Friday, September 02, 2016

No Qualified Immunity for Officers Who Shot Man In His Home

Pauly v. White, 2016 WL 502830 (2/9/16) (N.M.) (Published) - A divided 10th affirms denial of qualified immunity to officers involved in the killing of a man in his home in rural New Mexico. Late one night a woman called 911 saying a man, who turned out to be Daniel Pauly, was driving "all crazy." Accompanied by another woman, she followed Daniel until he stopped and asked them why they were following him. There was a verbal confrontation. Daniel left and drove a short way to his home that he shared with his soon-to-be-deceased brother, Samuel, in a rural wooded area. Officers met up with the women. The women went on their way. Daniel was no longer a threat to the women. A number of officers went to the Pauly home. They didn't think they had probable cause to arrest Daniel or that exigent circumstances existed. But they wanted to talk to Daniel to get his side of the story [i.e., see if he would say something incriminatory] and see if he was intoxicated. The officers entered the property without using any flashing lights to indicate they were police. According to Daniel, they never announced they were police until after everything was over. The brothers saw people with flashlights approaching. The brothers asked who they were. The officers laughed and said: "We got you surrounded. Come out or we're coming in." Believing they were about to be invaded, the brothers armed themselves with guns. One brother hollered: "We have guns." A few seconds later, Daniel stepped partly out of the back door and fired two warning shots while screaming loudly to try to scare the invaders off. A few seconds later, officers saw Samuel open the front window and point a handgun in an officer's direction. That officer shot and killed Samuel from his covered position 50 feet away. All this took place in less than five minutes.

The 10th holds that the conduct of the two officers who first arrived at the home was a but-for cause of Samuel's death and Samuel's pointing the gun was not an intervening act that superseded the officers' liability. The 10th notes the brothers had the constitutional right to use arms to protect their home. Plus under New Mexico law they had the right to use lethal force against an intruder when such force was necessary to prevent the commission of a felony in their home. Actual entry into the home is not necessary for that right to arise. Since it was objectively reasonable for the officers to determine the brothers might believe the officers were intruders [given the earlier road rage incident; officers' threats to enter the home, the darkness and the failure of the officers to identify themselves as officers], a jury could find it was foreseeable the brothers would arm themselves in defense of their home, as New Mexico law allowed. It was clearly established that what the officers were alleged to have done violated the Fourth Amendment, the 10th rules.

The 10th also holds the shooting officer, who arrived later than the first two officers and did not know about the other two officers' frightening conduct, could be liable for the use of excessive force. The factors in favor of that ruling include: the crime of which Daniel was suspected, reckless driving or DWI, was a minor crime; before Samuel pointed his gun, the shooting officer was protected behind a stone wall 50 feet away and another officer was protected behind a pickup truck, Samuel couldn't aim very well because he could not see out of a lighted house into the dark, although the shooting officer thought Daniel's warning shots hit an officer, he did not hear anything that would suggest the shots hit anyone [in sum, Samuel was not an immediate threat to the officers' safety]; there were no exigent circumstances and no probable cause to arrest, so the brothers were not attempting to evade arrest by flight; the shooting officer did not order the brothers to drop their weapons, even though he might have had time to do so; and it was possible Samuel never fired his weapon, making his intentions unclear. The 10th stresses courts should ensure officers don't take advantage of the fact that a potential contradicting witness--the victim---is unable to testify. The shooting officer was under fair notice his conduct would violate the Constitution. No qualified immunity.

Judge Moritz dissents. She points out the two officers who obviously engaged in egregious conduct could not be held liable unless the shooting officer could be held liable. She thinks the majority impermissibly second-guesses the shooting officer's split-second decision to use deadly force in self-defense.