Pauly Ex Rel. Estate of Pauly v. White, 2016 U.S. App. LEXIS 2184

Background

Late-night October 2011: after a daytime road‑rage report, three New Mexico state troopers (Mariscal, Truesdale, White) went to the Pauly brothers’ rural home to locate the reported vehicle; officers approached at night in rain without activating patrol flashing lights.
Officers Truesdale and Mariscal approached the front of the house stealthily and used a confrontational tone (“we got you surrounded…we’re coming in”); the brothers believed unknown intruders were at the door.
The brothers announced they had firearms; Daniel fired two warning shots from the back of the house. Shortly thereafter Samuel opened a front window and (according to officers) pointed a handgun toward Officer White.
Officer White, kneeling behind a stone wall about 50 feet from the house, shot and killed Samuel. For summary‑judgment purposes the district court adopted the plaintiffs’ version of disputed facts and denied qualified immunity to all three officers.
The officers appealed denial of qualified immunity; the Tenth Circuit (majority) affirmed as to all three, analyzing Mariscal/Truesdale together (liability for precipitating the confrontation) and White separately (reasonableness of the fatal shot).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Can Mariscal & Truesdale be liable under §1983 for creating the need for deadly force?	Their surreptitious, threatening approach at night made it foreseeable the occupants would arm themselves; that conduct set in motion events causing Samuel’s death.	Their pre‑seizure conduct was reasonable (no exigency, investigatory contact) and not the proximate/but‑for cause of Samuel’s death.	Held: Triable issues exist — a reasonable jury could find their conduct foreseeably prompted the brothers to defend the home; denial of qualified immunity affirmed.
2) Did the brothers’ pointing a gun constitute a superseding intervening act cutting off officers’ liability?	The brothers’ defensive response was foreseeable given officers’ approach and unclear identification; not a superseding unforeseeable act.	The brothers’ sudden threat was independent and unexpected, superseding any earlier misconduct.	Held: Fact question for jury; not necessarily superseding — qualified immunity denied at summary judgment.
3) Was Officer White’s shooting of Samuel an objectively unreasonable use of deadly force?	Viewed in plaintiffs’ favor: White was behind cover ~50 ft away, lacked probable cause that he or others faced an immediate threat, gave no warning, and it is disputed whether Samuel even fired.	White saw Samuel point a handgun at him (and heard shots at rear believed to hit a fellow officer); a reasonable officer would perceive an immediate threat and need to shoot without warning.	Held: Triable issues exist on reasonableness (distance, cover, warning feasibility, whether Samuel fired); denial of qualified immunity affirmed.
4) Was the illegality of White’s conduct clearly established at the time?	Precedent (Graham/Garner and Tenth Circuit decisions) clearly required an immediate‑threat showing and, where feasible, a warning; officers should have known deadly force was unlawful here.	Law wasn’t clearly established in the specific circumstances; Mullenix and related decisions caution against defining clearly established law at a high level of generality.	Held: Under the sliding‑scale approach (Casey/Hope), the court concluded law was sufficiently clear here to deny qualified immunity to White given the particular facts accepted at summary judgment.

Key Cases Cited

Graham v. Connor, 490 U.S. 386 (excessive‑force reasonableness analysis)
Tennessee v. Garner, 471 U.S. 1 (deadly force allowed only for immediate threat; warning where feasible)
District of Columbia v. Heller, 554 U.S. 570 (right to possess arms in the home; self‑defense in home)
Trask v. Franco, 446 F.3d 1036 (but‑for/proximate causation and foreseeability for §1983 liability)
Tenorio v. Pitzer, 802 F.3d 1160 (Fourth Amendment excessive‑force factors)
Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255 (factors for assessing threat and deadly force)
Mullenix v. Luna, 136 S. Ct. 305 (limits on defining clearly established law too generally)
Hope v. Pelzer, 536 U.S. 730 (notice/clearly‑established law principles)
Brosseau v. Haugen, 543 U.S. 194 (qualified immunity and context‑specific analysis)
Wilson v. Meeks, 52 F.3d 1547 (officer’s use of deadly force justified where suspect aimed a firearm at officer)