Eighth Amendment applied to prisoner who was shot while attempting to escape custody
How later courts described this case
- Eighth Amendment applied to prisoner who was shot while attempting to escape custody
- no Eighth Amendment violation when police used force to apprehend a convicted escapee
- pre-Graham decision; inmate shot while escaping from prison; fourth amendment applied
- prisoner shot during escape attempt
Written by the judges who cited it.
The opinion
SLOYITER, Circuit Judge,
concurring.
With great respect for the majority, I believe that our jurisdiction to consider the appeal from the denial of summary judgment in this case requires more analysis than contained in the first paragraph of the majority opinion.
I do not read Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), as holding that every decision involving the question of qualified immunity is immediately appealable. As we suggested in Chinchello v. Fenton, 805 F.2d 126, 130-31 (3d Cir.1986), the denial of a motion for summary judgment claiming qualified immunity based on the “I didn’t do it” defense will not be immediately appealable under Mitchell . On the other hand, we have jurisdiction to hear an appeal when the district court has denied a defendant’s claim to qualified immunity which is based on the defendant’s contention that the conduct on which suit is brought violated no clearly established legal norm. Id.
In this case, one could view the dispute between the parties as a factual one, since Henry contends that Perry gave him no prior warning before shooting. The majority apparently believes that because Henry failed to testify at his criminal trial that there was no warning, we must assume that Perry gave a warning before shooting. However, since the warning vel non was not relevant to Henry’s criminal defense, I do not see how his failure to so testify could preclude him from raising such a claim here. Henry did file a statement under oath in the district court that there was no warning and which, liberally read, avers that he would so testify. App. at 287-90.
I am persuaded to join the majority’s judgment, however, because I believe that even if Perry had failed to warn Henry, that alone could not establish the kind of malice that would defeat a qualified immu *660 nity defense under the circumstances here. Henry, who had been convicted of murder and sentenced to life imprisonment, was admittedly escaping. Applying the “objective legal reasonableness” standard established by Harlow v. Fitzgerald, 457 U.S. 800, 819 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982), and refined by Anderson v. Creighton, 484 U.S. 635 , 107 S.Ct. 3034, 3038-40 , 97 L.Ed.2d 523 (1987), Perry could have reasonably believed that he was justified in using force to stop Henry from escaping. The Deputy Superintendent filed an affidavit that every inmate in that maximum security institution must be considered dangerous, and any inmate in the act of escaping must be considered to be a danger to the community. The Operations Manual attached to Perry’s affidavit sets forth that employees transporting inmates may use force, including deadly force, if an escape is attempted but must use the least degree of force necessary. There is no requirement of a warning. There is no basis in the record to conclude that Perry did not comply with the prescribed procedures.
Because the disposition of the qualified immunity claim turns on a question of law, that of legal right and correlative duty, it meets the standard for immediate appeal under Mitchell . I thus concur in the majority’s judgment reversing and remanding with directions to enter summary judgment for defendant.