concurring and dissenting:
I agree that the district court correctly dismissed plaintiffs’ claim against Anne Arundel County, and to that extent I concur in the majority opinion. But I think that the district court committed plain error in instructing the jury that the individual defendants could avail themselves of the defense of good faith. Further, I think that even if the qualified or good faith immunity defense were available, the district court committed plain error in misstating the law governing the defense. Finally, I think that the district court erred in directing a verdict for defendants on plaintiffs’ claim that their rights were violated by the entry into their home and that their deceased son’s rights were violated by an unlawful arrest. I respectfully dissent. Except with respect to the County, I would reverse and grant a new trial.
*1018I.
The jury was instructed correctly, albeit redundantly, that plaintiffs were entitled to recover on their claim under 42 U.S.C. § 1983 if the jury found that the police officers in arresting the deceased had used “more or greater force or means on the decedent, Peter Vizbaras, than would have appeared to a reasonable person in like circumstances to be necessary in order to accomplish any lawful purpose or purposes intended.” But then the jury was instructed, as quoted in the majority opinion, that “defendants ... may avail themselves of the defense of good faith” and that “[p]ol-ice officers as officers of a state have a realistic good faith belief in their action, and the reasonableness of their action, if at the time of the incident, they believe their conduct to be constitionally [sic] permissible and that such belief is reasonable.” Finally, in the course of instructing the jury with regard to plaintiffs’ negligence claim, the district court again adverted to plaintiffs’ § 1983 cause of action saying that
[t]he defendant is not immune from liability for damages under Section 1983 if he knew or reasonably should have known that the action he took within the sphere of official responsibility would violate the constitutional rights of the person affected. The defendant must prove that he believed in good faith that his conduct was lawful, and that his belief itself was reasonable.
I perceive two reversible errors in these instructions. First, I think that the district court should not have submitted the issue of qualified immunity to the jury. Second, even if submitted, the district court’s formulation of the doctrine was legally incorrect.1
II.
The controlling authority on application of the doctrine of qualified immunity is Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). There the Supreme Court unequivocally said that “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Id. at 818-19, 102 S.Ct. at 2738-39.2 In my view, the law on April 17, 1982, the date of the decedent’s arrest and tragic death, was and still is “clearly established” that police officers may not subject a person to unreasonable and excessive force measured by an objective standard when taking him into custody. King v. Blankenship, 636 F.2d 70 (4 Cir.1980); Ridley v. Leavitt, 631 F.2d 358 (4 Cir.1980); Jenkins v. Averett, 424 F.2d 1228 (4 Cir.1970). Thus the only issue to be submitted to the jury, as the jury was initially correctly instructed, was whether “more or greater force” was applied to the decedent in effecting his arrest “than would have appeared to a reasonable person in like circumstances to be necessary in order to accomplish any lawful purpose or purposes intended.”3 Defendants’ good faith belief, *1019measured objectively or subjectively, was not an issue. Therefore I am impelled to conclude that the jury was misled as to the proper basis on which to decide the case and its verdict for defendants and the judgment entered thereon should not be permitted to stand.4
I agree with plaintiffs that even if a qualified immunity defense instruction were proper, the district court misstated the applicable law by improperly introducing a subjective test. Except for McElveen v. County of Prince William, 725 F.2d 954 (4 Cir.), cert. denied, — U.S. -, 105 S.Ct. 88, 83 L.Ed.2d 35 (1984), we have consistently read Harlow as eliminating the subjective element from the defense, and we have focused instead on whether the challenged conduct violated clearly established rights. See Jensen v. Conrad, 747 F.2d 185, 195 n. 13 (4 Cir.1984); Whisenant v. Yuam, 739 F.2d 160, 165 (4 Cir. 1984); Slakan v. Porter, 737 F.2d 368, 376-77 (4 Cir.1984).
While McElveen read Harlow as placing primary emphasis on objective factors, it read it “not [to] hold that an exclusively objective standard was to be applied to. claims that proceeded to trial.” 725 F.2d at 958 (emphasis in original). McElveen was decided January 26,1984, and to the extent that it read Harlow to preserve consideration of a subjective element as part of the qualified immunity defense, its holding was displaced on June 28, 1984 by the decision in Davis v. Scherer, — U.S. -, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Davis characterized Harlow as follows:
Harlow v. Fitzgerald, supra, rejected the inquiry into state of mind in favor of a wholly objective standard. Under Harlow, officials “are shielded 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.” 457 US, at 818, 73 L Ed 2d 396, 102 S Ct 2727 [at 2738]. Whether an official may prevail in his qualified immunity defense depends upon the “objective reasonableness of [his] conduct as measured by reference to clearly established law.” Id. (footnote deleted). No other “circumstances” are relevant to the issue of qualified immunity.
— U.S. at -, 104 S.Ct. at 3018, 82 L.Ed.2d at 147. (emphasis added). Thus it was “plain error” on the part of the district court to instruct the jury that the police officers’ “realistic good faith” or their “good faith” beliefs were elements to be considered in whether to afford them qualified immunity. Even if qualified immunity is an element of the case, plaintiffs are entitled to a new trial because of this erroneous instruction.
III.
To my mind, the district court committed a third reversible error when it directed a verdict for defendants on plaintiffs’ claim that their rights were violated by defendants’ entry into plaintiffs’ home without an arrest or search warrant and that their son’s rights were violated by an unlawful arrest.
Although lacking a warrant, defendants clearly had probable cause to arrest plaintiffs’ son. They could have arrested him anywhere outside of his home, but absent a warrant or valid consent, they could not have arrested him in his home. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Further, consent, if relied on to validate the arrest, must be freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). If con*1020sent is obtained by coercion or misrepresentation, it is not freely and voluntarily given. United States v. Tweel, 550 F.2d 297 (5 Cir.1977).
As I read the record, there is evidence that defendants told plaintiffs that they wished to talk to the son about his involvement in the attempted breaking and entering, and though they intended to arrest the son, defendants did not communicate this intention to his parents. Further, the decedent’s father testified that when defendants announced their intention to arrest his son, he ordered them to leave his house and to leave his son alone if they did not have an arrest warrant.
While I agree that there was consent to enter the house, I think that there was a jury question as to whether the consent was limited to questioning and did not include the arrest, cf. Mason v. Pulliam, 557 F.2d 426 (5 Cir.1977); United States v. Dichiarinte, 445 F.2d 126 (7 Cir.1971), whether consent to arrest was obtained deceptively and hence not voluntarily given, cf. Schneckloth v. Butstamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Phillips, 497 F.2d 1131, 1135 (9 Cir.1974); Alexander v. United States, 390 F.2d 101 (5 Cir.1958), or whether, if consent to arrest was voluntarily given, it was withdrawn before the arrest was made, cf. United States v. Ward, 576 F.2d 243 (9 Cir.1978); Mason v. Pul-liam, 557 F.2d at 429. A verdict for defendants should not have been directed.
To summarize, I would affirm the judgment for Anne Arundel County and reverse the judgment for the other defendants, awarding plaintiffs a new trial to be conducted in conformity with the views I have expressed.
. As the majority points out, it is debatable if plaintiffs unequivocally preserved these issues for review. The point need not long detain us because the errors were so fundamental that they constitute "plain error.” Fed.R.Civ.P. 51; Miller v. Premier Corp., 608 F.2d 973, 983 (4 Cir.1979). In this, essentially a wrongful death claim, if the jury were incorrectly instructed as to how to return a verdict, I would think that to ignore the error “would result in a denial of fundamental justice” and therefore the error should be corrected. See Furka v. Great Lakes Dredge & Dock Co., 755 F.2d 1085, 1089 (4 Cir.1985).
. Harlow does recognize that a defendant is entitled to immunity if he shows that he reasonably should be excused from knowing the law. This aspect of Harlow is irrelevant here because defendants make no claim that there were reasons for them not to know the law.
. I emphatically reject the majority’s reasoning that since the use of force is not per se unconstitutional and that an objectively reasonable amount of force necessary to accomplish the . arrest could lawfully be employed, it follows that, in determining whether the police used excessive force, the jury properly could consider good faith immunity. The majority apparently reasons that because neither we nor the Supreme Court has specified the exact quantum of force that constitutes excessive force, the law was not "clearly established,” and the qualified immunity defense was properly available. Yet *1019many, perhaps most, constitutional deprivations involve questions of degree where the precise contours of the constitutional protections have not been drawn. The majority would therefore render Harlow a virtual nullity and mistakenly “turn qualified into absolute immunity by requiring immunity in any new fact situation.” Hobson v. Wilson, 737 F.2d 1, 26 (D.C.Cir.1984).
. I agree with the majority that evidence of standard police department operating procedures was admissible, but only as a guide to the jury as to what is reasonable under given circumstances, and not to establish defendants’ good faith.