Henry v. Purnell

despite order that erroneous al to undo proce- civil specific rule of

availability of for such designed precisely as balm

dure wounds, constituted

judicially-inflicted right game “call[]

failure dis- of its “wide and thus abuse

rules” Id.

cretion.” discretion, ev- an exercise of

Assessing exercising much as discretion

ery bit instance, is, calling balls and like

the first If indeed

strikes, and not a an art science. the en banc “umpires,”

we are sometimes court,

court, most panels of this like makes right, it but it sometimes gets

often Because, call. for the reasons wrong King, the by Judge persuasively

stated so majority’s in this case banc decision

en “wrong call” col- recorded

must be

umn, I respectfully dissent. HENRY, P. Plaintiff-

Frederick

Appellant, PURNELL,

Robert Defendant-

Appellee.

No. 08-7433. Appeals, States

United Court

Fourth Circuit. 24, 2011.

Argued: March July

Decided: Bushman, Katherine

ARGUED: Louise Center, Georgetown University Ap- Law pellate Litigation Program, Washington, D.C., Breads, Appellant. John Francis for Jr., Hanover, Maryland, Appellee. ON Goldblatt, Director, BRIEF: H. Steven Garden, Supervising Attorney, Charlotte J. Counsel, May Chiang, Kate K. Student G. Counsel, Georgetown Henningsen, Student Center, University Litiga- Law Appellate D.C., Washington, Ap- Program, tion pellant. TRAXLER, Judge, and

Before Chief WILKINSON, NIEMEYER, KING, SHEDD, AGEE, GREGORY, DUNCAN, DIAZ, DAVIS, KEENAN, WYNN, and Judges.1 Circuit Judge argument participate Motz did not hear oral in the decision of this case. by published Reversed and remanded guilty violates this section is of the misde- opinion. Judge GREGORY wrote the escape meanor of in the second de- TRAXLER opinion, Judge 9^405(b) which Chief gree § ....” (currently Id. codi- WILKINSON, KING, Judges 9-405(c)). §at fied DUNCAN, DAVIS, KEENAN, WYNN, later, days Eleven on October DIAZ joined. Judge DAVIS wrote a attempted first to serve the war- concurring opinion. Judge SHEDD wrote Henry’s address, rant at last known dissenting opinion, Judges which Eden, trailer home in Maryland. Purnell joined. Judge NIEMEYER and AGEE approached a man sitting who was on the NIEMEYER a separate dissenting wrote steps front of the trailer and who identi- opinion. Henry’s fied himself as friend. The man Henry said worked American Paving OPINION Company and give offered to Purnell’s GREGORY, Judge: Circuit wife, name and Henry’s number to who warning,

Without Officer Robert Purnell was inside the trailer. Purnell then went Henry, shot Frederick an unarmed man to the American Paving Company, where pay wanted for misdemeanor failure to employee Henry said that had not support, child when he running started months, worked in three and showed Pur- action, § away. ensuing In the photo nell a of Henry. The photo ap- parties stipulated that Purnell had intend peared to match the man who had identi- to use gun ed his Taser rather than his fied himself as Henry’s friend. Purnell granted and the district court him sum returned to the trailer home later that day However, mary judgment. because Ten spoke and with Henry’s wife. She told prohibits shooting nessee Garner sus home, Purnell that Henry was not allowed pects pose significant who threat of trailer, Purnell to enter the and said that threat, physical death serious and be Henry for worked a man in a white pickup cause Purnell’s use of force could be truck. “very upset” Purnell seemed and jury objectively viewed a as unreason told her that he going “get [Henry] was to able, we and reverse remand. him. pulling whammy” a on J.A. 534- 35. The day, next October Hen- I. ry’s wife called Purnell to add that she had Since this case stems grant from the given Henry message and that he was Purnell, summary judgment we re traveling try to Baltimore to to raise bail light count the facts most favorable money. non-movant, Henry. to the George See & Ltd., Imagination Co. LLC v. Entm’t On October while in vicinity (4th Cir.2009). F.3d reasons, for other passed by Purnell a white pickup truck. Purnell followed the 2003, Maryland In a state court ordered truck parked and found it driveway Henry to pay support either child or re- of the trailer home he had previously visit- jail port September to 2003. When truck, ed. Purnell approached the which Henry comply,- did not a warrant was is- driver, Walston, contained a Thomas and sued for his arrest on October 2003 for two passengers, Henry. Gene Moore and second degree escape. Maryland law de- Purnell came to the degree fines second driver’s side escape “knowingly as window if failfing] obey report Henry. to asked each man he court order to was place Ann., no, initially confinement.” Md.Code Each said but when Purnell Law, 9^405(a)(2). § person Crim. “A again, Henry identity. who asked admitted his from seizures right to free Amendment be proceed- vehicle exited the Henry then force. by excessive effectuated Purnell. truck with ed to the back run towards then “started Henry Purnell motioned for May In in the di- was his truck which front of grant the case or court to dismiss district lived.” [he] the trailer where rection of Purnell summary judgment his favor. de- Walston Eyewitness 537-58. J.A. had not “seized” that he contended a little jogging “kind of and, alternatively, scribed that he was entitled second,” Pur- court de- immunity. 13-14. “Within district bit.” J.A. The him; Purnell his “asser- running after Purnell’s motion nell started nied because wrong weapon] drew the away. J.A. tions [that five ten feet roughly was upon credibility his necessarily depend 257, 538.2 genuine dispute of give rise to a therefore weapons on two Purnell had holstered material fact.” J.A. 16. hip his service right leg: on his filed an interlocu June revolver, handgun. caliber On a Glock .40 claiming the record did tory appeal, weapon, a an electroshock thigh conclusion the district court’s support “Taser”). (hereafter, Taser M26 immu qualified to that he was not entitled service “just underneath [the] Taser was appeal for lack nity. We dismissed the apart. twelve inches approximately pistol,” argument jurisdiction because “Purnell’s 139, un-holstered his 200. Purnell J.A. factual challenges the court’s ... district firing it in the horizontal and held Glock Purnell, 119 Fed. Henry v. finding.” to five seconds.” J.A. position for “[t]hree Cir.2005) 441, (unpublished) Appx. any verbal not issue 271. He did ”). curiam) (hereafter, I “Purnell (per commands, or instruc- messages, warning 2005, Henry for leave to In moved June single fired a to halt. Purnell then tions complaint, which the dis- file an amended shot, Henry in the elbow. Wal- striking Henry added claim granted. trict court ston, Purnell “shot eyewitness, said Maryland force on for excessive based got past the far end of [Henry] before he Rights. Declaration of Constitution’s caught 13-14. Purnell the trailer.” J.A. Henry, lying was up with who 10, 2005, parties en- November On me, shot ground, repeating [h]e shot “[h]e purposes stipulation into a “for the tered me,” much it hurt. talking about how and that on October litigation, of this he “never intended J.A. 13. Purnell said and dis- intended un-holster [Purnell] grabbed Henry, that had [he] to shoot Mr. mounted Taser M26 was charge his which Purnell wrong weapon.” weap- J.A. 139. thigh in a holster his service below Instead, on, medical handgun. an ambulance and retrieved .40 caliber called Glock weap- Henry’s bleeding. his service to slow he un-holstered and fired supplies on, it his Taser M26.” believing that was II. 30. J.A. history: filed a sec- long procedural has a In Purnell

This case November argu- summary judgment, § Henry brought this 1983 ond motion for In March inap- Fourth ing that the Amendment Purnell violated his Fourth alleging action deposition, said that Hen- any In his Henry physi- had 139. Purnell 2. claimed he never that affidavit, arms,” ry "pushed away” In his with "both and cal contact with Purnell. "although I had stumbled caught Purnell stated and himself” "fell backwards Purnell away, Henry pushed I backward when Mr. right leg.” J.A. 256. “car and [] on his my Taser." J.A. and recovered reached Connor, he never intended to seize test plicable because set out Graham v. Alternatively, Henry gun. with a Purnell (1989), qualified partially entitled to immu- and “inconsistent with the

argued he was language literal nity Henry, and was also immune from state tort Graham.” 399-400, F.Supp.2d at 401 n. 9.3 Henry opposed summary judg- liability. grounds shooting on the that the ment appealed Purnell again, to this Court seizure, outstanding issues of mate- claiming that the district court erred in by jury, and rial fact had be resolved concluding that he Henry “seized” and de- qualified that Purnell was not entitled to nying him immunity. J.A. 7-8. immunity. Henry stressed several factors In September we affirmed in part which made Purnell’s conduct unreason- Purnell, in part. and vacated able, give as his failure to a warning such (4th Cir.2007) (hereafter, 501 F.3d 374 firing. Henry or command before also If”).4 “Purnell We affirmed the district out Purnell’s failure to notice pointed court’s determination that Purnell’s shoot- physical differences and between Taser ing of Henry was a “seizure” under the Glock, switch, including safety the Taser’s Fourth Amendment. Id. at 381-82. But color, weight, position. holster The we vacated and remanded the case for the parties disputed production also of ad- district court to “reassess the issue of training. ditional evidence about Taser whether a constitutional violation occurred light proper burden proof April the district court issued discovery materials that it ordered opinion, denying its first Purnell’s motion produce.” Id. If on summary judgment granting Hen- remand “established] the sei- ry’s compel motion new evidence about (ie., zure in this ease was unreasonable training Henry Taser materials. v. Pur- that using Purnell’s mistake in the Glock (D.Md. nell, F.Supp.2d 395-98 unreasonable),” rather than the Taser was 2006). It found summary “the evidence on suggested then we that Purnell would judgment fully sufficient to create a [was] “have opportunity to demonstrate his jury question issue on the of whether Pur- qualified immunity.” entitlement to Id. at grossly negligent.” nell was Id. The dis- 384. trict proposed ‘heightened court also “a

culpability element’ should be added to a remand, Henry On received the addi- Fourth Amendment claim.” civil Id. at discovery tional requested had about acknowledged 399. The court that weapons training Purnell’s and the sher- “arguably was inconsistent with current iffs use of policy. force These included law,” “difficult to reconcile awith strict more pages than two hundred of training reading of’ the reasonableness depositions.5 generally, materials and See 3.Instead, the court advocated a explicitly component narrow read- should be made a of a Graham, ing reasoning that it was "not Fourth Amendment civil claim.” Id. at 402. clear, entirely [objective that reasonableness] [Supreme] meaning was the Court’s intended opinion judges, 4. quo- was filed two (or that it would have panel 46(d), been the Court's in- § rum of the under 28 U.S.C. meaning judge tended had it argument foreseen confused because a third heard oral subsequently participate manner in which the law devel- but did not in the decision. 501 oped).” Henry, F.Supp.2d at F.3d at 376 n. 1. 401. Un- Graham, any reading der the district court appel- concluded that "the time has come for August 5. On Purnell took a three- late courts to revisit the training issue of whether an and-a-half hour Taser class with six culpability greater negligence element of than or seven other individuals and was certified (4th Cir.1970)). 539-542, 285-514, Discovery Henry also F.2d

J.A. maintained his law claim. be- also state physical differences several revealed and tween the Glock Taser.6 In the district court issued June Purnell’s opinion, granting its second mo third filed his In March Purnell summary Henry judgment. tion for v. stressing summary judgment, motion for (D.Md.2008). Purnell, 559 F.Supp.2d with, field training “no field or that he had dispositive The court stressed that “the of, prior the Taser to the occurrence.” use whether, under the circum question emphasized that J.A. at 115. also through stances and filtered the lens had warned Taser’s manufacturer reasonable perception, officer’s it was on the same holstering weapons two about weapon Purnell to believe that the he un warning imparted “never leg, but was and fired the Taser.” Id. holstered was In anyone J.A. 115. else.” [Purnell] omitted). (quotations citations 651-52 Henry argued that opposing the motion Purnell’s The court concluded that belief dispute facts material remained training reasonable was because was mistake unreasonable be- Purnell’s was minimal” “quite apparently and there “comply multiple he did not with cause possibility “no discussion about the of erro police regulations,” which re- department weapon usage.” at 652.7 neous Id. steps in a “reckless failure to take sulted impermissible use of excessive avoid September 2010, panel a divided force.” J.A. at 520-21. stressed this court affirmed the district court deci- ... clearly has been established “[i]t Purnell, sion. v. 619 F.3d 323 part conduct reckless [that] Cir.2010); J., (Gregory, see also at 343 id. to an acci- directly officer leads dissenting). Henry rehearing moved for shooting violates dental or unintentional rehearing granted en banc. We re- rights.” now, Fourth suspect’s Amendment hearing en banc and reverse and Averett, 424 trial. (citing J.A. 526 remand for Jenkins ounces, training weighed use. That included a Pow- 6. A Taser M26 19.2 in Taser 8.30 slides, (with presentation long cartridge), which erPoint with 150 inches a 6.00 inches tall, discussed the "Pro's & Con’s” of different and 1.75 inches wide. The Taser had configurations. yellow coloring J.A. 297-447. The holster on and the both sides back of training explicitly dangers the weapon sight discussed and the contained a laser and a carrying gun leg, (similar a and on the same battery light. Taser A .45 Glock Pur- carry.” caliber) (with known as a "dominant J.A. 332. side weighed nell’s .40 ounces 38 a training warned a The this creates magazine), long, was 7 inches 5.47 inches .59 "Higher Depending tall, Risk Confusion and 1.27 wide. The Glock inches Training.” presentation J.A. 332. The also lights. sight colored black had no laser shootings incidents detailed "3 of accidental straps weapons The holster the two were weapon,” by mistaken in California made of different materials. J.A. 332. a of these Minnesota. As result accidents, fatal, "[p]er- training one of which was the 7. The district court also mused that haps agencies employer[] have since ... Purnell's the "[a]ll warned three Ta- and/or pro- support carry negligent in not to a and have ser manufacturer were switched side viding greater they yellow closing training,” "are M26s.” J.A. 332. state- but not The training F.Supp.2d "The defendants in this 559 ment of the read as follows: action....” disregarded fact important can malee at 652. The court the most decision an officer upon "may complied with engage or not to force the is whether person.” policy” Taser and did not notice [Sheriff's] J.A. 450. The class also included component physical between where Purnell shot a various differences hands-on weapons. target. Id. at 652 n. 3. Taser into

531 III. hardly any immunity in need of and the analysis right ends then and there.” Ab Henry first maintains that the district Coe, (4th 412, ney v. 493 F.3d 415 Cir. granting summary judg- court erred in 2007). § Henry’s ment to Purnell on 1983 claim. agree. We Fourth prohi Amendment’s summary party Whether a is entitled to bition on unreasonable seizures includes judgment question is a of law we review de right to be free of “seizures effectuated using applied by novo the same standard Braga, excessive force.” Schultz v. 455 the district court. Canal Ins. Co. v. Distrib. (4th Cir.2006). F.3d 476 Whether an vs., Inc., (4th Ser 320 F.3d 491 officer has analyzed used excessive force is Cir.2003). Summary judgment is appro under a standard of reasonable only taking if all priate evidence and Harris, 372, 381, ness. Scott v. 550 U.S. reasonable inferences drawn therefrom in 1769, 167 (2007); 127 S.Ct. see light most nonmoving favorable — U.S.-, also Kentucky King, v. party, disputed “no material facts are 1849, 1859, (2011) S.Ct. moving party judgment is entitled to (“Our [Fourth Amendment] cases have re as a matter of law.” Ausherman v. Bank peatedly rejected subjective approach, Carp., Am. 352 F.3d Cir. asking only circumstances, whether 2003). action.”) (in objectively, justify viewed rightly Purnell contends that he was quotation ternal marks and citations omit granted summary judgment on the basis of ted). Thus, courts determine “whether immunity parties because the the officers’ actions ‘objectively are reason stipulated mistakenly that he used his fire- light able’ in of the facts and circumstances Henry argues arm instead of his Taser. them, confronting without regard to their disregard subjec- that we should Purnell’s underlying intent or motivation.” Graham (to Taser) intent tive draw his and that Connor, 490 U.S. objectively Purnell’s conduct was unrea- 1865, 104 L.Ed.2d 443 In consider sonable. ing whether an officer used reasonable Qualified immunity protects offi force, a court must focus on the moment cers who commit constitutional violations employed. the force is Elliott v. who, law, light clearly but established Leavitt, (4th Cir.1996). 99 F.3d reasonably could believe that their actions summary At the judgment stage, once we Katz, were lawful. Saucier v. have viewed the evidence in light most L.Ed.2d nonmovant, favorable to the question overruled, (2001), part, Pearson v. Cal of whether the officer’s actions were rea lahan, 555 129 172 S.Ct. Scott, question sonable is a pure law. (2009); Brockington see also 550 n. U.S. at 381 127 S.Ct. 1769. It inis Boykins, v. 637 F.3d 506 Cir. light legal principles of these that we ad 2011). “Following Supreme Court’s evidence, dress whether the viewed in the ], recent decision Pearson we exercise [ light Henry, most favorable to shows that our two-step proce discretion to use the Purnell objectively used unreasonable ], dure of that Saucier asks first whether [ force. a constitutional violation occurred and sec right clearly ond whether the violated was A. Greene, Melgar established.” v. F.3d 593 (citations (4th Cir.2010) omitted). A officer who a shoots any “If did not violate right, fleeing suspect “probable [an officer] he without cause to information trary police significant had significant suspect poses that the believe — whereabouts, motives, Henry’s likely injury about physical or serious threat of death sum, associations, appearance. and that sus or others” violates the officer to in these circumstances reasonable officer rights. Tennes Fourth Amendment pect’s believing grounds have had Garner, would S.Ct. v. see The dangerous.9 armed or Henry was suspect “Where 85 L.Ed.2d much. seriously dispute as parties do not threat to the officer no immediate poses others, resulting the harm threat to and no however, stipulated, parties The not him does failing apprehend to from here was based on shooting that deadly force to do so.” justify the use of as Purnell believed mistake of fact insofar 11, 105 1694.8 Id. his his Taser rather than firing he was Purnell stipulation, Based on this of this case Glock. objective circumstances constitutionality of to defend the suspected attempts fleeing Purnell shot a are that simply by maintaining that he to his actions he had no reason misdemeanant whom Br. Appellee’s an “honest mistake.” Henry had an elev- made a threat. believe was omitted). (internal quotation marks for a misde- en-day old warrant issued honesty Purnell’s inten- But it is not the support. to child pay meanor—failure constitutionality that determines the suggested Henry tions Nothing in the record conduct; objective rather it is the Henry That of his any history of violence. had It is cer- identity reasonableness of his actions. does previously had hidden reasonable, mistaken, tainly true that but aggression. imply prone he was transgress constitutional Henry’s home. decisions do not already inside had been Karnes, See, e.g., McLenagan v. address, identity, for- bounds. Henry’s home wife’s (4th Cir.1994). actions, All car all 27 F.3d 1002 employer’s were employer, mer otherwise, however, or are sub- Henry mistaken The officer also knew known. ject test. money and had left town to raise bail pay to return to planned thereafter that Purnell There were several facts Henry’s police approached bail. When or have known that would knew should car, voluntarily identified himself and any reasonable officer to have alerted running began the car. He then exited First, holding fact that he was his Glock. away. car- basically, most Purnell knew he right on his Thus, noth- ried his Taser the holster critically, presents this case than any thigh, which was about a foot lower Henry posed threat ing suggest hip on his that held his Glock. menacing conduct and no the holster whatsoever —no Sevigny Dicksey, v. 846 F.2d history. To the con- See violent criminal Connor, Supreme neighborhood, he could have run somewhere Court In Graham However, pos- picked up weapon. all extended Garner and held "that claims Henry sibility an immediate officers have used excessive did not make law enforcement that he did not or not—in the course of an threat. Purnell also testified force— arrest, investigatory stop, or other 'seizure' of since he had know whether was armed analyzed a free citizen should be under But Purnell had no reason not searched him. believe, suspect, and its reasonableness Fourth Amendment even standard, pro- due rather than a 'substantive When the dissent stresses Purnell’s armed. approach.” Henry might 490 U.S. hypotheses cess' what personal about 1865, done, See also dissenting op. slips S.Ct. at it into have Graham). Abney, (citing 493 F.3d at 415 implies fleeing subjective and that all sus- through use of pects may apprehended be hold other- deposition force. Gamer Graham 9. Purnell stated in his that he was because was in his wise. concerned that Graham, (4th Cir.1988) (“Objective inquiry firing.11 into fore at n. See percep- (explaining of an officer’s 109 S.Ct. 1865 that courts the reasonableness an ar- fact leading the critical facts to must make “allowance for the that tion of possession police him with officers are often forced to make charge ... must rest reasonably split-second judgments discover- circumstances of all the information —in tense, uncertain, reasonably under that are acting rapidly an officer able subjective evolving”). pursued Henry Indeed his As he in an the circumstances. matter, induced, minor, to him a attempt fairly about the however arrest beliefs crime, inquiry.”) irrelevant to the non-violent had his to actually are back omitted). (internal quotation threatening marks Sec- Purnell and was not him or ond, weight anyone any way. Purnell could feel the of the else There was no hand, which, indicating he held in his evidence that Purnell weapon did not ounces, nearly have split-second about 38 twice the he would have need- Third, weight glance weapon of his Taser. Purnell knew ed to at least at the he was safety verify that had to to it holding the Taser had thumb was indeed his flipped weapon. to arm the The Glock Taser and not be his Glock.12 holding safety.10 he was had no thumb above, For all of the reasons set out in which This was not situation the facts when the record is in the light viewed most multiple reason- known to the officer led Henry, Henry favorable to can Pur- show able inferences. objectively nell’s actions were not reason- Thus, emphasis It bears that this also was not able.13 the evidence forecasted by Henry a situation in which circumstances de- the record is sufficient to show opportunity fully Purnell of the prived Henry’s Purnell violated Fourth weapon rights.14 consider which he had drawn be- Amendment narrow, previ- 10. that the firearm he claims drical while the Taser’s "barrel” carried, day box-shaped. ously fourteen before the months shooting, safety. had a thumb He trial, course, recognizing It bears that at claims that on the occasions when he trained jury required will not be to view the with his Glock he noticed that he still made light Henry. evidence in the most favorable to motion that the same instinctive thumb prior weapon. used to make with his For qualified immunity 14. The dissent avoids alto- reason, he maintains that it was reason- gether by reasoning that "the Fourth Amend- him not notice the lack able for thumb ment does not address the accidental effects However, safety regardless on his Glock. government of otherwise lawful conduct....” instinctually attempt whether he continued to Dissenting op. para- at 548. That conclusion Glock, safety flip his thumb on his a rea- phrases County Inyo, Brower v. but mis- officer would noticed that he sonable comprehends legal import. its pushing anything was not with his thumb (1989) when he made that motion. (discussing “the accidental effects of other- conduct.”). government wise lawful Brower deposition 11. Purnell admitted in his police held that a roadblock which accidental- directly” during while he was never "told ly fleeing suspect killed a constituted sei- training, implied” Taser nonetheless "[i]t zure. Id. at 109 S.Ct. 1378. Brower’s and "understood” that he should make sure intent, 596-597, discussion of id. at he had Taser than drawn his rather his fire- nothing stands for more than the firing. arm before J.A. 512. proposition unremarkable that intent can be a precondition whether a Fourth Amend- noted, complete- place, 12. As we have the Glock was ment the first seizure occurred in infra black, ly yellow coloring exempt while the Taser had n. 15. Brower could have chosen to all Also, on both sides. the barrel of the Glock accidents from the Fourth Amendment. But barrel, instead, handgun cylin- resembles a traditional the Court remanded the case to con- 534 Saucier, 533 he confronted.” situation

B. 202, at 121 S.Ct. 2151. U.S. on the concluded based Having one Here, Henry prong can show under summary judg accept at the facts we must analysis that a qualified immunity force Purnell’s use of stage that ment would have realized reasonable officer unreasonable, now we have been would shooting. Un- holding a firearm when was qualified in the prong the second turn to two, it have been clear to prong der would analysis, requires which immunity shooting fleeing, a reasonable officer that “whether the [constitution to decide Court a fire- nonthreatening misdemeanant with ‘clearly of a established’ violation was al] legal princi- This basic arm was unlawful. Cordero, 552 F.3d v. right.” Valladares by Supreme ple had been established Cir.2009). (4th 384, prong The second 388 years Court earlier Gamer. objective on the “a test that focuses is of an official’s acts.” legal reasonableness argues that Purnell nevertheless 819, 800, 457 Fitzgerald, Harlow v. U.S. qualified immunity be he is entitled (1982). 2727, An L.Ed.2d 396 102 S.Ct. 73 at the clearly cause it established not be held liable unless “[t]he official will un shooting that it would be time of the right alleged is [he contours to fire his for an officer constitutional sufficiently clear that a rea violated were] these facts weapon suspect at the under would understand sonable official holding he was his Taser. when he believed doing right.” violates that what he is that his But Purnell to understand fails 635, 640, Creighton, v. 483 U.S. Anderson have no subjective beliefs or intentions 3034, 97 L.Ed.2d 523 analysis, in our constitutional which place immunity ‘gives standard qualified “The objective reasonableness concerns ample judgments’ room for mistaken in light the officer’s conduct of the relevant plainly incompetent Graham, ‘all protecting but 490 facts and circumstances.15 ” knowingly violate the law.’ or those who (explaining that U.S. at 109 S.Ct. 1865 224, 229, 112 Bryant, Hunter v. 502 U.S. immunity resolving qualified questions, (1991) (quoting L.Ed.2d S.Ct. 116 589 ac inquire “whether the officers’ courts Malley Briggs, v. ‘objectively light reasonable’ in tions are (1986)). confronting “The S.Ct. and circumstances the facts relevant, dispositive inquiry determining them, underlying their regard without motivation”); Harlow, right clearly is established is intent or whether (explaining to a whether it would be clear reasonable immunity government protects conduct unlawful in the officer wrong one. 243 F.3d sider if the roadblock was unreasonable and shot Cir.2001). preserved may standard: "It That reasonable reaction to preferred, [police] already and in- well be that here threat constitutional under Gamer, earnestly hoped, stop deed that Brower would markedly the situa- but it differs from own, [roadblock], striking on his without here. tion before us practicable we think to conduct but do not it course, subjective inquiry subjective into intent.” 489 such an officer's intentions 15. Of U.S. at 109 S.Ct. 1378. quite question of whether are relevant on suspect within the Moreover, the officer "seized” the the dissent itself concedes that Amendment, meaning but we of the Fourth the[] [it cites] cases involves "[n]one question against in a present resolved precise situation here....” factual Purnell, 501 F.3d prior appeal, see Dissenting op. example, at 547. For Milstead (4th Cir.2007), and it is not now fight 381-82 bloody gun and knife v. Kibler involved wrestling us. two men were before where

535 (4th Cir.2004) 267, liability damages (quoting “from for civil 279 officials Wilson v. (4th Kittoe, 392, Cir.2003)). their conduct does not violate 337 F.3d 402 insofar as Corbeau, statutory or constitu- And Clem v. we held that clearly established person may subjec- rights “[w]e of which reasonable assume [an officer] tional known”). Indeed, objectivity tively believed that the force he have used was would excessive; that, however, qualified immu- not is not the has been the touchstone nearly thirty years.16 question. question The is ‘whether it nity law that the clear to a Supreme Court has made clear would be reasonable officer that his conduct was unlawful in the inquiry “Fourth Amendment is one ‘ob- situation 543, the circum- he confronted.’” 284 F.3d jective reasonableness’ under 552-553 (4th Cir.2002) (citations omitted). stances, subjective concepts ... have See also Graham, Buchanan, (4th 520, inquiry.” in that Jones v. 325 F.3d 527 proper place no (“We Cir.2003) do not “[AJll 490 U.S. at 109 S.Ct. consider the officer’s ”) (citing ‘intent or motivation.’ claims that law enforcement officers Elliott v. (4th Leavitt, Cir.1996)); ... ana- excessive force should be 99 F.3d 642 used 41 lyzed Perry, under the Fourth Amendment Rowland v. F.3d 173 Cir.1994) (“Subjective at involving ‘reasonableness’ standard.” Id. factors its motives, intent, original). (emphasis propensities 109 1865 See officer’s S.Ct. relevant.”). Anderson, at 107 S.Ct. are not also 483 U.S. subjective (holding that an officer’s end, may In the be a case an where the nature of his conduct is belief about constitutionally officer committed a unrea- qualified immunity pur- “irrelevant” seizure as the of an sonable result unrea- poses). did, sonable factual mistake. If he he is

Similarly, consistently protected liability has no more from civil than our Court objective analysis qualified well-meaning an are the conducted officers who make legal an immunity regarding claims and stressed that offi- unreasonable mistakes subjective play constitutionality intent or beliefs of their conduct. See cer’s (“The Pearson, Greene, made clear at 815 Melgar protection role. we “ qualified immunity applies regardless intentions’ do not good ‘an officer’s objectively government make unreasonable acts consti- whether the official’s error is (citations law, fact, tutional.” 593 F.3d at 361 omit- a mistake of a mistake of or a ted). questions of law We reiterated Owens v. Lott mistake based mixed fact.”) (internal immunity quotation ‘is marks omit- qualified “determination ted). one, human dependent Although only not on the officers are subjective particular may beliefs of the officer and even well-intentioned officers scene, occasion, hypo- at the but instead on what a make unreasonable mistakes on thetical, qualified immunity reasonable officer would have the doctrine of does not ” thought protect in those circumstances.’ 372 F.3d serve to them on those occasions. briefly proceed Fitzgerald, 16. There was a time when to trial.” Harlow v. factors, 800, 815-816, immunity subjective namely included 102 S.Ct. "permissible an officer’s intentions.” Woodv. (1982). Specifically, Harlow Strickland, "judicial subjec- inquiry reasoned that into Supreme But the may motivation therefore entail broad- tive subjective Court soon eliminated consider- ranging discovery,” which would incur "sub- altogether subjective ations because "the ele- "peculiarly disruptive and be stantial costs” good-faith frequently ment of the defense 816-17, government.” of effective Id. proved incompatible with our admoni- [had] S.Ct. 2727. ... tion insubstantial claims should evidence of indifference to so as to furnish

IV. Albrecht, State v. 336 Md. consequences.” that even if the district argues (1994) (internal 475, 336, 348 649 A.2d summary judg- in granting court erred omitted). marks and citation quotation claim, he was federal ment motion on the grossly actions are officer’s Whether summary judgment entitled to nonetheless unprotected and therefore negligent, statutory of the state claim on the basis statutory immunity, generally question disagree. immunity. We jury. Taylor County v. for the Harford Servs., 213, A.2d 384 Md. Rights Dep’t Maryland Declaration of Soc. (2004). 1026, 1034 prohibit employment 24 and 26 Articles during a seizure. Randall excessive force jury conclude that a reasonable We Peaco, Md.App. 927 A.2d v. grossly negli- that Purnell could find was (2007). analyzing The standards failing to make even a minimal gent are the same as verify claims under these articles that he had drawn his effort that Although Taser. Purnell stated Fourth Amendment claims. analyzing directly” during his train- never “told was Thus, that from our conclusion Id. implied” that ing, “[i]t he said facts, light viewed most favorable that he should make sure “understood” Henry’s Henry, showed Purnell violated holding in fact his Taser rath- that he was it rights, Fourth Amendment follows firing. than a firearm J.A. 512. er before Arti rights Purnell also violated his under Especially light of the fact that cles 24 and 26. on the Taser and firearm were holstered However, Maryland officials body, side of Purnell’s a reasonable same granted immunity Maryland are under the verification jury could conclude such (“MTCA”), Tort Claims Act Md.Code only to common sense. would amount Gov’t, § seq., State 12-101 et for state case, in a situation where there was no within constitutional violations committed particular exigency and where Purnell was scope of their duties when the viola nondangerous per- to arrest a attempting crime, gross relatively jury tions are made “without malice or son for a minor Cline, reasonably could find that his decision to negligence.” Lee v. 384 Md. attempting to weapon fire his without veri- (2004); 863 A.2d Md.Code State rather than fy he had drawn his Taser 12-101(a)(6), And, §§ 12-105. “[u]n- Gov’t negligence. gross his Glock amounted to immunity qualified like from claims of vio § rights lations of federal under V. question immunity personnel for State against Purnell’s use of force subjective from State law torts is a one.” objectively unreasonable and Runnels, Newell v. 407 Md. 967 A.2d law, namely clearly violated established 729, 763 prohibition against Tennessee Gamer’s grossly An officer’s actions are shooting suspects pose significant who negligent they when are “so heedless and injury physical threat of death or serious necessarily to deemed un incautious as be Nothing others. removes to the officer or wanton, manifesting lawful and such a straightforward this case from the context gross departure from what would be the Consequently, we hold Gamer. ordinarily pru of an conduct careful and entitled to immu- Purnell was not Furthermore, jury that a person nity.17 dent under the same circumstances we hold Saucier, recognize U.S. at 203- 17. We course that the substan- and the same. See Here, however, inquiry tive Fourth Amendment and the mat- we think 121 S.Ct. 2151. qualified immunity always ter of are not one briefly I three obser- reasonably find that Purnell’s con- law. write make could negligence. For gross response principal amounted to to the dissent duct vations reasons, dissent”). the district (hereafter, the decision of these “the court is (in passages) First. dissent some AND REMANDED.

REVERSED in agreement seems to be with the en banc (and majority that parties) this case DAVIS, concurring: Judge, Circuit present hypothetical not issue of does (albeit sheriff one with deputy A rookie whether the intentional use of the Taser relevant law than two decades of more by Deputy Purnell under the circum- Purnell, Deputy experience), enforcement comported stances would have with the having provided been with “minimal train- Dissenting Op. Fourth Amendment. See Taser, goes, in the use of a alone and ing” (“The dispositive question at 542 in this officers, back-up to the home of an without case not whether it for is was reasonable offender, Henry, wanted on a misdemean- Deputy Purnell to use force to stop pay support, for failure to child or warrant Henry or even whether it was reasonable custody into on the to take the offender deputy attempt to use his Ta- deputy warrant. The has reason be- ser.”) added); (emphasis id. at 548 n. 8 lieve, knowledge, indeed has actual (“Henry Deputy does not claim that Pur- Henry of violence or has no record nell’s decision to use the Taser was unrea- law enforce- threatening conduct toward Therefore, .... sonable we need not de- (or else); indeed, anyone ment officers issue.”) added). (emphasis cide that But any explains the absence of back- doubt then, dissent, in later on there is an Henry pointlessly runs up officers. When finding very on the implied pre- issue not Purnell, away Deputy deputy from sented: actual use of the Taser would (who carrying newly-issued is his Taser on entirely appropriate. have been See id. at from his Glock his “dominant side” inches (declaring, qualification, without mistakenly his Glock pistol) service draws Deputy Purnell “made a mistake his (which he had never before used in the action”). of an proper execution otherwise field) (with instead of the Taser which he that, It perplexing is even more still before) and, only de- practiced had once passage, another the dissent demands an easily measurable differences in the spite majority from the answer of the en banc weight weapons, and features of the two very court to the question pre- that is not immediately discharges pistol his Glock deputy sented: have used the “[C]ould and shoots and wounds the offender. Dissenting at all?” atOp. Taser pleased join Judge Gregory’s I am The dissent’s serial that “Ta- disclaimers majority. opinion fine for the en banc ser use” is at here issue does little to whether, court holds that under the totali- transparent obscure the dissent’s confi- this case ty (prop- of the circumstances of dence that the intentional use of a Taser erly drawing all inferences of fact in favor by Deputy Purnell under the circum- as the non-movant under Fed. stances the case before us would have 56), Deputy R.Civ.P. Purnell’s mistaken comported with the Fourth Amendment. pistol use of his Glock to shoot was reasonable, disappointment The dissent’s that this case jury question properly entirely as a matter of is not about “Taser use” is under- determined immunity properly jury. denied and on the merits is matter for the of the officer’s actions reasonableness after the initial encounter scrutiny of its reason- Several weeks upon close

standable during stop, because the entire dissent the traffic the offender ing. This is (but tidy deeply following actually rests on arrested on the three warrants flawed) syllogism: floor bathroom of his while the second * always use of a Taser is An officer’s naked. Id. at 357. The residence while under the Fourth Amend-

permissible arresting two officers escorted the offend- any fleeing to effect the arrest ment him nearby er to a bedroom and allowed suspect; handcuffing him and re- to dress before * permitted to make rea- An officer is moving Sig- him from the residence. Id. effecting mistakes in seizures sonable nificantly, they observed that as he was thereby the Fourth violating without donning clothing, he looked about sus- Amendment; therefore window, piciously toward an uncovered * law, Deputy As a matter of Purnell’s opened porch out to a roof below which weapon use of one [the Glock] mistaken the second floor. weapon of two to [the Taser] instead observation, making this one offi- Upon Henry was fleeing effect a seizure of the orally her Taser and cer unholstered and therefore did not violate reasonable suspect anything warned the “not to do the Fourth Amendment. id, him, “you stupid,” and admonished words, per- In other under the dissent’s Despite want to be tased.” Id the don’t case, very it the reason- spective on this a sudden warning, the offender made law) a matter of (purportedly, ableness as window, for the and the officer dis- break against an of the intended use of the Taser charged her Taser. Id. As a result of unarmed, fleeing misdemeanant nonviolent tased, being through the offender went the the mistaken use of on foot renders uncontrollably, somehow missed window “a reasonable mistake.” Glock porch roof or otherwise continued his analy- of That this is the dissent’s mode porch fall such that he came off the roof despite the serial (again, sis is made clear ground. and landed on the He died four disclaimers) citation, by the dissent’s as days later from head trauma suffered “instructive,” Dissenting Op. see at 548 n. his fall. Id at 357-58. days to a case decided several after the Eighth affirmed the district Circuit case, argument McKenney en banc in this to, summary grant judgment court’s of as (8th Cir.2011) Harrison, 635 F.3d 354 alia, inter the Fourth Amendment exces- (affirming grant summary lower court’s by sive force claim instituted the offender’s

judgment fleeing that use of Taser on a mother based on the officer’s use misdemeanor offender did not constitute In court’s affirming Taser. the district seizure). cursory an Even a unreasonable that, law, determination as matter of however, McKenney, examination of dem- use of the Taser under the circumstances onstrates that the facts that case are not an Fourth was not instance actionable remotely to the facts in the case at similar force, Amendment excessive our sister cir- bar. The dissent’s citation to case majority’s rea- cuit reasoned as manner undermines the follows: soning or the outcome in this case. Barnes made a sudden move- When window, ment toward the the offi- which McKenney, the offender had earlier reasonably interpreted cers as active arresting fled from offi- automobile attempt by flight, to evade arrest cer, stop who had made a traffic of the force to officers were entitled to use offender. Id. at 356-57. Three arrest and effect the prevent escape warrants issued for the offender. Id. Barnes’s were ready had it at the when the charges were and who Although arrest.... misdemeanors, the officers ex- prompted offender’s sudden movement her limited required the warrant were ecuting discharge the Taser. run free. Barnes to let confidence that The dissent’s unbridled consequences fatal of the Despite the permissi- use of a Taser would have been incident, employed of force also the level unwarranted, course, because ble here is Pollreis used not unreasonable. has party presented neither to this case shock. She was only single Taser unwarranted, argued that issue. It is split in a second as required to react well, thoughtful concurring based on the sought escape through win- Barnes opinion Judge Murphy of Circuit away. The only eight six to feet dow McKenney, forthrightly acknowledged who to subdue attempting alternative of of the reasonableness posed him a risk to by tackling Barnes pose difficult use Tasers continues safety of the officer and did not challenges agencies to law enforcement a successful arrest. The officers ensure is, indeed, Judge and courts alike. It Barnes. Just before had warned Murphy’s opinion that is most “instruc- told Barnes not to do lunged, Harrison tive”: “you and Pollreis said anything stupid, opinion I concur in the While although And don’t want to be tased.” court, I believe law enforcement use tragic, was a reasonable the outcome of tasers merits further reflection. This officer, knowing designed that a Taser tragic case illustrates one kind of result instantly, could have be- incapacitate that can employment follow the of a incapacitate the force would lieved that developing taser. The law on taser use window, Barnes before he reached unique must consider the nature of this posi- he was not in an “elevated while type weapon of poten- and the increased likely fall. tion” and Under these possibly by tial for lethal results created circumstances, we conclude that newer models. by Pollreis was reasonable.

force used variety Our cases have reacted to a (citation omitted). Id. at 360 and footnote circumstances where tasers have been quite It is clear that the circumstances of used, they sometimes reflect unex the case at bar could not be more unlike pected consequences. Mahamed v. McKenney, which in presented those (8th Anderson, 612 F.3d Cir. (who suspect only pre volved a had weeks 2010), example, jailer a used a taser in an viously sped off automobile from law screaming lying inmate on the floor *) in during stop a traffic enforcement probes of his own locked cell. The taser custody actual of two law enforcement offi hand, lodged in the inmate’s testicle room, acting suspiciously in a cers closed assertedly causing long impotence, term planning escape, if he was and who incontinence, Quali damage. and nerve express warnings by oral one of ignored jailer immunity the officers who had unholstered her Taser fied was denied * 2267, 2272-75, (hold- (2011) Recently, Supreme in the context of the 180 L.Ed.2d 60 evolving sentencing jurisprudence, Court's ing under Indiana law of the conviction explained the Court the commonsense rea- knowingly driver of an automobile who why suspect’s knowing or intentional sons intentionally flees from a officer consti- flee law enforce- use of an automobile to from felony” prior conviction un- tutes "violent po- significantly raises the stakes in the ment Act, der the federal Career Criminal Armed by suspects. violence such See tential for 924(e)). § 18 U.S.C. States,-U.S.-, Sykesv. United 131 S.Ct. An Weapons: at 1087. officer who 05-464 Taser Use of Tasers case. Id. her car refusing

tased a woman to leave Agencies Selected Law Enforcement also denied during stop a traffic (2005) (“GAO 9-10 Report”). immunity. City Brown v. Valley, 574 F.3d 499-500 Golden In this case Officer Pollreis used her (8th Cir.2009). panel majority grant A taser’s dart mode on James Barnes summary judgment City ed Cook perceived might try when she that he Villa, Bella 582 F.3d Cir. escape out a window. The taser’s two 2009), to an who had tased an officer metal probes lodged his lower back. man him angry approaching while he weapon exactly then did what it was trying to arrest the man’s wife. designed completely incapaci to do: it Judge Shepherd dissented after conclud body. tated Barnes’s entire Instead ing that it was unreasonable to “dis falling expected, to the floor as Pollreis charge simply [a] Taser because of inso through Barnes smashed the window lence,” especially given the tremendous porch and over the and fell onto the at pain tasers cause. Id. 859-60. ground. paralyzing The taser’s effect force, In deciding claims of excessive apparently made Barnes unable to break quality we balance “the nature and fall, and he died of massive brain against the intrusion ... counter days trauma a few though later. Even vailing governmental interests at stake.” serving only the officers were misde Connor, Graham v. warrants, meanor Pollreis was faced (1989); 109 S.Ct. tense, with “circumstances that [were] Maj. Op. previ see at 359. As we have uncertain, and rapidly evolving,” Gra observed, ously “case law related to the ham, developing” stage. Taser is [in the]

Brown, mistakenly 574 n. and she F.3d 498 5. While “the believed she could Taser, general, than stop safely. is more a non- wrong. Barnes She was serious or trivial use of force but less may guns only Just as officers use ..., deadly than force there is a lot of against suspects posing a threat of seri points.” room between those end Mot harm, Garner, physical ous Tennessee v. (9th Agarano, tos v. 590 F.3d 1, 11, 471 U.S. 105 S.Ct. .2010). Cir (1985), the use of re tasers That the evolving law still is illus- quires justification sufficient for their trated in granting qualified cases immu- Supreme use to be reasonable. The See, nity very for that reason. e.g., Bell “police technology Court refused to let 08-456, City v. Kansas Dep’t, Police No. ... privacy guaranteed by erode the (W.D.Mo. 2010) at 4-5 (grant- Mar. Fourth Kyllo Amendment” in v. United ing qualified immunity police officer States, in “close case” because “there is not (2001), particu and the enough warning law against defendant lar factual circumstances in which a ta tasering justify this [excessive force] ser has been used must be examined in litigation”). poli- Local law enforcement pro context of Fourth Amendment differing cies also reflect views where against tections excessive force. the taser on fits the “force continuum.” Id. at 361-64. only Some allow taser use as an alterna- Judge Murphy’s insightful observations deadly force, tive to while call for others wisely against hasty counsel caution a any justified. taser use whenever de- force is Office, Accountability U.S. Gov’t GAO- termination of the reasonableness vel non Thereafter, Rus- Id. at 127-28. by law officers armed. Taser use enforcement for v. and observed Anderson Zivojinovich See sell surveilled abstract. also in the (11th and, twenty Barner, specifical- more than minutes F.3d Cir. (“We bulge a 2008) ly, that in a he observed under Anderson’s previously held expect ‘difficult, precisely might where one and uncertain situation’ sweater tense secreted, thereby “corrobo- suspect who a firearm be gun to subdue a a taser use of citizen’s Id. at 128. ignored rating report.” instructions repeatedly has Thus, panel correctly in Russell belligerently toward continues act Draper recognized, the officer had at least reason- not excessive police is force. man, to seize make in- suspicion F.3d Cir. able Reynolds, 369 search, 2004).”) added); and to conduct a (emphasis quiry, pat Parker v. Gerr down Cir.2008) (affirm (1st ish, provided so in a an 8-11 and to do manner 547 F.3d safety any verdict that used excessive assurance the officers ing jury officer arrestee). in the at 130 tasering persons immediate area. Id. force (“Once perceived consis- bulge Russell hypothetical chose not to assert shape he gun, tent with of a was Deputy’s excessive claim of force based believing justified that Anderson was the Taser in the Purnell’s intended use of dangerous.”). armed and case, majori- and the circumstances drawn, appropriately guns the en banc court their and an- ty of With Russell (and day another for consider- leaves for other officer confronted Anderson and or- in a issue is actual- ation ease which the Anderson to his hands and dered “raise determination of that issue. ly presented) Although on his get down knees.” Id. hands, at first Anderson raised his before protests that “[its] Second. dissent could pat-down the officers conduct address, much less analysis does even situation, lowering began secure use justify, the intentional “reaching Russell hands and toward what n. And Dissenting at 549 Op. force.” Thus, gun.” believed to be Id. at 131. on which the yet, principal one of the cases Russell, more than a rea- having Officer support dissent relies to its conclusion believing the man sonable basis project failed to evidence sufficient reaching armed and that he for a a Fourth Deputy Purnell committed firearm in defiance of a direct order in- force violation Amendment excessive Anderson Id. In police, shot three times. an officer’s use of dead- volved “intentional fact, bulge by patron the observed the mall 546-47, ly Dissenting Op. force.” See (and officer) later, by eyeglass the anwas (citing, reasoning and on quoting, 549-50 (who wearing ear- case. Anderson was Russell, the of Anderson v. 247 F.3d basis phones) reaching had been to remove the (4th Cir.2001)). not a Russell was pocket; his back not radio from was force; to deadly of “mistaken” of case use Id. armed. contrary, it was the use the a case which was, manifestly, force “intention- of Anderson survived his wounds and al.” damages against pursu- the shooter sought Russell, alleged § 1983 based on Russell’s

There, officer, ant to a local effecting force a seizure working supplemental as a excessive employment of the Fourth The security guard, mall learned violation Amendment. shopping Anderson, find- patron jury mall intoxicated returned verdict for from a that an (1) man, Anderson, force ing and a that the officer used excessive wearing earphones (2) hat, the officer not entitled to openly drinking who was wine while and was mall, re- immunity. the to be Officer Russell walking appeared qualified around pute to each of material fact evident in this record. judgment motion for newed his verdict; plainly That is incorrect. The dissent as- the the dis- of those issues after serts, all that agree, and where there ex- the motion as to exces- trict court denied fact, genuine of dispute ists material the motion as to granted sive force but objective particu- the reasonableness of a by immunity. cross-appeals On lar use is an issue of law for the concluded, as mentioned parties, we force of Harris, court. Scott v. 378- law, above, that “as a matter of Russell’s 79 & n. 127 S.Ct. not violate the Fourth use of force did (2007) (holding recording that video of and, therefore, Amendment plaintiffs police “sp[oke] encounter with § claim 1983 excessive force should itself’ established the absence of jury.” to the Id. at have been submitted any genuine dispute of material fact bear- reasonableness). ing on Thus, Russell was not a case of a “mis- bar, course, case at of the issue is not the any take” in sense relevant to the case at Deputy reasonableness of Purnell’s use of patron bar. Both the mall and the surveil- Henry. his All agree Glock seize inference, ling officer drew an a reason- the use the Glock to seize of inference, repeatedly able as this court unreasonable under the and circum- facts noted, and, that the man armed in- presented, stances this case. The issue deed, later, attempting he was as the dissent further acknowledges, is the in response by draw a firearm to an order Deputy reasonableness of Purnell’s mis- the officer that he raise his hands. A unholstering discharging take in percipient reasonable inference based on reasonable, Glock. If the mistake was witness observations is nonetheless rea- then the Fourth Amendment renders sonable even where the basis un- factual majority opinion seizure reasonable. As the derlying the inference is other than as clear, perfectly genuine makes disputes of supposed. Such a reasonable inference is material historical and inferential facts not for that reason a inference. mistaken absolutely surround the issue the rea- Russell, assuredly, in in- Most officer mistake, Deputy sonableness Purnell’s discharge tended to his firearm at a jury peers proper of his is the so, him suspect, shooting and he did three question. factfinder as to the ultimate times. blinking dissent’s insistence on at those many Like so of the other cases relied circumstances, inability facts and or its dissent, e.g., dealing those with refusal to draw those inferences in favor of mistaken wrong apart- because, searches above, as discussed it ment, Russell bears no resemblance what- wants this case be about the intended Plainly, Taser, soever to the case at bar. an use does not alter reali- Scott, legal propositions ty. accumulation of abstract 550 U.S. at Cf. (“[I]n extracted from dissimilar provides cases 1769 the end we must slosh our still scant in way through assistance the decision of actual the of fact-bound morass ‘rea- ”). cases; rather, it the careful sonableness.’ application is legal principles summary to the judg- observations, these additional I am With presented ment record before us that does pleased join Judge Gregory’s to opinion so. the en banc court. apparently Third. The dissent it finds SHEDD, Judge, dissenting: Circuit majority granting odd that the is not sum- mary judgment Henry Purnell, in of Plaintiff Deputy an experienced law en- favor since, view, in genuine officer, its there is no dis- attempted forcement to arrest which that we ling precedent, Be- counsels to a lawful warrant. Henry pursuant potentially «viewthe facts of this dan- Henry for must could search deputy the fore engaging arrest without in hind- gerous his residence. Henry fled toward weapons, undisputed the ma- sight second-guessing, during stipulated parties The clearly terial evidence establishes that chase, Purnell “in- Deputy foot ensuing constitutionally deputy’s mistake is reason- discharge his Ta- to unholster and tended Henry failed Accordingly, able. has but, instead, “unholstered and M26” ser to estab- matter of law meet burden of it believing that weapon, his service fired violation, lishing a Fourth Amendment Pur- Deputy J.A. 30. his Taser M26.” properly granted the district court sum- unfortunately Henry shot with his nell mary Deputy in favor of Purnell judgment as a result of this mistake. firearm Henry’s federal state-law claims on is dispositive question this case The that basis.2 Deputy it was reasonable for not whether I Henry stop force to

Purnell to use it reasonable for or even whether was purposes, For our the material facts are Rath- attempt to use his Taser. deputy to undisputed.3 Deputy On October deputy’s er, is whether question attempted Henry pursu- to arrest his Glock drawing firing mistake ant a lawful warrant. The warrant Henry was constitu- pursuit in hot charged Henry degree escape while with second Purnell, Henry See tionally comply reasonable. based on his failure to with court I”).1 (4th Cir.2007) (“Henry county to the report order detention 501 F.3d 47-day of a sentence.4 light of control- center for service viewed properly When I, (2001) (“If Henry “Purnell does not consti- we noted: 1. right the Glock argue that an intentional use of tutional would have been violated were reasonable; likewise, established, allegations have heen would there is no neces- argue to use that Purnell’s decision inquiries concerning does not sity qualified for further F.3d at unreasonable.” the Taser was immunity.”). Further, we remanded the case 382 n. 11. in the first court to determine the district only potentially fact that is in 3. material Hemy whether had met his burden instance dispute Henry pushed Deputy Pur- is whether establishing using that Purnell's mistake in began purposes flee. nell when he For was unrea- the Glock rather than the Taser Deputy my Purnell did not conclusion sonable. Id. Amendment, accept Hen- violate the Fourth I ry's push deputy, that he did not version are, course, separate two issues in 2. There factual issue is therefore immaterial. and this this, where an officer asserts a case such as course, ultimately is resolved Of if this issue (1) immunity: plaintiff qualified whether favor, Deputy further Purnell's it would violated a o established that the defendant has of his actions. underscore the reasonableness so, (2) right and if whether the constitutional immunity. qualified defendant is entitled to law, Maryland who 4. Under an individual Callahan, 555 U.S. See Pearson v. knowingly obey report fails to a court order to (2009). Although guilty of the place to a of confinement majority I am somehow states that degree escape of second crime misdemeanor immunity, "avoiding” the issue of imprisonment subject a term of and is my Majority Op., at n. view see 533-34 exceeding exceeding years a fine not to establish a Fourth has failed Ann., Law, $5,000, Md.Code Crim. or both. unnecessary it Amendment violation renders Thus, judge Henry to § A state had ordered immunity. 9-405. to address for me County Detention Cen- report to the Somerset my majority views as “avoidance” what the is, fact, September to serve a term of ter on entirely proper. See Sau- the issue Katz, oppor- days, provided him with an but also cier v. Q: in Hen- attempted during arrest occurred And this entire time that he your ry’s driveway, Henry running, opinion where was one of was did not people parked Deputy change three in a truck. —? alone, Purnell, approached the who was A: That’s correct. vehicle, Henry eventually and acknowl- J.A. 258-61. identity. Deputy After Purnell edged his fled, Henry Deputy After began Purnell a warrant for Henry advised that he had a chase lasted 3-5 seconds. While he arrest, Henry the vehicle. The his exited running, Deputy kept eyes was Purnell his passen- of the vehicle and the other driver fleeing Henry, focused on the and he ger remained inside. Taser, reached for his which was holstered initially cooperative af- Henry appeared right on his side below his dock. Howev- vehicle, exiting ter but he fled toward er, Deputy mistakenly Purnell drew his Deputy Purnell could his trailer before dock rather than Taser. his Because he time, him. At that Purnell Deputy arrest running on Henry, Depu- focused Henry did not know whether was armed or ty Purnell did not realize that he had fleeing attempt

whether he was in an mistakenly unholstered the dock. As Deputy arm himself. As Purnell ex- flee, Henry continued to Deputy Purnell— plained: believing that he was holding the Taser— Q: you danger And what did feel that Henry Henry shot the arm. then began you were in? down, to slow Deputy quickly Purnell [Henry] A: neigh- Because his overtook him.5 borhood, gone any- he could have Deputy Purnell immediately recognized where, gotten anything, could have mistake, Henry and he told that he had back, shovel, gotten run to the a gone not intended to shoot him. He then es- house, gotten gun. Any- back Henry corted back to the truck and radi- that, thing. Besides I didn’t know if Deputy oed for medical assistance. Pur- anything he had on him. I never had Henry, nell rendered first-aid to and he opportunity to search him. permitted Henry’s companions to exit the time, During truck and assist him. Q: point you At that ... did consider grabbed reiterated that he had the dock him dangerous subject? or violent by mistake and never intended to shoot A: Yes. Henry. Deputy Purnell remained with Henry until other law enforcement units Q: you And did him arrived and perceive as a relieved him. threat as he continued to run? incident, At Deputy the time of this Yes,

A: sir. Purnell employed had been with the Som- Q: may gotten Because he County erset approxi- Sheriffs Office for

weapon; is that correct? that, mately year. one Before he spent 25 correct, A: years That’s sir. as an Maryland officer with the Nat- tunity having to avoid Deputy mistakenly to serve the sentence lated that Purnell used his complying requirements. Henry firearm, with certain Deputy may the fact that complied requirements neither with those nor annoyed "pulling have been at reported to serve his sentence. (see 527) whammy” Majority Op., on him on an earlier date is immaterial. Deputy attempting 5. Because Purnell was lawfully Henry, stipu- arrest has

545 259, Deputy Verdugo-Urquidez, Police. Purnell States v. 494 U.S. ural Resources only carrying the Taser for a few 266, 1056, had been 110 S.Ct. incident, and he had

months before (1990), power,’ and it “addresses ‘misuse of deployed it in the field. previously never not the accidental effects of otherwise law Indeed, only he had used it one time conduct,” government ful Brower v. Coun Likewise, training only exercise. he had 593, 596, ty Inyo, 489 109 U.S. S.Ct. relatively carrying the Glock for been (1989) (citation 1378, 103 L.Ed.2d 628 time, and had never fired it in the short omitted). (42 U.S.C.) Section 1983 allows He carried the Taser and Glock on field. “to plaintiff money damages seek from (his body the same side of his dominant government officials who have violated his side) in a holster because he had been rights,” Fourth Amendment Wilson v. Although instructed to do so. there are 603, 609, Layne, 526 U.S. weapons, differences between the two such (1999), L.Ed.2d 143 818 but it “does not weight manner in which as their and the injuries purport resulting redress from function, they the Taser and the Glock mistakes,” McLenagan reasonable v. remarkably shape. to be similar appear Karnes, (4th Cir.1994).7 27 F.3d 1008 See J.A. 288-89. two months before the

Approximately A. County is- shooting, the Somerset Sheriff 03-04, Special regarding sued Order Taser is, course, seizure, Arrest a form of usage. Among things, other that order right and “the to make an arrest ... nec- explains that the Taser could be used “to essarily right carries with it the to use dangerous subject control violent degree physical some coercion or threat justified when force is not and at- Connor, thereof to effect it.” Graham v. subject tempts by to control the other 386, 396, 490 U.S. 109 104 S.Ct. ineffective,” “to tactics have been safe- (1989). In considering L.Ed.2d wheth- an ly effect arrest.” J.A. 285. It also reasonably er an officer acted in making “[wjhen practical” instructs that officers arrest, we must bear mind that point should use verbal commands and “American long criminals have a tradition sight subject discharg- laser at the before violence, every year of armed in this ing it. J.A. 286.6

country many law enforcement officers are II duty, killed in the line of and thousands Ohio, Terry more are wounded.” v. goes saying “It that the Fourth without S.Ct. L.Ed.2d 889 only Amendment bars unreasonable (1968). Thus, public ... “[t]he interest Maryland searches and seizures.” v. public includes substantial concern for Buie, 331, 110 1093, 108 safety lawfully carry- officers purpose ing out the law enforcement effort.” Unit- protect peo Fourth Amendment is “to (4th Sakyi, v. ed States 160 F.3d ple against arbitrary of the United States Cir.1998). Government,” action then’ own United merely background policy equate I note this order does not tal with constitutional unreasonableness."). purposes, Deputy and I do not contend that pertinent compliance Purnell’s with it is analysis. Abney the Fourth Amendment See liability Henry’s 7. The standard for federal Coe, Cir.2007) ("It 493 F.3d is and state-law claims the same. See I, departmen- ... law that a violation of 501 F.3d at 382 n. 10. settled 546 judge engaged post “A creative hoc is fluid and ‘[the]

A “custodial arrest police of conduct can almost evaluation from the officer flows danger police to the by means always imagine some alternative arrest, proxim attendant its fact of ” objectives police might of the which stress, v. uncertainty.’ Thornton ity, accomplished.” have been United States States, 621, 615, 124 541 U.S. S.Ct. United 675, 686-87, Sharpe, v. 470 U.S. 105 S.Ct. (citation (2004) 2127, 905 158 L.Ed.2d (1985). However, 1568, 84 L.Ed.2d 605 omitted) original). Because (emphasis purposes of the Fourth reasonableness way predict for an officer to is no “[t]here per- evaluated from the Amendment “is subject will react reliably particular how a scene, on the not spective of the officer degree potential or the of the to arrest leisurely through the more lens of hind- “[ejvery presumed arrest must be danger,” 416; Abney, at see also sight.” 493 F.3d arresting danger a risk of to the present Batton, 471, 477 Waterman v. 393 F.3d Chrisman, Washington v. 455 officer.” (4th Cir.2005) (noting that “reasonableness 7, 812, 1, 70 L.Ed.2d 778 102 S.Ct. U.S. is determined based on the information (1982) added). The risk to the (emphasis at possessed by the officer the moment an arrestee heightened officer is when employed”). Judge that force is As Wil- flees, poses arrest resisting act of “[t]he recently kinson of this Court noted: “It’s between a a threat of direct confrontation always tempting go the could-have/ arrest, subject officer and the hindsight, route in but that is should-have physical creating potential serious Supreme not how the Court has structured injury to the officer and others.” United inquiry.” reasonableness (4th Wardrick, 446, F.3d 455 States v. 350 Wood, 219, 222 Hunsberger v. 583 F.3d .2003). Cir (4th Cir.2009) (Wilkinson, J., concurring in banc). rehearing denial of en For this B. reason, “second-guess courts should not depends upon is reasonable all of “What judgment po- of a trained split-second surrounding the search the circumstances merely judgment officer because that lice ” the nature of the search or or seizure and turns out to be mistaken.... McLena- Montoya seizure itself.” United States v. at gan, 27 F.3d 1007-08. Hernandez, 531, 537, 105 De 473 U.S. S.Ct. not re- The Fourth Amendment “does (1985). 3304, 87 L.Ed.2d 381 “Because of “ omniscience,” quire not and officers ‘need any necessarily ad hoc nature of deter absolutely sure ... of the nature of the be reasonableness, mination of there can be suspect’s threat or the intent to cause ” rule of law which will decide inflexible using harm’ before force. them States, every case.” v. United 436 Scott Russell, 125, Anderson v. 247 F.3d 132 128, 139, 56 L.Ed.2d (4th Cir.2001) Leavitt, v. (quoting Elliott Fourth Amendment’s “[T]he 168 (4th Cir.1996)). 99 F.3d More- commands, require like all constitutional “[ojfficers over, required are not to use the ments, abstract,” practical are and not available; they least intrusive means sim- Ventresca, States v. 380 U.S. United ply range must act within the of reason- (1965), 108, 85 S.Ct. Seattle, City able conduct.” Brooks v. approach are to the Fourth “[w]e (9th Cir.2010); 599 F.3d see ... Amendment with least some meas also Board Ed. Ind. Sch. Dist. No. 92 pragmatism” “pressing ure of and to avoid Earls, County v. Pottawatomie rules,” City inflexible Mora Gaithers MD, (2002) burg, 519 F.3d Cir. has re- (noting that “this Court 2008). peatedly stated that reasonableness under made law enforcement officers require takes Fourth Amendment does means, intrusive be- constitute Fourth Amendment vio- employing the least did not Garrison, logic of such elaborate less- example, cause For Mazuz ‘[t]he lations. could arguments (4th alternative Cir.2006), restrictive 442 217 Maryland, v. F.3d the exercise insuperable barriers to Patterson, raise v. 278 F.3d and United States virtually pow- all search-and-seizure (4th Cir.2002), the officers’ mistaken 315 ” omitted)). (citation ers.’ wrong premises were searches of constitutionally reasonable. found to be not, “does Importantly, reasonableness v. Similarly, Rodriguez, Illinois 497 definition, perfection,” entail United 2793, (4th 177, 218, 110 S.Ct. U.S. Phillips, 588 F.3d 227 v. States Cir.2009), (1990), the officers’ mistaken belief that courts must “allow some that are made they third-party latitude for honest mistakes had consent to enter and dangerous in the and difficult by officers found consti- premises search a to be arrests,” Maryland v. making process Likewise, in tutionally reasonable. Hill v. Garrison, 1013, 79, 87, 480 U.S. 107 S.Ct. 797, 1106, California, 401 91 S.Ct. 28 (1987). on Elaborating L.Ed.2d 72 94 (1971), the Court found a Supreme Court has stated: “Be point, wrong person mistaken arrest of the to be situations which confront offi many cause reasonable under the Fourth Amendment. executing their duties cers in the course particularly Our decision Milstead is ambiguous, room must be are more less There, police instructive. officer had part.” their allowed for some mistakes on fleeing intended to shoot a criminal sus- States, v. 338 U.S. Brinegar United pect, mistakenly but he shot and an killed (1949). 1302, 93 L.Ed. 1879 person. innocent We held that the offi- understanding “a mistaken Accordingly, person cer’s seizure of the innocent did not in the circum the facts is reasonable violate the Fourth Amendment because can render a seizure based on that stances the officer’s mistake was reasonable. See understanding under reasonable Bullock, also Culosi v. 596 F.3d Kibler, v. Fourth Amendment.” Milstead (4th Cir.2010) (“A mistaken use of (4th Cir.2001). Nearly 243 F.3d necessarily ... force is not a constitutional ago, recog two decades our en banc Court Amendment.”). violation under the Fourth chilling contrary that a nized effect “If precise rule would have on law enforcement: None of these cases involves the here, every subject “but, mistaken seizure were to present factual situation as in personal liability cases, officers to under all Fourth Amendment we are § those same come to officers would obliged to look to all the facts and circum- that the safe and cautious course realize in light princi- stances of this case always to take no action.” Gooden ples prior precedent. set forth” South Md., County, Howard 954 F.2d Opperman, Dakota v. (4th Cir.1992) (en banc)-, Torchin see also 3092, 49 L.Ed.2d 1000 These Siwinski, sky v. 942 F.2d where, here, instruct that an offi- cases Cir.1991) (“If reasonable mistakes were during made a mistake a search or cer has actionable, questions difficult of discretion seizure, must we consider the facts and always be in favor of inac

would resolved perceived circumstances as the officer tion, and effective law enforcement would an apply them and then standard lost.”). be over those facts to determine whether the doing was reasonable. and this officer’s mistake Supreme

Both Court Court so, repeatedly temptation that reasonable mis- we must avoid the to sec- found actions, summary judgment stage, once a especially at the ond-guess the officer’s has the relevant set of as hot court determined involving exigency such in a case all in favor of facts and drawn inferences pursuit. nonmoving party sup- to the extent C. record, portable by the the reasonableness Amend- of an officer’s actions Fourth proof the burden of bears purposes pure question ment “is a of law” a constitutional violation issue of whether than the by to be decided the court rather I, 501 F.3d at 377. We Henry occurred. view, jury. my prop- In the district court summary judgment de review an award the erly analyzed this case and reached novo, the same familiar Rule 56 applying correct result. applicable in the district court. standards F.3d Harvey, See Laber v. repeating: I stated above bears What (4th Cir.2006) (en banc). Summary judg not the Fourth Amendment does address if appropriate genuine ment is “there is no of otherwise lawful the accidental effects dispute any as to material fact and the conduct, § and 1983 does not government a matter judgment movant is entitled to injuries resulting from purport to redress 56(a). pur of law.” Fed.R.Civ.P. For undisputed reasonable mistakes. The ma- consideration, summary judgment poses of terial facts establish as matter of law law identifies which facts Deputy way the substantive Purnell in no intentional- material, “[o]nly disputes ly power are and over “misused” the of his office. Rather, the of the might lawfully attempting facts that affect outcome to ar- he was governing properly under the law will Henry, potentially suit rest which in itself is a encounter, preclude entry summary judgment.” the dangerous Henry heightr Inc., 477 Liberty Lobby, Anderson v. danger by ened the his decision to flee. 91 L.Ed.2d 202 S.Ct. limitation on the Properly recognizing the Harris, force, In Scott v. 550 U.S. Deputy use of Purnell at- tempted stop Henry.8 381 n. to use the Taser to (2007), situation, Deputy In the Supreme rapidly evolving the Court instructed noted, right suspect 8. As "the to make an arrest ... cers had no reason to that the believe necessarily right weapon, carries with it the to use had a and the result of the force was degree physical suspect’s or threat death. The some coercion the administrator also Graham, argued jury thereof to effect it.” 490 U.S. at that a rational could have found Henry police depart- 109 S.Ct. 1865. does not claim that the officer failed to follow Deputy procedures by (among things) Purnell’s decision to use the Taser ment other not I, calling deploying was unreasonable. See 501 F.3d at out "Taser” before it. 635 Therefore, 382 n. 11. we need not decide that F.3d at 359-60. Nonetheless, issue. I believe that a recent Properly recognizing that the reasonable- Eighth case from the Circuit is instructive on ness of the officer's actions must not be this issue. judged hindsight, Eighth the Circuit af- Harrison, entry summary judgment McKenney firmed the In 635 F.3d 354 Cir.2011), reaching favor of the officers. In this conclu- the used a Taser while at- sion, tempting stop suspect the a misdemeanant court held that the officers could fleeing Upon being by reasonably interpreted suspect's from from arrest. hit the sud- Taser, suspect during the fell out of a second- den movement toward the window the arrest, story support attempt they window to his death. arrest as an to evade lawsuit, suspect’s prevent § predicat- which were entitled to force to thus use Amendment, suspect's escape. ed “[a]l- on the Fourth the administra- The court noted that suspect’s argued though charges tor of the estate that the were limited to misde- meanors, executing Taser use was the arrest the officers the warrant excessive because offenses, required suspect] [the warrants were based on minor were not to let run officers, suspect never threatened the free.” Id. at further held that offi- 360. court of the Fourth Amend meaning and within the the Glock mistakenly drew reason, as a matter of law. For ment fired it. Henry’s Deputy Purnell did violate Court has instruct Supreme Again, right Amendment to be free from Fourth some latitude for we must “allow ed that seizure, summary an unreasonable are made officers mistakes that honest favor judgment deputy’s appropri process and difficult dangerous in the Russell, See, e.g., 247 F.3d at 130 ate. Garrison, making arrests.” (“Given the uncontroverted evidence as to Purnell’s mis Deputy immediately before perceived what Russell unfortunate, but it was is indeed take there is a firing, we do not believe that was made nonetheless one evidentiary for a legally sufficient basis dangerous circum potentially tense and jury rational to find for Anderson on Henry’s flight from arising from stances Accordingly, issue of excessive force. we any present has failed to arrest. judgment hold that Russell was entitled to that this to demonstrate material evidence as a matter of law on the excessive force other than an honest anything mistake was added)).10 Therefore, (emphasis claim.” the mistake is reasonable one.9 died, upon by suspect "honest standard relied despite that the the use mistake” the fact Deputy directly Supreme Taser was not excessive. The court Purnell comes from required to pointed out that the officer "was precedent, obviously Court and it refers to an suspect] sought split as [the react in a second However, objectively reasonable mistake. in only eight escape through a window six to to assessing the reasonableness of the attempt- away,” alternative of "[t]he feet mistake, we must consider the officer's sub- suspect] by tackling ing him [the to subdue jective intention in to order understand safety posed the of the officer and did a risk to See, Hill, e.g., he in fact made a mistake. a arrest.” Id. ensure successful not 803-04, ("The upshot U.S. at 91 S.Ct. 1106 binding precedent McKenney not for this is good faith was that the officers in believed However, certainly suggests that Court. it They Miller Hill him. were and arrested reasonably making Deputy in Purnell acted out, quite wrong subjective as it turned to use the Taser. Even before the decision good-faith justify belief would not in itself day question, Henry had demonstrated the subsequent the the search. either arrest or apprehension, avoid and his his intent probability, certainty, the But sufficient simply that in- flight from arrest confirmed touchstone of reasonableness under the McKenney, Dep- had tent. Like the officers Amendment and on the record before Fourth Taser, against using uty decided the the mistake was understandable us officers' (1) stop chasing options were either to his response to the and the arrest reasonable (2) get away Henry and allow him to or chase time.”). facing situation them at the Henry having engage him in a and risk (assuming physical he could even encounter course, him). option, majority my analysis under either catch Of 10. The asserts that "im- Henry Deputy prospect suspects may Purnell faced the plies fleeing appre- be that all during either armed or could arm himself through deadly hended the use of force.” See flight. Unquestionably, the Fourth his Majority Op., majority Either the at 532 n. 9. require Deputy did not Purnell to Amendment indifferent to the misunderstands or is con- pursue of action. either of these courses facts, law, my opinion. trolling material clear, analyzed properly, To be when this case Deputy majority Purnell for ar- 9. The chides Deputy is not about the reasonableness of summary judgment guing that he is entitled deadly It is about the Purnell’s use of force. mistake,” noting because he made an "honest stipulated mistake in reasonableness of his honesty that it is "not the of Purnell's inten- attempting to be a to use what he believed constitutionality of tions that determines the address, My analysis does not even Taser. Majority Op., at conduct.” See 532. Of justify, use of course, much less the intentional is a term of com- "honest mistake” force, Henry agrees pres- which even is not parlance denoting act that is done mon an unintentionally malice. The ent. and without menacing no D. conduct and violent criminal history.” at Majority Op., 532. This as- otherwise, majority concludes hold- incorrectly Henry, focuses on sertion question ing that whether arrestee, ignores Supreme Court’s a Fourth Amendment vio- has established concerning potential admonition dan- so, jury. doing lation is for ger flows from the fact of the arrest majority equates Deputy Purnell’s conduct itself, as as our admonition that an act well rogue officer who intention- with danger of resistance increases the to both an ally shoots at unarmed misdemeanant. bystanders. ques- officer and Without (“The objec- at Majority Op., See 531-32 tion, suspect’s known dangerousness can tive circumstances of this case are that arrest, heighten potential danger of an fleeing suspected Purnell shot a misde- may but that a suspect the fact not appear meanant he had no reason to believe whom glance dangerous first to be does not threat.”). majority was a I believe the necessarily negate danger the inherent erroneously this conclusion im- reaches the arrest. properly viewing through this case the lens hindsight only to minimize not the in- event, In any majority’s assertion arrest, danger every herent involved but ignores specific, undisputed fact that at specific danger also the this case that fled, Deputy the time Purnell had Henry’s from stemmed decision flee be- way knowing dangerous if he was being fore searched. because, reasons, among other he had not majority

For the example, repeatedly Iowa, yet searched him. See Knowles v. emphasizes that the arrest warrant was 113, 118, 484, 119 142 See, relatively e.g., for a minor crime. (1998) (noting that “the au- However, Majority Op., at 531-32. thority a full to conduct field search as danger making the faced an officer incident to an ‘bright-line arrest [is] custodial arrest flows from the fact of the rule,’ which [is] based the concern for grounds arrest itself and “not from the Moreover, safety”). Henry’s officer flight, Robinson, arrest.” United 414 States him which allowed to evade the search n. U.S. 234 94 S.Ct. 38 L.Ed.2d certainly incident to the arrest was suffi- (1973). Moreover, explained as we in deputy, any cient to cause the like reason- Russell, if suspected even the criminal ac- officer, suspect Henry, able to that like minor, tivity relatively is “that factor any circumstances, suspect other similar prove would irrelevant to our excessive may have been concealing something on analysis force because our focus is on the Wardlow, person. See Illinois v. they circumstances as at existed the mo- 145 L.Ed.2d ment force was used.” 247 F.3d at 132.11 (2000) (“Headlong flight it —wherever majority further states that “criti- occurs—is the consummate act of evasion: cally, presents nothing this case It suggest necessarily to is not indicative of wrongdo- Henry posed any threat ing, certainly suggestive whatsoever —no but it of seemingly ing struggle, 11. Even the Bryant most minor arrest can the course man- tragic consequences aged lead Cpl. Lyden’s flashlight for law enforce- to obtain See, e.g., Bryant, pistol magazine duty ment officers. State v. from the officer's belt (2007) (“In severely S.C. 642 S.E.2d Cpl. Lyden and used them to beat 2000, Cpl. Lyden placing beating June Dennis ... was about the head. After the officer un- conscious, Bryant driving Bryant Cpl. Lyden's pistol under arrest with a sus- took pended Bryant suddenly license when turned from him in the his holster and shot head at added)). Cpl. Lyden ground. range.'' (emphasis and wrestled to the Dur- close to these officer to resort such.”). majority discounts law enforcement Incredibly, the alternatives. ar- lesser arising from the danger any potential Deputy because Henry’s flight rest and erroneously minimizing In addition to mundane facts as where such Purnell knew dangerous nature of this potentially lived, wife and former em- who his Henry arrest, by engaging majority also errs are, vague he had some and that ployer See, second-guessing. inappropriate ar- after he was posting bail intention Perhaps the Majority Op., at 532-33. e.g., at Majority Op., 531-32. See rested. example of this is contained in telling most majority must concede Surely, the following passage: present nature could be of this facts Henry attempt in an pursued As he dangerous the most involving even cases minor, fairly non-violent arrest him for individuals.12 crime, Henry had his back to anyone him threatening and was majority’s view of under the

Simply put, any way. There was no evidence else facts, danger at Henry presented no did not have the course, indicating that Purnell this Purnell. Of Deputy all to to at he would have needed majority split-second what the question raises weapon at the he was hold- glance least in this situa- deputy had the do would have verify that it was his Taser ing to indeed merely enough to declare It is not tion. and not his Glock. been more careful. he should have mat- Rather, of this incident the context course, at we Majority Op., 533. Of now test ters, objective reasonableness and the “had his back to know —who If, as the in that context. must factor However, Dep- not armed. Purnell” —was believes, dangerous was not a majority luxury Purnell did not have the uty situation, deputy have used could rapidly evolving in the situa- knowledge deputy have been at all? Should tion, Taser what officers are trained and he did and, the Taser forego use of required fleeing suspect, focused on the to do: he instead, hope chase with weapon could have turned with who subduing by him moment, to him and catching up protect in himself any order force, have sub- majori- an act would physical any bystanders. innocent significant deputy men to the risk of should have jected ty’s both belief that the (and claim excessive force to focus his atten- injury possible “split-second” taken a Purnell), in a Henry might or should he have from be fine against Deputy away tion world, in real world it is away, taking run solace but the simply Henry perfect let en- during is which law split-seconds that he knew who his wife those in the fact (and earlier, bystanders) are officers lived? As I noted forcement and where he or killed.13 require a wounded Amendment does the Fourth an encounter on the running [U]nlike counter.... in the direction of his along highway, arrest an in-home street Had he entered the trailer before trailer. disadvantage being puts at the of the officer him, catch Deputy Purnell was able to adversary's 'turf.' An ambush in a on his deputy entitled to follow him would have been configuration setting is confined of unknown v. apprehend him. See United States inside to open, than it more more to be feared is 42-43, Santana, surroundings.”). familiar course, poten- Of 49 danger deputy have been to the would tial states, including Maryland, 13. Most Buie, magnified See 494 in that instance. sovereign immunity permit some waived ("The S.Ct. 1093 risk of U.S. at 110 injury negligent acts of for from claims in the home danger in the context of an arrest polential right to recover employees. A stale as, than, however, bearing great greater negligence, it is in has no if not for such is entirely separate issue of whether investigatory on the en- or roadside on-the-street (unlike action, III “Keystone er Kops” Robles) potentially personally is liable closing, help upon In I cannot but reflect monetary damages § under 1983. This peculiar by majori created result practical does not accord with the con- ty’s compared prior decision when to our struction which given must be to the precedent. George’s Robles v. Prince Gooden, Fourth Amendment.14 (4th Md., County, 302 F.3d Cir. Cf. (“It misguided application F.2d is a 2002), we held that officers who tied § expose 1983 to liability those who pole an arrestee to a metal in a deserted all indicia only trying were him parking lot and left there in the mid help.”). recently As we in Melgar stated night dle of the were immune from federal Greene, Cir.2010), 593 F.3d liability though they constitutional even “undisputed good intentions should not be known, know, “should have and indeed did used to make an inviting officer a more they acting inappropriately.” were target monetary damages.” (emphasis noting We did so while that their conduct Yet, Robles, original). compared to “type Keystone was a Kop activity that exactly is by majori- the result reached degrades subject those to detention and ty today. any that lacks conceivable law enforcement purpose.” Id. do, In deciding they my this case as colleagues in majority certainly perhaps

The same take cannot be said about comfort in the fact Deputy the outcome of Purnell’s conduct. Instead of do- Deputy ing something that Purnell’s mistake is rather ex inappro- he knew was priate, Deputy (although certainly treme much attempted to do the less ex Milstead) right thing under the treme than the rapidly evolving and fatal mistake in potentially dangerous jury and that may any circumstances he event ultimate However, was in. ly Nonetheless, because he made a find in mis- his favor.15 I be take in his execution of an prop- otherwise lieve that law enforcement officers should case, against federal constitutional claim during the officer involved in proceed- it arose cognizable court, § ings under 1983. As we have ex- in the district and we did not plained, "allegations negli- of a defendant's endorse its relevance in I. See 501 F.3d gence do not (quoting state constitutional at 383 regarding claims district court orders against training); such a ("Apart defendant.” Covenant Media 501 F.3d at 384 from our SC, Charleston, occurred, City LLC v. N. determination 493 F.3d that a seizure we ex- (4th Cir.2007) (citation press opinion punctua- on the ultimate merits case.”). omitted); tion see also Dow Chem. Co. v. States, United 476 U.S. 106 S.Ct. recognize I that in we Robles held that the (1986) ("State 90 L.Ed.2d 226 tort law plaintiff’s officers violated the constitutional does not define the limits of the Fourth rights granted qualified immunity. and them Amendment.”). Although my view we need not decide the Moreover, Deputy even if Purnell was insuf- case, qualified immunity issue of in this the Taser, ficiently trained to use the it is difficult result in Robles illustrates the odd result potential personal to liability discern how his today by majority. reached the hinges for a constitutional violation on wheth- superiors adequately er his trained majority correctly him. 15. The cites Scott for the Cf. Canton, Harris, City proposition OH v. that once we view the facts in the (1989) light Henry, most favorable to the reasonable- (noting "adequately Deputy trained occa- pure officers ness of Purnell’s conduct is a mistakes; sionally they make question Majority the fact that do Op., of law. See at 531-32. However, says training program little about the applying or the principle, instead of this

legal liable”). holding city majority basis for the jury To the remands the issue for a to the training extent that the issue has been make that decision. more, majority today’s opinion fuse matters the declines to close to how pay attention address, in this change analysis, the law circuit. in its Officer appears to Purnell’s Henceforth, are because, concludes, law enforcement officers it the mistake mistake (1) apparently this notice that Court on “subjective to Purnell’s was limited Officer Supreme Court’s view does not share have place beliefs or intentions [which] dangerous; presumptively are that arrests analysis.” in our constitutional It thus (2) case, given in a prepared this is Court disregards the substantial evi- involving pursuit, to sub including hot one mistake, parties’ dence of as well as the for the difficult and judgment its stitute stipulation that Officer Purnell made a they face on the dangerous circumstances mistake. their actions second-guess streets and to addition, majority recog- In fails to basis; second-by-second and literally on a nize, rejecting qual- when Officer Purnell’s (3) made an when an officer has honest immunity, ified that no officer can have execution proper mistake in the otherwise of a preexisting knowledge mistake before duties, this is content to of his Court Supreme is the mistake made. Court with intentional mis equate that mistake repeatedly and our court have acknowl- permit worst and to conduct of the sort do, edged the fact reasonable officers reasons, I to same. For these jury do the indeed, in undertaking make mistakes today represents that the decision believe duties, and their when the mistake is an precedent significant departure from mistake, they honest are not held liable for Supreme and of this Court. Court violating the Fourth Amendment of the Only tell this time will whether decision Constitution. Court, chilling effect that this sit has banc, ting en warned about almost Judge I to pleased am concur in Shedd’s is, law years ago: prompting enforce I separately fine and write here opinion, to choose inaction order to ment officers only majority’s analysis, address liability. See risking personal avoid Goo submit, which, respectfully I takes our den, 954 at 967. F.2d immunity jurisprudence far afield subject will well-intentioned hereafter foregoing, respectfully

Based I who make mistakes officers the field dissent. liability unprecedented. a level of Judge Agee Niemeyer Judge they join me to indicate that authorized I opinion. Purnell, 29-year law Officer veteran NIEMEYER, Judge, dissenting: Circuit officer, did, majority as the enforcement relates, attempt serve with its effort deal with Officer Pur- arrest, outstanding warrant for his as it shooting Henry nell’s conceded mistake in duty officer’s to do. After Officer fleeing, majority opinion while blurs Henry, he him he Purnell identified told mix, applies, in a distinct three stan- attempted was under arrest and to hand- (1) the dards constitu- reasonableness — stated, cuff As Officer Purnell “I had him. tional standard of reasonableness hold, right I if it was or [recall] don’t the force; (2) measuring the use of the arm, trying I to him get left but was immunity standard reasonable- At point, Henry handcuffed.” resist- ness of an officer’s under- awareness (a (3) Purnell fact dis- law; pushed ed and Officer clearly standing of established puted by Henry) such that Purnell for the Officer the reasonable-man standard com- caught And “fell himself on his negligence. mon law tort of to con- backwards” physical injury to the right leg. car and his Officer Purnell tes- serious officer or others, Henry’s suspect’s tified that he considered action to the officer violates the Henry rights, be an assault on him. When then Fourth citing Amendment Tennes ran, Garner, pulled Officer Purnell out what he see v.

thought stop Henry. was his Taser to Observing that “this Henry, however, it at When fired Offi- presents nothing suggest Henry case to pop, cer Purnell heard “a and realized a whatsoever,” posed any majori threat that at that point mistake.” Purnell stated ty concludes that Officer Purnell’s conduct immediately “I ran him. I told him I in shooting Henry objective was therefore wrong I I sorry pulled weapon. was Ante, ly at unreasonable. 531-32. was picked up my my mic which carried on Turning the stipulated to address mis- Central, thing here and radioed Somerset take, majority that “it is not states man advised them that a had been shot.” honesty of intentions that Purnell’s deter- person Purnell then told the was with constitutionality conduct; mines the of his Henry house to go get to the some ice rather it is the reasonableness of ” Henry’s forehead, and a rag put wet Ante, (emphasis his actions. at add- and Purnell himself administered first aid. ed). mistake, addressing any Rather than Henry then remained with until majority opinion then makes what I medical assistance and other officers ar- suggest major wrong is the first turn. It rived. justifies its that Officer Pur- conclusion Henry disagree does with these nell’s seizure constitutionally facts, except pushing as to his Officer Pur- by concluding unreasonable that Officer Indeed, nell. stipu- the district court he Purnell’s actions were not reasonable un- lated to the Officer fact that Purnell had der a tort negligence. standard of It be- mistakenly handgun used his instead of his gins negligence analysis, “There were Taser. several facts that Purnell knew or should have known that would have any alerted

This fact of honest mistake should re- reasonable fact that officer to the he was quire our finding, Judge Shedd ably has Ante, holding his at Glock.” 532. The set forth in opinion, his that Officer Pur- opinion then devotes substantial attention nell’s seizure of did not violate the to the facts of negligence. Officer Purnell’s Fourth Amendment. While Officer Pur- It justify lists at finding: least four to its deliberately nell intended to use a Taser to (1) “Purnell knew he carried his Taser stop Henry, handgun his use of to shoot thigh, the holster in right his which was Henry was neither intended nor deliberate about a foot than the holster lower on his plainly nor so incompetent, as to constitute Ante, (2) hip that held his Glock.” an unreasonable seizure under the Fourth weight “Purnell could weap- feel the Amendment. hand, which, on he held at about 38 II ounces, nearly weight twice of his (3) Ante, Taser.” at 533. “Purnell majority knew opinion, applying three safety the Taser had a thumb separate reasonableness, had to standards of con flipped weapon. ducts be to arm syllogism basically The Glock ignore the fact of he was opinion begins holding safety.” mistake. The had thumb with Ante, (4) And, at 533. “There unremarkable observation that when a was no fleeing indicating officer evidence that Purnell suspect shoots with did not probable out split-second cause to believe that have the he would the sus have need- pect poses significant a threat glance weapon of death or ed to at least the at he was

555 as he out to verify gun stop that it was indeed his use his set holding to Ante, mistakenly with shot him with the Glock.” 533. a Taser and not Taser gun. prior a He could not have had facts, the pointing out ma- After these that knowledge and therefore understood that Officer opinion then concludes jority Henry. he to In the was about shoot objectively rea- Purnell’s were “not actions qualified immunity stan- language Ante, at That conclusion sonable.” dard, “reasonably could not have be- to the further conclusion surely would lead “reasonably anticipated” lieved” that his or negligent Purnell was because that Officer clearly would violate established actions a actions not those of reasonable his were has Supreme law. The Court acknowl- not conclusion that man. But this is the edged, will not liable “Federal officials be be in order to decide wheth- must reached judgment, mistakes in whether mere qualified receive immuni- er should the is one of fact or of law.” mistake one ty. Economou, 478, 507, Butz v. 438 U.S. Officer Purnell To determine whether (1978). S.Ct. L.Ed.2d dispositive enjoyed qualified immunity, the Moreover, the pur- relevant conduct for to inquiry would have be whether a rea- poses determining qualified immunity officer, light clearly estab- sonable mistake, would be the the act of Purnell’s law, reasonably could believe that lished reaching pulling for the and in fact Taser Katz, his actions were lawful. Saucier course, gun. readily And of it can be 194, 206, 121 S.Ct. 533 U.S. clearly concluded there is estab- general L.Ed.2d 272 “The rule of governing lished law when such a mistake provide is to qualified immunity intended would under be unreasonable the Fourth ability government officials with the ‘rea- Amendment. sonably anticipate their when conduct [to] ” may give liability damages.’ rise to however, majority opinion, fails to 635, 646, Creighton, Anderson v. 483 U.S. qualified immunity address standard. (1987) (em- It completes syllogism, concluding its after added) Scherer, Davis v. phasis (quoting Purnell’s conduct unrea- Officer (1) sense, by tort dismissing sonable (1984)). This reasonableness “good Purnell’s inten- Officer mistake inquiry related to determination of (2) tions,” concluding that Officer Purnell’s qualified immunity designed objec- “subjective intent play or beliefs no role” tively knowledge consider under- (3) analysis, in the constitutional re- standing an officer would about premise, stating to its is un- turning what applicable the law his actions irrelevant, disputed “under two prong but circumstances he faced. immunity it qualified analysis], [of words, immunity

In would have been clear to reasonable qualified other analysis shooting fleeing, a officer that is meant determine whether nonthreat- ening reasonable officer the defendant’s shoes misdemeanant with firearm was unlawful,” that his that never should have known conduct was conclusion address- stipulated unlawful. es the mistake. standard, concluding an officer in this

Under who mistake account, always into makes honest mistake will re- case could not be taken be- can cause it to Officer Purnell’s immunity ceive because he was limited intent, subjective majority its never be on notice that his conduct is commits recognize unlawful. final It the exis- Officer Purnell did intend to error. fails objective of evidence he tence the substantial the fact that meant to shoot a Taser record, beyond Purnell’s Instead, in the Officer gun. instead of it considers mind, indisput- subjective state of which only shooting the officer’s ultimate act of pointed to the fact mistake. As ably then gun the and concludes that Officer persons numerous the witnessed Purnell unreasonable. scene, Henry, after Officer Purnell shot majority’s analysis The dif- also has the immediately Purnell and ran to ficulty suggesting of now that an officer to him in of oth- apologized presence the can the Fourth with violate Amendment ers, telling Henry that he did not intend to merely negligent conduct. him gun. with the then shoot assistance; requested called for medical be most We should reluctant to narrow forehead; rag a wet for Henry’s ice and scope qualified immunity the do in as we aid; administered first with and remained determining this case. “[I]n what circum Henry until Were assistance came. this may deciding stances a court consider in enough, in stipulated then claims qualified immunity, we choose that Officer Purnell indeed case had made evils any ‘between the inevitable in avail a mistake. ... qualified able alternative.’ immu Accordingly, in the dismissing mistake nity recognizes doctrine can officials from the constitutional analysis because it act fear of harassing litigation only without intent, limited to subjective Purnell’s reasonably if they can when anticipate majority the had to overlook the substan- may give liability their for conduct rise to parties’ tial evidence only damages unjustified if lawsuits stipulation. Scherer, quickly are terminated.” Davis v. is, The fact of in mistake this case to be 183, 195, 468 U.S. S.Ct. sure, an element may render the tra- (1984) added) (emphasis analysis qualified ditional constitutional (quoting Fitzgerald, Harlow v. immunity nonsensical because it is nonsen- 800, 813-14, 102 S.Ct. L.Ed.2d sical to ask whether an reasonably officer (1982)). mistake, that a believes which about sure, presents To be this case a difficult knowledge, could have no advance would analysis general qualified immunity clearly violate established Inherent- law. jurisprudence. And its re- difficulty is ly, a mistake is not known or understood fact that flected the case been has beforehand so as to enable an officer to times, before Fourth giv- Circuit three the understanding have or about belief ing divergent opinions rise whether it would clearly among violate established judges law. court. But if this court is uncertain as the state of the Fourth of grappling difficulty Instead with the mistake, involving Amendment cases fitting this core fact into the surely no reasonable officer could immunity analysis, majority simply fully understood the limits of See liability. deems the mistake to be irrelevant. And — al-Kidd, -, the majority purports apply when the Ashcroft (2011) objective standard of constitutional reason- (holding that an officer plainly was not ableness—a standard that measures rea- incompetent knowingly did not violate understanding sonable officer’s belief least eight law “not because given about lawfulness of Court his actions ignores Appeals judges agreed judgment circumstances —it fac- with his primary going decisionmaking, tor into the impression”). officer’s a case of first un- bottom, I case At believe immunity jurispru- our

dermines and, unfortunately, subjects this of-

dence making what liability for personal

ficer to honest mistake unquestionably his official duties.

carrying out advanced

I affirm for the reasons would

by Judge Shedd. Goodrich; BRAUN; Joseph L.

Heather Keefer; Morrow; Rob

George Kristi Mumma; Rodriguez; Joseph L.

ert Sowers; Ward,

Jeremy Plain Amber

tiffs-Appellants,

Gary MAYNARD; Michael Stouf D. J.

fer; Horning; V. D. Kenneth James Walls;

Peguese; Kenneth Frederick Tonya Leonard;

Frick; Ral Rhonda

ston; Doe, in their individual John Mary

capacities employees Safety Department Public

land Services, Defendants-Ap

Correctional

pellees.

No. 10-1401. Appeals,

United States Court

Fourth Circuit.

Argued: May 2011. July

Decided: Schulte, Robert David

ARGUED: PC, Baltimore, Booth, Maryland, Schulte Appellants. Doyle, Michael O’Connor

Case Details

Case Name: Henry v. Purnell

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 14, 2011

Citation: 652 F.3d 524

Docket Number: 08-7433A

Court Abbreviation: 4th Cir.