Pauly Ex Rel. Estate of Pauly v. White ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
February 9, 2016
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
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, No. 14-2035
Defendants-Appellants,
and
STATE OF NEW MEXICO,
DEPARTMENT OF PUBLIC SAFETY,
Defendant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:12-CV-01311-KG-WPL)
Matthew D. Bullock (Mark D. Jarmie on the briefs) of Jarmie & Associates,
Albuquerque, New Mexico, for Defendants-Appellants.
Lee R. Hunt of Lee Hunt Law, LLC, Santa Fe, New Mexico (Daniel J. O’Friel and
Pierre Levy of O’Friel and Levy, P.C., with him on the brief), for Plaintiffs-
Appellees.
Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.
SEYMOUR, Circuit Judge.
On a dark and rainy night in October 2011, Samuel Pauly was shot to death
through the window of his rural New Mexico home by one of three state police
officers investigating an earlier road rage incident on Interstate 25 involving his
brother. On behalf of Samuel Pauly’s estate, his father filed a civil rights action
against the three officers, the State of New Mexico Department of Public Safety,
and two state officials, claiming defendants violated his son’s Fourth Amendment
right against the use of excessive force. 1 The officers moved for summary
judgment, asserting qualified immunity. The district court denied their motions,
and they appeal. We affirm.
I
Background
In reviewing an interlocutory appeal from the denial of qualified immunity,
“we ‘take, as given, the facts that the district court assumed when it denied
summary judgment.’” Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir. 2012)
1
The father also asserted state law claims for negligent training (Count
Two), wrongful death under the New Mexico Tort Claims Act (Count Three), and
violation of New Mexico Constitution, art. II, § 10 (Count Four). Samuel Pauly’s
brother, Daniel Pauly, asserted a claim for loss of consortium (Count Five). The
parties stipulated to dismissal of Count Two. Only the excessive force claim is at
issue in this appeal.
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(quoting Johnson v. Jones, 515 U.S. 304, 319 (1995)). To be sure, “[w]e may
review whether the set of facts identified by the district court is sufficient to
establish a violation of a clearly established constitutional right, but we may not
consider whether the district court correctly identified the set of facts that the
summary judgment record is sufficient to prove.” Id. (internal quotation marks
omitted). When we recite the facts of the case, “we view the evidence in the light
most favorable to the non-moving party.” Weigel v. Broad, 544 F.3d 1143, 1147
(10th Cir. 2008) (internal quotation marks omitted). Accordingly, the following
facts are taken directly from the material facts section in the district court orders
denying qualified immunity, 2 where the court noted that its “recitation of material
facts and reasonable references reflect the Plaintiffs’ version of the facts as
gleaned from the evidence of record and excludes facts, contested or otherwise,
which are not properly before this Court in the motions for summary judgment.”
Aplt. App. at 693.
A. Facts
The incidents underlying this action started the evening of October 4, 2011,
when Daniel Pauly became involved in a road rage incident with two females on
the interstate highway going north from Santa Fe, New Mexico. One of the
2
The district court’s recitation of the facts is identical in the order denying
qualified immunity to Officers Mariscal and Truesdale and the separate order
denying qualified immunity to Officer White. We therefore cite primarily to the
latter order when setting out the facts.
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women called 911 to report a “drunk driver,” claiming the driver was “swerving
all crazy” and turning his lights off and on. Id. at 694. The women then started
to follow Daniel on Interstate 25, apparently tailgating him.
Daniel pulled his truck over at the Glorieta exit, as did the female driver of
the car. Daniel felt threatened by the women and asked them why they were
following him with their bright lights on. During this confrontation one of the
women claimed Daniel was “throwing up gang signs.” Id. He then left the off-
ramp and drove a short distance to the house where he lived with his brother,
Samuel. The house is located in a rural wooded area on a hill behind another
house.
At some point between 9:00 and 10:00 p.m., a state police dispatcher
notified Officer Truesdale about the 911 call. Officer Truesdale proceeded to the
Glorieta off-ramp to speak to the women about the incident. Daniel had already
left when Officer Truesdale arrived on scene. Officers Mariscal and White were
also on their way to the off-ramp to assist Officer Truesdale. The women told
Officer Truesdale that Daniel was driving recklessly. They described his vehicle
as a gray Toyota pickup truck and provided dispatch with his license plate
number. Dispatch notified Officer Truesdale that the Toyota pickup truck was
registered to an address on Firehouse Road near the Glorieta off-ramp.
The women then went on their way, and at that point “any threat to [them]
was over.” Id. at 676. Officers White and Mariscal arrived to join Officer
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Truesdale. The officers all agreed that there was not enough evidence or probable
cause to arrest Daniel, and that no exigent circumstances existed at the time.
Nevertheless, the officers decided to try and speak with Daniel to get his side of
the story, “to make sure nothing else happened,” and to find out if he was
intoxicated. Id. at 677. Officers Truesdale and Mariscal decided they should take
separate patrol units to the Firehouse Road address in Glorieta to see if they could
locate Daniel’s pickup truck. Officer White stayed at the off-ramp in case Daniel
returned. Although it was dark and raining by that time, none of the officers were
wearing raincoats.
Officers Mariscal and Truesdale proceeded to the Firehouse Road address
and parked along the road in front of the main house. Both vehicles had their
headlights on and one vehicle had its takedown lights on, but neither vehicle had
activated its flashing lights. The officers did not see Daniel’s truck at the main
house but behind it they noticed a second house with its lights and porch lights
on. They decided to approach the second house in an attempt to locate Daniel’s
pickup truck. As they walked towards that house, the officers did not activate
their security lights.
To maintain officer safety, Officers Mariscal and Truesdale approached the
second house in a manner such that neither brother knew the officers were at the
property. The officers did not use their flashlights at first, and then only used
them intermittently. Officer Truesdale turned on his flashlight as he got closer to
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the front door of the brothers’ house. Through the front windows, the officers
could see two males moving inside the house. When they located Daniel’s Toyota
pickup truck, they contacted Officer White to so advise him. Officer White then
left to join them.
At roughly 11:00 p.m., the brothers could see “through the front window
two blue LED flashlights, five or seven feet apart, coming towards the house.”
Id. at 678. Daniel could not tell who was holding the flashlight approaching the
house because of the dark and the rain but he feared it could be intruders related
to the prior road rage altercation. “[I]t did not enter Daniel Pauly’s mind that the
figures could have been police officers.” Id. The brothers hollered several times,
“Who are you?” and, “What do you want?” Id. In response, the officers laughed
and said: “Hey, (expletive), we got you surrounded. Come out or we’re coming
in.” Id. Officer Truesdale also shouted once, “Open the door, State Police, open
the door,” while Officer Mariscal stated, “Open the door, open the door.” Id. at
678-79. Daniel did not hear anyone say “State Police” until after the entire
altercation was over. Id.
Fearing for their lives and the safety of their dogs, the brothers decided to
call the police to report the unknown intruders. Before Daniel could call 911,
however, he heard someone yell: “We’re coming in. We’re coming in.” Id. at
679. Believing that an invasion of their home was imminent, Samuel retrieved a
loaded handgun for himself as well as a shotgun and ammunition for Daniel.
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Daniel told his brother he would fire some warning shots while Samuel went back
to the front of the house. One of the brothers then hollered, “We have guns.” Id.
at 679. The officers saw an individual run to the back of the house, so Officer
Truesdale proceeded to position himself towards the rear of the house. He then
shouted, “Open the door, come outside.” Id.
While Officers Truesdale and Mariscal were attempting to get the brothers
to come outside, Officer White arrived at the Firehouse Road address and
approached the house in the back, using his flashlight periodically. He saw
individuals moving inside the house and arrived just as one of the brothers said:
“We have guns.” Id. at 680. Officer White testified in his deposition that when
he heard this statement he immediately drew his weapon and took cover behind a
stone wall fifty feet away from the front of the brothers’ house. Id. at 221; see
also id. at 680. Officer Mariscal also took cover behind a pickup truck, while
Officer Truesdale remained in his position at the back of the house.
Because of the prior threatening statements made by Officer Truesdale and
Mariscal, Daniel did not feel comfortable stepping out of the front door to fire
warning shots. But a few seconds after the officers heard, “We have guns,” id. at
680, Daniel stepped partially out of the back door and fired two warning shots
while screaming loudly to scare anyone off. Officer White thought Officer
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Truesdale had been shot after hearing the two shotgun blasts. 3 A few seconds
after Daniel fired the warning shots, Officer Mariscal and White noticed Samuel
open the front window and point a handgun in Officer White’s direction. Officer
Mariscal testified he immediately shot at Samuel but missed. “Four to five
seconds after Samuel Pauly pointed his handgun at Officer White, Officer White
shot Samuel” from his covered position fifty feet away. Id. at 681. The entire
incident took less than five minutes.
B. Procedural History
Plaintiff Daniel T. Pauly, as the personal representative of the Estate of
Samuel Pauly, filed suit against Officers Mariscal, Truesdale, and White, the
State of New Mexico Department of Public Safety (NMDPS), and two state
officials. He alleged an excessive force claim under 42 U.S.C. § 1983 and several
state law claims. Plaintiffs seek compensatory damages, punitive damages, pre-
and post-judgment interest, and costs and attorneys’ fees on their federal and state
law claims. Relevant here is plaintiff estate’s § 1983 claim against all three
officers for violating Samuel Pauly’s Fourth Amendment right to be free from
excessive force.
All three officers moved for summary judgment and raised the defense of
3
Officer White testified in his deposition that after he heard the shots at the
back of the house, “I believed Officer Truesdale had been shot at that point, being
that I believed he was at the rear of the residence.” Aplt. App. at 223, White dep.
at 137. He also admitted, however, that “I did not hear anything that would
suggest a person had been hit.” Id., White dep. at 139.
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qualified immunity with respect to the § 1983 excessive force claim. Defendants
analyzed the excessive force claim by reviewing the actions of each deputy
individually, not their actions as a whole. They all argued they were entitled to
qualified immunity because plaintiff estate could not show Samuel’s claimed
Fourth Amendment rights were clearly established or violated, and in any event
their actions were objectively reasonable.
Specifically, Officer White asserted that when Samuel pointed the gun in
his direction, any police officer would have reasonably assumed his life was in
danger whether or not Samuel intended to fire, and deadly force was therefore
justified under the totality of the circumstances. He contended it was not feasible
for him to warn Samuel to drop his weapon.
Officer Truesdale argued it was undisputed that he did not fire his weapon
at Samuel Pauly and therefore he could only be liable if his pre-seizure conduct
“created the need for deadly force in this incident through his own reckless,
deliberate conduct” that “was immediately connected to Officer White’s use of
force in self-defense.” Aplt. App. at 359. He then argued that his actions leading
up to the use of force were reasonable and that even if he made mistakes in how
he approached the house, none of his conduct preceding the use of force by
Officer White was reckless or deliberate. He further claimed his actions were not
the but for or proximate cause of Samuel’s death because the brothers’ own
actions were “independent and unexpected intervening events” amounting to a
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superseding cause of death that defeated any liability on his part. Id. at 363-64.
Officer Mariscal argued that when he saw Samuel point the gun at Officer
White, “he was clearly justified in using deadly force in defense of Officer
White’s life.” Id. at 392-93. Like Officer Truesdale, Officer Mariscal contended
that his actions leading up to the use of force were not reckless or deliberate, and
that his pre-seizure conduct was not the but for or proximate cause of Samuel’s
death.
The district court issued two orders, denying summary judgment on all
claims. In its first order, the court denied Officer White qualified immunity,
concluding that “the record contains genuine disputes of material fact regarding
whether the officers’ conduct prior to the shooting of Samuel Pauly was at the
very least reckless and unreasonably precipitated Officer White’s need to shoot
Samuel Pauly.” Id. at 684. Based on the record, the court also determined that
it is disputed whether (1) the Officers adequately identified
themselves, either verbally or by using a flashlight; (2) the brothers
could, nonetheless, see the Officers considering the ambient light and
other light sources; and (3) it was feasible for Officer White to warn
Samuel Pauly before shooting him.
Furthermore, viewing the evidence in the light most favorable to
Plaintiffs, a reasonable jury could find the following: there were no
exigent circumstances requiring the Officers to go to Daniel Pauly’s
house at 11:00 p.m.; Officers Truesdale and Mariscal purposefully
approached the house in a surreptitious manner; despite the porch
light and light from the house, the rain and darkness made it difficult
for the brothers to see who was outside their house; the fact that the
brothers’ house is located in a rural wooded area would have
heightened the brothers’ concern about intruders; the Officers
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provided inadequate police identification by yelling out “State
Police” once; the Officers’ use of a hostile tone in stating, “we got
you surrounded. Come out or we’re coming in” was threatening;
statements by Officers Truesdale and Mariscal of “open the door”
and other statements of “we’re coming in” were, likewise,
threatening; it would have been reasonable for the Officers to
conclude that Daniel Pauly could believe that persons coming up to
his house at 11:00 p.m. were connected to the road rage incident
which had occurred a couple of hours previously; that under these
circumstances, the occupants of the house would feel a need to
defend themselves and their property with the possible use of
firearms; and the incident occurred in less than five minutes.
Id. at 684-85. The court made virtually the same determinations in its separate
order denying qualified immunity to Officers Truesdale and Mariscal. Id. at
703-04.
All officers appeal the denial of their qualified immunity.
II
Jurisdiction
We have jurisdiction under 28 U.S.C. § 1291 to review “all final decisions
of the district courts of the United States.” Generally, “[o]rders denying summary
judgment are . . . not appealable final orders for purposes of 28 U.S.C. § 1291.”
Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013); see also
Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). “The denial of
qualified immunity to a public official, however, is immediately appealable under
the collateral order doctrine to the extent it involves abstract issues of law.”
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Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013); accord Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985) (“[W]e hold that a district court’s denial of a
claim of qualified immunity, to the extent that it turns on an issue of law, is an
appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291
notwithstanding the absence of a final judgment.”). Appealable matters thus
involve “disputes about the substance and clarity of pre-existing law,” not about
“what occurred, or why an action was taken or omitted.” Ortiz v. Jordan, 562
U.S. 180, 190 (2011).
Accordingly, under our limited jurisdiction we may review “‘(1) whether
the facts that the district court ruled a reasonable jury could find would suffice to
show a legal violation, or (2) whether that law was clearly established at the time
of the alleged violation.’” Roosevelt-Hennix, 717 F.3d at 753 (quoting Allstate
Sweeping, LLC v. Black, 706 F.3d 1261, 1266-67 (10th Cir. 2013)). “Ordinarily
speaking, it is only these latter two questions–and not questions about what facts
a jury might reasonably find–that we may consider in appeals from the denial of
qualified immunity at summary judgment.” Lewis v. Tripp, 604 F.3d 1221, 1225
(10th Cir. 2010).
In contrast, we have no interlocutory jurisdiction to review “whether or not
the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones,
515 U.S. 304, 320 (1995). “[T]he Supreme Court [has] indicated that, at the
summary judgment stage at least, it is generally the district court’s exclusive job
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to determine which facts a jury could reasonably find from the evidence presented
to it by the litigants.” Lewis, 604 F.3d at 1225 (citing Jones, 515 U.S. at 313).
Thus, “if a district court concludes that a reasonable jury could find certain
specified facts in favor of the plaintiff, the Supreme Court has indicated that we
usually must take them as true–and do so even if our own de novo review of the
record might suggest otherwise as a matter of law.” Id.; see also Cortez v.
McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (“Our interlocutory jurisdiction
is limited to legal questions drawn from facts that are deemed undisputed for
appellate purposes.”). To the extent the officers raise only issues of law in their
appeals, we have jurisdiction.
III
Applicable Law
A. Section 1983 and Qualified Immunity
Title “42 U.S.C. § 1983 allows an injured person to seek damages against
an individual who has violated his or her federal rights while acting under color
of state law.” Cillo v. City of Greenwood Village, 739 F.3d 451, 459 (10th Cir.
2013). “Individual defendants named in a § 1983 action may raise a defense of
qualified immunity,” id., which “protects ‘government officials performing
discretionary functions’ and shields them from ‘liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional
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rights of which a reasonable person would have known.’” Swanson v. Town of
Mountain View, Colo., 577 F.3d 1196, 1199 (10th Cir. 2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “When a defendant asserts qualified
immunity at summary judgment, the burden shifts to the plaintiff to show that: (1)
the defendant violated a constitutional right and (2) the constitutional right was
clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009);
Pearson v. Callahan, 555 U.S. 223, 232 (2009). “If the plaintiff[s] satisfy[] this
two-part test, ‘the defendant bears the usual burden of a party moving for
summary judgment to show that there are no genuine issues of material fact and
that he or she is entitled to judgment as a matter of law.’” Trask v. Franco, 446
F.3d 1036, 1043 (10th Cir. 2006) (quoting Axson-Flynn v. Johnson, 356 F.3d
1277, 1299 (10th Cir. 2004)).
B. Excessive Force
“We review Fourth Amendment claims of excessive force under a standard
of objective reasonableness, judged from the perspective of a reasonable officer
on the scene.” Tenorio v. Pitzer, 802 F.3d 1160, 1162 (10th Cir. 2015) (citing
Graham v. Conner, 490 U.S. 386, 396-97 (1989)). And “[t]he calculus of
reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments–in circumstances that are tense, uncertain,
and rapidly evolving–about the amount of force that is necessary in a particular
situation.” Id. (quoting Graham, 490 U.S. at 396-97). In Graham, 490 U.S. at
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396, the Supreme Court held “all claims that law enforcement officers have used
excessive force–deadly or not–in the course of an arrest, investigatory stop, or
other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment
and its ‘reasonableness’ standard.”
In an excessive force case such as this, we ask “‘whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.’”
Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1313 (10th Cir. 2009) (quoting
Graham, 490 U.S. at 397). “Determining whether the force used to effect a
particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful
balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interest at stake.”
Graham, 490 U.S. at 396 (internal quotation marks omitted); see also Scott v.
Harris, 550 U.S. 372, 383 (2007) (“[W]e must balance the nature and quality of
the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion.”
(quoting United States v. Place, 462 U.S. 696, 703 (1983))). Indeed, this
balancing test “requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Graham, 490
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U.S. at 396.
“In determining whether an officer’s use of force was excessive, many [of
our] cases have focused solely on the three factors specifically described in
Graham.” Id. (citing Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th
Cir. 2007)). “However, these three factors were not intended to be exclusive, and
the circumstances of a particular case may require the consideration of additional
factors.” Id. When confronted with whether the use of deadly force was
reasonable, we have held that “an officer’s use of that force is reasonable only ‘if
a reasonable officer in Defendants’ position would have had probable cause to
believe that there was a threat of serious physical harm to themselves or others.’” 4
Thomson, 584 F.3d at 1313 (quoting Estate of Larsen, 511 F.3d at 1260); accord
Jiron v. City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2007) (“In other words,
‘[a]n officer’s use of deadly force in self-defense is not constitutionally
unreasonable.’” (quoting Romero v. Bd. of County Comm’rs, 60 F.3d 702, 703-04
(10th Cir. 1995))). Moreover,
In assessing the degree of threat the suspect poses to the officers, we
consider factors that include, but are not limited to: “(1) whether the
officers ordered the suspect to drop his weapon, and the suspect’s
compliance with police commands; (2) whether any hostile motions
were made with the weapon towards the officers; (3) the distance
4
“Deadly force is ‘force that the actor uses with the purpose of causing or
that he knows to create a substantial risk of causing death or serious bodily harm.
Purposefully firing a firearm in the direction of another person . . . constitutes
deadly force.’” Jiron v. City of Lakewood, 392 F.3d 410, 415 n.2 (10th Cir. 2007)
(quoting Ryder v. City of Topeka, 814 F.2d 1412, 1416 n.11 (10th Cir. 1987)).
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separating the officers and the suspect; and (4) the manifest
intentions of the suspect.”
Thomson, 584 F.3d at 1314-15 (quoting Estate of Larsen, 511 F.3d at 1260).
In addition, we have held that “[t]he reasonableness of the use of force
depends not only on whether the officers were in danger at the precise moment
that they used force, but also on whether the officers’ own ‘reckless or deliberate
conduct during the seizure unreasonably created the need to use such force.’”
Jiron, 392 F.3d at 415 (quoting Sevier v. City of Lawrence, Kan., 60 F.3d 695,
699 (10th Cir. 1995)). To be sure, we “consider an officer’s conduct prior to the
suspect’s threat of force if the conduct is ‘immediately connected’ to the suspect’s
threat of force.” Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997) (quoting
Romero, 60 F.3d at 705 n.5); c.f., Tennessee v. Garner, 471 U.S. 1, 8 (1985) (“[I]t
is plain that reasonableness depends on not only when a seizure is made, but also
how it is carried out.”). “Mere negligent actions precipitating a confrontation
would not, of course, be actionable under § 1983.” Sevier, 60 F.3d at 699 & n.7.
We recognize that “officers are sometimes ‘forced to make split-second
judgments’ in uncertain and dangerous circumstances,” and “[w]hat may later
appear to be unnecessary when reviewed from the comfort of a judge’s chambers
may nonetheless be reasonable under the circumstances presented to the officer at
the time.” Phillips v. James, 422 F.3d 1075, 1080 (10th Cir. 2005) (quoting
Graham, 490 U.S. at 395, 396-97). Ultimately, however, “the inquiry is always
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whether, from the perspective of a reasonable officer on the scene, the totality of
the circumstances justified the use of force.” Estate of Larsen, 511 F.3d at 1260.
IV
Discussion
“Although we frequently conduct separate qualified immunity analyses for
different defendants, we have not always done so at the summary judgment stage
of excessive force cases.” Estate of Booker v. Gomez, 745 F.3d 405, 421 (10th
Cir. 2014). Indeed, when appropriate we will consider the officers’ conduct in
the aggregate. See, e.g., Lundstrom v. Romero, 616 F.3d 1108, 1126-27 (10th Cir.
2010); Fisher v. City of Las Cruces, 584 F.3d 888, 895-902 (10th Cir. 2009); York
v. City of Las Cruces, 523 F.3d 1205, 1210-11 (10th Cir. 2008); Weigel v. Broad,
544 F.3d 1143, 1155 (10th Cir. 2008). However, we have also analyzed the
conduct of each officer individually in excessive force cases at the summary
judgment stage. See, e.g., Casey, 509 F.3d at 1282-87; Walker v. City of Orem,
451 F.3d 1139, 1159-61 (10th Cir. 2006); Currier v. Doran, 242 F.3d 905, 919-25
(10th Cir. 2001).
The facts and circumstances of the present case warrant analyzing the
conduct of Officer White separately from the other officers, while considering the
conduct of Officer Mariscal and Truesdale in the aggregate. Accordingly, we will
follow the district court in analyzing the reasonableness of Officers Truesdale’s
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and Mariscal’s actions together in one section, and then the conduct of Officer
White in a separate section.
A. Officers Mariscal and Truesdale
Officers Mariscal and Truesdale argue on appeal that even viewing the
facts found by the district court in the light most favorable to plaintiffs and
accepting them as true, the officers’ actions were objectively reasonable under the
circumstances. Specifically, Officer Mariscal argues a reasonable officer in his
position would have believed Officer White’s life was in danger, and thus his use
of force was objectively reasonable. Officer Truesdale contends that since he was
at the rear of the house when Officer White shot Samuel Pauly, his use of force is
not even at issue. Both Officers claim they cannot be held liable for Officer
White’s objectively reasonable use of force because neither officers’ pre-seizure
conduct was reckless nor the proximate cause of Samuel Pauly’s death.
1. Pre-seizure conduct and proximate cause
“Section 1983 imposes liability on a government official who ‘subjects, or
causes to be subjected, any citizen . . . to the deprivation of any rights.” Martinez
v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012) (quoting 42 U.S.C. § 1983). We
have stated accordingly that “[a]nyone who ‘causes’ any citizen to be subjected to
a constitutional deprivation is also liable.” Trask, 446 F.3d at 1046. “‘The
requisite causal connection is satisfied if the defendant[s] set in motion a series of
events that the defendant[s] knew or reasonably should have known would cause
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others to deprive the plaintiff of his constitutional rights.’” Id. (quoting Snell v.
Tunnell, 920 F.2d 673, 700 (10th Cir. 1990)). To be sure, “[s]ection [1983]
should be read against the background of tort liability that makes a man
responsible for the natural consequences of his actions.” Martinez, 697 F.3d at
1255.
In other words, Officers Mariscal and Truesdale may be held liable if their
conduct immediately preceding the shooting was the but-for cause of Samuel
Pauly’s death, and if Samuel Pauly’s act of pointing a gun at the officers was not
an intervening act that superseded the officers’ liability. “Foreseeable intervening
forces are within the scope of the original risk, and . . . will not supercede the
defendant’s responsibility.” Trask, 446 F.3d at 1047 (internal quotation marks
omitted). Both officers claim they cannot be the proximate cause of Samuel
Pauly’s death, even assuming their pre-seizure conduct was negligent or reckless,
because “neither officer could have foreseen that the two males inside the
residence would suddenly threaten them and open fire,” and “[u]nder the
circumstances, the brothers’ wholly disproportionate and unexpected response
constituted superseding events that relieved” the officers from liability. Aplt. Br.
at 55. We are not persuaded.
Here, taking the facts and reasonable inferences the district court
determined, the brothers were in their home when Officers Truesdale and
Mariscal approached it at night when it was raining and made threatening
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comments about intruding into the home to get the brothers. The Supreme Court
has long recognized–and continues to recognize–the individual’s constitutional
right to use arms to protect his home. See District of Columbia v. Heller, 554
U.S. 570, 628-29 (2008) (striking down a District of Columbia statute prohibiting
the possession of handguns in the home). The Court stated:
[T]he inherent right of self-defense has been central to the Second
Amendment right. The handgun ban amounts to a prohibition of an
entire class of “arms” that is overwhelmingly chosen by American
society for that lawful purpose. The prohibition extends, moreover,
to the home, where the need for defense of self, family, and property
is most acute. Under any of the standards of scrutiny that we have
applied to enumerated constitutional rights, banning from the home
the most preferred firearm in the nation to keep and use for
protection of one’s home and family . . . would fail constitutional
muster.
Heller, 544 U.S. at 628-29 (emphasis added) (footnote, citation, and quotation
marks omitted).
In State v. Boyett, 185 P.3d 355, 358-59 (N.M. 2008), the Supreme Court of
New Mexico reiterated that the “[d]efense of habitation has long been recognized
in New Mexico,” and that “[i]t gives a person the right to use lethal force against
an intruder when such force is necessary to prevent the commission of a felony in
his or her home.” The court explained that “[t]he defense is grounded in the
theory that ‘[t]he home is one of the most important institutions of the state, and
has ever been regarded as a place where a person has a right to stand his [or her]
ground and repel, force by force, to the extent necessary for its protection.’” Id.
-21-
at 359 (second and third alteration in original) (quoting State v. Couch, 193 P.2d
405, 409, (N.M. 1946)). Accordingly, “in every purported defense of habitation,
the use of deadly force is justified only if the defendant reasonably believed that
the commission of a felony in his or her home was immediately at hand and that it
was necessary to kill the intruder to prevent the occurrence.” Id. (citations
omitted).
Significantly, the court in Boyett recognized it had “never held that entry
into the defendant’s home is a prerequisite for the defense. On the contrary, the
seminal New Mexico case on defense of habitation was clear that, in certain
circumstances, it may justify an occupant’s use of lethal force against an intruder
who is outside the home.” Id. (citing State v. Bailey, 198 P. 529, 534 (N.M.
1921)). Relying on Bailey, the court explained that the “defense of habitation
justifies killing an intruder who is assaulting the defendant’s home with the intent
of reaching its occupants and committing a felony against them” precisely
because “[p]rotecting a defendant’s right to prevent forced entry necessitates that
the defense apply when an intruder is outside the home but endeavoring to enter
it.” Id.
The defense is relevant here because, as the district court determined, it is
disputed whether the officers “adequately identified themselves” and whether the
brothers could see the officers outside the lighted house “considering the ambient
light and other light sources.” Aplt. App. at 703. The district court correctly
-22-
pointed out that “[t]he outcome of these factual disputes is material to whether the
brothers knew that State Police Officers were outside their house prior to Officer
White shooting Samuel Pauly.” Id. Because it was objectively reasonable under
the circumstances about which the officers were aware that the brothers might
believe the officers were intruders, a reasonable jury could find that it was
foreseeable the brothers would arm themselves in defense of their home as
permitted by New Mexico state law. Boyett, 185 P.3d at 358-59. Thus, Samuel
Pauly’s act of pointing a gun out the window in defense of his home would not be
an intervening act superseding the liability of the officers.
Our opinion in Trask v. Franco, 446 F.3d 1036, is particularly instructive.
There, state probation officers visited the residence of Carly Bliss and Dale Trask
for a routine probation field inspection of Ms. Bliss. Id. at 1039. The officers
believed Ms. Bliss was still on probation, but her probation had actually been
discharged one month earlier. Id. Nobody answered the probation officers’
knock on the door, but the officers could see movement in the house and believed,
based on a previous statement Ms. Bliss had made to one of the officers about her
abusive relationship with Mr. Trask, that she was afraid to open the door because
of him. Id. at 1040. The probation officers therefore requested police assistance
to provide support during the inspection. When a New Mexico State Police
officer and a sheriff’s deputy arrived, Mr. Trask eventually opened the front door.
Id. He was wearing at least two knives in sheaths on his belt. Id. A lengthy
-23-
search of the residence ensued, and the state police officer arrested Mr. Trask. Id.
Both Ms. Bliss and Mr. Trask brought a § 1983 action against the probation
officers, among others, with Mr. Trask asserting claims for unlawful detention
and arrest. Id. at 1040-41. The district court granted summary judgment to the
probation officers on Mr. Trask’s unlawful detention and arrest claims, finding no
affirmative link between the alleged constitutional deprivations by the state police
officer and the probation officers’ duty to control him. Id. at 1041.
We explained that the probation officers could be held liable if they were
the proximate cause of the harm but that “a superseding cause, as we traditionally
understand it in tort law, relieves a defendant of liability.” Id. at 1046. Thus, the
question was “[w]hether Mr. Trask’s appearance with knives was a superseding
act that limited the probation officers’ liability,” and that depended “upon what
the probation officers reasonably foresaw when they first called for backup.” Id.
at 1046-47. The court held “the record on appeal leaves too much unanswered,
and it is premature without more evidence to discern what the probation officers
reasonably foresaw when they called for backup.” Id. at 1047. Significantly, we
explained:
[T]he reasonable foreseeability of [an intervening act’s occurrence]
is a factor in determining whether the intervening act relieves the
actor from liability for his antecedent [wrongful act], and under the
undisputed facts there is room for reasonable difference of opinion as
to whether such act was [wrongful] or foreseeable, the question
should be left for the jury.
-24-
Id. (second, third, and fourth alteration in original).
Similarly, fact questions remain at a minimum as to whether the officers
here could reasonably foresee that the brothers would defend their home with
deadly force based on the prior circumstances that night and the officers’ conduct
in shouting “we got you surrounded. Come out or we’re coming in.” 5 Thus,
because disputed facts remain concerning whether the officers properly identified
themselves and whether the brothers knew Officers Mariscal and Truesdale were
intruders or state police, summary judgment is not appropriate.
2. Clearly established law
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 207
(2001); Casey, 509 F.3d at 1283-84 (quoting Saucier).
“For a right to be clearly established there must be Tenth Circuit or
Supreme Court precedent close enough on point to make the unlawfulness of the
officers’ actions apparent.” Mascorro v. Billings, 656 F.3d 1198, 1208 (10th Cir.
2011); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (“A Government
5
In United States v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997), the Seventh
Circuit explained that its “jurisprudence interpreting the Fourth Amendment has
long recognized that police encounters at a person’s dwelling in the middle of the
night are especially intrusive,” and that “when a knock at the door comes in the
dead of night, the nature and effect of the intrusion into the privacy of the
dwelling must be examined with the greatest of caution.”
-25-
official’s conduct violates clearly established law when, at the time of the
challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is doing violates that
right.’” (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))); Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (“For a constitutional right to be clearly
established, its contours must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”) (internal quotation marks
omitted). The Supreme Court recently reaffirmed these principles, noting: “We
do not require a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.” Mullenix v. Luna, 136 S.
Ct. 305, 308 (2015) (quoting al-Kidd, 563 U.S. at 741). Indeed, “the dispositive
question is ‘whether the violative nature of particular conduct is clearly
established,” id. (quoting al-Kidd, 563 U.S. at 742) (emphasis added), and “[t]he
inquiry ‘must be undertaken in light of the specific context of the case, not as a
broad general proposition,’” id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (per curiam)).
“The plaintiff is not required to show, however, that the very act in
question previously was held unlawful in order to establish an absence of
qualified immunity.” Weigel, 544 F.3d at 1153 (quoting Cruz v. City of Laramie,
239 F.3d 1183, 1187 (10th Cir. 2001)). “[A] general constitutional rule already
identified in the decisional law may apply with obvious clarity to the specific
-26-
conduct in question, even though the very action in question has not previously
been held unlawful.” Hope, 536 U.S. at 741 (internal quotation marks omitted).
Consequently, “officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Id. “The Hope decision
shifted the qualified immunity analysis from a scavenger hunt for prior cases with
precisely the same facts toward the more relevant inquiry of whether the law put
officials on fair notice that the described conduct was unconstitutional.” Casey,
509 F.3d at 1284 (internal quotations and citations omitted).
This Circuit has adopted a sliding scale to determine when law is clearly
established. Id. “The more obviously egregious the conduct in light of prevailing
constitutional principles, the less specificity is required from prior case law to
clearly establish the violation.” Id. “Thus, when an officer’s violation of the
Fourth Amendment is particularly clear from Graham itself, we do not require a
second decision with greater specificity to clearly establish the law.” Id.
Since at least 2006, it has been clearly established in this circuit that the
requisite causal connection for establishing a Section 1983 violation “is satisfied
if the defendant[s] set in motion a series of events that the defendant[s] knew or
reasonably should have known would cause others to deprive the plaintiff of [his
constitutional rights.” Trask, 446 F.3d at 1046 (alteration in original) (quoting
Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir.1990)). Likewise, it has been
clearly established since 2006 that for an officer to be liable under Section 1983,
-27-
the officer’s conduct must be both a but-for and proximate cause of the plaintiff’s
constitutional harm. Id. Accepting 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 Officer White.
B. Officer White
1. Reasonableness of Officer White’s Conduct
As with Officers Mariscal and Truesdale, our analysis of Officer White’s
qualified immunity claim focuses on whether his actions were “‘objectively
reasonable’ in light of the facts and circumstances confronting [him], without
regard to [his] underlying intent or motivation.” Thomson, 584 F.3d at 1313
(quoting Graham, 490 U.S. at 397). Officer White’s use of deadly force “must be
judged from the perspective of a reasonable officer ‘on the scene,’ who is ‘often
forced to make split-second judgments . . . about the amount of force that is
necessary in a particular situation.” Allen, 119 F.3d at 840 (quoting Graham, 490
U.S. at 396-97).
An officer’s pre-seizure conduct can be part of the reasonableness inquiry,
but only if the officer’s own “reckless or deliberate conduct during the seizure
unreasonably created the need to use such force.” Jiron, 392 F.3d at 415 (quoting
Sevier, 60 F.3d at 699). Officer White did not participate in the events leading up
to the armed confrontation, nor was he there to hear the other officers ordering
-28-
the brothers to “Come out or we’re coming in.” Aplt. App. at 678. Almost
immediately upon Officer White’s arrival, one of the brothers shouted “We have
guns.” The alleged reckless conduct of Officers Mariscal and Truesdale prior to
this point cannot be attributed to Officer White, and accordingly, our analysis
focuses only on the reasonableness of his own conduct.
“The Fourth Amendment permits an officer to use deadly force only if there
is ‘probable cause to believe that there [is] a threat of serious physical harm to
[the officer] or to others.’” Tenorio, 802 F.3d at 1164 (quoting Estate of Larsen,
511 F.3d at 1260). In assessing “the degree of threat” the officer faces, “we
consider a number of non-exclusive factors” that include: “(1) whether the
officers ordered the suspect to drop his weapon, and the suspect’s compliance
with police commands; (2) whether any hostile motions were made with the
weapon towards the officers; (3) the distance separating the officers and the
suspect; and (4) the manifest intentions of the suspect.” Estate of Larson, 511
F.3d at 1260. But these four factors “are only aids in making the ultimate
determination, which is ‘whether from the perspective of a reasonable officer on
the scene, the totality of the circumstances justified the use of force.’” Tenorio,
802 F.3d at 1164 (quoting Estate of Larson, 511 F.3d at 1260). And ultimately,
“[t]he primary focus of our inquiry . . . remains on whether the officer was in
danger at the exact moment of the threat of force.” Medina v. Cram, 252 F.3d
1124, 1132 (10th Cir. 2001) (citing Bella v. Chamberlain, 24 F.3d 1251, 1256 &
-29-
n.7 (10th Cir. 1994); Wilson v. Meeks, 52 F.3d 1547, 1554 (10th Cir. 1995)). 6
We recognize, as the dissent does, that this case presents a unique set of
facts and circumstances, particularly in the case of Officer White who arrived late
on the scene and heard only “We have guns,” Aplt. App. at 680, before taking
cover behind a stone wall fifty feet away from the Pauly’s residence. Therefore,
in accordance with the Supreme Court’s instruction that we review the
reasonableness of Officer White’s actions by balancing “the nature and quality of
the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion,” Scott,
550 U.S. at 383 (quoting Place, 462 U.S. at 703), we will analyze his conduct by
weighing the three non-exclusive factors articulated in Graham, 490 U.S. at 396,
as well as the four factors listed in Estate of Larson, 511 F.3d at 1260, in order to
determine whether a constitutional violation occurred.
Because “[t]he test for reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,” we must pay “careful
attention to the facts and circumstances” of this particular case when assessing the
reasonableness of Officer White’s conduct. Graham, 490 U.S. at 396. Because
6
We have also considered situations in which plaintiffs have alleged that
an officer, by failing to take cover, created the exigency requiring use of force.
See Medina, 252 F.3d at 1132; Quezada v. Cty. of Bernalillo, 944 F.2d 710, 717
(10th Cir. 1991). We concluded that officers are not required to take cover when
they are faced with a deadly threat. Here, however, Officers White and Mariscal
did take cover, before they were faced with any imminent harm.
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“there is no easy-to-apply legal test for whether an officer’s use of deadly force is
excessive[] . . . , we must ‘slosh our way through the fact-bound morass of
reasonableness.’” Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir. 2009)
(quoting Scott, 550 U.S. at 383).
The first factor from Graham, “the severity of the crime at issue,” 490 U.S.
at 396, weighs in favor of plaintiff estate. The district court found that once
police arrived at the Glorieta off-ramp in response to a call concerning road rage,
“the Officers did not believe any exigent circumstances existed,” and that they
“did not have enough evidence or probable cause to make an arrest.” Aplt. App.
at 677. It is thus unclear from the record what, if any, crime was committed
during the road rage incident. At best, the incident might be viewed as a minor
crime such as reckless driving or driving while intoxicated. 7
At first glance, one could argue that the second factor from Graham,
“whether the suspect poses an immediate threat to the safety of the officers or
others,” 490 U.S. at 396, weighs in favor of Officer White. But, as the district
court determined, “Officer White took cover behind a stone wall located 50 feet
from the front of the house and drew his duty weapon while Officer Mariscal took
7
Under New Mexico law, reckless driving and driving while intoxicated
(first offense) are misdemeanor offenses. State v. Trevizo, 257 P.3d 978, 982 (Ct.
App. 2011) (citing N.M. Stat. Ann. § 66-8-113(B) (1978) (reckless driving); § 66-
8-102(E) (DWI)) (holding that one-year statute of limitations for petty
misdemeanors applied to the defendant’s DWI and reckless driving charges).
-31-
cover behind a Ford pickup truck and unholstered his duty weapon.” Aplt. App.
at 680. Moreover, the undisputed facts in the record show that Officer White was
behind cover fifty feet away before Samuel Pauly even opened the window. Id. at
680-81. Although the district court found that Samuel “held his arm out with a
hand gun, pointing it at Officer White,” id. at 681, it also concluded there was a
fact issue as to whether Samuel actually fired the gun, id. nn. 8, 9. Finally,
although Officer White claims he thought Officer Truesdale was shot by the two
shotgun blasts he heard from behind the house, he admitted in his deposition that
“I did not hear anything that would suggest [Officer Truesdale] had been hit.” Id.
at 223.
Significantly, “the law is clear that [Officer White’s] belief must be
reasonable.” Attocknie v. Smith, 798 F.3d 1252, 1257 (10th Cir. 2015) (petition
for cert. filed Dec. 22, 2015). While the dissent concedes that an Officer’s
subjective belief is irrelevant, it posits that “Officer White’s uncontroverted
subjective belief is objectively reasonable.” Dissent at 5 n.1. But “the Fourth
Amendment tolerates only reasonable mistakes, and those mistakes–whether of
fact or of law–must be objectively reasonable. We do not examine the subjective
understanding of the particular officer involved.” Heien v. North Carolina, 135
S. Ct. 530, 539 (2014). In our view, there is at a minimum at least a fact question
for the jury as to whether it was objectively reasonable for Officer White to
immediately assume that one of his fellow officers was shot after hearing two
-32-
shots from the back of the house but nothing more to indicate that anyone had
been hit. Cf. Attocknie, 798 F.3d at 1257 (affirming denial of qualified immunity
to officer and rejecting claim officer saw suspect run into a house, noting “that a
jury might reasonably refuse to credit his belief as reasonable” because a jury
“could well find that [the officer] is not telling the truth about seeing someone
running, or at least that he was not reasonable in inferring that the person he saw
was [the suspect], especially given other evidence that [the suspect] was not seen
by anyone else at the time and was not found there after the shooting”).
Because Officers White and Mariscal were behind cover some distance
away in the dark before Samuel even opened the window and there is a fact issue
as to whether Samuel fired his weapon, for purpose of analysis on summary
judgment Samuel Pauly did not “pose an immediate threat to the safety of the
officers or others.” Graham, 490 U.S. at 396 (emphasis added).
The third Graham factor, “whether [the suspect] is actively resisting arrest
or attempting to evade arrest by flight,” 490 U.S. at 396, also weighs in favor of
plaintiff estate. As the district court determined, after the officers arrived on
scene, spoke with the women about the incident, and then allowed the women to
leave the Glorieta off-ramp, “any threat to the females was over.” Aplt. App. at
676. More importantly, the court recognized that “the Officers did not believe
any exigent circumstances existed,” and that at that point, they “did not have
enough evidence or probable cause to make an arrest.” Id. (emphasis added).
-33-
Thus, when the officers, including White, went to the brothers’ residence, they
were not there to make an arrest as no grounds existed to do so. This is especially
true for Samuel Pauly, who had been in his home playing video games before
Daniel arrived that night. Accordingly, the brothers could not have been
“attempting to evade arrest by flight,” Graham, 490 U.S. at 396. This factor
supports plaintiff estate.
Because Officer White fired the fatal shot, we turn to the four factors set
out in Estate of Larson, 511 F.3d at 1260, to assess the “degree of threat” he
faced. The first factor, “whether the officers ordered the suspect to drop his
weapon, and the suspect’s compliance with police commands,” id., clearly
supports plaintiff estate. For purposes of qualified immunity, the district court
determined that Officer White did not identify himself or order Samuel Pauly to
drop his weapon. The second factor, “whether any hostile motions were made
with the weapon towards the officers,” id., weighs in favor of Officer White
because the district court found that Samuel Pauly pointed a handgun at Officer
White, or at least in his direction. The third factor, “the distance separating the
officers and the suspect,” id., clearly supports plaintiff estate because Officer
White was at least 50 feet away behind cover when he fired the fatal shot.
We consider the fourth factor, “the manifest intentions of the suspect,” id.,
to be somewhat neutral. The district court determined “a reasonable jury could
find” that “it would have been reasonable for the Officers to conclude that Daniel
-34-
Pauly could believe that persons coming up to his house at 11:00 p.m. were
connected to the road rage incident which had occurred a couple of hours
previously,” and “that under these circumstances, the occupants of the house
would feel a need to defend themselves and their property with the possible use of
firearms.” Aplt. App. at 685. Under the circumstances here, such defense would
be permissible under New Mexico state law. See also Boyett, 185 P.3d at 358-59.
This conclusion comports with what the Supreme Court made clear in Heller, 554
U.S. at 628-29, that citizens have the inherent right to use weapons to defend their
home against intruders.
Moreover, and importantly, the district court found a genuine fact issue
remains as to whether Samuel Pauly even fired his weapon. Although Officers
White and Mariscal claim that Samuel fired the handgun, the district court noted
A revolver later found on the living room floor under the front
window where Samuel Pauly was shot had one casing forward of the
firing pin while the other four chambers were loaded. No bullet
casing was recovered from the handgun, so there is no forensic proof
that Samuel Pauly fired the handgun that night.
Id. at 681 n.8. Significantly, “Officer Mariscal strongly believes that he fired a
shot at Samuel Pauly after Samuel Pauly fired the handgun,” and the district court
found that “Officer Mariscal was missing one cartridge from his magazine.” Id.
at 681 n.9 Thus, the court concluded: “since only four shots were fired that night,
if Officer Mariscal fired the third shot as he claims and Officer White fired the
fourth shot, then Samuel Pauly could not have fired upon Officer White.” Id. At
-35-
most, from Officer White’s perspective, the manifest intention of Samuel Pauly
was unclear at the time Samuel pointed his weapon out of the window of his
home.
Officer White stated in his deposition that when he was kneeling behind the
rock wall, he saw Samuel Pauly shoot a “silver gun” directly towards his face.
Aplt. App. at 223-24, White dep. at 137-44 (“I observed the male, with his right
hand, extend his hand in a parallel position to the ground, pointing the gun toward
my direction . . . [and] I observed the muzzle flash, and I heard the bang of the
gun.”). Nevertheless, “[b]ased on the physical evidence, a jury could reasonably
decide to reject [Officer White’s] testimony.” Abraham v. Raso, 183 F.3d 279,
294 (3d Cir. 1999) (holding fact issue precluded summary judgment on excessive
force claim against officer). Indeed, “[c]onsidering the physical evidence
together with the inconsistencies in the officer’s testimony, a jury will have to
make credibility judgments, and credibility determinations should not be made on
summary judgment.” Id. Moreover, “since the victim of deadly force is unable to
testify, courts should be cautious on summary judgment to ‘ensure that the officer
is not taking advantage of the fact that the witness most likely to contradict his
story–the person shot dead–is unable to testify.’” Id. (quoting Scott v. Henrich,
39 F.3d 912, 915 (9th Cir. 1994)). As the Ninth Circuit noted in Scott, 39 F.3d at
915, “the court may not simply accept what may be a self-serving account by the
police officer.” Rather, “[i]t must also look at the circumstantial evidence that, if
-36-
believed, would tend to discredit the police officer’s story, and consider whether
this evidence could convince a rational factfinder that the officer acted
unreasonably.” Id. In any event, this factor highlights the district court’s
ultimate conclusion that genuine fact issues remain for the jury with respect to
this issue.
Because our analysis “requires careful attention to the facts and
circumstances of each case,” Graham, 490 U.S. at 386, we note that factors one
and three, as set out in Estate of Larsen and reiterated in Tenorio, are particularly
relevant here: “(1) whether the officers ordered the suspect to drop his weapon,”
and “(3) the distance separating the officers and the suspect.” Estate of Larsen,
511 F.3d at 1260; Tenorio, 802 F.3d at 1163. The undisputed facts establish that
neither Officer White nor Officer Mariscal ordered the suspect to drop his
weapon. In excessive force cases, “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.” Garner, 471 U.S. at 11-12 (emphasis
added); Thomson, 584 F.3d at 1321 (citing Garner). See also Vaughan v. Cox,
343 F.3d 1323 (11th Cir. 2003) (fact issue as to whether warning was feasible
before deadly shot fired).
Plaintiffs’ expert witness, Glenn A. Walp, testified that in his professional
opinion it was feasible for Officer White to give the suspect a warning during the
five-second interval between when Samuel aimed the gun and Officer White fired
-37-
his weapon, and that the officer’s failure to do so was unreasonable. 8 Aplt. App.
at 289. See also id. at 286, Walp dep. at 180 (“[B]etween the time when he saw
the pointing of the weapon and what we will use for the sake of argument here
today, five seconds, I feel that there was an extensive amount of time to at least
yell something to the effect . . . of ‘State Police, drop your weapon.’”). In this
connection, we note that in Tenorio, within “two or three seconds” the officer
“yelled, ‘Sir, put the knife down! Put the knife down, please! Put the knife
down!’” before he shot the decedent. 802 F.3d at 1163.
Moreover, as the circumstances in Tenorio show, the immediacy of the
danger to the police officer is important:
8
The dissent criticizes our use of Mr. Walp’s testimony, noting that “we’ve
previously discounted the use of expert testimony to undermine the
reasonableness of an officer’s on-scene judgment and we should do the same
here,” citing Thomson, 584 F.3d at 1320-21, and Saucier, 533 U.S. at 194 n.6.
Dissent at 9. In essence, the dissent views our use of the expert testimony as the
type of second guessing and 20/20 hindsight the Supreme Court has instructed is
not appropriate when reviewing the reasonableness of an officer’s conduct. See
Graham, 490 U.S. at 396 (“The ‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable officer on the scene, rather than
with 20/20 vision of hindsight.”). However, we mention his testimony only
because it supports the district court’s determination that a reasonable jury could
conclude it was feasible for Officer White to warn Samuel Pauly before shooting
him, especially where he was behind cover before Samuel opened the window. A
jury may accept this testimony, but it may not. But Mr. Walp’s testimony
highlights why a reasonable jury might conclude it was feasible. In any event, we
have not found a bright line rule precluding us from mentioning expert testimony
in the record on a subject on which the district court found genuine fact disputes
remain. See Aplt. App. at 684-85 (“For example, it is disputed whether . . . it was
feasible for Officer White to warn Samuel Pauly before shooting him.”).
-38-
One could argue that [Officer] Pitzer appropriately used lethal force.
The officers were responding to an emergency call for police
assistance to protect against danger from a man who had been violent
in the past and was waving a knife around in his home. The man was
walking toward Pitzer in a moderate-sized room while still carrying
the knife despite repeated orders to drop it.
But the district court ruled that the record supports some potential
jury findings that would establish Tenorio’s claim–in particular, that
Tenorio “did not ‘refuse’ to drop the knife because he was not given
sufficient time to comply’ with Pitzer’s order; that Tenorio made no
hostile motions toward the officers but was merely “holding a small
kitchen knife loosely by his thigh and . . . made no threatening
gestures toward anyone.”; that Tenorio was shot “before he was
within striking distance of [Pitzer] . . . .”
Id. at 1164-65 (emphasis added). Here, not only was Officer White fifty feet
away from Samuel Pauly, Officer White was sequestered behind a rock wall and
Samuel was aiming his gun through the open window of a lighted house toward a
target obscured by the dark and rain. 9
9
We disagree with the dissent’s characterization of Officer White’s
position when he took cover as behind a “partial rock wall.” Dissent at 7 n.4, 8.
By implying that Officer White was not in a protected position when Samuel
Pauly pointed the gun in his direction, the dissent does not read the evidence in
the light most favorable to plaintiff estate and fails to rely on the district court’s
determination of the evidence. The dissent ignores the “fundamental principle”
that in reviewing the denial of a summary judgment motion based on qualified
immunity, “reasonable inferences should be drawn in favor of the nonmoving
party.” Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014) (reversing grant of
summary judgment to Officer and holding the “court below credited evidence of
the party seeking summary judgment and failed properly to acknowledge key
evidence offered by the party opposing that motion”); accord Weigel, 544 F.3d at
1147 (“In reciting the facts of this case, we view the evidence in the light most
favorable to the non-moving party.”). The dissent clearly reads the evidence
concerning the cover of his position in the light most favorable to Officer White
(continued...)
-39-
As Officer White described it when he was asked to explain what he did
after he heard “We have guns,” he said he ran and took cover behind a rock wall
before Samuel opened the window and stuck his gun out.
Q. And, I’m sorry, I think you just said this, but the position that
you took, you know, you ran down on the other side of the rock wall.
Tell me again. Were you standing? Were you crouched? What
position were you in?
A. I was kneeling.
Q. So you’re kneeling, one knee up and one knee down?
A. Both knees down.
Q. So both of your knees were on the ground, and where–were you
looking towards the residence?
A. I was.
***
Q. So you kneeled down, both knees on the ground and looking over
the top of the rock wall. Is that right?
A. Correct.
Q. Did you have your duty weapon drawn?
A. I did.
***
Q. Nobody was in the window at that point? Is that correct?
9
(...continued)
and impermissibly draws inferences in his favor.
-40-
A. That’s correct.
Q. Was the window up?
A. As in closed? It was closed.
Q. Yes. So the window–both windows were closed at the point that
you run down to the position in Exhibit 2?
A. Correct.
Q. You have your weapon drawn. Where is it pointing at that time?
A. It’s pointing in the direction of the house.
Q. Was it resting on the wall?
A. It was.
Aplt. App. at 222 (emphasis added). Officer White’s own description of his
position at the time Samuel Pauly opened the window and pointed his gun out
clearly supports the district court’s description of him as “behind a stone wall
located 50 feet from the front of the house.” Id. at 680.
Officer White relies on our decision in Wilson, 52 F.3d at 1549, for the
proposition that use of deadly force is reasonable where someone aims a gun at an
officer. The facts there were entirely different. Officer Meeks was out in the
open when he confronted Wilson, whom a witness described as “extremely
drunk.” Id. Officer Meeks suspected Wilson of holding a gun concealed behind
his leg and ordered him to show his hand. Wilson did not comply, and the officer
repeated his demand. When Wilson brought his gun forward and Officer Meeks
-41-
heard the sound of the handgun being cocked, he shot Wilson. Id. at 1553. It is
clear from the facts in Wilson that Officer Meeks was in close range of the
pointed gun and that an objectively reasonable police officer would have believed
his life was in immediate danger. Similarly, in Estate of Larsen, 511 F.3d at
1258, “Larsen was within 7 to 12 feet” from the officers when he raised his knife,
ignored the officer’s warning to “Drop the knife or I’ll shoot,” and took a step
toward the officer.” See also Thomson, 584 F.3d at 1318 (“The time frame during
which all of this happened was very short; from the time when Mr. Thomson
came into view of the police until the time he was shot, possibly as few as ten
seconds had elapsed. During that time, Mr. Thomson was repeatedly told to put
down his weapon . . . .”).
The dissent claims that “in endeavoring to affix liability on” Officer White,
we stretch to distinguish Wilson, arguing that the threat to Officer White was
“even more immediately compelling than those faced by the shooting officer in
Wilson.” Dissent at 7. This is so, the dissent contends, because Officer White
was not “fully protected” when he took cover behind a stone wall but rather “was
kneeling in a vulnerable position behind a short rock wall—a wall that at most
provided partial cover from the armed suspect pointing a gun at him and
potentially no cover from the second armed suspect whose exact location outside
was unknown.” Dissent at 7 n.5. But as we have already noted, the dissent’s
claim completely ignores the long standing rule that we must view the evidence in
-42-
the light most favorable to plaintiff estate, and that “reasonable inferences should
be drawn in favor of the nonmoving party.” Tolan, 134 S. Ct. at 1868. Instead,
the dissent assumes facts in the light most favorable to Officer White. The
dissent’s reliance on Wilson is accordingly flawed.
Based on the record in the present case, viewed in plaintiff estate’s favor,
we agree with the district court that a jury could find a reasonable officer in
Officer White’s position would not have probable cause to believe there was an
immediate threat of serious harm to himself or to Officer Mariscal, who was also
behind cover, such that he could shoot Samuel Pauly through the window of his
home without giving him a warning. As a result, the jury could conclude Officer
White’s use of deadly force against Samuel Pauly was not objectively reasonable
and violated the Fourth Amendment.
2. Clearly Established
Having held that the evidence is sufficient to establish an excessive force
claim, we turn to whether the law was clearly established at the time of the
violation. “The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 207;
Casey, 509 F.3d at 1283-84.
Graham, 490 U.S. at 396, and its Tenth Circuit progeny, including our 1997
decision in Allen, clearly established that the reasonableness of an officer’s use of
-43-
force depends, in part, on “whether the officer[] [was] in danger at the precise
moment that [he] used force.” Allen, 119 F.3d at 840 (quoting Sevier, 60 F.3d at
699). In addition, since 1985 and the Supreme Court’s decision in Garner, it has
been clearly established that “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. 471 U.S. at 11-12 (emphasis added); see also
Vaughan, 343 F.3d at 1331 (fact issue as to whether warning was feasible before
deadly shot fired).
The dissent argues that by relying on Graham and Allen, we violate the
Supreme Court’s instruction not to define clearly established law too generally.
Dissent at 11. It is true that in Mullenix, the Court stated that it has “repeatedly
told courts . . . not to define clearly established law at a high level of generality.”
136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742). But the central question, the
Court noted, is “whether the violative nature of particular conduct is clearly
established.” Id. (quoting al-Kidd, 563 U.S. at 742). In reversing the Fifth
Circuit’s clearly established law analysis “that a police officer may not use deadly
force against a fleeing felon who does not pose a sufficient threat of harm to the
officer or others,” the Court explained that it had “previously considered – and
rejected – almost that exact formulation of the qualified immunity question . . .
[i]n Brosseau [v. Haugen, 543 U.S. 194, 199 (2004)].” Id. at 308-09 (internal
citation and quotation marks omitted). Mullenix is thus distinguishable from this
-44-
case because there were clearly other cases on point there that had rejected the
argument used to form the basis of the Fifth Circuit’s decision.
Notably, in Brosseau, 543 U.S. at 199, a case decided in 2004, the Court
reversed the Ninth Circuit’s denial of qualified immunity, holding that using the
“general” test for excessive force cases from Garner, 71 U.S. at 85, was
“mistaken.” The Court explained that the Ninth Circuit erred in finding “fair
warning in the general tests set out in Graham and Garner,” because “Graham
and Garner, following the lead of the Fourth Amendment’s text, are cast at a high
level of generality.” Id. at 199. Rather, the Court explained that the relevant
inquiry was whether it was clearly established the officer’s conduct was
prohibited by the Fourth Amendment in the specific “situation [Brosseau]
confronted.” Id. at 199-200. Most significantly, the Court cited Hope, 536 U.S.
at 738, for the proposition that “of course, in an obvious case, [the Garner and
Graham] standards can ‘clearly establish’ the answer, even without a body of
relevant case law.” Id. at 199. Nothing in Mullinex overruled Hope on this point.
Building on the Court’s decision in Hope, our decision in Casey decided
almost three years after Brosseau, explained that “[t]he Hope decision shifted the
qualified immunity analysis from a scavenger hunt for prior cases with precisely
the same facts toward the more relevant inquiry of whether the law put officials
on fair notice that the described conduct was unconstitutional.” 509 F.3d at 1284,
(internal quotation marks omitted). We explained that “[w]e therefore adopted a
-45-
sliding scale to determine when law is clearly established, id., stating that “[t]he
more obviously egregious the conduct in light of prevailing constitutional
principles, the less specificity is required from prior case law to clearly establish
the violation.” Id. (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.
2004)).
Taking the facts as the district court determined them in the light most
favorable to plaintiff estate, we are presented with this situation: an officer
outside someone’s home in the dark of night with no probable cause to arrest
anyone and behind the cover of a wall 50 feet away from a possible threat, with
no warning shot a man pointing his gun out of his well-lighted window at an
unknown person in his yard while the man’s brother fired protective shots in the
air from behind the house. Given his cover, the distance from the window, and
the darkness, a reasonable jury could find that Officer White was not in
immediate fear for his safety or the safety of others. Any objectively reasonable
officer in this position would well know that a homeowner has the right to protect
his home against intruders and that the officer has no right to immediately use
deadly force in these circumstances. Based on our sliding scale test established in
Casey, 509 F.3d at 1284, we do not agree with the dissent that more specificity is
required to put an objectively reasonable officer on fair notice.
Accordingly, accepting as true plaintiff estate’s version of the facts, a
reasonable officer in Officer White’s position should have understood, based on
-46-
clearly established law, that (1) he was not entitled to use deadly force unless he
was in danger at the exact moment of the threat of force and (2) he was required,
under the circumstances here, to warn Mr. Pauly to drop his weapon.
V
Conclusion
We AFFIRM the district court’s denial of summary judgment.
-47-
Pauly v. White, No. 14-2035
MORITZ, Circuit Judge, dissenting:
Undeniably, Samuel Pauly’s tragic shooting should never have occurred. So at
first glance, it’s hard to find fault with the majority’s lengthy and compelling discussion
of Officers Mariscal’s and Truesdale’s questionable actions leading up to the tragedy. But
the majority’s preliminary focus on those two officers, though effectively placed, is
legally misplaced. That’s because neither Officer Mariscal nor Officer Truesdale shot
Samuel Pauly. Instead, Officer White fired the bullet that killed Samuel Pauly. In some
cases, this might be the proverbial distinction without a difference. But that is decidedly
not the case here because, as the majority recognizes, Officer White came late to the
scene and can’t be held responsible for the acts of Officers Truesdale and Mariscal.
The majority nevertheless finds that even considering Officer White’s actions
separately, a reasonable jury could conclude he used excessive force in shooting Samuel
Pauly. But, in reaching that conclusion, the majority impermissibly second-guesses
Officer White’s split-second decision to use deadly force in self-defense. I would find
that under the unique circumstances of this case, Officer White clearly did not use
excessive force in shooting Samuel Pauly; thus, no constitutional violation occurred. And
if no constitutional violation occurred, the law won’t permit us to pin liability on those
officers who perhaps should bear responsibility: Truesdale and Mariscal. Instead, all
three officers are entitled to immunity.
I also disagree with the majority’s conclusion that the plaintiffs’ facts, accepted as
true, establish that Officer White’s use of deadly force violated clearly established law.
To arrive at this determination, the majority mistakenly defines clearly established law at
a high level of generality, engaging in exactly the type of review our Supreme Court has
consistently cautioned against. As the Court recently reiterated, “[t]he dispositive
question is ‘whether the violative nature of particular conduct is clearly established.’”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2084 (2011)).
Because I would conclude Officer White’s use of deadly force was objectively
reasonable and didn’t violate clearly established law governing the use of deadly force, I
would reverse and remand with directions to grant summary judgment in favor of all
three defendants.
DISCUSSION
The doctrine of qualified immunity insulates law enforcement officers from civil
liability for the use of excessive force—even deadly force—unless their actions violate
clearly established statutory or constitutional rights. Taylor v. Barkes, 135 S. Ct. 2042,
2044 (2015). “For a right to be clearly established there must be Tenth Circuit or
Supreme Court precedent close enough on point to make the unlawfulness of the officers’
actions apparent.” Mascorro v. Billings, 656 F.3d 1198, 1208 (10th Cir. 2011). This does
not “require a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Mullenix, 136 S. Ct. at 308 (quoting
al-Kidd, 131 S. Ct. at 2083). “When properly applied, [qualified immunity] protects all
but the plainly incompetent or those who knowingly violate the law.” Barkes, 135 S. Ct.
at 2044 (alteration in original) (quoting al-Kidd, 131 S. Ct. at 2085).
2
When a defendant asserts qualified immunity at the summary judgment stage, the
burden shifts to the plaintiff to demonstrate (1) the defendant violated a constitutional
right and (2) the contours of that right were “clearly established” at the time of the
violation. Thomas v. Durastanti, 607 F.3d 655, 662 (10th Cir. 2010). If the plaintiff
doesn’t satisfy “‘[t]his heavy two-part burden . . . the defendants are entitled to qualified
immunity.’” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014)
(quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)), cert. denied sub nom.
Malcom v. Felders, 135 S. Ct. 975 (2015).
I. Officer White is entitled to qualified immunity because his actions were
objectively reasonable under the circumstances.
Because the plaintiffs allege Officer White violated Samuel Pauly’s Fourth
Amendment right to be free from excessive force, they must demonstrate that White’s use
of deadly force was objectively unreasonable. See Havens v. Johnson, 783 F.3d 776, 781
(10th Cir. 2015). As the majority acknowledges, an officer’s use of deadly force is
objectively reasonable if a reasonable officer confronted with the same circumstances
would have had probable cause to believe that he or she faced an immediate threat of
serious physical harm. Tennessee v. Garner, 471 U.S. 1, 11 (1985); Thomas, 607 F.3d at
664, 670.
We generally consider several non-exclusive factors in assessing the degree of
threat a suspect poses to the officer, including “(1) whether the officers ordered the
suspect to drop his weapon, and the suspect’s compliance with police commands; (2)
whether any hostile motions were made with the weapon towards the officers; (3) the
distance separating the officers and the suspect; and (4) the manifest intentions of the
3
suspect.” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1314-15 (10th Cir. 2009) (quoting
Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008)).
These factors, while significant, only assist us in making the ultimate
determination, which is “whether, from the perspective of a reasonable officer on the
scene, the totality of the circumstances justified the use of force.” Tenorio v. Pitzer, 802
F.3d 1160, 1164 (10th Cir. 2015) (quoting Estate of Larsen, 511 F.3d at 1260).
Moreover, in the qualified immunity context, an officer’s on-scene judgment regarding
the level of force that is necessary “need not be correct—in retrospect the force may seem
unnecessary—as long as it is reasonable.” Id.
Viewing the plaintiffs’ factual allegations as true and considering the totality of
the circumstances known to Officer White from the perspective of an objectively
reasonable officer in White’s position, I would conclude the plaintiffs haven’t
demonstrated a Fourth Amendment violation.
When Officer White arrived at the Paulys’ house, he saw Officer Mariscal in the
front yard and he heard Officer Truesdale’s voice near the back of the house. He saw
people moving inside the house. Within seconds of his arrival, Officer White heard one
of the Pauly brothers yell, “We have guns.” Aplt. App. 680. Officer White took cover
behind a stone wall about 50 feet from the front of the house. Officer Mariscal took cover
behind a nearby truck. Both officers drew their weapons. A few seconds later, Officer
White heard two gunshots fired near Officer Truesdale’s location at the rear of the house.
Officer White believed that Truesdale had been shot.1 Within seconds of hearing those
1
The majority implies that Officer White’s belief on this point was less than
4
two shots, Officer White saw Samuel Pauly lower the front window, hold his arm out,
and point a handgun directly at White. Four or five seconds later, Officer White fired his
weapon, shooting and killing Samuel Pauly.
Even under plaintiffs’ version of the facts, these material facts are uncontroverted.
And given these facts, Officer White’s use of deadly force was unquestionably justified.
But the majority concludes that “a jury could find a reasonable officer in Officer White’s
position would not have probable cause to believe there was an immediate threat of
serious harm to himself or to Officer Mariscal, who was also behind cover, such that he
could shoot Samuel Pauly through the window of his home without giving him a
warning.” Maj. Op. 43.
In reaching this conclusion, the majority purports to separately consider the three
Graham2 factors and the four non-exclusive Thomson factors, but ultimately cherry-picks
two Thomson factors it finds “particularly relevant” to Officer White’s on-scene threat
assessment: the distance separating Samuel Pauly and White, and White’s failure to warn
Samuel before shooting him. Maj. Op. 37. However, the majority’s analysis of these two
credible because he also testified in his deposition that he “did not hear anything that
would suggest a person had been hit.” Maj. Op. 7-8, n.3 & 32. In doing so, the majority
overlooks two points. First, the district court’s order demonstrates that Officer White’s
belief on this point was uncontroverted. See Aplt. App. 680 (“Having heard two rifle
shots, Officer White believed that Officer Truesdale had been shot.”). Second, even if the
majority doubts the reasonableness of Officer White’s subjective belief as to whether
Officer Truesdale had been shot, the question before us is whether a reasonable officer
having heard two gunshots near the location of his or her fellow officer—an officer who
is out of sight in the dark—would have had an objective basis for sharing White’s belief.
In my view, Officer White’s uncontroverted subjective belief is objectively reasonable.
2
Graham v. Connor, 490 U.S. 386 (1989).
5
factors is flawed.3
Focusing on the distance between Samuel Pauly and Officer White, the majority
speculates that a reasonable officer in White’s position wouldn’t have perceived an
immediate threat of physical harm because (1) White was 50 feet away from Samuel; (2)
White was “sequestered” behind the rock wall; and (3) Samuel’s view of White may have
been obscured by the darkness and the rain. Maj. Op. 39-42.
I don’t disagree that an officer’s distance from the suspect and the existence of
cover are important considerations in assessing whether the officer’s use of deadly force
was objectively reasonable.4 But the majority brushes aside this court’s precedent in
determining that these factors undermine the reasonableness of Officer White’s actions in
this case.
Our precedent with the most analogous facts—Wilson v. Meeks, 52 F.3d 1547
3
The majority’s seven-factor approach seemingly overlooks that the four Thomson
factors merely flesh out the second Graham factor—i.e., whether the officer faced an
immediate threat from the suspect.
4
The majority also suggests a reasonable officer would have taken comfort in the
knowledge that Samuel Pauly “aim[ed] his gun through the open window of a lighted
house toward a target obscured by the dark and rain.” Maj. Op. 39. This suggestion
warrants little discussion. Even though a reasonable officer would know Samuel Pauly
was looking into the darkness, we can’t expect a reasonable officer to know whether that
darkness impaired Samuel’s ability to find a target. Wilson v. Meeks, 52 F.3d 1547, 1553-
54 (10th Cir. 1995), abrogated on other grounds by Saucier v. Katz, 533 U.S. 194 (2001)
(“Qualified immunity does not require that the police officer know what is in the heart or
mind of his assailant. It requires that he react reasonably to a threat.”). The majority’s
determination that the fourth Thomson factor is “neutral” similarly suggests that a
reasonable jury could find a reasonable officer in Officer White’s position would have
known what the Paulys were thinking—namely, that the Paulys believed they were
protecting their home from unknown intruders. Maj. Op. 34-35. Yet the fourth factor
requires consideration only of the “manifest” intentions of the suspect. In this case,
Samuel Pauly manifested his intentions quite clearly and this factor, far from being
neutral, weighs in favor of Officer White’s decision to shoot.
6
(10th Cir. 1995), abrogated on other grounds by Saucier v. Katz, 533 U.S. 194 (2001)—
is also the most compelling. There, as here, the family of a man shot and killed by a
police officer sought civil damages under § 1983. We found the officer entitled to
qualified immunity, reasoning that the confrontation leading to the fatal shooting
“transpired in less than a minute,” the plaintiffs failed to produce evidence to rebut the
officer’s assertion that the decedent aimed a handgun at the officer, and “[a]ny police
officer in [the officer’s] position would reasonably assume his life to be in danger when
confronted with a man whose finger was on the trigger of a .357 magnum revolver
pointed in his general direction.” Id. at 1549, 1554.
Despite these similar circumstances, the majority stretches to distinguish Wilson,
pointing out that the shooting officer in that case was exposed rather than “sequestered”
behind a rock wall. Maj. Op. 39, 41-42.5 Yet in endeavoring to affix liability on the
shooting officer here, the majority ignores circumstances that unquestionably rendered
the threat to Officer White even more immediately compelling than those faced by the
shooting officer in Wilson.
Here, Officer White was confronted with one man pointing a gun in his direction
and another man who he reasonably believed was somewhere outside and had just shot
5
The majority’s characterization of Officer White’s position as “sequestered”
behind the stone wall inaccurately implies that he viewed the scene from a fully protected
vantage point. It’s true that Officer White testified in deposition that he took cover behind
a stone wall 50 feet from the house. But Officer White further explained that he knelt
behind the wall and rested his arms on top of it as he pointed his gun in the general
direction of the house and that his head and arms remained fully exposed. White Depo.,
Doc. 84-3, at 4. Thus, far from being “sequestered,” Officer White was kneeling in a
vulnerable position behind a short rock wall—a wall that at most provided partial cover
from the armed suspect pointing a gun at him and potentially no cover from the second
armed suspect whose exact location outside was unknown.
7
White’s fellow officer. Notwithstanding these exceedingly fluid and highly threatening
circumstances, the majority suggests that a reasonable officer in Officer White’s position
should essentially have called a time out while he contemplated the most prudent course
of action. And during that time out, the majority presumes Officer White—or a
reasonable officer in his shoes—would have discounted the threats posed by an armed
suspect pointing a handgun in his direction and a second armed suspect in close
proximity as non-immediate threats because the officer was himself behind a partial rock
wall and the suspect who was pointing a gun at him was 50 feet away.6
In my view, no objectively reasonable officer in Officer White’s circumstances
and with White’s knowledge of these circumstances could have been expected to hold his
fire. And to suggest he should have done so because of his less than fully protected
position some 50 feet away seems the epitome of “second-guessing.” Yet the majority’s
speculation doesn’t stop there. Piggybacking off of its judgment that Officer White faced
no immediate threat given his “protected” position, the majority further decrees that a
reasonable officer in White’s position would have shouted a warning before using deadly
force.
As the majority acknowledges, a warning need only be given “where feasible.”
Garner, 471 U.S. at 11-12 (emphasis added); see also Thomson, 584 F.3d at 1321
(rejecting plaintiff’s argument that unleashing police dog without a warning created the
6
Moreover, the majority’s suggestion that the 50-foot distance between Samuel
Pauly and Officer White somehow weighs in favor of the plaintiffs here is mystifying.
Not surprisingly, the majority offers no authority suggesting that the “distance” factor has
any relevance in circumstances where an officer is confronted with a suspect pointing a
gun directly at him. Nor am I aware of any such authority.
8
need to use deadly force and concluding “[a] warning is not invariably required even
before the use of deadly force . . .”). In concluding such a warning was feasible here, the
majority primarily relies on the professional opinion of the plaintiffs’ expert witness,
Glenn A. Walp, who testified in a deposition, “I feel that there was an extensive amount
of time to at least yell something to the effect . . . of ‘State Police, drop your weapon.’”
Maj. Op. 37-38.7
With all due respect to Mr. Walp, we’ve previously discounted the use of expert
testimony to undermine the reasonableness of an officer’s on-scene judgment and we
should do the same here. See Thomson, 584 F.3d at 1320-21 (rejecting plaintiffs’ reliance
on expert testimony that release of attack dog was “inadvisable,” reiterating the need to
avoid 20/20 hindsight, and concluding, “We cannot now consider whether other actions
would have been more appropriate or, indeed, optimal”). See also Saucier v. Katz, 533
U.S. 194, 216, n.6 (2001) (Ginsburg, J., concurring in judgment) (“[I]n close cases, a jury
does not automatically get to second-guess these life and death decisions, even though
plaintiff has an expert and a plausible claim that the situation could better have been
handled differently.” (quoting Roy v. Inhabitants of Lewiston, 42 F.3d 691, 695 (1st Cir.
1994))).8
7
The district court determined, based on Officer White’s testimony, that White
shot Samuel Pauly “[f]our to five seconds after Samuel Pauly pointed his handgun at
Officer White.” Aplt. App. 681. As the majority acknowledges, Mr. Walp assumed “for
the sake of argument” during his deposition that the five-second interval was accurate.
Maj. Op. 38.
8
Comparing the circumstances of Tenorio, the majority appears to suggest that
Officer White had plenty of time to shout a warning before shooting Samuel Pauly. Maj.
Op. 38-39. But Tenorio’s markedly different circumstances simply don’t permit this
comparison. See Tenorio, 802 F.3d at 1164-65 (officer shot man who held a small kitchen
9
I would find Mr. Walp’s speculation about what other actions Officer White
could’ve or should’ve taken before shooting Samuel Pauly immaterial to the question of
whether what he actually did was objectively reasonable. See Cole v. Bone, 993 F.2d
1328, 1334 (8th Cir. 1993) (“The Constitution, however, requires only that the seizure be
objectively reasonable, not that the officer pursue the most prudent course of conduct as
judged by 20/20 hindsight vision.”). And I would view Garner’s general proposition that
a warning be given where feasible as yet another reminder of our paramount duty to
judge “[t]he ‘reasonableness’ of a particular use of force . . . from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham,
490 U.S. at 396. The majority’s contrary view ignores our Supreme Court’s directive to
consider, in the “calculus of reasonableness,” the fact that police officers often are
required to make split-second judgments—in “tense, uncertain, and rapidly evolving”
circumstances—“about the amount of force that is necessary in a particular situation.”
Id. at 396-97.
Simply stated, I am unwilling to view Officer White’s actions through the
improper lens of hindsight from the comfort of my chambers. See Phillips v. James, 422
F.3d 1075, 1080 (10th Cir. 2005) (“What may later appear to be unnecessary when
reviewed from the comfort of a judge’s chambers may nonetheless be reasonable under
the circumstances presented to the officer at the time.” (citing Graham, 490 U.S. at 396)).
Instead, I would conclude the plaintiffs have not met their heavy burden to demonstrate a
knife but made no hostile motions toward the officer). Here, the majority explicitly
recognizes that Samuel Pauly made a hostile motion toward Officer White by pointing a
gun at him. Maj. Op. 34.
10
constitutional violation. And while I share the majority’s concern about the actions of the
non-shooting officers prior to Officer White’s arrival, those actions shouldn’t factor into
our analysis of whether White’s use of force was reasonable under the unique
circumstances of this case.
II. Even if Officer White’s actions were objectively unreasonable, White is
entitled to qualified immunity because the law was not clearly established
that he could not use deadly force in the circumstances confronting him.
Even accepting the majority’s conclusion that Officer White’s use of deadly force
was objectively unreasonable, I disagree with the majority’s ultimate conclusion that “a
reasonable officer in Officer White’s position should have understood, based on clearly
established law, that (1) he was not entitled to use deadly force unless he was in danger at
the exact moment of the threat of force and (2) he was required, under the circumstances,
to warn [Samuel] Pauly to drop his weapon.” Maj. Op. 46-47.
To support its first point, the majority relies on Graham and Allen v. Muskogee,
119 F.3d 837 (10th Cir. 1997), for the general proposition that an officer may not use
deadly force unless he or she faces the immediate threat of physical harm. But the
majority’s reliance on these cases to define the clearly established law governing this
case directly contravenes the Supreme Court’s warnings against “defin[ing] clearly
established law at a high level of generality.” Mullenix, 136 S. Ct. at 308 (quoting al-
Kidd, 131 S. Ct. at 2084). The Court has repeatedly cautioned “that Garner and Graham,
which are ‘cast at a high level of generality,’” offer little guidance in determining the
reasonableness of an officer’s actions in a particular case. Plumhoff v. Rickard, 134 S. Ct.
2012, 2023 (2014).
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The Court recently and strongly reaffirmed this principle in Mullenix. There, the
Court reversed a Fifth Circuit decision denying qualified immunity based on that
Circuit’s conclusion that “the law was clearly established such that a reasonable officer
would have known that the use of deadly force, absent a sufficiently substantial and
immediate threat, violated the Fourth Amendment.” Mullenix, 136 S. Ct. at 308 (quoting
Luna v. Mullenix, 773 F.3d 712, 725 (5th Cir. 2014), rev’d 136 S. Ct. 305 (2015)). The
Court explained that “[t]he dispositive question is ‘whether the violative nature of
particular conduct is clearly established.’” Id. (quoting al-Kidd, 131 S. Ct. at 2084). And,
in concluding that the shooting officer in Mullenix was entitled to qualified immunity, the
Court explicitly noted that “none of [its] precedents ‘squarely govern[ed]’ the facts”
confronted by that officer. Id. at 310.
Yet, in its attempt to lessen the impact of Mullenix, the majority seemingly adopts
the rationale of the dissenting justice in Mullenix by suggesting that any reasonable
officer in Officer White’s position would have had “fair notice” from Graham that he
couldn’t use deadly force in the circumstances he confronted and that no case more
specific than Graham is required. Maj. Op. 45-46. See Mullenix, 136 S. Ct. at 314
(Sotomayor, J., dissenting) (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002) for the
proposition that “the crux of the qualified immunity test is whether officers have ‘fair
notice’ that they are acting unconstitutionally”).
Notably, the Mullenix majority pointed out that the dissenting justice only repeated
the Fifth Circuit’s error in defining the qualified immunity inquiry at a high level of
generality. Mullenix, 136 S. Ct. at 311. In doing so, the Court stated, “[W]hatever can be
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said of the wisdom of [the officer’s] choice [to use deadly force], this Court’s precedents
do not place the conclusion that he acted unreasonably in these circumstances ‘beyond
debate.’” Id. (quoting al–Kidd, 131 S. Ct. at 2074).
Likewise, the extant case law here doesn’t place the conclusion that Officer White
acted unreasonably under the circumstances beyond debate. Significantly, the only
“particular conduct” the majority suggests violated clearly established law is Officer
White’s failure to issue a warning before using deadly force.
But, like the cracked foundation underlying the majority’s first point, the
foundational support for its second point also shows signs of strain. As stated, “[a]
warning is not invariably required even before the use of deadly force”; rather, an officer
must issue a warning “where feasible.” Garner, 471 U.S. at 11-12; Thomson, 584 F.3d at
1304. Such language hardly mandates a finding that a failure to warn in particular
circumstances is clearly established. Nevertheless, the majority expects a reasonable
officer to understand extant case law as clearly establishing that a warning is not only
feasible, but required, when the officer (1) is faced with two armed suspects, one
pointing a gun at the officer from inside a house; (2) is partially protected by a stone wall;
(3) is separated from the most immediate threat by 50 feet; and (4) in hindsight, has at
least 5 seconds to shout a warning before firing his own weapon.
Simply stated, neither Garner nor any of the cases properly interpreting it would
have caused a reasonable officer in Officer White’s position to understand that “he was
required, under the circumstances here, to warn [Samuel] Pauly to drop his weapon.”
Maj. Op. 47. Because none of the cases cited by the majority are “close enough [to] on
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point to make the unlawfulness of [Officer White’s] actions apparent,” Mascorro, 656
F.3d at 1208, I would conclude Officer White is entitled to qualified immunity.
III. Officers Truesdale and Mariscal are entitled to qualified immunity because
Officer White did not use excessive force.
Because I would conclude that Officer White didn’t violate Samuel Pauly’s Fourth
Amendment right to be free from the use of excessive force, and, alternatively, didn’t
violate clearly established law governing the use of deadly force, I would also conclude
that Officers Truesdale and Mariscal are entitled to qualified immunity. See, e.g., Hinkle
v. City of Clarksburg, W. Va., 81 F.3d 416, 420-21 (4th Cir. 1996) (explaining jury’s
finding that shooting officer didn’t use excessive force absolved non-shooting officers of
liability); McLenagan, 27 F.3d at 1008 (explaining that even if non-shooting officer’s
action or failure to act contributed to use of force, issue of liability was mooted by
finding that shooting officer didn’t use constitutionally excessive force).
CONCLUSION
Officer White did what any objectively reasonable officer in his position would
do—respond in kind to the immediate threat of deadly force. Because the plaintiffs fail to
establish either that Officer White’s use of deadly force was objectively unreasonable or
that it violated clearly established law, I would reverse the district court’s rulings and
grant all three defendants’ motions for summary judgment on qualified immunity
grounds with respect to the plaintiffs’ § 1983 claim.
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