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By ANDREW DAMSTEDT
WASHINGTON (December 07, 2011) -- A jury will decide whether a Somerset County police officer's shooting of a suspect was an innocent mistake or one worth $1.2 million after the U.S. Supreme Court declined to hear the case.
Somerset County Deputy Sheriff Robert Purnell was pursuing an unarmed, fleeing suspect back in 2003 when he says he reached for his Taser, but instead pulled his .40-caliber Glock and shot Frederick P. Henry in the elbow. Henry was wanted on an outstanding warrant for failure to pay child support.
Purnell had asked for a Supreme Court hearing because he said he believes he made an "honest mistake" after grabbing his gun instead of a Taser and shooting Henry.
The U.S. Supreme Court declined to hear his appeal last month, effectively returning the case to U.S. District Court Judge Frederick Motz. No trial date has been set.
Since the 2003 incident, Purnell left his job as a Somerset County deputy sheriff and worked four years as the county's warden. He recently left that job and his lawyers, John F. Breads and Matthew Peter of the Local Government Insurance Trust in Hanover, did not return repeated requests for comment.
Henry, meanwhile, has been unable to find work, said his lawyer Laura Brookover of Covington & Burling. Her client wants a conclusion of the case, she said, and added Henry has a good chance before a jury.
She said there were several signals that should have alerted Purnell that he was not holding his Taser, such as the difference in appearance between the two weapons and that the safety latch needed to be flipped on the Taser to arm the weapon.
"Anytime you draw a weapon and you're not quite certain that it's not your gun, there can be serious consequences to that," Brookover said.
Henry's lawsuit was filed in 2004 in U.S. District Court and the rulings had generally been in Purnell's favor until the 4th U.S. Circuit Court of Appeals reheard the case in 2011, reversed a previous decision and sent the case back to District Court.
That decision led Purnell to appeal to the Supreme Court. The Supreme Court rarely gives reasons for declining to hear a case and none was given in the denial of Purnell's appeal.
In the petition submitted by his lawyers, Purnell asked for the Supreme Court review the case because the "Fourth Amendment is 'to protect the people of the United States against arbitrary action by their own government,' and it addresses 'misuse of power,' not the accidental effects of otherwise lawful government conduct."
Purnell's lawyers contend that the 4th Circuit ignored evidence and treated the case as an intentional shooting rather than a mistake.
In its July ruling, 4th Circuit Judge Roger Gregory wrote there were several facts that should have alerted Purnell he was holding a Glock instead of a Taser, including the location of each weapon on his right thigh, the difference in weight of each weapon and the fact that the thumb safety on the Taser had to be flipped to arm the weapon.
The 9-3 majority opinion, written by Gregory, found that this "was not a situation in which circumstances deprived Purnell of the opportunity to fully consider which weapon he had drawn before firing ... There was no evidence indicating that Purnell did not have the split-second he would have needed to at least glance at the weapon he was holding to verify that it was indeed his Taser and not his Glock."
In a dissenting opinion, Judge Dennis Shedd wrote that Purnell used the Taser once in training, and although there are differences in the weight, the Taser and Glock appear to be remarkably similar in shape. He continued, saying that Purnell did not misuse the power of his office and the Supreme Court has instructed giving officers some latitude for honest mistakes.
By allowing the case to go to a jury, Shedd wrote that the nine judges in the majority opinion equate Purnell's conduct with that of a "rogue officer" who intentionally shoots an unarmed suspect.
Umited States Court of Appeals, Fourth Circuit; Frederick P. Henry (Plaintiff) v. Robert Purnell (Defendant)