White v. Pauly

Cite as: 580 U. S. ____ (2017) 1

Per Curiam

SUPREME COURT OF THE UNITED STATES

RAY WHITE, ET AL. v. DANIEL T. PAULY, AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF SAMUEL

PAULY, DECEASED ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 16–67. Decided January 9, 2017

PER CURIAM.

This case addresses 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.

According to the District Court and the Court of Ap-

peals, the record, when viewed in the light most favorable

to respondents, shows the following. Respondent Daniel

Pauly was involved in a road-rage incident on a highway

near Santa Fe, New Mexico. 814 F. 3d 1060, 1064–1065

(CA10 2016). 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.’ ” Id., at

1065. The women then followed Daniel down the high-

way, close behind him and with their bright lights on.

Daniel, feeling threatened, pulled his truck over at an off-

ramp to confront them. After a brief, nonviolent encoun-

ter, Daniel drove a short distance to a secluded house

where he lived with his brother, Samuel Pauly.

Sometime between 9 p.m. and 10 p.m., Officer Kevin

Truesdale was dispatched to respond to the women’s 911

call. Truesdale, arriving after Daniel had already left the

scene, interviewed the two women at the off-ramp. The

women told Truesdale that Daniel had been driving reck-

lessly and gave his license plate number to Truesdale.

2 WHITE v. PAULY

Per Curiam

The state 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 intoxi-

cated. Id., at 1065. 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 broth-

ers’ address, less than a half mile away. Record 215.

Neither officer turned on his flashing lights.

When Officers Mariscal and Truesdale arrived at the

address they had received from the dispatcher, they found

two different houses, the first with no lights on inside and

a second one behind it on a hill. Id., at 217, 246. Lights

were on in the second one. The officers parked their cars

near the first house. They examined a vehicle parked near

that house but did not find Daniel’s truck. Id., at 310.

Officers Mariscal and Truesdale noticed the lights on in

the second house and approached it in a covert manner to

maintain officer safety. Both used their flashlights in an

intermittent manner. Truesdale alone turned on his

flashlight once they got close to the house’s front door.

Upon reaching the house, the officers found Daniel’s

pickup truck and spotted two men moving around inside

the residence. Truesdale and Mariscal radioed White, who

left the off-ramp to join them.

At approximately 11 p.m., the Pauly brothers became

aware of the officers’ presence and yelled out “ ‘Who are

you?’ ” and “ ‘What do you want?’ ” 814 F. 3d, at 1066. In

response, Officers Mariscal and Truesdale laughed and

responded: “ ‘Hey, (expletive), we got you surrounded.

Come out or we’re coming in.’ ” Ibid. Truesdale shouted

once: “ ‘Open the door, State Police, open the door.’ ” Ibid.

Cite as: 580 U. S. ____ (2017) 3

Per Curiam

Mariscal also yelled: “ ‘Open the door, open the door.’ ”

Ibid.

The Pauly brothers heard someone yelling, “ ‘We’re

coming in. We’re coming in.’ ” Ibid. Neither Samuel nor

Daniel heard the officers identify themselves as state

police. Record 81–82. 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.’ ” 814 F. 3d, at 1066. 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.’ ” Ibid.

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.’ ” Ibid.; see also Civ. No. 12–1311 (D NM,

Feb. 5, 2014), App. to Pet. for Cert. 75–78. 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” state-

ment, Daniel stepped part way out of the back door and

fired two shotgun blasts while screaming loudly. 814

F. 3d, at 1066–1067. A few seconds after those shots,

Samuel opened the front window and pointed a handgun

in Officer White’s direction. Officer Mariscal fired imme-

diately at Samuel but missed. “ ‘Four to five seconds’ ”

later, White shot and killed Samuel. Id., at 1067.

The District Court denied the officers’ motions for sum-

mary judgment, and the facts are viewed in the light most

favorable to the Paulys. Mullenix v. Luna, 577 U. S. ___,

___, n. (2015) (per curiam) (slip op., at 2, n.). Because this

case concerns the defense of qualified immunity, however,

the Court considers only the facts that were knowable to

the defendant officers. Kingsley v. Hendrickson, 576 U. S.

4 WHITE v. PAULY

Per Curiam

___, ___ (2015) (slip op., at 9).

Samuel’s estate and Daniel filed suit against, inter alia,

Officers Mariscal, Truesdale, and White. One of the

claims was that the officers were liable under Rev. Stat.

§1979, 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 immun-

ity grounds. White in particular argued that the Pauly

brothers could not show that White’s use of force vio-

lated the Fourth Amendment and, regardless, that Sam-

uel’s Fourth Amendment right to be free from deadly

force under the circumstances of this case was not clearly

established.

The District Court denied qualified immunity. A di-

vided panel of the Court of Appeals for the Tenth Circuit

affirmed. As to Officers Mariscal and Truesdale, the court

held that “[a]ccepting as true plaintiffs’ version of the

facts, a reasonable person in the officers’ position should

have understood their conduct would cause Samuel and

Daniel Pauly to defend their home and could result in the

commission of deadly force against Samuel Pauly by Of-

ficer White.” 814 F. 3d, at 1076. The panel majority

analyzed Officer White’s claim separately from the other

officers because “Officer White did not participate in the

events leading up to the armed confrontation, nor was he

there to hear the other officers ordering the brothers to

‘Come out or we’re coming in.’ ” Ibid. Despite the fact that

“Officer White . . . arrived late on the scene and heard only

‘We have guns’ . . . before taking cover behind a stone

wall,” the majority held that a jury could have concluded

that White’s use of deadly force was not reasonable. Id.,

at 1077, 1082. The majority also decided that this rule—

that a reasonable officer in White’s position would believe

that a warning was required despite the threat of serious

harm—was clearly established at the time of Samuel’s

death. The Court of Appeals’ ruling relied on general

Cite as: 580 U. S. ____ (2017) 5

Per Curiam

statements from this Court’s case law that (1) “the reason-

ableness 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 neces-

sary to prevent escape, and if[,] where feasible, some

warning has been given.” Id., at 1083 (citing, inter alia,

Tennessee v. Garner, 471 U. S. 1 (1985), and Graham v.

Connor, 490 U. S. 386 (1989); emphasis deleted; internal

quotation marks and alterations omitted). 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.

Judge Moritz dissented, contending that the “majority

impermissibly second-guesses” Officer White’s quick

choice to use deadly force. 814 F. 3d, at 1084. Judge

Moritz explained that the majority also erred by defining

the clearly established law at too high a level of generality,

in contravention of this Court’s precedent.

The officers petitioned for rehearing en banc, which 6 of

the 12 judges on the Court of Appeals voted to grant. In a

dissent from denial of rehearing, Judge Hartz noted that

he was “unaware of any clearly established law that sug-

gests . . . 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.”

817 F. 3d 715, 718 (CA10 2016). Judge Hartz expressed

his hope that “the Supreme Court can clarify the govern-

ing law.” Id., at 719.

The officers petitioned for certiorari. The petition is now

granted, and the judgment is vacated: Officer White did

not violate clearly established law on the record described

by the Court of Appeals panel.

6 WHITE v. PAULY

Per Curiam

Qualified immunity attaches when an official’s conduct

“ ‘does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.’ ” Mullenix v. Luna, 577 U. S., at ___–___ (slip op.,

at 4–5). While this Court’s case law “ ‘do[es] 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.’ ” Id., at ___ (slip

op., at 5). In other words, immunity protects “ ‘all but the

plainly incompetent or those who knowingly violate the

law.’ ” Ibid.

In the last five years, this Court has issued a number of

opinions reversing federal courts in qualified immunity

cases. See, e.g., City and County of San Francisco v.

Sheehan, 575 U. S. ___, ___, n. 3 (2015) (slip op., at 10, n.3)

(collecting cases). The Court has found this necessary

both because qualified immunity is important to “ ‘society

as a whole,’ ” ibid., and because as “ ‘an immunity from

suit,’ ” qualified immunity “ ‘is effectively lost if a case is

erroneously permitted to go to trial,’ ” Pearson v. Callahan,

555 U. S. 223, 231 (2009).

Today, it is again necessary to reiterate the longstand-

ing principle that “clearly established law” should not be

defined “at a high level of generality.” Ashcroft v. al-Kidd,

563 U. S. 731, 742 (2011). As this Court explained dec-

ades ago, the clearly established law must be “particular-

ized” to the facts of the case. Anderson v. Creighton, 483

U. S. 635, 640 (1987). Otherwise, “[p]laintiffs would be

able to convert the rule of qualified immunity . . . into a

rule of virtually unqualified liability simply by alleging

violation of extremely abstract rights.” Id., at 639.

The panel majority misunderstood the “clearly estab-

lished” analysis: It failed to identify a case where an of-

ficer acting under similar circumstances as Officer White

was held to have violated the Fourth Amendment. In-

stead, the majority relied on Graham, Garner, and their

Cite as: 580 U. S. ____ (2017) 7

Per Curiam

Court of Appeals progeny, which—as noted above—lay out

excessive-force principles at only a general level. Of

course, “general statements of the law are not inherently

incapable of giving fair and clear warning” to officers,

United States v. Lanier, 520 U. S. 259, 271 (1997), but “in

the light of pre-existing law the unlawfulness must be

apparent,” Anderson v. Creighton, supra, at 640. For that

reason, we have held that Garner and Graham do not

by themselves create clearly established law outside

“an obvious case.” Brosseau v. Haugen, 543 U. S. 194,

199 (2004) (per curiam); see also Plumhoff v. Rickard,

572 U. S. ___, ___ (2014) (slip op., at 13) (emphasiz-

ing that Garner and Graham “are ‘cast at a high level of

generality’ ”).

This is not a case where it is obvious that there was a

violation of clearly established law under Garner and

Graham. Of note, the majority did not conclude that

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. 814 F. 3d, at 1077. This alone should have

been an important indication to the majority that White’s

conduct did not violate a “clearly established” right.

Clearly established federal law does not prohibit a reason-

able officer who arrives late to an ongoing police action in

circumstances like this from assuming that proper proce-

dures, such as officer identification, have already been

followed. No settled Fourth Amendment principle re-

quires that officer to second-guess the earlier steps al-

ready taken by his or her fellow officers in instances like

the one White confronted here.

On the record described by the Court of Appeals, Officer

White did not violate clearly established law. The Court

notes, however, that respondents contend Officer White

arrived on the scene only two minutes after Officers

8 WHITE v. PAULY

Per Curiam

Truesdale and Mariscal and more than three minutes

before Daniel’s shots were fired. On the assumption that

the conduct of Officers Truesdale and Mariscal did not

adequately alert the Paulys that they were police officers,

respondents suggest that a reasonable jury could infer

that White witnessed the other officers’ deficient perfor-

mance and should have realized that corrective action was

necessary before using deadly force. Brief in Opposition

11, 22, n. 5. This Court expresses no position on this

potential alternative ground for affirmance, as it appears

that neither the District Court nor the Court of Appeals

panel addressed it. The Court also expresses no opinion

on the question whether this ground was properly pre-

served or whether—in light of this Court’s holding today—

Officers Truesdale and Mariscal are entitled to qualified

immunity.

For the foregoing reasons, the petition for certiorari is

granted; the judgment of the Court of Appeals is vacated;

and the case is remanded for further proceedings con-

sistent with this opinion.

It is so ordered.

Cite as: 580 U. S. ____ (2017) 1

GINSBURG, J., concurring

SUPREME COURT OF THE UNITED STATES

RAY WHITE, ET AL. v. DANIEL T. PAULY, AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF SAMUEL

PAULY, DECEASED ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 16–67. Decided January 9, 2017

JUSTICE GINSBURG, concurring.

I join the Court’s opinion on the understanding that it

does not foreclose the denial of summary judgment to

Officers Truesdale and Mariscal. See 814 F. 3d 1060,

1068, 1073, 1074 (CA10 2016) (Court of Appeals empha-

sized, repeatedly, that fact disputes exist on question

whether Truesdale and Mariscal “adequately identified

themselves” as police officers before shouting “Come out or

we’re coming in” (internal quotation marks omitted)).

Further, as to Officer White, the Court, as I comprehend

its opinion, leaves open the propriety of denying summary

judgment based on fact disputes over when Officer White

arrived at the scene, what he may have witnessed, and

whether he had adequate time to identify himself and

order Samuel Pauly to drop his weapon before Officer

White shot Pauly. Compare id., at 1080, with ante, at 8.

See also Civ. No. 12–1311 (D NM, Feb. 5, 2014), pp. 7, and

n. 5, 9, App. to Pet. for Cert. 75–76, and n. 5, 77 (suggest-

ing that Officer White may have been on the scene when

Officers Truesdale and Mariscal threatened to invade the

Pauly home).