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Thread: Qualified Immunity: IMPORTANT new Fourth Circuit opinion

  1. #1
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    Qualified Immunity: IMPORTANT new Fourth Circuit opinion

    This new En Banc opinion reverses an earlier 3-judge panel ruling, and now revives a lawsuit against a cop who shot a man with a gun instead of a Taser:

    Cop Says He Accidently Shot Man With Gun, Instead Of Taser
    A federal appeals court has reinstated a Maryland man's lawsuit against a police officer who mistakenly shot him with a handgun instead of a Taser.

    The 9-3 ruling Thursday by the 4th U.S. Circuit Court of Appeals in Richmond reversed a three-judge panel's ruling dismissing Frederick Henry's lawsuit against Robert Purnell.

    In 2003, Purnell was trying to arrest Henry outside his home in Eden on a charge of failing to pay child support when Henry fled. Purnell shot Henry in the elbow with his Glock service revolver.

    The appeals court's majority said Purnell should have known he was holding the Glock because it was heavier than the Taser and operated differently.

    The minority said it was an honest mistake.
    Read the opinion beginning at page 13. Fascinating.

    The dissent is cause for concern because they would basically would give rogue cops a free-pass under the rationale that their conduct was an honest mistake instead of malicious.

    They seem to sidestep an important issue: when is it objectively reasonable to shoot a fleeing suspect with the use of lethal -- or less-than-lethal -- force when the suspect is wanted for a misdemeanor AND is not a threat to anyone?

    In conclusion, I would think this opinion from Judge Gregory is good for all Virginians, including gun owners.

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    Red face

    In 2003, Purnell was trying to arrest Henry outside his home in Eden on a charge of failing to pay child support when Henry fled. Purnell shot Henry in the elbow with his Glock service revolver.
    I wanna get me one of those new Glock revolvers...

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    Campaign Veteran skidmark's Avatar
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    A good read made understandable in spite of all the lawyer-speak.

    Bottom line analysis - cops are not going to get a freee pass just because they made an "honest" mistake - say of confusing their Taser and their Glock.

    My regret is that not enough attention was given to the cop's decision to ignore even the minimal cautions against carrying the Taser on the same side as his handgun. That, IMHO, moved it from mere negligence to gross negligence and wanton disregard of training.

    And to think that this all probably came to pass because the cop was miffed at Mr. Henry giving him "a whammy" by lying to him the first time about not being the guy the cop was looking for. Sure it's hard to do, but cops especially need to remember to leave their personal emotions in the locker when they go out on duty.

    stay safe.

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    Quote Originally Posted by p.publius View Post
    I wanna get me one of those new Glock revolvers...
    Well, it was an "honest mistake" -- get it?

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    Accomplished Advocate peter nap's Avatar
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    Hmmmm.

    Opinion aside, I can understand the confusion by the Officer. He's Stoopid!

    Being an avid Taser fan, I don't think I'd want to try a running shot.
    Not being a fan of Glocks at all, his revolver couldn't feel like his Taser.
    And last, not being a fan of police brutality, why was he shooting a fleeing, unarmed, misdemeanor suspect with anything at all?

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    Regular Member Badger Johnson's Avatar
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    Quote Originally Posted by peter nap View Post
    Hmmmm.

    Opinion aside, I can understand the confusion by the Officer. He's Stoopid!

    Being an avid Taser fan, I don't think I'd want to try a running shot.
    Not being a fan of Glocks at all, his revolver couldn't feel like his Taser.
    And last, not being a fan of police brutality, why was he shooting a fleeing, unarmed, misdemeanor suspect with anything at all?
    Because, evidently, he can.
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    Regular Member TFred's Avatar
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    In the BART case, the police officer was convicted of involuntary manslaughter. Was this guy ever prosecuted criminally?

    TFred

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    Quote Originally Posted by TFred View Post
    In the BART case, the police officer was convicted of involuntary manslaughter. Was this guy ever prosecuted criminally?

    TFred
    There appears to be nothing out there to indicate prosecution.

    I did, however, find U.S. District Court judge Motz opinion on this case. Motz focused on the 'mimimal' training the deputy received, and found that important:
    As my recitation of facts in this opinion indicates, the training that Purnell received concerning the use of a Taser was quite minimal. During the course of the training, he handled a Taser a single time, and he only fired it once. Moreover, although the record reveals that prior to the training the Taser manufacturer knew of three accidents in which an officer had unholstered and fired the wrong weapon, during the course of the training there was no discussion about the possibility of erroneous weapon usage.
    As for now, it seems [former] deputy sheriff Purnell is the WARDEN of the Somerset County Detention Center. Go figure.

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    Reasonable to shoot fleeing suspect -- when NOT a threat?

    The opinion has the following important passage about the potential of being armed is not the same as being a threat:

    The objective circumstances of this case are that Purnell shot a fleeing suspected misdemeanant whom he had no reason to believe was a threat. ... That Henry had previously hidden his identity does not imply he was prone to aggression. ... 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 significant 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.
    That points to footnote 9, which reads as follows:
    Purnell 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.
    See how dangerous the dissenters' mentality is? They actually seem to believe that, because a misdemeanant suspect might be armed, or could become armed, it's OK to shoot that suspect if that suspect flees. What if the suspect simply walks away and refuses to stop when requested/ordered?

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    Founder's Club Member ixtow's Avatar
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    Quote Originally Posted by p.publius View Post
    I wanna get me one of those new Glock revolvers...
    I want me a wheeltazer.
    "The fourth man's dark, accusing song had scratched our comfort hard and long..."
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    Quote Originally Posted by ixtow View Post
    I want me a wheeltazer.


    Seriously, though, don't give 'em any ideas. The last thing we need is a six-shot electro-torture/compliance device in the hands of police.

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    How about 7 0r even 10 shots or Oooooops, how did that buck shot get in there?


    http://taser.com/products/law-enforcement/taser-xrep
    Last edited by mobeewan; 07-21-2011 at 02:16 AM.

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