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Monday, January 09, 2017

Shorter White v. Pauly

Unless an officer walks up to an unarmed man and shoots him in the head while shouting that he knows the victim was not a threat, stop denying police officers summary judgment in excessive force cases.

Posted by Howard Wasserman on January 9, 2017 at 04:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Cities already can be sued for improper training, etc. (See again, Baltimore which paid millions in settlement, U of Cincinnati paid millions in settlement.)
Respondeat superior allows for boss to be sued even if the boss did nothing wrong.

Posted by: biff | Jan 10, 2017 10:44:56 PM

The better solution to the problem of qualified immunity is not its abolition; it is respondeat superior liability, wrongly foreclosed in Monell. Let plaintiffs victimized by unconstitutional conduct sue the city or county without having to prove official policy to violate the constitution, a custom or usage of unconstitutional conduct equivalent to a policy, or deliberate indifference to a known risk in hiring, training, supervising or retaining individual officers. Clear away the kudzu of qualified immunity law by placing responsibility where it belongs -- on the entity that employs and clothes with authority the wrongdoer. That would make liability turn on whether the particular officers violated the fourth amendment, not whether clearly established law warned them at the time they acted that they were doing so, and would incentivize cities and counties to train and supervise those to whom they entrust the power to use deadly force in their name.

Posted by: Michael R. Masinter, Nova Southeastern University College of Law | Jan 10, 2017 5:17:14 PM

Seek and ye shall find, I guess: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/10/is-it-time-to-hold-police-officers-accountable-for-constitutional-violations/

Kudos to Will Baude.

Posted by: brad | Jan 10, 2017 1:43:24 PM

Whither the conservative complaints about judicial activism when it comes to qualified immunity? I can't find that phrase anywhere in the law passed by Congress and signed into law by President Ulysses S. Grant on Apr. 20, 1871.

Posted by: brad | Jan 10, 2017 1:10:31 PM

Although some comments seem concerned with the fact that Officers White and Mariscal taken cover behind a pickup truck and a fence, respectively, perhaps it is worth explaining why this impressed no member of the Court. Officer White did not fire until Daniel Pauly had fired two shotgun blasts (apparently he could not tell in what direction they had been fired), Samuel Pauly had pointed a handgun at Officer White, and Officer Mariscal had then fired at Samuel and missed. To be sure, cover was available to the officers, but as it happens, sometimes suspects fire even at officers who have taken cover, sometimes even when the officers are 50 feet away (there does not seem to be a rule in the Tenth Circuit that you can't fire at an armed and dangerous suspect who is more than 50 feet away), and sometimes the shots that suspects may fire at officers who have taken cover hit innocent bystanders, or even ricochet unpredictably and then strike an officer who has taken cover, or another who may be arriving at the scene of the exigency and who is not yet aware of all of the relevant circumstances. Officer White might have reasonably concluded that the fact that the officers had taken cover did not eliminate the threat posed by Samuel Pauly, and that a request that the suspects put down their weapons and surrender would have been futile, and/or might have already been made by the other officers on the scene before Officer White arrived. Surely he was not required to assume that Officer Mariscal had acted improperly by firing at Samuel Pauly before he did the same. Perhaps other decisions by Officer White under the circumstances would have been reasonable as well, but qualified immunity is supposed to prevent this kind of second-guessing.

Posted by: Lawrence E Rosenthal | Jan 10, 2017 12:50:54 PM

I think it is quite relevent that, in the light most favorable to the non-moving party, neither the killer nor his co-conspirators ever identified themselves as police officers.

The Court says that a reasonable police officer would have thought his fellow police officers followed correct procedures. That's naive at best. A reasonable police officers would have observed his fellow officers abuse their positions many many times over the course of a career.

Posted by: brad | Jan 10, 2017 12:31:57 PM

"Given all this, I'm a little surprised that no one dissented."

I am since the Supreme Court doesn't just deal with individual matters but sets forth rules of law that covers others as well. We can find numerous cases with bad facts among the thousands decided below. But, the case here does more than deal with one of them. It (in ways subject to some discussion by current scholarship) sends certain messages and guidance that will affect other cases too. Justices on both sides have used this to send up red flags even if they might given their druthers on a specific case simply went along.

I sympathize with your bad headache but also note that the federal judges below disagreed with you. Now, they very well might have been wrong, but unsure how -- among the thousands of possible options of the tiny number of cases this Court takes -- this one case deserved to be singled out.

The fact laden nature of the case concerns me too. It does help clarify what exactly the justices was concerned about, but fact laden details should be the concern of the lower courts. They will be wrong sometimes, but they should be very wrong before they are singled out for review like this, noting too that the "reasonable jury" very well might have simply decided for the officers ultimately anyway in such cases.

Posted by: Joe | Jan 10, 2017 12:29:36 PM

biff quoted "just a tad" of my comment

Posted by: Joe | Jan 10, 2017 12:20:26 PM

Brad can speak for himself, but I think Brad is probably suggesting that the *Court's* recitation of the facts is selective, not that Professor Rosenthal's block-quote of the Court's recitation of the facts is selective. Reading the Court's facts, one would struggle to imagine how the Tenth Circuit managed to rule in plaintiffs' favor. It seems the Tenth Circuit relied on the following facts, which, though not entirely absent from the Court's opinion (though some are), aren't seriously grappled with by the Court. I apologize in advance if this is a little incoherent; I have a bad headache.

(1) White was behind a stone wall when Samuel Pauly pointed his weapon in White, and the Court of Appeals said that viewing the record in the light most favorable to plaintiffs, White was completely protected by that wall.

(2) Mariscal was protected by the pickup truck.

(3) Neither White nor Mariscal, then, were in immediate danger, absent Pauly leaving the house and reaching some point from which he could shoot White or Mariscal, or absent White or Mariscal departing from theirdefensive positions. (That's a "fact" in the Court of Appeals' opinion.) The Court mentions White's location in its discussion of the facts, has a sentence in its discussion of the opinion below where it acknowledges that the Court of Appeals based its decision on White's safety, but never explains why, under Graham, Garner, or circuit precedent, it's not clearly unreasonable for an officer who's completely protected from immediate danger to defensively shoot the person threatening him, even though Graham, according to the Court of Appeals, does say that the immediacy of danger to officers is critical.

(4) White never asked Pauly to put down his weapon. Under circuit precedent, whether officers ask someone to drop their weapon before shooting them was one of four key factors that bear on the degree of threat an officer faces. Whether that makes sense as a reading of Garner/Graham or not is a question on which I take no position, but I take it that circuit precedent can clearly establish the law. The Court's opinion, however, makes it sound like the Court of Appeals invented an "ask them to put down their weapon before shooting if you're safe" rule in this case ("The court concluded that a reasonable officer in White’s position would have known that, since the Paulys could not have shot him unless he moved from his position behind a stone wall, he could not have used deadly force without first warning Samuel Pauly to drop his weapon.") Actually, whether an officer asked or didn't ask a person to drop their weapon before shooting them has been a key factor under circuit precedent since 2008. The only mention of circuit precedent in the Court's opinion is in a sentence that claims the panel "relied on Graham, Garner, and their Court of Appeals progeny, which - as noted above - lay out excessive-force principles at only a general level." But actually, the Court never "noted above" that Graham/Garner's "Court of Appeals progeny" lays out excessive-force law at a general level; the Court never cites any of that progeny anywhere in the opinion, and the reality is that it's quite a bit more specific than Graham or Garner.

(5) Pauly was 50 feet away from White; under circuit precedent, distance between the officer and the person he shoots is another of the four key factors that bear on officer threat level. Again, whether that's a correct reading of Garner/Graham, I don't know, but it was circuit precedent.

(6) A reasonable jury could have found, according to the district court, that a reasonable officer would have concluded Pauly had mistaken them for civilian persons connected to a recent road-rage incident, because the officers didn't clearly identify themselves as officers. The Court describes this identification argument as an alternative ground for affirmance on which neither the district court or Tenth Circuit passed, but I'm a little mystified by that because I found a discussion of identification in the majority opinion before I even knew the Court had flagged it as an issue on which the Tenth Circuit supposedly didn't pass. See page 6, where the Court of Appeals actually states as fact that the Pauly brothers thought the police officers were home invaders and intended to call 911 to report their intrusion, pages 10-11, where the Court of Appeals quotes the district court's finding that a reasonable jury could find the police inadequately identified themselves and could find that White could have realized that Pauly had mistaken the officers for intruders getting Pauly back for a road-rage incident earlier that night, and pages 34-35, where the Court of Appeals builds on that finding, in the context of its settled four-factor test for reasonableness in police shootings, to conclude that the apparent intentions of the Paulys (another circuit-precedent factor) didn't cut in White's favor.

Now, here I find the Court of Appeals' opinion unpersuasive, as the argument seems to be that because Pauly could lawfully defend his home against home invaders, it's therefore unreasonable, or at least less reasonable, for an officer to protect himself from Pauly and his mistaken beliefs about who the officers were. I don't see why an officer can't protect himself from real danger however justified someone may be in threatening the officer given their mistaking the officer for someone else. But I do think officer identification bears on the reasonableness of White's conduct, as White shoots Pauly from a protected position through a window 50 feet away, five seconds after Pauly threatens him with his gun, without asking Pauly to drop his weapon or even clarifying that he is a police officer and not an intruder.

Given all this, I'm a little surprised that no one dissented.

Posted by: Asher Steinberg | Jan 10, 2017 12:55:05 AM

Orin, Although I don't think Larry's quote misrepresents the case, two points don't come through:

1. The lower court noted that "the Paulys could not have shot [Officer White] unless he moved from his position behind a stone wall." So I don't know that the characterization "threatened his life" is 100% fair.

2. There's a strong suggestion that White's colleagues "did not adequately alert the Paulys that they were police officers." While the Court states, "No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here," the possibility that this guy was killed without knowing that the people stalking and shooting at him were police officers is what makes the case so disturbing. (And I don't know that the quoted facts support the characterization of Pauly shooting "at police officers.")

Posted by: MW | Jan 9, 2017 11:41:52 PM

Brad, I believe that what you call a "rather selective recitation of the facts" consists of the two relevant paragraphs from the fact section cut-and-pasted in their entirety from the per curiam opinion. If I'm not mistaken, the only parts he left out are the citations to the record and lower court opinion. Can you say more about why you think that isn't a fair description of the facts?

Posted by: Orin Kerr | Jan 9, 2017 11:02:45 PM


In the Freddie Gray incident, one of the officers charged was also "Sgt. White." She happens to be black, but, still, "symbolism."

Posted by: biff | Jan 9, 2017 10:44:54 PM

A rather selective recitation of the facts, I would say.

Posted by: Brad | Jan 9, 2017 9:54:50 PM

Larry, it's pretty outrageous of you to mention the facts.

Posted by: Orin Kerr | Jan 9, 2017 8:33:47 PM

The Court granted Officer White qualified immunity on the claim made on behalf of the decedent, Samuel Pauly, on these facts:

Officer White had parked at the first house and was walking up to its front door when he heard shouting from the second house. He half-jogged, half-walked to the Paulys’ house, arriving “just as one of the brothers said: ‘We have guns.’” When White heard that statement, he drew his gun and took cover behind a stone wall 50 feet from the front of the house. Officer Mariscal took cover behind a pickup truck. Just “a few seconds” after the “We have guns” statement, Daniel [Pauly] stepped part way out of the back door and fired two shotgun blasts while screaming loudly. A few seconds after those shots, Samuel opened the front window and pointed a handgun in Officer White’s direction. Officer Mariscal fired immediately at Samuel but missed. “‘Four to five seconds’” later, White shot and killed Samuel.

One might therefore restate the holding a bit -- when a police officer arrives at a location and observes an individual within a residence shoot at police officers, then observes another individual in the same residence point a gun at the officers, and then observes another officer already on the scene fire at that individual, the officer is entitled to qualified immunity if he then shoots at the individual who has threatened his life a few seconds earlier, and who the officer has ample reason to believe is armed and dangerous.

Larry Rosenthal

Posted by: Larry Rosenthal | Jan 9, 2017 6:37:46 PM

The possible alternative grounds of relief might have helped (see RBG's concurrence) but I agree with brad. The opinion cited the societal value of immunity. There is also a value of letting a judge or jury decide if a death is unreasonable. Note the victim appears to be white but a case about "Officer White" killing someone is a just a tad symbolic.

Posted by: Joe | Jan 9, 2017 6:17:56 PM

Disappointing unanimity, especially given that this is all judge made law.

Posted by: brad | Jan 9, 2017 5:37:06 PM

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