On January 9, 2017, the U.S. Supreme Court released a per curiam decision in White v. Pauly, which is not only significant in determining police officer liability, but is also instructive to lower courts on the proper standard for defining what constitutes “clearly established law” in the context of a civil rights lawsuit. The facts of the case center on a 911 call by two women reporting a potential drunk-driving motorist.
The women callers followed the vehicle and were noticed by the vehicle’s operator. At some point there was a brief, non-violent roadside encounter after which the motorist, Daniel Pauly, left the area and drove a short distance to his home where he lived with his brother, Samuel Pauly. The women’s 911 call was eventually responded to by an officer who arrived at the off-ramp where the non-violent confrontation took place.
The officer was later joined by two other officers. After talking with the women and conferring among themselves, the officers decided that there was not enough probable cause to arrest Daniel. However, two of the officers decided to go to the Pauly home, located less than a half-mile away, to talk with Daniel as part of their continuing investigation. The trial record indicated there were three reasons for the officers’ decision to speak with Daniel: one, to get his side of the story; two, to ensure “nothing else happened”; and three, to determine if he was intoxicated. The third officer, Ray White, initially stayed behind with the women in case Daniel returned.
The two officers, Truesdale and Mariscal, arrived at the designated address for Pauly and found two houses on the property. The area was secluded and the first house was unlit, but the second house, located on a hill, had lights on. The officers covertly approached the second house, found Daniel’s truck parked there and observed two men moving around inside the house. They radioed White that they located the truck and he left the off-ramp to join them.
At some point the Paulys became aware someone was moving around outside the house and yelled out “Who are you?” and “What do you want?” The officers’ response was to laugh and then state: “Hey (expletive), we got you surrounded. Come out or we’re coming in.” It was after this statement that Truesdale announced they were police and demanded the occupants to open the door. Mariscal also yelled for them to open the door. The Pauly brothers heard the yelling and the words “we’re coming in,” but according to trial testimony, neither heard the officers identify themselves as police. The brothers armed themselves with guns and yelled back to the officers that they were armed.
Meanwhile, White arrived on scene. While approaching the house, he heard one of the brothers state, “We have guns.” White then drew his firearm and took cover 50 feet from the front of the house. Daniel stepped part way out of a back door and fired his shotgun twice. His brother Samuel followed a few seconds later by opening the front window and pointing a handgun in White’s direction. Mariscal fired and missed, but White shot “four to five seconds later” and killed Samuel.
Excessive use of force
The resulting excessive use of force lawsuit under the federal civil rights statute, 42 USC §1983, centered on the fact that White did not issue a warning prior to firing his weapon. The officer’s motion for summary judgment based on qualified immunity was denied by the district court. White had argued that his use of force did not violate the Fourth Amendment and there was no clearly established law favoring Pauly’s right to be free from deadly physical force. The 10th Circuit Court of Appeals sided with the district court and held that a jury could have concluded White’s use of force was not reasonable. Furthermore, the 10th Circuit held that a reasonable officer in a similar position would believe a warning was required prior to the use of deadly force and this was clearly established law at the time.
The U.S. Supreme Court vacated the circuit court and remanded the case to the district court for further proceedings after deciding the circuit court misunderstood the “clearly established law” analysis. The significance of this case is the U.S. Supreme Court’s instruction to lower courts regarding the proper standard for determining if a law is “clearly established.”
Qualified immunity
Since qualified immunity is an important defense that is lost once a case is allowed to go to trial, the U.S. Supreme Court warned against lower courts applying a general level of analysis. For instance, the per curiam opinion noted that both Tennessee v. Garner and Graham v. Connor express only general principles of law which do not “by themselves create clearly established law outside an ‘obvious case’.”
Instead, reviewing courts have to consider the particularized facts of the case. The danger in not doing so is the creation of potentially limitless liability claims. A civil rights plaintiff cannot rely on general statements of the law announced in prior court decisions; rather the complaint must be based on a particular legal rule or principle applied to the situation the officer faced. While this decision does not foreclose civil rights lawsuits against the police, it does more narrowly proscribe certain use of force claims and place a greater pleading burden upon a plaintiff in order to overcome a qualified immunity defense. However, it should be noted that the decision applies only to the qualified immunity defense asserted by White and not to the other two officers.
In the 2009 case of Pearson v. Callahan the U.S. Supreme Court, through Justice Alito, stated: “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson, also coincidentally on appeal from the Tenth Circuit, limited the prior two-step Saucier v. Katz inquiry used by lower courts to determine whether qualified immunity applied. Since the Pearson case the U.S. Supreme Court has issued opinions in at least six cases directly on the issue of qualified immunity (with four of them issued during 2012).
The bottom line in each case was a finding in favor of qualified immunity. The U.S. Supreme Court has been steadily sharpening the focus on what is considered “clearly established law.” Justice White wrote in Malley v. Briggs, 465 U.S. 335, 341 (1986),”[A]s the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” The White v. Pauly decision continues a line of U.S. Supreme Court cases since 2009 instructing lower courts to more carefully consider decisions denying police officer qualified immunity defenses.
