Pauly v. White

Case Citation: Pauly v. White, 814 F.3d 1060 (10th Cir. 2016)

The Court of Appeals held that summary judgment in favor of non-shooting officers on qualified immunity grounds was not warranted and that summary judgment in favor of shooting officer on qualified immunity grounds was not warranted.



Fact Background:

On October 4, 2011, Daniel Pauly was driving on a highway going north from Santa Fe, New Mexico when he and two women also driving on the interstate became involved in a road rage incident. One of the women reported a “drunk driver” to a 911 operator claiming Daniel was “swerving all crazy.” The women then followed Daniel and tailgated him until he pulled over at an exit. Daniel asked the women why they were following him, and the women claimed he was “throwing up gang signs.” Daniel left the off-ramp and drove a short distance to his brother, Samuel’s, home.

Following up on the 911 call, state police spoke with the women still lingering at the highway exit where they spoke to Daniel. The women described his vehicle and license plate number which the police traced to Samuel’s home. After agreeing there was not enough evidence or probable cause to arrest Daniel, the officers approached the home without activating flashing lights on their cars or providing any other form of notice that they were on the Pauly’s property. When the brothers saw blue LED lights, they shouted, “who are you?” and “what do you want?” The officers responded, “we got you surrounded. Come out or we’re coming in.”

The brothers called the police to report the intruders. When an officer shouted, “we’re coming in. we’re coming in,” Samuel retrieved a loaded handgun for himself and a shotgun for Daniel. One of the brothers shouted, “we have guns,” and Daniel stepped partially out of his back door to fire two warning shots. Within five seconds, Officer White shot Samuel from his covered position over fifty feet away, killing him within minutes of stepping foot on the Pauly property.

Procedural Background:

Plaintiff Daniel T. Pauly as the personal representative of the Estate of Samuel Pauly, filed suit against Officers Mariscal, Truesdale, and White, the State of New Mexico Department of Public Safety, and two state officials, alleging an excessive force claim under section 1963 and several state law claims. The officers moved for summary judgement and raised the defense of qualified immunity. District court denied summary judgement on all claims. The officers appealed the denial of their qualified immunity. The Supreme Court overturned.


The Tenth Circuit Court of Appeals AFFIRMED the district court’s decision not to grant Defendants qualified immunity or motion for summary judgment. The Court argues, “the Supreme Court has long recognized—and continues to recognize—the individual’s constitutional right to use arms to protect his home.” Thus, “accepting as true plaintiffs’ version of the facts, a reasonable person in the officers’ position should have understood their conduct would cause Samuel and Daniel Pauly to defend their home and could result in the commission of deadly force against Samuel Pauly by Officer White.” On that basis, the Tenth Circuit concurred with the district court that Officer White’s use of deadly force against Samuel Pauly was not objectively reasonable and violated the Fourth Amendment.

With the constitutionality of Defendants’ actions decided, the question of whether or not the constitutional violation was clearly established still remains. Though the Court acknowledges that “for a right to be clearly established, there must be a Tenth Circuit or Supreme Court precedent close enough on point to make the unlawfulness of the [defendants’] actions apparent … the plaintiff is not required to show … that the very act in question was held unlawful in order to establish an absence of qualified immunity.” In other words, there is an inverse relationship between the severity of the conduct and the level of specificity required from prior case law to ‘clearly establish’ the violation. Consequently, the novelty of factual circumstances does not entitle a person to qualified immunity. The majority concludes:

an officer outside someone’s home in the dark of night with no probable cause to arrest anyone and behind the cover of a wall 50 feet away from a possible threat, with no warning shot a man pointing his gun out of his well-lighted window at an unknown person in his yard while the man’s brother fired protective shots in the air from behind the house. Given his cover, the distance from the window, and the darkness, a reasonable jury could find that Officer White was not in immediate fear for his safety or the safety of others. Any objectively reasonable officer in this position would well know that a homeowner has the right to protect his home against intruders and that the officer has no right to immediately use deadly force in these circumstances. Based on our sliding scale test … we do not agree with the dissent that more specificity is required to put an objectively reasonable officer on fair notice.

Pauly v. White, 814 F.3d 1060 (10th Cir. 2016)

Despite that the majority found Defendants actions both in violation of the constitution AND clearly established law, the Circuit Judge Nancy Moritz. Judge Moritz writes in her dissenting opinion, “majority mistakenly defines clearly established law at a high level of generality, engaging in exactly the type of review our Supreme Court has consistently cautioned against.”

The Supreme Court overturned the Tenth Circuit’s judgment, concurring with Judge Moritz’ dissenting opinion, and granting Defendants qualified immunity.

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