US Supreme Court clarifies what constitutes “clearly established law” in excessive force cases.

Hot off the press, the United States Supreme Court reversed a decision of the 10th Circuit Court of Appeals which denied qualified immunity to a police officer who arrived late to scene between two other officers and two armed brothers in their home. Despite agreeing they had no probable cause to arrest the men, the two early arriving officers nevertheless escalated the scene. The Court described it as follows:


At approximately 11 p.m., the Pauly brothers became aware of the officers’ presence and yelled out “ ‘Who are you?’ ” and “ ‘What do you want?’ ”. In response, Officers Mariscal and Truesdale laughed and responded: “ ‘Hey, (expletive), we got you surrounded. Come out or we’re coming in.’ ” Truesdale shouted once: “ ‘Open the door, State Police, open the door.’ ” Ibid. Mariscal also yelled: “ ‘Open the door, open the door.’ ”


The Pauly brothers heard someone yelling, “ ‘We’re coming in. We’re coming in.’ ” Neither Samuel nor Daniel heard the officers identify themselves as state police. The brothers armed themselves, Samuel with a handgun and Daniel with a shotgun. One of the brothers yelled at the police officers that “ ‘We have guns.’ The officers saw someone run to the back of the house, so Officer Truesdale positioned himself behind the house and shouted “ ‘Open the door, come outside.’ ”


The third officer, arriving late, only saw an armed standoff between the brothers and his fellow officers. Eventually the third officer shot and killed one of the brothers. All the officers were sued for using excessive force, but this case only concerns the immunity of the third, late arriving, officer. The United States Supreme Court decided the officer should have been entitled to qualified immunity.


Importantly, the Court commented on the proper analysis for courts to engage in when deciding issues of qualified immunity, particularly whether there existed “clearly established law” which would direct a police officer to the conclusion that the force used was unlawful.


The Court emphatically declared:


Today, it is again necessary to reiterate the longstanding principle that “clearly established law” should not be defined “at a high level of generality.” Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011) . As this Court explained decades ago, the clearly established law must be “particularized” to the facts of the case. Anderson v. Creighton, 483 U. S. 635, 640 (1987) . Otherwise, “[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” Id., at 639.


The panel majority misunderstood the “clearly established” analysis: It failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment. Instead, the majority relied on Graham, Garner, and their Court of Appeals progeny, which—as noted above—lay out excessive-force principles at only a general level. Of course, “general statements of the law are not inherently incapable of giving fair and clear warning” to officers, United States v. Lanier, 520 U. S. 259, 271 (1997) , but “in the light of pre-existing law the unlawfulness must be apparent,” Anderson v. Creighton, supra, at 640. For that reason, we have held that Garner and Graham do notby themselves create clearly established law outside“an obvious case.” Brosseau v. Haugen, 543 U. S. 194 ,199 (2004) (per curiam); see also Plumhoff v. Rickard,572 U. S. ___, ___ (2014) (slip op., at 13) (emphasiz-ing that Garner and Graham “are ‘cast at a high level of generality’ ”).


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.


The conclusion to take from this case is obvious. If you are reviewing an excessive force case, make sure you have existing and particularized case law in hand to support the claim. Relying solely on a Garner/Graham analysis is not going to win the day except in the rare cases of obvious police misconduct.

White v. Pauly, 580 U.S. ___ (2017)

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