HENRY V. PURNELL Wrote a Dissenting Opinion, in Which Judges Niemeyer and Agee Joined
ON REHEARING EN BANC PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT FREDERICK P. HENRY, Plaintiff-Appellant, v. No. 08-7433 ROBERT PURNELL, Defendant-Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:04-cv-00979-JFM) Argued: March 24, 2011 Decided: July 14, 2011 Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, and DIAZ, Circuit Judges.1 Reversed and remanded by published opinion. Judge Gregory wrote the opinion, in which Chief Judge Traxler and Judges Wilkinson, King, Duncan, Davis, Keenan, Wynn, and Diaz joined. Judge Davis wrote a concurring opinion. Judge Shedd 1Judge Motz did not hear oral argument or participate in the decision of this case. 2 HENRY v. PURNELL wrote a dissenting opinion, in which Judges Niemeyer and Agee joined. Judge Niemeyer wrote a separate dissenting opinion. COUNSEL ARGUED: Katherine Louise Bushman, GEORGETOWN UNIVERSITY LAW CENTER, Appellate Litigation Pro- gram, Washington, D.C., for Appellant. John Francis Breads, Jr., Hanover, Maryland, for Appellee. ON BRIEF: Steven H. Goldblatt, Director, Charlotte J. Garden, Supervising Attor- ney, May K. Chiang, Student Counsel, Kate G. Henningsen, Student Counsel, GEORGETOWN UNIVERSITY LAW CENTER, Appellate Litigation Program, Washington, D.C., for Appellant. OPINION GREGORY, Circuit Judge: Without warning, Officer Robert Purnell shot Frederick Henry, an unarmed man wanted for misdemeanor failure to pay child support, when he started running away. In the ensu- ing § 1983 action, the parties stipulated that Purnell had intended to use his Taser rather than his gun and the district court granted him summary judgment.
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