Larry E. Holtz, Esq.
DEADLY FORCE: AN OFFICER’S FAILURE TO SHOUT A WARNING
In its first decision of 2017, the U.S. Supreme Court renders a determination regarding qualified immunity in a police shooting case.
Recently, in White v. Pauly, 137 S.Ct. 548 (2017), the United States Supreme Court addressed “the situation of an officer who – having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers – shoots and kills an armed occupant of the house without first giving a warning.”
The Facts: Daniel Pauly was involved in a “road rage incident on a highway near Santa Fe, New Mexico. It was in the evening and it was raining. The two women involved called 911 to report Daniel as a ‘drunk driver’ who was ‘swerving all crazy.’ ” The two women then followed Daniel down the highway, close behind him with their bright lights on. “Daniel, feeling threatened, pulled his truck over at an off ramp to confront them. After a brief, nonviolent encounter, Daniel drove a short distance to a secluded house where he lived with his brother, Samuel Pauly.”
Sometime between 9:00 p.m. and 10:00 p.m., Officer Truesdale was dispatched to respond to the women’s 911 call. Truesdale interviewed the two women at the off ramp. The women told the officer that Daniel had been driving recklessly and provided his license plate number. The police dispatcher identified the plate as being registered to the Pauly brothers’ address.
“After the women left, Officer Truesdale was joined at the off ramp by Officers Ray White and Michael Mariscal. The three agreed there was insufficient probable cause to arrest Daniel. Still, the officers decided to speak with Daniel to (1) get his side of the story, (2) ‘make sure nothing else happened,’ and (3) find out if he was intoxicated. The officers split up. White stayed at the off ramp in case Daniel returned. Truesdale and Mariscal drove in separate patrol cars to the Pauly brothers’ address, less than a half mile away.”
When Officers Mariscal and Truesdale arrived at the address, they noticed the lights on in the house and “approached it in a covert manner to maintain officer safety. Both used their flashlights in an intermittent manner.” Upon reaching the house, the officers noticed Daniel’s truck and spotted two men moving around inside the home. Truesdale and Mariscal then radioed Officer White, who left the off ramp to join them.
“At approximately 11:00 p.m., the Pauly brothers became aware of the officers’ presence and yelled out ‘Who are you?’ and ‘What do you want?’ In response, Officers Mariscal and Truesdale laughed and responded, ‘Hey, [expletive], we got you surrounded. Come out or we’re coming in.’ Truesdale shouted once, ‘Open the door, state police, open the door.’ Mariscal also yelled, ‘Open the door, open the door.’ ”
The Pauly brothers heard someone yelling, “We’re coming in,” but claim that they did not hear the officers identify themselves as state police. The brothers armed themselves, Samuel
with a handgun and Daniel with a shotgun. “One of the brothers yelled at the police officers that ‘We have guns.’ The officers saw someone run to the back of the house, so Officer Truesdale positioned himself behind the house and shouted, ‘Open the door, come outside.’ ”
When Officer White arrived on the scene, he heard shouting coming from the 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.”
Seconds after the “We have guns” statement, “Daniel 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.”
Samuel’s estate and Daniel sued the officers, claiming that the officers were liable under 42 U.S.C. §1983 for violating Samuel’s Fourth Amendment right to be free from excessive force. All three officers moved for summary judgment on qualified immunity grounds.
On appeal from a denial of qualified immunity, the Tenth Circuit Court of Appeals determined that a reasonable officer in White’s position would have believed that a warning was required despite the threat of serious harm, and that such requirement was “clearly established at the time of Samuel’s death. According to that court, “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.” The United States Supreme Court disagreed, holding that “Officer White did not violate clearly established law.”
The Law: “Qualified immunity attaches when an official’s conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” While the United States Supreme Court’s case law does not require a case “directly on point” for a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Stated another way, “immunity protects all but the plainly incompetent or those who knowingly violate the law.”
In the court below, the Tenth Circuit “misunderstood the ‘clearly established’ analysis: It failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment. Instead, the majority relied on Graham v. Connor, 109 S.Ct. 1865 (1989), and Tennessee v. Garner, 105 S.Ct. 1694 (1985), and their Court of Appeals progeny, which lay out excessive force principles at only a general level.” But, “in the light of preexisting law, the unlawfulness must be apparent.” Thus, Garner and Graham “do not by themselves create clearly established law outside an obvious case.” Those cases simply stand for the general proposition that (1) “the reasonableness of an officer’s use of force depends, in part, on whether the officer was in danger at the precise moment that he used force” and (2) “if the suspect threatens the officer with a weapon[,] deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”
According to the United States Supreme Court, this is “not a case where it [was] obvious that there was a violation of clearly established law under Garner and Graham.” The court did not conclude that Officer White’s conduct – such as his failure to shout a warning – constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene. This alone should have been an important indication that White’s conduct did not violate a “clearly established” right. “Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed. 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.”
Accordingly, in the facts presented, “Officer White did not violate clearly established law.”
Larry E. Holtz has served as a Detective Sergeant with the Atlantic City, New Jersey, Police Department; a Deputy Attorney General for the state of New Jersey; and an Assistant County Prosecutor. Mr. Holtz is a certified police trainer and teaches on a regular basis. He is a member of the bar in New Jersey, Pennsylvania, and the District of Columbia and is admitted to practice before the federal bar in the District of New Jersey and the Third Circuit.