Pauly v. White
Decision Date | 11 April 2016 |
Docket Number | No. 14–2035.,14–2035. |
Citation | 817 F.3d 715 (Mem) |
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 |
Leon R. Hunt, Lee Hunt Law, Santa Fe, NM, Pierre Levy, O'Friel and Levy, P.C., Santa Fe, NM, for Plaintiffs–Appellees.
Matthew David Bullock, Mark Dawson Jarmie, Esq., Attorney, Jarmie & Associates, Albuquerque, NM, Mark D. Standridge, Jarmie & Associates, Las Cruces, NM, for Defendants–Appellants.
Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ, GORSUCH, HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH and MORITZ, Circuit Judges.
ORDERThis matter is before the court on the appellants' Petition for Rehearing and Rehearing
En Banc.
We also have a response from the appellees.
Upon consideration, the request for panel rehearing is denied by a majority of the original panel members. Both the petition and response were also transmitted to all of the judges of the court who are in regular active service. Upon that submission, a poll was called. Via an equally divided vote, the poll did not carry. Consequently, the request for en banc consideration is also denied. See Fed. R.App. P. 35(a) ( ).
Chief Judge Tymkovich, as well as Judges Kelly, Hartz, Gorsuch, Holmes and Moritz would grant the en banc petition. Judge Phillips has filed a separate concurrence in support of the denial of en banc rehearing, which Judge Briscoe joins. Judge Hartz and Judge Moritz have written separately in dissent. Judge Gorsuch joins Judge Hartz' dissent, and Judges Kelly, Hartz, Gorsuch and Holmes join Judge Moritz' dissent.
PHILLIPS, Circuit Judge, joined by BRISCOE, Circuit Judge, concurring in the denial of rehearing en banc.
I barely recognize the majority panel opinion when reading Judge Moritz's dissent from en banc denial (Dissent). And the reason, it turns out, is simple. Unlike the Dissent, the majority opinion credits the district court's findings and properly applies disputed evidence in favor of the plaintiffs. The Dissent and panel dissent cannot change the majority's holding by substituting its own facts after resolving the evidence in favor of the officers and against the plaintiffs. Here are some examples of how the Dissent does so:
The Dissent exaggerates the reach of the majority opinion's holding. By the Dissent's telling, the majority opinion would deny qualified immunity to an officer imminently exposed to gunfire from a suspect pointing a gun directly at the officer—even when another dangerous suspect is on the loose nearby. Moreover, according to the Dissent, the majority's rule would apply whether this happened in broad daylight and from close range. The short answer is that the majority opinion says no such thing. The opinion is limited to its facts. And its facts properly considered are those stated in the opinion, giving credit to the district court's findings and read in favor of the plaintiffs. If the facts were those stated in the Dissent and the panel dissent, this would be a very different case for our review.
Resolving the evidence in plaintiffs' favor—and not the officers' favor—leaves us with facts upon which a jury could reasonably find that Officer White killed Samuel Pauly for no good reason and while not endangered. Officer White himself testified that he couldn't say what Samuel Pauly was doing in the five seconds before Officer White's fatal shot. App. at 144. Officer...
To continue reading
Request your trial-
Pauly v. White
...force). Id. at 1091.After we issued our opinion, the officers filed a petition for rehearing en banc, which was denied. Pauly v. White , 817 F.3d 715 (10th Cir. 2016). In a dissent from denial, Judge Hartz noted that he was "unaware of any clearly established law that suggests ... that an o......
-
Carabajal v. City of Cheyenne
...motivation.2 Our conclusion is not altered by this court's decision in Pauly v. White, 814 F.3d 1060 (10th Cir.), reh'g denied, 817 F.3d 715 (10th Cir. 2016), vacatedper curiam, 580 U.S. ––––, 137 S.Ct. 548, ––– L.Ed.2d –––– (2017), which Mr. Carabajal submitted as supplemental authority un......
-
Pauly v. Vasquez
...814 F.3d 1060 (10th Cir.) (affirming denial of summary judgment in favor of officers), pet. for reh'g & reh'g en banc denied, 817 F.3d 715 (10th Cir. 2016), pet. for cert. filed (July 11, 2016). 4. The Court cites this and other unpublished opinions for their persuasive value. See 10th Cir.......
-
White v. Pauly
...from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall.” 817 F.3d 715, 718 (C.A.10 2016). Judge Hartz expressed his hope that “the Supreme Court can clarify the governing law.” Id ., at 719. The officers petitioned for ce......