Supreme Court Update: White v. Pauly (16-67)

January 10, 2017 Supreme Court Update

Greetings, Court Fans!

And Happy New Year! Yes, most of us kicked off 2017 over a week ago, but The Eight reassembled for the new (calendar) year yesterday, and rang it in with a summary reversal. We'll cover that decision and a late-breaking stay order in a case involving racial gerrymandering in North Carolina below.

White v. Pauly (No. 16-67) repeats a familiar complaint among the Justices: that lower courts are defining "clearly established law" for purposes of defeating qualified immunity in suits against government defendants at too high a level of generality. In this particular iteration, the Tenth Circuit had affirmed a decision denying qualified immunity to three police officers involved in a fatal shooting. Two of the officers had approached the secluded residence of two brothers, Daniel and Samuel Pauly, to investigate an earlier road rage incident involving Daniel. Though they agreed they had no probable cause to arrest Daniel and that no crime was ongoing, the two officers, Truesdale and Mariscal, approached in a covert manner and shouted "Hey, (expletive), we got you surrounded. Come out or we're coming in.'" Believing they were surrounded by intruders, the Paulys armed themselves and one of the brothers shouted "We have guns." At this point, the third officer, White, arrived. Having just heard someone inside the house shout that they were armed, White took cover behind a stone wall 50 feet from the front of the house. A few seconds later, Daniel stepped out the back door and fired two shotgun shots into the air. A few seconds after that, Samuel opened the front window and pointed a handgun in White's direction. Marsical fired at Samuel, but missed. Four or five seconds later, White took a shot at Samuel through the window and killed him. The Pauly's father sued on behalf of Samuel's estate, and a divided Tenth Circuit held that the officers were not entitled to qualified immunity. After a closely divided Tenth Circuit denied rehearing en banc, the officers petitioned for certiorari.

The Supreme Court granted cert and summarily vacated the Tenth Circuit's decision, holding that at least White was entitled to qualified immunity. Displaying no small amount of frustration, the Court, in a per curiam decision, found it "again necessary to reiterate the longstanding principle that ‘clearly established law' should not be defined at a high level of generality." Although the Court does not require a case directly on point for a right to be clearly established, the law must be "particularized to the facts of the case. Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." Because the Tenth Circuit failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment, he (at least) should have been granted summary judgment on qualified immunity grounds. However, the Court left the door open for the plaintiff to pursue an alternative theory against White, namely that a reasonable jury could infer that White, having arrived very shortly after the others and before any shots rang out, personally observed Marsical and Truesdale's deficient handling of the situation and should have realized corrective action was necessary before using deadly force. The Court also purported to express no opinion on whether Marsical and Truesdale were themselves entitled to qualified immunity. In a brief concurring opinion, Justice Ginsburg emphasized that she joined the per curiam opinion subject to her understanding that the Court expressed no opinion on these lingering issues.

That's the only opinion of 2017 so far, but the Court did make a bit more news this afternoon, issuing a stay in North Carolina v. Sandra Little Covington (No. 16A646), a case concerning redistricting and special elections in North Carolina. In August, a three-judge trial court ruled that North Carolina's legislative map was unconstitutionally gerrymandered, but it allowed the November election for state offices to proceed because there was not enough time for the legislature to draw a new map. After the election, while that August decision was on direct appeal to the Supreme Court, the trial court ordered special elections to be held in 2017, effectively cutting short the terms of many legislators, and set a March 15 deadline for lawmakers to draw a new map for the 2017 election. That order was stayed today by the Supreme Court, pending the Justices' review of the earlier filed appeal.

That'll do it for now. Stay tuned for more from the Court as the term rolls on.