From the desk of the Arkansas attorney general

January 23-29, 2017

Supreme court strengthens qualified immunity doctrine

By Lee Rudofsky

The U.S. Supreme Court’s first merits decision of 2017 was unanimous. In White v. Pauly, the Court strongly reaffirmed the principle of qualified immunity. Among other things, qualified immunity protects the police from lawsuits unless their actions are clearly unconstitutional or clearly unlawful. As recognized by the Court’s unusually strong and direct language in its opinion, the doctrine of qualified immunity “is important to society as a whole[;]” for one thing, it prevents Monday-morning quarterbacking of the split-second decision-making that we often require officers to make in dangerous, rapidly evolving and unstable situations. To be subject to a lawsuit, the officers must violate “clearly established statutory or constitutional rights,” which means that “existing precedent must have placed the statutory or constitutional right beyond debate.”

In this case, Officer Ray White was approaching the house of a potential drunk driving suspect when he heard shots from a second (nearby) house where the suspect might be and where two other officers were. White jogged to the second house and heard someone inside shout “we have guns.” White drew his gun and took cover behind a stone wall about fifty feet from the house. Immediately thereafter, one person from inside the house started shooting. Then, a second person appeared in the window and pointed a gun in Officer White’s direction. Officer White shot and killed that man, Samuel Pauly. His brother Daniel Pauly was killed by one of the other officers. The estates of the Pauly brothers sued the three officers.  

The District Court and the Court of Appeals for the Tenth Circuit denied the Officers’ request for qualified immunity. With respect to Officer White, the Tenth Circuit concluded that “a reasonable officer in White’s position would have known that, since the Paulys could not have shot him unless he moved from his position behind a stone wall, he could not have used deadly force without first warning Samuel Pauly to drop his weapon.” The Supreme Court vacated this decision, faulting the Tenth Circuit for relying on general principles regarding the use of deadly force. The Court forcefully reminded the lower courts that to override qualified immunity it must, except in very rare circumstances, “identify a case where an officer under similar circumstances as Officer White was held to have violated the Fourth Amendment.” Because there was no such case, the Officer did not violate a clearly established constitutional rule and thus deserved qualified immunity.  

Unusually, the Court chose not to announce whether Officer White’s conduct did or did not amount to a constitutional violation. The Court often will decide that question in these cases so as to clarify the rule for officers in future similar circumstances. The decision not to do so here may be an important change in Supreme Court jurisprudence since the death of Justice Antonin Scalia, who was a strong proponent of such rulings. But it may also be that the Court simply sought to avoid a 4-4 split on the ultimate constitutional question.  

Leslie Rutledge is the 56th Attorney General of Arkansas. Elected on Nov. 4, 2014, she is the first woman and first Republican in Arkansas history to be elected to the office.