RAY WHITE, ET AL.
DANIEL T. PAULY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SAMUEL PAULY, DECEASED ET AL.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT.
case addresses the situation of an officer who- having
arrived late at an ongoing police action and having witnessed
shots being fired by one of several individuals in a house
surrounded by other officers-shoots and kills an armed
occupant of the house without first giving a warning.
to the District Court and the Court of Appeals, the record,
when viewed in the light most favorable to respondents, shows
the following. Respondent Daniel Pauly was involved in a
road-rage incident on a highway near Santa Fe, New Mexico.
814 F.3d 1060, 1064-1065 (CA10 2016). It was in the evening,
and it was raining. The two women involved called 911 to
report Daniel as a "'drunk driver'" who was
"'swerving all crazy.'" Id., at
1065. The women then followed Daniel down the highway, close
behind him and with their bright lights on. Daniel, feeling
threatened, pulled his truck over at an off-ramp to confront
them. After a brief, nonviolent encounter, Daniel drove a
short distance to a secluded house where he lived with his
brother, Samuel Pauly.
between 9 p.m. and 10 p.m., Officer Kevin Truesdale was
dispatched to respond to the women's 911 call. Truesdale,
arriving after Daniel had already left the scene, interviewed
the two women at the off-ramp. The women told Truesdale that
Daniel had been driving recklessly and gave his license plate
number to Truesdale. The state police dispatcher identified
the plate as being registered to the Pauly brothers'
the women left, Officer Truesdale was joined at the off-ramp
by Officers Ray White and Michael Mariscal. The three agreed
there was insufficient probable cause to arrest Daniel.
Still, the officers decided to speak with Daniel to (1) get
his side of the story, (2) "'make sure nothing else
happened, '" and (3) find out if he was intoxicated.
Id., at 1065. The officers split up. White stayed at
the off-ramp in case Daniel returned. Truesdale and Mariscal
drove in separate patrol cars to the Pauly brothers'
address, less than a half mile away. Record 215. Neither
officer turned on his flashing lights.
Officers Mariscal and Truesdale arrived at the address they
had received from the dispatcher, they found two different
houses, the first with no lights on inside and a second one
behind it on a hill. Id., at 217, 246. Lights were
on in the second one. The officers parked their cars near the
first house. They examined a vehicle parked near that house
but did not find Daniel's truck. Id., at 310.
Mariscal and Truesdale noticed the lights on in the second
house and approached it in a covert manner to maintain
officer safety. Both used their flashlights in an
intermittent manner. Truesdale alone turned on his flashlight
once they got close to the house's front door. Upon
reaching the house, the officers found Daniel's pickup
truck and spotted two men moving around inside the residence.
Truesdale and Mariscal radioed White, who left the off-ramp
to join them.
approximately 11 p.m., the Pauly brothers became aware of the
officers' presence and yelled out "'Who are
you?'" and "'What do you want?'"
814 F.3d, at 1066. In response, Officers Mariscal and
Truesdale laughed and responded: "'Hey, (expletive),
we got you surrounded. Come out or we're coming
in.'" Ibid. Truesdale shouted once:
"'Open the door, State Police, open the
door.'" Ibid. Mariscal also yelled:
"'Open the door, open the door.'"
Pauly brothers heard someone yelling, "'We're
coming in. We're coming in.'" Ibid.
Neither Samuel nor Daniel heard the officers identify
themselves as state police. Record 81-82. The brothers armed
themselves, Samuel with a handgun and Daniel with a shotgun.
One of the brothers yelled at the police officers that
'"We have guns.'" 814 F.3d, at 1066. The
officers saw someone run to the back of the house, so Officer
Truesdale positioned himself behind the house and shouted
"'Open the door, come outside.'"
White had parked at the first house and was walking up to its
front door when he heard shouting from the second house. He
half-jogged, half-walked to the Paulys' house, arriving
"just as one of the brothers said: 'We have
guns.'" Ibid.; see also Civ. No. 12-1311 (D
NM, Feb. 5, 2014), App. to Pet. for Cert. 75-78. When White
heard that statement, he drew his gun and took cover behind a
stone wall 50 feet from the front of the house. Officer
Mariscal took cover behind a pickup truck.
"a few seconds" after the "We have guns"
statement, Daniel stepped part way out of the back door and
fired two shotgun blasts while screaming loudly. 814 F.3d, at
1066-1067. A few seconds after those shots, Samuel opened the
front window and pointed a handgun in Officer White's
direction. Officer Mariscal fired immediately at Samuel but
missed. "'Four to five seconds'" later,
White shot and killed Samuel. Id., at 1067.
District Court denied the officers' motions for summary
judgment, and the facts are viewed in the light most
favorable to the Paulys. Mullenix v. Luna, 577
U.S.__, __, n. (2015) (per curiam) (slip op., at 2,
n.). Because this case concerns the defense of qualified
immunity, however, the Court considers only the facts that
were knowable to the defendant officers. Kingsley v.
Hendrickson, 576 U.S.__, __(2015) (slip op., at 9).
estate and Daniel filed suit against, inter alia,
Officers Mariscal, Truesdale, and White. One of the claims
was that the officers were liable under Rev. Stat.
§1979, 42 U.S.C. §1983, for violating Samuel's
Fourth Amendment right to be free from excessive force. All
three officers moved for summary judgment on qualified
immunity grounds. White in particular argued that the Pauly
brothers could not show that White's use of force
violated the Fourth Amendment and, regardless, ...