Here's a case out of the 4th Circuit yesterday, Henry v. Purnell: http://pacer.ca4.uscourts.gov/opinion.pdf/087433.P.pdf Officer Purnell was serving a warrant on Mr. Henry for failure to appear for child support. Mr. Henry begins to run - Mr. Purnell means to pull his taser, but instead pulls his gun and shoots Mr. Henry in the back of the elbow. Obviously, it is settled law that you can't shoot a fleeing, non-dangerous, midemeanant in the back. But Mr. Purnell has the chutzpah here to still claim qualified immunity: he knew he couldn't do that, and didn't mean to do that, so he should be immune because his heart was in the right place (good faith). Really? Well, the majority on this panel agrees with him, over a rather uncomplimentary dissent. The analysis for these cases is supposed to be that of a reasonable officer. The majority discusses at length how the mistake was reasonable. Do you want that in your community? I guess it depends on who you ask - the shooter or the shootee. The dissent believes that shooting the non-dangerous man in the back while fleeing is objectively unreasonable on its face, no matter what the reason. I agree. It gets even better. Officer Purnell has essentially no training on the taser. He wears it on the same side as the gun. He doesn't recognize the weight difference, the thumb break difference on the holster, the laser sight difference, on and on. Shoot a fleeing man in the back and don't take responsibility. Sure, there are not two sets of rules. To be fair, Officer Purnell immediately tried to help the man, apologized to him, and was generally a nice man on the scene. So what? He didn't have to assert the qualified immunity defense. He could've waived that. He could've been a man. He is personally being sued. His lawyers may not make arguments which he does not approve. So here's where we need have all elected LEO (sheriffs). At the time of the next election, massive billboards and fliers need to be printed quoting from this officer's briefs arguing this was reasonable. I just don't think a community is going to vote for a sheriff who abides this type of thing. Why was this man not fired on the spot, the claim for damages paid, and responsibility taken? Is it really that hard? It's just money. It's not worth your dignity and integrity.
Bad shoot, not trained properly, taser goes on other side. Own up to it. I find the department at fault for the most part, issued a taser without proper training. This is what caused all this.
Does anyone here still actually believe that you as a private citizen would get a fair shake in court against a police officer?
Torres v. City of Madera, 655 F. Supp. 2d 1109 (E.D. Cal. 2009), cited by the Fourth Circuit, another case with the same conclusion.
Years ago I saw a comic in the newspaper where the wife was washing her hair in the bathroom sink and, without looking up,and with her head covered in a towel, said to her husband, "Honey, hand me the hair dryer." And the husband handed her a pistol. Now I would have thought the premise was absurd. How could anyone mistake a real gun for some other gun-shaped object like a hair dryer? Well, maybe the premise behind that comic was not as far-fetched as I thought. What's next... a pilot landing on highway thinking it was an airport runway, not realizing the mistake until the landing gear hit the street? Sure, it happens, but it's always negligence. THe pilot never says it was an innocent mistake that happened despite paying attention and following the rules and procedures.
I can recall an incident where a crew landed at an entirely different airport. I'll link to it when I find it.
Oh snap! I got it. Man I can't believe others didn't think of this: just wear a gun and a taser on your strong side and you can go around with the affirmative defense established in Torres v. City of Madera. I mean, after all, 'there was no clearly established federeal law' against it. Sweet!
Yep, if a citizen wore a taser and firearm and did this and killed someone... you'd be look at manslaughter at least.. negligent homicide... maybe even murder 3rd... something.
Qualified immunity does apply to me. In the event something like this happened to me where I was the victim, qualified immunity would ensure that I got the same lack of justice that these poor sobs received...