DANIEL T. PAULY, as personal representative of the estate of Samuel Pauly, deceased; DANIEL B. PAULY, Plaintiffs - Appellees,
RAY WHITE; MICHAEL MARISCAL; KEVIN TRUESDALE, Defendants - Appellants, and STATE OF NEW MEXICO DEPARTMENT OF PUBLIC SAFETY, Defendant.
from the United States District Court for the District of New
Mexico (D.C. No. 1:12-CV-01311-KG-JHR)
D. Jarmie (Mark D. Standridge, on the brief), of Jarmie &
Associates, Las Cruces, New Mexico, for
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.
PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.
SEYMOUR, CIRCUIT JUDGE.
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. 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.
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,  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
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.
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
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
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.
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.
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
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 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.
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.
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.
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. 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.
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.
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.
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.
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.
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
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
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
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
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.
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.
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.
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).
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.
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.
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
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.
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.
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).
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
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.
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).
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 ...