11/28/17 | Sarah Graham
By Ken Wallentine Editor’s note: This case might seem familiar to you. It should. It was covered in Xiphos in January here. Pauly v. White, 874 F.3d 1197 (10th Cir. 2017) On a dark and stormy night, 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, then drove just a short distance home. The complainants called the police, provided Pauly’s registration number, and said that Pauly was “throwing up gang signs.” Three officers responded to the location of the confrontation. The officers agreed there was no reason to arrest Pauly based on the information provided by the complainants. However, the officers decided to locate Pauly, get his side of the story, and learn whether he was intoxicated while driving. One officer remained with the complainants 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 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 (confirmed by dash camera recordings). The Pauly brothers later claimed they did not hear the officers identify themselves as police and that they feared the persons approaching their house were those involved in the road rage incident. The Pauly brothers armed themselves and shouted 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, Ray White, had just arrived from the scene of the initial report. Seeing Samuel Pauly aim at another officer, Officer White fatally shot Samuel Pauly. Daniel Pauly, suing on his own behalf and on behalf of his brother’s estate, claimed 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. In Pauly v. White (814 F.3d 1060 (10th Cir. 2016)), the Court of Appeals agreed with the trial court. Viewing the evidence in the light most favorable to the plaintiff, as the court must when deciding whether to apply qualified immunity on a motion for summary judgment, the court held that reasonable officers should have understood that their conduct would cause the Paulys to defend their home and that might prompt deadly force against Samuel Pauly. In contrast, 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 United States Supreme Court reversed the 10th Circuit’s decision to deny qualified immunity. The qualified immunity doctrine protects officers from federal civil rights liability unless the officer violated a right that was clearly established at the time. 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 couldn’t point to clearly established law that should have given notice to Officer White that his conduct was unlawful. White v. Pauly was a clear directive to lower courts to extend extreme deference to officers in the qualified immunity analysis. The Supreme Court once again told trial and appellate courts to refrain from applying the “clearly established law” component of the qualified immunity analysis at “too high a level of generality.” In other words, unless the lower court can point to a controlling court precedent that precisely and clearly gives notice to officers of how to act, the court should grant qualified immunity. The Court’s decision bolstered the direction given the recent cases of Mullenix v. Luna (136 S. Ct. 305 (2015)) (holding that qualified immunity should apply for an officer who allegedly used deadly force in a high-speed pursuit) and Plumhoff v. Rickard (134 S. Ct. 2012 (2014)) (qualified immunity protects officers who fired upon the driver and passenger of a fleeing car). With instructions from the Supreme Court, the 10th Circuit has now reversed course and held that the officers are entitled to qualified immunity. Even so, the appellate court issued a lengthy opinion that subtly, and strongly, tries to state a case for why the two judges behind the initial 10th Circuit opinion were right. In the court’s first Pauly decision, Judge Moritz dissented and explained why the officers were entitled to qualified immunity. Once again, Judge Moritz wrote a separate opinion; this time, however, she wrote that her colleagues improperly rehashed issues and stated her “reservation about the majority’s analytical approach.” One might look at the history of this case and only see the Supreme Court correcting the lower appellate court’s application of the law. I think there is more happening here. The Supreme Court has taken due note of circuit court judges who have written strong dissenting opinions when an appellate court rules against applying qualified immunity. Not only will lawyers for police officers be more confident in seeking qualified immunity, but judges on the losing side of a divided decision have greater motivation to speak out in hopes that the Supreme Court will vindicate their dissenting opinions.
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.