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Supreme Court Warns Circuits on Qualified Immunity

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By Casey C. Sullivan, Esq. on January 09, 2017 2:30 PM

The Supreme Court's first opinion of 2017 was released today, a summary ruling in case involving a New Mexico police officer who shot and killed a gun-wielding man without giving a prior warning. Reversing the Tenth Circuit, the Supreme Court found that the officer's behavior violated no clearly established constitutional rights and thus he was entitled to qualified immunity.

The brief, per curiam opinion also contained a warning to the Tenth and other circuits: stick to the narrow confines of clearly established law in qualified immunity cases or risk being overturned.

From Road Rage to a Shoot Out

The case, White v. Pauly, arose out of a "road rage" incident near Santa Fe, New Mexico. Police received a call from two women, saying that Daniel Pauly was driving drunk and "swerving all crazy" on the highway. The two women followed Pauly and the trio got into a "brief, nonviolent encounter" on an off-ramp, then Pauly proceeded to his house, where he lived with his brother, Samuel.

Two officers, Michael Mariscal and Kevin Truesdale, went to speak with him there, while officer Ray White remained on the on ramp for the time being. According to the facts most favorable to the Paulys, Mariscal and Truesdale approached their house "covertly," in the dark and with only intermittent flashlight use, before yelling, as the Court puts it, "Hey, (expletive), we got you surrounded. Come out or we're coming in."

The brothers say they never heard the officers identify themselves as police.

Officer White arrived as one of the brothers yelled "we have guns." White hid behind a stone wall outside the house, while Daniel Pauly fired two shotgun blasts. Seconds later, Samuel pointed a handgun out the front window, in White's direction. White shot, killing him.

Reemphasizing Clearly Established Law

Samuel Pauly's estate sued, alleging that the officers had violated Samuel's Fourth Amendment right to be free from excessive force. The district court and Tenth Circuit both rejected the officers' qualified immunity arguments. Qualified immunity insulates public officials from suit so long as their actions do not violate "clearly established statutory or constitutional rights of which a reasonable person should have known."

After considering the case in conference five times, the Court summarily rejected the Tenth Circuit's ruling. In finding that the officers weren't entitled to qualified immunity, the Tenth had relied on the Supreme Court's opinions in Tennessee v. Garner and Graham v. Connor. In those cases, the Court held that, before deadly force is used and were feasible, warning must be given.

Officers Mariscal and Truesdale should have known that their conduct could force the Paulys to defend their property, the Tenth reasoned, and a jury could have found that White was required to warn the Paulys before firing.

But Graham and Garner, the Supreme Court explained, "lay out excessive-force principles at only a general level." Thus, by themselves they create no clearly established law "outside an obvious case." Here, there was no clearly established requirement for White to presume regular procedures hadn't been followed or to second-guess the earlier steps of his previously-arrived partners -- that is, to repeat a warning he could have assumed the other two had already given.

A Warning to Other Circuits

Belying some annoyance, the Court noted that it had "issued a number of opinions reversing federal courts in qualified immunity cases" in recent years. It pointed to San Francisco v. Sheehan as an example. There, the Court reversed the Ninth Circuit, finding that officers who shot a mentally disabled woman were covered by qualified immunity, as there was no clearly established law requiring them to accommodate her mental illness.

"Today, it is again necessary to reiterate the longstanding principle that 'clearly established law' should not be defined 'at a high level of generality,'" the Court wrote. "As this Court explained decades ago, the clearly established law must be 'particularized' to the facts of the case."

Here, there was no such particularization, no identification of cases involving similar circumstances. Instead, there were simply the principles of Graham, Garner, and the Tenth's own precedents -- too general and abstract to establish a clear law.

That isn't the end of things, however. As Justice Ginsburg explained in a brief concurrence, today's opinion does not foreclose the denial of summary judgment to the other two officers. The Court further noted that Pauly had argued that if White witnessed his fellow officers' "deficient performance," he should have known to take corrective action. As the argument wasn't addressed by the lower courts, the Supreme Court took no position on whether there was enough clearly established law to mandate such a response from White.

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