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Thread: Deputy, confused, shoots man with gun, thinking it was taser - 4th circuit says OK

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    Regular Member Repeater's Avatar
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    Deputy, confused, shoots man with gun, thinking it was taser - 4th circuit says OK

    A panel of the Fourth Circuit Court of Appeals thinks it's okay to excuse a deputy for being confused when shooting a man - the deputy thought the gun he was
    shooting was his taser:

    Robert Purnell, a deputy sheriff in Somerset County, Maryland, attempted to execute a warrant for Frederick Henry’s arrest. Henry fled on foot and Deputy Purnell gave chase, mistakenly drawing his firearm, instead of his taser, and shooting Henry in the elbow. As a result of this incident, Henry filed a § 1983 suit against Deputy Purnell in the United States District Court for the District of Maryland, asserting that Purnell used excessive force in effecting his arrest. The district court ultimately concluded that Deputy Purnell’s mistake was reasonable and granted his motion for summary judgment. For the following reasons, we affirm in part and reverse in part ...
    Purnell maintained that his mistaken use of the firearm was reasonable, particularly as the holsters issued by the sheriff’s department placed both the firearm and the taser on the right side of his body.
    Well, let's see ordinary folks get away with that.
    Last edited by Repeater; 09-27-2010 at 05:09 PM.

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    Accomplished Advocate peter nap's Avatar
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    Just another nail in the Coffin. Remember the "Ignorance of the law is an excuse if you're a cop" case in Roanoke.

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    Regular Member Dreamer's Avatar
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    That's how the LEAs and the courts roll in MD...

    Different rules for the two different classes--one set of rules for the "rulers", and another set of rules for the "subjects".
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggression—and this is hogwash."
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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Dreamer View Post
    That's how the LEAs and the courts roll in MD...

    Different rules for the two different classes--one set of rules for the "rulers", and another set of rules for the "subjects".
    Ain't just Maryland Dreamer. Virginia has a pretty miserable track record.

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    The parties stipulated that the officer drew and fired the Glock in the good faith belief that it was a Taser.

    There is no good argument that the use of the Taser would have been "excessive force" in these circumstances.

    The question then is whether an officer's dumb-ass error in thinking that he was not using deadly force should immunize him from federal liability for his actions when it turned out that he was.

    I think the courts have gone way too far in the extent of their demands that -- to avoid qualified immunity -- Plaintiffs show that officers should know that their specific actions violated "clearly established law."

    However, I am torn on the central issue in this case: to what extent should an officer's subjective beliefs about the situation (ie whether he is holding a Taser or a gun) be considered in deciding if qualified immunity applies.

    Your thoughts would be appreciated.

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    The officer INTENDED to use the tasar. HE FAILED and used a firearm instead, so this officer was negligent and by extension those who trained him ect.

    He should be held liable (NOT CRIMINAL) for his actions but I am glad I am not on his jury....

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    Campaign Veteran skidmark's Avatar
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    What we seem to have in this and many other accidental shootings when the use of a tazer was intended is a major training and policy issue failure. As far as I can recall, all of these cases involve the officer carrying the tazer either in front of or behind the firearm holster.

    Since police departments can establish policy for not only what is and is not allowed to be carried on the duty belt, but where on the belt it is located, the simple solution to preventing these accidental uses of the firearm when the tazer was meant to be used is to move it to the other side of the duty belt.

    Too much other stuff on the Bat-belt? Move it around or get rid of some of the stuff.

    I'm no genius (just ask around ) but this is not rocket surgery.

    stay safe.

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    Moved the Thread??

    From Virginia to Maryland?

    But the US 4th Circuit covers the Carolinas, Virginia, West Virginia, and Maryland . . . and its qualified immunity law applies to all of these states.

    I can see the thread going in any of these states.

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    Any LEOS care to post on this?

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    Regular Member SAvage410's Avatar
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    This is similar to a recent incident in California

    A subway cop did the same thing - pulled his firearm and shot a passenger to death having intended to pull his Taser:

    http://news.blogs.cnn.com/2010/07/08...bway-shooting/

    He was found guilty of involuntary manslaughter. It seems to me that the officer should have been sentenced similarly in this case as well at the very least.

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    Regular Member VAopencarry's Avatar
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    There should be no free pass for 'oopsies' that involve lethal force.



    Sorry officer but the gas pedal was right next to the brake pedal on the floor of my car, I got them mixed up.
    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." - Thomas Jefferson

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    Regular Member TFred's Avatar
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    Quote Originally Posted by SAvage410 View Post
    A subway cop did the same thing - pulled his firearm and shot a passenger to death having intended to pull his Taser:

    http://news.blogs.cnn.com/2010/07/08...bway-shooting/

    He was found guilty of involuntary manslaughter. It seems to me that the officer should have been sentenced similarly in this case as well at the very least.
    That's my question, what is different between these two cases? Completely different outcome from the same story given by the two LEOs.

    Inconsistent justice is no justice at all.

    TFred
    Last edited by TFred; 09-28-2010 at 12:46 PM.

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    Regular Member paramedic70002's Avatar
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    Part of me says OK the LEO screwed up but it was the fault of his trainer or the dept for putting the Taser next to the weapon. Still I cannot shift total culpability away from the LEO. It comes down to 'knew, or should have known' that this is a recurring problem.

    If I give the wrong medication to a patient I doubt I can blame the guy who stocked the drug box and put other medications next to the one I needed, or the EMS authority for issuing a drug box with half the drugs thrown together willy nilly without organization (see pic). Or the manufacturer, for coloring the vial similar to another medication. Sheesh, know your tools. Does a carpenter ever try to pound nails in with a screw driver?

    So share the blame. It seems the court wants to absolve the LEO in favor of other parties. I wonder how hard it would be to subpoena the LEO's training records, trainer, trainer's notes, dept policy manual to show if this was addressed. I wonder if this was done, or attempted, before it went to court. Too late now I bet. Generally appeals don't give credence to evidence you forgot to get the first time around.
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    Quote Originally Posted by TFred View Post
    That's my question, what is different between these two cases? Completely different outcome from the same story given by the two LEOs.

    Inconsistent justice is no justice at all.

    TFred
    The difference is that there is no qualified immunity defense to involuntary manslaughter.

    In this case, the plaintiff's Maryland state law claim survived the appeal because Maryland recognizes an exception for "gross negligence" to its sovereign immunity defense.

    (However, the Plaintiff is still probably out of luck because Judge Motz probably will not exercise supplemental jurisdiction over the state law claim now that the federal claim has been dismissed. 100 to one that this case ever makes it to trial.)

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    Regular Member Gunslinger's Avatar
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    Quote Originally Posted by Repeater View Post
    A panel of the Fourth Circuit Court of Appeals thinks it's okay to excuse a deputy for being confused when shooting a man - the deputy thought the gun he was
    shooting was his taser:





    Well, let's see ordinary folks get away with that.
    Well putting a badge on a moron doesn't stop him from being a moron.

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    Regular Member Gunslinger's Avatar
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    Quote Originally Posted by The Donkey View Post
    The parties stipulated that the officer drew and fired the Glock in the good faith belief that it was a Taser.

    There is no good argument that the use of the Taser would have been "excessive force" in these circumstances.

    The question then is whether an officer's dumb-ass error in thinking that he was not using deadly force should immunize him from federal liability for his actions when it turned out that he was.

    I think the courts have gone way too far in the extent of their demands that -- to avoid qualified immunity -- Plaintiffs show that officers should know that their specific actions violated "clearly established law."

    However, I am torn on the central issue in this case: to what extent should an officer's subjective beliefs about the situation (ie whether he is holding a Taser or a gun) be considered in deciding if qualified immunity applies.

    Your thoughts would be appreciated.
    Well, an officer's sujective stupidity seems to be OK. Except for a different grip, different weight, different color and different sights, anyone could confuse the two. Anyone with an IQ of 30, that is. Seems about the mean for cops in this state.

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    Negligent homicide is still homicide, even though we may call it manslaughter.
    It takes a village to raise an idiot.

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    Quote Originally Posted by xdm guy View Post
    Any LEOS care to post on this?
    I did not read much into what actually occurred nor was I there, however, I will still post my thoughts on the topic. Let's all agree that the LEO intended to use a taser during a situation and used his firearm instead.

    First I want to state that a lot of situations that some LEOs deal with are fast paced, dangerous, and require split second decisions which may result in errors. I believe some errors should be forgiven with the understanding that humans make mistakes, especially in this type of career. However, I am not on the bandwagon to suggest that a LEO should endure immunity when he or she confuses a taser with their firearm. I understand that mistakes can be made, we are all human, but I think that using deadly force when you intend to use less than lethal (taser) is not an excuse in some instances. I wouldn't want a LEO backing me up who can confuse their taser with their firearm and I think they should be held liable for doing so. LEOs that make dumb mistakes like this always make the news and give us all bad names. Tasers are such a great tool in LE and irresponsibility by a very slim majority will ruin their reputation.

    I saw it was mentioned above about the taser position on the belt. My department requires tasers to be place on the weak side and requiring a cross draw which I'm sure is for liability reasons. I agree with that. I guess the controversy really lies with the court and what they deem reasonable. Situations are so vastly different that it's difficult to draw a line between what you will accept as being a reasonable mistake by LEOs and what you determine is not. For me, it's a case by case basis, and I can see the difficulty in trying to draw the line.

    Just my 2 cents to put in a LEO point of view.
    Last edited by NovaCop10; 09-30-2010 at 12:11 AM.

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    Quote Originally Posted by NovaCop10 View Post
    I did not read much into what actually occurred nor was I there, however, I will still post my thoughts on the topic. Let's all agree that the LEO intended to use a taser during a situation and used his firearm instead.

    First I want to state that a lot of situations that some LEOs deal with are fast paced, dangerous, and require split second decisions which may result in errors. I believe some errors should be forgiven with the understanding that humans make mistakes, especially in this type of career. However, I am not on the bandwagon to suggest that a LEO should endure immunity when he or she confuses a taser with their firearm. I understand that mistakes can be made, we are all human, but I think that using deadly force when you intend to use less than lethal (taser) is not an excuse in some instances. I wouldn't want a LEO backing me up who can confuse their taser with their firearm and I think they should be held liable for doing so. LEOs that make dumb mistakes like this always make the news and give us all bad names. Tasers are such a great tool in LE and irresponsibility by a very slim majority will ruin their reputation.

    I saw it was mentioned above about the taser position on the belt. My department requires tasers to be place on the weak side and requiring a cross draw which I'm sure is for liability reasons. I agree with that. I guess the controversy really lies with the court and what they deem reasonable. Situations are so vastly different that it's difficult to draw a line between what you will accept as being a reasonable mistake by LEOs and what you determine is not. For me, it's a case by case basis, and I can see the difficulty in trying to draw the line.

    Just my 2 cents to put in a LEO point of view.
    Things happens we all understand that. If you do something, long enough you are going to make a mistake no way around it. Would a non-LEO get charged? However, at the very least, he should be charged with reckless handling of a firearm http://law.justia.com/virginia/codes/2006/toc1802000/18.2-56.1.html and malicious bodily injury http://law.justia.com/virginia/codes/2006/toc1802000/18.2-52.html let a jury decide his fate.

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    Regular Member Gunslinger's Avatar
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    Quote Originally Posted by NovaCop10 View Post
    I did not read much into what actually occurred nor was I there, however, I will still post my thoughts on the topic. Let's all agree that the LEO intended to use a taser during a situation and used his firearm instead.

    First I want to state that a lot of situations that some LEOs deal with are fast paced, dangerous, and require split second decisions which may result in errors. I believe some errors should be forgiven with the understanding that humans make mistakes, especially in this type of career. However, I am not on the bandwagon to suggest that a LEO should endure immunity when he or she confuses a taser with their firearm. I understand that mistakes can be made, we are all human, but I think that using deadly force when you intend to use less than lethal (taser) is not an excuse in some instances. I wouldn't want a LEO backing me up who can confuse their taser with their firearm and I think they should be held liable for doing so. LEOs that make dumb mistakes like this always make the news and give us all bad names. Tasers are such a great tool in LE and irresponsibility by a very slim majority will ruin their reputation.

    I saw it was mentioned above about the taser position on the belt. My department requires tasers to be place on the weak side and requiring a cross draw which I'm sure is for liability reasons. I agree with that. I guess the controversy really lies with the court and what they deem reasonable. Situations are so vastly different that it's difficult to draw a line between what you will accept as being a reasonable mistake by LEOs and what you determine is not. For me, it's a case by case basis, and I can see the difficulty in trying to draw the line.

    Just my 2 cents to put in a LEO point of view.
    Good post. No wait, I take that back because I am a LEO basher...I'm so confused. A cop who makes sense and obviously has common sense. How can this be??? John, please remove this post or I'll become known as an apologist for bad cops.....


    Like I said, good post, on target all the way.

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    Regular Member Dreamer's Avatar
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    What is REALLY disturbing about this ruling is not so much the ruling itself, but the MASSIVE body of MD 4th Circuit case precedent that was quoted to support this ruling...

    http://findarticles.com/p/articles/m...27903218/pg_3/

    Apparently, in the MD 4th Circuit, there is a long history of "oopsies" where LEOs "accidentally" shoot "suspects" and get off scott free. Shooting the wrong person, hitting an innocent bystander, using a firearm instead of a tazer, etc, etc, etc. And the 4th Circuit seems to let them off, without ANY sanction, reprimand, or punishment every time.

    The "take away lesson" in this case is, if you are doing something illegal, or you are even standing NEAR someone who is doing something illegal, or even questionable, and you DON'T want to get "accidentally" shot, you'd best not do it in the 4th Circuit of MD, because there is a MOUNTAIN of case precedent that the LEA's know about which will pretty much excuse, brush off, and otherwise give a pass to any LEO who "accidentally" shoots someone, for any reason, in any situation...

    Yeah, the REAL travesty here is the historic judgment of the Court in these types of shootings, and how they have essentially established a "pass card" for MD LEOs who injure, maim, or even kill people through negligent use of their firearms.

    Two sets of law create two classes of people. And in MD, the the two class system of "the Rulers" and "the ruled" has decades of legal case precedent. They might as well just make a statute officially declaring MD a Serfdom, because at least in the eyes of the Courts, that is the FACT of the matter under Common Law.
    Last edited by Dreamer; 10-18-2010 at 11:54 AM.
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggression—and this is hogwash."
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    Quote Originally Posted by Dreamer View Post
    What is REALLY disturbing about this ruling is not so much the ruling itself, but the MASSIVE body of MD 4th Circuit case precedent that was quoted to support this ruling...

    http://findarticles.com/p/articles/m...27903218/pg_3/

    Apparently, in the MD 4th Circuit, there is a long history of "oopsies" where LEOs "accidentally" shoot "suspects" and get off scott free. Shooting the wrong person, hitting an innocent bystander, using a firearm instead of a tazer, etc, etc, etc. And the 4th Circuit seems to let them off, without ANY sanction, reprimand, or punishment every time.

    The "take away lesson" in this case is, if you are doing something illegal, or you are even standing NEAR someone who is doing something illegal, or even questionable, and you DON'T want to get "accidentally" shot, you'd best not do it in the 4th Circuit of MD, because there is a MOUNTAIN of case precedent that the LEA's know about which will pretty much excuse, brush off, and otherwise give a pass to any LEO who "accidentally" shoots someone, for any reason, in any situation...

    Yeah, the REAL travesty here is the historic judgment of the Court in these types of shootings, and how they have essentially established a "pass card" for MD LEOs who injure, maim, or even kill people through negligent use of their firearms.

    Two sets of law create two classes of people. And in MD, the the two class system of "the Rulers" and "the ruled" has decades of legal case precedent. They might as well just make a statute officially declaring MD a Serfdom, because at least in the eyes of the Courts, that is the FACT of the matter under Common Law.
    Hate to tell you this, Dreamer, but it is not just the "Maryland" Fourth Circuit: it is the US Court of Appeals for the Fourth Circuit.

    So this obnoxious doctrine and this long list of bad precedents not only apply to all of Maryland, but to West Virginia, South Carolina, to me in Virginia, and to you in North Carolina.

    And yes, it gets even worse: while the Fourth Circuit has dealt with far more qualified immunity and excessive force cases than has the Supreme Court, what is going on in the Fourth Circuit is generally consistent with the Supreme Court's approach.

    Few people of any political stripe recognize what a problem this is.

    It is a special problem for those who openly carry guns.

    So your advice is good everywhere.

    And what is more, we need to elect Senators and Presidents who will appoint and confirm judges who recognize this problem, and will do something about it.

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    Regular Member Sonora Rebel's Avatar
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    Quote Originally Posted by NovaCop10 View Post
    Let's all agree that the LEO intended to use a taser during a situation and used his firearm instead.

    Just my 2 cents to put in a LEO point of view.
    Let's not assume that he did. Let's assume it's a convienient alibi for an unjustifiable shooting. A taser feels nothing like a Glock (in hand). A taser feels nothing like a Glock (or any other handgun) when drawing it. I don't blame the trainers or any other damned thing including the position of either on the duty belt. This badged idiot used unjustifiable deadly force against a citizen. Let's agree on that instead.

    My 2 cents as an ex-cop.
    Last edited by Sonora Rebel; 10-21-2010 at 02:09 PM.

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    Quote Originally Posted by peter nap View Post
    Just another nail in the Coffin. Remember the "Ignorance of the law is an excuse if you're a cop" case in Roanoke.
    what case was this? I'd like to read up on it please.

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    Quote Originally Posted by JoeSparky View Post
    The officer INTENDED to use the tasar. HE FAILED and used a firearm instead, so this officer was negligent and by extension those who trained him ect.

    He should be held liable (NOT CRIMINAL) for his actions but I am glad I am not on his jury....

    At least in the Oakland, Ca tragedy it was very evident to me by the various videotapes of the incident available on the internet that the officer was TRULY surprised that the weapon used was NOT HIS TASER. Did the other officer have this type of evidence to support is claim of...."I used the wrong tool" defense? Note my ASSUMPTION in the first line of my original posting quoted above.... I should have placed the word "IF" at the very front of the entry.

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