On January 9, 2017, in the case White v. Pauly, the United States Supreme Court unanimously reversed a decision by the Tenth Circuit Court of Appeals denying qualified immunity for an officer. Specifically, the U.S. Supreme Court held that the lower court had erred in concluding that the officer was not entitled to qualified immunity on an excessive force claim where there was no clearly established law that required the officer, who arrived late to the scene and witnessed shots being fired by one of several individuals in a house, to second-guess the earlier steps already taken by his fellow officers or shout a warning to an armed occupant before shooting.
In a suit alleging excessive force brought against police Officers Mariscal, Truesdale and White in Federal District Court, all three Officers moved for summary judgment on qualified immunity grounds. The District Court analyzed Officer White, who arrived late on the scene, apart from Officers Mariscal and Truesdale. The District Court ultimately denied qualified immunity as to all three officers. A divided panel of the Tenth Circuit Court of Appeals, also analyzing Officer White’s actions separately, affirmed the denial of qualified immunity as to all three officers.
The officers then petitioned for rehearing en banc. In a sharply divided 6 to 6 opinion, the Tenth Circuit denied the petition for rehearing. In a dissent from denial of rehearing, one Judge noted that he was “unaware of any clearly established law” that would support denying White qualified immunity and expressed his hope that “the Supreme Court can clarify the governing law.”
The U.S. Supreme Court then granted certiorari and vacated the judgment denying Officer White qualified immunity, holding that White did not violate clearly established law on the record described by the Tenth Circuit. The U.S. Supreme Court declined to address whether Officers Truesdale and Mariscal were also entitled to qualified immunity, instead remanding the case for further proceedings consistent with the Court’s opinion as to Officer White.
Facts
Daniel Pauly was involved in a road-rage incident on a highway near Santa Fe, New Mexico. The two women involved called 911 to report Daniel as a “drunk driver” who was “swerving all crazy.” The women then followed Daniel down the highway, close behind him and with their bright lights on. Daniel, feeling threatened, pulled his truck over at an off-ramp to confront them. After a brief, nonviolent encounter, Daniel drove a short distance to a secluded house where he lived with his brother, Samuel Pauly.
Sometime between 9 p.m. and 10 p.m., Officer Truesdale was dispatched to respond to the women’s 911 call. Truesdale, arriving after Daniel had already left the scene, interviewed the two women at the off-ramp. The women told Truesdale that Daniel had been driving recklessly and gave his license plate number to Truesdale. The State Police dispatcher identified the plate as being registered to the Pauly brothers’ address.
After the women left, Officer Truesdale was joined at the off-ramp by Officers White and Mariscal. The three agreed there was insufficient probable cause to arrest Daniel. Still, the officers decided to speak with Daniel to (1) get his side of the story, (2) “make sure nothing else happened,” and (3) find out if he was intoxicated. The officers split up. Officer White stayed at the off-ramp in case Daniel returned. Officers Truesdale and Mariscal drove in separate patrol cars to the Pauly brothers’ address, less than a half mile away. Neither officer turned on his flashing lights.
When Mariscal and Truesdale arrived at the address they had received from the dispatcher, they found two different houses. The first had no lights on inside and the second, behind the first, had lights on. The officers parked their cars near the first house. They examined a vehicle parked near that house but did not find Daniel’s truck.
Officers Mariscal and Truesdale noticed the lights on in the second house and approached it in a covert manner to maintain officer safety. Both used their flashlights in an intermittent manner. Truesdale alone turned on his flashlight once they got close to the house’s front door. Upon reaching the house, the officers found Daniel’s pickup truck and spotted two men moving around inside the residence. Truesdale and Mariscal radioed White, who then left the off-ramp to join them.
At approximately 11 p.m., the Pauly brothers became aware of the officers’ presence outside and yelled out “Who are you?” and “What do you want?” In response, Officers Mariscal and Truesdale laughed and responded: “Hey, (expletive), we got you surrounded. Come out or we’re coming in.” Truesdale shouted once: “Open the door, State Police, open the door.” Mariscal also yelled: “Open the door, open the door.”
The Pauly brothers heard someone yelling, “We’re coming in. We’re coming in.” Neither Samuel nor Daniel heard the officers identify themselves as State Police. The brothers armed themselves, Samuel with a handgun and Daniel with a shotgun. One of the brothers yelled at the officers that “We have guns.” The officers saw someone run to the back of the house, so Officer Truesdale positioned himself behind the house and shouted “Open the door, come outside.”
Meanwhile, Officer White had parked at the first house and was walking up to its front door when he heard shouting from the second house. He half-jogged, half-walked to the house, arriving “just as one of the brothers said: ‘We have guns.’” When White heard that statement, he drew his gun and took cover behind a stone wall 50 feet from the front of the house. Officer Mariscal took cover behind a pickup truck.
Just “a few seconds” after the “we have guns” statement, Daniel stepped part way out of the back door and fired two shotgun blasts while screaming loudly. A few seconds after those shots, Samuel opened the front window and pointed a handgun in Officer White’s direction. Officer Mariscal fired immediately at Samuel but missed. “Four to five seconds” later, White shot and killed Samuel.
Discussion
Daniel Pauly and the estate of his deceased brother, Samuel Pauly, brought suit against Officers Mariscal, Truesdale and White alleging the officers violated Samuel’s fourth amendment right to be free from excessive force when they shot and killed him. As set forth above, the case ultimately wound up in the U.S. Supreme Court. The U.S. Supreme Court’s short 6-page decision only addressed the denial of qualified immunity as to Officer White. The Court did not address whether there was a fourth amendment violation in the first place or whether Officers Mariscal and Truesdale were entitled to qualified immunity.
The Supreme Court began by stating that “qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (citations) Further, that while case law “does not require a case directly on point” for a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” In other words, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” The Court also emphasized the importance of the qualified immunity doctrine saying it is “important to society as a whole” noting that qualified immunity “is effectively lost if a case is erroneously permitted to go to trial.”
The Supreme Court then chastised the Federal Circuit Courts somewhat, stating: “In the last five years, this Court has issued a number of opinions reversing Federal Courts in qualified immunity cases.” Notably, three of the qualified immunity cases the Court cited as being recently reversed originated in the Circuit controlling California – the Ninth Circuit. Specifically, Stanton v. Sims, 134 S. Ct. 3 (U.S. 2013) [1]; Wood v. Moss, 134 S. Ct. 2056 (U.S. 2014)[2] and City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765 (U.S. 2015)[3].
The Court then continued “today, it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality’.” “As this Court explained decades ago, the clearly established law must be ‘particularized to the facts of the case.’”
The U.S. Supreme Court found that the Tenth Circuit had “misunderstood the ‘clearly established’ analysis” in that “it failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.” Instead, the Tenth Circuit improperly “relied on Graham v. Connor, Tennessee v. Garner, and their Court of Appeals progeny, which lay out excessive-force principles at only a general level.” “Of course, ‘general statements of the law are not inherently incapable of giving fair and clear warning’ to officers but ‘in the light of pre-existing law the unlawfulness must be apparent.’ For that reason, we have held that Garner and Graham do not by themselves create clearly established law outside ‘an obvious case.’”
The U.S. Supreme Court then found that the case was not one “where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the [Tenth Circuit] did not conclude that White’s conduct—such as his failure to shout a warning—constituted a run-of-the-mill fourth amendment violation. Indeed, it recognized that ‘this case presents a unique set of facts and circumstances’ in light of White’s late arrival on the scene.’ This alone should have been an important indication to the majority that White’s conduct did not violate a ‘clearly established’ right. Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action, in circumstances like this, from assuming that proper procedures, such as officer identification, have already been followed. No settled fourth amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.” Thus, the Supreme Court concluded: “On the record described by the Court of Appeals, Officer White did not violate clearly established law.”
HOW THIS AFFECTS YOUR AGENCY
As noted above, in terms of the typical U.S. Supreme Court opinion, the Pauly opinion is extremely short. The U.S. Supreme Court’s opinion does, however, reinforce the importance of qualified immunity and sends a clear message to the Circuit Courts that a denial of such immunity should not be taken lightly and should not be based upon a “high level of generality.” Such a message is particularly important here in the Ninth Circuit, where decisions tend to be less favorable to law enforcement than in other Circuits. The Pauly decision should significantly assist law enforcement officers in obtaining a ruling of qualified immunity, except in cases wherein prior case precedent has established that the officer’s actions are unconstitutional based upon similar factual circumstances.
As in all matters involving interpretation of the law, it is important to secure advice and guidance from your agency’s legal counsel. As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at jrt@jones-mayer.com [for James Touchstone] or dlr@jones-mayer.com [for Denise Rocawich].
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[1] For an in-depth discussion of the Stanton case, see the November 5, 2013 JONES & MAYER Client Alert Memo, Vol. 28 No. 25 – “U.S. Supreme Court Reverses Denial of Qualified Immunity”.
[2] For an in-depth discussion of the Wood case, see the May 30, 2014 JONES & MAYER Client Alert Memo, Vol. 29 No. 14 – “Secret Service Agents Are Entitled to Qualified Immunity For Relocating Protesters et al.”
[3] For an in-depth discussion of the Sheehan case, see the May 20, 2015 JONES & MAYER Client Alert Memo, Vol. 30 No. 11 – “U.S. Supreme Court Ducks ADA Issue Involving Police and Violent Mentally Ill Persons”.
