Pauly v. White, 14–2035.

• Citation: 814 F.3d 1060
• Decision Date: 09 February 2016
• Docket Number: No. 14–2035.,14–2035.
• Parties: Daniel T. PAULY, as personal representative of the estate of Samuel Pauly, deceased; Daniel B. Pauly, Plaintiffs–Appellees, v. Ray WHITE; Michael Mariscal; Kevin Truesdale, Defendants–Appellants, and State of New Mexico, Department of Public Safety, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

814 F.3d 1060

Daniel T. PAULY, as personal representative of the estate of Samuel Pauly, deceased; Daniel B. Pauly, Plaintiffs–Appellees,

v. Ray WHITE; Michael Mariscal; Kevin Truesdale, Defendants–Appellants,andState of New Mexico, Department of Public Safety, Defendant.

No. 14–2035.

United States Court of Appeals, Tenth Circuit.

Feb. 9, 2016.

Matthew D. Bullock (Mark D. Jarmie on the briefs) of Jarmie & Associates, Albuquerque, NM, for Defendants–Appellants.

Lee R. Hunt of Lee Hunt Law, LLC, Santa Fe, NM (Daniel J. O'Friel and Pierre Levy of O'Friel and Levy, P.C., with him on the brief), for Plaintiffs–Appellees.

Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.

SEYMOUR

, Circuit Judge.

On a dark and rainy night in October 2011, Samuel Pauly was shot to death through the window of his rural New Mexico home by one of three state police officers investigating an earlier road rage incident on Interstate 25 involving his brother. On behalf of Samuel Pauly's estate, his father filed a civil rights action against the three officers, the State of New Mexico Department of Public Safety, and two state officials, claiming defendants violated his son's Fourth Amendment right against the use of excessive force.¹ The officers moved for summary judgment, asserting qualified immunity. The district court denied their motions, and they appeal. We affirm.

IBackground

In reviewing an interlocutory appeal from the denial of qualified immunity, "we ‘take, as given, the facts that the district court assumed when it denied summary judgment.’ " Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir.2012)

(quoting Johnson v. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ). To be sure, "[w]e may review whether the set of facts identified by the district court is sufficient to establish a violation of a clearly established constitutional right, but we may not consider whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove." Id. (internal quotation marks omitted). When we recite the facts of the case, "we view the evidence in the light most favorable to the non-moving party." Weigel v. Broad, 544 F.3d 1143, 1147 (10th Cir.2008)

(internal quotation marks omitted). Accordingly, the following facts are taken directly from the material facts section in the district court orders denying qualified immunity,² where the court noted that its "recitation of material facts and reasonable references reflect the Plaintiffs' version of the facts as gleaned from the evidence of record and excludes facts, contested or otherwise, which are not properly before this Court in the motions for summary judgment." Aplt.App. at 693.

A. Facts

The incidents underlying this action started the evening of October 4, 2011, when Daniel Pauly became involved in a road rage incident with two females on the interstate highway going north from Santa Fe, New Mexico. One of the women called 911 to report a "drunk driver," claiming the driver was "swerving all crazy" and turning his lights off and on. Id. at 694. The women then started to follow Daniel on Interstate 25, apparently tailgating him.

Daniel pulled his truck over at the Glorieta exit, as did the female driver of the car. Daniel felt threatened by the women and asked them why they were following him with their bright lights on. During this confrontation one of the women claimed Daniel was "throwing up gang signs." Id. He then left the off-ramp and drove a short distance to the house where he lived with his brother, Samuel. The house is located in a rural wooded area on a hill behind another house.

At some point between 9:00 and 10:00 p.m., a state police dispatcher notified Officer Truesdale about the 911 call. Officer Truesdale proceeded to the Glorieta off-ramp to speak to the women about the incident. Daniel had already left when Officer Truesdale arrived on scene. Officers Mariscal and White were also on their way to the off-ramp to assist Officer Truesdale. The women told Officer Truesdale that Daniel was driving recklessly. They described his vehicle as a gray Toyota pickup truck and provided dispatch with his license plate number. Dispatch notified Officer Truesdale that the Toyota pickup truck was registered to an address on Firehouse Road near the Glorieta off-ramp.

The women then went on their way, and at that point "any threat to [them] was over." Id. at 676. Officers White and Mariscal arrived to join Officer Truesdale. The officers all agreed that there was not enough evidence or probable cause to arrest Daniel, and that no exigent circumstances existed at the time. Nevertheless, the officers decided to try and speak with Daniel to get his side of the story, "to make sure nothing else happened," and to find out if he was intoxicated. Id. at 677. Officers Truesdale and Mariscal decided they should take separate patrol units to the Firehouse Road address in Glorieta to see if they could locate Daniel's pickup truck. Officer White stayed at the off-ramp in case Daniel returned. Although it was dark and raining by that time, none of the officers were wearing raincoats.

Officers Mariscal and Truesdale proceeded to the Firehouse Road address and parked along the road in front of the main house. Both vehicles had their headlights on and one vehicle had its takedown lights on, but neither vehicle had activated its flashing lights. The officers did not see Daniel's truck at the main house but behind it they noticed a second house with its lights and porch lights on. They decided to approach the second house in an attempt to locate Daniel's pickup truck. As they walked towards that house, the officers did not activate their security lights.

To maintain officer safety, Officers Mariscal and Truesdale approached the second house in a manner such that neither brother knew the officers were at the property. The officers did not use their flashlights at first, and then only used them intermittently. Officer Truesdale turned on his flashlight as he got closer to the front door of the brothers' house. Through the front windows, the officers could see two males moving inside the house. When they located Daniel's Toyota pickup truck, they contacted Officer White to so advise him. Officer White then left to join them.

At roughly 11:00 p.m., the brothers could see "through the front window two blue LED flashlights, five or seven feet apart, coming towards the house." Id. at 678. Daniel could not tell who was holding the flashlight approaching the house because of the dark and the rain but he feared it could be intruders related to the prior road rage altercation. "[I]t did not enter Daniel Pauly's mind that the figures could have been police officers." Id. The brothers hollered several times, "Who are you?" and, "What do you want?" Id. In response, the officers laughed and said: "Hey, (expletive), we got you surrounded. Come out or we're coming in." Id. Officer Truesdale also shouted once, "Open the door, State Police, open the door," while Officer Mariscal stated, "Open the door, open the door." Id. at 678–79. Daniel did not hear anyone say "State Police" until after the entire altercation was over. Id.

Fearing for their lives and the safety of their dogs, the brothers decided to call the police to report the unknown intruders. Before Daniel could call 911, however, he heard someone yell: "We're coming in. We're coming in." Id. at 679. Believing that an invasion of their home was imminent, Samuel retrieved a loaded handgun for himself as well as a shotgun and ammunition for Daniel. Daniel told his brother he would fire some warning shots while Samuel went back to the front of the house. One of the brothers then hollered, "We have guns." Id. at 679. The officers saw an individual run to the back of the house, so Officer Truesdale proceeded to position himself towards the rear of the house. He then shouted, "Open the door, come outside." Id.

While Officers Truesdale and Mariscal were attempting to get the brothers to come outside, Officer White arrived at the Firehouse Road address and approached the house in the back, using his flashlight periodically. He saw individuals moving inside the house and arrived just as one of the brothers said: "We have guns." Id. at 680. Officer White testified in his deposition that when he heard this statement he immediately drew his weapon and took cover behind a stone wall fifty feet away from the front of the brothers' house. Id. at 221; see also id. at 680. Officer Mariscal also took cover behind a pickup truck, while Officer Truesdale remained in his position at the back of the house.

Because of the prior threatening statements made by Officer Truesdale and Mariscal, Daniel did not feel comfortable stepping out of the front door to fire warning shots. But a few seconds after the officers heard, "We have guns," id. at 680, Daniel stepped partially out of the back door and fired two warning shots while screaming loudly to scare anyone off. Officer White thought Officer Truesdale had been shot after hearing the two shotgun blasts.³ A few seconds after Daniel fired the warning shots, Officer Mariscal and White noticed Samuel open the front window and point a handgun in Officer White's direction. Officer Mariscal testified he immediately shot at Samuel but missed. "Four to five seconds after Samuel Pauly pointed his handgun at Officer White, Officer White shot Samuel" from his covered position fifty feet away. Id. at 681. The entire incident took less than five minutes.

B. Procedural History

Plaintiff Daniel T. Pauly, as the personal representative of the Estate of Samuel Pauly, filed suit against Officers Mariscal, Truesdale, and White, the State of New Mexico Department of Public Safety (NMDPS), and two state officials. He alleged an excessive force claim under 42 U.S.C. § 1983

and several state law claims. Plaintiffs seek compensatory damages, punitive damages, pre- and post-judgment interest, and costs and attorneys' fees on...