Henry v. Purnell

• Decision Date: 21 April 2006
• Docket Number: Civil No. JFM-04-979.
• Citation: 428 F.Supp.2d 393
• Parties: Frederick P. HENRY v. Robert PURNELL.
• Court: U.S. District Court — District of Maryland

428 F.Supp.2d 393

Frederick P. HENRY v. Robert PURNELL.

Civil No. JFM-04-979.

United States District Court, D. Maryland.

April 21, 2006.

Eric M. May, Law Office of Eric M. May PC, Washington, DC, for Plaintiff.

Cynthia Grams Peltzman, Office of the Attorney General, Baltimore, MD, Thomas Fredrik Huse, John F. Breads, Jr., Local Government Insurance Trust, Columbia, MD, for Defendant.

OPINION

MOTZ, District Judge.

Frederick Henry has brought this action against Robert Purnell, a Somerset County Deputy Sheriff, asserting excessive force claims under the Fourth Amendment and Articles 24 and 26 of the Maryland Declaration of Rights. Discovery has been completed, and Purnell has moved for summary judgment. The motion will be denied.

I.

On October 9, 2003, an arrest warrant was issued for Henry for failing to obey a court order to either pay his child support arrearage or report to a detention center to serve a jail sentence for failure to pay. On October 20, Purnell went to Henry's last known address in Eden, Maryland, in an attempt to arrest him. The officer discovered Henry at that address but Henry avoided arrest by lying about his identity. Soon thereafter, Purnell learned that the man he had talked to was in fact Henry. Three days later, Purnell noticed Henry in a passing truck, followed him and pulled into a driveway alongside the truck. Purnell ordered Henry out of the truck. Henry complied but fled before he could be handcuffed. Purnell claims Henry pushed him in the course of escaping; Henry denies that occurred. In any event, Purnell pulled out a Glock .40 caliber handgun and shot the fleeing Henry in the elbow. Henry stopped running and was arrested.

The parties have stipulated that Purnell did not intend to shoot Henry with his handgun. Rather, he intended to unholster and discharge his Taser, a non-lethal device that immobilizes a suspect via an electro-muscular disruption. The Taser was holstered on Purnell's right side, just below his holstered handgun. Purnell has testified on deposition that he reached for the Taser because he felt endangered by Henry's actions. He asserts that he thought Henry might be running to get a weapon.

Purnell did not realize he had fired the handgun until after the weapon discharged. He immediately told Henry and another witness at the scene that he had not meant to shoot Henry and that he had grabbed the wrong weapon.

II.

Purnell first argues that Henry's claims are not viable either under the Fourth Amendment or the Maryland Declaration of Rights because no seizure occurred.

The Supreme Court has made it clear that a seizure under the Fourth Amendment requires "an intentional acquisition of physical control." Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). As the Court noted, an element of willfulness "is implicit in the word `seizure,' which can hardly be applied to an unknowing act." Id. It has therefore been held that there is no seizure when a police officer unintentionally discharges a weapon, causing injury or death. See, e.g., Glasco v. Ballard, 768 F.Supp. 176, 180 (E.D.Va.1991); Troublefield v. City of Harrisburg, 789 F.Supp. 160, 166 (M.D.Pa.), aff'd 980 F.2d 724 (3d Cir.1992). See also Campbell v. White, 916 F.2d 421, 423 (7th Cir.1990) (no seizure where state trooper accidentally collided with motorcyclist he had been chasing).

The present case is substantially different from Glasco and Troublefield in that although Purnell did not intend to fire his handgun, he did intend to fire his Taser.¹ Purnell argues, however, that this distinction is legally insignificant. He cites language in Brower that "a Fourth Amendment seizure occur[s] . only when there is a governmental termination of freedom of movement through means intentionally applied." Brower, 489 U.S. at 596-97, 109 S.Ct. 1378. According to Purnell, he did not seize Henry because the means by which he stopped Henry (the handgun) was not the means he intended to apply (the Taser). On facts virtually identical to those presented here, one district court has adopted this reasoning. Torres v. City of Madera, CV F 02-6385 AWI LJO, 2005 WL 1683736, at 11 (E.D.Cal. Apr. 8, 2005) (unpublished opinion).

I believe that Purnell and the Torres court read Brower too narrowly. Other language in Brower counsels against an overly restrictive interpretation of its holding. "In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg." Brower, 489 U.S. at 599, 109 S.Ct. 1378. Further, the Court stated, "[w]e think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result." Id. Here, as a factual matter, Henry was stopped by a projectile fired from the handgun, which was "the very instrumentality set in motion . .. in order to achieve that result." More fundamentally, it is undisputed that Purnell intended to acquire physical control over Henry, whatever weapon he fired. Under Brower that is the fact that ultimately is crucial.

III.

A.

Purnell next contends that he is entitled to qualified immunity on Henry's federal constitutional claim because he reasonably perceived that under existing law his use of force was reasonable within the meaning of the Fourth Amendment.² See generally Anderson, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (defense of qualified immunity may be asserted in a Fourth Amendment excessive force case). In determining whether a police officer or other public official is entitled to qualified immunity, courts are to follow a two-step process. First, they are to ask whether, "Maken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Second, if the answer to the first question is yes, they are to further inquire "whether the right was clearly established." Id. In deciding the second issue, "[t]he relevant, dispositive inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151.³

Here, the answer to the question of whether Purnell is entitled to qualified immunity depends upon how the question is specifically framed. On the one hand, if the question posed is whether Purnell is entitled to qualified immunity for shooting Henry with his handgun (the act he actually committed), the answer clearly is "no." Numerous cases hold that an officer may not shoot a fleeing suspect where the suspect poses no immediate danger to the officer. See, e.g., Tennessee v. Garner, 471 U.S. 1, 10-11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (police officer violated the Fourth Amendment when he used deadly force against unarmed, nondangerous fleeing suspect).⁴ Therefore, if Purnell's underlying intent not to fire a handgun is disregarded, his conduct did violate Henry's Fourth Amendment rights, and it would have been clear to a reasonable officer in his position that his conduct was unlawful. On the other hand, if the question asked is whether Purnell is entitled to qualified immunity for having prevented Henry from fleeing by shooting him with a Taser (the act he believed he was committing), the answer would be "yes." Plaintiff has cited no case, and I am aware of none, prohibiting an officer's use of a Taser against someone for whom there is an outstanding warrant and who previously avoided arrest. Thus, if all that were considered is Purnell's intention to use a Taser, in all likelihood the first step of the Saucier test would be diapositive because Purnell's actions did not violate Henry's constitutional rights. At the least, it would not have been clear to a reasonable officer standing in Purnell's position that his conduct was unlawful.

There is, however, a third way of stating the question that I find provides the key to correct analysis: is Purnell entitled to qualified immunity at this stage of the litigation despite the existence of disputed facts concerning the objective reasonableness of his belief that he was firing a Taser when he shot Henry with a handgun? Framed in this fashion, the question must be answered in the negative. Although indisputably Purnell subjectively believed he was using his Taser when he shot Henry, Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) expressly holds that in considering a civil claim based upon a Fourth Amendment seizure, an officer's subjective good faith is not a defense. Id. at 397, 109 S.Ct. 1865. Rather, "the question is whether the ... [officer's] actions are `objectively reasonable' in light of the facts and circumstances confronting ... [him], without regard to ... [his] underlying intent or motivation." Id. "Objective reasonableness" is to be determined by such factors as "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight, . .. judged from the perspective of a reasonable officer on the scene ... ." Id. at 396, 109 S.Ct. 1865. Therefore, Purnell violated Henry's Fourth Amendment rights if, applying these criteria, his belief he was using a Taser was objectively unreasonable under the circumstances he was confronting, as he then reasonably perceived them to be. Likewise, these rights were clearly established because under Graham it would have been clear to a reasonable officer that it was unlawful to use deadly force on the basis of an objectively unreasonable belief about the nature of the weapon...