Court: Cop in shooting shielded from litigation
Family of Glorieta man killed by officer in 2011 incident plans to appeal 10th Circuit’s ruling
The family of a Glorieta man who was fatally
shot at his home by a New Mexico State Police officer suffered a setback in its effort to recover
civil damages when a federal appellate court on
Tuesday reversed its earlier ruling and found that officers involved in the incident are protected by legal immunity.
Lee Hunt, the Santa Fe attorney representing the slain man’s family, called the ruling a “gut punch” and said he will appeal it to the U.S. Supreme Court.
The 10th Circuit Court of Appeals decision sets a precedent that could affect future litigation over similar officer-involved shootings in New Mexico.
The case stems from a 2011 incident in which Officer Ray White shot Samuel Pauly, 34, under cover of darkness from outside Pauly’s home on a rainy October night as Pauly stood beside a window inside his well-lit home.
White and two other officers had gone to the home that Pauly shared with his brother to follow up on a report of a road-rage incident in which the brothers allegedly had been involved earlier that evening on Interstate 25.
Pauly’s brother said after the incident that the officers did not clearly announce that they were police and the brothers, mistaking the lawmen for intruders, armed themselves
and fired warning shots out a back door, prompting White to shoot Pauly in the heart through an open window.
After a grand jury declined to indict the officers, Pauly’s family filed suit in state District Court, claiming the officers’ actions violated Pauly’s civil right to be free from use of excessive force.
State police got the case moved to the U.S. District Court in New Mexico for a decision on the constitutional issue and sought a summary judgment on the basis of “qualified immunity,” the concept that government officials are protected from lawsuits for doing their jobs unless their actions were clearly illegal.
U.S. District Judge Kenneth J. Gonzales rejected that argument and state police appealed to the 10th Circuit Court of Appeals, which upheld Gonzales’ ruling that qualified immunity did not protect the officers from being sued. State police appealed that decision to the U.S. Supreme Court, which reversed the appellate court decision in part, as it applied to White, but sent the case back the 10th Circuit, them to re-examine the immunity issue as it applied to the other two officers.
White’s behavior was singled out not only because he fired the shot that killed Pauly but because he had arrived on the scene after the other officers, the court noted, and may have come upon the scene after his fellow officers had already created a dangerous situation — by failing to properly announce themselves, for example — that would have justified White’s actions.
Upon re-examining the case, the 10th Circuit concluded that White had participated in the overall setting of the scene with his fellow officers, but the court ultimately reversed its earlier ruling. The appellate court decided that all the officers had participated in violating Pauly’s rights, but it also found that the officers were protected by qualified immunity from being sued because no previous court case spelled out that the officers’ actions should be considered unlawful.
“For a right to be clearly established there must be a Tenth Circuit or Supreme Court precedent close enough on point to make the unlawfulness of the officers actions apparent,” the decision states. “… The Supreme Court has noted that [we] do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”
In other words, Hunt said: “They decided White and the state police’s conduct violated Sam Pauly’s constitutional rights, but [White] is not held accountable for that, and the state is not held accountable for that, because there wasn’t some other case that was similar that told them what they were doing was wrong. … Even if it’s something that everybody knows is wrong, like surrounding a house without cause that a jury has never been asked to consider whether the officers’ actions were right or wrong. But, he said, a negligence claim that is part of the original litigation remains under the purview of the state court system and he will be able to take it to a jury on that point, regardless of how the U.S. Supreme Court rules on his appeal. The dead man’s father, Daniel Pauly, who has pursued the legal battle against state police on behalf of his son did not respond to a request for comment sent via Hunt. New Mexico State Police spokeswoman Elizabeth Armijo did not immediately respond to an email seeking comment.