McHUGH, Justice:

In this interlocutory appeal of the November 5, 2010, order of the Circuit Court of Kanawha County,1 the defendants below— the City of Saint Albans, B.L. Tagayun and A.C. Truitt2 (hereinafter collectively referred to as "Appellants")—challenge the trial court's refusal to grant summary judgment on qualified immunity grounds. The underlying civil complaint filed by David A. Botkins (hereinafter "Mr. Botkins" or "Appellee") included the allegation that his civil rights had been violated due to the use of excessive force by municipal law enforcement officers. In response, Appellants raised the defense of qualified immunity in a motion for summary judgment.

Appellants contend that the lower court applied an incorrect standard in its qualified immunity analysis and improperly denied its motion for summary judgment on this ground. They also maintain that the lower court erred by not ruling on the other grounds they raised in support of summary judgment.3 After careful review of the record, due consideration of the arguments raised by the parties, and close examination of the applicable law, the denial of summary judgment is reversed on qualified immunity grounds for the reasons stated in this opinion.

I. Factual and Procedural Background

The incident giving rise to the underlying civil complaint involved a confrontation between Mr. Botkins and the Saint Albans police on November 23, 2008. Two municipal law enforcement officers were involved, one being a paid police officer, Mr. Tagayun, and the other being a reserve (volunteer) officer, Mr. Truitt. According to the affidavit of Mr. Truitt in the record, the two officers were on foot patrol in an area near a Taco Bell in Saint Albans around 3 a.m. on November 23, 2008, when they heard shouting coming from the proximity of the drive-thru lane of the restaurant. At the same time they saw a male running from the main parking lot of the Taco Bell to the drive-thru area. The officers crossed the street to investigate and observed three males outside of a Jeep Cherokee holding items which could have been used as weapons. One of the males had a long-handled Mag-lite flashlight, a second had a small bat, the third (Mr. Botkins) did not have anything in his hands but did have a cast on his right arm. These three males were in what appeared to be a confrontational posture facing three other males who were standing empty handed outside of a pickup truck.

Appellee's explanation of the facts of what occurred on November 23, 2008, appear in his deposition contained in the record. He testified that one of the two male companions with him in his Jeep Cherokee that morning began shouting obscenities at the occupants of a truck ahead of them in line at the drive-thru because the driver of the truck was slow in moving forward to close a gap in the line. The three male occupants of the truck exited the vehicle and approached the Jeep.4 Appellee and the two males with him exited the Jeep. While Appellee did not have anything in his hands when he got out of the Jeep, one of his companions had a flashlight5 in his hand and the other had a wooden club.6 Appellee said that because of the cast on his arm he positioned himself so that his friends were between him and the three males approaching from the truck. As the six males faced off shouting obscenities at each other, one of Appellee's passengers recognized a passenger of the truck as someone he knew, causing the confrontation to abate. Appellee testified in his deposition that the change from an argumentative showdown to a calmer exchange between the six males occurred "about that time" Officers Tagayun and Truitt arrived on the scene. Portions of the depositions in the record of three other young males involved in the encounter corroborated this observation.

When the officers approached the group, Officer Tagayun ordered the group to get down on the ground and all but Mr. Botkins complied fully with the order. In his deposition testimony, Appellee said that when Officer Tagayun saw him on his knees the officer ran up to him, and threw Appellee's hands up behind his back while kneeing him in the back. Appellee said that Officer Tagayun then hit him in the head with the butt of his drawn gun. He further said that while the officer proceeded to hit him twice more with the butt of the gun and repeatedly kicked him he yelled: "That's police brutality. I didn't do nothing wrong. Why did you hit me?" Appellee was subsequently handcuffed and placed in shackles, which were removed when the ambulance arrived to attend to Mr. Botkins' head wounds.7

Based upon this incident, Mr. Botkins filed a complaint initiating a civil suit against the city and the officers on August 6, 2009. Mr. Botkins's complaint alleged various grounds including "constitutional tort action" for violation of federal and state constitutional rights,8 vicarious liability and negligent hiring on the part of the city, battery and intentional infliction of mental, physical and emotional distress by the officers, and false arrest/malicious prosecution directed solely at Mr. Tagayun for "maliciously and falsely obtain[ing] warrants for the arrest of the plaintiff."

On August 11, 2010, Appellants moved for summary judgment asserting immunity from suit both on qualified immunity and statutory immunity grounds. They maintained that qualified immunity was applicable because the individual actions of the officers were not "clearly unlawful" as defined by the United States Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). It was stressed that Mr. Truitt was acting in the capacity of a volunteer officer, did not cause injury to Mr. Botkins and he had no duty to intervene. Two arguments were made with regard to statutory immunity under the state's Governmental Tort Claims and Insurance Reform Act:9 (1) the City of Saint Albans was immune from common law claims for any intentional act of its employees;10 and (2) the individuals were immune from the claims because they were acting within the scope of their authority and without evidence of malice, bad faith or recklessness.11

The transcript of the November 4, 2010, hearing on the summary judgment motion reflects that the circuit court primarily addressed the qualified immunity argument, although brief consideration was given to the contention that Mr. Truitt as a reserve/volunteer officer had no duty to intervene.12 The circuit court denied the motion for summary judgment concluding that the case would be better decided on a motion for a directed verdict. Defense counsel, focusing on Mr. Truitt's involvement, restated that the U.S. Supreme Court's standard in Saucier required a finding that the actions of the reserve officer were "clearly unlawful" in order to defeat the defense of qualified immunity. The trial court repeated its ruling that a motion for a directed verdict would be the best time to make that decision even for qualified immunity purposes. The subsequent order entered on November 5, 2010, simply indicates that summary judgment was denied "for reason stated on the record."

Appeal of the denial of summary judgment was filed with this Court on December 23, 2010.

II. Standard of Review

An order denying a motion for summary judgment is interlocutory and is generally not appealable except in special instances. Syl. Pt. 8, Aetna Casualty & Surety Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). This Court has specifically recognized that "[a] circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the `collateral order' doctrine." Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009). The Court observed in Robinson that allowing interlocutory appeal of a qualified immunity ruling is the only way to preserve the intended goal of an immunity ruling: to afford public officers more than a defense to liability by providing them with "the right not to be subject to the burden of trial." Id. at 833, 679 S.E.2d at 665 (citation omitted). Therefore, while it is appropriate to proceed with this appeal, our review is limited to the sole issue of qualified immunity.13

The standard of review applied in these special instances is stated in syllabus point one of Findley v. State Farm Mutual Automobile Insurance Company, 213 W.Va. 80, 576 S.E.2d 807 (2002): "This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court." Likewise, the review undertaken follows the general principle applicable to any summary judgment ruling: "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Casualty & Surety Co., 148 W.Va. at 160, 133 S.E.2d at 771.

III. Discussion

Appellants maintain that the lower court applied an incorrect standard in denying the motion for summary judgment on qualified immunity grounds. Identifying the proper standard is the foundation of our discussion.

Our approach to matters concerning immunity historically has followed federal law due in large part to the need for a uniform standard when, as in the case before us, public officers are sued in state court for violations of federal civil rights pursuant to 42 U.S.C. § 1983. Robinson at 834, 679 S.E.2d at 666. Our general immunity standard was adopted in Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987), overruled in part, State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992), a case involving a 42 U.S.C. § 1983 action against police officers for entering a private residence without an arrest warrant and placing the occupant under arrest. The matter proceeded to trial and at the end of the plaintiff's case, the trial court directed the verdict for the police officers and the plaintiff appealed. In affirming the lower court, this Court examined federal cases involving entitlement to qualified immunity. In reliance on language contained in two U.S. Supreme Court cases,14 this Court formulated the following qualified immunity standard as the sole syllabus point in Bennett:

The Court had occasion to further examine the contours of qualified immunity in Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996). In Hutchison, a land owner brought a § 1983 civil rights claim against the city for refusing to issue a building permit. The city maintained on appeal that even the complaint had failed to sufficiently establish any violation on which relief could be premised. Acknowledging that this issue was lost because the action had proceeded beyond pleading, the Court nonetheless proceeded to provide guidance in accord with the U.S. Supreme Court's position that there be early resolution of cases in which the defense of immunity is raised. Id. at 147, 479 S.E.2d at 657. Particular emphasis was placed on the holding in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that qualified immunity, as an entitlement not to stand trial in certain circumstances, "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. at 526, 105 S.Ct. 2806 (emphasis in original). This reasoning underlies the following holding in syllabus point one of Hutchison:

The Court in Hutchison further observed that the general test as announced in Bennett had been refined in State v. Chase Securities, Inc., making it clear that immunity does not extend to fraudulent, malicious or otherwise oppressive acts of public officials. The Court concluded in Hutchison that the question to determine entitlement to qualified immunity in the absence of such wrong-doing centers on "whether an objectively reasonable official, situated similarly to the defendant, could have believed that his conduct did not violate the plaintiff's constitutional rights, in light of clearly established law and the information possessed by the defendant at the time of the allegedly wrongful conduct[.]" 198 W.Va. at 149, 479 S.E.2d at 659. Thereafter, the elements of the standard announced in Bennett were separated into the following two inquiries:

Id. Further elaboration of this two-part inquiry appears in Hutchison as follows:

Id. at n. 11.

While considering a Ninth Circuit case relative to a civil rights claim based on excessive use of force, the U.S. Supreme Court expounded on the application of the two-part inquiry recognized above in Hutchison relevant to qualified immunity in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), see n. 17, infra. The Saucier case was filed by a demonstrator who was arrested by military police after the demonstrator attempted to unfurl a banner at a public event where the U.S. Vice President was speaking. The suit alleged that the arrest involved excessive use of force by the officers in violation of his Fourth Amendment rights. The officers raised the defense of qualified immunity and moved for summary judgment. The district court denied the motion, finding a dispute of a material fact remained as to whether excessive force was used by the officer removing the demonstrator from the crowd. The Ninth Circuit affirmed, summarily finding that the first step of the qualified immunity test was satisfied, that is, the facts alleged demonstrated a constitutional violation. As to the second step of the qualified immunity inquiry— whether the constitutional standards were clearly established at the time in question— the Ninth Circuit concluded it should be answered by applying the same test the U.S. Supreme Court set forth in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)16 for assessing whether excessive force was reasonable under the circumstances in suits claiming excessive use of force by police officers.

The U.S. Supreme Court ruled in Saucier that the two matters are completely distinct, serve different purposes and are analyzed under separate, established standards. As discussed in Saucier, excessive force claims are tested under objective standards of reasonableness as set forth in Graham v. Connor. This test does not conflict with or overshadow the distinctly different test which applies to qualified immunity matters initially established in Harlow v. Fitzgerald and later refined in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), and Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), and adopted by this Court in Hutchison. The Court in Saucier fashioned the following two-prong test that a court required to rule on the qualified immunity issue must consider:

533 U.S. at 201-202, 121 S.Ct. 2151.17 The Court in Saucier went on to explain that qualified immunity should operate "to protect officers from the sometimes `hazy border between excessive and acceptable force,' and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." 533 U.S. at 206, 121 S.Ct. 2151 (internal citation omitted). Any inquiry relative to the reasonableness of the force used under the circumstances is of no moment to the trial court when deciding the question of qualified immunity. When the qualified immunity defense is raised in cases based on use of excessive force and the facts as alleged represent a constitutional violation, the pivotal inquiry becomes whether the officers were on notice that their conduct was unlawful.

Although decided in the context of an excessive force claim, the Saucier test applies equally to any case grounded on a § 1983 civil rights claim in which public officers raise a qualified immunity defense. The test set forth in Saucier furnishes added guidance on the analysis of the relevant factors a trial court must consider to determine whether public officers are entitled to be "shielded from liability for civil damages" due to qualified immunity. Bennett, 178 W.Va. at 500, 361 S.E.2d at 465. It also is in keeping with the guidance the Court previously provided in Hutchison regarding the two-part inquiry inherent in qualified immunity determinations. Accordingly, we hold that a public officer is entitled to qualified immunity from civil damages for performance of discretionary functions where: (1) a trial court finds the alleged facts, taken in the light most favorable to the party asserting injury, do not demonstrate that the officer's conduct violated a constitutional right; or (2) a trial court finds that the submissions of the parties could establish the officer's conduct violated a constitutional right but further finds that it would be clear to any reasonable officer that such conduct was lawful in the situation confronted. Whenever the public officer's conduct appears to infringe on constitutional protections, the lower court must consider both whether the officer's conduct violated a constitutional right as well as whether the officer's conduct was unlawful. Pursuant to our holding in Hutchison, unless there is a bona fide dispute as to predicate facts concerning these fundamental qualified immunity elements, the ultimate determination of immunity is a question of law which is ripe for summary disposition before trial because qualified immunity affords immunity from suit rather than just a defense to liability. 198 W.Va. at 149, 479 S.E.2d at 659.18 Being subject to interlocutory appeal, a trial court's pretrial ruling involving the existence of qualified immunity must clearly set out factual findings sufficient to permit meaningful appellate review of the issues herein identified. Compare Syl. Pt. 3, Fayette County National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997) ("[A] circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.").

Turning to the case at hand, the trial court's order denying summary judgment contained a cursory ruling that "Upon viewing the facts in the light most favorable to the Plaintiff, and for reasons stated on the record, the Motion for Summary Judgment is hereby DENIED." Review of the ruling may nonetheless proceed because the record contains the transcript of the November 4, 2010, hearing on the motion for summary judgment reflecting the lower court's essential reason for denying the motion. The lower court's ruling from the bench is as follows:

It is far from clear what facts the lower court relied upon to determine that the officer's conduct violated a constitutional right. Nor has our review of the record revealed any disputed predicate facts regarding this factor. There is no dispute that the meeting of the young men in the two vehicles initially was confrontational and included shouting and cursing between the two groups. It is also uncontested that the incident occurred at 3 a.m. at the drive-thru of a restaurant which was open and serving food to the public. Likewise, there is no question that the officers saw someone running toward what appeared to be a fracas, and that two of the six males were carrying objects that could serve as weapons. Moreover, there is no dispute that the officers arrived at the scene—as the Appellee testified— "about that time" the hostility between the two groups was abating. Thus the facts support that the officers' investigation of the incident was warranted,19 and Appellee has demonstrated no constitutional basis for failing to comply with the investigation. Nevertheless, the lower court could have assumed that a violation of a constitutional protection was implicated solely because force was used by a public officer. The Saucier Court deduced the same by stating that a constitutional violation "could have occurred under the facts alleged based simply on the general rule prohibiting excessive force." 533 U.S. at 207, 121 S.Ct. 2151 (emphasis added). This leads to the second inquiry, not undertaken by the lower court at the hearing, of whether in this case the general prohibition against excessive force was contravened by the circumstances the officers faced.

The circumstances confronted in the present case provide adequate grounds for the a reasonable law-enforcement officer to have believed that use of force was justified in performance of his duties. A reasonable officer in the same situation—arriving at the scene of what appeared to be a hostile confrontation of six young men who were yelling and cursing at one another in a public area with two of the young men visibly carrying objects which could serve as weapons—could have believed a crime was in progress or about to be committed and deduced that steps needed to be taken to diffuse the situation. Ordering the group to the ground appears to be an appropriate law-enforcement effort to gain control of such an uncertain situation. Once Appellee refused to comply, a reasonable officer may have believed the refusal to be an attempt to obstruct the officer from performing an investigation to determine whether any criminal activity was involved.20 Moreover, using force as the method to obtain compliance with the order to lie flat on the ground so that the situation could be fairly assessed by law enforcement was not unreasonable in the circumstances confronted.21

The officer insisting on compliance with his order to get on the ground would not have known the extent of the threat imposed by the group, whether there were others outside of the group who would pose a larger threat to securing the situation, or how much of a risk the group posed to the public, including those in line at the drive-thru and those working in the restaurant. It goes without saying that the officers' own safety may have been at stake. Under these circumstances, a reasonable officer may have determined that force was necessary. As the U.S. Supreme Court recognized in Graham v. Connor, "[o]ur Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." 490 U.S. at 396, 109 S.Ct. 1865. Significantly, we know of no basis—and Appellee points to none—on which to conclude that a reasonable officer would be on notice under these circumstances that the conduct complained of was unlawful. Moreover, a contrary conclusion would leave law-enforcement officers acting at their peril in such uncertain situations where quick action is often required. As the Fourth Circuit recognized in Maciariello v. Sumner, 973 F.2d 295 (1992), qualified immunity should serve to shield law enforcement officers from "bad guesses in gray areas; they are liable for transgressing bright lines." Id. at 298. No bright lines exist in this case.

Based upon our analysis, there is no dispute with regard to any of the facts relevant to the qualified immunity determination which would warrant support for the lower court's position to forego deciding the immunity issue at the summary judgment stage.22 Our review of the facts and circumstances in the record support finding qualified immunity from suit, either because no constitutional violation is established by the facts alleged or because a reasonable officer confronting the same situation—without notice to the contrary—would have considered the action lawful. Consequently, the order of the lower court is reversed. Given the limited scope of this interlocutory appeal on the sole issue of qualified immunity, the case is remanded for any proceedings which may be needed to address any issues not dealing with qualified immunity.

IV. Conclusion

For the foregoing reasons, the November 5, 2010, order denying summary judgment is reversed, and the case is remanded for any further proceedings which may be required regarding matters to which qualified immunity may not extend.

Reversed and remanded.

Justice BENJAMIN dissents and reserves the right to file a dissenting opinion.

BENJAMIN, Justice, dissenting:

It is not constitutionally permissible for a police officer to severely injure a helpless, physically disabled, unarmed citizen who is on his knees with his arms held up over his head by viciously pistol whipping him and kicking him.1 No West Virginia citizen should ever be brutalized by a law enforcement officer acting under the color of state authority in the way Mr. Botkins allegedly was. For decades, it has been universally established in the jurisprudence of this country that the type and degree of clearly excessive force used against David Botkins by Officer B.L. Tagayun in this case is unconstitutional. Mr. Botkins was not fleeing. He had no weapons. He was not acting in a provocative manner. He was no threat to the investigating officers. He was submissive and was attempting to surrender in a manner which protected his broken arm which was in a cast-something evident to anyone observing. It is shocking that despite having done nothing wrong, Mr. Botkins is now left without recourse by the majority's opinion.2

Officer Tagayun is not entitled to qualified immunity. His conduct toward Mr. Bodkins was objectively deplorable, excessive, severe and unnecessary. The impropriety of the type of actions he committed has been "clearly established" for decades in our country.3 There should be no question that this case should proceed to trial with respect to Officer Tagayun.4 Therefore, I dissent.

At the outset, I am in total agreement with my colleagues that we must be careful not to "Monday-morning" quarterback difficult split-second decisions about the amount of force necessary in particular situations made in circumstances that are tense, uncertain, and rapidly evolving,. Bell v. Dawson, 144 F.Supp.2d 454 (W.D.N.C.2001). This Court recognizes that police officers confront dynamic situations which require immediate decision-making about the amount of force to use-decisions which, in calmer reflection afterwards, might have been made differently. We need to insulate our law enforcement officers to a large extent from the constant fear that they will unnecessarily have to defend themselves from excessive force claims in every tough situation in which they find themselves, thereby risking that such officers will be unable to act quickly when it is necessary to protect themselves or the public. However, we must also not surrender our duty as a court to protect the public from unconstitutional acts by state actors against citizens.

The facts, taken in the light most favorable to David Botkins, the party asserting injury, indicate that once Officers Tagayun and Truitt arrived on the scene, the threat of violence from the confrontation between the two groups had dissipated. Mr. Botkins and the other individuals simply were standing around by this time because two of the potential adversaries had discovered that they knew each other. Nevertheless, Officer Tagayun, with his gun drawn, ordered everyone to get on the ground. This order was not improper. Mr. Botkins dutifully complied the best that he could but was hampered by his injured arm. As a result, he got down on his knees and put his arms in the air to show Officer Tagayun that he was wearing an arm cast. At that point, Officer Tagayun ran up to Mr. Botkins, threw Mr. Botkins' hands behind his back, put his knee in Mr. Botkins' back, and hit Mr. Botkins in the head with the butt of his gun. Mr. Botkins stated below that after the first hit with the butt of the gun, he could feel blood running down his head. Officer Tagayun then struck Mr. Botkins two more times with the butt of his gun, kicked him, and then, according to the complaint, spat on him. As a result of the savage beating, Mr. Botkins was transported to a hospital for treatment which included the application of seven staples to one head wound and three staples to another head wound. Importantly, Mr. Botkins was never prosecuted for, nor convicted of, any crime, including resisting arrest.

I disagree with the majority that a bright line does not exist here. It does without question. There is a big difference between a suspect who is physically challenged by a broken arm in a cast and is trying to communicate that inability to a police office (as Mr. Botkins was doing here) and a suspect who is "refusing" to comply and who therefore reasonably poses a risk to the officer and to the situation.5 By using the term, "refusal," to inaccurately describe Mr. Botkins' actions, one can understand how the majority got to the wrong result—it relied on an inaccurate conclusion of the facts. That is a risk when an appellate court involves itself in finding facts, an endeavor better left to juries. Mr. Botkins did not refuse to comply. Rather, he failed to get down on his belly, as ordered, because of his injured arm, a fact which was obvious, or should have been obvious, from the fact that he was wearing a cast. At the very least, Mr. Botkins' position was clearly one of submission. When Mr. Botkins was beaten by Officer Tagayun, he had committed no crime, was not actively resisting arrest or attempting to evade arrest by flight, and posed no immediate threat to the safety of the police officers or others.

Claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other "seizure" of a citizen are properly analyzed under the Fourth Amendment and its "reasonableness" standard. Albright v. Oliver, 510 U.S. 266, 276, 114 S.Ct. 807, 814, 127 L.Ed.2d 114 (1994). Courts have explained that

Johnson v. City of Milwaukee, 41 F.Supp.2d 917, 925 (E.D.Wis.1999) (citations omitted), see also, Morales v. City of Oklahoma City, 230 P.3d 869 (Ok.2010) (same); Flynn v. Mills, 361 F.Supp.2d 866 (S.D.Ind.2005) (same); Heyward v. Christmas, 357 S.C. 202, 593 S.E.2d 141 (S.C.2004) (same); Campbell v. City of Leavenworth, 28 Kan.App.2d 120, 13 P.3d 917 (2000) (same); Limbert v. Twin Falls County, 131 Idaho 344, 955 P.2d 1123 (Idaho App.1998) (same). That is, the question is whether the police officer's actions were "objectively reasonable" in light of the facts and circumstances confronting the officer.6 Under these circumstances, the use of a deadly weapon to pistol-whip Mr. Botkins and the kicking of Mr. Botkins were not objectively reasonable for the situation and were clearly excessive. Officer Tagayun's conduct speaks more to punishment than an attempt to control a dynamic situation. See Kokinda v. Breiner, 557 F.Supp.2d 581 (M.D.Pa.2008) (officer's actions were allegedly taken to punish arrestee rather than for legitimate purposes).

According to Syllabus Point 6 of the majority opinion, in part, a public officer is not entitled to qualified immunity from civil damages for performance of discretionary functions where the court finds that the submissions of the parties could establish the officer's conduct violated a constitutional right. As noted by the majority opinion, a constitutional violation may occur based simply on the general rule prohibiting excessive force. Mr. Botkins' constitutional rights were violated when Officer Tagayun used excessive force on him by viciously beating him on the head with the butt of his gun causing wounds which required ten staples to close.

Syllabus Point 6 of the majority opinion additionally provides that a public officer is not entitled to qualified immunity where it would be clear to a reasonable officer that such conduct is unlawful in the situation confronted. As referenced in footnote 3 herein, this country's jurisprudence in the last 50 years completely dispels any notion that a reasonable officer might consider what Officer Tagayun did in this case to be acceptable. This is not 1963 Birmingham, Alabama. This is not a modern-day third-world police state. This is the 21st Century and this is West Virginia. We stand for more. What Officer Tagayun did to Mr. Botkins was unjustified and unacceptable by any definition of acceptable behavior in this state or in this country and I am disappointed that this Court now immunizes him from the consequences of such actions.

All first responders, especially police officers, are professionals who courageously go about the business of protecting society in a responsible manner. They deserve our respect and appreciation. Unfortunately, actions such as those of Office Tagayun unfairly cause people to suspect and resent police officers. This suspicion and resentment can result in a lack of cooperation between civilians and police officers that frustrates law enforcement efforts. Further, actions such as those of Officer Tagayun may increase violent confrontations between police officers and suspects by causing some suspects to choose flight or resistance rather than compliance with a police officer's lawful commands.

I reiterate, while I agree with the majority opinion that a police officer may use lawful force to compel a recalcitrant suspect to adhere to the officer's commands, it should be obvious to any reasonable police officer and to this Court that lawful police conduct does not include brutally beating with the butt of a gun a helpless, nonthreatening, person who is on his knees with his arms above his head. It does not condone thereafter kicking the helpless individual. Officer Tagayun's use of force was excessive. It was wrongful. And, as any reasonable police officer would reasonably know, it was improper and unconstitutional. For these reasons, I would find that Officer Tagayun does not enjoy qualified immunity from civil damages because of the senseless harm done to Mr. Botkins. Accordingly, I dissent.