# 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/9822652

## 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 Moritz
- **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)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9822652

## Opinion text

MORITZ, Circuit Judge,
joined by KELLY, HARTZ, GORSUCH, and HOLMES, Circuit Judges, dissenting from the denial of rehearing en bane.
With the issuance of the panel majority’s opinion, the clearly, established .law in this circuit requires an officer who has taken some form of cover to hesitate and call out a warning before using deadly force — even as a suspect points a gun directly at that officer, even as a second suspect is loose and has fired shots near a second officer, and even as a third officer has already shot and missed the suspect pointing the gun at the first officer. The majority acknowledges the Court’s admonitions against second-guessing officers’ split-second judgments and' defining clearly established law at a high level of generality. But then it flouts them, first by finding Officer White’s use of deadly force objectively unreasonable, and second by finding his actions violated - clearly established law. The majority’s fundamentally flawed decision doesn’t just violate existing precedent; it creates new precedent with potentially deadly ramifications for law enforcement officers in this circuit.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9822652. Public record. Not legal advice.