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January 9, 2017
SCOTUS issues per curiam opinion strengthening claim of qualified immunity after police shootout
The Supreme Court's first big order list of 2017 had no cert grants, which I think provides still more evidence that the Justices are disinclined to take up much of note until they get a replacement for Justice Scalia. But the court found one case they could resolve through a summary opinion, White v. Pauly, No. 16–67 (S. Ct. Jan. 9, 2017) (available here). In this case, the Supreme Court vacating a split Tenth Circuit ruling that had denied qualified immunity to a New Mexico police officer after deadly shooting during a confrontation with armed suspects. Here is how the opinion starts and a key passage:
This 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....
This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the majority did not conclude that White’s conduct — such as his failure to shout a warning — constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene. 814 F.3d, at 1077. This alone should have been an important indication to the majority that White’s conduct did not violate a “clearly established” right. Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed. No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.
Th per curiam opinion closes with a lot of nuance as to what the Justices were not deciding, and a concurring opinion by Justice Ginsburg highlights that point.
January 9, 2017 at 10:09 AM | Permalink
This is an interesting case, and it packs a lot of punch. What the Court is basically saying is that, vis-à-vis an individual cop's civil culpability, that there is a strong presumption of regularity with respect to the actions of other cops. There is a lot to say for this--given that cops showing up on the scene don't have the luxury of time--but it likely can work injustice in individual cases.
Posted by: federalist | Jan 9, 2017 2:26:46 PM
"No settled Fourth Amendment principle requiresthat officer to second-guess the earlier steps already
taken by his or her fellow officers in instances like the one White confronted here."
If it is not settled why did the court not take the time to settle it?! This how bogus qualified immunity has become.
The problem here is not "regularity" but rather "professionalism," a presumption that there is every reason to be highly dubious of. Especially when it comes to cops in the state of NM who are not known for their professionalism.
I agree that fundamentally Office White was in a tight spot. He arrived on the scene where there was a "fog of war" going on. Shots were being fired. What was he supposed to do?! It's a fair point.
But it is also a fair point that that if cops are as professional as they let on to be, a professional cop would have taken the time to figure out what the theater of operations was like before entering it. If he chose to go in blind and ignorant, i fail to see how that is Pauly's problem. If there was a fog or war as seen from the police's point of view, there was also a fog or was as seen from the suspects point of view. i see no reason why the police should get the benefit of the doubt in such situations.
Posted by: Daniel | Jan 9, 2017 3:32:30 PM
"a professional cop would have taken the time to figure out what the theater of operations was like before entering it."
Posted by: federalist | Jan 9, 2017 3:45:15 PM
For a brief per curiam, the opinion to my eye was rather fact heavy -- could almost write a police show scene from the details. The opinion as noted also leaves an alternative avenue of relief. Still, not sure the sense in singling out this case for a brief per curiam like this, where two lower courts found against the person.
The "likely can work injustice in individual cases" would for me personally also be an argument in not applying immunity rules too strictly. Daniel's comments are sound as a whole here. Note, the officer isn't assumed guilty here. It is just that the officer might be found at fault by a judge or jury. In practice, I reckon police would get the benefit of the doubt in such cases & say this from experience as a viewer of actions in an liberal leaning urban area.
Posted by: Joe | Jan 9, 2017 6:15:17 PM
Shoot first, knock and announce authority and purpose later.
Posted by: Barry Baker Sipe | Jan 9, 2017 7:12:28 PM
Shoot first, knock and announce authority and purpose second.
Gee, what's that 1983 case? HudsonMI?
Posted by: Barry Baker Sipe | Jan 9, 2017 7:16:55 PM