Henry v. Purnell

Rehearing en banc granted, January 4, 2011

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FREDERICK P. HENRY, 

Plaintiff-Appellant,

v.  No. 08-7433

ROBERT PURNELL,

Defendant-Appellee.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, District Judge.

(1:04-cv-00979-JFM)

Argued: March 23, 2010

Decided: September 24, 2010

Before GREGORY and AGEE, Circuit Judges, and

Eugene E. SILER, Jr., Senior Circuit Judge of the

United States Court of Appeals for the Sixth Circuit,

sitting by designation.

Affirmed in part, reversed in part, and remanded with instruc-

tions by published opinion. Judge Agee wrote the majority

opinion, in which Senior Judge Siler joined. Judge Gregory

wrote a dissenting opinion.

COUNSEL

ARGUED: Katherine Louise Bushman, GEORGETOWN

UNIVERSITY LAW CENTER, Appellate Litigation Pro-

2 HENRY v. PURNELL

gram, Washington, D.C., for Appellant. John Francis Breads,

Jr., Hanover, Maryland, for Appellee. ON BRIEF: Steven H.

Goldblatt, Director, Charlotte J. Garden, Supervising Attor-

ney, May K. Chiang, Student Counsel, Kate G. Henningsen,

Student Counsel, GEORGETOWN UNIVERSITY LAW

CENTER, Appellate Litigation Program, Washington, D.C.,

for Appellant.

OPINION

AGEE, Circuit Judge:

Robert Purnell, a deputy sheriff in Somerset County, Mary-

land, attempted to execute a warrant for Frederick Henry’s

arrest. Henry fled on foot and Deputy Purnell gave chase,

mistakenly drawing his firearm, instead of his taser, and

shooting Henry in the elbow. As a result of this incident,

Henry filed a § 1983 suit against Deputy Purnell in the United

States District Court for the District of Maryland, asserting

that Purnell used excessive force in effecting his arrest. The

district court ultimately concluded that Deputy Purnell’s mis-

take was reasonable and granted his motion for summary

judgment. For the following reasons, we affirm in part and

reverse in part the judgment of the district court, and remand

with instructions.

I.

We begin by summarizing the factual background, viewed

in the light most favorable to Henry, as this is the appropriate

standard in reviewing the facts upon an award of summary

judgment. See George & Co. LLC v. Imagination Entm’t Ltd.,

575 F.3d 383, 392 (4th Cir. 2009). In 2003, the Circuit Court

for Somerset County, Maryland ordered Henry either to pay

child support or report to jail on a specified date. When Henry

failed to comply with the court’s order, the Somerset County

HENRY v. PURNELL 3

state’s attorney charged him with second degree escape and

obtained a warrant for his arrest.1 Deputy Purnell was tasked

with executing Henry’s arrest warrant.

Purnell went to Henry’s last known address and encoun-

tered an unidentified male sitting on the steps of a nearby

trailer. The unidentified male indicated that he was a friend of

the family who was helping to mow the grass and that Henry

was not present. The man explained to Deputy Purnell that

Henry lived "somewhere on Hampton Avenue in Princess

Anne" and that he was working in Ocean City for a company

called American Paving. Joint Appendix ("J.A.") at 220.

Purnell asked the man to tell Henry that there was an out-

standing warrant for his arrest and that if Henry would contact

him, he "would try to help him out." Id. at 221. Purnell also

wrote his name and telephone number on a piece of paper,

which he asked the man to give to Henry. The unidentified

male stated that he would give the paper to Henry’s wife, who

was inside the trailer. The man entered the trailer and then

returned, stating that he had given the note to Henry’s wife.

Although Deputy Purnell suspected the man was Henry, he

thanked the man and left.

Deputy Purnell subsequently drove to the local office of

American Paving to inquire about Henry’s employment. He

was informed that Henry no longer worked for American Pav-

ing, but that the company’s business records contained a per-

sonnel photograph. From this photograph, Purnell was able to

determine that the unidentified male at the trailer was, in fact,

Henry.

1

Under Maryland law, an individual who "knowingly fail[s] to obey a

court order to report to a place of confinement" is guilty of second degree

escape. MD. Code Ann., Crim. Law, § 9-405(a)(2) (West 2003). A person

guilty of the "misdemeanor of escape in the second degree . . . is subject

to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or

both." Id. § 9-405(b).

4 HENRY v. PURNELL

Upon returning to Henry’s residence, Deputy Purnell

knocked on the trailer door and spoke to Henry’s wife. Mrs.

Henry had not received the note Purnell had left earlier that

day, but she allowed him to enter the home to search for Mr.

Henry, who was not present. She also informed Deputy Pur-

nell that her husband’s employer drove a white truck and

lived in Princess Anne, Maryland. The following day Purnell

received a phone message from Mrs. Henry indicating that

she had given Mr. Henry his message and that Mr. Henry had

traveled to Baltimore to raise money for bail.

Several days later, on October 23, 2003, Deputy Purnell

was parked in his patrol car when he observed a white truck

with three male occupants heading in the direction of Henry’s

trailer. As the truck passed, the man seated next to the truck’s

passenger window turned his head away from Deputy Purnell.

His suspicions aroused, Purnell drove to Henry’s residence

and found the white truck parked in the driveway.

Deputy Purnell parked his patrol car behind the truck,

exited his vehicle, and determined that all three men were still

in the truck. He approached the driver’s side of the vehicle

and asked each man if he was Frederick Henry. Each man ini-

tially said no. When Purnell asked the same question a second

time, however, Henry admitted his identity. At this point,

Henry exited the truck and moved along with Deputy Purnell

to the rear of the truck. Henry then ran in the direction of his

residence with Purnell giving chase. While running in pursuit

of Henry and keeping his eye on "the target," i.e., Henry,

Deputy Purnell drew what he believed was his taser. Id. at

269. After three to five seconds, Purnell discharged what was,

in fact, his firearm, striking Henry in the elbow.2

Only when Purnell heard the distinctive "pop" of the fire-

arm did he realized his mistake. Id. at 272. Deputy Purnell

2

It is undisputed that the entire flight, chase, and shooting spanned no

more than ten seconds.

HENRY v. PURNELL 5

told Henry that he "was sorry" for the shooting and that he

had "pulled the wrong weapon." Id. at 273. He also contacted

the dispatcher to obtain medical assistance for Henry and

allowed one of Henry’s companions to retrieve ice and a

towel from Henry’s residence. Once another officer arrived

on the scene, Deputy Purnell took a pressure bandage from

his vehicle and applied it to Henry’s arm. An ambulance sub-

sequently transported Henry for medical treatment.

II.

We now turn to this case’s lengthy procedural history.

Henry filed suit under 42 U.S.C. § 1983 in the United States

District Court for the District of Maryland on March 24, 2004,

alleging that Purnell violated his Fourth Amendment right to

be free from seizures effectuated by excessive force. In

response, Deputy Purnell filed a motion requesting that the

district court dismiss Henry’s complaint or grant summary

judgment in his favor. Purnell argued that he had not "seized"

Henry and, in the alternative, that he was entitled to qualified

immunity. After concluding that disputed issues of material

fact did not permit judgment as a matter of law, the district

court denied Purnell’s motion.

Upon appeal to this Court, Purnell argued the record did

not support the district court’s conclusion that a factual dis-

pute precluded it from granting judgment as a matter of law

and that he was entitled to qualified immunity. Because we

lacked jurisdiction to entertain an interlocutory appeal on

qualified immunity based on "the district court’s factual find-

ings," we dismissed the appeal. Henry v. Purnell, 119 Fed.

Appx. 441, 443 (4th Cir. 2005) (unpublished).

Henry subsequently was granted permission from the dis-

trict court to amend his complaint to add a claim for excessive

force predicated on the Maryland Constitution’s Declaration

of Rights. The parties also engaged in discovery and entered

into an evidentiary stipulation that Deputy Purnell "intended

6 HENRY v. PURNELL

to unholster and discharge his Taser M26 which was mounted

in a thigh holster below his service weapon, a Glock .40 cali-

ber handgun. Instead, he unholstered and fired his service

weapon, believing that it was his Taser M26." J.A. at 30.

Thereafter, Deputy Purnell filed a second motion for sum-

mary judgment in which he argued that Henry had not been

"seized" and that the parties’ stipulation that the shooting was

an unintentional mistake disposed of Henry’s Fourth Amend-

ment claim. Henry opposed the motion on three grounds, pos-

iting that the shooting did constitute a seizure, that

outstanding issues of material fact required resolution by a

jury, and that Purnell was not entitled to qualified immunity.3

Henry also requested the district court compel Purnell to dis-

close information relating to his taser and firearm training and

departmental policy regarding the use of force. Based on its

conclusions that (1) Deputy Purnell had "seized" Henry

within the meaning of the Fourth Amendment and (2) several

outstanding factual issues precluded an award of qualified

immunity, the district court denied Purnell’s motion for sum-

mary judgment and granted Henry’s motion to compel. See

Henry v. Purnell, 428 F. Supp. 2d 393, 395-98 (D. Md. 2006).

Purnell appealed the district court’s order and contended

that the court erred in concluding that he "seized" Henry and

in failing to accord him qualified immunity. We affirmed the

district court’s determination that Purnell’s shooting of Henry

resulted in a Fourth Amendment "seizure." Henry v. Purnell,

501 F.3d 374, 381-82 (4th Cir. 2007). But we questioned

whether the district court applied the appropriate burden of

3

In his response to Deputy Purnell’s second motion for summary judg-

ment, Henry argued that several outstanding factual issues bore on the

question of whether Purnell’s mistaken use of his firearm was reasonable,

including (1) the omission of a verbal warning before Purnell fired, (2) the

lack of a thumb safety device found on the taser but not on the firearm,

and (3) the failure to utilize the visible laser sight emitted once the taser’s

safety mechanism was disengaged.

HENRY v. PURNELL 7

proof at the dual stages of the qualified immunity analysis.4

See id. at 383-84. Accordingly, we remanded the case for the

district court to "reassess the issue of whether a constitutional

violation occurred in light of the proper burden of proof and

the discovery materials that it ordered Purnell to produce." Id.

at 384. If Henry succeeded in "establishing that the seizure in

this case was unreasonable (i.e., that Purnell’s mistake in

using the Glock rather than the [t]aser was unreasonable)," we

indicated that Purnell would "have the opportunity to demon-

strate his entitlement to qualified immunity." Id.

On remand, Henry received the requested discovery relat-

ing to Purnell’s weapons training and the use of force policy.

Deputy Purnell then filed his third motion for summary judg-

ment, which emphasized that he had "no field training with,

or field use of, the [t]aser prior to the occurrence." J.A. at 115.

With this factor in mind, Purnell maintained that his mistaken

use of the firearm was reasonable, particularly as the holsters

issued by the sheriff’s department placed both the firearm and

the taser on the right side of his body.5

Henry opposed the motion by arguing that material facts

remained in dispute and that he had successfully established

a violation of the Fourth Amendment. On the merits, Henry

claimed that Deputy Purnell’s mistake was unreasonable

because he did not "comply with multiple police department

regulations," resulting in a "reckless failure to take steps to

avoid the impermissible use of excessive force." J.A. at 520-

21. Qualified immunity, in Henry’s view, was also improper

because it was clearly established that "reckless conduct on

4

We clarified that the plaintiff bears the burden of proof on the question

of whether the defendant’s conduct violated a constitutional right, while

the defendant bears the burden of proof on the question of whether that

right was clearly established at the time of the event. See Henry, 501 F.3d

at 377-78.

5

The holsters issued to Deputy Purnell placed the firearm on his right

hip and the taser on his right thigh.

8 HENRY v. PURNELL

the part of a police officer that directly leads to an accidental

or unintentional shooting violates the suspect’s Fourth

Amendment rights." Id. at 526. In any case, Henry maintained

that his state-law claim should survive a summary judgment

motion because statutory immunity under Maryland law

would apply only if a jury determined that Purnell’s conduct

was not "grossly negligent and/or reckless." Id. at 529.

The district court agreed with Purnell on the issue of rea-

sonableness and granted his motion for summary judgment.

See Henry v. Purnell, 559 F. Supp. 2d 648, 653 (D. Md.

2008). In reaching that conclusion, the district court framed

its analysis based on its understanding of the remand order

from this Court:

It is apparent from the opinion in Purnell II that

even when, in the Fourth Circuit’s view, the underly-

ing facts of the Henry/Purnell incident, viewed most

favorably to Henry, do not themselves give rise to an

inference that Purnell’s use of his Glock was unrea-

sonable. Otherwise, the court would have ruled (as

did I) that regardless of additional facts that might be

learned from discovery on the training issues, genu-

ine issues of material fact existed as to the reason-

ableness question. Therefore, I will focus my

analysis here upon whether any of the facts (and rea-

sonable inferences therefrom) that have been estab-

lished during the course of the additional discovery

would give rise to a finding of unreasonableness.

Id. at 652.

The court answered this last query in the negative after its

review of the additional discovery materials indicated "the

training that Purnell received concerning the use of a [t]aser

was quite minimal." Id. In ruling in Deputy Purnell’s favor,

the district court rejected Henry’s assertion that there were

factual issues related to Purnell’s failure to comply with his

HENRY v. PURNELL 9

training, which precluded the court from granting judgment as

a matter of law. The court indicated, for example, that it was

"not reasonably inferable from the record that Henry would

have complied with" a verbal warning or command to stop or

be tased. Id. at 652 n.3. It also dismissed as "speculative"

Henry’s claim that had the visible laser sight been used, a rea-

sonable officer would have known that he had drawn his gun

and not his taser. Id. Furthermore, the court deemed reason-

able Deputy Purnell’s failure to note the lack of a thumb

safety mechanism on his Glock, but present on his taser,

because Purnell had developed an "instinctive thumb motion"

while previously using a handgun that incorporated a similar

device. Id.

Because Maryland courts construe Article 26 of the Mary-

land Declaration of Rights "in pari materia with the Fourth

Amendment," Jones v. State, 962 A.2d 393, 400 n.2 (Md.

2008), the district court’s determination that Henry failed to

establish a Fourth Amendment violation disposed of both his

federal and state law claims. The district court, therefore, did

not consider whether Deputy Purnell was entitled to immunity

under federal or state law. See Henry, 559 F. Supp. 2d at 649

n.1.

Henry timely appealed the district court’s judgment and we

have jurisdiction under 28 U.S.C. § 1291.

III.

Whether a party is entitled to summary judgment is a ques-

tion of law we review de novo using the same standard

applied by the district court. See Canal Ins. Co. v. Distribu-

tion Servs., Inc., 320 F.3d 488, 491 (4th Cir. 2003); Dixon v.

Edwards, 290 F.3d 699, 710 (4th Cir. 2002). Summary judg-

ment is appropriate only if taking the evidence and all reason-

able inferences drawn therefrom in the light most favorable to

the nonmoving party, "no material facts are disputed and the

moving party is entitled to judgment as a matter of law."

10 HENRY v. PURNELL

Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir.

2003). Under this standard, courts in qualified immunity cases

usually adopt "the plaintiff’s version of the facts." Iko v.

Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (quotation omitted).

IV.

What is now before us is Henry’s challenge to the district

court’s order granting summary judgment in favor of Deputy

Purnell. Henry contends that the district court erred on two

grounds. First, he contends the district court erred in its

Fourth Amendment analysis by focusing only on the evidence

related to Deputy Purnell’s training, rather than on the totality

of the circumstances. See Opening Brief at 17. Second, Henry

maintains the district court erred in resolving disputed factual

issues in favor of Purnell and in failing to view the facts and

related inferences in the light most favorable to him. See id.

at 38-40.

Henry recognizes, however, that even if summary judgment

should not have been granted on his Fourth Amendment

claim, Purnell may still claim entitlement to qualified immu-

nity. Consequently, he also argues that Deputy Purnell vio-

lated clearly established law in using "deadly force against a

fleeing, unarmed, and non-dangerous suspect." Id. at 42. And

even if qualified immunity invalidates his federal claim,

Henry posits that his state law claim should survive summary

judgment because "[w]hether an officer’s actions are grossly

negligent, and therefore unprotected by statutory immunity, is

generally" a question reserved for the jury. Id. at 47.

Deputy Purnell responds that the short time period in which

he had to act and his unfamiliarity with the gun and taser ren-

dered his mistaken use of the firearm objectively reasonable.

See Response Brief at 19. Arguing that our prior decision in

this case "was the first to hold that the Fourth Amendment

was even implicated in the event of a mistaken application of

deadly force through weapon confusion," Purnell further

HENRY v. PURNELL 11

asserts his entitlement to qualified immunity. Id. at 20. He

also seeks the protection of state statutory immunity based on

the absence of "evidence in [the] record of gross negligence."

Id.

We consider these arguments in turn.

A.

The Fourth Amendment’s prohibition on unreasonable

searches and seizures encompasses the right to be free of "sei-

zures effectuated by excessive force." Schultz v. Braga, 455

F.3d 470, 476 (4th Cir. 2006). Whether a degree of force is

reasonable is measured "by a standard of objective reason-

ableness." Clem v. Corbeau, 284 F.3d 543, 550 (4th Cir.

2002). Courts accordingly inquire "whether the officers’

actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them." Graham v. Connor, 490

U.S. 386, 397 (1989). With this foundation in mind, we first

consider Henry’s argument that the district court erred in

focusing its Fourth Amendment analysis on the additional dis-

covery related to Deputy Purnell’s weapons training.

Properly applying the test of objective reasonableness

requires courts to give "careful attention to the facts and cir-

cumstances of each particular case." Id. at 396. The reason-

ableness of an officer’s use of force is a fact-bound question,

which turns on the "totality of the circumstances." Young v.

Prince George’s County, 355 F.3d 751, 757 (4th Cir. 2004).

Determining "what a ‘reasonable officer on the scene’ would

have done" thus depends on a careful weighing of all of the

relevant facts. Sigman v. Town of Chapel Hill, 161 F.3d 782,

787 (4th Cir. 1998) (quoting Graham, 490 U.S. at 396). In

other words, courts determining whether an application of

force is objectively reasonable must consider "‘the totality of

the circumstances,’" which includes (1) the severity of the

crime at issue, (2) whether the suspect posed an immediate

threat to the officer or others, and (3) whether the suspect was

12 HENRY v. PURNELL

attempting to resist or evade arrest. Graham, 490 U.S. at 396

(quoting Tennessee v. Garner, 471 U.S. 1, 9 (1985)). With all

of the relevant circumstances before it, a court may then prop-

erly balance an individual’s Fourth Amendment interests and

the Government’s countervailing law enforcement concerns.

See id.

Here, the district court "focus[ed]" its Fourth Amendment

analysis on whether "any of the facts . . . established during

the course of the additional discovery [gave] rise to a finding

of unreasonableness." Henry, 559 F. Supp. 2d at 652. In con-

fining its Fourth Amendment analysis to this limited factual

basis, we conclude the district court erred.

Our prior opinion remanded this case to afford Henry "the

opportunity to present all potentially relevant evidence"

before the district court decided whether he "met his burden

of establishing that [his] seizure . . . was unreasonable."

Henry, 501 F.3d at 384. Apart from our conclusion that Dep-

uty Purnell "seized" Henry within the meaning of the Fourth

Amendment, we rendered "no opinion on the ultimate merits

of the case" and did not circumscribe the full range of evi-

dence which a review of the totality of the circumstances

would require. Id. The district court, therefore, should not

have assumed that "the underlying facts of the Henry/Purnell

incident" were less relevant to its determination of the reason-

ableness of Purnell’s mistaken use of the firearm than "the

additional discovery" related to Purnell’s weapons training.

Henry, 559 F. Supp. 2d at 652.

The district court thus erred in limiting the scope of its

Fourth Amendment reasonableness analysis to the adequacy

of Deputy Purnell’s weapons training, instead of examining

the totality of the circumstances.

B.

Notwithstanding the district court’s error as to the totality-

of-the-circumstances standard used in evaluating the objective

HENRY v. PURNELL 13

reasonableness of an officer’s conduct, the judgment may still

be affirmed if qualified immunity applies. The essential ques-

tion thus becomes whether Purnell is entitled to qualified

immunity, a doctrine which shields government actors from

liability if they establish either that (1) the plaintiff’s allega-

tions fail to make out a violation of a constitutional right, or

(2) the right at issue was not clearly established at the time of

the alleged misconduct. See Pearson v. Callahan, 129 S. Ct.

808, 815-16 (2009). In this case, Henry’s federal and state law

claims would both be invalidated if, as a matter of law, Pur-

nell’s mistaken use of his firearm was objectively reasonable

and therefore no constitutional right of Henry’s was violated.

See Melgar ex rel. Melgar v. Greene, 593 F.3d 348, 360 (4th

Cir. 2010) (noting that Article 26 of the Maryland Declaration

of Rights "is interpreted in pari materia with the Fourth

Amendment").

However, if an objective reasonableness determination

could not be made due to the existence of outstanding mate-

rial issues of fact, Purnell may still prevail on the federal

claim if the constitutional right that forms the basis for

Henry’s suit was not clearly established at the time of the

shooting. As explained below, our analysis of the second

prong of the qualified immunity inquiry may not dispose of

Henry’s state law claim. We therefore exercise our discretion

to employ the traditional, two-step qualified immunity proce-

dure laid down in Saucier v. Katz, 533 U.S. 193, 201 (2001)

to determine if Henry’s federal and state claims are resolved

by an analysis of his rights under the Fourth Amendment.6 See

Pearson, 129 S. Ct. at 818.

6

The Supreme Court’s recent decision in Pearson overruled that part of

Saucier which mandated that courts conduct the two-step qualified immu-

nity inquiry in sequential order. See Pearson, 129 S. Ct. at 813. Courts

now "have the discretion to decide whether that procedure is worthwhile"

and "determine the order of decisionmaking [that] will best facilitate the

fair and efficient disposition of each case." Id. at 821. Otherwise, Saucier

remains as binding precedent. As noted above, employing the full Saucier

analysis is prudent in this case due to the possible disparate treatment of

Henry’s federal and state claims.

14 HENRY v. PURNELL

Under Saucier, we first consider whether Henry’s allega-

tions make out the violation of a constitutional right, see 533

U.S. at 201, a question on which Henry bears the burden of

proof. See Henry, 501 F.3d at 377. The only constitutional

right at issue here is the Fourth Amendment right to be free

from seizures effectuated by excessive force. Establishing a

violation of that right requires Henry to demonstrate that "the

seizure in this case was unreasonable (i.e., that Purnell’s mis-

take in using the Glock rather than the [t]aser was unreason-

able)." Id. at 384; see also Milstead v. Kibler, 243 F.3d 157,

164-65 (4th Cir. 2001), abrogated on other grounds by Pear-

son, 129 S. Ct. at 818. This "reasonableness" inquiry is

undertaken "from the perspective of a reasonable officer on

the scene," bereft of "the 20/20 vision of hindsight."7 Graham,

490 U.S. at 396.

Qualified immunity does not "override the ordinary rules

applicable to summary judgment proceedings," Willingham v.

Crooke, 412 F.3d 553, 559 (4th Cir. 2005), nor does it "give

special substantive favor to the defense." Wilson v. Kittoe,

337 F.3d 392, 397 (4th Cir. 2003) (quotation omitted). Hence,

our longstanding instruction that courts "reserve[ ] for trial"

genuine issues of material fact relating to an "officer’s con-

7

Under the totality of the circumstances, we "gauge" Fourth Amend-

ment reasonableness by examining an officer’s actions and "measur[ing]

them against what a reasonable police officer would do under the circum-

stances." Schultz, 455 F.3d at 477 (quotations omitted). "[M]any situations

which confront officers in the course of executing their duties are more or

less ambiguous." Mazuz v. Maryland, 442 F.3d 217, 225 (4th Cir. 2006),

abrogated on other grounds by Pearson, 129 S. Ct. at 818. The Fourth

Amendment thus allows "for some mistakes" by officers, provided their

missteps are objectively reasonable. Id. To determine whether a mistake

is objectively reasonable, we "filter[ ]" the "objective facts . . . through the

lens of the officer’s perceptions at the time of the incident in question,"

focusing "on what the police officer reasonably perceived." Milstead, 243

F.3d at 163 (quotations omitted). "In short, a mistaken understanding of

the facts that is reasonable in the circumstances can render a seizure based

on that understanding reasonable under the Fourth Amendment." Id. at

165.

HENRY v. PURNELL 15

duct or its reasonableness under the circumstances." Pritchett

v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). For summary

judgment to be appropriate, there must be "no genuine issues

of material fact" and the "undisputed facts" must establish that

"the defendant . . . is entitled to judgment as a matter of law."8

Id.

The record reflects, however, that unresolved questions of

material fact render a merits resolution of Henry’s excessive

force claim inappropriate for summary judgment, at least as

to the issue of objective reasonableness. See Melgar, 593 F.3d

at 356. The district court summarily dismissed Henry’s argu-

ments that a reasonable officer would have issued a warning

before attempting to fire his taser, and that the taser’s visible

laser sight and thumb lock would have caused a reasonable

officer to be aware that he had mistakenly drawn his firearm

instead. See Henry, 559 F. Supp. 2d at 652 n.3. We hold that

the district court’s reasoning in this regard was speculative; a

jury could legitimately view each of these factors differently,

particularly after considering the testimony of an expert wit-

ness. See, e.g., Wellington v. Daniels, 717 F.2d 932, 934 (4th

Cir. 1983) (recounting the testimony of "an expert on police

procedure and equipment"). At this stage of the proceeding,

there remain material factual issues in dispute on the failure

to warn, to utilize the laser sight, and to distinguish the differ-

ent safety locks, all of which are relevant to a decision on the

objective reasonableness of the seizure. The district court’s

determination that Deputy Purnell’s conduct was reasonable

as a matter of law was thus in error.

8

Although, as just noted, the district court employed the wrong standard

in evaluating the evidence on the question of objective reasonableness, we

may still uphold the district court’s judgment in Deputy Purnell’s favor if,

as a matter of law, no genuine issues of material fact remain outstanding.

See Pitt County v. Hotels.com, L.P., 553 F.3d 308, 311 (4th Cir. 2009)

(recognizing that we may affirm the district court’s judgment based "on

any grounds apparent from the record") (quotation omitted).

16 HENRY v. PURNELL

To be clear, we do not decide the merits of Henry’s claim

for excessive force (i.e., whether Purnell’s mistaken use of his

firearm was reasonable). See Henry, 501 F.3d at 384. We

merely recognize that "the issue before us on summary judg-

ment is fairly narrow." Schultz, 455 F.3d at 479. Because

material factual issues exist as to the reasonableness of Dep-

uty Purnell’s actions, summary judgment based on that issue

should not have been granted. See Clark v. Alexander, 85 F.3d

146, 150 (4th Cir. 1996).

C.

Having determined that the first prong of the Saucier

inquiry does not support the award of summary judgment to

Purnell, we now turn to the second prong. In that regard, the

Supreme Court has long emphasized that qualified immunity

is designed "to spare a defendant not only unwarranted liabil-

ity, but unwarranted demands customarily imposed upon

those defending a long drawn out lawsuit." Siegert v. Gilley,

500 U.S. 226, 232 (1991). Accordingly, the Court has "repeat-

edly . . . stressed the importance of resolving immunity ques-

tions at the earliest possible stage in litigation." Pearson, 129

S. Ct. at 815 (quotation omitted). We thus strive to avoid

"forc[ing] the parties to endure additional burdens of suit . . .

when the suit otherwise could be disposed of more readily."

Id. at 818 (quotation omitted).

Although "qualified immunity is an immunity from suit"

designed to be resolved at the "earliest possible stage" of the

case, id. at 815 (quotations omitted), the case at bar is now in

its sixth year and on its third appeal to this Court, see Henry,

501 F.3d at 374; Henry, 119 Fed. Appx. at 441. The history

of this case exemplifies the strong public policy justifications

for resolving the question of qualified immunity at the earliest

stage in the litigation. Moreover, both parties have asked that

we resolve the qualified immunity issue now. Clearly, resolv-

ing this purely legal issue at this time "will best facilitate the

HENRY v. PURNELL 17

fair and efficient disposition of" the case.9 Pearson, 129 S. Ct.

at 821. Accordingly, we exercise our discretion to determine

whether a Fourth Amendment right, "in light of the specific

context of the case," was clearly established at the time of the

shooting. Saucier, 533 U.S. at 201; see, e.g., Edwards v. City

of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999).

The qualified immunity test originally set out by the

Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982)

has been expressed in a variety of ways. For example, the

Court has inquired whether "[t]he contours of" a plaintiff’s

asserted right were "sufficiently clear that a reasonable offi-

cial would understand that what he is doing violates that

right," i.e., whether "in the light of pre-existing law the

unlawfulness" of "an official action is . . . apparent." Ander-

son v. Creighton, 483 U.S. 635, 640 (1987). The Court has

also phrased "[t]he dispositive inquiry in determining whether

a right is clearly established [as] whether it would be clear to

a reasonable officer that his conduct was unlawful in the situ-

ation he confronted," Saucier, 533 U.S. at 202, or "whether a

reasonable officer could have believed that [his actions were]

lawful, in light of clearly established law and the information

[he] possessed." Wilson v. Layne, 526 U.S. 603, 615 (1999).

Regardless of which formulation is used, it is clear under

Saucier that the purpose of the qualified immunity inquiry is

"to ensure that before they are subjected to suit, officers are

on notice their conduct is unlawful."10 533 U.S. at 206. This

principle serves fundamental concerns of fairness: "Officers

9

See also Willingham, 412 F.3d at 559 (noting that the second prong of

the Saucier test "is always capable of decision at the summary judgment

stage," as "[t]he existence of disputed material facts . . . does not alter the

‘essentially legal’ nature of" our analysis (quotation omitted)).

10

See also Davis v. Scherer, 468 U.S. 183, 195 (1984) ("The qualified

immunity doctrine recognizes that officials can act without fear of harass-

ing litigation only if they reasonably can anticipate when their conduct

may give rise to liability for damages and only if unjustified lawsuits are

quickly terminated.").

18 HENRY v. PURNELL

sued in a civil action for damages under 42 U.S.C. § 1983

have the same right to fair notice as do defendants charged

with . . . criminal offense[s] . . . ." Hope v. Pelzer, 536 U.S.

730, 739 (2002). "[T]he qualified immunity test is simply the

adaptation of the fair warning standard to give officials (and,

ultimately, governments) the same protection from civil liabil-

ity and its consequences that individuals have traditionally

possessed in the face of vague criminal statutes." United

States v. Lanier, 520 U.S. 259, 270-71 (1997).

"That is not to say that an official action is protected by

qualified immunity unless the very action in question has pre-

viously been held unlawful . . . ." Hope, 536 U.S. at 739. A

right may be clearly established "even in novel factual cir-

cumstances," id. at 741, "but [i]f the law [does] not put the

officer on notice that his conduct would be clearly unlawful,

summary judgment based on qualified immunity is appropri-

ate." Saucier, 533 U.S. at 202. And rightly so, for the

Supreme Court has made clear "that the Harlow standard . . .

gives ample room for mistaken judgments," Malley v. Briggs,

475 U.S. 335, 343 (1986), "protecti[ng] . . . all but the plainly

incompetent or those who knowingly violate the law." Id. at

341.

In particular, the principles laid out by the Supreme Court

in Saucier guide the resolution of the case at bar. Saucier was

also a case where the plaintiff’s cause of action was based on

a claim of excessive force in violation of the Fourth Amend-

ment. See 533 U.S. at 198-99. The defendant police officer

moved for summary judgment on the grounds of qualified

immunity, but the district court denied the motion because

material facts remained in dispute on the excessive force

claim. See id. at 199. The district court held "that in the

Fourth Amendment context, the qualified immunity inquiry is

the same as the inquiry made on the merits." Id. (quotation

and alteration omitted). The Ninth Circuit agreed, concluding

"that qualified immunity is merely duplicative in an excessive

force case, eliminating the need for the second step where a

HENRY v. PURNELL 19

constitutional violation could be found based on the allega-

tions." Id. at 203.

While the concurring opinion in Saucier approved this

methodology for establishing qualified immunity, see id. at

213-15 (Ginsburg, J., concurring in the judgment), the major-

ity of the Supreme Court flatly rejected it: "This approach

cannot be reconciled with Anderson v. Creighton, 483 U.S.

635 (1987)." Id. at 200. Writing for the majority, Justice Ken-

nedy explained:

The approach the Court of Appeals adopted—to

deny summary judgment any time a material issue of

fact remains on the excessive force claim—could

undermine the goal of qualified immunity to "avoid

excessive disruption of government and permit the

resolution of many insubstantial claims on summary

judgment." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). If the law did not put the officer on notice

that his conduct would be clearly unlawful, summary

judgment based on qualified immunity is appropri-

ate. See Malley v. Briggs, 475 U.S. 335, 341 (1986)

(qualified immunity protects "all but the plainly

incompetent or those who knowingly violate the

law").

Id. at 202.11

Specifically, the Supreme Court rejected the argument

advanced by the minority concurring opinion that "[o]nce it

has been determined that an officer violated the Fourth

Amendment by using ‘objectively unreasonable’ force as that

term is explained in Graham v. Connor, there is simply no

11

The restriction noted in Malley has no application in the case at bar

because Henry neither pleads, nor would the record support, a claim that

Purnell’s actions were those of an officer who was "plainly incompetent"

or "who knowingly violated the law."

20 HENRY v. PURNELL

work for a qualified immunity inquiry to do." Id. at 216-17

(Ginsburg, J., concurring in the judgment). To the contrary,

the Supreme Court explicitly held that "[t]he inquiries for

qualified immunity and excessive force remain distinct, even

after Graham." Id. at 204.

Until such time as the Supreme Court changes the judicial

framework of the qualified immunity defense, we are bound

to follow its direction. And that direction after Saucier is

clear: In the context of a claimed Fourth Amendment viola-

tion for the use of excessive force, when the objective reason-

ableness of the official’s actions cannot yet be determined, an

analysis of the qualified immunity defense based on whether

the law is "clearly established" is a separate and required judi-

cial action.12

The contours of that qualified immunity inquiry were laid

out in Saucier.

This inquiry, it is vital to note, must be undertaken

in light of the specific context of the case, not as a

broad general proposition . . . .

12

As the parties have agreed, this case requires no additional factual

determinations in order to resolve the qualified immunity issue. All neces-

sary facts are before us so that the question of qualified immunity can and

should be answered. We have established that "[t]he existence of disputed

material facts—which must be submitted to a jury—does not alter the

essentially legal nature of the question of whether the right at issue was

clearly established." Willingham, 412 F.3d at 559 (internal citation and

quotation omitted). And "the legal question of a defendant’s entitlement

to qualified immunity under particular set of facts" is "decided by the

court, not by the jury" because "juries are ill-suited to make the determina-

tions of law required by the qualified immunity analysis." Id. at 560. We

may, therefore, always resolve "the purely legal question of whether the

constitutional right at issue was clearly established . . . at the summary

judgment stage," id. at 559 (quotation omitted), as "[e]ntitlement to quali-

fied immunity is a legal question . . . decided [by] the court." Int’l Ground

Transp., Inc. v. Mayor & City Council of Ocean City, 475 F.3d 214, 220

n.3 (4th Cir. 2007).

HENRY v. PURNELL 21

. . . . [W]e emphasized in Anderson "that the right

the official is alleged to have violated must have

been ‘clearly established’ in a more particularized,

and hence more relevant, sense: The contours of the

right must be sufficiently clear that a reasonable offi-

cial would understand that what he is doing violates

that right." 483 U.S. at 640. The relevant, dispositive

inquiry in determining whether a right is clearly

established is whether it would be clear to a reason-

able officer that his conduct was unlawful in the situ-

ation he confronted. See Wilson v. Layne, 526 U.S.

603, 615 (1999) ("[A]s we explained in Anderson,

the right allegedly violated must be defined at the

appropriate level of specificity before a court can

determine if it was clearly established[.]").

Id. at 201-02.

In the case at bar, Henry and the dissent contend the appro-

priate level of inquiry is whether "a police officer who shoots

a fleeing suspect without probable cause to believe that the

suspect poses a significant threat of death or serious physical

injury to the officer or others violates that suspect’s Fourth

Amendment rights." Dissent at 30 (quotation omitted); see

also Opening Brief at 42. However, this is where their argu-

ment goes off track and is reminiscent of the concurring opin-

ion in Saucier, which is not the controlling law.13

13

The dissent applies the second prong of the Saucier test at a high level

of generality and thus reaches a result that "bear[s] no relationship to the

‘objective legal reasonableness’ that is the touchstone of Harlow." Ander-

son, 483 U.S. at 639. In so doing, it compounds the error made by the

Eighth Circuit in Anderson, i.e., refusing to consider whether a constitu-

tional violation "was . . . clearly established [in] the circumstances with

which [the officer] was confronted." Id. at 640. But, as the Supreme Court

has explained, determining whether qualified immunity applies requires

"more than an assertion that [the] general right [Purnell] was alleged to

have violated . . . was clearly established." Id. "[T]he right the official is

alleged to have violated must have been ‘clearly established’ in a more

particularized, and hence more relevant, sense." Id.

22 HENRY v. PURNELL

A reasonable police officer would know that shooting an

unarmed suspect fleeing on a misdemeanor child support war-

rant, without more, would constitute use of excessive force

contrary to the Fourth Amendment. But if that very general-

ized view was all it took to show "clearly established law" in

the qualified immunity context, then the inquiry on the second

Saucier prong would be a useless exercise. Put simply, con-

text matters. The Supreme Court spoke plainly to this point in

Anderson:

The operation of [the qualified immunity] stan-

dard . . . depends substantially upon the level of gen-

erality at which the relevant "legal rule" is to be

identified. For example, the right to due process of

law is quite clearly established by the Due Process

Clause, and thus there is a sense in which any action

that violates that Clause (no matter how unclear it

may be that the particular action is a violation) vio-

lates a clearly established right. Much the same

could be said of any other constitutional or statutory

violation. But if the test of "clearly established law"

were to be applied at this level of generality, it

would bear no relationship to the "objective legal

reasonableness" that is the touchstone of Harlow.

Plaintiffs would be able to convert the rule of quali-

fied immunity that our cases plainly establish into a

rule of virtually unqualified liability simply by alleg-

ing violation of extremely abstract rights. Harlow

would be transformed from a guarantee of immunity

into a rule of pleading. Such an approach, in sum,

would destroy "the balance that our cases strike

between the interests in vindication of citizens’ con-

stitutional rights and in public officials’ effective

performance of their duties," by making it impossi-

ble for officials "reasonably [to] anticipate when

their conduct may give rise to liability for damages."

Davis, supra, 468 U.S. at 195.

HENRY v. PURNELL 23

483 U.S. at 639-40.

If the level of generality advanced by Henry were to apply,

Anderson would have been decided differently. The simple

truism that a reasonable officer would know in the abstract

that a warrantless search of a home without probable cause

and exigent circumstances violated the Fourth Amendment

would be all that was needed. However, in Anderson, this

level of generality was rejected because it failed to account

for the fact

that it was not clearly established that the circum-

stances with which Anderson was confronted did not

constitute probable cause and exigent circumstances.

...

. . . . The relevant question in th[at] case, for exam-

ple, [was] the objective (albeit fact-specific) question

whether a reasonable officer could have believed

Anderson’s warrantless search to be lawful, in light

of clearly established law and the information the

searching officers possessed.

Id. at 640-41.

Similarly, in Saucier, a reasonable officer would know, in

the abstract, that use of excessive force to remove a demon-

strator would violate the Fourth Amendment. See 533 U.S. at

201-02. However, that over-simplified, generalized approach

to the qualified immunity inquiry was adjudged faulty

because it utterly failed to apply a level of specificity to the

particular circumstances of the case. As with Anderson, had

Henry’s generalized formulation of the qualified immunity

inquiry applied, Saucier would have been decided differently.

The Supreme Court has been clear that only in the "specific

context of the case," id. at 201, can the issue of qualified

immunity be properly determined.

24 HENRY v. PURNELL

The formulation of the scope of the qualified immunity

inquiry by Henry and the dissent fails to take account of the

"specific context of the case." Id. That context is not simply

that Henry was shot, but also that it is a stipulated fact that the

shooting was an unintended mistake by Purnell. Furthermore,

as our previous decision in this case established, "Henry does

not argue that Purnell’s decision to use the [t]aser was unrea-

sonable." 501 F.3d at 382 n.11.

Thus, the specific context of this case is where a police

officer, who would have acted reasonably in using the taser

to apprehend Henry, draws his firearm by mistake and unin-

tentionally shoots Henry instead.14 The qualified immunity

inquiry thus becomes whether an officer in that "specific con-

text" would know that an act of weapon confusion of the fire-

arm for the taser was "clearly established" as an excessive use

of force under the Fourth Amendment. The answer is that nei-

ther in 2003, nor indeed today, is there clearly established law

to resolve that question for courts, much less police officers

in the field. At the time of the shooting, case law did not exist

that applied the Fourth Amendment to the specific context in

which Deputy Purnell acted. Deputy Purnell could not have

been on notice because no case gave him fair warning that

such weapon confusion violated the Fourth Amendment as a

use of excessive force.15

14

We recognize that whether tasing Henry without a warning is an open

question in the objective reasonableness inquiry, however, the validity of

using a taser to apprehend Henry is not an open question and is the law

of the case. See TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009)

(explaining that "once the decision of an appellate court establishes the

law of the case" it generally "must be followed in all subsequent proceed-

ings in the same case in the trial court or on a later appeal" (quotation

omitted)).

15

The dissent contends the application of the second Saucier prong in

this case "transforms the doctrine of qualified immunity into a subjective

inquiry." Dissent at 30. We might agree with the dissent on this point but

for the specific, and perhaps unique, admitted facts of this case. It is stipu-

lated that Deputy Purnell’s drawing of his firearm, instead of the taser,

HENRY v. PURNELL 25

We agree with the District Court in Torres v. City of Mad-

era, 655 F. Supp. 2d 1109 (E.D. Cal. 2009), which considered

the nearly identical question of firearm for taser weapon con-

fusion, that the police officer is entitled to qualified immunity.16

"At the time of the . . . shooting there was no clearly estab-

lished federal law on what would make an officer’s mistaken

use of her gun instead of her [t]aser unreasonable." 655 F.

was a good-faith, unintentional mistake of weapon confusion. Thus, the

inquiry in the case at bar is based upon an objective fact about which there

is no dispute, the weapons were confused. This inquiry does not require

the district court to determine any fact based on a subjective thought of the

officer. See also infra note 18.

16

The dissent sees as contradictory our simultaneous conclusions "that

the district court erred in finding that [Purnell’s] mistake was reasonable"

and that Purnell is nonetheless "entitled to qualified immunity." Dissent at

30. This critique fails, however, because it is based on the unwarranted

assumption that Purnell’s "mistaken conduct was unreasonable for Fourth

Amendment purposes." Id. at 31; see also id. at 30 (referring to Purnell’s

"unreasonable mistake"); id. at 32 (asserting we have disregarded Pur-

nell’s "objectively unreasonable mistake"); id. at 34 (claiming that an "un-

reasonable [mistake] . . . cannot be the basis for excusing an officer’s

conduct during the qualified immunity inquiry"); id. at 34 (stating that an

"officer who unreasonably mistakes his gun for his taser cannot claim that

his error was based on his reasonable failure to apply the law to the spe-

cific facts he faced"); id. at 36 (labeling Purnell’s actions "objectively

unreasonable in light of the suspect’s specific conduct and the crime that

suspect allegedly committed").

As explained above, the present record does not support a judicial deter-

mination as to the objective reasonableness of Deputy Purnell’s actions.

In so much as material issues of fact remain outstanding, we cannot now

resolve the legal question of whether Purnell’s actions complied with the

Fourth Amendment until these issues are resolved by the finder of fact.

See Willingham, 412 F.3d at 560 (acknowledging that "the district court

should submit factual questions to the jury and reserve for itself the legal

question of whether the defendant is entitled to qualified immunity on the

facts found by the jury"). Our holding that the district court erred in

resolving the Fourth Amendment question rests, therefore, not on the

assumption that Purnell’s mistake was unreasonable, but only on a faithful

application of the standard for summary judgment established by Federal

Rule of Civil Procedure 56.

26 HENRY v. PURNELL

Supp. 2d at 1125. In that circumstance, no police officer

would have "fair notice" that a mistake of weapon confusion

contravened "clearly established" law.17

Although we cannot say whether Deputy Purnell’s mis-

taken use of his firearm was objectively reasonable under the

circumstances, we can say that Purnell lacked "fair notice"

regarding the potential unlawfulness of his actions. Hope, 536

U.S. at 739. At the second stage of the Saucier inquiry, "[t]he

decisive fact is not" whether an officer’s position was correct,

"but that the question was open at the time he acted." Mitchell

v. Forsyth, 472 U.S. 511, 535 (1985).

The lawfulness of Deputy Purnell’s conduct was thus "open

to reasonable dispute" at the time of the shooting, and officers

are personally liable only "for transgressing bright lines," not

for intruding into "gray areas." Wilson, 337 F.3d at 403 (quo-

tation omitted). Consequently, Deputy Purnell is entitled to

summary judgment in his favor on Henry’s § 1983 claim.18

17

The dissent relies on Floyd v. City of Detroit, 518 F.3d 398 (6th Cir.

2008) to support its conclusion that Deputy Purnell is not entitled to quali-

fied immunity and contends that case is "legally indistinguishable from

this one." Dissent at 33. The undisputed factual basis of Floyd, however,

differs significantly from the case at bar. The officer in Floyd, for exam-

ple, intended to shoot the suspect in circumstances in which "his purported

conduct was patently unreasonable." Floyd, 518 F.3d at 409; see also id.

at 408 ("[Officer] Reynoso’s purported belief that [Officer] Quaine had

been shot by an unarmed suspect . . . rested solely on [Officer] Reynoso’s

observation of [Officer] Quaine taking cover."). In these circumstances, it

is hardly surprising that the Sixth Circuit concluded that Floyd’s "right to

be free from such excessive force was clearly established on the date in

question." Id. at 409. Deputy Purnell, in contrast, did not intend to shoot

Henry and the reasonableness of his mistake is a much closer question.

18

The dissent posits that our resolution of the qualified immunity issue

must be erroneous because if the parties had not agreed that Purnell’s use

of the gun, instead of the taser, was a "good-faith error," a trial would be

required. Dissent at 31. Thus, the dissent argues our "analysis cannot be

. . . correct . . . because it is incapable of resolving mistaken-shooting

claims at the earliest possible stage in litigation." Id. (quotation omitted).

We respectfully disagree.

HENRY v. PURNELL 27

See Saucier, 533 U.S. at 202 ("If the law did not put the offi-

cer on notice that his conduct would be clearly unlawful, sum-

mary judgment based on qualified immunity is appropriate.").

We do not find Henry’s contrary argument based on Groh

v. Ramirez, 540 U.S. 551 (2004) persuasive. Henry cites Jus-

tice Kennedy’s dissenting opinion in Groh for the proposition

that "[m]istakes of fact can be relevant to the second prong of

the qualified immunity analysis only when they affect the

officer’s assessment of the legality of his conduct." Opening

Brief at 43 n.15 (citing Groh, 540 U.S. at 566-67 (Kennedy,

J., dissenting)). Because "Deputy Purnell has not suggested

that anything about the situation before him misled him to

believe that he could permissibly use deadly force," id., Henry

argues that Deputy Purnell’s intent to employ his taser "does

not change the analysis under the second prong of the quali-

fied immunity inquiry." Id. at 42.

Henry’s argument is misplaced for at least three reasons.

First, Purnell’s seizure of Henry occurred in 2003, a year

before the Supreme Court issued its opinion in Groh. Any

application of Groh is, therefore, irrelevant to our analysis of

clearly established law at the time of Purnell’s alleged mis-

conduct. See Hope, 536 U.S. at 739 (noting that courts con-

sider whether a right is clearly established "in the light of pre-

existing law" (quotation omitted)) (emphasis added). Second,

we have found no support for the proposition that a dissent

Of course, material facts must be established in order for a court to

determine whether qualified immunity applies in any given situation. If

the parties’ pleadings disputed whether Purnell made a good faith error of

weapon confusion, summary judgment could not proceed because material

facts would be in dispute. Put simply, "the earliest possible stage in litiga-

tion" for application of the qualified immunity analysis would not have

arrived. However, once the fact of good faith error has been objectively

established, as by stipulation in this case, there is no barrier to the resolu-

tion of the second prong of Saucier.

28 HENRY v. PURNELL

may propound clearly established law for purposes of deter-

mining qualified immunity.

Third, even if we were to assume that Henry has correctly

stated the relevant law, Deputy Purnell’s mistake of fact did

affect his "assessment of the legality of his conduct." Opening

Brief at 43 n.15. The mistake of fact at issue here is Purnell’s

mistaken belief that he was firing his taser, instead of his fire-

arm. And this mistake clearly influenced Purnell’s assessment

of the legality of his conduct. Purnell has never asserted that

he could permissibly use deadly force to halt Henry’s flight,

but he has consistently argued that his intended use of a taser

was appropriate. See, e.g., Response Brief at 49-50. As noted

earlier, "it is undisputed that [Purnell’s] intended use of . . .

force was justified: Purnell had the right to use his [t]aser to

detain Henry, a suspect fleeing arrest."19 Henry, 559 F. Supp.

2d at 651-52 (emphasis in original); see also Henry, 501 F.3d

at 382 n.11 ("Henry does not argue that Purnell’s decision to

use the [t]aser was unreasonable."). Henry’s argument based

on Groh, which he identified as his "best case" on the ques-

tion of qualified immunity, is thus without merit.

V.

The test for statutory immunity under Maryland law differs

significantly from the qualified immunity analysis applicable

under federal law. See Melgar, 593 F.3d at 360. Henry’s

claim under the Maryland Constitution’s Declaration of

19

In this appeal, Henry argues for the first time that Purnell’s intended

use of his taser was itself potentially unreasonable. See, e.g., Opening

Brief at 18 ("[I]t is a jury question whether Deputy Purnell could have rea-

sonably used his [t]aser on Mr. Henry."). This claim has clearly been

waived. See United States v. Evans, 404 F.3d 227, 236 n.5 (4th Cir. 2005)

(recognizing that failure to raise an argument before the district court

waives that argument on appeal). Accordingly, we do not consider it. See

United Rentals, Inc. v. Angell, 592 F.3d 525, 531 n.3 (4th Cir. 2010)

("Because this argument is raised for the first time on appeal, we do not

consider it.").

HENRY v. PURNELL 29

Rights is, therefore, not resolved by our analysis of his federal

claim. As the Court of Appeals of Maryland has explained,

"[u]nlike qualified immunity from claims of violations of fed-

eral rights under § 1983, the question of immunity for State

personnel from State law torts is a subjective one." Newell v.

Runnels, 967 A.2d 729, 763 (Md. 2009).

Statutory immunity applies to Maryland state personnel

who commit "a tortious act or omission . . . within the scope

of the[ir] public duties," provided the act or omission "is

made without malice or gross negligence." Okwa v. Harper,

757 A.2d 118, 128 (Md. 2000) (quotation omitted). To com-

mit "gross negligence," a wrongdoer must "inflict[ ] injury

intentionally" or be "so utterly indifferent to the rights of oth-

ers" as to "act[ ] as if such rights d[o] not exist." Newell, 967

A.2d at 764-65 (quotation omitted).

We, therefore, reverse the district court’s grant of summary

judgment on Henry’s state-law claim and remand to the dis-

trict court, which may then determine whether to exercise

supplemental jurisdiction over that claim. See Yashenko v.

Harrah’s N.C. Casino Co., LLC, 446 F.3d 541, 553 n.4 (4th

Cir. 2006) (explaining that once the "federal claims in an

action" are dismissed the district court possesses "wide discre-

tion to dismiss the supplemental state law claims over which

it properly has supplemental jurisdiction") (quotation omit-

ted). If the district court chooses to exercise supplemental

jurisdiction over Henry’s state-law claim, it may then deter-

mine whether Purnell is entitled to statutory immunity under

Maryland law.

VI.

For the reasons set forth above, we affirm in part and

reverse in part the judgment of the district court, and remand

for further proceedings consistent with this opinion.

30 HENRY v. PURNELL

AFFIRMED IN PART,

REVERSED IN PART, AND

REMANDED WITH INSTRUCTIONS

GREGORY, Circuit Judge, dissenting:

Under clearly established law, a police officer who shoots

a fleeing suspect without "probable cause to believe that the

suspect poses a significant threat of death or serious physical

injury to the officer or others" violates that suspect’s Fourth

Amendment rights. Tennessee v. Garner, 471 U.S. 1, 3

(1985). In this case, Officer Purnell shot a fleeing suspect

whom he had no reason to believe was a threat to anyone.

And yet the majority holds that Officer Purnell is entitled to

qualified immunity because he discharged his firearm by mis-

take, even though the majority simultaneously admits that the

district court erred in finding that the mistake was reasonable.

By allowing an unreasonable mistake to serve as the basis for

establishing qualified immunity and focusing its inquiry on

Officer Purnell’s intent rather than his or the suspect’s objec-

tive behavior, the majority impermissibly transforms the doc-

trine of qualified immunity into a subjective inquiry that

excuses, not guides, reasonable officer conduct.

In its opinion, the majority frames the inquiry as:

whether an officer in that "specific context" would

know that an act of weapon confusion of the firearm

for the taser was "clearly established" as an exces-

sive use of force under the Fourth Amendment.

Maj. Op. at 24. In other words, the majority ignores what a

reasonable officer would have known about the situation he

faced and instead paradoxically asks whether this specific

officer would know that he could not unreasonably confuse

his gun for his taser. This is not the correct inquiry.

Qualified immunity protects officers who commit constitu-

tional violations but who, in light of clearly established law,

HENRY v. PURNELL 31

could reasonably believe that their actions were lawful. Sau-

cier v. Katz, 533 U.S. 194, 206 (2001), overruled in part,

Pearson v. Callahan, 129 S. Ct. 808 (2009); Anderson v.

Creighton, 483 U.S. 635, 639 (1987); Harlow v. Fitzgerald,

457 U.S. 800, 819 (1982). Crucially, though, an officer’s sub-

jective belief about the nature of his conduct is "irrelevant"

for qualified immunity purposes. Anderson, 483 U.S. 641.

Courts are charged with asking only whether the officer’s

actual conduct, in light of the objective circumstances, was

barred by clearly established law. See Saucier, 533 U.S. at

202 (explaining that the relevant question for qualified immu-

nity purposes is "whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he con-

fronted" (emphasis added)). The majority fundamentally errs,

then, by focusing its inquiry on Officer Purnell’s intended

conduct, rather than his actual conduct, given that it must

accept that the mistaken conduct was unreasonable for Fourth

Amendment purposes.

The fact that "qualified immunity is ‘an immunity from suit

rather than a mere defense to liability [that] is effectively lost

if a case is erroneously permitted to go to trial,’" Pearson, 129

S. Ct. at 815 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526

(1985)) (internal alterations omitted), demonstrates that

unreasonable volitional or cognitive mistakes cannot be a part

of the qualified immunity inquiry. The parties before us con-

cede that Officer Purnell made a good-faith error when he

deployed his gun rather than his taser. But suppose the offi-

cer’s subjective intent were in dispute, with the officer claim-

ing that he made a mistake and the suspect alleging that he

was shot intentionally. In that case, under the majority’s anal-

ysis, the district court would have to hold a trial in order to

resolve the qualified immunity issue. At base the majority’s

analysis cannot be the correct test because it is incapable of

resolving mistaken-shooting claims "at the earliest possible

stage in litigation." Id. (quoting Hunter v. Bryant, 502 U.S.

224, 227 (1991) (per curiam)).

32 HENRY v. PURNELL

The majority is also quite wrong to claim that disregarding

Officer Purnell’s objectively unreasonable mistake while con-

ducting the qualified immunity inquiry would lead to a result

contrary to that reached by the Supreme Court in Saucier or

Anderson. In Saucier, the Court considered whether an officer

who dragged and shoved a suspect who attempted to cross a

barrier separating the public from the Vice President of the

United States, violated the suspect’s clearly established rights.

533 U.S. at 208. Given existing precedent that allowed for

some degree of physical force when making an arrest and

given the particularly dangerous threat the suspect may have

posed, the Court held that a reasonable officer could believe

that his actions were legal. Id. The Court’s inquiry focused

squarely on the specific conduct of the officer and the suspect

and how a reasonable person would view those actions, with-

out any regard for what the officer thought he was doing.

Likewise, in Anderson, the Court considered a police offi-

cer’s warrantless search of the plaintiffs’ home undertaken

with the mistaken belief that a suspected bank robber was

present. 483 U.S. at 637. In finding that the broad rule that

warrantless home searches conducted without probable cause

or exigent circumstances was insufficient to put a reasonable

officer on notice that his conduct was illegal in these circum-

stances, the Court explained that the relevant inquiry was

whether the objective circumstances could be considered exi-

gent or could establish probable cause. Id. at 640-41. The

Court specifically emphasized, though, that the officer’s "sub-

jective beliefs about the search are irrelevant." Id. at 641.

Once again, the relevant analytical tool, the Court made clear,

is the application of established legal principles to objective

conduct, not subjective thoughts.

Applying Saucier and Anderson to this case, it is clear what

the proper qualified immunity analysis should look like.

Under settled law, a police officer may not shoot a fleeing

suspect unless the officer has probable cause to believe that

the suspect is dangerous. Garner, 471 U.S. at 11. Therefore,

HENRY v. PURNELL 33

Officer Purnell would only be entitled to qualified immunity

if a reasonable officer could believe that Garner was inappli-

cable given the suspect’s objective behavior or his own,

objective conduct.* Once the court determines that Officer

Purnell’s mistaken use of his gun was unreasonable under the

Fourth Amendment, it should ask whether a reasonable offi-

cer could believe that his actual conduct complied with

Garner given what the suspect actually did. But both Ander-

son and Saucier make clear that the qualified immunity

inquiry does not ask what the officer subjectively and unrea-

sonably thought his or the suspect’s conduct to have been.

The Sixth Circuit demonstrated this analysis in a mistaken-

shooting case that is legally indistinguishable from this one.

In Floyd v. City of Detroit, 518 F.3d 398 (6th Cir. 2008), the

defendant police officer claimed that he shot an unarmed sus-

pect under the mistaken belief that the suspect had fired at a

fellow officer. Id. at 408. Having determined that the officer’s

mistaken belief was unreasonable, the Sixth Circuit denied

him qualified immunity and refused to apply a second level

of deference to that mistake. Id. As the court noted when

applying Saucier:

the failure of both officers to properly assess the

reality of the situation they created before employing

deadly force without warning against an unarmed

*I do not say, as the majority claims, that there is no room for a quali-

fied immunity analysis in excessive or deadly force cases. My point is,

rather, that the inquiries are fundamentally different. Officer Purnell

would still be entitled to qualified immunity in this case if his actual con-

duct were reasonable, even if unlawful, under the circumstances. He

could, for instance, argue that he reasonably believed that Henry was dan-

gerous, even though he lacked probable cause to shoot him. Or that he rea-

sonably believed that Garner did not apply to suspects fleeing in the

specific manner in which Henry fled. But he cannot successfully argue

that his intended conduct would have been legal, given that his failure to

do that which he intended was objectively unreasonable. Accepting this

argument requires us to extend qualified immunity to the "plainly incom-

petent." See Malley v. Briggs, 475 U.S. 335, 341 (1986).

34 HENRY v. PURNELL

suspect cannot shield them from liability unless that

failure was objectively reasonable.

Id. Once a mistake is found to be unreasonable, it cannot be

the basis for excusing an officer’s conduct during the quali-

fied immunity inquiry.

For the majority to then claim that the "specific context"

that mattered in Saucier or Anderson was the subjective char-

acteristics or intentions of the officer is a classic bait-and-

switch. More importantly, it transforms qualified immunity

from a rule designed to guide reasonable officers’ conduct

and, in turn, hold officers accountable for not conforming

their conduct to a reasonable interpretation of that guidance,

into a rule that can be used to simply excuse all subjective

deviations from the normal standard of care.

Qualified immunity guides and protects reasonable officers

acting in grey areas of the law by "allow[ing] some room for

discretionary judgment in what are indisputably difficult cir-

cumstances." Melgar ex rel. Melgar v. Greene, 593 F.3d 348,

357 (4th Cir. 2010). Importantly, the hypothetical reasonable

officer must knowingly judge the legality of his conduct, pre-

cisely because the qualified immunity standard assumes that

public officials will be guided by the law that has been clearly

established. Harlow, 457 U.S. at 818. An officer who unrea-

sonably mistakes his gun for his taser cannot claim that his

error was based on his reasonable failure to apply the law to

the specific facts he faced. Any further consideration of his

subjective and unreasonable failure to know that he was using

deadly force therefore is incompatible with the assumption

underlying qualified immunity that officers are guided by the

law.

If courts, when conducting the qualified immunity analysis,

must consider an officer’s subjective propensities, then the

analysis ceases to guide the reasonable officer. Once courts

begin to consider each individual officer’s experience — her

HENRY v. PURNELL 35

years on the force, her Intelligence Quotient, whether or not

she suffers from attention deficit disorder — and consider

how an officer with those characteristics would behave in a

given factual scenario, then it is difficult to conceive of a case

in which an officer would ever be denied qualified immunity.

Qualified immunity becomes simply a post-hoc rationaliza-

tion, not a guide for future conduct.

***

The doctrine of qualified immunity is a judge-made rule

designed to strike the classic balance between freedom and

security. See Pearson, 129 S. Ct. at 815 (noting that qualified

immunity balances "the need to hold public officials account-

able when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability

when they perform their duties reasonably"). When an officer,

for example, pursues a fleeing suspect into a private residence

or apprehends a suspect who reasonably appears to be menac-

ing the Vice President, it is easy enough to see how and why

the balance favors the officer. Where the constitutional ques-

tion is close, the harm done to society when an officer is

impeded by the threat of financial liability from doing that

which he reasonably believes is legal and necessary to seize

dangerous criminals, outweighs the harm done to the individ-

ual whose rights are marginally violated.

But this balance cannot be squared with an officer’s unrea-

sonable use of deadly force. We sacrifice both liberty and

security when we allow police officers to shoot unarmed sus-

pects without any reasonable basis for doing so. Police offi-

cers operating under stressful conditions requiring quick

thinking have every right to know that their reasonable mis-

takes as to the law and relevant facts will be excused. But

once it is determined that their legal and factual conclusions

were unreasonable, we should not then ask the unanswerable,

as the majority does when asking whether an officer unrea-

36 HENRY v. PURNELL

sonably prone to accidents would have known that his unrea-

sonableness was unreasonable under the circumstances.

As Justice Holmes put it in his seminal work, "The law

takes no account of the infinite varieties of temperament,

intellect, and education which make the internal character of

a given act so different in different men." Oliver Wendell

Holmes, Jr., The Common Law 108 (Little, Brown, & Co.

1909) (1881). Unlike the "courts of Heaven," our courts of

law require officials to conform to objective rules and objec-

tive facts, regardless of whether they are "born hasty and awk-

ward, [are] always having accidents and hurting [themselves]

or [their] neighbors." See id.

Officer Purnell failed to conform his conduct to the

Supreme Court’s specific mandate that police not use deadly

force against suspects who are unarmed and who pose no

threat to the officer or others. He did so in circumstances that

were objectively unreasonable in light of the suspect’s spe-

cific conduct and the crime that suspect allegedly committed.

We have no power to excuse that conduct simply because

Officer Purnell’s failure to behave as a reasonable officer was

an accident.

I respectfully dissent.