1 

Mistaken Use of Firearm instead of 

Electronic Control Weapon

By Carl Milazzo 

Division Chief 

Legal Training Division, FLETC 

Originally published in the December 2008 edition of The Police Chief 

What are the legal implications when an officer reaches for an electronic control weapon (ECW), 

such as a Taser, intending to subdue a suspect, but mistakenly grabs a firearm instead and 

unintentionally shoots the suspect? Although this unfortunate event is uncommon, courts have 

now had the opportunity to address officers’ mistaken use of a firearm when they intended to use 

an ECW. 

Objective Reasonableness

The use of force by law enforcement officers is constitutional when it is objectively reasonable. 

Since “the test of reasonableness under the Fourth Amendment is not capable of precise 

definition or mechanical application,”1 the U.S. Supreme Court has recognized that the “calculus 

of reasonableness must embody allowance for the fact that police officers are often forced to 

make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—

about the amount of force that is necessary in a particular situation.”2 The Supreme Court has 

recently stated that although an attempt to craft an easy-to-apply legal test is admirable, “in the 

end we must still slosh our way through the factbound morass of ‘reasonableness.’”3 

Recent Cases

In Henry v. Purnell4

 a deputy sheriff attempted to arrest a suspect during a traffic stop on an 

outstanding warrant for failure to pay child support. The suspect pushed the deputy and began to 

flee. Within 10 seconds, the deputy reached for what he thought was his ECW (located just 

below his holstered handgun) but instead drew his Glock .40-caliber handgun and shot the 

suspect in the elbow. The deputy immediately told the suspect and a witness that he had not 

meant to shoot and grabbed the wrong weapon. The court of appeals ruled that a “seizure” 

occurred but remanded the decision to the district court for a determination of reasonableness 

after further discovery on the training provided to the officer. On remand, the district court 

granted summary judgment for the deputy, finding that his mistake was reasonable.5

 The court 

commented: 

During the course of the training, [the deputy] handled a Taser a single time, 

and he only fired it once. Moreover, although the record reveals that prior to the 

training the Taser manufacturer knew of three accidents in which an officer had 

unholstered and fired the wrong weapon, during the course of the training there 

was no discussion about the possibility of erroneous weapon usage. Perhaps it 
2 

might be contended that Somerset County ([the deputy’s] employer) and/or the 

Taser manufacturer were negligent in not providing greater training. They, 

however, are not defendants in this action, and nothing in the training that [the 

deputy] did receive demonstrates that the mistake he made when he shot Henry 

with his Glock was anything other than an honest one.6

In Torres v. City of Madera7

 an officer was attempting to subdue a handcuffed arrestee who was 

kicking the rear window from inside a patrol car. The officer had a Glock pistol in her holster 

and an ECW immediately below in a thigh holster. She removed what she thought was her ECW, 

pointed the laser sight at the arrestee’s center of body mass, and fired once. Unfortunately, the 

weapon she drew instead was her firearm. The court of appeals cited Henry v. Purnell in holding 

that the officer would be liable only if her mistake was unreasonable. The court also agreed with 

Henry that five factors should be considered in determining the reasonableness of the officer’s 

mistake: 

(1) the nature of the training the officer had received to prevent incidents 

like this from happening; (2) whether the officer acted in accordance with 

that training; (3) whether following that training would have alerted the 

officer that he was holding a handgun; (4) whether the defendant’s conduct 

heightened the officer’s sense of danger; and (5) whether the defendant’s 

conduct caused the officer to act with undue haste and inconsistently with 

that training.8

Like in Henry, this case was remanded for further proceedings to determine whether the officer’s 

mistake was objectively reasonable. 

In Yount v. City of Sacramento9 an officer attempted to subdue a handcuffed suspect who was 

kicking, biting, and spitting at officers. Mistakenly drawing his firearm instead of his ECW, the 

officer shot the suspect in the buttocks. The court ruled that the conviction for obstructing an 

officer did not bar the arrestee from pursuing a federal civil rights claim against the officer for 

excessive force. 

Conclusion

The small number of reported cases does not establish a widespread trend, but these cases are 

enough to put users on notice that mistakes can happen. Therefore, the potential for mistakes 

should now certainly be addressed in both training and policy.10 Even if an officer is entitled to 

qualified immunity, an agency may still be liable for inadequate training or supervision.11 In 

addition, even if the mistaken use of a firearm is objectively reasonable under the Fourth 

Amendment, the officer may still be liable under a state negligence or battery claim. 

Notes:

1

Graham v. Connor, 490 U.S. 386, 396 (1989). 2

Id. at 396–97. 3

Scott v. Harris, 127 S. Ct. 1769, 1778 (2007). 4

Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007). 5

Henry v. Purnell, 559 F. Supp. 2d 648 (D.Md. 2008). 
3 

6

Id. at 652. 7

Torres v. City of Madera, 524 F.3d 1053 (9th Cir.2008). 8

Id. at 1057. 9

Yount v. City of Sacramento, 43 Cal. 4th 885 (2008). 10For a comprehensive site of legal resources, see www.ecdlaw.info. 11See Monell v. Department of Social Services, 436 U.S. 658 (1978) and City of Canton v. Harris, 489 U.S.378 

(1989). 

Carl Milazzo graduated from Western Illinois University in 1984 and Chicago Kent College of Law in 

1987. After serving as an Army JAG officer, Carl joined the Fayetteville, North Carolina Police Department as its 

Police Attorney, becoming a sworn officer and working on the Chief’s staff. In January 2001 Carl became the 

Assistant Executive Director of the AELE Law Enforcement Legal Center. He arrived at FLETC in June 2002 as a 

Senior Instructor in the Legal Division, was promoted to Branch Chief in the Enforcement Operations Division in 

October 2003 and then Legal Division Chief in 2005. 

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