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Pauly v. White

United States Court of Appeals, Tenth Circuit

October 31, 2017

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

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:12-CV-01311-KG-JHR)

          Mark D. Jarmie (Mark D. Standridge, on the brief), of Jarmie & Associates, Las Cruces, New Mexico, for Defendants-Appellants.

          Lee R. Hunt, Hunt & Marshall, Santa Fe, New Mexico (Pierre Levy, O'Friel and Levy, P.C., Santa Fe, New Mexico, with him on the brief), for Plaintiffs-Appellees.

          Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.


         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 who were 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] After depositions were taken, the officers moved for summary judgment, asserting qualified immunity. The district court denied their motions, they appealed, and we affirmed. Pauly v. White (Pauly I), 814 F.3d 1060, 1084 (10th Cir. 2016). The Supreme Court granted certiorari, vacated our judgment, and remanded the case to us for further consideration. White v. Pauly (Pauly II), 137 S.Ct. 548 (2017). We now reverse.



         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 (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. As we explain below, infra at 16-18, 20-23, given the Court's determination in Pauly II, 137 S.Ct. at 552, we set out the facts here more fully than we did in Pauly I.

         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. Aplt. App. 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. Officers Mariscal and White also headed to the off-ramp to assist Officer Truesdale. Daniel was gone when Officer Truesdale arrived on scene. 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. It was dark and raining by that time.

         Officers Mariscal and Truesdale proceeded to the Firehouse Road address and parked along the road in front of the main house. This occurred at 11:14 p.m. 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 they noticed a second house behind it with its interior 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 11:16 p.m., Officer White arrived on the scene. He radioed dispatch to inform them that all units were at the residence, and he confirmed with dispatch that the suspect vehicle was there. At 11:17, Officer White can be seen on Officer Truesdale's COBAN video[3] as "he beg[an] to walk down the road a few steps before turning around and heading out of sight up the driveway leading to a residence." Id. at 164. Officer White testified that the reason he changed directions was because he "began to hear Officer Mariscal and Officer Truesdale announcing, 'New Mexico State Police, ' from the rear of th[e] property." Id. at 216.

         From the Pauly brothers' perspective, the officers' approach to their residence was confusing and terrifying. The brothers could see "through the front window two blue LED flashlights, five or seven feet apart, at chest level, 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 said, "Open the door, open the door." Id. at 678-79. But 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, and the officers subsequently saw an individual run to the back of the house. Officer Truesdale proceeded to position himself towards the rear of the house and shouted, "Open the door, come outside, " id., while Officer White drew his weapon and took cover behind a stone wall fifty feet away from the front of the house and Officer Mariscal took cover behind one of the brothers' trucks.

         Because of the prior threatening statements made by Officers 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.[4] A few seconds after Daniel fired the warning shots, Officers Mariscal and White observed 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

         Daniel T. Pauly (Daniel and Samuel's father), as the personal representative of the Estate of Samuel Pauly, and Daniel B. Pauly on behalf of himself (hereinafter "plaintiffs"), filed suit against Officers Mariscal, Truesdale, and White, the State of New Mexico Department of Public Safety ("NMDPS"), and two state officials. Plaintiffs alleged an excessive force claim under 42 U.S.C. § 1983 as well as several state law claims. They sought compensatory damages, punitive damages, pre- and post-judgment interest, costs, and attorneys' fees. Relevant here is plaintiffs' § 1983 claim against all three officers for violating Samuel Pauly's Fourth Amendment right to be free from excessive force.

         All three officers moved for summary judgment and raised the defense of qualified immunity with respect to the § 1983 excessive force claim. Defendants analyzed the excessive force claim by reviewing the actions of each deputy individually, not their actions as a whole. They all argued they were entitled to qualified immunity.

         Specifically, Officer White asserted that when Samuel pointed the gun in his direction, deadly force was justified under the totality of the circumstances because any police officer would have reasonably assumed his life was in danger whether or not Samuel intended to fire. He contended it was not feasible for him to warn Samuel to drop his weapon.

         Officer Truesdale argued it was undisputed that he did not fire his weapon at Samuel Pauly and therefore he could only be liable if his pre-seizure conduct "created the need for deadly force in this incident through his own reckless, deliberate conduct" that "was immediately connected to Officer White's use of force in self-defense." Aplt. App. at 359. He then argued that his actions leading up to the use of force were reasonable and that even if he made mistakes in how he approached the house, none of his conduct preceding the use of force by Officer White was reckless or deliberate. He further claimed his actions were not the but-for or proximate cause of Samuel's death because the brothers' own actions were "independent and unexpected intervening events" amounting to a superseding cause of death that defeated any liability on his part. Id. at 363-64.

         Officer Mariscal argued that when he saw Samuel point the gun at Officer White, "he was clearly justified in using deadly force in defense of Officer White's life." Id. at 392-93. Like Officer Truesdale, Officer Mariscal contended that his actions leading up to the use of force were not reckless or deliberate, and that his pre-seizure conduct was not the but-for or proximate cause of Samuel's death.

         The district court issued two orders, denying summary judgment on all claims. In its first order, the court denied Officer White qualified immunity, concluding that "the record contains genuine disputes of material fact regarding whether the Officers' conduct prior to the shooting of Samuel Pauly was at the very least reckless and unreasonably precipitated Officer White's need to shoot Samuel Pauly." Id. at 684. Based on the record, the court also determined that

it is disputed whether (1) the Officers adequately identified themselves, either verbally or by using a flashlight; (2) the brothers could, nonetheless, see the Officers considering the ambient light and other light sources; and (3) it was feasible for Officer White to warn Samuel Pauly before shooting him.
Furthermore, viewing the evidence in the light most favorable to Plaintiffs, a reasonable jury could find the following: there were no exigent circumstances requiring the Officers to go to Daniel Pauly's house at 11:00 p.m.; Officers Truesdale and Mariscal purposefully approached the house in a surreptitious manner; despite the porch light and light from the house, the rain and darkness made it difficult for the brothers to see who was outside their house; the fact that the brothers' house is located in a rural wooded area would have heightened the brothers' concern about intruders; the Officers provided inadequate police identification by yelling out "State Police" once; the Officers' use of a hostile tone in stating, "we got you surrounded. Come out or we're coming in" was threatening; statements by Officers Truesdale and Mariscal of "open the door" and other statements of "we're coming in" were, likewise, threatening; it would have been reasonable for the Officers to conclude that Daniel Pauly could believe that persons coming up to his house at 11:00 p.m. were connected to the road rage incident which had occurred a couple of hours previously; that under these circumstances, the occupants of the house would feel a need to defend themselves and their property with the possible use of firearms; and the incident occurred in less than five minutes.

Id. at 684-85. The court made virtually the same determinations in its separate order denying qualified immunity to Officers Truesdale and Mariscal. Id. at 703-04.

         All three officers appealed the denial of their qualified immunity, and we affirmed. Pauly I, 814 F.3d at 1084. We analyzed Officers Mariscal and Truesdale together and Officer White by himself because the "facts and circumstances" warranted it. Id. at 1071. The main reason we separated the qualified immunity inquiries is because we viewed Officer White's role in the altercation as completely disconnected from the roles of Officers Mariscal and Truesdale. For instance, in the background section, we stated that Officer White "arrived just as one of the brothers said: 'We have guns.'" Id. at 1066. Later, when analyzing the reasonableness of Officer White's conduct, we stated the following:

Officer White did not participate in the events leading up to the armed confrontation, nor was he there to hear the other officers ordering the brothers to "Come out or we're coming in." Aplt. App. at 678. Almost immediately upon Officer White's arrival, one of the brothers shouted "We have guns." The alleged reckless conduct of Officers Mariscal and Truesdale prior to this point cannot be attributed to Officer White, and accordingly, our analysis focuses only on the reasonableness of his own conduct.

Id. at 1076.

         In regard to Officers Mariscal and Truesdale, we started by analyzing their pre-seizure conduct to determine whether they had "caused" Samuel Pauly to be subjected to a constitutional deprivation. Id. at 1072. Relying on Trask v. Franco, 446 F.3d 1036 (10th Cir. 2006), we stated that "Officers Mariscal and Truesdale may be held liable if their conduct immediately preceding the shooting was the "but-for" cause of Samuel Pauly's death, and if Samuel Pauly's act of pointing a gun at the officers was not an intervening act that superseded the officers' liability." Id. We concluded that summary judgment was not appropriate regarding Officers Mariscal's and Truesdale's claimed entitlement to qualified immunity because "disputed facts remain[ed] concerning whether the officers properly identified themselves and whether the brothers knew Officers Mariscal and Truesdale were intruders or state police." Id. at 1074. In regard to whether Officers Mariscal and Truesdale had violated clearly established law, we relied on Trask again and held that it had been clearly established since 2006 that an officer would be held liable for any conduct that is the proximate cause of a constitutional deprivation. Id. at 1075-76.

         Turning to Officer White, we stated that the case "present[ed] a unique set of facts and circumstances, particularly in the case of Officer White who arrived late on the scene and heard only 'We have guns, ' aplt. app. at 680, before taking cover behind a stone wall fifty feet away from the Paulys' residence." Id. at 1077. We started by reiterating the Supreme Court's instruction that in excessive force cases, courts should determine an officer's reasonableness by "balancing 'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'" Id. (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)). In doing so, we looked to the three non-exclusive factors articulated in Graham v. Connor, 490 U.S. 386, 396 (1989), as well as the four factors listed in Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008), and determined that a reasonable jury could find that Officer White's conduct was objectively unreasonable and violated the Fourth Amendment. Pauly I, 814 F.3d at 1082.

         We next turned to whether the law was clearly established at the time of Officer White's possible violation. We noted that "[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 1083 (quoting Saucier v. Katz, 53 U.S. 194, 202 (2001)). We relied on Graham, 490 U.S. at 396, Tennessee v. Garner, 471 U.S. 1, 11-12 (1985), and their Tenth Circuit progeny for the general proposition that the reasonableness of an officer's use of force depends, in part, on "whether the officer[] [was] in danger at the precise moment that [he] used force, " Pauly I, 814 F.3d at 1083 (quoting Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997)), and that "if [a] suspect threatens [an] officer with a weapon . . . deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given, " id. (quoting Garner, 471 U.S. at 11-12).

         Recognizing that the Supreme Court has cautioned lower courts not to define clearly established law too generally, see, e.g., Mullenix v. Luna, 136 S.Ct. 305 (2015), we stated the following:

Notably, in Brosseau [v. Haugen], 543 U.S. [194, ] 199, 125 S.Ct. 596');">125 S.Ct. 596 [(2004) (per curiam)], a case decided in 2004, the Court reversed the Ninth Circuit's denial of qualified immunity, holding that using the "general" test for excessive force cases from Garner, 471 U.S. at 85, 105 S.Ct. 1694, was "mistaken." The Court explained that the Ninth Circuit erred in finding "fair warning in the general tests set out in Graham and Garner, " because "Graham and Garner, following the lead of the Fourth Amendment's text, are cast at a high level of generality." Id. at 199, 125 S.Ct. 596. Rather, the Court explained that the relevant inquiry was whether it was clearly established the officer's conduct was prohibited by the Fourth Amendment in the specific "situation [Brosseau] confronted." Id. at 199-200, 125 S.Ct. 596');">125 S.Ct. 596. Most significantly, the Court cited Hope [v. Pelzer], 536 U.S. [730, ] 738, 122 S.Ct. 2508');">122 S.Ct. 2508 [(2002)], for the proposition that "of course, in an obvious case, [the Garner and Graham] standards can 'clearly establish' the answer, even without a body of relevant case law." Id. at 199, 125 S.Ct. 596. Nothing in Mullenix [v. Luna, 136 S.Ct. 305 (2015)] overruled Hope on this point.
Building on the Court's decision in Hope, our decision in Casey [v. City of Federal Heights, ] decided almost three years after Brosseau, explained that "[t]he Hope decision shifted the qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts toward the more relevant inquiry of whether the law put officials on fair notice that the described conduct was unconstitutional." 509 F.3d [1278, ] 1284 [(10th Cir. 2007)] (internal quotation marks omitted). We explained that "[w]e therefore adopted a sliding scale to determine when law is clearly established, " id., stating that "[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Id. (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)).
Taking the facts as the district court determined them in the light most favorable to plaintiff estate, we are presented with this situation: an officer outside someone's home in the dark of night with no probable cause to arrest anyone and behind the cover of a wall 50 feet away from a possible threat, with no warning shot a man pointing his gun out of his well-lighted window at an unknown person in his yard while the man's brother fired protective shots in the air from behind the house. Given his cover, the distance from the window, and the darkness, a reasonable jury could find that Officer White was not in immediate fear for his safety or the safety of others. Any objectively reasonable officer in this position would well know that a homeowner has the right to protect his home against intruders and that the officer has no right to immediately use deadly force in these circumstances. Based on our sliding scale test established in Casey, 509 F.3d at 1284, we do not agree with the dissent that more specificity is required to put an objectively reasonable officer on fair notice.
Accordingly, accepting as true plaintiff estate's version of the facts, a reasonable officer in Officer White's position should have understood, based on clearly established law, that (1) he was not entitled to use deadly force unless he was in danger at the exact moment of the threat of force and (2) he was required, under the circumstances here, to warn Mr. Pauly to drop his weapon.

Pauly I, 814 F.3d at 1083-84.

         Judge Moritz dissented. First, she believed that Officer White's actions were objectively reasonable: "In my view, no objectively reasonable officer in Officer White's circumstances and with White's knowledge of these circumstances could have been expected to hold his fire. Id. at 1088 (Moritz, J., dissenting). And, even assuming Officer White's use of deadly force was objectively unreasonable, she disagreed with our conclusion that the law was clearly established, arguing there was not a case that put the question "beyond debate." Id. at 1090 (quoting Mullenix, 136 S.Ct. at 311).

         After concluding that Officer White should be entitled to qualified immunity, she stated the following in regard to Officers Mariscal and Truesdale:

Because I would conclude that Officer White didn't violate Samuel Pauly's Fourth Amendment right to be free from the use of excessive force, and, alternatively, didn't violate clearly established law governing the use of deadly force, I would also conclude that Officers Truesdale and Mariscal are entitled to qualified immunity. See, e.g., Hinkle v. City of Clarksburg, 81 F.3d 416, 420-21 (4th Cir. 1996) (explaining jury's finding that shooting officer didn't use excessive force absolved non-shooting officers of liability); McLenagan [v. Karnes], 27 F.3d [1002, ] 1008 [(4th Cir. 1994)] (explaining that even if non-shooting officer's action or failure to act contributed to use of force, issue of liability was mooted by finding that shooting officer didn't use constitutionally excessive 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 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." Id. at 718. The officers then petitioned the Supreme Court for certiorari.

         The Court granted their petition, vacated our judgment, and remanded the case for further proceedings consistent with its opinion. Pauly II, 137 S.Ct. at 553. The Court focused entirely on our analysis of whether Officer White violated clearly established law. Id. at 552. It noted that "[q]ualified immunity attaches when an official's conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, '" and while this rule "do[es] not require a case directly on point, " it does require that "existing precedent must have placed the statutory or constitutional question beyond debate." Id. at 551 (alteration in original) (quoting Mullenix, 136 S.Ct. at 308). Accordingly, the Court criticized our reliance on Garner and Graham, which "lay out excessive-force principles at only a general level" and "do not by themselves create clearly established law outside 'an obvious case.'" Pauly II, 137 S.Ct. at 552 (quoting Brosseau, 543 U.S. at 199).

         Our error, the Court concluded, was that we "failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment." Id. at 552. The Court stated the following in regard to the facts of this case:

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.


         As mentioned above, the Court's holding only addressed whether Officer White violated clearly established law; it did not address our opinion in regard to Officers Mariscal and Truesdale, nor did it address whether Officer White's use of deadly force was objectively reasonable. Id. Notably, the Court mentioned an argument advanced by Mr. Pauly as an alternative ground for affirmance:

[R]espondents contend Officer White arrived on the scene only two minutes after Officers Truesdale and Mariscal and more than three minutes before Daniel's shots were fired. On the assumption that the conduct of Officers Truesdale and Mariscal did not adequately alert the Paulys that they were police officers, respondents suggest that a reasonable jury could infer that White witnessed the other officers' deficient performance and should have realized that corrective action was necessary before using deadly force.

Id. The Court declined to reach Mr. Pauly's argument because it appeared that neither we nor the district court had addressed it. Id.

         In a short concurrence, Justice Ginsburg summarized her understanding of the Court's opinion:

I join the Court's opinion on the understanding that it does not foreclose the denial of summary judgment to Officers Truesdale and Mariscal. See 814 F.3d 1060, 1068, 1073, 1074 (CA10 2016) (Court of Appeals emphasized, repeatedly, that fact disputes exist on question whether Truesdale and Mariscal "adequately identified themselves" as police officers before shouting "Come out or we're coming in" (internal quotation marks omitted)). Further, as to Officer White, the Court, as I comprehend its opinion, leaves open the propriety of denying summary judgment based on fact disputes over when Officer White arrived at the scene, what he may have witnessed, and whether he had adequate time to identify himself and order Samuel Pauly to drop his weapon before Officer White shot Pauly. Compare id., at 1080, with ante, at 552-53. See also Civ. No. 12-1311 (D NM, Feb. 5, 2014), pp. 7, and n. 5, 9, App. to Pet. for Cert. 75-76, and n. 5, 77 (suggesting that Officer White may have been on the scene when Officers Truesdale and Mariscal threatened to invade the Pauly home).

Id. at 553 (Ginsburg, J., concurring).


         Plaintiffs' New Argument

         After reading plaintiffs' brief in opposition to the officers' petition for certiorari and plaintiffs' supplemental brief to us after the Supreme Court vacated our judgment, we are convinced that we misstated the facts in Pauly I. Originally, we had the following view of Officer White's role in the altercation: "Officer White did not participate in the events leading up to the armed confrontation, nor was he there to hear the other officers ordering the brothers to 'Come out or we're coming in.' Almost immediately upon ...

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