# Pauly v. White

> Court of Appeals for the Tenth Circuit · April 11, 2016 · 817 F.3d 715

URL: https://www.frixlaw.com/law-library/cases/9822651

## Case

- **Full name:** Daniel T. PAULY, as Personal Representative of the Estate of Samuel Pauly, Deceased; Daniel B. Pauly, Plaintiffs-Appellees, v. Ray WHITE; Michael Mariscal; Kevin Truesdale, Defendants-Appellants, and State of New Mexico Department of Public Safety, Defendant
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** April 11, 2016
- **Citations:** 817 F.3d 715; 2016 U.S. App. LEXIS 6871; 2016 WL 1425887
- **Precedential status:** Published
- **Opinion:** Dissent by Hartz
- **Judges:** Tymkovlch, Kelly, Briscoe, Lucero, Hartz, Gorsuch, Holmes, Matheson, Bacharach, Phillips, McHugh, Moritz
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9822651

## Opinion text

HARTZ, Circuit Judge,
joined by GORSUCH, Circuit Judge, dissenting from the denial of rehearing en banc:
I join Judge Moritz’s dissent. It is not disputed that shortly after Officer White approached the home, an' occupant fired two shots to ward off two of White’s fellow officers. I am unaware of any clearly established law that suggests, much less requires, that an officer in that circumstance 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, hoping that no one will be aiming in his direction when he decides to look around or move. 1 *719 Perhaps the Supreme Court can clarify the governing law.
I express no view on whether White’s fellow officers are entitled to qualified immunity on this record.
. The Supreme Court has "stressed that a court must judge the reasonableness of the force used from the perspective and with the knowledge of the defendant officer.” Kingsley v. Hendrickson, - U.S. -, 135 S.Ct. 2466, 2474 , 192 L.Ed.2d 416 (2015) (internal quotation marks omitted). And “in addition to the deference officers receive on the underlying constitutional claim, qualified immunity . can apply in the event [a] mistaken belief was reasonable,” Saucier v. Katz, 533 U.S. 194 , 206, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001), whether the error was "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact,” Pearson v. Callahan, 555 U.S. 223, 231 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (20Ó9) (internal quotation marks omitted). The reasonable beliefs of the victim are, of course, not the issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9822651. Public record. Not legal advice.