Pauly v. White

Incident Summary & Facts

On the evening of October 4, 2011, two women called 911 to report that Daniel Pauly was driving drunk on Interstate 25 near Santa Fe, New Mexico, after a road-rage encounter. New Mexico State Police Officers Truesdale, Mariscal and White agreed that there was no probable cause to arrest Daniel and no exigency. They still went to his rural home, which he shared with his brother Samuel, to hear his side of the story. It was dark and raining. At 11:14 p.m., Truesdale and Mariscal approached covertly, using flashlights only intermittently. White radioed at 11:16 that all units were on scene, and he joined them shortly after 11:17.

From inside, the brothers saw two flashlights approaching and feared intruders connected to the road-rage incident. They shouted “Who are you?” The officers laughed and replied, “Hey, (expletive), we got you surrounded. Come out or we’re coming in.” “State Police” was shouted only once, and Daniel did not hear it. One brother yelled “We have guns.” White took cover behind a stone wall about 50 feet from the front of the house. Daniel fired two shotgun warning shots out the back door. Seconds later, Samuel opened the front window and pointed a handgun toward White. “Four to five seconds” later, White shot and killed him without identifying himself or giving a warning. The whole incident took under five minutes. Physical evidence left it disputed whether Samuel ever fired.

Procedural posture: This was an interlocutory appeal from the denial of qualified immunity. The Tenth Circuit had affirmed the denial (Pauly I). The Supreme Court vacated that decision, holding that no clearly established law governed an officer who arrives late, as White did (White v. Pauly), and remanded.

Core Legal Issue

On remand, did Officer White’s use of deadly force violate the Fourth Amendment, and if so, was the violation clearly established? Can the two non-shooting officers be liable for recklessly creating the need for deadly force?

The Holding

The court held that, on the plaintiffs’ facts, a jury could find White’s shooting objectively unreasonable. But no case clearly established the violation, so White received qualified immunity. Because his conduct could not support liability and they committed no violation themselves, Mariscal and Truesdale were also entitled to judgment. The denial of summary judgment was reversed, with instructions to enter judgment for all three officers.

The Court’s Analysis:

• Corrected facts: On review of the record, a jury could find that White arrived before the threats were made. He heard “come out or we’re coming in” and took part in the events that led to the confrontation, rather than arriving just as “We have guns” was shouted.
• Graham factors: The crime was at most a minor traffic offense, and no arrest was possible. On threat, the court applied the four factors from Estate of Larsen. White gave no command to drop the weapon. Samuel’s pointing the gun was a hostile motion favoring White. But the 50-foot distance from behind a rock wall, and Samuel’s apparent intent to defend his home from unidentified intruders, favored the plaintiffs.
• No per se rule: Pointing a gun at an officer does not make deadly force automatically reasonable, especially at 50 feet, from cover, with no warning.
• Reckless pre-seizure conduct: Under Sevier and Allen, reckless conduct “immediately connected” to the threat, which “unreasonably created the need to use such force,” counts in the analysis.
• Clearly established law: The Allen principle is too general to clearly establish the law. No sufficiently similar case existed, so White received qualified immunity, and the claims against Mariscal and Truesdale fell with his.
• Concurrence (Moritz, J.): She would have skipped the constitutional question. She also questioned whether the majority went beyond the district court’s facts on interlocutory review.