry neither pleads, nor would the record support, a claim that
Purnell’s actions were those of an officer who was "plainly incompetent"
or "who knowingly violated the law."
20 HENRY v. PURNELL
work for a qualified immunity inquiry to do." Id. at 216-17
(Ginsburg, J., concurring in the judgment). To the contrary,
the Supreme Court explicitly held that "[t]he inquiries for
qualified immunity and excessive force remain distinct, even
after Graham." Id. at 204.

Until such time as the Supreme Court changes the judicial
framework of the qualified immunity defense, we are bound
to follow its direction. And that direction after Saucier is
clear: In the context of a claimed Fourth Amendment viola-
tion for the use of excessive force, when the objective reason-
ableness of the official’s actions cannot yet be determined, an
analysis of the qualified immunity defense based on whether
the law is "clearly established" is a separate and required judi-
cial action.12

The contours of that qualified immunity inquiry were laid
out in Saucier.

This inquiry, it is vital to note, must be undertaken
in light of the specific context of the case, not as a
broad general proposition . . . .
12
As the parties have agreed, this case requires no additional factual
determinations in order to resolve the qualified immunity issue. All neces-
sary facts are before us so that the question of qualified immunity can and
should be answered. We have established that "[t]he existence of disputed
material facts—which must be submitted to a jury—does not alter the
essentially legal nature of the question of whether the right at issue was
clearly established." Willingham, 412 F.3d at 559 (internal citation and
quotation omitted). And "the legal question of a defendant’s entitlement
to qualified immunity under particular set of facts" is "decided by the
court, not by the jury" because "juries are ill-suited to make the determina-
tions of law required by the qualified immunity analysis." Id. at 560. We
may, therefore, always resolve "the purely legal question of whether the
constitutional right at issue was clearly established . . . at the summary
judgment stage," id. at 559 (quotation omitted), as "[e]ntitlement to quali-
fied immunity is a legal question . . . decided [by] the court." Int’l Ground
Transp., Inc. v. Mayor & City Council of Ocean City, 475 F.3d 214, 220
n.3 (4th Cir. 2007).
 HENRY v. PURNELL 21
. . . . [W]e emphasized in Anderson "that the right
the official is alleged to have violated must have
been ‘clearly established’ in a more particularized,
and hence more relevant, sense: The contours of the
right must be sufficiently clear that a reasonable offi-
cial would understand that what he is doing violates
that right." 483 U.S. at 640. The relevant, dispositive
inquiry in determining whether a right is clearly
established is whether it would be clear to a reason-
able officer that his conduct was unlawful in the situ-
ation he confronted. See Wilson v. Layne, 526 U.S.
603, 615 (1999) ("[A]s we explained in Anderson,
the right allegedly violated must be defined at the
appropriate level of specificity before a court can
determine if it was clearly established[.]").

Id. at 201-02.

In the case at bar, Henry and the dissent contend the appro-
priate level of inquiry is whether "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 others violates that suspect’s Fourth
Amendment rights." Dissent at 30 (quotation omitted); see
also Opening Brief at 42. However, this is where their argu-
ment goes off track and is reminiscent of the concurring opin-
ion in Saucier, which is not the controlling law.13
13
The dissent applies the second prong of the Saucier test at a high level
of generality and thus reaches a result that "bear[s] no relationship to the
‘objective legal reasonableness’ that is the touchstone of Harlow." Ander-
son, 483 U.S. at 639. In so doing, it compounds the error made by the
Eighth Circuit in Anderson, i.e., refusing to consider whether a constitu-
tional violation "was . . . clearly established [in] the circumstances with
which [the officer] was confronted." Id. at 640. But, as the Supreme Court
has explained, determining whether qualified immunity applies requires
"more than an assertion that [the] general right [Purnell] was alleged to
have violated . . . was clearly established." Id. "[T]he right the official is
alleged to have violated must have been ‘clearly established’ in a more
particularized, and hence more relevant, sense." Id.
22 HENRY v. PURNELL
A reasonable police officer would know that shooting an
unarmed suspect fleeing on a misdemeanor child support war-
rant, without more, would constitute use of excessive force
contrary to the Fourth Amendment. But if that very general-
ized view was all it took to show "clearly established law" in
the qualified immunity context, then the inquiry on the second
Saucier prong would be a useless exercise. Put simply, con-
text matters. The Supreme Court spoke plainly to this point in
Anderson:

The operation of [the qualified immunity] stan-
dard . . . depends substantially upon the level of gen-
erality at which the relevant "legal rule" is to be
identified. For example, the right to due process of
law is quite clearly established by the Due Process
Clause, and thus there is a sense in which any action
that violates that Clause (no matter how unclear it
may be that the particular action is a violation) vio-
lates a clearly established right. Much the same
could be said of any other constitutional or statutory
violation. But if the test of "clearly established law"
were to be applied at this level of generality, it
would bear no relationship to the "objective legal
reasonableness" that is the touchstone of Harlow.
Plaintiffs would be able to convert the rule of quali-
fied immunity that our cases plainly establish into a
rule of virtually unqualified liability simply by alleg-
ing violation of extremely abstract rights. Harlow
would be transformed from a guarantee of immunity
into a rule of pleading. Such an approach, in sum,
would destroy "the balance that our cases strike
between the interests in vindication of citizens’ con-
stitutional rights and in public officials’ effective
performance of their duties," by making it impossi-
ble for officials "reasonably [to] anticipate when
their conduct may give rise to liability for damages."
Davis, supra, 468 U.S. at 195.
 HENRY v. PURNELL 23
483 U.S. at 639-40.

If the level of generality advanced by Henry were to apply,
Anderson would have been decided differently. The simple
truism that a reasonable officer would know in the abstract
that a warrantless search of a home without probable cause
and exigent circumstances violated the Fourth Amendment
would be all that was needed. However, in Anderson, this
level of generality was rejected because it failed to account
for the fact

that it was not clearly established that the circum-
stances with which Anderson was confronted did not
constitute probable cause and exigent circumstances.
...

. . . . The relevant question in th[at] case, for exam-
ple, [was] the objective (albeit fact-specific) question
whether a reasonable officer could have believed
Anderson’s warrantless search to be lawful, in light
of clearly established law and the information the
searching officers possessed.

Id. at 640-41.

Similarly, in Saucier, a reasonable officer would know, in
the abstract, that use of excessive force to remove a demon-
strator would violate the Fourth Amendment. See 533 U.S. at
201-02. However, that over-simplified, generalized approach
to the qualified immunity inquiry was adjudged faulty
because it utterly failed to apply a level of specificity to the
particular circumstances of the case. As with Anderson, had
Henry’s generalized formulation of the qualified immunity
inquiry applied, Saucier would have been decided differently.
The Supreme Court has been clear that only in the "specific
context of the case," id. at 201, can the issue of qualified
immunity be properly determined.
24 HENRY v. PURNELL
The formulation of the scope of the qualified immunity
inquiry by Henry and the dissent fails to take account of the
"specific context of the case." Id. That context is not simply
that Henry was shot, but also that it is a stipulated fact that the
shooting was an unintended mistake by Purnell. Furthermore,
as our previous decision in this case established, "Henry does
not argue that Purnell’s decision to use the [t]aser was unrea-
sonable." 501 F.3d at 382 n.11.

Thus, the specific context of this case is where a police
officer, who would have acted reasonably in using the taser
to apprehend Henry, draws his firearm by mistake and unin-
tentionally shoots Henry instead.14 The qualified immunity
inquiry thus becomes whether an officer in that "specific con-
text" would know that an act of weapon confusion of the fire-
arm for the taser was "clearly established" as an excessive use
of force under the Fourth Amendment. The answer is that nei-
ther in 2003, nor indeed today, is there clearly established law
to resolve that question for courts, much less police officers
in the field. At the time of the shooting, case law did not exist
that applied the Fourth Amendment to the specific context in
which Deputy Purnell acted. Deputy Purnell could not have
been on notice because no case gave him fair warning that
such weapon confusion violated the Fourth Amendment as a
use of excessive force.15
14
We recognize that whether tasing Henry without a warning is an open
question in the objective reasonableness inquiry, however, the validity of
using a taser to apprehend Henry is not an open question and is the law
of the case. See TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009)
(explaining that "once the decision of an appellate court establishes the
law of the case" it generally "must be followed in all subsequent proceed-
ings in the same case in the trial court or on a later appeal" (quotation
omitted)).
15
The dissent contends the application of the second Saucier prong in
this case "transforms the doctrine of qualified immunity into a subjective
inquiry." Dissent at 30. We might agree with the dissent on this point but
for the specific, and perhaps unique, admitted facts of this case. It is stipu-
lated that Deputy Purnell’s drawing of his firearm, instead of the taser,
 HENRY v. PURNELL 25
We agree with the District Court in Torres v. City of Mad-
era, 655 F. Supp. 2d 1109 (E.D. Cal. 2009), which considered
the nearly identical question of firearm for taser weapon con-
fusion, that the police officer is entitled to qualified immunity.16
"At the time of the . . . shooting there was no clearly estab-
lished federal law on what would make an officer’s mistaken
use of her gun instead of her [t]aser unreasonable." 655 F.

was a good-faith, unintentional mistake of weapon confusion. Thus, the
inquiry in the case at bar is based upon an objective fact about which there
is no dispute, the weapons were confused. This inquiry does not require
the district court to determine any fact based on a subjective thought of the
officer. See also infra note 18.
16
The dissent sees as contradictory our simultaneous conclusions "that
the district court erred in finding that [Purnell’s] mistake was reasonable"
and that Purnell is nonetheless "entitled to qualified immunity." Dissent at
30. This critique fails, however, because it is based on the unwarranted
assumption that Purnell’s "mistaken conduct was unreasonable for Fourth
Amendment purposes." Id. at 31; see also id. at 30 (referring to Purnell’s
"unreasonable mistake"); id. at 32 (asserting we have disregarded Pur-
nell’s "objectively unreasonable mistake"); id. at 34 (claiming that an "un-
reasonable [mistake] . . . cannot be the basis for excusing an officer’s
conduct during the qualified immunity inquiry"); id. at 34 (stating that an
"officer who unreasonably mistakes his gun for his taser cannot claim that
his error was based on his reasonable failure to apply the law to the spe-
cific facts he faced"); id. at 36 (labeling Purnell’s actions "objectively
unreasonable in light of the suspect’s specific conduct and the crime that
suspect allegedly committed").
As explained above, the present record does not support a judicial deter-
mination as to the objective reasonableness of Deputy Purnell’s actions.
In so much as material issues of fact remain outstanding, we cannot now
resolve the legal question of whether Purnell’s actions complied with the
Fourth Amendment until these issues are resolved by the finder of fact.
See Willingham, 412 F.3d at 560 (acknowledging that "the district court
should submit factual questions to the jury and reserve for itself the legal
question of whether the defendant is entitled to qualified immunity on the
facts found by the jury"). Our holding that the district court erred in
resolving the Fourth Amendment question rests, therefore, not on the
assumption that Purnell’s mistake was unreasonable, but only on a faithful
application of the standard for summary judgment established by Federal
Rule of Civil Procedure 56.
26 HENRY v. PURNELL
Supp. 2d at 1125. In that circumstance, no police officer
would have "fair notice" that a mistake of weapon confusion
contravened "clearly established" law.17

Although we cannot say whether Deputy Purnell’s mis-
taken use of his firearm was objectively reasonable under the
circumstances, we can say that Purnell lacked "fair notice"
regarding the potential unlawfulness of his actions. Hope, 536
U.S. at 739. At the second stage of the Saucier inquiry, "[t]he
decisive fact is not" whether an officer’s position was correct,
"but that the question was open at the time he acted." Mitchell
v. Forsyth, 472 U.S. 511, 535 (1985).

The lawfulness of Deputy Purnell’s conduct was thus "open
to reasonable dispute" at the time of the shooting, and officers
are personally liable only "for transgressing bright lines," not
for intruding into "gray areas." Wilson, 337 F.3d at 403 (quo-
tation omitted). Consequently, Deputy Purnell is entitled to
summary judgment in his favor on Henry’s § 1983 claim.18
17
The dissent relies on Floyd v. City of Detroit, 518 F.3d 398 (6th Cir.
2008) to support its conclusion that Deputy Purnell is not entitled to quali-
fied immunity and contends that case is "legally indistinguishable from
this one." Dissent at 33. The undisputed factual basis of Floyd, however,
differs significantly from the case at bar. The officer in Floyd, for exam-
ple, intended to shoot the suspect in circumstances in which "his purported
conduct was patently unreasonable." Floyd, 518 F.3d at 409; see also id.
at 408 ("[Officer] Reynoso’s purported belief that [Officer] Quaine had
been shot by an unarmed suspect . . . rested solely on [Officer] Reynoso’s
observation of [Officer] Quaine taking cover."). In these circumstances, it
is hardly surprising that the Sixth Circuit concluded that Floyd’s "right to
be free from such excessive force was clearly established on the date in
question." Id. at 409. Deputy Purnell, in contrast, did not intend to shoot
Henry and the reasonableness of his mistake is a much closer question.
18
The dissent posits that our resolution of the qualified immunity issue
must be erroneous because if the parties had not agreed that Purnell’s use
of the gun, instead of the taser, was a "good-faith error," a trial would be
required. Dissent at 31. Thus, the dissent argues our "analysis cannot be
. . . correct . . . because it is incapable of resolving mistaken-shooting
claims at the earliest possible stage in litigation." Id. (quotation omitted).
We respectfully disagree.
 HENRY v. PURNELL 27
See Saucier, 533 U.S. at 202 ("If the law did not put the offi-
cer on notice that his conduct would be clearly unlawful, sum-
mary judgment based on qualified immunity is appropriate.").

We do not find Henry’s contrary argument based on Groh
v. Ramirez, 540 U.S. 551 (2004) persuasive. Henry cites Jus-
tice Kennedy’s dissenting opinion in Groh for the proposition
that "[m]istakes of fact can be relevant to the second prong of
the qualified immunity analysis only when they affect the
officer’s assessment of the legality of his conduct." Opening
Brief at 43 n.15 (citing Groh, 540 U.S. at 566-67 (Kennedy,
J., dissenting)). Because "Deputy Purnell has not suggested
that anything about the situation before him misled him to
believe that he could permissibly use deadly force," id., Henry
argues that Deputy Purnell’s intent to employ his taser "does
not change the analysis under the second prong of the quali-
fied immunity inquiry." Id. at 42.

Henry’s argument is misplaced for at least three reasons.
First, Purnell’s seizure of Henry occurred in 2003, a year
before the Supreme Court issued its opinion in Groh. Any
application of Groh is, therefore, irrelevant to our analysis of
clearly established law at the time of Purnell’s alleged mis-
conduct. See Hope, 536 U.S. at 739 (noting that courts con-
sider whether a right is clearly established "in the light of pre-
existing law" (quotation omitted)) (emphasis added). Second,
we have found no support for the proposition that a dissent

Of course, material facts must be established in order for a court to
determine whether qualified immunity applies in any given situation. If
the parties’ pleadings disputed whether Purnell made a good faith error of
weapon confusion, summary judgment could not proceed because material
facts would be in dispute. Put simply, "the earliest possible stage in litiga-
tion" for application of the qualified immunity analysis would not have
arrived. However, once the fact of good faith error has been objectively
established, as by stipulation in this case, there is no barrier to the resolu-
tion of the second prong of Saucier.
28 HENRY v. PURNELL
may propound clearly established law for purposes of deter-
mining qualified immunity.

Third, even if we were to assume that Henry has correctly
stated the relevant law, Deputy Purnell’s mistake of fact did
affect his "assessment of the legality of his conduct." Opening
Brief at 43 n.15. The mistake of fact at issue here is Purnell’s
mistaken belief that he was firing his taser, instead of his fire-
arm. And this mistake clearly influenced Purnell’s assessment
of the legality of his conduct. Purnell has never asserted that
he could permissibly use deadly force to halt Henry’s flight,
but he has consistently argued that his intended use of a taser
was appropriate. See, e.g., Response Brief at 49-50. As noted
earlier, "it is undisputed that [Purnell’s] intended use of . . .
force was justified: Purnell had the right to use his [t]aser to
detain Henry, a suspect fleeing arrest."19 Henry, 559 F. Supp.
2d at 651-52 (emphasis in original); see also Henry, 501 F.3d
at 382 n.11 ("Henry does not argue that Purnell’s decision to
use the [t]aser was unreasonable."). Henry’s argument based
on Groh, which he identified as his "best case" on the ques-
tion of qualified immunity, is thus without merit.

V.

The test for statutory immunity under Maryland law differs
significantly from the qualified immunity analysis applicable
under federal law. See Melgar, 593 F.3d at 360. Henry’s
claim under the Maryland Constitution’s Declaration of
19
In this appeal, Henry argues for the first time that Purnell’s intended
use of his taser was itself potentially unreasonable. See, e.g., Opening
Brief at 18 ("[I]t is a jury question whether Deputy Purnell could have rea-
sonably used his [t]aser on Mr. Henry."). This claim has clearly been
waived. See United States v. Evans, 404 F.3d 227, 236 n.5 (4th Cir. 2005)
(recognizing that failure to raise an argument before the district court
waives that argument on appeal). Accordingly, we do not consider it. See
United Rentals, Inc. v. Angell, 592 F.3d 525, 531 n.3 (4th Cir. 2010)
("Because this argument is raised for the first time on appeal, we do not
consider it.").
 HENRY v. PURNELL 29
Rights is, therefore, not resolved by our analysis of his federal
claim. As the Court of Appeals of Maryland has explained,
"[u]nlike qualified immunity from claims of violations of fed-
eral 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).

Statutory immunity applies to Maryland state personnel
who commit "a tortious act or omission . . . within the scope
of the[ir] public duties," provided the act or omission "is
made without malice or gross negligence." Okwa v. Harper,
757 A.2d 118, 128 (Md. 2000) (quotation omitted). To com-
mit "gross negligence," a wrongdoer must "inflict[ ] injury
intentionally" or be "so utterly indifferent to the rights of oth-
ers" as to "act[ ] as if such rights d[o] not exist." Newell, 967
A.2d at 764-65 (quotation omitted).

We, therefore, reverse the district court’s grant of summary
judgment on Henry’s state-law claim and remand to the dis-
trict court, which may then determine whether to exercise
supplemental jurisdiction over that claim. See Yashenko v.
Harrah’s N.C. Casino Co., LLC, 446 F.3d 541, 553 n.4 (4th
Cir. 2006) (explaining that once the "federal claims in an
action" are dismissed the district court possesses "wide discre-
tion to dismiss the supplemental state law claims over which
it properly has supplemental jurisdiction") (quotation omit-
ted). If the district court chooses to exercise supplemental
jurisdiction over Henry’s state-law claim, it may then deter-
mine whether Purnell is entitled to statutory immunity under
Maryland law.

VI.

For the reasons set forth above, we affirm in part and
reverse in part the judgment of the district court, and remand
for further proceedings consistent with this opinion.
30 HENRY v. PURNELL
AFFIRMED IN PART,
REVERSED IN PART, AND
REMANDED WITH INSTRUCTIONS

GREGORY, Circuit Judge, dissenting:

Under clearly established law, 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 others" violates that suspect’s Fourth
Amendment rights. Tennessee v. Garner, 471 U.S. 1, 3
(1985). In this case, Officer Purnell shot a fleeing suspect
whom he had no reason to believe was a threat to anyone.
And yet the majority holds that Officer Purnell is entitled to
qualified immunity because he discharged his firearm by mis-
take, even though the majority simultaneously admits that the
district court erred in finding that the mistake was reasonable.
By allowing an unreasonable mistake to serve as the basis for
establishing qualified immunity and focusing its inquiry on
Officer Purnell’s intent rather than his or the suspect’s objec-
tive behavior, the majority impermissibly transforms the doc-
trine of qualified immunity into a subjective inquiry that
excuses, not guides, reasonable officer conduct.

In its opinion, the majority frames the inquiry as:

whether an officer in that "specific context" would
know that an act of weapon confusion of the firearm
for the taser was "clearly established" as an exces-
sive use of force under the Fourth Amendment.

Maj. Op. at 24. In other words, the majority ignores what a
reasonable officer would have known about the situation he
faced and instead paradoxically asks whether this specific
officer would know that he could not unreasonably confuse
his gun for his taser. This is not the correct inquiry.

Qualified immunity protects officers who commit constitu-
tional violations but who, in light of clearly established law,
 HENRY v. PURNELL 31
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); Anderson v.
Creighton, 483 U.S. 635, 639 (1987); Harlow v. Fitzgerald,
457 U.S. 800, 819 (1982). Crucially, though, an officer’s sub-
jective belief about the nature of his conduct is "irrelevant"
for qualified immunity purposes. Anderson, 483 U.S. 641.
Courts are charged with asking only whether the officer’s
actual conduct, in light of the objective circumstances, was
barred by clearly established law. See Saucier, 533 U.S. at
202 (explaining that the relevant question for qualified immu-
nity purposes is "whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he con-
fronted" (emphasis added)). The majority fundamentally errs,
then, by focusing its inquiry on Officer Purnell’s intended
conduct, rather than his actual conduct, given that it must
accept that the mistaken conduct was unreasonable for Fourth
Amendment purposes.

The fact that "qualified immunity is ‘an immunity from suit
rather than a mere defense to liability [that] is effectively lost
if a case is erroneously permitted to go to trial,’" Pearson, 129
S. Ct. at 815 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)) (internal alterations omitted), demonstrates that
unreasonable volitional or cognitive mistakes cannot be a part
of the qualified immunity inquiry. The parties before us con-
cede that Officer Purnell made a good-faith error when he
deployed his gun rather than his taser. But suppose the offi-
cer’s subjective intent were in dispute, with the officer claim-
ing that he made a mistake and the suspect alleging that he
was shot intentionally. In that case, under the majority’s anal-
ysis, the district court would have to hold a trial in order to
resolve the qualified immunity issue. At base the majority’s
analysis cannot be the correct test because it is incapable of
resolving mistaken-shooting claims "at the earliest possible
stage in litigation." Id. (quoting Hunter v. Bryant, 502 U.S.
224, 227 (1991) (per curiam)).
32 HENRY v. PURNELL
The majority is also quite wrong to claim that disregarding
Officer Purnell’s objectively unreasonable mistake while con-
ducting the qualified immunity inquiry would lead to a result
contrary to that reached by the Supreme Court in Saucier or
Anderson. In Saucier, the Court considered whether an officer
who dragged and shoved a suspect who attempted to cross a
barrier separating the public from the Vice President of the
United States, violated the suspect’s clearly established rights.
533 U.S. at 208. Given existing precedent that allowed for
some degree of physical force when making an arrest and
given the particularly dangerous threat the suspect may have
posed, the Court held that a reasonable officer could believe
that his actions were legal. Id. The Court’s inquiry focused
squarely on the specific conduct of the officer and the suspect
and how a reasonable person would view those actions, with-
out any regard for what the officer thought he was doing.

Likewise, in Anderson, the Court considered a police offi-
cer’s warrantless search of the plaintiffs’ home undertaken
with the mistaken belief that a suspected bank robber was
present. 483 U.S. at 637. In finding that the broad rule that
warrantless home searches conducted without probable cause
or exigent circumstances was insufficient to put a reasonable
officer on notice that his conduct was illegal in these circum-
stances, the Court explained that the relevant inquiry was
whether the objective circumstances could be considered exi-
gent or could establish probable cause. Id. at 640-41. The
Court specifically emphasized, though, that the officer’s "sub-
jective beliefs about the search are irrelevant." Id. at 641.
Once again, the relevant analytical tool, the Court made clear,
is the application of established legal principles to objective
conduct, not subjective thoughts.

Applying Saucier and Anderson to this case, it is clear what
the proper qualified immunity analysis should look like.
Under settled law, a police officer may not shoot a fleeing
suspect unless the officer has probable cause to believe that
the suspect is dangerous. Garner, 471 U.S. at 11. Therefore,
 HENRY v. PURNELL 33
Officer Purnell would only be entitled to qualified immunity
if a reasonable officer could believe that Garner was inappli-
cable given the suspect’s objective behavior or his own,
objective conduct.* Once the court determines that Officer
Purnell’s mistaken use of his gun was unreasonable under the
Fourth Amendment, it should ask whether a reasonable offi-
cer could believe that his actual conduct complied with
Garner given what the suspect actually did. But both Ander-
son and Saucier make clear that the qualified immunity
inquiry does not ask what the officer subjectively and unrea-
sonably thought his or the suspect’s conduct to have been.

The Sixth Circuit demonstrated this analysis in a mistaken-
shooting case that is legally indistinguishable from this one.
In Floyd v. City of Detroit, 518 F.3d 398 (6th Cir. 2008), the
defendant police officer claimed that he shot an unarmed sus-
pect under the mistaken belief that the suspect had fired at a
fellow officer. Id. at 408. Having determined that the officer’s
mistaken belief was unreasonable, the Sixth Circuit denied
him qualified immunity and refused to apply a second level
of deference to that mistake. Id. As the court noted when
applying Saucier:

the failure of both officers to properly assess the
reality of the situation they created before employing
deadly force without warning against an unarmed

*I do not say, as the majority claims, that there is no room for a quali-
fied immunity analysis in excessive or deadly force cases. My point is,
rather, that the inquiries are fundamentally different. Officer Purnell
would still be entitled to qualified immunity in this case if his actual con-
duct were reasonable, even if unlawful, under the circumstances. He
could, for instance, argue that he reasonably believed that Henry was dan-
gerous, even though he lacked probable cause to shoot him. Or that he rea-
sonably believed that Garner did not apply to suspects fleeing in the
specific manner in which Henry fled. But he cannot successfully argue
that his intended conduct would have been legal, given that his failure to
do that which he intended was objectively unreasonable. Accepting this
argument requires us to extend qualified immunity to the "plainly incom-
petent." See Malley v. Briggs, 475 U.S. 335, 341 (1986).
34 HENRY v. PURNELL
suspect cannot shield them from liability unless that
failure was objectively reasonable.

Id. Once a mistake is found to be unreasonable, it cannot be
the basis for excusing an officer’s conduct during the quali-
fied immunity inquiry.

For the majority to then claim that the "specific context"
that mattered in Saucier or Anderson was the subjective char-
acteristics or intentions of the officer is a classic bait-and-
switch. More importantly, it transforms qualified immunity
from a rule designed to guide reasonable officers’ conduct
and, in turn, hold officers accountable for not conforming
their conduct to a reasonable interpretation of that guidance,
into a rule that can be used to simply excuse all subjective
deviations from the normal standard of care.

Qualified immunity guides and protects reasonable officers
acting in grey areas of the law by "allow[ing] some room for
discretionary judgment in what are indisputably difficult cir-
cumstances." Melgar ex rel. Melgar v. Greene, 593 F.3d 348,
357 (4th Cir. 2010). Importantly, the hypothetical reasonable
officer must knowingly judge the legality of his conduct, pre-
cisely because the qualified immunity standard assumes that
public officials will be guided by the law that has been clearly
established. Harlow, 457 U.S. at 818. An officer who unrea-
sonably mistakes his gun for his taser cannot claim that his
error was based on his reasonable failure to apply the law to
the specific facts he faced. Any further consideration of his
subjective and unreasonable failure to know that he was using
deadly force therefore is incompatible with the assumption
underlying qualified immunity that officers are guided by the
law.

If courts, when conducting the qualified immunity analysis,
must consider an officer’s subjective propensities, then the
analysis ceases to guide the reasonable officer. Once courts
begin to consider each individual officer’s experience — her
 HENRY v. PURNELL 35
years on the force, her Intelligence Quotient, whether or not
she suffers from attention deficit disorder — and consider
how an officer with those characteristics would behave in a
given factual scenario, then it is difficult to conceive of a case
in which an officer would ever be denied qualified immunity.
Qualified immunity becomes simply a post-hoc rationaliza-
tion, not a guide for future conduct.

***

The doctrine of qualified immunity is a judge-made rule
designed to strike the classic balance between freedom and
security. See Pearson, 129 S. Ct. at 815 (noting that qualified
immunity balances "the need to hold public officials account-
able when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability
when they perform their duties reasonably"). When an officer,
for example, pursues a fleeing suspect into a private residence
or apprehends a suspect who reasonably appears to be menac-
ing the Vice President, it is easy enough to see how and why
the balance favors the officer. Where the constitutional ques-
tion is close, the harm done to society when an officer is
impeded by the threat of financial liability from doing that
which he reasonably believes is legal and necessary to seize
dangerous criminals, outweighs the harm done to the individ-
ual whose rights are marginally violated.

But this balance cannot be squared with an officer’s unrea-
sonable use of deadly force. We sacrifice both liberty and
security when we allow police officers to shoot unarmed sus-
pects without any reasonable basis for doing so. Police offi-
cers operating under stressful conditions requiring quick
thinking have every right to know that their reasonable mis-
takes as to the law and relevant facts will be excused. But
once it is determined that their legal and factual conclusions
were unreasonable, we should not then ask the unanswerable,
as the majority does when asking whether an officer unrea-
36 HENRY v. PURNELL
sonably prone to accidents would have known that his unrea-
sonableness was unreasonable under the circumstances.

As Justice Holmes put it in his seminal work, "The law
takes no account of the infinite varieties of temperament,
intellect, and education which make the internal character of
a given act so different in different men." Oliver Wendell
Holmes, Jr., The Common Law 108 (Little, Brown, & Co.
1909) (1881). Unlike the "courts of Heaven," our courts of
law require officials to conform to objective rules and objec-
tive facts, regardless of whether they are "born hasty and awk-
ward, [are] always having accidents and hurting [themselves]
or [their] neighbors." See id.

Officer Purnell failed to conform his conduct to the
Supreme Court’s specific mandate that police not use deadly
force against suspects who are unarmed and who pose no
threat to the officer or others. He did so in circumstances that
were objectively unreasonable in light of the suspect’s spe-
cific conduct and the crime that suspect allegedly committed.
We have no power to excuse that conduct simply because
Officer Purnell’s failure to behave as a reasonable officer was
an accident.

I respectfully dissent.