CA4: Accidentally shooting rather than tasing a fleeing misdemeanant is objectively unreasonable

Plaintiff was fleeing from an arrest from failure to pay child support. Intending to reach for his 19.2 oz taser, the officer accidentally pulled his 38 oz Glock and shot the fleeing plaintiff. He was admittedly not trained on the taser and had both the gun and taser on the same side. Despite his claimed honest mistake, shooting an unarmed misdemeanant was objectively unreasonable. Henry v. Purnell, 652 F.3d 524 (4th Cir. 2011)*:

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 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.