ON REHEARING EN BANC

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 24, 2011

Decided: July 14, 2011

Before TRAXLER, Chief Judge, and WILKINSON,

NIEMEYER, KING, GREGORY, SHEDD, DUNCAN,

AGEE, DAVIS, KEENAN, WYNN, and DIAZ,

Circuit Judges.1

Reversed and remanded by published opinion. Judge Gregory

wrote the opinion, in which Chief Judge Traxler and Judges

Wilkinson, King, Duncan, Davis, Keenan, Wynn, and Diaz

joined. Judge Davis wrote a concurring opinion. Judge Shedd

1

Judge Motz did not hear oral argument or participate in the decision of

this case. 
wrote a dissenting opinion, in which Judges Niemeyer and

Agee joined. Judge Niemeyer wrote a separate dissenting

opinion.

COUNSEL

ARGUED: Katherine Louise Bushman, GEORGETOWN

UNIVERSITY LAW CENTER, Appellate Litigation Program, Washington, D.C., for Appellant. John Francis Breads,

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

Goldblatt, Director, Charlotte J. Garden, Supervising Attorney, May K. Chiang, Student Counsel, Kate G. Henningsen,

Student Counsel, GEORGETOWN UNIVERSITY LAW

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

for Appellant.

OPINION

GREGORY, Circuit Judge:

Without warning, Officer Robert Purnell shot Frederick

Henry, an unarmed man wanted for misdemeanor failure to

pay child support, when he started running away. In the ensuing § 1983 action, the parties stipulated that Purnell had

intended to use his Taser rather than his gun and the district

court granted him summary judgment. However, because

Tennessee v. Garner prohibits shooting suspects who pose no

significant threat of death or serious physical threat, and

because Purnell’s use of force could be viewed by a jury as

objectively unreasonable, we reverse and remand.

I.

Since this case stems from the grant of summary judgment

for Purnell, we recount the facts in the light most favorable to

2 HENRY v. PURNELL
the non-movant, Henry. See George & Co. LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 392 (4th Cir. 2009).

In 2003, a Maryland state court ordered Henry to either pay

child support or report to jail on September 8, 2003. When

Henry did not comply, a warrant was issued for his arrest on

October 9, 2003 for second degree escape. Maryland law

defines second degree escape as "knowingly fail[ing] to obey

a court order to report to a place of confinement." Md. Code

Ann., Crim. Law, § 9-405(a)(2). "A person who violates this

section is guilty of the misdemeanor of escape in the second

degree . . . ." Id. § 9-405(b) (currently codified at § 9-405(c)).

Eleven days later, on October 20, 2003, Purnell first

attempted to serve the warrant at Henry’s last known address,

a trailer home in Eden, Maryland. Purnell approached a man

who was sitting on the front steps of the trailer and who identified himself as Henry’s friend. The man said Henry worked

at American Paving Company and offered to give Purnell’s

name and number to Henry’s wife, who was inside the trailer.

Purnell then went to the American Paving Company, where

an employee said that Henry had not worked in three months,

and showed Purnell a photo of Henry. The photo appeared to

match the man who had identified himself as Henry’s friend.

Purnell returned to the trailer home later that day and spoke

with Henry’s wife. She told Purnell that Henry was not home,

allowed Purnell to enter the trailer, and said that Henry

worked for a man in a white pickup truck. Purnell seemed

"very upset" and told her that he was going to "get [Henry]

for pulling a whammy" on him. J.A. 534-35. The next day,

October 21, 2003, Henry’s wife called Purnell to add that she

had given Henry the message and that he was traveling to

Baltimore to try to raise bail money.

On October 23, 2003, while in the vicinity for other reasons, Purnell passed by a white pickup truck. Purnell followed

the truck and found it parked in the driveway of the trailer

home he had previously visited. Purnell approached the truck,

HENRY v. PURNELL 3
which contained a driver, Thomas Walston, and two passengers, Gene Moore and Henry. Purnell came to the driver’s

side window and asked each man if he was Henry. Each initially said no, but when Purnell asked again, Henry admitted

his identity. Henry then exited the vehicle and proceeded to

the back of the truck with Purnell. Henry then "started to run

towards the front of his truck which was in the direction of the

trailer where [he] lived." J.A. 537-58. Eyewitness Walston

described Henry as "kind of jogging a little bit." J.A. 13-14.

"Within a second," Purnell started running after him; Purnell

was roughly five to ten feet away. J.A. 257, 538.2

Purnell had holstered two weapons on his right leg: on his

hip was a service revolver, a Glock .40 caliber handgun. On

his thigh was an electroshock weapon, a Taser M26 (hereafter, the "Taser"). The Taser was "just underneath [the] service

pistol," approximately twelve inches apart. J.A. 139, 200. Purnell un-holstered his Glock and held it in the horizontal firing

position for "[t]hree to five seconds." J.A. 269, 271. He did

not issue any verbal warning messages, commands, or instructions to halt. Purnell then fired a single shot, striking Henry

in the elbow. Walston, an eyewitness, said Purnell "shot

[Henry] before he got past the far end of the trailer." J.A.

13-14. Purnell caught up with Henry, who was lying on the

ground, repeating "[h]e shot me, [h]e shot me," and talking

about how much it hurt. J.A. 13. Purnell said he "never

intended to shoot Mr. Henry, that [he] had grabbed the wrong

weapon." J.A. 139. Purnell called an ambulance and retrieved

medical supplies to slow Henry’s bleeding.

2Henry claimed that he never had any physical contact with Purnell. In

his affidavit, Purnell stated that "although I had stumbled backward when

Mr. Henry pushed away, I recovered and reached for my Taser." J.A. 139.

In his deposition, Purnell said that Henry "pushed away" with "both arms,"

and that Purnell "fell backwards and caught himself" on his "car and [ ]

right leg." J.A. 256. 

4 HENRY v. PURNELL
II.

This case has a long procedural history: In March 2004,

Henry brought this § 1983 action alleging Purnell violated his

Fourth Amendment right to be free from seizures effectuated

by excessive force.

In May 2004, Purnell motioned for the district court to dismiss the case or grant summary judgment in his favor. Purnell

contended that he had not "seized" Henry and, alternatively,

that he was entitled to qualified immunity. The district court

denied Purnell’s motion because his "assertions [that he drew

the wrong weapon] necessarily depend upon his credibility

and therefore give rise to a genuine dispute of material fact."

J.A. 16.

In June 2004, Purnell filed an interlocutory appeal, claiming that the record did not support the district court’s conclusion that he was not entitled to qualified immunity. We

dismissed the appeal for lack of jurisdiction because "Purnell’s argument . . . challenges the district court’s factual finding." Henry v. Purnell, 119 Fed. Appx. 441, 443 (4th Cir.

2005) (unpublished) (per curiam) (hereafter, "Purnell I").

In June 2005, Henry moved for leave to file an amended

complaint, which the district court granted. Henry added a

claim for excessive force based on the Maryland Constitution’s Declaration of Rights.

On November 10, 2005, the parties entered into a stipulation "for the purposes of this litigation, that on October 22,

2003, [Purnell] intended to un-holster and discharge his Taser

M26 which was mounted in a thigh holster below his service

weapon, a Glock .40 caliber handgun. Instead, he un-holstered

and fired his service weapon, believing that it was his Taser

M26." J.A. 30.

In November 2005, Purnell filed a second motion for summary judgment, arguing that the Fourth Amendment was

HENRY v. PURNELL 5
inapplicable because he never intended to seize Henry with a

gun. Alternatively, Purnell argued he was entitled to qualified

immunity and was also immune from state tort liability.

Henry opposed summary judgment on the grounds that the

shooting was a seizure, that outstanding issues of material fact

had to be resolved by a jury, and that Purnell was not entitled

to qualified immunity. Henry stressed several factors which

made Purnell’s conduct unreasonable, such as his failure to

give a warning or command before firing. Henry also pointed

out Purnell’s failure to notice physical differences between

the Taser and Glock, including the Taser’s safety switch,

weight, color, and holster position. The parties also disputed

the production of additional evidence about Taser training.

In April 2006, the district court issued its first opinion,

denying Purnell’s motion for summary judgment and granting

Henry’s motion to compel new evidence about Taser training

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

Md. 2006). It found "the evidence on summary judgment

[was] fully sufficient to create a jury issue on the question of

whether Purnell was grossly negligent." Id. The district court

also proposed "a ‘heightened culpability element’ should be

added to a Fourth Amendment civil claim." Id. at 399. The

court acknowledged that this was "arguably inconsistent with

current law," "difficult to reconcile with a strict reading of"

the objective reasonableness test set out in Graham v. Connor, 490 U.S. 386 (1989), and partially "inconsistent with the

literal language of Graham." Henry, 428 F. Supp. 2d at

399-400, 401 n.9.3

3

Instead, the court advocated a narrow reading of Graham, reasoning

that it was "not entirely clear, that [objective reasonableness] was the

[Supreme] Court’s intended meaning (or that it would have been the

Court’s intended meaning had it foreseen the confused manner in which

the law subsequently developed)." Henry, 428 F. Supp. 2d at 401. Under

any reading of Graham, the district court concluded that "the time has

come for appellate courts to revisit the issue of whether an element of culpability greater than negligence should explicitly be made a component of

a Fourth Amendment civil claim." Id. at 402. 

6 HENRY v. PURNELL
Purnell appealed to this Court again, claiming that the district court erred in concluding that he "seized" Henry and

denying him qualified immunity. J.A. 7-8. In September

2007, we affirmed in part and vacated in part. Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007) (hereafter, "Purnell II").4

We affirmed the district court’s determination that Purnell’s

shooting of Henry was a "seizure" under the Fourth Amendment. Id. at 381-82. But we vacated and 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 on remand Henry "establish[ed] that

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

mistake in using the Glock rather than the Taser was unreasonable)," then we suggested that Purnell would "have the

opportunity to demonstrate his entitlement to qualified immunity." Id. at 384.

On remand, Henry received the additional discovery he had

requested about Purnell’s weapons training and the sheriff’s

use of force policy. These included more than two hundred

pages of training materials and depositions.5See generally,

4The opinion was filed by two judges, a quorum of the panel under 28

U.S.C. § 46(d), because a third judge heard oral argument but did not participate in the decision. 501 F.3d at 376 n.1. 

5On August 21, 2003, Purnell took a three-and-a-half hour Taser training class with six or seven other individuals and was certified in Taser use.

That training included a PowerPoint presentation with 150 slides, which

discussed the "Pro’s & Con’s" of different holster configurations. J.A.

297-447. The training explicitly discussed the dangers of carrying a gun

and Taser on the same leg, known as a "dominant side carry." J.A. 332.

The training warned that this creates a "Higher Risk of Confusion Depending on Training." J.A. 332. The presentation also detailed "3 incidents of

accidental shootings by mistaken weapon," in California and Minnesota.

J.A. 332. As a result of these accidents, one of which was fatal, the training warned that "[a]ll three agencies have since switched to a support side

carry and have yellow M26s." J.A. 332. The closing statement of the training read as follows: "The most important decision an officer can make is

whether or not to engage deadly force upon a person." J.A. 450. The class

also included a hands-on component where Purnell shot a Taser into a target. 

HENRY v. PURNELL 7
J.A. 285-514, 539-542, 549. Discovery also revealed several

physical differences between the Glock and Taser.6

In March 2008, Purnell filed his third motion for summary

judgment, stressing that he had "no field training with, or field

use of, the Taser prior to the occurrence." J.A. at 115. Purnell

also emphasized that the Taser’s manufacturer had warned

about holstering two weapons on the same leg, but that warning was "never imparted to [Purnell] or anyone else." J.A.

115. In opposing the motion Henry argued that material facts

remained in dispute and that Purnell’s mistake was unreasonable because he did not "comply with multiple police department regulations," which resulted in a "reckless failure to take

steps to avoid the impermissible use of excessive force." J.A.

at 520-21. Henry stressed that "[i]t has been clearly established . . . [that] reckless conduct on the part of a police officer that directly leads to an accidental or unintentional

shooting violates the suspect’s Fourth Amendment rights."

J.A. 526 (citing Jenkins v. Averett, 424 F.2d 1228, 1232 (4th

Cir. 1970)). Henry also maintained his state law claim.

In June 2008, the district court issued its second opinion,

granting Purnell’s motion for summary judgment. Henry v.

Purnell, 559 F. Supp. 2d 648 (D. Md. 2008). The court

stressed that "the dispositive question is whether, under the

circumstances and filtered through the lens of the officer’s

perception, it was reasonable for Purnell to believe that the

weapon he upholstered and fired was the Taser." Id. at 651-52

(quotations and citations omitted). The court concluded that

Purnell’s belief was reasonable because his training was

6A Taser M26 weighed 19.2 ounces, was 8.30 inches long (with a cartridge), 6.00 inches tall, and 1.75 inches wide. The Taser had yellow coloring on both sides and the back of the weapon and contained a laser sight

and a battery light. A Glock .45 (similar to Purnell’s .40 caliber) weighed

38 ounces (with a magazine), was 7.59 inches long, 5.47 inches tall, and

1.27 inches wide. The Glock was colored black and had no laser sight or

lights. The holster straps of the two weapons were made of different materials. 

8 HENRY v. PURNELL
"quite minimal" and there was apparently "no discussion

about the possibility of erroneous weapon usage." Id. at 652.7

In September 2010, a divided panel of this court affirmed

the district court decision. Henry v. Purnell, 619 F.3d 323 (4th

Cir. 2010); see also id. at 343 (Gregory, J., dissenting). Henry

moved for rehearing and rehearing en banc. We granted

rehearing en banc and now, reverse and remand for trial.

III.

Henry first maintains that the district court erred in granting

summary judgment to Purnell on Henry’s § 1983 claim. We

agree.

Whether a party is entitled to summary judgment is a question of law we review de novo using the same standard

applied by the district court. Canal Ins. Co. v. Distrib. Servs.,

Inc., 320 F.3d 488, 491 (4th Cir. 2003). Summary judgment

is appropriate only if taking the evidence and all reasonable

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."

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

2003).

Purnell contends that he was rightly granted summary judgment on the basis of qualified immunity because the parties

stipulated that he mistakenly used his firearm instead of his

Taser. Henry argues that we should disregard Purnell’s subjective intent (to draw his Taser) and that Purnell’s conduct

was objectively unreasonable.

7The district court also mused that "[p]erhaps . . . Purnell’s employer[ ]

and/or the Taser manufacturer were negligent in not providing greater

training," but they "are not defendants in this action . . . ." 559 F. Supp.

2d at 652. The court disregarded the fact that Purnell "may not have complied with the [Sheriff’s] Taser policy" and did not notice various physical

differences between his weapons. Id. at 652 n.3. 

HENRY v. PURNELL 9
Qualified immunity protects officers who commit constitutional violations but who, in light of clearly established law,

could reasonably believe that their actions were lawful. Saucier v. Katz, 533 U.S. 194, 206 (2001), overruled in part,

Pearson v. Callahan, 129 S. Ct. 808 (2009); see also Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011). "Following the Supreme Court’s recent decision in Pearson[ ], we

exercise our discretion to use the two-step procedure of Saucier[ ], that asks first whether a constitutional violation occurred

and second whether the right violated was clearly established." Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010)

(citations omitted). "If [an officer] did not violate any right,

he is hardly in need of any immunity and the analysis ends

right then and there." Abney v. Coe, 493 F.3d 412, 415 (4th

Cir. 2007).

The Fourth Amendment’s prohibition on unreasonable seizures includes the right to be free of "seizures effectuated by

excessive force." Schultz v. Braga, 455 F.3d 470, 476 (4th

Cir. 2006). Whether an officer has used excessive force is

analyzed under a standard of objective reasonableness. Scott

v. Harris, 550 U.S. 372, 381 (2007); see also Kentucky v.

King, 131 S. Ct. 1849, 1859 (2011) ("Our [Fourth Amendment] cases have repeatedly rejected a subjective approach,

asking only whether the circumstances, viewed objectively,

justify the action.") (internal quotation marks and citations

omitted). Thus, courts determine "whether the officers’

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

circumstances confronting them, without regard to their

underlying intent or motivation." Graham v. Connor, 490

U.S. 386, 397 (1989). In considering whether an officer used

reasonable force, a court must focus on the moment that the

force is employed. Elliott v. Leavitt, 99 F.3d 640, 643 (4th

Cir. 1996). At the summary judgment stage, once we have

viewed the evidence in the light most favorable to the nonmovant, the question of whether the officer’s actions were reasonable is a question of pure law. Scott, 550 U.S. at 381 n.8.

It is in light of these legal principles that we address whether

10 HENRY v. PURNELL
the evidence, viewed in the light most favorable to Henry,

shows that Purnell used objectively unreasonable force.

A.

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). "Where the suspect poses

no immediate threat to the officer and no threat to others, the

harm resulting from failing to apprehend him does not justify

the use of deadly force to do so." Id. at 11.8

The objective circumstances of this case are that Purnell

shot a fleeing suspected misdemeanant whom he had no reason to believe was a threat. Henry had an eleven-day old warrant issued for a misdemeanor — failure to pay child support.

Nothing in the record suggested Henry had any history of violence. That Henry had previously hidden his identity does not

imply he was prone to aggression. Purnell had already been

inside Henry’s home. Henry’s home address, wife’s identity,

former employer, and employer’s car were all known. The

officer also knew that Henry had left town to raise bail money

and thereafter planned to return to pay for bail. When police

approached Henry’s car, he voluntarily identified himself and

exited the car. He then began running away.

Thus, critically, this case presents nothing to suggest Henry

posed any threat whatsoever — no menacing conduct and no

violent criminal history. To the contrary — police had signifi8

In Graham v. Connor, the Supreme Court extended Garner and held

"that all claims that law enforcement officers have used excessive force —

deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment

and its reasonableness standard, rather than a ‘substantive due process’

approach." 490 U.S. 386, 395 (1989). See also Abney, 493 F.3d at 415

(citing Graham). 

HENRY v. PURNELL 11
cant information about Henry’s likely whereabouts, motives,

associations, and appearance. In sum, a reasonable officer in

these circumstances would have had no grounds for believing

Henry was armed or dangerous.9 The parties do not seriously

dispute as much.

The parties have stipulated, however, that the shooting here

was based on a mistake of fact insofar as Purnell believed he

was firing his Taser rather than his Glock. Based on this stipulation, Purnell attempts to defend the constitutionality of his

actions by maintaining that he simply made an "honest mistake." Appellee’s Br. 22 (internal quotation marks omitted).

But it is not the honesty of Purnell’s intentions that determines the constitutionality of his conduct; rather it is the

objective reasonableness of his actions. It is certainly true that

mistaken, but reasonable, decisions do not transgress constitutional bounds. See, e.g., McLenagan v. Karnes, 27 F.3d 1002

(4th Cir. 1994). All actions, however, mistaken or otherwise,

are subject to an objective test.

There were several facts that Purnell knew or should have

known that would have alerted any reasonable officer to the

fact that he was holding his Glock. First, and most basically,

Purnell knew he carried his Taser in the holster on his right

thigh, which was about a foot lower than the holster on his hip

that held his Glock. See Sevigny v. Dicksey, 846 F.2d 953, 957

n.5 (4th Cir. 1988) ("Objective inquiry into the reasonableness of an officer’s perception of the critical facts leading to

9Purnell stated in his deposition that he was concerned that because

Henry was in his neighborhood, he could have run somewhere and picked

up a weapon. However, that possibility did not make Henry an immediate

threat. Purnell also testified that he did not know whether Henry was

armed since he had not searched him. But Purnell had no reason to

believe, or even suspect, that Henry was armed. When the dissent stresses

Purnell’s personal hypotheses about what Henry might have done, dissenting op. at 33-34, it slips into the subjective and implies that all fleeing suspects may be apprehended through the use of deadly force. Garner and

Graham hold otherwise. 

12 HENRY v. PURNELL
an arrest . . . must charge him with possession of all the information reasonably discoverable by an officer acting reasonably under the circumstances. Indeed his subjective beliefs

about the matter, however induced, are actually irrelevant to

the inquiry.") (internal quotation marks omitted). Second,

Purnell could feel the weight of the weapon he held in his

hand, which, at about 38 ounces, was nearly twice the weight

of his Taser. Third, Purnell knew the Taser had a thumb

safety that had to be flipped to arm the weapon. The Glock

he was holding had no thumb safety.10 This was not a situation

in which the facts known to the officer led to multiple reasonable inferences.

It bears emphasis that this also was not a situation in which

circumstances deprived Purnell of the opportunity to fully

consider which weapon he had drawn before firing.11 See Graham, 490 U.S. at 397 (explaining that courts must make "allowance for the fact that police officers are often forced to

make split-second judgments — in circumstances that are

tense, uncertain, and rapidly evolving"). As he pursued Henry

in an attempt to arrest him for a fairly minor, non-violent

crime, Henry had his back to Purnell and was not threatening

him or anyone else in any way. There was no evidence indicating that Purnell did not have the split-second he would

10Purnell claims that the firearm he previously carried, fourteen months

before the day of the shooting, had a thumb safety. He claims that on the

occasions when he trained with his Glock he noticed that he still made the

same instinctive thumb motion that he used to make with his prior

weapon. For that reason, he maintains that it was reasonable for him not

to notice the lack of a thumb safety on his Glock. However, regardless of

whether he continued to instinctually attempt to flip his thumb safety on

his Glock, a reasonable officer would have noticed that he was not pushing anything with his thumb when he made that motion. 

11Purnell admitted in his deposition that while he was never "told

directly" during his Taser training, nonetheless "[i]t was implied" and "understood" that he should make sure he had drawn his Taser rather than his

firearm before firing. J.A. 512. 

HENRY v. PURNELL 13
have needed to at least glance at the weapon he was holding

to verify that it was indeed his Taser and not his Glock.12

For all of the reasons set out above, when the record is

viewed in the light most favorable to Henry, Henry can show

Purnell’s actions were not objectively reasonable.13 Thus, the

evidence forecasted in the record by Henry is sufficient to

show that Purnell violated Henry’s Fourth Amendment rights.14

12As we have noted, the Glock was completely black, while the Taser

had yellow coloring on both sides. Also, the barrel of the Glock resembles

a traditional handgun barrel, cylindrical and narrow, while the Taser’s

"barrel" is box-shaped. 

13It bears recognizing that at trial, of course, the jury will not be

required to view the evidence in the light most favorable to Henry. 

14The dissent avoids qualified immunity altogether by reasoning that

"the Fourth Amendment does not address the accidental effects of otherwise lawful government conduct . . . ." Dissenting op. at 41. That conclusion paraphrases Brower v. County of Inyo, but miscomprehends its legal

import. 489 U.S. 593, 596 (1989) (discussing "the accidental effects of

otherwise lawful government conduct."). Brower held that a police roadblock which accidentally killed a fleeing suspect constituted a seizure. Id.

at 599. Brower’s discussion of police intent, id. at 596-597, stands for

nothing more than the unremarkable proposition that intent can be a precondition for whether a Fourth Amendment seizure occurred in the first

place, infra n.15. Brower could have chosen to exempt all accidents from

the Fourth Amendment. But instead, the Court remanded the case to consider if the roadblock was unreasonable and preserved the objective standard: "It may well be that [police] here preferred, and indeed earnestly

hoped, that Brower would stop on his own, without striking the [roadblock], but we do not think it practicable to conduct such an inquiry into

subjective intent." 489 U.S. at 598. 

Moreover, the dissent itself concedes that "[n]one of the[ ] cases [it

cites] involves the precise factual situation present here. . . ." Dissenting

op. at 40. For example, Milstead v. Kibler involved a bloody gun and knife

fight where two men were wrestling and police shot the wrong one. 243

F.3d 157, 165 (4th Cir. 2001). That reasonable reaction to a deadly threat

is already constitutional under Garner, but it differs markedly from the situation before us here. 

14 HENRY v. PURNELL
B.

Having concluded based on the facts we must accept at the

summary judgment stage that Purnell’s use of force would

have been unreasonable, we now turn to the second prong in

the qualified immunity analysis, which requires this Court to

decide "whether the [constitutional] violation was of a

‘clearly established’ right." Valladares v. Cordero, 552 F.3d

384, 388 (4th Cir. 2009). The second prong is "a test that

focuses on the objective legal reasonableness of an official’s

acts." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). An

official will not be held liable unless "[t]he contours of the

right [he is alleged to have violated were] sufficiently clear

that a reasonable official would understand that what he is

doing violates that right." Anderson v. Creighton, 483 U.S.

635, 640 (1987). "The qualified immunity standard ‘gives

ample room for mistaken judgments’ by protecting ‘all but the

plainly incompetent or those who knowingly violate the

law.’" Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). "The relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted."

Saucier, 533 U.S. at 202.

Here, Henry can show under prong one of the qualified

immunity analysis that a reasonable officer would have realized he was holding a firearm when shooting. Under prong

two, it would have been clear to a reasonable officer that

shooting a fleeing, nonthreatening misdemeanant with a firearm was unlawful. This basic legal principle had been established by the Supreme Court years earlier in Garner.

Purnell nevertheless argues that he is entitled to qualified

immunity because it was not clearly established at the time of

the shooting that it would be unconstitutional for an officer to

fire his weapon at the suspect under these facts when he

believed he was holding his Taser. But Purnell fails to underHENRY v. PURNELL 15
stand that his subjective beliefs or intentions have no place in

our constitutional analysis, which concerns the objective reasonableness of the officer’s conduct in light of the relevant

facts and circumstances.15 Graham, 490 U.S. at 397 (explaining that in resolving qualified immunity questions, courts

inquire "whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation"); Harlow, 457 U.S. at 818 (explaining that qualified immunity protects government officials "from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known"). Indeed, objectivity has been the touchstone of qualified immunity law for nearly thirty years.16 The

Supreme Court has made clear that the "Fourth Amendment

inquiry is one of ‘objective reasonableness’ under the circumstances, and subjective concepts . . . have no proper place in

that inquiry." Graham, 490 U.S. at 399. "[A]ll claims that law

enforcement officers have used excessive force . . . should be

analyzed under the Fourth Amendment and its ‘reasonableness’ standard." Id. at 395 (emphasis in original). See also

Anderson, 483 U.S. at 641 (holding that an officer’s subjective belief about the nature of his conduct is "irrelevant" for

qualified immunity purposes).

15Of course, an officer’s subjective intentions are quite relevant on the

question of whether the officer "seized" the suspect within the meaning of

the Fourth Amendment, but we resolved that question against Purnell in

a prior appeal, see Henry v. Purnell, 501 F.3d 374, 381-82 (4th Cir. 2007),

and it is not now before us. 

16There was briefly a time when qualified immunity included subjective

factors, namely an officer’s "permissible intentions." Wood v. Strickland,

420 U.S. 308, 322 (1975). But the Supreme Court soon eliminated subjective considerations altogether because "the subjective element of the

good-faith defense frequently [had] proved incompatible with our admonition . . . that insubstantial claims should not proceed to trial." Harlow v.

Fitzgerald, 457 U.S. 800, 815-816 (1982). Specifically, Harlow reasoned

that "[j]udicial inquiry into subjective motivation therefore may entail

broad-ranging discovery," which would incur "substantial costs" and be

"peculiarly disruptive of effective government." Id. at 816-17. 

16 HENRY v. PURNELL
Similarly, our Court has consistently conducted an objective analysis of qualified immunity claims and stressed that an

officer’s subjective intent or beliefs play no role. In Melgar

v. Greene, we made clear that "‘an officer’s good intentions’

do not make objectively unreasonable acts constitutional."

593 F.3d at 361 (citations omitted). We reiterated in Owens

v. Lott that the qualified immunity "determination ‘is an

objective one, dependent not on the subjective beliefs of the

particular officer at the scene, but instead on what a hypothetical, reasonable officer would have thought in those circumstances.’" 372 F.3d 267, 279 (4th Cir. 2004) (quoting Wilson

v. Kittoe, 337 F.3d 392, 402 (4th Cir. 2003)). And in Clem v.

Corbeau, we held that "[w]e may assume that [an officer]

subjectively believed that the force he used was not excessive;

that, however, is not the question. The question is ‘whether it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.’" 284 F.3d 543,

552-553 (4th Cir. 2002) (citations omitted). See also Jones v.

Buchanan, 325 F.3d 520, 527 (4th Cir. 2003) ("We do not

consider the officer’s ‘intent or motivation.’") (citing Elliott

v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)); Rowland v.

Perry, 41 F.3d 167, 173 (4th Cir. 1994) ("Subjective factors

involving the officer’s motives, intent, or propensities are not

relevant.").

In the end, this may be a case where an officer committed

a constitutionally unreasonable seizure as the result of an

unreasonable factual mistake. If he did, he is no more protected from civil liability than are the well-meaning officers

who make unreasonable legal mistakes regarding the constitutionality of their conduct. See Pearson, 129 S. Ct. at 815

("The protection of qualified immunity applies regardless of

whether the government official’s error is a mistake of law,

a mistake of fact, or a mistake based on mixed questions of

law and fact.") (internal quotation marks omitted). Although

officers are only human and even well-intentioned officers

may make unreasonable mistakes on occasion, the doctrine of

HENRY v. PURNELL 17
qualified immunity does not serve to protect them on those

occasions.

IV.

Purnell argues that even if the district court erred in granting his summary judgment motion on the federal claim, he

was nonetheless entitled to summary judgment on the state

claim on the basis of statutory immunity. We disagree.

Maryland Declaration of Rights Articles 24 and 26 prohibit

employment of excessive force during a seizure. Randall v.

Peaco, 927 A.2d 83, 89 (Md. Ct. Spec. App. 2007). The standards for analyzing claims under these articles are the same

as for analyzing Fourth Amendment claims. Id. Thus, from

our conclusion that the facts, viewed in the light most favorable to Henry, showed Purnell violated Henry’s Fourth

Amendment rights, it follows that Purnell also violated his

rights under Articles 24 and 26.

However, Maryland officials are granted immunity under

the Maryland Tort Claims Act ("MTCA"), Md. Code State

Gov’t, §§ 12-101 et seq., for state constitutional violations

committed within the scope of their duties when the violations

are made "without malice or gross negligence." Lee v. Cline,

863 A.2d 297, 307 (Md. 2004); Md. Code State Gov’t

§§ 12-101(a)(6), 12-105. And, "[u]nlike qualified immunity

from claims of violations of federal 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).

An officer’s actions are grossly negligent when they are "so

heedless and incautious as necessarily to be deemed unlawful

and wanton, manifesting such a gross departure from what

would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of

indifference to consequences." State v. Albrecht, 649 A.2d

18 HENRY v. PURNELL
336, 348 (Md. 1994) (internal quotation marks and citation

omitted). Whether an officer’s actions are grossly negligent,

and therefore unprotected by statutory immunity, is generally

a question for the jury. Taylor v. Harford County Dep’t of

Soc. Servs., 862 A.2d 1026, 1034 (Md. 2004).

We conclude that a reasonable jury could find that Purnell

was grossly negligent in failing to make even a minimal effort

to verify that he had drawn his Taser. Although Purnell stated

that he was never "told directly" during his training, he said

that "[i]t was implied" and "understood" that he should make

sure that he was in fact holding his Taser rather than a firearm

before firing. J.A. 512. Especially in light of the fact that the

Taser and firearm were holstered on the same side of Purnell’s body, a reasonable jury could conclude that such verification would only amount to common sense. In this case, in

a situation where there was no particular exigency and where

Purnell was attempting to arrest a nondangerous person for a

relatively minor crime, a jury could reasonably find that his

decision to fire his weapon without attempting to verify that

he had drawn his Taser rather than his Glock amounted to

gross negligence.

V.

Purnell’s use of deadly force against Henry was objectively

unreasonable and violated clearly established law, namely

Tennessee v. Garner’s prohibition against shooting suspects

who pose no significant threat of death or serious physical

injury to the officer or others. Nothing removes this case from

the straightforward context of Garner. Consequently, we hold

that Purnell was not entitled to qualified immunity.17 Further17We recognize of course that the substantive Fourth Amendment

inquiry and the matter of qualified immunity are not always one and the

same. See Saucier, 533 U.S. at 203-07. Here, however, we think qualified

immunity was properly denied and that the reasonableness of the officer’s

actions on the merits is a matter for the jury. 

HENRY v. PURNELL 19
more, we hold that a jury could reasonably find that Purnell’s

conduct amounted to gross negligence. For these reasons, the

decision of the district court is

REVERSED AND REMANDED.

DAVIS, Circuit Judge, concurring:

A rookie deputy sheriff (albeit one with more than two decades of relevant law enforcement experience), Deputy Purnell, having been provided with "minimal training" in the use

of a Taser, goes, alone and without back-up officers, to the

home of an offender, Henry, wanted on a misdemeanor warrant for failure to pay child support, to take the offender into

custody on the warrant. The deputy has reason to believe, and

indeed has actual knowledge, that Henry has no record of violence or threatening conduct toward law enforcement officers

(or anyone else); indeed, this no doubt explains the absence

of any back-up officers. When Henry pointlessly runs away

from Deputy Purnell, the deputy (who is carrying his

newly-issued Taser on his "dominant side" inches from his

Glock service pistol) mistakenly draws his Glock (which he

had never before used in the field) instead of the Taser (with

which he had only practiced once before) and, despite easily

measurable differences in the weight and features of the two

weapons, immediately discharges his Glock pistol and shoots

and wounds the offender.

I am pleased to join Judge Gregory’s fine opinion for the

en banc majority. The court holds that whether, under the

totality of the circumstances of this case (properly drawing all

inferences of fact in favor of Henry as the non-movant under

Fed. R. Civ. P. 56), Deputy Purnell’s mistaken use of his

Glock pistol to shoot Henry was reasonable, is a question for

the jury and not properly determined as a matter of law. I

write briefly to make three observations in response to the

principal dissent (hereafter, "the dissent").

20 HENRY v. PURNELL
First. The dissent (in some passages) seems to be in agreement with the en banc majority (and the parties) that this case

does not present the hypothetical issue of whether the intentional use of the Taser by Deputy Purnell under the circumstances would have comported with the Fourth Amendment.

See Dissenting Op. at 31 ("The dispositive question in this

case is not whether it was reasonable for Deputy Purnell to

use deadly force to stop Henry or even whether it was reasonable for the deputy to attempt to use his Taser.") (emphasis

added); id. at 41 n.8 ("Henry does not claim that Deputy Purnell’s decision to use the Taser was unreasonable . . . . Therefore, we need not decide that issue.") (emphasis added). But

then, later on in the dissent, there is an implied finding on the

very issue not presented: that actual use of the Taser would

have been entirely appropriate. See id. at 48 (declaring, without qualification, that Deputy Purnell "made a mistake in his

execution of an otherwise proper action"). It is even more perplexing that, in still another passage, the dissent demands an

answer from the majority of the en banc court to the very

question that is not presented: "[C]ould the deputy have used

the Taser at all?" Dissenting Op. at 46.

The dissent’s serial disclaimers that "Taser use" is at issue

here does little to obscure the dissent’s transparent confidence

that the intentional use of a Taser by Deputy Purnell under the

circumstances in the case before us would have comported

with the Fourth Amendment. The dissent’s disappointment

that this case is not about "Taser use" is entirely understandable upon close scrutiny of its reasoning. This is because the

entire dissent rests on the following tidy (but deeply flawed)

syllogism:

* An officer’s use of a Taser is always permissible

under the Fourth Amendment to effect the arrest of

any fleeing suspect;

* An officer is permitted to make reasonable mistakes in effecting seizures without thereby violating

the Fourth Amendment; therefore

HENRY v. PURNELL 21
* As a matter of law, Deputy Purnell’s mistaken

use of weapon one [the Glock] instead of weapon

two [the Taser] to effect a seizure of the fleeing

Henry was reasonable and therefore did not violate

the Fourth Amendment.

In other words, under the dissent’s perspective on this case,

it is the very reasonableness (purportedly, as a matter of law)

of the intended use of the Taser against an unarmed, nonviolent misdemeanant fleeing on foot that renders the mistaken

use of the Glock "a reasonable mistake."

That this is the dissent’s mode of analysis is made clear

(again, despite the serial disclaimers) by the dissent’s citation,

as "instructive," see Dissenting Op. at 41 n.8, to a case

decided several days after the en banc argument in this case,

McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011) (affirming lower court’s grant of summary judgment that use of

Taser on a fleeing misdemeanor offender did not constitute an

unreasonable seizure). Even a cursory examination of McKenney, however, demonstrates that the facts in that case are not

remotely similar to the facts in the case at bar. The dissent’s

citation to that case in no manner undermines the majority’s

reasoning or the outcome in this case.

In McKenney, the offender had earlier fled by automobile

from the arresting officer, who had made a traffic stop of the

offender. Id. at 356-57. Three arrest warrants were issued for

the offender. Id. Several weeks after the initial encounter during the traffic stop, the offender was actually arrested on the

three warrants while in the second floor bathroom of his residence while naked. Id. at 357. The two arresting officers

escorted the offender to a nearby bedroom and allowed him

to dress before handcuffing him and removing him from the

residence. Id. Significantly, they observed that as he was

donning his clothing, he looked about suspiciously toward an

uncovered window, which opened out to a porch roof below

the second floor.

22 HENRY v. PURNELL
Upon making this observation, one officer unholstered her

Taser and orally warned the suspect "not to do anything stupid," id., and admonished him, "you don’t want to be tased."

Id. Despite the warning, the offender made a sudden break for

the window, and the officer discharged her Taser. Id. As a

result of being tased, the offender went through the window

uncontrollably, somehow missed the porch roof or otherwise

continued his fall such that he came off the porch roof and

landed on the ground. He died four days later from head

trauma suffered in his fall. Id. at 357-58.

The Eighth Circuit affirmed the district court’s grant of

summary judgment as to, inter alia, the Fourth Amendment

excessive force claim instituted by the offender’s mother

based on the officer’s use of the Taser. In affirming the district court’s determination that, as a matter of law, the use of

the Taser under the circumstances was not an instance of

actionable Fourth Amendment excessive force, our sister circuit reasoned as follows:

When Barnes made a sudden movement toward

the window, which the officers reasonably interpreted as an active attempt to evade arrest by flight,

the officers were entitled to use force to prevent

Barnes’s escape and effect the arrest . . . . Although

the charges were limited to misdemeanors, the officers executing the warrant were not required to let

Barnes run free.

Despite the fatal consequences of the incident, the

level of force employed also was not unreasonable.

Pollreis used only a single Taser shock. She was

required to react in a split second as Barnes sought

to escape through a window only six to eight feet

away. The alternative of attempting to subdue

Barnes by tackling him posed a risk to the safety of

the officer and did not ensure a successful arrest. The

officers had warned Barnes. Just before he lunged,

HENRY v. PURNELL 23
Harrison told Barnes not to do anything stupid, and

Pollreis said "you don’t want to be tased." And

although the outcome was tragic, a reasonable officer, knowing that a Taser is designed to incapacitate

instantly, could have believed that the force would

incapacitate Barnes before he reached the window,

while he was not in an "elevated position" and likely

to fall. Under these circumstances, we conclude that

the force used by Pollreis was reasonable.

Id. at 360 (citation and footnote omitted). It is quite clear that

the circumstances of the case at bar could not be more unlike

those presented in McKenney, which involved a suspect (who

had only weeks previously sped off in an automobile from

law enforcement during a traffic stop*) in the actual custody

of two law enforcement officers in a closed room, acting suspiciously as if he was planning to escape, and who ignored

express oral warnings by one of the officers who had unholstered her Taser and who had it at the ready when the offender’s sudden movement prompted her to discharge the Taser.

The dissent’s unbridled confidence that use of a Taser

would have been permissible here is unwarranted, of course,

because neither party to this case has presented or argued that

issue. It is unwarranted, as well, based on the thoughtful concurring opinion of Circuit Judge Murphy in McKenney, who

forthrightly acknowledged that the objective reasonableness

of the use of Tasers continues to pose difficult challenges to

*Recently, in the context of the Supreme Court’s evolving sentencing

jurisprudence, the Court explained the commonsense reasons why a suspect’s knowing or intentional use of an automobile to flee from law

enforcement significantly raises the stakes in the potential for violence by

such suspects. See Sykes v. United States, No. 09-11311, 2011 WL

2224437, *6-8 (U.S. June 9, 2011) (holding that a conviction under Indiana law of the driver of an automobile who knowingly or intentionally

flees from a police officer constitutes a "violent felony" prior conviction

under the federal Armed Career Criminal Act, 18 U.S.C. § 924(e)). 

24 HENRY v. PURNELL
law enforcement agencies and courts alike. It is, indeed, Judge

Murphy’s opinion that is most "instructive":

While I concur in the opinion of the court, I

believe that law enforcement use of tasers merits further reflection. This case illustrates one kind of

tragic result that can follow the employment of a

taser. The developing law on taser use must consider

the unique nature of this type of weapon and the

increased potential for possibly lethal results created

by newer models.

Our cases have reacted to a variety of circumstances where tasers have been used, and they sometimes reflect unexpected consequences. In Mahamed

v. Anderson, 612 F.3d 1084, 1086 (8th Cir. 2010),

for example, a jailer used a taser on a screaming

inmate lying on the floor of his own locked cell. The

taser probes lodged in the inmate’s testicle and hand,

assertedly causing long term impotence, incontinence, and nerve damage. Qualified immunity was

denied the jailer in that case. Id. at 1087. An officer

who tased a woman refusing to leave her car during

a traffic stop was also denied qualified immunity.

Brown v. City of Golden Valley, 574 F.3d 491,

499-500 (8th Cir. 2009). A panel majority granted

summary judgment in Cook v. City of Bella Villa,

582 F.3d 840, 849 (8th Cir. 2009), to an officer who

had tased an angry man approaching him while he

was trying to arrest the man’s wife. Judge Shepherd

dissented after concluding that it was unreasonable

to "discharge [a] Taser simply because of insolence,"

especially given the tremendous pain tasers cause.

Id. at 859-60.

In deciding claims of excessive force, we balance

"the nature and quality of the intrusion . . . against

the countervailing governmental interests at stake."

HENRY v. PURNELL 25
Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct.

1865, 104 L.Ed.2d 443 (1989); see Maj. Op. at 359.

As we have previously observed, "case law related

to the Taser is [in the] developing" stage. Brown,

574 F.3d at 498 n. 5. While "the Taser, in general,

is more than a non-serious or trivial use of force but

less than deadly force . . . , there is a lot of room

between those end points." Mattos v. Agarano, 590

F.3d 1082, 1087 (9th Cir. 2010).

That the law is still evolving is illustrated in cases

granting qualified immunity for that very reason.

See, e.g., Bell v. Kansas City Police Dep’t, No.

08-456, at 4-5 (W.D.Mo. Mar. 22, 2010) (granting

qualified immunity to police officer in "close case"

because "there is not enough law warning defendant

against tasering to justify this [excessive force] litigation"). Local law enforcement policies also reflect

differing views of where the taser fits on the "force

continuum." Some allow taser use only as an alternative to deadly force, while others call for taser use

whenever any force is justified. U.S. Gov’t Accountability Office, GAO-05-464 Taser Weapons: Use of

Tasers by Selected Law Enforcement Agencies 9-10

(2005) ("GAO Report").

* * *

In this case Officer Pollreis used her taser’s dart

mode on James Barnes when she perceived that he

might try to escape out a window. The taser’s two

metal probes lodged in his lower back. The weapon

then did exactly what it was designed to do: it completely incapacitated Barnes’s entire body. Instead of

falling to the floor as Pollreis expected, Barnes

smashed through the window and over the porch and

fell onto the ground. The taser’s paralyzing effect

apparently made Barnes unable to break his fall, and

26 HENRY v. PURNELL
he died of massive brain trauma a few days later.

Even though the officers were serving only misdemeanor warrants, Pollreis was faced with "circumstances that [were] tense, uncertain, and rapidly

evolving," Graham, 490 U.S. at 397, 109 S.Ct. 1865,

and she mistakenly believed she could stop Barnes

safely. She was wrong.

Just as officers may use guns only against suspects

posing a threat of serious physical harm, Tennessee

v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85

L.Ed.2d 1 (1985), the use of tasers requires sufficient

justification for their use to be reasonable. The

Supreme Court refused to let "police technology . . .

erode the privacy guaranteed by the Fourth Amendment" in Kyllo v. United States, 533 U.S. 27, 34, 121

S.Ct. 2038, 150 L.Ed.2d 94 (2001), and the particular factual circumstances in which a taser has been

used must be examined in the context of Fourth

Amendment protections against excessive force.

Id. at 361-64.

Judge Murphy’s insightful observations wisely counsel

caution against a hasty determination of the reasonableness

vel non of Taser use by law enforcement officers in the

abstract. See also Zivojinovich v. Barner, 525 F.3d 1059,

1073 (11th Cir. 2008) ("We have previously held that in a

‘difficult, tense and uncertain situation’ the use of a taser gun

to subdue a suspect who has repeatedly ignored police

instructions and continues to act belligerently toward police

is not excessive force. Draper v. Reynolds, 369 F.3d 1270,

1278 (11th Cir. 2004).") (emphasis added); Parker v. Gerrish,

547 F.3d 1, 8-11 (1st Cir. 2008) (affirming jury verdict that

officer used excessive force in tasering an arrestee).

Henry chose not to assert a hypothetical claim of excessive

force based on Deputy’s Purnell’s intended use of the Taser

HENRY v. PURNELL 27
in the circumstances of this case, and the majority of the en

banc court appropriately leaves for another day (and for consideration in a case in which the issue is actually presented)

determination of that issue.

Second. The dissent protests that "[its] analysis does not

even address, much less justify, the intentional use of deadly

force." Dissenting Op. at 43 n.10. And yet, one of the principal cases on which the dissent relies to support its conclusion

that Henry failed to project sufficient evidence that Deputy

Purnell committed a Fourth Amendment excessive force violation involved an officer’s "intentional use of deadly force."

See Dissenting Op. at 38, 43-44 (citing, quoting, and reasoning on the basis of Anderson v. Russell, 247 F.3d 125 (4th Cir.

2001)). Russell was not a case of "mistaken" use of deadly

force; to the contrary, it was a case in which the use of deadly

force was, manifestly, "intentional."

There, a local police officer, Russell, working supplemental

employment as a shopping mall security guard, learned from

a mall patron that an intoxicated man, Anderson, wearing earphones and a hat, who was openly drinking wine while walking around the mall, appeared to be armed. Id. at 127-28.

Thereafter, Russell surveilled and observed Anderson for

more than twenty minutes and, specifically, he observed a

bulge under Anderson’s sweater precisely where one might

expect a firearm to be secreted, thereby "corroborating the citizen’s report." Id. at 128. Thus, as the panel in Russell correctly recognized, the officer had at least reasonable suspicion

to seize the man, make inquiry, and to conduct a pat down

search, and to do so in a manner that provided an assurance

of safety for the officers and any persons in the immediate

area. Id. at 130 ("Once Russell perceived a bulge consistent

with the shape of a gun, he was justified in believing that

Anderson was armed and dangerous.").

With their guns drawn, Russell and another officer confronted Anderson and ordered Anderson to "raise his hands

28 HENRY v. PURNELL
and get down on his knees." Id. Although Anderson at first

raised his hands, before the officers could conduct a pat-down

and secure the situation, he began lowering his hands and

"reaching toward what Russell believed to be a gun." Id. at

131. Thus, Officer Russell, having more than a reasonable

basis for believing that the man was armed and that he was

reaching for a firearm in defiance of a direct order by the

police, shot Anderson three times. Id. In fact, the bulge

observed by the mall patron (and later, by the officer) was an

eyeglass case. Anderson (who was wearing earphones) had

been reaching to remove the radio from his back pocket; he

was not armed. Id.

Anderson survived his wounds and sought damages against

the shooter pursuant to § 1983 based on Russell’s alleged

excessive force in effecting a seizure in violation of the

Fourth Amendment. The jury returned a verdict for Anderson,

finding that (1) the officer used excessive force and (2) the

officer was not entitled to qualified immunity. Officer Russell

renewed his motion for judgment as to each of those issues

after the verdict; the district court denied the motion as to

excessive force but granted the motion as to qualified immunity. On cross-appeals by the parties, we concluded, as mentioned above, that "as a matter of law, Russell’s use of force

did not violate the Fourth Amendment and, therefore, that the

§ 1983 excessive force claim should not have been submitted

to the jury." Id. at 129.

Thus, Russell was not a case of a "mistake" in any sense

relevant to the case at bar. Both the mall patron and the surveilling officer drew an inference, a reasonable inference, as

this court repeatedly noted, that the man was armed and,

indeed, later, that he was attempting to draw a firearm in

response to an order by the officer that he raise his hands. A

reasonable inference based on percipient witness observations

is nonetheless reasonable even where the factual basis underlying the inference is other than as supposed. Such a reasonable inference is not for that reason a mistaken inference.

HENRY v. PURNELL 29
Most assuredly, in Russell, the officer intended to discharge

his firearm at the suspect, and he did so, shooting him three

times.

Like so many of the other cases relied on by the dissent,

e.g., those dealing with mistaken searches of the wrong apartment, Russell bears no resemblance whatsoever to the case at

bar. Plainly, an accumulation of abstract legal propositions

extracted from dissimilar cases provides scant assistance in

the decision of actual cases; rather, it is the careful application

of legal principles to the summary judgment record presented

before us that does so.

Third. The dissent apparently finds it odd that the majority

is not granting summary judgment in favor of Plaintiff Henry

since, in its view, there is no genuine dispute of material fact

evident in this record. That is plainly incorrect. The dissent

asserts, and all agree, that where there exists no genuine dispute of material fact, the objective reasonableness of a particular use of force is an issue of law for the court. Scott v.

Harris, 550 U.S. 372, 378-79 & n.5 (2007) (holding that

video recording of plaintiff’s encounter with police "sp[oke]

for itself" and established the absence of any genuine dispute

of material fact bearing on objective reasonableness). In the

case at bar, of course, the issue is not the reasonableness of

Deputy Purnell’s use of his Glock to seize Henry. All agree

that the use of the Glock to seize Henry was unreasonable

under the facts and circumstances of this case. The issue presented, as the dissent further acknowledges, is the reasonableness of Deputy Purnell’s mistake in unholstering and discharging his Glock. If the mistake was reasonable, then the

Fourth Amendment renders the seizure reasonable. As the

majority opinion makes perfectly clear, genuine disputes of

material historical and inferential facts absolutely surround

the issue of the reasonableness of Deputy Purnell’s mistake,

and a jury of his peers is the proper factfinder as to the ultimate question. The dissent’s insistence on blinking at those

facts and circumstances, or its inability or refusal to draw

30 HENRY v. PURNELL
those inferences in favor of Henry because, as discussed

above, it wants this case to be about the intended use of the

Taser, does not alter that reality. Cf. Scott, 550 U.S. at 383

("[I]n the end we must still slosh our way through the factbound morass of ‘reasonableness.’").

With these additional observations, I am pleased to join

Judge Gregory’s opinion for the en banc court.

SHEDD, Circuit Judge, dissenting:

Deputy Purnell, an experienced law enforcement officer,

attempted to arrest Henry pursuant to a lawful warrant. Before

the deputy could search Henry for weapons, Henry fled

toward his residence. The parties have stipulated that during

the ensuing foot chase, Deputy Purnell "intended to unholster

and discharge his Taser M26" but, instead, "unholstered and

fired his service weapon, believing that it was his Taser

M26." J.A. 30. Deputy Purnell unfortunately shot Henry with

his firearm as a result of this mistake.

The dispositive question in this case is not whether it was

reasonable for Deputy Purnell to use deadly force to stop

Henry or even whether it was reasonable for the deputy to

attempt to use his Taser. Rather, the question is whether the

deputy’s mistake in drawing and firing his Glock while in hot

pursuit of Henry was constitutionally reasonable. See Henry

v. Purnell, 501 F.3d 374 (4th Cir. 2007) ("Henry I").1 When

properly viewed in light of controlling precedent, which counsels that we must view the facts of this potentially dangerous

arrest without engaging in hindsight second-guessing, the

1

In Henry I, we noted: "Purnell does not argue that an intentional use

of the Glock would have been reasonable; likewise, Henry does not argue

that Purnell’s decision to use the Taser was unreasonable." 501 F.3d at

382 n.11. Further, we remanded the case for the district court to determine

in the first instance whether Henry had met his burden of establishing that

Purnell’s mistake in using the Glock rather than the Taser was unreasonable. Id. at 384. 

HENRY v. PURNELL 31
undisputed material evidence clearly establishes that the deputy’s mistake is constitutionally reasonable. Accordingly,

Henry has failed as a matter of law to meet his burden of

establishing a Fourth Amendment violation, and the district

court properly granted summary judgment in favor of Deputy

Purnell on Henry’s federal and state-law claims on that basis.2

I

For our purposes, the material facts are undisputed.3 On

October 23, 2003, Deputy Purnell attempted to arrest Henry

pursuant to a lawful warrant. The warrant charged Henry with

second degree escape based on his failure to comply with a

court order to report to the county detention center for service

of a 47-day sentence.4

2There are, of course, two separate issues in a case such as this, where

an officer asserts qualified immunity: (1) whether the plaintiff has established that the defendant violated a constitutional right and (2) if so,

whether the defendant is entitled to qualified immunity. See Pearson v.

Callahan, 555 U.S. 223 (2009). Although the majority states that I am

somehow "avoiding" the issue of qualified immunity, see Majority Op., at

14 n.14, my view that Henry has failed to establish a Fourth Amendment

violation renders it unnecessary for me to address qualified immunity.

Thus, what the majority views as my "avoidance" of the issue is, in fact,

entirely proper. See Saucier v. Katz, 533 U.S. 194, 201 (2001) ("If no constitutional right would have been violated were the allegations established,

there is no necessity for further inquiries concerning qualified immunity."). 

3The only potentially material fact that is in dispute is whether Henry

pushed Deputy Purnell when he began to flee. For purposes of my conclusion that Deputy Purnell did not violate the Fourth Amendment, I accept

Henry’s version that he did not push the deputy, and this factual issue is

therefore immaterial. Of course, if this issue is ultimately resolved in Deputy Purnell’s favor, it would further underscore the reasonableness of his

actions. 

4Under Maryland law, an individual who knowingly fails to obey a

court order to report to a place of confinement is guilty of the misdemeanor crime of second degree escape and is subject to a term of imprisonment not exceeding 3 years or a fine not exceeding $5,000, or both. MD

32 HENRY v. PURNELL
The attempted arrest occurred in Henry’s driveway, where

Henry was one of three people in a parked truck. Deputy Purnell, who was alone, approached the vehicle, and Henry eventually acknowledged his identity. After Deputy Purnell

advised Henry that he had a warrant for his arrest, Henry

exited the vehicle. The driver of the vehicle and the other passenger remained inside.

Henry initially appeared cooperative after exiting the vehicle, but he fled toward his trailer before Deputy Purnell could

arrest him. At that time, Deputy Purnell did not know whether

Henry was armed or whether he was fleeing in an attempt to

arm himself. As Deputy Purnell explained:

Q: And what danger did you feel that you were in?

A: Because [Henry] was in his neighborhood, he

could have gone anywhere, gotten anything,

could have run to the back, gotten a shovel,

gone back in the house, gotten a gun. Anything.

Besides that, I didn’t know if he had anything

on him. I never had an opportunity to search

him.

. . .

Q: At that point . . . did you consider him a dangerous or violent subject?

A: Yes.

Code Ann., Crim. Law, § 9-405. A state judge had ordered Henry to report

to the Somerset County Detention Center on September 8, 2003, to serve

a term of 47 days, but also provided him with an opportunity to avoid having to serve the sentence by complying with certain requirements. Henry

neither complied with those requirements nor reported to serve his sentence. 

HENRY v. PURNELL 33
. . .

Q: And did you perceive him as a threat as he continued to run?

A: Yes, sir.

Q: Because he may have gotten a weapon; is that

correct?

A: That’s correct, sir.

Q: And during this entire time that he was running, your opinion did not change —?

A: That’s correct.

J.A. 258-61.

After Henry fled, Deputy Purnell began a chase that lasted

3-5 seconds. While he was running, Deputy Purnell kept his

eyes focused on the fleeing Henry, and he reached for his

Taser, which was holstered on his right side below his Glock.

However, Deputy Purnell mistakenly drew his Glock rather

than his Taser. Because he was running and focused on

Henry, Deputy Purnell did not realize that he had mistakenly

unholstered the Glock. As Henry continued to flee, Deputy

Purnell — believing that he was holding the Taser — shot

Henry in the arm. Henry then began to slow down, and Deputy Purnell quickly overtook him.5

Deputy Purnell immediately recognized his mistake, and he

told Henry that he had not intended to shoot him. He then

5Because Deputy Purnell was attempting to lawfully arrest Henry, and

Henry has stipulated that Deputy Purnell mistakenly used his firearm, the

fact that Deputy Purnell may have been annoyed at Henry for "pulling a

whammy" on him (see Majority Op., at 3) on an earlier date is immaterial.

34 HENRY v. PURNELL
escorted Henry back to the truck and radioed for medical

assistance. Deputy Purnell rendered first-aid to Henry, and he

permitted Henry’s companions to exit the truck and assist

him. During this time, he reiterated that he had grabbed the

Glock by mistake and never intended to shoot Henry. Deputy

Purnell remained with Henry until other law enforcement

units arrived and relieved him.

At the time of this incident, Deputy Purnell had been

employed with the Somerset County Sheriff’s Office for

approximately one year. Before that, he spent 25 years as an

officer with the Maryland Natural Resources Police. Deputy

Purnell had only been carrying the Taser for a few months

before this incident, and he had never previously deployed it

in the field. Indeed, he had only used it one time in a training

exercise. Likewise, he had only been carrying the Glock for

a relatively short time, and he had never fired it in the field.

He carried the Taser and Glock on the same side of his body

(his dominant side) in a holster because he had been

instructed to do so. Although there are differences between

the two weapons, such as their weight and the manner in

which they function, the Taser and the Glock appear to be

remarkably similar in shape. See J.A. 288-89.

Approximately two months before the shooting, the Somerset County Sheriff issued Special Order 03-04, regarding

Taser usage. Among other things, that order explains that the

Taser could be used "to control a dangerous or violent subject

when deadly force is not justified and attempts to control the

subject by other tactics have been ineffective," and "to safely

effect an arrest." J.A. 285. It also instructs that "[w]hen practical" officers should use verbal commands and point the laser

sight at the subject before discharging it. J.A. 286.6

6

I note this order merely for background purposes, and I do not contend

that Deputy Purnell’s compliance with it is pertinent to the Fourth Amendment analysis. See Abney v. Coe, 493 F.3d 412, 419 (4th Cir. 2007) ("It

is . . . settled law that a violation of departmental policy does not equate

with constitutional unreasonableness."). 

HENRY v. PURNELL 35
II

"It goes without saying that the Fourth Amendment bars

only unreasonable searches and seizures." Maryland v. Buie,

494 U.S. 325, 331 (1990). The purpose of the Fourth Amendment is "to protect the people of the United States against

arbitrary action by their own Government," United States v.

Verdugo-Urquidez, 494 U.S. 259, 266 (1990), and it "addresses ‘misuse of power,’ not the accidental effects of otherwise lawful government conduct," Brower v. County of Inyo,

489 U.S. 593, 596 (1989) (citation omitted). Section 1983 (42

U.S.C.) allows a plaintiff "to seek money damages from government officials who have violated his Fourth Amendment

rights," Wilson v. Layne, 526 U.S. 603, 609 (1999), but it

"does not purport to redress injuries resulting from reasonable

mistakes," McLenagan v. Karnes, 27 F.3d 1002, 1008 (4th

Cir. 1994).7

A.

Arrest is, of course, a form of seizure, and "the right to

make an arrest . . . necessarily carries with it the right to use

some degree of physical coercion or threat thereof to effect

it." Graham v. Connor, 490 U.S. 386, 396 (1989). In considering whether an officer acted reasonably in making an arrest,

we must bear in mind that "American criminals have a long

tradition of armed violence, and every year in this country

many law enforcement officers are killed in the line of duty,

and thousands more are wounded." Terry v. Ohio, 392 U.S. 1,

23 (1968). Thus, "[t]he public interest . . . includes the substantial public concern for the safety of police officers lawfully carrying out the law enforcement effort." United States

v. Sakyi, 160 F.3d 164, 167 (4th Cir. 1998).

7The standard for liability on Henry’s federal and state-law claims is the

same. See Henry I, 501 F.3d at 382 n.10. 

36 HENRY v. PURNELL
A "custodial arrest is fluid and ‘[the] danger to the police

officer flows from the fact of the arrest, and its attendant

proximity, stress, and uncertainty.’" Thornton v. United

States, 541 U.S. 615, 621 (2004) (citation omitted) (emphasis

in original). Because "[t]here is no way for an officer to predict reliably how a particular subject will react to arrest or the

degree of the potential danger," "[e]very arrest must be presumed to present a risk of danger to the arresting officer."

Washington v. Chrisman, 455 U.S. 1, 7 (1982) (emphasis

added). The risk to the officer is heightened when an arrestee

flees, as "[t]he act of resisting arrest poses a threat of direct

confrontation between a police officer and the subject of the

arrest, creating the potential for serious physical injury to the

officer and others." United States v. Wardrick, 350 F.3d 446,

455 (4th Cir. 2003).

B.

"What is reasonable depends upon all of the circumstances

surrounding the search or seizure and the nature of the search

or seizure itself." United States v. Montoya De Hernandez,

473 U.S. 531, 537 (1985). "Because of the necessarily ad hoc

nature of any determination of reasonableness, there can be no

inflexible rule of law which will decide every case." Scott v.

United States, 436 U.S. 128, 139 (1978). "[T]he Fourth

Amendment’s commands, like all constitutional requirements,

are practical and not abstract," United States v. Ventresca, 380

U.S. 102, 108 (1965), and "[w]e are to approach the Fourth

Amendment . . . with at least some measure of pragmatism"

and to avoid "pressing inflexible rules," Mora v. City of Gaithersburg, MD, 519 F.3d 216, 222 (4th Cir. 2008).

"A creative judge engaged in post hoc evaluation of police

conduct can almost always imagine some alternative means

by which the objectives of the police might have been accomplished." United States v. Sharpe, 470 U.S. 675, 686-87

(1985). However, reasonableness for purposes of the Fourth

Amendment "is evaluated from the perspective of the officer

HENRY v. PURNELL 37
on the scene, not through the more leisurely lens of hindsight." Abney, 493 F.3d at 416; see also Waterman v. Batton,

393 F.3d 471, 477 (4th Cir. 2004) (noting that "reasonableness is determined based on the information possessed by the

officer at the moment that force is employed"). As Judge Wilkinson of this Court recently noted: "It’s always tempting to

go the could-have/should-have route in hindsight, but that is

not how the Supreme Court has structured the objective reasonableness inquiry." Hunsberger v. Wood, 583 F.3d 219, 222

(4th Cir. 2009) (Wilkinson, J., concurring in denial of rehearing en banc). For this reason, courts should not "second-guess

the split-second judgment of a trained police officer merely

because that judgment turns out to be mistaken. . . ." McLenagan, 27 F.3d at 1007-08.

The Fourth Amendment "does not require omniscience,"

and officers "‘need not be absolutely sure . . . of the nature of

the threat or the suspect’s intent to cause them harm’" before

using force. Anderson v. Russell, 247 F.3d 125, 132 (4th Cir.

2001) (quoting Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir.

1996). Moreover, "[o]fficers are not required to use the least

intrusive means available; they simply must act within the

range of reasonable conduct." Brooks v. City of Seattle, 599

F.3d 1018, 1025 (9th Cir. 2010); see also Board of Ed. of Ind.

Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S.

822, 837 (2002) (noting that "this Court has repeatedly stated

that reasonableness under the Fourth Amendment does not

require employing the least intrusive means, because ‘[t]he

logic of such elaborate less-restrictive alternative arguments

could raise insuperable barriers to the exercise of virtually all

search-and-seizure powers.’" (citation omitted)).

Importantly, reasonableness "does not, by definition, entail

perfection," United States v. Phillips, 588 F.3d 218, 227 (4th

Cir. 2009), and courts must "allow some latitude for honest

mistakes that are made by officers in the dangerous and difficult process of making arrests," Maryland v. Garrison, 480

U.S. 79, 87 (1987). Elaborating on this point, the Supreme

38 HENRY v. PURNELL
Court has stated: "Because many situations which confront

officers in the course of executing their duties are more or less

ambiguous, room must be allowed for some mistakes on their

part." Brinegar v. United States, 338 U.S. 160, 176 (1949).

Accordingly, "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."

Milstead v. Kibler, 243 F.3d 157, 165 (4th Cir. 2001). Nearly

two decades ago, our en banc Court recognized the chilling

effect that a contrary rule would have on law enforcement: "If

every mistaken seizure were to subject police officers to personal liability under § 1983, those same officers would come

to realize that the safe and cautious course was always to take

no action." Gooden v. Howard County, Md., 954 F.2d 960,

967 (4th Cir. 1992) (en banc); see also Torchinsky v. Siwinski,

942 F.2d 257, 261 (4th Cir. 1991) ("If reasonable mistakes

were actionable, difficult questions of discretion would

always be resolved in favor of inaction, and effective law

enforcement would be lost.").

Both the Supreme Court and this Court have repeatedly

found that reasonable mistakes made by law enforcement officers did not constitute Fourth Amendment violations. For

example, in Garrison, Mazuz v. Maryland, 442 F.3d 217 (4th

Cir. 2006), and United States v. Patterson, 278 F.3d 315 (4th

Cir. 2002), the officers’ mistaken searches of the wrong premises were found to be constitutionally reasonable. Similarly,

in Illinois v. Rodriguez, 497 U.S. 177 (1990), the officers’

mistaken belief that they had third-party consent to enter and

search a premises was found to be constitutionally reasonable.

Likewise, in Hill v. California, 401 U.S. 797 (1971), the

Court found a mistaken arrest of the wrong person to be reasonable under the Fourth Amendment.

Our decision in Milstead is particularly instructive. There,

the police officer had intended to shoot a fleeing criminal suspect, but he mistakenly shot and killed an innocent person.

We held that the officer’s seizure of the innocent person did

HENRY v. PURNELL 39
not violate the Fourth Amendment because the officer’s mistake was reasonable. See also Culosi v. Bullock, 596 F.3d 195,

201 (4th Cir. 2010) ("A mistaken use of deadly force . . . is

not necessarily a constitutional violation under the Fourth

Amendment.").

None of these cases involves the precise factual situation

present here, "but, as in all Fourth Amendment cases, we are

obliged to look to all the facts and circumstances of this case

in light of the principles set forth" in prior precedent. South

Dakota v. Opperman, 428 U.S. 364, 375 (1976). These cases

instruct that where, as here, an officer has made a mistake

during a search or seizure, we must consider the facts and circumstances as the officer perceived them and then apply an

objective standard over those facts to determine whether the

officer’s mistake was reasonable. In doing so, we must avoid

the temptation to second-guess the officer’s actions, especially in a case involving an exigency such as hot pursuit.

C.

Henry bears the burden of proof on the issue of whether a

constitutional violation occurred. Henry I, 501 F.3d at 377.

We review an award of summary judgment de novo, applying

the same familiar Rule 56 standards applicable in the district

court. See Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006)

(en banc). Summary judgment is appropriate if "there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). For

purposes of summary judgment consideration, the substantive

law identifies which facts are material, and "[o]nly disputes

over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary

judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). In Scott v. Harris, 550 U.S. 372, 381 n.8 (2007),

the Supreme Court instructed that at the summary judgment

stage, once a court has determined the relevant set of facts and

drawn all inferences in favor of the nonmoving party to the

40 HENRY v. PURNELL
extent supportable by the record, the reasonableness of an

officer’s actions for Fourth Amendment purposes "is a pure

question of law" to be decided by the court rather than the

jury. In my view, the district court properly analyzed this case

and reached the correct result.

What I stated above bears repeating: the Fourth Amendment does not address the accidental effects of otherwise lawful government conduct, and § 1983 does not purport to

redress injuries resulting from reasonable mistakes. The

undisputed material facts establish as a matter of law that

Deputy Purnell in no way intentionally "misused" the power

of his office. Rather, he was lawfully attempting to arrest

Henry, which in itself is a potentially dangerous encounter,

and Henry heightened the danger by his decision to flee.

Properly recognizing the limitation on the use of deadly force,

Deputy Purnell attempted to use the Taser to stop Henry.8 In

8As noted, "the right to make an arrest . . . necessarily carries with it the

right to use some degree of physical coercion or threat thereof to effect it."

Graham, 490 U.S. at 396. Henry does not claim that Deputy Purnell’s

decision to use the Taser was unreasonable. See Henry I, 501 F.3d at 382

n.11. Therefore, we need not decide that issue. Nonetheless, I believe that

a recent case from the Eighth Circuit is instructive on this issue. 

In McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011), the police used

a Taser while attempting to stop a misdemeanant suspect from fleeing

from arrest. Upon being hit by the Taser, the suspect fell out of a second-story window to his death. In support of the suspect’s § 1983 lawsuit,

which was predicated on the Fourth Amendment, the administrator of the

suspect’s estate argued that the Taser use was excessive because the arrest

warrants were based on minor offenses, the suspect never threatened the

officers, the officers had no reason to believe that the suspect had a

weapon, and the result of the force was the suspect’s death. The administrator also argued that a rational jury could have found that the officer

failed to follow police department procedures by (among other things) not

calling out "Taser" before deploying it. 635 F.3d at 359-60. 

Properly recognizing that the reasonableness of the officer’s actions

must not be judged in hindsight, the Eighth Circuit affirmed the entry of

summary judgment in favor of the officers. In reaching this conclusion,

the court held that the officers could have reasonably interpreted the susHENRY v. PURNELL 41
the rapidly evolving situation, Deputy Purnell mistakenly

drew the Glock and fired it.

Again, the Supreme Court has instructed that we must

"allow some latitude for honest mistakes that are made by

officers in the dangerous and difficult process of making

arrests." Garrison, 480 U.S. at 87. Deputy Purnell’s mistake

is indeed unfortunate, but it was nonetheless one that was

made in the tense and potentially dangerous circumstances

arising from Henry’s flight from arrest. Henry has failed to

present any material evidence to demonstrate that this mistake

was anything other than an honest one.

9

 Therefore, the mispect’s sudden movement toward the window during the arrest as an

attempt to evade arrest, and they were thus entitled to use force to prevent

the suspect’s escape. The court noted that "[a]lthough the charges were

limited to misdemeanors, the officers executing the warrant were not

required to let [the suspect] run free." Id. at 360. The court further held

that despite the fact that the suspect died, the use of the Taser was not

excessive. The court pointed out that the officer "was required to react in

a split second as [the suspect] sought to escape through a window only six

to eight feet away," and "[t]he alternative of attempting to subdue [the suspect] by tackling him posed a risk to the safety of the officer and did not

ensure a successful arrest." Id.

McKenney is not binding precedent for this Court. However, it certainly

suggests that Deputy Purnell acted reasonably in making the decision to

use the Taser. Even before the day in question, Henry had demonstrated

his intent to avoid apprehension, and his flight from arrest simply confirmed that intent. Like the officers in McKenney, had Deputy Purnell

decided against using the Taser, his options were either to (1) stop chasing

Henry and allow him to get away or (2) chase Henry and risk having to

engage him in a physical encounter (assuming he could even catch him).

Of course, under either option, Deputy Purnell faced the prospect that

Henry was either armed or could arm himself during his flight. Unquestionably, the Fourth Amendment did not require Deputy Purnell to pursue

either of these courses of action.

9The majority chides Deputy Purnell for arguing that he is entitled to

summary judgment because he made an "honest mistake," noting that it is

"not the honesty of Purnell’s intentions that determines the constitutionality of his conduct." See Majority Op., at 12. Of course, "honest mistake"

42 HENRY v. PURNELL
take is reasonable within the meaning of the Fourth Amendment as a matter of law. For this reason, Deputy Purnell did

not violate Henry’s Fourth Amendment right to be free from

an unreasonable seizure, and summary judgment in the deputy’s favor is appropriate. See, e.g., Russell, 247 F.3d at 130

("Given the uncontroverted evidence as to what Russell perceived immediately before firing, we do not believe that there

is a legally sufficient evidentiary basis for a rational jury to

find for Anderson on the issue of excessive force. Accordingly, we hold that Russell was entitled to judgment as a matter of law on the excessive force claim." (emphasis added)).10

D.

The majority concludes otherwise, holding that the question

of whether Henry has established a Fourth Amendment violais a term of common parlance denoting an act that is done unintentionally

and without malice. The "honest mistake" standard relied upon by Deputy

Purnell comes directly from Supreme Court precedent, and it obviously

refers to an objectively reasonable mistake. However, in assessing the

objective reasonableness of the mistake, we must consider the officer’s

subjective intention in order to understand that he in fact made a mistake.

See, e.g., Hill, 401 U.S. at 803-04 ("The upshot was that the officers in

good faith believed Miller was Hill and arrested him. They were quite

wrong as it turned out, and subjective good-faith belief would not in itself

justify either the arrest or the subsequent search. But sufficient probability,

not certainty, is the touchstone of reasonableness under the Fourth

Amendment and on the record before us the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them

at the time."). 

10The majority asserts that my analysis “implies that all fleeing suspects

may be apprehended through the use of deadly force.” See Majority Op.,

at 12 n.9. Either the majority misunderstands or is indifferent to the controlling law, the material facts, or my opinion. To be clear, when analyzed

properly, this case is not about the reasonableness of Deputy Purnell’s use

of deadly force. It is about the reasonableness of his stipulated mistake in

attempting to use what he believed to be a Taser. My analysis does not

even address, much less justify, the intentional use of deadly force, which

even Henry agrees is not present. 

HENRY v. PURNELL 43
tion is for a jury. In doing so, the majority equates Deputy

Purnell’s conduct with that of a rogue officer who intentionally shoots at an unarmed misdemeanant. See Majority Op.,

at 11 ("The objective circumstances of this case are that Purnell shot a fleeing suspected misdemeanant whom he had no

reason to believe was a threat."). I believe the majority erroneously reaches this conclusion by improperly viewing this

case through the lens of hindsight to minimize not only the

inherent danger involved in every arrest, but also the specific

danger in this case that stemmed from Henry’s decision to

flee before being searched.

For example, the majority repeatedly emphasizes that the

arrest warrant was for a relatively minor crime. See, e.g.,

Majority Op., at 3, 11. However, the danger faced by an officer making a custodial arrest flows from the fact of the arrest

itself and "not from the grounds for arrest." United States v.

Robinson, 414 U.S. 218, 234 n.5 (1973). Moreover, as we

explained in Russell, even if the suspected criminal activity is

relatively minor, "that factor would prove irrelevant to our

excessive force analysis because our focus is on the circumstances as they existed at the moment force was used." 247

F.3d at 132.11

The majority further states that "critically, this case presents nothing to suggest Henry posed any threat whatsoever

— no menacing conduct and no violent criminal history."

Majority Op., at 11. This assertion incorrectly focuses on

11Even the most seemingly minor arrest can lead to tragic consequences

for law enforcement officers. See, e.g., State v. Bryant, 642 S.E.2d 582,

585 (S.C. 2007) ("In June 2000, Cpl. Dennis Lyden . . . was placing Bryant under arrest for driving with a suspended license when Bryant suddenly turned and wrestled Cpl. Lyden to the ground. During the course of

the struggle, Bryant managed to obtain Cpl. Lyden’s flashlight and pistol

magazine from the officer’s duty belt and used them to severely beat Cpl.

Lyden about the head. After beating the officer unconscious, Bryant took

Cpl. Lyden’s pistol from his holster and shot him in the head at close

range." (emphasis added)). 

44 HENRY v. PURNELL
Henry, the arrestee, and ignores the Supreme Court’s admonition concerning the potential danger that flows from the fact

of the arrest itself, as well as our admonition that an act of

resistance increases the danger to both an officer and bystanders. Without question, a suspect’s known dangerousness can

heighten the potential danger of an arrest, but the fact that a

suspect may not appear at first glance to be dangerous does

not necessarily negate the inherent danger of the arrest.

In any event, the majority’s assertion ignores the specific,

undisputed fact that at the time Henry fled, Deputy Purnell

had no way of knowing if he was dangerous because, among

other reasons, he had not yet searched him. See Knowles v.

Iowa, 525 U.S. 113, 118 (1998) (noting that "the authority to

conduct a full field search as incident to an arrest [is] a

‘bright-line rule,’ which [is] based on the concern for officer

safety"). Moreover, Henry’s flight, which allowed him to

evade the search incident to the arrest certainly was sufficient

to cause the deputy, like any reasonable officer, to suspect

that Henry, like any other suspect in similar circumstances,

may have been concealing something on his person. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) ("Headlong flight

— wherever it occurs — is the consummate act of evasion:

It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such."). Incredibly, the majority discounts

any potential danger arising from the arrest and Henry’s flight

because Deputy Purnell knew such mundane facts as where

Henry lived, who his wife and former employer are, and that

he had some vague intention of posting bail after he was

arrested. See Majority Op., at 11. Surely, the majority must

concede that facts of this nature could be present in cases

involving even the most dangerous of individuals.12

12Henry was running in the direction of his trailer. Had he entered the

trailer before Deputy Purnell was able to catch him, the deputy would

have been entitled to follow him inside to apprehend him. See United

States v. Santana, 427 U.S. 38, 42-43 (1976). Of course, the potential danger to the deputy would have been magnified in that instance. See Buie,

HENRY v. PURNELL 45
Simply put, under the majority’s view of the facts, Henry

presented no danger at all to Deputy Purnell. Of course, this

raises the question of what the majority would have had the

deputy do in this situation. It is not enough merely to declare

that he should have been more careful. Rather, the context of

this incident matters, and the objective reasonableness test

must factor in that context. If, as the majority believes, this

was not a dangerous situation, could the deputy have used the

Taser at all? Should the deputy have been required to forego

use of the Taser and, instead, to chase Henry with the hope

of catching up to him and subduing him by physical force, an

act that would have subjected both men to the risk of significant injury (and a possible excessive force claim against Deputy Purnell), or should he have simply let Henry run away,

taking solace in the fact that he knew who his wife is and

where he lived? As I noted earlier, the Fourth Amendment

does not require a law enforcement officer to resort to these

lesser alternatives.

In addition to erroneously minimizing the potentially dangerous nature of this arrest, the majority also errs by engaging

in inappropriate second-guessing. See, e.g., Majority Op., at

12-14. Perhaps the most telling example of this is contained

in the following passage:

As he pursued Henry in an attempt to arrest him for

a fairly minor, non-violent crime, Henry had his

back to Purnell and was not threatening him or anyone else in any way. There was no evidence indicating that Purnell did not have the split-second he

494 U.S. at 333 ("The risk of danger in the context of an arrest in the

home is as great as, if not greater than, it is in an on-the-street or roadside

investigatory encounter. . . . [U]nlike an encounter on the street or along

a highway, an in-home arrest puts the officer at the disadvantage of being

on his adversary’s ‘turf.’ An ambush in a confined setting of unknown

configuration is more to be feared than it is in open, more familiar surroundings."). 

46 HENRY v. PURNELL
would have needed to at least glance at the weapon

he was holding to verify that it was indeed his Taser

and not his Glock.

Majority Op., at 13-14. Of course, we now know that Henry

— who "had his back to Purnell" — was not armed. However,

Deputy Purnell did not have the luxury of that knowledge in

the rapidly evolving situation, and he did what officers are

trained to do: he focused on the fleeing suspect, who could

have turned with a weapon at any moment, in order to protect

himself and any innocent bystanders. The majority’s belief

that the deputy should have taken a "split-second" to focus his

attention away from Henry might be fine in a perfect world,

but in the real world it is those split-seconds during which law

enforcement officers (and bystanders) are wounded or killed.13

13Most states, including Maryland, have waived sovereign immunity

and permit some claims for injury from the negligent acts of state employees. A potential right to recover for such negligence, however, has no

bearing on the entirely separate issue of whether a federal constitutional

claim against the officer is cognizable under § 1983. As we have

explained, "allegations of a defendant’s negligence do not state constitutional claims against such a defendant." Covenant Media of SC, LLC v.

City of N. Charleston, 493 F.3d 421, 436 (4th Cir. 2007) (citation and

punctuation omitted); see also Dow Chem. Co. v. United States, 476 U.S.

227, 232 (1986) ("State tort law does not define the limits of the Fourth

Amendment."). 

Moreover, even if Deputy Purnell was insufficiently trained to use the

Taser, it is difficult to discern how his potential personal liability for a

constitutional violation hinges on whether his superiors adequately trained

him. Cf. City of Canton, OH v. Harris, 489 U.S. 378, 391 (1989) (noting

that "adequately trained officers occasionally make mistakes; the fact that

they do says little about the training program or the legal basis for holding

the city liable"). To the extent that the training issue has been involved in

this case, it arose during proceedings in the district court, and we did not

endorse its relevance in Henry I. See 501 F.3d at 383 (quoting district

court orders regarding training); 501 F.3d at 384 ("Apart from our determination that a seizure occurred, we express no opinion on the ultimate

merits of the case."). 

HENRY v. PURNELL 47
III

In closing, I cannot help but reflect upon the peculiar result

created by the majority’s decision when compared to our prior

precedent. In Robles v. Prince George’s County, Md., 302

F.3d 262, 271 (4th Cir. 2002), we held that police officers

who tied an arrestee to a metal pole in a deserted parking lot

and left him there in the middle of the night were immune

from federal constitutional liability even though they "should

have known, and indeed did know, that they were acting inappropriately." We did so while noting that their conduct was a

"type of Keystone Kop activity that degrades those subject to

detention and that lacks any conceivable law enforcement

purpose." Id.

The same certainly cannot be said about Deputy Purnell’s

conduct. Instead of doing something that he knew was inappropriate, Deputy Purnell attempted to do the right thing

under the rapidly evolving and potentially dangerous circumstances he was in. However, because he made a mistake in his

execution of an otherwise proper action, he (unlike the "Keystone Kops" in Robles) is potentially personally liable for

monetary damages under § 1983. This does not accord with

the practical construction which must be given to the Fourth

Amendment.14 Cf. Gooden, 954 F.2d at 967 ("It is a misguided application of § 1983 to expose to liability those who

by all objective indicia were only trying to help."). As we

recently stated in Melgar v. Greene, 593 F.3d 348, 361 (4th

Cir. 2010), "undisputed good intentions should not be used to

make an officer a more inviting target for monetary damages." (emphasis in original). Yet, compared to Robles, that is

exactly the result reached by the majority today.

14I recognize that in Robles we held that the officers violated the plaintiff’s constitutional rights and granted them qualified immunity. Although

in my view we need not decide the issue of qualified immunity in this

case, the result in Robles illustrates the odd result reached today by the

majority. 

48 HENRY v. PURNELL
In deciding this case as they do, my colleagues in the

majority perhaps take comfort in the fact that the outcome of

Deputy Purnell’s mistake is rather extreme (although certainly

much less extreme than the fatal mistake in Milstead) and that

a jury may in any event ultimately find in his favor.15 Nonetheless, I believe that law enforcement officers should pay

close attention to how today’s opinion appears to change the

law in this circuit. Henceforth, law enforcement officers are

on notice that apparently (1) this Court does not share the

Supreme Court’s view that arrests are presumptively dangerous; (2) this Court is prepared in a given case, including one

involving hot pursuit, to substitute its judgment for the difficult and dangerous circumstances they face on the streets and

to second-guess their actions literally on a second-by-second

basis; and (3) when an officer has made an honest mistake in

the otherwise proper execution of his duties, this Court is content to equate that mistake with intentional misconduct of the

worst sort and to permit a jury to do the same. For these reasons, I believe that the decision today represents a significant

departure from the precedent of this Court and the Supreme

Court. Only time will tell whether this decision has the chilling effect that this Court, sitting en banc, warned about almost

20 years ago: that is, prompting law enforcement officers to

choose inaction in order to avoid risking personal liability.

See Gooden, 954 F.2d at 967.

Based on the foregoing, I respectfully dissent.

Judge Niemeyer and Judge Agee have authorized me to

indicate that they join in this opinion. 

15The majority correctly cites Scott for the proposition that once we

view the facts in the light most favorable to Henry, the reasonableness of

Deputy Purnell’s conduct is a pure question of law. See Majority Op., at

10-11. However, instead of applying this principle, the majority remands

the issue for a jury to make that decision. 

HENRY v. PURNELL 49
NIEMEYER, Circuit Judge, dissenting:

In its effort to deal with Officer Purnell’s conceded mistake

in shooting Henry while fleeing, the majority opinion blurs

and applies, in a mix, three distinct standards of reasonableness — (1) the constitutional standard of reasonableness for

measuring the use of deadly force; (2) the qualified immunity

standard of reasonableness of an officer’s awareness or understanding of clearly established law; and (3) the reasonable-man standard for the common law tort of negligence.

And to confuse matters more, the majority declines to

address, in its analysis, Officer Purnell’s mistake because, it

concludes, the mistake was limited to Officer Purnell’s "subjective beliefs or intentions [which] have no place in our constitutional analysis." It thus disregards the substantial

objective evidence of mistake, as well as the parties’ stipulation that Officer Purnell made a mistake.

In addition, the majority fails to recognize, when rejecting

Officer Purnell’s qualified immunity, that no officer can have

preexisting knowledge of a mistake before the mistake is

made. The Supreme Court and our court have repeatedly

acknowledged the fact that reasonable officers do, indeed,

make mistakes in undertaking their duties, and when the mistake is an honest mistake, they are not held liable for violating

the Fourth Amendment of the Constitution.

I am pleased to concur in Judge Shedd’s fine opinion, and

I write separately here only to address the majority’s analysis,

which, I respectfully submit, takes our qualified immunity

jurisprudence far afield and hereafter will subject

well-intentioned officers who make mistakes in the field to a

level of liability that is unprecedented.

I

Officer Purnell, a 29-year veteran law enforcement officer,

did, as the majority relates, attempt to serve Henry with an

50 HENRY v. PURNELL
outstanding warrant for his arrest, as it was the officer’s duty

to do. After Officer Purnell identified Henry, he told him he

was under arrest and attempted to handcuff him. As Officer

Purnell stated, "I had a hold, I don’t [recall] if it was the right

or left arm, but I was trying to get him handcuffed." At that

point, Henry resisted and pushed Officer Purnell (a fact disputed by Henry) such that Officer Purnell "fell backwards"

and caught himself on his car and his right leg. Officer Purnell

testified that he considered Henry’s action to be an assault on

him. When Henry then ran, Officer Purnell pulled out what he

thought was his Taser to stop Henry. When he fired it at

Henry, however, Officer Purnell heard "a pop, and realized a

mistake." Purnell stated that at that point "I immediately ran

to him. I told him I was sorry I pulled the wrong weapon. I

picked up my mic which was carried on my thing here and

radioed Somerset Central, advised them that a man had been

shot." Purnell then told the person that was with Henry to go

to the house to get some ice and a wet rag to put on Henry’s

forehead, and Purnell himself administered first aid. Purnell

then remained with Henry until medical assistance and other

officers arrived.

Henry does not disagree with these facts, except as to his

pushing Officer Purnell. Indeed, in the district court he stipulated to the fact that Officer Purnell had mistakenly used his

handgun instead of his Taser.

This fact of honest mistake should require our finding, as

Judge Shedd has ably set forth in his opinion, that Officer

Purnell’s seizure of Henry did not violate the Fourth Amendment. While Officer Purnell deliberately intended to use a

Taser to stop Henry, his use of a handgun to shoot Henry was

neither intended nor deliberate nor plainly incompetent, so as

to constitute an unreasonable seizure under the Fourth

Amendment.

II

The majority opinion, applying three separate standards of

reasonableness, conducts a syllogism basically to ignore the

HENRY v. PURNELL 51
fact of mistake. The opinion begins with the unremarkable

observation that when a police officer 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, the officer violates the suspect’s Fourth Amendment rights, citing Tennessee v. Garner, 471 U.S. 1 (1985).

Observing that "this case presents nothing to suggest Henry

posed any threat whatsoever," the majority concludes that

Officer Purnell’s conduct in shooting Henry was therefore

objectively unreasonable. Ante, at 11.

Turning to address the stipulated mistake, the majority

states that "it is not the honesty of Purnell’s intentions that

determines the constitutionality of his conduct; rather it is the

objective reasonableness of his actions." Ante, at 12 (emphasis added). Rather than addressing any mistake, the majority

opinion then makes what I suggest is the first major wrong

turn. It justifies its conclusion that Officer Purnell’s seizure of

Henry was constitutionally unreasonable by concluding that

Officer Purnell’s actions were not reasonable under a tort

standard of negligence. It begins this negligence analysis,

"There were several facts that Purnell knew or should have

known that would have alerted any reasonable officer to the

fact that he was holding his Glock." Ante, at 12. The opinion

then devotes substantial attention to the facts of Officer Purnell’s negligence. It lists at least four to justify its finding: (1)

"Purnell knew he carried his Taser in the holster in his right

thigh, which was about a foot lower than the holster on his hip

that held his Glock." Ante, at 12. (2) "Purnell could feel the

weight of the weapon he held in his hand, which, at about 38

ounces, was nearly twice the weight of his Taser." Ante, at 13.

(3) "Purnell knew the Taser had a thumb safety that had to be

flipped to arm the weapon. The Glock he was holding had no

thumb safety." Ante, at 13. And, (4) "There was no evidence

indicating that Purnell did not have the split-second he would

have needed to at least glance at the weapon he was holding

to verify that it was indeed his Taser and not the Glock." Ante,

at 13-14.

52 HENRY v. PURNELL
After pointing out these facts, the majority opinion then

concludes that Officer Purnell’s actions were "not objectively

reasonable." Ante, at 14. That conclusion would surely lead to

the further conclusion that Officer Purnell was negligent

because his actions were not those of a reasonable man. But

this is not the conclusion that must be reached in order to

decide whether Purnell should receive qualified immunity.

To determine whether Officer Purnell enjoyed qualified

immunity, the dispositive inquiry would have to be whether

a reasonable officer, in light of clearly established law, could

reasonably believe that his actions were lawful. Saucier v.

Katz, 533 U.S. 194, 206 (2001). "The general rule of qualified

immunity is intended to provide government officials with the

ability ‘reasonably [to] anticipate when their conduct may

give rise to liability for damages.’" Anderson v. Creighton,

483 U.S. 635, 646 (1987) (emphasis added) (quoting Davis v.

Scherer, 468 U.S. 183, 195 (1984)). This reasonableness

inquiry related to the determination of qualified immunity is

designed to objectively consider the knowledge or understanding that an officer would have about the law applicable

to his actions in the circumstances he faced.

In other words, the qualified immunity analysis is meant to

determine whether a reasonable officer in the defendant’s

shoes should have known that his conduct was unlawful.

Under this standard, an officer who makes an honest mistake will always receive qualified immunity because he can

never be on notice that his conduct is unlawful. Officer Purnell did not intend to use his gun as he set out to stop Henry

with a Taser and mistakenly shot him with a gun. He could

not have had prior knowledge and therefore understood that

he was about to shoot Henry. In the language of the qualified

immunity standard, he could not have "reasonably believed"

or "reasonably anticipated" that his actions would violate

clearly established law. The Supreme Court has acknowledged, "Federal officials will not be liable for mere mistakes

HENRY v. PURNELL 53
in judgment, whether the mistake is one of fact or one of

law." Butz v. Economou, 438 U.S. 478, 507 (1978).

Moreover, the relevant conduct for purposes of determining

qualified immunity would be the mistake, the act of Purnell’s

reaching for the Taser and in fact pulling his gun. And of

course, it can readily be concluded that there is no clearly

established law governing when such a mistake would be

unreasonable under the Fourth Amendment.

The majority opinion, however, fails to address the qualified immunity standard. It completes its syllogism, after concluding that Officer Purnell’s conduct was unreasonable in the

tort sense, by (1) dismissing Officer Purnell’s mistake as

"good intentions," (2) concluding that Officer Purnell’s "subjective intent or beliefs play no role" in the constitutional

analysis, and (3) returning to its premise, stating what is

undisputed but irrelevant, "under prong two [of the qualified

immunity analysis], it would have been clear to a reasonable

officer that shooting a fleeing, nonthreatening misdemeanant

with a firearm was unlawful," a conclusion that never

addresses the stipulated mistake.

In concluding that the mistake in this case could not be

taken into account, because it was limited to Officer Purnell’s

subjective intent, the majority commits its final error. It fails

to recognize the existence of the substantial objective evidence in the record, beyond Officer Purnell’s subjective state

of mind, which indisputably pointed to the fact of mistake. As

witnessed by numerous persons at the scene, after Officer

Purnell shot Henry, Purnell immediately ran to Henry and

apologized to him in the presence of others, telling Henry that

he did not intend to shoot him with the gun. Purnell then called for medical assistance; requested ice and a wet rag for

Henry’s forehead; administered first aid; and remained with

Henry until assistance came. Were this not enough, Henry

then stipulated in this case that Officer Purnell had indeed

made a mistake.

54 HENRY v. PURNELL
Accordingly, in dismissing the mistake from the constitutional analysis because it was limited to Purnell’s subjective

intent, the majority had to overlook the substantial objective

evidence and the parties’ stipulation.

The fact of mistake in this case is, to be sure, an element

that may render the traditional constitutional analysis for qualified immunity nonsensical because it is nonsensical to ask

whether an officer reasonably believes that a mistake, about

which he could have no advance knowledge, would violate

clearly established law. Inherently, a mistake is not known or

understood beforehand so as to enable an officer to have the

understanding or belief about whether it would violate clearly

established law.

Instead of grappling with the difficulty of fitting this core

fact into the qualified immunity analysis, the majority simply

deems the mistake to be irrelevant. And when the majority

purports to apply the objective standard of constitutional reasonableness — a standard that measures a reasonable officer’s

belief or understanding about the lawfulness of his actions in

given circumstances — it ignores the primary factor going

into the officer’s decisionmaking, the fact that he meant to

shoot a Taser instead of a gun. Instead, it considers only the

officer’s ultimate act of shooting the gun and then concludes

that Officer Purnell was unreasonable.

The majority’s analysis also has the difficulty of now suggesting that an officer can violate the Fourth Amendment with

merely negligent conduct.

We should be most reluctant to narrow the scope of qualified immunity as we do in this case. "[I]n determining what

circumstances a court may consider in deciding claims of

qualified immunity, we choose ‘between the evils inevitable

in any available alternative.’ . . . The qualified immunity doctrine recognizes that officials can act without fear of harassing

litigation only if they reasonably can anticipate when their

HENRY v. PURNELL 55
conduct may give rise to liability for damages and only if

unjustified lawsuits are quickly terminated." Davis v. Scherer,

468 U.S. 183, 195 (1984) (emphasis added) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 813-14 (1982)).

To be sure, this case presents a difficult analysis for the

general qualified immunity jurisprudence. And its difficulty is

reflected in the fact that the case has been before the Fourth

Circuit three times, giving rise to divergent opinions among

the judges of the court. But if this court is uncertain as to the

state of the Fourth Amendment in cases involving mistake,

surely no reasonable officer could have fully understood the

limits of liability. See Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2085 (2011) (holding that an officer was not plainly incompetent and did not knowingly violate the law "not least because

eight Court of Appeals judges agreed with his judgment in a

case of first impression").

At bottom, I believe that this case undermines our qualified

immunity jurisprudence and, unfortunately, subjects this officer to personal liability for making what was unquestionably

an honest mistake in carrying out his official duties.

I would affirm for the reasons advanced by Judge Shedd.

56 HENRY v. PURNELL