Denial of Summary Judgment in Police-killing Case Stands

Pauly v. White, 817 F.3d 715 (4/11/16) (N.M.) (Published) - The 10th denies rehearing en banc in this § 1983 police-killing-of-a-civilian case on a 6-6 vote. Six voted with the majority of the panel, 814 F.3d 1060, that affirmed the denial of summary judgment on qualified immunity grounds for the officers. Those six were: Judges Phillips, Briscoe, McHugh, Bacharach, Lucero and Matheson. Judge Phillips explains the dissenters fail to credit the district court's fact findings. It is clearly established, he says, that an officer can't shoot and kill without good cause and while not endangered. A contrary ruling in this case, the judge opines, would lea to "potentially deadly ramifications for citizens in this circuit." The dissenters, Judges Tymkovich, Kelly, Hartz, Gorsuch, Holmes and Moritz, interpret the panel majority's holding as meaning that before firing "an officer must identify himself and shout a warning while pinned down, kneeling behind a rock wall." The Judge Moritz dissent says the majority decision "creates new precedent with potentially deadly ramifications for law enforcement officers in this circuit." It's not clear which judge is mimicking the other. Dissenting Judge Hartz calls on the Supreme Court to settle the hotly contested issue.