By Ken Wallentine
White v. Pauly, 2017 WL 69170 (U.S. 2017) (per curiam)
Many lawsuits against police officers are stopped short of a trial by the qualified immunity doctrine, which protects officers from suit when the officers’ actions don’t violate “clearly established” rights. But just what does it mean to say that a right is “clearly established”?
Officers responded to a call of a probable drunk driver “swerving all crazy.” The complainants followed the suspect driver, Daniel Pauly, and flashed bright lights. Pauly pulled over and confronted the complainants. He then drove home, just a short distance away. The complainants called the police and provided Pauly’s registration number.
Three officers responded to the location of the confrontation. One remained there as the other two drove to Pauly’s house. The officers surreptitiously—sort of—approached the house where Pauly and his brother were moving around. The Pauly brothers heard the officers sneaking up and they called out, “Who are you, what do you want?” The officers laughed and said that they had the house surrounded. Then they identified themselves as the State Police.
The Pauly brothers armed themselves and shouted that they had guns. Daniel Pauly stepped into a doorway and fired two blasts from a shotgun. Samuel Pauly aimed a handgun at an officer. The officer fired and missed. The third officer, White, had just arrived from the scene of the initial report. Seeing Samuel aim at the other officer, he fatally shot Samuel Pauly.
Daniel Pauley, suing on his own behalf and on behalf of his brother’s estate, claimed that the brothers only heard someone shout, “We’re coming in.” Pauly asserted that the officers precipitated the force encounter by sneaking up to the house without announcing themselves or their purpose, leading the Pauly brothers to believe that intruders were approaching.
The Supreme Court decision of Tennessee v. Garner (471 U. S. 1 (1985)) requires that a warning be given, where feasible, prior to the use of deadly force. Officer White gave no warning. The trial court denied qualified immunity to Officer White. The 10th Circuit Court of Appeals agreed with the trial court. On rehearing by the appellate court sitting en banc, 10th Circuit Court Judge Hartz observed in a dissenting opinion that no “clearly established law suggests … that an officer … who faces an occupant pointing a firearm in his direction must refrain from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall.”
The Supreme Court reversed the 10th Circuit’s decision to deny qualified immunity. The Court held that Officer White “did not violate clearly established law on the record described by the Court of Appeals panel.” The Court pointedly reiterated the longstanding principle that “clearly established law” should not be defined “at a high level of generality.” The 10th Circuit, the Court said, “misunderstood the ‘clearly established’ analysis: It failed to identify a case where an officer acting under similar circumstances” had been determined by a court to violate the Fourth Amendment. Without identifying such a case, the 10th Circuit failed to clearly establish the law that should have given notice to Officer White that his conduct was unlawful.
The Supreme Court’s plain message to lower courts is that the “clearly established law” component of the qualified immunity analysis cannot be applied at “too high a level of generality.” Practically speaking, expect attorneys defending officers to more frequently—and with greater success—pursue qualified immunity by arguing that prior cases are too dissimilar to give officers clear and precise guidance on what conduct is “clearly established” as wrongful under the Fourth Amendment.
Lexipol’s Law Enforcement Policy Manual and Daily Training Bulletin Service provides policy updates based on changing laws and court rulings, so you can rest easy knowing your policy reflects the latest case law. Contact us today to find out more.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.