CA4: Accidentally shooting a suspect instead of Tasering him was still entitled to qualified immunity

“Weapon confusion” of the officer attempting to Taser a fleeing misdemeanant but accidentally drawing his gun and shooting him in the elbow was still entitled to qualified immunity. Henry v. Purnell, 619 F.3d 323 (4th Cir. 2010)*:

Thus, the specific context of this case is where a police officer, who would have acted reasonably in using the taser to apprehend Henry, draws his firearm by mistake and unintentionally shoots Henry instead. The qualified immunity inquiry thus becomes whether an officer in that “specific context” would know that an act of weapon confusion of the firearm for the taser was “clearly established” as an excessive use of force under the Fourth Amendment. The answer is that neither in 2003, nor indeed today, is there clearly established law to resolve that question for courts, much less police officers in the field. At the time of the shooting, case law did not exist that applied the Fourth Amendment to the specific context in which Deputy Purnell acted. Deputy Purnell could not have been on notice because no case gave him fair warning that such weapon confusion violated the Fourth Amendment as a use of excessive force.

We agree with the District Court in Torres v. City of Mad-era, 655 F. Supp. 2d 1109 (E.D. Cal. 2009), which considered the nearly identical question of firearm for taser weapon confusion, that the police officer is entitled to qualified immunity. “At the time of the … shooting there was no clearly established federal law on what would make an officer’s mistaken use of her gun instead of her [t]aser unreasonable.” 655 F. Supp. 2d at 1125. In that circumstance, no police officer would have “fair notice” that a mistake of weapon confusion contravened “clearly established” law.

See Courthouse News Service.