No. 16-67Supreme Court, U.S.

FILED

OFFICE OF THE CL~-~i\

Supreme Court of the Uniteb States

RAY wHITE, MICHAEL MARISCAL,and KEVIN TRUESDALE,

Petitioners,

DANIEL T. PAULY, as Personal Representativeof the ESTATE OF SAMUEL PAULY, and

DANIEL B. PAULY, individually,

Respondents.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Tenth Circuit

BRIEF IN OPPOSITION

LEE R. HUNTHUNT & MARSHALL532 Old Santa Fe TrailSanta Fe, New Mexico 87505Telephone: (505) 954-4868Facsimile: (505) 819-0022Email:

lee@huntandmarshall.com

PIERRE LEVY

Counsel of RecordAIMEE BEVANO’FRIEL AND LEVY, P.C.644 Don Gaspar AvenueSanta Fe, New Mexico 87505Telephone: (505) 982-5929Facsimile: (505) 988-5973Email:

pierre@ofrielandlevy.comaimee@ofrielandlevy.com

Attorneys for Respondents

COCKLE LEGAL BRIEFS (800) 225-6964WWW.COCKLELEGALBRIEFS.COM

BLANK PAGE

QUESTIONS PRESENTED

Did the Tenth Circuit correctly analyze OfficerWhite’s use of force from the perspective of a rea-sonable officer on the scene?

Did the Tenth Circuit correctly hold that OfficerWhite’s conduct in this case was so obviously a vi-olation of the Fourth Amendment in light of Gra-ham and its progeny that other decisions withgreater specificity were not required to put an ob-jectively reasonable officer on fair notice that anunidentified officer who surreptitiously ap-proached a rural residence late at night with noprobable cause and no exigent circumstances, andwho was fifty feet away in the dark and undercover of a stone wall, could not shoot withoutwarning an innocent citizen standing in his livingroom window pointing a weapon toward unknownpersons in his yard when the officers had reck-lessly created a situation where the occupants ofthe home would reasonably believe that they wereunder attack by intruders?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................iTABLE OF AUTHORITIES .................................iv

STATEMENT OF THE CASE ..............................1

I. FACTUAL HISTORY .................................1II. PROCEDURAL HISTORY ........................5

REASONS FOR DENYING THIS WRIT .............9I. THIS CASE IS A POOR CANDIDATE

FOR CERTIORARI BECAUSE IT IS TOOENTANGLED WITH DISPUTED FACTSTO ALLOW FOR CLEAR RESOLUTIONOF ANY LEGAL ISSUES ..........................9

II. THIS CASE DOES NOT RAISE THEFIRST QUESTION PRESENTED BE-CAUSE THE TENTH CIRCUIT AS-SESSED THE USE OF FORCE FROMTHE PERSPECTIVE OF A REASONA-BLE OFFICER ...........................................14

III. THE TENTH CIRCUIT’S DECISION ISCORRECT, WELL-REASONED, ANDDOES NOT CONFLICT WITH DECI-SIONS OF OTHER CIRCUITS .................18

A. THE TENTH CIRCUIT CORRECTLYFOLLOWED THIS COURT’S PRECE-DENTS IN DETERMINING THATOFFICER WHITE USED EXCES-SIVE FORCE .......................................18

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TABLE OF CONTENTS - ContinuedPage

B. THE DECISION BELOW DOES NOTCONFLICT WITH DECISIONS FROMTHE TENTH CIRCUIT OR OTHERCIRCUITS ...........................................25

IV. THE TENTH CIRCUIT PROPERLY DE-FINED CLEARLY ESTABLISHED LAW ....30

CONCLUSION .....................................................35

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TABLE OF AUTHORITIES

Page

CASES

Allen v. Muskogee, Okla., 119 F.3d 837 (10th Cir.1997) ........................................................................31

Anderson v. Creighton, 483 U.S. 635 (1987) ...............30

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ....................30

Casey v. Federal Heights, 509 F.3d 1278 (10thCir. 2007) ..................................................... 31, 32, 33

Currier v. Doran, 242 F.3d 905 (10th Cir. 2001) ........30

D.C.v. Heller, 554 U.S. 570 (2008) ..............................23

Estate of Larsen ex rel. Sturdivan v. Murr, 511F.3d 1255 (10th Cir. 2008) ....................... 7, 19, 21, 23

Estate of O’Bryan v. Town of Sellersburg, No.4:02-CV-238, 2004 WL 1234215, 2004 U.S.Dist. LEXIS 10160 (S.D. Ind. May 20, 2004) ..........29

Graham v. Conner, 490 U.S. 386 (1999) .............passim

Hope v. Pelzer, 536 U.S. 730 (2002) .................31, 32, 33

Johnson v. Jones, 515 U.S. 304 (1995) ..................13, 14

Reichle v. Howards, 132 S.Ct. 2088 (2012) .................30

Scott v. Harris, 550 U.S. 372 (2007) ............................25

Scott v. United States, 436 U.S. 128 (1978) ................17

Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996) .....28, 29

State v. Boyett, 185 P.3d 355 (N.M. 2007) ...................23

Tennessee v. Garner, 471 U.S. 1 (1985) ......23, 31, 32, 33

Tenorio v. Pitzer, 802 F.3d 1160 (10th Cir. 2015) .......24

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TABLE OF AUTHORITIES - Continued

Page

Thomas v. Durastanti, 607 F.3d 655 (10th Cir.2010) ........................................................................24

United States v. Combs, 394 F.3d 739 (9th Cir.2005) ........................................................................26

United States v. Jerez, 108 F.3d 684 (7th Cir.1997) ........................................................................26

United States v. Reeves, 524 F.3d 1161 (10th Cir.2008) ........................................................................26

United States v. Spikes, 158 F.3d 913 (6th Cir.1998) ........................................................................27

Yates v. City of Cleveland, 941 F.2d 444 (6th Cir.1991) ............................................................ 27, 28, 29

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. IV ................................5, 15, 25, 32

RULES

Sup. Ct. R. 14.4 .....................................................10, 14

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STATEMENT OF THE CASE

I. FACTUAL HISTORY

On the night of October 4, 2011, Daniel Pauly wasinvolved in a road rage incident with another car onthe interstate that involved mutual allegations of tail-gating, shining bright lights, abrupt braking, and otherinappropriate driving. App. at 4. The women in theother car called 911 to report the incident. Id. At thetime they called 911, the women were tailgating Dan-iel. Id. When Daniel exited the interstate for his home,the women followed him. Id. Feeling threatened, Dan-iel stopped on the exit ramp and asked them why theywere following him. Id. Daniel then returned to his carand drove the short distance to his house, where hisbrother, Samuel Pauly, was on the sofa playing videogames. App. at 72. The Pauly home was located in arural wooded area. Id.

Three New Mexico State Police Officers, KevinTruesdale, Michael Mariscal and Ray White, re-sponded to the 911 call. App. at 72-73. Officer Trues-dale arrived at the exit ramp first, spoke with thewomen about the incident, and then watched themdrive back to the interstate. App. at 73. Officers Whiteand Mariscal arrived shortly thereafter. Id. At thispoint, the officers knew that both cars had participatedin the incident, that the incident was over, that no onewas in danger, and that no crime was in progress. Id.The officers agreed that no exigent circumstances ex-isted and that they did not have sufficient evidence or

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probable cause to make an arrest. App. at 73-74. None-theless, and despite the fact that it was after 11:00p.m., the officers decided to proceed to the address ob-tained from the license plate information provided bythe women. Id.

Officer White waited at the exit ramp in case Dan-iel came back that way. App. at 74. Officers Truesdaleand Mariscal drove separately to the address associ-ated with the license plate and parked in front of themain residence, leaving on their headlights and take-down lights. Id. The officers did not see Daniel’s truckat the main residence but saw a second residence be-hind the main residence. Id. Between the two resi-dences are trees, a building and other obstructions thatprevent the people in the rear residence from seeinglights or vehicles in front of the main residence. App.at 72; Aplt. App. at 552, ~[ 19. Despite their approach tothe main residence in patrol cars with headlights onand take-down lights activated, the officers decided toapproach the upper residence in a manner that inten-tionally concealed their presence - on foot, under coverof night, and only illuminating the road when neces-sary by momentarily turning on their flashlights. App.at 74-75. Officers Mariscal and Truesdale located Dan-iel’s truck at the upper residence and so advised Of-ricer White, who then proceeded to the residence. App.at 75.

At approximately 11:00 p.m., the Pauly brotherssaw people approaching their home using flashlightsintermittently. App. at 75. It was a dark and rainynight and the brothers could not see who held the

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flashlights. Id. The brothers feared that the people out-side their home were intruders, possibly related to theroad incident earlier in the night. Id. It did not enterDaniel’s mind that the persons could have been policeofficers. Id. The brothers sought to have the intrudersidentify themselves by repeatedly yelling "Who’s outthere?" and "What do you want?" Id. Despite hearingthe brothers’ inquiries, Officers Mariscal and Trues-dale did not identify themselves and did not approachthe front door to knock and announce. App. at 75-76;Aplt. App. at 554, ~[ 35. Instead, the officers escalatedthe situation by yelling threatening statements in ahostile tone. App. at 84. The officers yelled "Open thedoor! Open the door!" and "Hey, motherf**kers, we’vegot you surrounded. Come out or we’re coming in!" App.at 75-76. During the entire encounter, only one identi-fication of"State Police" was made and it was not madeuntil ninety seconds before shots were fired. App. at 76.

Officer White arrived on the scene in less than aminute, parked at the main house and walked up tothe Pauly home in the dark using his flashlight inter-mittently. App. at 77. Officer White heard OfficersMariscal and Truesdale yelling threats at the Paulyresidence. Id. When Officer White arrived at the Paulyhome, Officer Mariscal was standing in the dark at thefront of the house. Id. Officer White did not identifyhimself as a police officer. App. at 84. Officer White wasat the scene for several minutes prior to shots beingfired. App. at 77 & 121; Aplt. App. at 118.

The Pauly brothers were scared and felt that theirlives were threatened by these unknown intruders.

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App. at 76. The brothers decided to call the police andthen stay together in the master bedroom with theirdogs until the police arrived. Id. Before they could callthe police, however, they heard "We’re coming in! We’recoming in!" Id. Scared and believing that they neededto protect themselves from an imminent home inva-sion, Samuel grabbed a pistol and Daniel grabbed ashotgun. App. at 76-77. The brothers then tried to scarethe intruders away by yelling out "We have guns." App.

at 77.

When the officers heard "We have guns," OfficerMariscal took cover behind a pick-up truck and OfficerWhite took cover behind a stone wall located fifty feetaway from the house. App. at 77-78. Daniel thenstepped partially out of the back of the house and firedtwo warning shots up into a tree while screaming toscare the intruders away. App. at 78. Officers Mariscaland White assert that they then saw Samuel walk tothe front window and point a handgun in the generaldirection of Officer White’s position behind the stonewall. App. at 78 & 119. Despite the fact that they werein protected positions in the dark, neither OfficerMariscal nor Officer White identified themselves orprovided a warning. App. at 6 & 39.

Officer Mariscal shot at Samuel but missed. App.at 79. Samuel did not return fire.11d. As soon as Sam-uel appeared in the window with a gun, Officer White

1 Officer White asserts that he used deadly force only afterSamuel fired a shot at him. The district court found, however, thatSamuel did not fire any shots. "In measuring the objective reason-ableness of Officer White’s use of deadly force, the jury will be free

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focused solely on getting a kill shot. App. at 122. OfficerWhite could not say what Samuel had done betweenthe time he appeared in the window and the time Of-ricer White shot, including whether Samuel had low-ered his gun. Id. Approximately five seconds afterOfficer Mariscal shot at Samuel, Officer White, whowas fifty feet away in the dark and under cover behinda stone wall, without providing any warning, fired asingle shot that killed Samuel as he stood in his livingroom. App. at 79.

II. PROCEDURAL HISTORY

Samuel Pauly’s father, on behalf of Samuel Pauly’sestate, filed a civil rights action against the three offic-ers, the State of New Mexico Department of PublicSafety, and two state officials, claiming, in part, thatdefendants violated his son’s Fourth Amendment rightagainst the use of excessive force. The officers movedfor summary judgment on the basis of qualified im-munity.

Viewing the facts in the light most favorable toplaintiffs, the district court determined that a reason-able jury could find the following:

[T]here were no exigent circumstances requir-ing the Officers to go to Daniel Pauly’s houseat 11:00 p.m.; Officers Truesdale and Mariscalpurposefully approached the house in a sur-reptitious manner; despite the porch light and

to consider this apparently false claim of self-defense." App. at120.

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light from the house, the rain and darknessmade it difficult for the brothers to see whowas outside their house; the fact that thebrothers’ house is located in a rural woodedarea would have heightened the brothers’ con-cern about intruders; the Officers provided in-adequate police identification by yelling out"State Police" once; the Officers’ use of a hos-tile tone in stating, "we got you surrounded.Come out or we’re coming in" was threatening;statements by Officers Truesdale and Maris-cal of"open the door" and other statements of"we’re coming in" were, likewise, threatening;it would have been reasonable for the Officersto conclude that Daniel Pauly could believethat persons coming up to his house at 11:00p.m. were connected to the road rage incidentwhich had occurred a couple of hours previ-ously; that under these circumstances, the oc-cupants of the house would feel a need todefend themselves and their property withthe possible use of firearms; and the incidentoccurred in less than five minutes.

App. at 84.

The district court denied Officers Mariscal andTruesdale’s motions, finding that a reasonable jurycould find that the officers’ reckless conduct unreason-ably created the dangerous situation leading to OfficerWhite’s use of deadly force and that the law was clearlyestablished in the Tenth Circuit "that the requisitecausal connection for establishing a Section 1983 vio-lation is satisfied if the defendants set in motion a se-ries of events that the defendants knew or reasonably

should have known would cause others to deprive theplaintiff of his constitutional rights." App. at 109-111(internal punctuation and citations omitted). The dis-trict court found that Officer White was not entitled toqualified immunity because he had knowledge of, andparticipated in, the reckless conduct that precipitatedthe need for force and because disputed issues of factexisted regarding whether it was feasible for him toprovide a warning prior to firing the fatal shot. App. at84-87.

The officers appealed. The Tenth Circuit consid-ered Officers Truesdale and Mariscal’s qualified im-munity claims jointly. The court found that summaryjudgment was not appropriate because a reasonableperson in the officers’ position should have understoodthat their reckless conduct could cause the Paulybrothers to defend their home and could result in theuse of deadly force against Samuel by Officer Whiteand that the violative nature of this conduct wasclearly established under Tenth Circuit precedent.App. at 29. The Tenth Circuit’s ruling related to Offic-ers Truesdale and Mariscal is not being appealed tothis Court.

The Tenth Circuit analyzed Officer White’s con-duct, from the perspective of a reasonable officer on thescene, using the three factors articulated in Graham v.Conner, 490 U.S. 386 (1999), to balance the nature andquality of the intrusion on the individual’s FourthAmendment interests against the importance of thegovernmental interests alleged to justify the intrusion,and the four factors listed in Estate of Larsen ex rel.

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Sturdivan v. Murr, 511 F.3d 1255 (10th Cir. 2008), toassess the degree of threat the officer faced andwhether a warning was feasible prior to using deadlyforce. App. at 30-41. The Tenth Circuit concluded that"a reasonable officer in Officer White’s position wouldnot have probable cause to believe there was an imme-diate threat of serious harm to himself or to OfficerMariscal, who was also behind cover, such that hecould shoot Samuel Pauly through the window of hishome without giving him a warning." App. at 45 (em-phasis in original). As a result, a jury could concludethat Officer White’s use of deadly force against Samuelwas not objectively reasonable and violated the FourthAmendment. Id. The court found that the law estab-lishing this right was clearly established: "[A] reason-able officer in Officer White’s position should haveunderstood, based on clearly established law, that (1)he was not entitled to use deadly force unless he wasin danger at the exact moment of the threat of forceand (2) he was required, under the circumstances here,to warn Mr. Pauly to drop his weapon."2 App. at 48-49.

2 While the decision below is correct based on the facts thatthe Tenth Circuit considered, other facts found by the districtcourt provide additional grounds for denying qualified immunity.The district court found that Officer White arrived at the sceneseveral minutes before shots were fired while the other officerswere threatening to invade the Pauly home, and therefore hadknowledge of, and participated in, the reckless conduct that pre-cipitated the need for force. App. at 84-87. The Tenth Circuit, how-ever, incorrectly stated that Officer White "arrived late on thescene and heard only ’We have guns.’ "App. at 31. As a result, theTenth Circuit rejected the district court’s determination that Of-ricer White had knowledge of, and participated in, the reckless

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The officers sought rehearing and rehearing enbanc. Both motions were denied.

REASONS FOR DENYING THIS WRIT

The Tenth Circuit correctly identified and appliedthis Court’s and the Tenth Circuit’s well-developed ju-risprudence on excessive force cases to the unique factsand circumstances of this case as determined by thedistrict court. The officers’ arguments that the TenthCircuit misapplied the applicable law misstate thefacts as found by the district court, misconstrue theTenth Circuit’s analysis, and cite inapposite case law.The Tenth Circuit’s opinion is correct, well-reasoned,and consistent with existing precedent. The petitionfor writ of certiorari should be denied.

THIS CASE IS A POOR CANDIDATE FORCERTIORARI BECAUSE IT IS TOO EN-TANGLED WITH DISPUTED FACTS TOALLOW FOR CLEAR RESOLUTION OFANY LEGAL ISSUES

The petition is rife with misstated and omittedmaterial facts in what appears to be a deliberate intent

conduct that precipitated the need for force and focused its anal-ysis solely on events that transpired after the brothers said "Wehave guns." The concurrence in the en banc denial corrected therecord, stating that Officer White had been on the scene for sev-eral minutes prior to the brothers saying "We have guns." App. at121. The Tenth Circuit’s factual error complicates any review ofthe legal issues in this case.

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to mislead the Court about the facts and circumstancesof this case. The officers’ failure to state essential factsaccurately and clearly is sufficient reason for the Courtto deny the petition. See Sup. Ct. Rule 14.4 (failure ofa petitioner to present with accuracy, brevity, and clar-ity whatever is essential to ready and adequate under-standing of the points requiring consideration issufficient reason for the Court to deny a petition). At aminimum, the fact that the officers’ arguments rely onmischaracterized facts and disputed facts improperlyconstrued in the officers’ favor highlights that this caseis a poor vehicle for certiorari because the ongoing fac-tual disputes hamper a clear resolution of any legal is-sues.

The officers state that "the Paulys noticed theflashlights outside, and called out ’Who are you?’ and’What do you want?’ The officers responded, ’open thedoor, State Police, open the door.’" Pet. at 5. In contrast,what the district court actually found was that whenthe Pauly brothers saw the flashlights outside theirhome, "[b]oth brothers then yelled out several times,’who are you?’ and, ’what do you want?’ In response tothose inquiries, the brothers heard a laugh and, ’Hey,(expletive), we got you surrounded. Come out or we’recoming in.’" App. at 75-76 (citations omitted). The of-ricers’ misleading recitation of the facts presents an en-tirely different picture of the encounter than found bythe district court.

The officers state that "as [Officer white] arrivedon scene, someone inside the house shouted ’We haveguns.’" Pet. at i. The facts as found by the district court,

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however, are that Officer White arrived on the sceneseveral minutes prior to this statement. The districtcourt found that "[w]hile Officers Truesdale and Maris-cal were trying to get the brothers to come out of thehouse and before one of the brothers yelled out, ’Wehave guns,’" Officer White arrived at the main resi-dence. App. at 77. The district court did not elaborateon the timing of these events. The police recordings inthe record, however, show that Officers Truesdale andMariscal arrived at the main residence at 11:14 p.m.;Officer White was at the main residence by 11:16 p.m.;and Daniel’s shots occurred at 11:19:42. App. at 121;Aplt. App. at 118. Thus, Officer White was on the scenefor nearly four of the five minutes the incident lasted.By misrepresenting the facts, the officers attempt toshroud Officer White in ignorance of the events thatcaused the Pauly brothers to believe that they neededto defend themselves against intruders.

The officers assert that they made a "clear and un-mistakable identification of themselves as ’State Po-lice.’" Pet. at 14. The district court, however, found thatdespite the fact that the officers claimed they made nu-merous announcements, the audio of the incident con-tained only one announcement during the entireencounter. App. at 76. The district court did not findthat this one announcement, which occurred after theofficers had been lurking outside the house for severalminutes, yelling profanities, threatening to invade thehome and refusing to identify themselves in responseto the Pauly brothers’ requests to know who was out-side their home, was "clear" or "unmistakable." To the

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contrary, the district court found that a reasonable jurycould find that the officers provided inadequate identi-fication. App. at 84.

The officers argue that their "failure to provide an-other warning to the Pauly brothers prior to defendingthemselves is insufficient to deny qualified immunity."Pet. at 26 (emphasis added). The district court, how-ever, found that it was undisputed that no warning wasgiven. App. at 39. The officers’ assertion that the TenthCircuit required them to provide another warningimplies that at least one warning was provided, whichis false.

The officers wholly omit from the petition essen-tial findings by the district court. For example, the of-ricers never state that the district court found thatprior to deciding to approach the Pauly home late atnight, the officers all agreed that there was not enoughevidence or probable cause to arrest Daniel and thatno exigent circumstances existed. App. at 73-74. Theofficers never acknowledge that the district courtfound that the officers made threatening and profanestatements in a hostile tone that they were going toinvade the Pauly home. App. at 84. The officers neverstate that the Pauly brothers yelled "We have guns" inresponse to the officers’ threats that an invasion of thePauly home was imminent. App. at 76.

In addition to materially misstating and omittingkey facts found by the district court, the officers im-properly construe disputed facts in their favor ratherthan accepting the facts as found by the district court.

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On review of a district court’s denial of a claim of qual-ified immunity, the appellate court must accept the dis-trict court’s conclusions that a reasonable jury couldfind certain specified facts in favor of the plaintiff.Johnson v. Jones, 515 U.S. 304, 319 (1995) (requiringthe courts of appeals to "simply take, as given, the factsthat the district court assumed when it denied sum-mary judgment" when a defendant challenges the"purely legal" clearly-established-law prong).

The district court found that after hearing "’Wehave guns,’ Officer White took cover behind a stonewall located 50 feet from the front house." App. at 77.The officers urge the Court to reconstrue this disputedfact in their favor, arguing that Officer White was notreally under cover because his head and arms werenecessarily exposed in order to shoot Samuel. Pet. at 6.The district court, however, found that Officer whitewas under cover and this fact must be accepted on aninterlocutory appeal of qualified immunity.

The officers contend that it would not have beenapparent to Officer White that the Pauly brothersmight believe the officers were intruders because theofficers were in uniform. Pet. at 22. The district court,however, found that it should be apparent to a reason-able officer that the rain, darkness, and ambient light-ing conditions would make it difficult for the personsinside the home to see who was outside. App. at 84. Theofficers must accept the facts as found by the districtcourt.

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The officers’ inaccurate, incomplete, and mislead-ing statements of material facts throughout their peti-tion make it impossible to evaluate the arguments aspresented. Neither the Court nor respondents shouldbe required to correct the factual assertions in a peti-tion and then attempt to address the arguments as ifproperly based on the facts as found by the districtcourt. Under these circumstances, the Court shoulddeny the petition pursuant to Rule 14.4. Furthermore,the officers’ invitation to this Court to ignore factsfound by the district court and to resolve disputed factsin their favor is especially inappropriate in an interloc-utory appeal of a non-final order regarding qualifiedimmunity. Such an interlocutory appeal is permissibleonly when it raises purely legal questions, not when itis bound up with factual determinations. Johnson, 515U.S. at 319.

II. THIS CASE DOES NOT RAISE THE FIRSTQUESTION PRESENTED BECAUSE THETENTH CIRCUIT ASSESSED THE USE OFFORCE FROM THE PERSPECTIVE OF AREASONABLE OFFICER

In their first question presented, the officers as-sert that the Tenth Circuit erred by "considering thevalidity of the use of force from the perspective of thesuspects rather than from the perspective of a reason-able police officer on the scene." Pet. at i. The TenthCircuit, however, correctly assessed the use of forcefrom the perspective of a reasonable officer on thescene. In fact, the Tenth Circuit began its analysis by

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stating that Fourth Amendment excessive force claimsare reviewed "under a standard of objective reasona-bleness, judged from the perspective of a reasonable of-ricer on the scene." App. at 15 (citations omitted).Numerous times in its analysis, the court reiteratedthat it was considering the excessive force claim fromthe perspective of a reasonable officer on the scene.App. at 15 (court must determine "whether the officers’actions are objectively reasonable in light of the factsand circumstances confronting them") (quotations andcitations omitted); App. at 29 ("Officer White’s use ofdeadly force must be judged from the perspective of areasonable officer on the scene") (quotations and cita-tions omitted); App. at 30 (our analysis focuses "on thereasonableness of [Officer White’s] own conduct"); App.at 31 (ultimate determination is "whether from theperspective of a reasonable officer on the scene, the to-tality of the circumstances justified the use of force")(citations omitted); App. at 39 (reasonableness of use offorce "must be judged from the perspective of a reason-able officer on the scene") (citation omitted). Ulti-mately, the Tenth Circuit concluded that a jury couldfind that "a reasonable officer in Officer White’s posi-tion would not have probable cause to believe therewas an immediate threat of serious harm to himself orto Officer Mariscal, who was also behind cover, suchthat he could shoot Samuel Pauly through the windowof his home without giving him a warning." App. at 45(emphasis in original).

The officers assert that the Tenth Circuit refers toDaniel’s shotgun blasts as "warning shots" when this

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fact would not have been apparent to Officer White.3

Pet. at 5. The district court found that Daniel "fired twowarning shots up into a tree." App. at 78. The TenthCircuit acknowledged this factual finding in the back-ground section of its decision, stating that Daniel "firedtwo warning shots." App. at 8. Contrary to the officers’assertion, however, the Tenth Circuit did not find thata reasonable officer in Officer White’s position wouldhave known that these were warning shots. In discuss-ing the warning shots in its analysis of the reasonable-ness of Officer White’s conduct, the Tenth Circuitreferred to them simply as shots.4 App. at 33-34.

The officers assert that the Tenth Circuit improp-erly focused on whether the Pauly brothers could hear

3 The Tenth Circuit held that it was "a fact question for thejury as to whether it was objectively reasonable for Officer Whiteto immediately assume that one of his fellow officers was shot af-ter hearing two shots from the back of the house but nothing moreto indicate that anyone had been hit." App. at 34. The officers as-sert, based on this finding, that the Tenth Circuit "appears to readinto this Court’s existing case law the requirement that police of-ricers must witness or perceive that someone.., was actually hitby the suspect’s shot, not just that they were shot at." Pet. at 15.This argument is wholly unrelated to the question presented. Fur-ther, the officers incorrectly state the facts of this case. OfficerWhite knew only that shots had been fired. He did not know if theshots had been directed at anyone. Finally, the Tenth Circuit’sholding that whether Officer White’s assumption was objectivelyreasonable is a fact question does not suggest that it imposed anyrequirement that an officer witness someone being shot.

4 In its analysis of clearly established law, the Tenth Circuit

refers to these shots as "protective shots." App. at 48. This charac-terization does not appear to have been of any significance to theanalysis.

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the officers identify themselves as State Police officers;whether the Pauly brothers could see the officers, con-sidering the ambient light and other light sources; andthe Pauly brothers’ fear that the officers were assail-ants. Pet. at 14. The Tenth Circuit, however, did notmention any of these facts in its analysis of OfficerWhite’s conduct.

To the extent the Tenth Circuit discussed what thePauly brothers may have perceived, it was in service ofdetermining what a reasonable officer would haveknown and done under the circumstances. The TenthCircuit determined that a reasonable officer on thescene would take into account the known circum-stances surrounding the encounter, including that thePauly brothers may not have known it was officers out-side their home when the officers approached the homeafter 11:00 p.m. on a dark and rainy night while inten-tionally concealing their identities, did not adequatelyidentify themselves, and yelled hostile and profanethreats that an invasion of the Pauly home was immi-nent. This is not viewing the facts from the perspectiveof the victim; rather it is part of the existing require-ment that the court consider excessive force claimsfrom the perspective of a reasonable officer on thescene, including the facts and circumstances known tothe officer. See, e.g., Graham, 490 U.S. at 396; Scott v.United States, 436 U.S. 128, 137 (1978) (court must as-sess reasonableness of officer’s actions "in light of thefacts and circumstances then known to him").

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The Tenth Circuit correctly assessed OfficerWhite’s use of force from the perspective of a reasona-ble officer on the scene, including the facts and circum-stances known to the officer. The officers’ first questionpresented is not presented at all.

III. THE TENTH CIRCUIT’S DECISION ISCORRECT, WELL-REASONED, AND DOESNOT CONFLICT WITH DECISIONS OFOTHER CIRCUITS

A. THE TENTH CIRCUIT CORRECTLYFOLLOWED THIS COURT’S PRECE-DENTS IN DETERMINING THAT OF-FICER WHITE USED EXCESSIVEFORCE

The officers do not dispute that the Tenth Circuitcorrectly identified the Supreme Court and Tenth Cir-cuit law that applied to its analysis of the reasonable-ness of Officer White’s conduct. The Tenth Circuit citedto Graham for the principle that excessive force claimsare evaluated "under a standard of objective reasona-bleness,judged from the perspective of a reasonable of-ricer on the scene." App. at 15. The court set forth theGraham factors, stating that the proper application ofthe objective reasonableness test requires "careful at-tention to the facts and circumstances of each particu-lar case, including the severity of the crime at issue,whether the suspect poses an immediate threat to thesafety of the officers or others, and whether he is ac-tively resisting arrest or attempting to evade arrest byflight." App. at 16 (citing Graham, 490 U.S. at 396).

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The Tenth Circuit correctly stated that the FourthAmendment permits an officer to use deadly force onlyif there is "probable cause to believe that there is athreat of serious physical harm to the officer or to oth-ers." App. at 30 (punctuation and citations omitted).The court then set forth the test applied by the TenthCircuit to assess the degree of threat the officer facesby considering a number of non-exclusive factors thatinclude "(1) whether the officers ordered the suspect todrop his weapon, and the suspect’s compliance with po-lice commands; (2) whether any hostile motions weremade with the weapon towards the officers; (3) the dis-tance separating the officers and the suspect; and (4)the manifest intentions of the suspect." App. at 30 (cit-ing Estate of Larsen, 511 F.3d at 1260). The court em-phasized that these factors are "only aids in makingthe ultimate determination" of "whether from the per-spective of a reasonable officer on the scene, the total-ity of the circumstances justified the use of force" andthe primary focus of the court’s inquiry "remains onwhether the officer was in danger at the exact momentof the threat of force." App. at 31 (citations omitted).

Having correctly set forth the applicable law, thecourt then analyzed Officer White’s conduct, from theperspective of a reasonable officer on the scene, usingthe three factors articulated in Graham to balance thenature and quality of the intrusion on the individual’sFourth Amendment interests against the importanceof the governmental interests alleged to justify the in-trusion, and the four factors listed in Estate of Larsento assess the degree of threat the officer faced and

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whether it was feasible to provide a warning. App. at31-32. The court found that the first Graham factor,the severity of the crime at issue, weighed in favor ofplair~tiffs because Officer White knew prior to arrivingat the Pauly home that it was unclear what, if any,crime had been committed during the road incident,that no exigent circumstances existed, and that therewas insufficient evidence or probable cause to make anarrest. App. at 32.

The Tenth Circuit found that the second Grahamfactor, whether the suspect posed an immediate threatto the safety of the officers or others, also weighed infavor of plaintiffs. The court held that "because OfficersWhite and Mariscal were behind cover some distanceaway in the dark before Samuel even opened the win-dow and there is a fact issue as to whether Samuelfired his weapon, for purpose of analysis on summaryjudgment Samuel Pauly did not pose an immediatethreat to the safety of the officers or others." App. at 33(emphasis in original).

The Tenth Circuit found that the third Grahamfactor, whether the officer reasonably believed the sus-pect was actively resisting arrest or attempting toevade arrest by flight, weighed in favor of plaintiffs be-cause Officer White knew that no exigent circum-stances existed and that the officers did not haveenough evidence or probable cause to make an arrest.App. at 35. Since the officers had not gone to the Paulyhome to make an arrest, the brothers could not havebeen attempting to evade arrest by flight. Id.

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The officers do not directly contest the Tenth Cir-cuit’s findings on any of the Graham factors.

The Tenth Circuit then turned to the four factorsset out in Estate of Larsen to assess the degree ofthreat Officer White faced. The court found that thefirst and third factors supported plaintiffs, the secondfactor weighed in favor of Officer White, and the fourthfactor was "somewhat neutral." App. at 35-36. The of-ricers challenge the Tenth Circuit’s analysis of thethird and fourth factors.

The Tenth Circuit found that the third factor, thedistance separating the officers and the suspect, sup-ported plaintiffs because Officer White was at leastfifty feet away in the dark and behind cover of a stonewall when he fired the fatal shot. App. at 36. The offic-ers challenge the relevance of the distance of fifty feetwhen a suspect has a gun. Pet. at 25. This argument isnot related to the question presented - whether thecourt analyzed Officer White’s use of force from theperspective of a reasonable officer on the scene. None-theless, the Tenth Circuit did not just consider the dis-tance between Samuel and Officer white; rather, itconsidered the fact that Officer white was behindcover of a stone wall, obscured by the rain and thedark, at least fifty feet away before Samuel even ap-peared with a weapon. The Tenth Circuit appropriatelydetermined that an officer fifty feet away behind coverof a stone wall and obscured by rain and the dark isnot facing the same degree of threat as an unprotectedofficer fifty feet away.

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The officers argue that, when viewed from the per-spective of an objectively reasonable officer, the fourthfactor, the manifest intentions of Samuel, were "plainly

hostile" and not "somewhat neutral." Pet. at 23. At firstglance, a suspect sticking a gun out of a window in thegeneral direction of an officer would appear to mani-fest hostile intentions. The entirety of the circum-

stances known to Officer White, however, caused thecourt to find that from Officer White’s perspective, themanifest intentions of Samuel were unclear.

At the time Officer White approached the Paulyhome, he knew 1) there had been a prior road incident;2) there were no exigent circumstances requiring offic-ers to go to the Pauly home at 11:00 p.m. and no prob-able cause for arrest; 3) the police cars were not visiblefrom the Pauly home; 4) the Pauly home was in a rural,wooded location; 5) he had approached the home in thedark, using his flashlight intermittently, and the otherofficers were standing in the dark outside the home; 6)the rain, darkness and ambient lighting conditionsmade it difficult for the persons inside the home to see

who was outside; and 7) he had not identified himself.5

Based on the facts known to Officer White, the TenthCircuit found that a reasonable officer would concludethat Daniel could believe that persons coming up to hishouse at 11:00 p.m. were connected to the road rageincident that had occurred a couple of hours previously

~ Other facts found by the district court, including that Of-ricer White was on the scene when coercive threats to invade thehome were made, provide additional support for the Tenth Cir-cuit’s determination.

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and that under these circumstances, the occupants ofthe house would feel a need to defend themselves andtheir property with the possible use of firearms as per-mitted under clearly established Supreme Court andNew Mexico law. See D.C.v. Heller, 554 U.S. 570, 635(2008) (the Second Amendment "elevates above allother interests the right of law-abiding, responsible cit-izens to use arms in defense of hearth and home");State v. Boyett, 185 P.3d 355, 358-59 (N.M. 2008) (de-fense of habitation has long been recognized in NewMexico and applies when an intruder is outside thehome but endeavoring to enter it).

Given Officer White’s knowledge of the circum-stances that preceded Samuel pointing a gun out awindow, the finding that "from Officer White’s perspec-tive, the manifest intention of Samuel Pauly was un-clear" and, therefore, the fourth Larsen factor was"somewhat neutral" is correctly made from the per-spective of a reasonable officer on the scene and sup-ported by the facts as found by the district court.

Since it was undisputed that neither Officer Whitenor Officer Mariscal ordered Samuel to drop hisweapon, the Tenth Circuit next considered whethersuch a warning was feasible. See Tennessee v. Garner,471 U.S. 1, 11-12 (1985) ("if the suspect threatens theofficer with a weapon.., deadly force may be used ifnecessary to prevent escape, and if where feasible,some warning has been given"). The court started itsanalysis by considering the testimony of plaintiffs’ ex-pert witness, Glenn A. Walp, who found that five sec-onds was "an extensive amount of time" to provide a

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warning. App. at 39-40. The court noted that Mr. Walp’stestimony highlighted why a reasonable jury mightconclude a warning was reasonable. App. at 39-40 &n.8. The court then cited to Tenorio v. Pitzer, 802 F.3d1160 (10th Cir. 2015), where an officer, in the space oftwo or three seconds, provided three warnings to thesuspect before shooting. App. at 40. The court con-trasted the immediacy of the danger to the officer inTenorio, who was unprotected in a "moderate sizedroom" with a man walking toward him with a knife de-spite repeated orders to drop it, with Officer White,who was "sequestered behind a rock wall some dis-tance away in the dark and Samuel was aiming his gunthrough the open window of a lighted house toward atarget obscured by the dark and rain." App. at 40-41.The court also found it significant that Officer Whitewas in a protected position behind the rock wall beforeSamuel appeared with the gun. App. at 42-43.

Despite the fact that he was in a protected, con-cealed position, once Officer White saw Samuel in thewindow with a weapon, he focused solely on taking asingle kill shot. He did not provide a warning. He didnot observe what Samuel was doing. He did not con-sider the evolving circumstances (including the factthat Samuel had not fired his weapon even after Of-ricer Mariscal fired at him) and did not even knowwhether Samuel had lowered the gun before he tookthe fatal shot. See, e.g., Thomas v. Durastanti, 607 F.3d655, 666 (10th Cir. 2010) ("circumstances may changewithin seconds eliminating the justification for deadlyforce").

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The Tenth Circuit concluded that "a reasonable of-ricer in Officer White’s position would not have proba-ble cause to believe there was an immediate threat ofserious harm to himself or to Officer Mariscal, who wasalso behind cover, such that he could shoot SamuelPauly through the window of his home without givinghim a warning." App. at 45 (emphasis in original). As aresult, the Tenth Circuit determined that a jury couldconclude that Officer White’s use of deadly forceagainst Samuel was not objectively reasonable and vi-olated the Fourth Amendment. Id.

The Tenth Circuit’s analysis of the reasonablenessof Officer White’s conduct correctly applies controllinglaw from the Supreme Court and the Tenth Circuit tothe unique circumstances and facts of this case asfound by the district court. This decision is well-rea-soned and correct and does not require this Court’s re-view.

B. THE DECISION BELOW DOES NOTCONFLICT WITH DECISIONS FROMTHE TENTH CIRCUIT OR OTHER CIR-CUITS

The analysis of excessive force claims to determinewhether, from the perspective of a reasonable officer onthe scene, the totality of the circumstances justifiedthe use of force is highly fact specific. Scott v. Harris,550 U.S. 372,383 (2007) (there is no easy-to-apply legaltest for whether an officer’s use of deadly force is ex-cessive and the court must "slosh our way through the

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fact-bound morass of reasonableness"). The officerscite a number of cases in which they assert courts, in-cluding the Tenth Circuit, found qualified immunitywhen an officer used deadly force against an armedsuspect. None of these cases, however, has facts similarto the facts here. None of these cases involves officerssurreptitiously approaching a home late at night whenno exigent circumstances existed and there was noprobable cause to make an arrest, inadequately identi-fying themselves, and yelling hostile and profanethreats that they were going to invade the home. Policeencounters with citizens in their homes late at nightare qualitatively different than the types of encountersbetween identified officers and armed suspects in thecases cited by the officers.

The Tenth Circuit has noted that courts must beparticularly stringent when late night encounters at aresidence occur, stating "our Fourth Amendment juris-prudence counsels that, when a knock at the doorcomes in the dead of the night, the nature and effect ofthe intrusion into the privacy of the dwelling placemust be examined with the greatest of caution." UnitedStates v. Reeves, 524 F.3d 1161, 1167, n.7 (10th Cir.2008) (citing United States v. Jerez, 108 F.3d 684, 690(7th Cir. 1997)). Courts have also noted the obviousrisks of violent confrontations if residents of a homemistake police officers for intruders. United States v.Combs, 394 F.3d 739, 744 (9th Cir. 2005) (when officersfail to knock and announce, they risk the "violent con-frontations that may occur if occupants of the home

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mistake law enforcement for intruders"); United Statesv. Spikes, 158 F.3d 913,925 (6th Cir. 1998) (same).

When citizens have the right to use force in de-fense of hearth and home, reasonable officers who havesurreptitiously approached a home late on a dark andrainy night, who have failed to provide adequate iden-tification, and who have yelled threatening and hostilestatements that they are invading the home, wouldknow that the residents of the home may believe theyare under attack from intruders and may use force todefend their lives and their home. Under these circum-stances, a reasonable officer on the scene, who is undercover of darkness and a stone wall fifty feet away,would know that he cannot use deadly force on a resi-dent who points a handgun out the window of his hometoward the unknown persons in his yard withoutproviding a warning.

Courts in other circuits have found similar con-duct to be objectively unreasonable. In a seminal case,Yates v. City of Cleveland, 941 F.2d 444 (6th Cir. 1991),an officer entered a dark hallway at a private residenceat approximately 2:45 a.m., without identifying himJself. The plaintiff and his brothers discovered the of-ricer in the dark hallway and, believing the officer tobe an intruder, knocked the officer back through thedoor. The officer fired his weapon in response, killingplaintiff. Id. at 445, 447. The Sixth Circuit concludedthat it was objectively unreasonable for the officer toenter the area in that manner, and thus he was not en-titled to qualified immunity. Id. The court drew thisconclusion notwithstanding the officer’s argument

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that, at the time he shot the plaintiff, he reasonablybelieved that his life was in danger. Id. According tothe Sixth Circuit, the act of entering a private resi-dence late at night with no indication of identity wasenough to show that the officer had unreasonably cre-ated the encounter that led to the use of force. Id.

In Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996),seven police officers began executing a search warrantat the plaintiff’s residence around 10:30 p.m. Theplaintiff heard banging on the door and started to godownstairs. When the plaintiff was halfway down thestairs, the officers broke through the door. Fearing thatthey were intruders, the plaintiff raced back up thestairs and retrieved his .22 caliber sport rifle. When heturned back to the doorway of the room, he saw a manwearing blue jeans and a blue jacket standing therewith a gun. After a split second, the man turned andran. The plaintiff followed. As soon as the plaintiff ex-ited the front door, still holding his rifle across hischest, the man turned and shot multiple rounds at theplaintiff. At no time during the encounter did the manidentify himself as an officer.

The court denied qualified immunity for the offic-ers because there were jury issues as to whether theofficers announced their presence and whether a rea-sonable officer would have thought the plaintiff posedsuch a risk under all the circumstances that the imme-diate use of deadly force was justified. Id. at 288. Thecourt found that the officers had unreasonably createda situation in which the plaintiff felt the need to arm

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himself and resist people he believed to be intruders.Id.

Similarly, in Estate of O’Bryan v. Town ofSellersburg, No. 4:02-CV-238, 2004 WL 1234215, 2004U.S. Dist. LEXIS 10160 (S.D. Ind. May 20, 2004), offic-ers investigating a battery approached O’Bryan’shome after midnight, concealing their presence.O’Bryan’s mother encountered some of the officers inthe garage and screamed. Upon hearing his motherscream, O’Bryan grabbed a gun and exited his apart-ment. On the steps, O’Bryan encountered an armedman in civilian clothing. The man did not identify him-self as an officer but shouted at O’Bryan to drop hisgun. When O’Bryan refused, the officer shot him threetimes. The court denied qualified immunity findingthat if the officer shot O’Bryan on the steps of his homewithout warning and without identifying himself, ajury could find the use of deadly force objectively un~reasonable. Id. at 12-13. The court also found that thelaw was clearly established that officers who failed toidentify themselves in situations where they could beeasily mistaken as intruders would not be entitled tothe same deference in their use of force against thosewho reasonably feared them. Id.

The facts in this case are even more compellingthan those in Yates, Sledd, and O’Bryan because theofficers in this case had no probable cause or exigentcircumstances to even be at the Pauly home late atnight.

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The cases cited by the officers provide no guidancein analyzing an encounter between officers and citi-zens in the sanctity of their home late at night whenthe officers approached the home under circumstancesthat could lead the occupants to believe that theirhome was being criminally invaded.

IV. THE TENTH CIRCUIT PROPERLY DE-FINED CLEARLY ESTABLISHED LAW

After determining that the evidence was sufficientto establish an excessive force claim against OfficerWhite, the Tenth Circuit considered whether the lawwas clearly established at the time of the violation. Aclearly established right is one that is "sufficientlyclear that every reasonable official would have under-stood that what he is doing violates that right." Reichlev. Howards, 132 S.Ct. 2088, 2093 (2012) (quotationmarks, alteration and citation omitted). "Ordinarily, inorder for the law to be clearly established, there mustbe a Supreme Court or Tenth Circuit decision on point,or the clearly established weight of authority fromother courts must have found the law to be as theplaintiff maintains." Currier v. Doran, 242 F.3d 905,923 (10th Cir. 2001) (citation omitted). A right can beclearly established, however, without a controlling de-cision declaring the "very action in question.., unlaw-ful." Anderson v. Creighton, 483 U.S. 635, 640 (1987)."We do not require a case directly on point, but existingprecedent must have placed the statutory or constitu-tional question beyond debate." Ashcroft v. al-Kidd,563 U.S. 731, 741 (2011).

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This Court has held that "a general constitutionalrule already identified in the decisional law may applywith obvious clarity to the specific conduct in question,even though the very action in question has not previ-ously been held unlawful." Hope v. Pelzer, 536 U.S. 730,741 (2002) (internal punctuation omitted). Conse-quently, "officials can still be on notice that their con-duct violates established law even in novel factualcircumstances." Id.; see also Casey v. Federal Heights,509 F.3d 1278, 1284 (10th Cir. 2007) ("The Hope deci-sion shifted the qualified immunity analysis from ascavenger hunt for prior cases with precisely the samefacts toward the more relevant inquiry of whether thelaw put officials on fair notice that the described con-duct was unconstitutional.") (internal quotations andcitations omitted).

Following Hope, the Tenth Circuit adopted a slid-ing scale to determine when law is clearly established.Casey, 509 F.3d at 1284. "The more obviously egregiousthe conduct in light of prevailing constitutional princi-ples, the less specificity is required from prior case lawto clearly establish the violation. Thus, when an of-ficer’s violation of the Fourth Amendment is particu-larly clear from Graham itself, we do not require asecond decision with greater specificity to clearly es-tablish the law." Id. (citation omitted).

The Tenth Circuit found that Graham, Garner andtheir Tenth Circuit progeny, particularly Allen v. Mus-kogee, Okla., 119 F.3d 837 (10th Cir. 1997), clearly es-tablished that the reasonableness of an officer’s use of

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force depends, in part, on whether the officer is in dan-ger at the precise moment that he used force and thatif a suspect threatens the officer with a weapon, awarning must be given before the use of deadly forcewhere feasible. App. at 46.

In this case, an officer outside a home late on adark, rainy night with no probable cause to arrest an-yone and behind the cover of a stone wall fifty feetaway, without warning, shot a person pointing a gunout of his well-lighted living room window toward un-known persons in his yard.6 App. at 48. The Tenth Cir-cuit found that "[a]ny objectively reasonable officer inthis position would well know that a homeowner hasthe right to protect his home against intruders andthat the officer has no right to immediately use deadly

force in these circumstances." Id. The Tenth Circuitconcluded that the conduct in this case was so obvi-ously a violation of the Fourth Amendment from Gra-ham and Garner and their Tenth Circuit progeny that,based on Hope and Casey, more specificity was not re-quired to put an objectively reasonable officer on fairnotice that he was not entitled to use deadly force un-less he was in danger at the exact moment of the threatof force and that he was required, under the circum-stances here, to warn Samuel to drop his weapon. App.at 49.

6 Again, other facts found by the district court, including that

Officer White was on the scene when coercive threats to invadethe home were made, provide additional support for the TenthCircuit’s findings.

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The Tenth Circuit acknowledged that while thisCourt has cautioned lower courts not to define clearlyestablished law too generally, it also held in Hope thatin an obvious case, the Garner and Graham standardscan clearly establish the answer, even without a bodyof relevant case law. App. at 46-47. This is such an ob-vious case. "[I]t is ’beyond debate’ that an officer can’tshoot and kill without good cause and while not endan-gered" and the court does not "define excessive force at’a high level of generality’ by including within exces-sive force such an egregious situation." App. at 123.

The officers cite to three Tenth Circuit cases asevidence that the law was not clearly established thatOfficer White could not use deadly force in the circum-stances of this case. According to the officers, in thesecases the Tenth Circuit held that officers were entitledto qualified immunity under similar circumstances asfaced by the officers in this case. These cases were per-suasively distinguished by the Tenth Circuit as involv-ing officers who were not in protected positions andwho had provided warnings prior to shooting. App. at43-45. Further, none of these cases involved an uniden-tiffed officer outside a home late at night without prob-able cause under circumstances in which theoccupants reasonably could mistake the officers for in-truders.

Applying Hope and Casey, the Tenth Circuit cor-rectly found that Garner and Graham applied withsuch obvious clarity to the conduct at issue that a casewith further specificity was not necessary for the lawto be clearly established. This determination is based

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on valid Supreme Court and Tenth Circuit precedentcarefully applied to the unique facts and circum-stances of this case as determined by the district court.

The officers assert that over the past five years,the Court has been expanding the qualified immunitydefense and routinely reversing circuit courts whodeny qualified immunity. However, there must still belimits to the circumstances under which police officerscan use deadly force against innocent citizens. It is adangerous path the officers advocate, one that calls"reasonable" the use of deadly force against innocentcitizens in the sanctity of their homes with no warningwhen the officers had no reason to be outside the homelate at night, had not adequately identified them-selves, and had shouted profane and hostile threatsabout an imminent invasion of the home. As stated byJudge Phillips "granting officers qualified immunityhere - when there’s a genuine issue of material factwhether the killing was unjustified - would create anew precedent with potentially deadly ramificationsfor citizens in this circuit." App. at 123 (emphasis inoriginal).

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CONCLUSION

Respondents Daniel T. Pauly, as Personal Repre-sentative of the Estate of Samuel Pauly, deceased, andDaniel B. Pauly, individually, respectfully request thatthe Court deny the Petition for Writ of Certiorari.

Respectfully submitted,

Attorneys for RespondentsO’FRIEL AND LEVY, B.C.

PIERRE LEVY

Counsel of RecordAIMEE BEVAN644 Don Gaspar AvenueSanta Fe, New Mexico 87505Telephone: (505) 982-5929Facsimile: (505) 988-5973pierre@ofrielandlevy.comaimee@ofrielandlevy.com

HUNT & MARSHALLLEE R. HUNT532 Old Santa Fe TrailSanta Fe, New Mexico 87505Telephone: (505) 954-4868Facsimile: (505) 819-0022lee@huntandmarshall.com

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