Fault Lines
12 January 2019

SCOTUS Is Too Through With All Your “Brutality” Talk

January 12, 2017 (Fault Lines) – Steve Jobs, the former CEO of Apple, once remarked in a commencement speech that “[y]ou can’t connect the dots looking forward; you can only connect them looking backwards.”  It’s a fitting reminder for the legal arena: built on backwards-looking precedent, slow to adapt, and often unable to realize the ramifications of a given court decision at the time it’s issued.

That inability to recognize consequences seems particularly common with “per curiam” opinions, those unsigned “by the court” rulings that law professor Ira Robbins “noted” used to signal that a case was uncontroversial, obvious, and did not require a substantial opinion.”  There’s a readily apparent belief among non-lawyers   and even among lawyers themselves   that these per curiam opinions just aren’t as important as the signed ones everyone waits for with bated breath each Supreme Court session. And this historical perception still persists even as per curiam opinions form our still-enduring precedents for incitement, prior restraint, campaign finance, and have even determined Presidents.

So it was in keeping with that tradition that the Supreme Court quietly, but unanimously, took a sledgehammer to police brutality lawsuits this week.

The case, White v. Pauly, was greeted with relatively little fanfare from the good folks over at @SCOTUSblog:

A casual reader could be forgiven for assuming the opinion is “no big deal.” Even today, a search pulls up zero articles on the Supreme Court’s decision, with even little opinion commentary beyond the expected “coverage” at Above the Law, a prawf’s editorial in Bloomberg, and a post at Reason Hit & Run.  Even SCOTUSblog was bereft of analysis.

But to attorneys who handle civil rights cases, and to victims who’ve had their constitutional rights violated by their government, it’s hard to overstate how bad this opinion will be for the future of §1983 litigation.

Before getting into the ruling itself, a brief summary of the facts:  a pair of ladies called 911 to report that Samuel Pauly’s brother was driving recklessly, police arrived after the brother had left the scene, and the officers concluded they had insufficient probable cause to arrest… but wanted to “talk to him” anyway.

Two of the officers located the home where the Pauly brothers lived, and crept around the home at 11:00pm at night. When the Paulys heard someone outside and demanded to know who was present, the officers responded as one can apparently now expect of taxpayer-financed armed agents of the state:

Officers Mariscal and Truesdale laughed and responded: ‘Hey, (expletive), we got you surrounded. Come out or we’re coming in.

(Recall that the officers lacked reasonable suspicion to lurk around the curtilage of the Pauly home, and had no probable cause to enter the premises.  Also, New Mexico is a “Castle Doctrine” state, permitting the use of lethal force in self-defense, with no duty to retreat.)

One of the Pauly brothers, as one might expect of someone awoken at 11 p.m. by unknown people outside who identify themselves by shouting expletives and threatening to enter, replied, “We have guns,” as a third police officer arrived on scene.  That statement was enough to cause all of the officers to fear for their lives, draw their weapons and take cover.

A “few seconds” later Daniel Pauly (the one who had been driving recklessly) fired two warning shots from the back door “while screaming loudly.” Samuel Pauly (the one who owned the home) opened the front bedroom window and,  in “four to five seconds,” was shot dead by the third officer.

The Pauly estate filed suit under 42 U.S.C. § 1983, and the Defendants moved for summary judgment claiming they were entitled to qualified immunity. The District Court rejected the qualified immunity argument and a divided panel of the Tenth Circuit Court of Appeals affirmed (with sharp words exchanged in both the initial panel decision and a later denial of a request for an en banc hearing).  In its ruling, the Tenth Circuit stated what should be obvious:

Accepting as true plaintiffs version of the facts, a reasonable person in the officers position should have understood their conduct would cause Samuel and Daniel Pauly to defend their home[.]

The Tenth Circuit also held that the right to be free of deadly force by police in that scenario was “clearly established” at the time. Because again, obvious.

But the Supreme Court was in no mood for those shenanigans.

In its dissent-less per curiam opinion, the unanimous Court opened its analysis with a benchslap akin to a disappointed parent:

In the last five years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases. […] The Court has found this necessary both because qualified immunity is important to ‘society as a whole, and because as ‘an immunity from suit,’ qualified immunity ‘is effectively lost if a case is erroneously permitted to go to trial.’ […] Today, it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’

And just how much specificity does the (unanimous) Supreme Court think is required to avoid that “high level of generality”? They offered guidance by favorably quoting the factually-disputed and wholly-too-detailed-for-summary-judgment characterization from the Tenth Circuit’s dissent:

In a dissent from denial of rehearing, Judge Hartz noted that he was ‘unaware of any clearly established law that suggests…that an officer…who faces an occupant pointing a firearm in his direction must refrain from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall.

The Court then waved away the circumstances of the Pauly’s specific case, noting it “did not…constitute[] a run-of-the-mill Fourth Amendment violation” (one wonders how frequent Fourth Amendment violations are that they have become “run-of-the-mill”?). The Court then went on to vacate the lower courts’ rulings, holding that the right to not be shot dead in your home by unidentified trespassers was not “clearly established” at the time Samuel Pauly was given an extrajudicial summary execution without due process.

And it did all this to ensure there wouldn’t be “virtually unqualified liability simply by alleging violation of extremely abstract rights” (the twin rights to life and due process underpinning the Fifth Amendment now apparently being “extremely abstract”).

Justice Ruth Bader Ginsburg offered an unhelpful after-the-fact “this isn’t as bad as its looks” concurrence, noting that on remand, the officers could still be denied qualified immunity but a concurrence that would be wholly unnecessary if the opinion wasn’t actually just as bad as it looks.

The practical effect of the Supreme Court’s Pauly decision will be to disembowel nearly all future §1983 cases.
As every lawyer is taught in law school, each case is unique and “rises or falls on its own merits.”  Meaning, in practice, any trial or appellate judge even remotely inclined to protect bad police from the consequences of their bad decisions can easily distinguish any given case from all prior precedent sufficiently to avoid finding a “clearly established” right.

And, even worse, the Supreme Court has ensured there will be fewer such cases to ever reach a jury for new particularized fact scenarios to become clearly established precedent, as avoiding trial is the entire point of ending the case at the summary judgment stage with a finding of qualified immunity.

The Court’s logic is maddeningly circular: without trials, there are no particularized facts to establish precedent; without particularized facts as precedent, there are no clearly established rights; without clearly established rights, there are no trials.  It’s the type of totally clueless nonsense one expects from law professors or other non-practitioners, not from our highest court, supposedly occupied by the brightest minds from our best law schools. (And this post will be one of only a handful you’ll find on the internet about it for some time to come.)

At a time when accountability for law enforcement is an ongoing national conversation, roughly 1,153 people were killed by police last year, and a federal statute duly enacted by Congress and signed by a duly-elected President provides the only remotely effective means of redress, the Supreme Court of the United States unanimously said they refuse to even consider it anymore.

And the ramifications will be severe.

8 Comments on this post.

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  • Richard Kopf
    12 January 2017 at 10:26 am - Reply


    Thanks for this excellent post.

    I expect that you and I have vastly different perspectives regarding the substantive value of qualified immunity when viewed in the abstract. But, for those like you and me who also appreciate realism we are in firm agreement.

    For a district judge (like me), the default is almost always in favor of qualified immunity. Let the Circuit grapple with such things as the “level of generality.”

    In short, qualified immunity makes my head hurt, so I almost always leave it to my superiors on the Court of Appeals to set me straight. In short, and like the cops, I ain’t no hero.

    For an example, see Leroy DUFFIE, Plaintiff-Appellant v.CITY OF LINCOLN, A Municipal Corporation; Nathan Kaiser; Tobias Hite; Shane Jensen, 834 F.3d 877 (August 23, 2016) (compare the majority with the dissent)

    available at:

    Nice job. All the best.

    Rich Kopf

  • SCG
    12 January 2017 at 3:09 pm - Reply

    Wait a minute, let me make sure I have this straight…

    The police can shoot me dead anytime, anywhere.
    They don’t have to identify themselves — ever.
    I’m expected to read their minds to know that they are in fact police.
    At night
    When they cannot be seen.


    Will there ever be accountability? No wonder they is a sense that the police are the problem here.

  • DaveL
    12 January 2017 at 3:16 pm - Reply

    I had been wondering, in the wake of Mullenix v. Luna, exactly how these particularized sets of facts were ever going to become “well-established” if the mere fact they’ve never been adjudicated before bars them from going to trial on their merits. I guess now I have my answer.

  • Paul Cantrell
    12 January 2017 at 4:20 pm - Reply


    An excellent article. Perhaps I’m just getting old and crotchety, but of late I keep thinking about the police and the judicial system: “do they not see where this is going?”

  • The Magical Doctrine of Qualified Immunity | Simple Justice
    14 January 2017 at 7:18 am - Reply

    […] This comes at the same time the Supreme Court issued a per curiam opinion in White v. Pauly, which Greg Doucette contends is the Court’s way of telling the QI exception has just swallowed the […]

  • Brad
    14 January 2017 at 11:40 am - Reply

    “In short, qualified immunity makes my head hurt, so I almost always leave it to my superiors on the Court of Appeals to set me straight. In short, and like the cops, I ain’t no hero.”

    Look at it this way: the police officer always seems to have the money to appeal an adverse qi decision, but the plaintiff may, or may not, not. Judges are busy ppl, etc.

    All the best,


  • Supreme Court Takes Another Qualified Immunity Case
    20 January 2017 at 9:22 am - Reply

    […] as Greg Doucette has pointed out, that seems to be exactly what qualified immunity is for. It’s there to make sure […]

  • The Double Down On Qualified Immunity | Simple Justice
    18 March 2017 at 9:00 am - Reply

    […] than make it clearer, the Supreme Court gave courts a near-total pass on holding that a fact pattern failed to violate a clearly established right in White v. Pauly, […]