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Case revived for deputy who pulled handgun instead of Taser

A federal appeals court has revived an excessive-force lawsuit against a Somerset County deputy who pulled his handgun instead of his Taser and shot an unarmed man suspected of failing to pay child support.

The 4th U.S. Circuit Court of Appeals said it was too soon to dismiss the state constitutional claims against Deputy Sheriff Robert Purnell.

Even so, the victim, Frederick Henry, will have an uphill battle in his effort to hold Purnell liable for the mistake that resulted in the shot to his elbow in 2003.

Henry will have to convince the lower court that Purnell can, in fact, be sued under Maryland law, the 4th Circuit held on Friday.

A lower-court judge had found Purnell was immune from suit on both the state and federal claims.

The 4th Circuit affirmed that ruling as to the federal claims only.

Purnell’s mistake, even if unreasonable, was entitled to immunity under federal law because it was not clearly established — in 2003 “nor indeed today” — that “an act of weapon confusion of the firearm for the taser” would qualify as an unconstitutional use of excessive force, the 4th Circuit said.

“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,” Judge G. Steven Agee wrote for himself and Judge Eugene E. Siler Jr.

In a sharp dissent, Judge Roger L. Gregory wondered how a deputy could be immune from liability for an “unreasonable mistake.”

“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 specific facts he faced,” Gregory wrote. “We sacrifice both liberty and security when we allow police officers to shoot unarmed suspects without any reasonable basis for doing so.”

Henry’s appellate counsel declined to comment on the court’s decision beyond saying that an appeal to the full 4th Circuit on the qualified-immunity issue remains a possibility.

“We’re considering all our options,” said Katherine L. Bushman, a fellow at Georgetown University Law Center’s Appellate Litigation Program in Washington, D.C.

Purnell’s appellate lawyer, John F. Breads Jr., did not return telephone messages seeking comment. Breads is with the Local Government Insurance Trust in Hanover.

Last week’s decision is the 4th Circuit’s second in the case.

Henry was wanted for failure to pay child support in October 2003. When Purnell stopped him on the road, Henry ran.

Purnell later testified he thought Henry was running for a weapon. The officer said he was attempting to stop him when he unholstered and fired what he thought was the Taser.

Instead, it was a .40 caliber Glock handgun.

Henry filed suit in 2004. In September 2007, after extensive discovery, U.S. District Judge J. Frederick Motz denied Purnell’s motion for summary judgment, finding the facts raised questions about whether the officer was entitled to immunity.

Purnell appealed.

In 2008, the 4th Circuit sent the case back to Motz with instructions to allow more discovery on Purnell’s training, and then revisit the immunity issue. The appellate court said Henry had the burden of proving Purnell’s use of the Glock was unreasonable.

Motz subsequently granted summary judgment for Purnell, finding no evidence indicating that Purnell’s mistake “was anything other than an honest one.” Since Purnell’s actions were not unreasonable, he was entitled to immunity from suit, Motz added.

Henry then appealed, resulting in Friday’s decision reviving his state-law claim.

Siler, a judge on the 6th U.S. Circuit Court of Appeals, was sitting by designation.

What the court held

Case:

Henry v. Purnell, 4th Cir. No. 08-7433. Reported. Opinion by Agee, J. Dissent by Gregory, J. Filed Sept. 24, 2010.

Issue:

Is a police officer entitled to qualified immunity under federal and state law if he mistakenly pulls his gun rather than his Taser and shoots and wounds someone wanted for missing child support payments?

Holding:

Yes and no. Qualified immunity applies to the federal claim because no clearly established law renders the mistake illegal. Statutory immunity is available under Maryland law if officer acted without malice or gross negligence.

Counsel:

Katherine L. Bushman for appellant; John F. Breads Jr. for Appellee.

RecordFax # 10-0924-60 (36 pages).