Officer Not Liable for Mistaking Gun for Taser

(CN) - A Maryland police officer did not use excessive force when he mistakenly shot a man in the elbow with his .40-caliber Glock instead of a Taser, the 4th Circuit ruled, because he had no way of knowing that his "weapon confusion" would violate the suspect's constitutional rights.

In a 2-1 decision, the federal appeals court in Richmond, Va., acknowledged that Deputy Sheriff Robert Purnell may have acted unreasonably in pulling his gun Frederick Henry, but the officer is nonetheless entitled to qualified immunity on Henry's excessive force claims.

Judge G. Steven Agee explained that Purnell "lacked 'fair notice' regarding the potential unlawfulness of his" conduct.

"At the time of the shooting, case law did not exist that applied the Fourth Amendment to the specific context in which Deputy Purnell acted," Agee wrote for the majority.

"Deputy Purnell could not have been on notice because no case gave him fair warning that such weapon confusion violated the Fourth Amendment as a use of excessive force."

The accidental shooting happened outside Henry's trailer, where Purnell tried to arrest him for failing to pay child support. As Henry ran toward his trailer, Purnell drew what he thought was his Taser and fired, hitting Henry in the elbow.

"Only when Purnell heard the distinctive 'pop' of the firearm did he realize his mistake," the ruling states. "Deputy Purnell told Henry that he 'was sorry' for the shooting and that he had 'pulled the wrong weapon.'"

Henry sued Purnell for allegedly violating his Fourth Amendment right against unreasonable search and seizure by use of excessive force.

Purnell argued that he never "seized" Henry, and that he was entitled to qualified immunity because the shooting was an unintentional mistake.

The 4th Circuit agreed.

The officer's "drawing of his firearm, instead of the Taser, was a good-faith, unintentional mistake of weapon confusion," Agee wrote in a footnote.

"This mistake clearly influenced Purnell's assessment of the legality of his conduct," the ruling states. "Purnell has never asserted that he could permissibly use deadly force to halt Henry's flight, but he has consistently argued that his intended use of a Taser was appropriate."

In a strongly worded dissent, Judge Roger Gregory said Henry's Fourth Amendment rights were violated because he was unarmed and did not pose a threat to Purnell or anyone else.

"By allowing an unreasonable mistake to serve as the basis for establishing qualified immunity and focusing its inquiry on Officer Purnell's intent rather than his or the suspect's objective behavior, the majority impermissibly transforms the doctrine of qualified immunity into a subjective inquiry that excuses, not guides, reasonable officer conduct," Gregory wrote.

"We sacrifice both liberty and security when we allow police officers to shoot unarmed suspects without any reasonable basis for doing so."

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