                                                                              FILED
                                                                  United States Court of Appeals
                                         PUBLISH                          Tenth Circuit

                    UNITED STATES COURT OF APPEAL                      October 31, 2017

                                                                      Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                          Clerk of Court
                      _________________________________

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

      Plaintiffs - Appellees,

v.                                                          No. 14-2035

RAY WHITE; MICHAEL MARISCAL;
KEVIN TRUESDALE,

      Defendants - Appellants,

and

STATE OF NEW MEXICO
DEPARTMENT OF PUBLIC SAFETY,

      Defendant.

                    ______________________________________

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

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

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

                    ______________________________________

Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.
                    ______________________________________
SEYMOUR, Circuit Judge.
                ______________________________________

      On a dark and rainy night in October 2011, Samuel Pauly was shot to death

through the window of his rural New Mexico home by one of three state police

officers who were investigating an earlier road rage incident on Interstate 25

involving his brother. On behalf of Samuel Pauly’s estate, his father filed a civil

rights action against the three officers, the State of New Mexico Department of

Public Safety, and two state officials, claiming defendants violated his son’s

Fourth Amendment right against the use of excessive force. 1 After depositions

were taken, the officers moved for summary judgment, asserting qualified

immunity. The district court denied their motions, they appealed, and we

affirmed. Pauly v. White (Pauly I), 814 F.3d 1060, 1084 (10th Cir. 2016). The

Supreme Court granted certiorari, vacated our judgment, and remanded the case

to us for further consideration. White v. Pauly (Pauly II), 137 S. Ct. 548 (2017). We

now reverse.




1
  The father also asserted state law claims for negligent training (Count Two),
wrongful death under the New Mexico Tort Claims Act (Count Three), and
violation of New Mexico Constitution, art. II, § 10 (Count Four). Samuel Pauly’s
brother, Daniel Pauly, asserted a claim for loss of consortium (Count Five). The
parties stipulated to dismissal of Count Two. Only the excessive force claim is at
issue in this appeal.
                                          2
                                           I

                                     Background

      In reviewing an interlocutory appeal from the denial of qualified immunity,

“we ‘take, as given, the facts that the district court assumed when it denied

summary judgment.’” Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir. 2012)

(quoting Johnson v. Jones, 515 U.S. 304, 319 (1995)). To be sure, “[w]e may

review whether the set of facts identified by the district court is sufficient to

establish a violation of a clearly established constitutional right, but we may not

consider whether the district court correctly identified the set of facts that the

summary judgment record is sufficient to prove.” Id. (internal quotation marks

omitted). When we recite the facts of the case, “we view the evidence in the light

most favorable to the non-moving party.” Weigel v. Broad, 544 F.3d 1143, 1147

(10th Cir. 2008) (internal quotation marks omitted). Accordingly, the following

facts are taken directly from the material facts section in the district court orders

denying qualified immunity, 2 where the court noted that its “recitation of material

facts and reasonable references reflect the Plaintiffs’ version of the facts as

gleaned from the evidence of record and excludes facts, contested or otherwise,

which are not properly before this Court in the motions for summary judgment.”

Aplt. App. at 693. As we explain below, infra at 16-18, 20-23, given the Court’s


2
  The district court’s recitation of the facts is identical in the order denying
qualified immunity to Officers Mariscal and Truesdale and the separate order
denying qualified immunity to Officer White. We therefore cite primarily to the
latter order when setting out the facts.
                                           3
determination in Pauly II, 137 S. Ct. at 552, we set out the facts here more fully

than we did in Pauly I.

A. Facts

       The incidents underlying this action started the evening of October 4, 2011, when

Daniel Pauly became involved in a road rage incident with two females on the interstate

highway going north from Santa Fe, New Mexico. One of the women called 911 to

report a “drunk driver,” claiming the driver was “swerving all crazy” and turning his

lights off and on. Aplt. App. at 694. The women then started to follow Daniel on

Interstate 25, apparently tailgating him.

       Daniel pulled his truck over at the Glorieta exit, as did the female driver of the car.

Daniel felt threatened by the women and asked them why they were following him with

their bright lights on. During this confrontation one of the women claimed Daniel was

“throwing up gang signs.” Id. He then left the off-ramp and drove a short distance to the

house where he lived with his brother, Samuel. The house is located in a rural wooded

area on a hill behind another house.

       At some point between 9:00 and 10:00 p.m., a state police dispatcher notified

Officer Truesdale about the 911 call. Officer Truesdale proceeded to the Glorieta off-

ramp to speak to the women about the incident. Officers Mariscal and White also headed

to the off-ramp to assist Officer Truesdale. Daniel was gone when Officer Truesdale

arrived on scene. The women told Officer Truesdale that Daniel was driving recklessly.

They described his vehicle as a gray Toyota pickup truck and provided dispatch with his



                                              4
license plate number. Dispatch notified Officer Truesdale that the Toyota pickup truck

was registered to an address on Firehouse Road near the Glorieta off-ramp.

       The women then went on their way and, at that point, “any threat to [them] was

over.” Id. at 676. Officers White and Mariscal arrived to join Officer Truesdale. The

officers all agreed that there was not enough evidence or probable cause to arrest Daniel,

and that no exigent circumstances existed at the time. Nevertheless, the officers decided

to try and speak with Daniel to get his side of the story, “to make sure nothing else

happened,” and to find out if he was intoxicated. Id. at 677. Officers Truesdale and

Mariscal decided they should take separate patrol units to the Firehouse Road address in

Glorieta to see if they could locate Daniel’s pickup truck. Officer White stayed at the

off-ramp in case Daniel returned. It was dark and raining by that time.

       Officers Mariscal and Truesdale proceeded to the Firehouse Road address and

parked along the road in front of the main house. This occurred at 11:14 p.m. Both

vehicles had their headlights on and one vehicle had its takedown lights on, but neither

vehicle had activated its flashing lights. The officers did not see Daniel’s truck at the

main house, but they noticed a second house behind it with its interior lights and porch

lights on. They decided to approach the second house in an attempt to locate Daniel’s

pickup truck. As they walked towards that house, the officers did not activate their

security lights.

       To maintain officer safety, Officers Mariscal and Truesdale approached the second

house in a manner such that neither brother knew the officers were at the property. The

officers did not use their flashlights at first, and then only used them intermittently.

                                              5
Officer Truesdale turned on his flashlight as he got closer to the front door of the

brothers’ house. Through the front windows, the officers could see two males moving

inside the house. When they located Daniel’s Toyota pickup truck, they contacted

Officer White to so advise him. Officer White then left to join them.

       At 11:16 p.m., Officer White arrived on the scene. He radioed dispatch to inform

them that all units were at the residence, and he confirmed with dispatch that the suspect

vehicle was there. At 11:17, Officer White can be seen on Officer Truesdale’s COBAN

video3 as “he beg[an] to walk down the road a few steps before turning around and

heading out of sight up the driveway leading to a residence.” Id. at 164. Officer White

testified that the reason he changed directions was because he “began to hear Officer

Mariscal and Officer Truesdale announcing, ‘New Mexico State Police,’ from the rear of

th[e] property.” Id. at 216.

       From the Pauly brothers’ perspective, the officers’ approach to their residence was

confusing and terrifying. The brothers could see “through the front window two blue

LED flashlights, five or seven feet apart, at chest level, coming towards the house.” Id. at

678. Daniel could not tell who was holding the flashlight approaching the house because

of the dark and the rain, but he feared it could be intruders related to the prior road rage

altercation. “[I]t did not enter Daniel Pauly’s mind that the figures could have been

police officers.” Id. The brothers hollered several times, “Who are you?” and, “What do

you want?” Id. In response, the officers laughed and said: “Hey, (expletive), we got you


3
 Each police cruiser had a dashboard video camera, which is referred to as a COBAN
video, named after COBAN Technologies, the manufacturer.
                                              6
surrounded. Come out or we’re coming in.” Id. Officer Truesdale also shouted once,

“Open the door, State Police, open the door,” while Officer Mariscal said, “Open the

door, open the door.” Id. at 678-79. But Daniel did not hear anyone say “State Police”

until after the entire altercation was over. Id.

       Fearing for their lives and the safety of their dogs, the brothers decided to call the

police to report the unknown intruders. Before Daniel could call 911, however, he heard

someone yell: “We’re coming in. We’re coming in.” Id. at 679. Believing that an

invasion of their home was imminent, Samuel retrieved a loaded handgun for himself as

well as a shotgun and ammunition for Daniel. Daniel told his brother he would fire some

warning shots while Samuel went back to the front of the house. One of the brothers then

hollered, “We have guns,” id. at 679, and the officers subsequently saw an individual run

to the back of the house. Officer Truesdale proceeded to position himself towards the

rear of the house and shouted, “Open the door, come outside,” id., while Officer White

drew his weapon and took cover behind a stone wall fifty feet away from the front of the

house and Officer Mariscal took cover behind one of the brothers’ trucks.

       Because of the prior threatening statements made by Officers Truesdale and

Mariscal, Daniel did not feel comfortable stepping out of the front door to fire

warning shots. But a few seconds after the officers heard “We have guns,” id. at

680, Daniel stepped partially out of the back door and fired two warning shots

while screaming loudly to scare anyone off. Officer White thought Officer




                                               7
Truesdale had been shot after hearing the two shotgun blasts. 4 A few seconds

after Daniel fired the warning shots, Officers Mariscal and White observed

Samuel open the front window and point a handgun in Officer White’s direction.

Officer Mariscal testified he immediately shot at Samuel but missed. “Four to

five seconds after Samuel Pauly pointed his handgun at Officer White, Officer

White shot Samuel” from his covered position fifty feet away. Id. at 681. The

entire incident took less than five minutes.




4
  Officer White testified in his deposition that after he heard the shots at the back
of the house, “I believed Officer Truesdale had been shot at that point, being that
I believed he was at the rear of the residence.” Aplt. App. at 223. He also
admitted, however, that “I did not hear anything that would suggest a person had
been hit.” Id.
                                          8
B. Procedural History

       Daniel T. Pauly (Daniel and Samuel’s father), as the personal representative of the

Estate of Samuel Pauly, and Daniel B. Pauly on behalf of himself (hereinafter

“plaintiffs”), filed suit against Officers Mariscal, Truesdale, and White, the State of New

Mexico Department of Public Safety (“NMDPS”), and two state officials. Plaintiffs

alleged an excessive force claim under 42 U.S.C. § 1983 as well as several state law

claims. They sought compensatory damages, punitive damages, pre- and post-judgment

interest, costs, and attorneys’ fees. Relevant here is plaintiffs’ § 1983 claim against all

three officers for violating Samuel Pauly’s Fourth Amendment right to be free from

excessive force.

       All three officers moved for summary judgment and raised the defense of qualified

immunity with respect to the § 1983 excessive force claim. Defendants analyzed the

excessive force claim by reviewing the actions of each deputy individually, not their

actions as a whole. They all argued they were entitled to qualified immunity.

       Specifically, Officer White asserted that when Samuel pointed the gun in his

direction, deadly force was justified under the totality of the circumstances because any

police officer would have reasonably assumed his life was in danger whether or not

Samuel intended to fire. He contended it was not feasible for him to warn Samuel to drop

his weapon.

       Officer Truesdale argued it was undisputed that he did not fire his weapon at

Samuel Pauly and therefore he could only be liable if his pre-seizure conduct “created the

need for deadly force in this incident through his own reckless, deliberate conduct” that

                                              9
“was immediately connected to Officer White’s use of force in self-defense.” Aplt. App.

at 359. He then argued that his actions leading up to the use of force were reasonable and

that even if he made mistakes in how he approached the house, none of his conduct

preceding the use of force by Officer White was reckless or deliberate. He further

claimed his actions were not the but-for or proximate cause of Samuel’s death because

the brothers’ own actions were “independent and unexpected intervening events”

amounting to a superseding cause of death that defeated any liability on his part. Id. at

363-64.

       Officer Mariscal argued that when he saw Samuel point the gun at Officer White,

“he was clearly justified in using deadly force in defense of Officer White’s life.” Id. at

392-93. Like Officer Truesdale, Officer Mariscal contended that his actions leading up to

the use of force were not reckless or deliberate, and that his pre-seizure conduct was not

the but-for or proximate cause of Samuel’s death.

       The district court issued two orders, denying summary judgment on all claims. In

its first order, the court denied Officer White qualified immunity, concluding that “the

record contains genuine disputes of material fact regarding whether the Officers’ conduct

prior to the shooting of Samuel Pauly was at the very least reckless and unreasonably

precipitated Officer White’s need to shoot Samuel Pauly.” Id. at 684. Based on the

record, the court also determined that

       it is disputed whether (1) the Officers adequately identified themselves,
       either verbally or by using a flashlight; (2) the brothers could, nonetheless,
       see the Officers considering the ambient light and other light sources; and
       (3) it was feasible for Officer White to warn Samuel Pauly before shooting
       him.

                                             10
             Furthermore, viewing the evidence in the light most favorable to
      Plaintiffs, a reasonable jury could find the following: there were no exigent
      circumstances requiring the Officers to go to Daniel Pauly’s house at 11:00
      p.m.; Officers Truesdale and Mariscal purposefully approached the house
      in a surreptitious manner; despite the porch light and light from the house,
      the rain and darkness made it difficult for the brothers to see who was
      outside their house; the fact that the brothers’ house is located in a rural
      wooded area would have heightened the brothers’ concern about intruders;
      the Officers provided inadequate police identification by yelling out “State
      Police” once; the Officers’ use of a hostile tone in stating, “we got you
      surrounded. Come out or we’re coming in” was threatening; statements by
      Officers Truesdale and Mariscal of “open the door” and other statements of
      “we’re coming in” were, likewise, threatening; it would have been
      reasonable for the Officers to conclude that Daniel Pauly could believe that
      persons coming up to his house at 11:00 p.m. were connected to the road
      rage incident which had occurred a couple of hours previously; that under
      these circumstances, the occupants of the house would feel a need to defend
      themselves and their property with the possible use of firearms; and the
      incident occurred in less than five minutes.

Id. at 684-85. The court made virtually the same determinations in its separate order

denying qualified immunity to Officers Truesdale and Mariscal. Id. at 703-04.

      All three officers appealed the denial of their qualified immunity, and we affirmed.

Pauly I, 814 F.3d at 1084. We analyzed Officers Mariscal and Truesdale together and

Officer White by himself because the “facts and circumstances” warranted it. Id. at 1071.

The main reason we separated the qualified immunity inquiries is because we viewed

Officer White’s role in the altercation as completely disconnected from the roles of

Officers Mariscal and Truesdale. For instance, in the background section, we stated that

Officer White “arrived just as one of the brothers said: ‘We have guns.’” Id. at 1066.

Later, when analyzing the reasonableness of Officer White’s conduct, we stated the

following:


                                            11
       Officer White did not participate in the events leading up to the armed
       confrontation, nor was he there to hear the other officers ordering the
       brothers to “Come out or we’re coming in.” Aplt. App. at 678. Almost
       immediately upon Officer White's arrival, one of the brothers shouted “We
       have guns.” The alleged reckless conduct of Officers Mariscal and
       Truesdale prior to this point cannot be attributed to Officer White, and
       accordingly, our analysis focuses only on the reasonableness of his own
       conduct.

Id. at 1076.

       In regard to Officers Mariscal and Truesdale, we started by analyzing their pre-

seizure conduct to determine whether they had “caused” Samuel Pauly to be subjected to

a constitutional deprivation. Id. at 1072. Relying on Trask v. Franco, 446 F.3d 1036

(10th Cir. 2006), we stated that “Officers Mariscal and Truesdale may be held liable if

their conduct immediately preceding the shooting was the “but-for” cause of Samuel

Pauly's death, and if Samuel Pauly's act of pointing a gun at the officers was not an

intervening act that superseded the officers' liability.” Id. We concluded that summary

judgment was not appropriate regarding Officers Mariscal’s and Truesdale’s claimed

entitlement to qualified immunity because “disputed facts remain[ed] concerning whether

the officers properly identified themselves and whether the brothers knew Officers

Mariscal and Truesdale were intruders or state police.” Id. at 1074. In regard to whether

Officers Mariscal and Truesdale had violated clearly established law, we relied on Trask

again and held that it had been clearly established since 2006 that an officer would be

held liable for any conduct that is the proximate cause of a constitutional deprivation. Id.

at 1075-76.




                                             12
       Turning to Officer White, we stated that the case “present[ed] a unique set of facts

and circumstances, particularly in the case of Officer White who arrived late on the scene

and heard only ‘We have guns,’ aplt. app. at 680, before taking cover behind a stone wall

fifty feet away from the Paulys’ residence.” Id. at 1077. We started by reiterating the

Supreme Court’s instruction that in excessive force cases, courts should determine an

officer’s reasonableness by “balancing ‘the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the importance of the governmental

interests alleged to justify the intrusion.’” Id. (quoting Scott v. Harris, 550 U.S. 372, 383

(2007)). In doing so, we looked to the three non-exclusive factors articulated in Graham

v. Connor, 490 U.S. 386, 396 (1989), as well as the four factors listed in Estate of Larsen

v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008), and determined that a reasonable jury

could find that Officer White’s conduct was objectively unreasonable and violated the

Fourth Amendment. Pauly I, 814 F.3d at 1082.

       We next turned to whether the law was clearly established at the time of Officer

White’s possible violation. We noted that “[t]he relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at

1083 (quoting Saucier v. Katz, 53 U.S. 194, 202 (2001)). We relied on Graham, 490

U.S. at 396, Tennessee v. Garner, 471 U.S. 1, 11-12 (1985), and their Tenth Circuit

progeny for the general proposition that the reasonableness of an officer’s use of force

depends, in part, on “whether the officer[] [was] in danger at the precise moment that [he]

used force,” Pauly I, 814 F.3d at 1083 (quoting Allen v. Muskogee, 119 F.3d 837, 840

                                             13
(10th Cir. 1997)), and that “if [a] suspect threatens [an] officer with a weapon . . . deadly

force may be used if necessary to prevent escape, and if, where feasible, some warning

has been given,” id. (quoting Garner, 471 U.S. at 11-12).

       Recognizing that the Supreme Court has cautioned lower courts not to define

clearly established law too generally, see, e.g., Mullenix v. Luna, 136 S. Ct. 305 (2015),

we stated the following:

              Notably, in Brosseau [v. Haugen], 543 U.S. [194,] 199, 125 S. Ct.
       596 [(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. Most significantly, the Court cited Hope [v. Pelzer],
       536 U.S. [730,] 738, 122 S. Ct. 2508 [(2002)], for the proposition that “of
       course, in an obvious case, [the Garner and Graham] standards can ‘clearly
       establish’ the answer, even without a body of relevant case law.” Id. at
       199, 125 S. Ct. 596. Nothing in Mullenix [v. Luna, 136 S. Ct. 305 (2015)]
       overruled Hope on this point.

               Building on the Court's decision in Hope, our decision in Casey [v.
       City of Federal Heights,] decided almost three years after Brosseau,
       explained that “[t]he Hope decision shifted the qualified immunity analysis
       from a scavenger hunt for prior cases with precisely the same facts toward
       the more relevant inquiry of whether the law put officials on fair notice that
       the described conduct was unconstitutional.” 509 F.3d [1278,] 1284 [(10th
       Cir. 2007)] (internal quotation marks omitted). We explained that “[w]e
       therefore adopted a sliding scale to determine when law is clearly
       established,” id., stating that “[t]he more obviously egregious the conduct
       in light of prevailing constitutional principles, the less specificity is
       required from prior case law to clearly establish the violation.” Id. (quoting
       Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)).


                                             14
              Taking the facts as the district court determined them in the light
       most favorable to plaintiff estate, we are presented with this situation: an
       officer outside someone's home in the dark of night with no probable cause
       to arrest anyone and behind the cover of a wall 50 feet away from a
       possible threat, with no warning shot a man pointing his gun out of his
       well-lighted window at an unknown person in his yard while the man's
       brother fired protective shots in the air from behind the house. Given his
       cover, the distance from the window, and the darkness, a reasonable jury
       could find that Officer White was not in immediate fear for his safety or the
       safety of others. Any objectively reasonable officer in this position would
       well know that a homeowner has the right to protect his home against
       intruders and that the officer has no right to immediately use deadly force
       in these circumstances. Based on our sliding scale test established in
       Casey, 509 F.3d at 1284, we do not agree with the dissent that more
       specificity is required to put an objectively reasonable officer on fair notice.

              Accordingly, accepting as true plaintiff estate’s version of the facts,
       a reasonable officer in Officer White's position should have understood,
       based on clearly established law, that (1) he was not entitled to use deadly
       force unless he was in danger at the exact moment of the threat of force and
       (2) he was required, under the circumstances here, to warn Mr. Pauly to
       drop his weapon.

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

       Judge Moritz dissented. First, she believed that Officer White’s actions were

objectively reasonable: “In my view, no objectively reasonable officer in Officer White’s

circumstances and with White’s knowledge of these circumstances could have been

expected to hold his fire. Id. at 1088 (Moritz, J., dissenting). And, even assuming

Officer White’s use of deadly force was objectively unreasonable, she disagreed with our

conclusion that the law was clearly established, arguing there was not a case that put the

question “beyond debate.” Id. at 1090 (quoting Mullenix, 136 S. Ct. at 311).

       After concluding that Officer White should be entitled to qualified immunity, she

stated the following in regard to Officers Mariscal and Truesdale:


                                             15
       Because I would conclude that Officer White didn't violate Samuel Pauly's
       Fourth Amendment right to be free from the use of excessive force, and,
       alternatively, didn't violate clearly established law governing the use of
       deadly force, I would also conclude that Officers Truesdale and Mariscal
       are entitled to qualified immunity. See, e.g., Hinkle v. City of Clarksburg,
       81 F.3d 416, 420–21 (4th Cir. 1996) (explaining jury's finding that shooting
       officer didn't use excessive force absolved non-shooting officers of
       liability); McLenagan [v. Karnes], 27 F.3d [1002,] 1008 [(4th Cir. 1994)]
       (explaining that even if non-shooting officer's action or failure to act
       contributed to use of force, issue of liability was mooted by finding that
       shooting officer didn't use constitutionally excessive force).

Id. at 1091.

       After we issued our opinion, the officers filed a petition for rehearing en banc,

which was denied. Pauly v. White, 817 F.3d 715 (10th Cir. 2016). In a dissent from

denial, Judge Hartz noted that he was “unaware of any clearly established law that

suggests . . . that an officer . . . who faces an occupant pointing a firearm in his direction

must refrain from firing his weapon but, rather, must identify himself and shout a

warning while pinned down, kneeling behind a rock wall.” Id. at 718. The officers then

petitioned the Supreme Court for certiorari.

       The Court granted their petition, vacated our judgment, and remanded the case for

further proceedings consistent with its opinion. Pauly II, 137 S. Ct. at 553. The Court

focused entirely on our analysis of whether Officer White violated clearly established

law. Id. at 552. It noted that “[q]ualified immunity attaches when an official’s conduct

‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known,’” and while this rule “do[es] not require a case

directly on point,” it does require that “existing precedent must have placed the statutory

or constitutional question beyond debate.” Id. at 551 (alteration in original) (quoting

                                               16
Mullenix, 136 S. Ct. at 308). Accordingly, the Court criticized our reliance on Garner

and Graham, which “lay out excessive-force principles at only a general level” and “do

not by themselves create clearly established law outside ‘an obvious case.’” Pauly II,

137 S. Ct. at 552 (quoting Brosseau, 543 U.S. at 199).

       Our error, the Court concluded, was that we “failed to identify a case where an

officer acting under similar circumstances as Officer White was held to have violated the

Fourth Amendment.” Id. at 552. The Court stated the following in regard to the facts of

this case:

       Clearly established federal law does not prohibit a reasonable officer who
       arrives late to an ongoing police action in circumstances like this from
       assuming that proper procedures, such as officer identification, have
       already been followed. No settled Fourth Amendment principle requires
       that officer to second-guess the earlier steps already taken by his or her
       fellow officers in instances like the one White confronted here.
Id.

       As mentioned above, the Court’s holding only addressed whether Officer White

violated clearly established law; it did not address our opinion in regard to Officers

Mariscal and Truesdale, nor did it address whether Officer White’s use of deadly force

was objectively reasonable. Id. Notably, the Court mentioned an argument advanced by

Mr. Pauly as an alternative ground for affirmance:

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


                                             17
Id. The Court declined to reach Mr. Pauly’s argument because it appeared that neither

we nor the district court had addressed it. Id.

       In a short concurrence, Justice Ginsburg summarized her understanding of the

Court’s opinion:

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

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

                                              III

                                 Plaintiffs’ New Argument

       After reading plaintiffs’ brief in opposition to the officers’ petition for certiorari

and plaintiffs’ supplemental brief to us after the Supreme Court vacated our judgment, we

are convinced that we misstated the facts in Pauly I. Originally, we had the following

view of Officer White’s role in the altercation: “Officer White did not participate in the

events leading up to the armed confrontation, nor was he there to hear the other officers

ordering the brothers to ‘Come out or we’re coming in.’ Almost immediately upon


                                              18
Officer White's arrival, one of the brothers shouted ‘We have guns.’” Pauly I, 814 F.3d

at 1076 (internal citations omitted).

         But this was not an accurate portrayal of the events that unfolded on that rainy

night in rural New Mexico almost six years ago. Unfortunately, we were misled by

defendant’s briefs on appeal. For instance, Officer White’s opening brief stated, “Officer

White did not arrive at the Paulys’ house until just before one of the Pauly brothers yelled

out ‘We have guns.’” Aplt. Br. at 9. From the beginning, defendants framed the case as

one where Officer White entered the situation without participation in, or knowledge of,

the alleged reckless conduct of the officers that escalated into a gunfight, and plaintiffs

responded accordingly. Our review of the record on remand shows otherwise. It turns

out that if the facts are viewed in the light most favorable to plaintiffs, Officer White’s

reckless or deliberate conduct unreasonably created a need for him to shoot Samuel

Pauly.

         The officers claim that the “Paulys should not be allowed to raise [a] new theory[]

on appeal that [they] never raised in the district court.” Aplt. Supp. Br. at 9. We reject

this contention. First, plaintiffs alleged from the beginning that all three officers’ actions

precipitated the eventual need to use deadly force, asserting in the complaint that

“Defendants White, Mariscal, and Truesdale’s decision to storm the Pauly residence and

to create a dangerous and hostile situation was unreasonable.” Tr. Doc. 1-3 at 7. Second,

plaintiffs listed as an additional statement of material fact in its brief in opposition to

Officer White’s motion for summary judgment that “Officer White arrived on the scene

two minutes before the shooting,” Aplt. App. at 554, and also asserted that Officer White

                                              19
took part in yelling at and threatening the brothers, id. at 556 (“Officers White and

Mariscal were yelling ‘Open the door’ at the front of the house and Officer Truesdale was

yelling ‘Come outside’ at the rear of the house. The officers yelled to the Pauly brothers

to ‘Come out or we are coming in!’ or ‘If you don’t come out, we’ll come in.’” (emphasis

added) (internal citations omitted)). Third, the district court based its denial of summary

judgment on the fact that Officer White took part in the alleged reckless events leading

up to Officer White’s use of deadly force: “Accepting Plaintiffs’ version of the facts, a

reasonable person in Officer White’s position would have understood that the reckless

actions of the Officers, including his own reckless actions, unreasonably precipitated his

need to shoot Samuel Pauly . . . .” Id. at 687. Fourth, even assuming the argument was

not sufficiently made below, “[w]e have long said that we may affirm on any basis

supported by the record, even if it requires ruling on arguments not reached by the district

court or even presented to us on appeal.” Jordan v. U.S. Dep’t. of Justice, 668 F.3d 1188,

1200 (10th Cir. 2011) (quoting Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130 (10th

Cir. 2011)). Finally, and most importantly, we were misled by the erroneous assertions

about the record that defendants made to us on appeal.

       The record supports the claim that Officer White may have recklessly participated

in the events leading to Samuel Pauly’s death. For instance, Officer Truesdale’s COBAN

recording, and the corresponding transcript which was reproduced in the McFaul Report,

see Aplt. App. at 164, indicates that Officer Truesdale’s camera was activated at 11:14

p.m. Officer Truesdale also stated in his deposition that he turned on the recorder

“[w]hen [he] exited [his] vehicle” and proceeded toward the residence. Id. at 249.

                                             20
Officer Truesdale’s in-car microphone picked up Officer White’s call stating that “all

units are at the residence” at 11:16 p.m., indicating that Officer White arrived on the

scene at that time. Id. at 164. At 11:17 p.m., “Officer White c[a]me[] into the camera’s

view on Firehouse road [and] 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. When he was asked why he changed directions and started moving toward the

house, Officer White stated, “I began to hear Officer Mariscal and Officer Truesdale

announcing, ‘New Mexico State Police,’ from the rear of this property. So I began to

proceed to that location.” Id. at 216. Thus, Officer White heard the other two officers

mere seconds past 11:17 p.m. and proceeded to join them.

       The next audio that was picked up on the COBAN recording was at 11:18:07,

when Officer Truesdale shouted something inaudible, but “at 11:18:12 [h]e yell[ed]

‘State Police’” and at “11:18:18 [h]e yell[ed] ‘Open the door.’ Immediately after Officer

Truesdale’s statement Officer Mariscal’s voice can be heard saying ‘He’s running.’” Id.

at 164. This account was corroborated by Officer Truesdale during his deposition:

       Q: How many times did you try to communicate with the people inside the
       residence?
       A: Approximately three times.
       Q: Okay. Approximately three times. What did you say those three times?
       A: “State Police, come out.”
       Q: Did you say the same thing three times?
       A: “State Police, come out. State Police, come out.”
       Q: Okay.
       A: “Come out, or we’re coming in.”
                                          ***
       Q: How long were you at the side of the truck, shouting to the people inside
       the house?
       A: A short time. It was a few moments. I don’t remember the exact time.

                                             21
       Q: A few moments before what?
       A: Before I saw somebody run down the center of the house.
       Q: All right. And when you saw somebody run down the center of the
       house, what did you do?
       A: Officer Mariscal told me, “He’s running.” I said, “I know,” and I ran
       out this direction, back towards the back of the house.”

Id. at 254.

       Officer Truesdale later said that the brothers did not announce they had guns until

sometime after all the action that was picked up by the COBAN recording between

11:18:07 and 11:18:18:

       Q: Okay. When you heard somebody – so, as far as people inside the
       house, your testimony is, one, you heard somebody say, “Who’s out there?”
       initially, before you had said anything. When they say that is then when –
       your testimony is you say, “State Police,” and then – you said that a few
       times, and then at some point Officer Mariscal says, “Come out, or we’re
       coming in,” and then you make a similar statement, “Come out, or we’re
       coming in.” And then somebody in response to those statements says,
       “Don’t come in. We have guns.” Is that right?
       A: Yes.

Id. at 256.

       It appears from Officer White’s deposition testimony that he was standing next to

Officer Mariscal and heard all of this when it occurred, showing that he was present at

the scene when Officer Truesdale threatened to illegally enter the Pauly brothers’ house if

they did not come outside:

       Q: So you approach, and based on Exhibit 10, the place where you have
       kind of the last part of the line is even with Officer Mariscal. All right.
       Was that intentional, that you kind of stopped beside him?
       A: Was it intentional that night that I stopped next to him?
       Q: Right.
       A: I guess it – I think it would – it just happened.
       Q: All right. And I don’t mean that in any way, other than, it would sort of
       make sense, if you’re approaching to a residence and you see another

                                            22
       officer there, that you’re going to kind of go next to him.
       A: Yeah.
       Q: How far apart were you and Officer Mariscal at that point in time?
       A: I don’t know the exact distance. This is just where I felt that he was
       next to me. I didn’t necessarily make any eye-to-eye contact with him or
       anything.
       Q: Did you see him, though?
       A: I saw that he was – I saw his initial location, and then I proceeded to – to
       go next to where I believed him to be.
                                             ***
       Q: Could you see inside the residence?
       A: I could.
       Q: What could you see?
       A: I could see what appeared to me as the living room, and I saw what
       appeared to be at least two different males walking within the living room
       window.

Id. at 219 (emphasis added). This testimony shows that Officer White was standing next

to Officer Mariscal and watched the two brothers “walking” inside the house. Although

we do not know the exact time this occurred, we know that it was before the COBAN

recording picked up Officer Mariscal saying that one of the brothers was “running” inside

the house.

       As noted above in Officer Truesdale’s deposition testimony, only after Officer

Mariscal stated that one of the brothers was running did a brother yell out, “We have

guns.” Id. at 256. The next audio picked up by the COBAN recording was the first gun

shot, which occurred more than one minute later. “At 11:19:42 first shot is heard,

11:19:43 second shot, 11:19:47 third shot, dispatch is then heard repeating an officer’s

call out of shots fired. 11:19:52 fourth shot is heard. No other shots are heard.” Id. at

164.




                                             23
         Thus, contrary to our determination in Pauly I, 814 F.3d at 1076, we are now

persuaded a reasonable jury could find that Officer White participated in the events

leading up to the armed confrontation and heard the other officers threaten the brothers

by saying, “Come out or we’re coming in.” Aplt. App. at 678. A reasonable jury could

thus conclude that Officer White acted recklessly by precipitating the need to use deadly

force.

                                              IV

                                          Discussion

         We address the officers’ appeal from the district court’s denial of their motions for

summary judgment in light of the Supreme Court’s decision in this case and in light of a

reasonable probability that Officer White took part in the events that led to his use of

deadly force. The officers each contend there are no genuine issues of material fact that

would defeat their claim for qualified immunity.

         Title “42 U.S.C. § 1983 allows an injured person to seek damages against an

individual who has violated his or her federal rights while acting under color of state

law.” Cillo v. City of Greenwood Village, 739 F.3d 451, 459 (10th Cir. 2013).

“Individual defendants named in a § 1983 action may raise a defense of qualified

immunity,” id. at 460, which “protects ‘government officials performing discretionary

functions’ and shields them from ‘liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known,’” Swanson v. Town of Mountain View, 577 F.3d 1196, 1199

(10th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “When a

                                              24
defendant asserts qualified immunity at summary judgment, the burden shifts to the

plaintiff to show that: (1) the defendant violated a constitutional right and (2) the

constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088

(10th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). “If the

plaintiff[s] satisfy[] this two-part test, ‘the defendant bears the usual burden of a party

moving for summary judgment to show that there are no genuine issues of material fact

and that he or she is entitled to judgment as a matter of law.’” Trask, 446 F.3d at 1043

(quoting Axson-Flynn v. Johnson, 356 F.3d 1277, 1299 (10th Cir. 2004)).

       “Although we frequently conduct separate qualified immunity analyses for

different defendants, we have not always done so at the summary judgment stage of

excessive force cases.” Estate of Booker v. Gomez, 745 F.3d 405, 421 (10th Cir. 2014).

Indeed, when appropriate we will consider the officers’ conduct in the aggregate. See,

e.g., Lundstrom v. Romero, 616 F.3d 1108, 1126-27 (10th Cir. 2010); Fisher v. City of

Las Cruces, 584 F.3d 888, 895-902 (10th Cir. 2009); York v. City of Las Cruces, 523

F.3d 1205, 1210-11 (10th Cir. 2008); Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir.

2008); Allen, 119 F.3d at 840-41. But, we have also analyzed the conduct of each officer

individually in excessive force cases at the summary judgment stage. See, e.g., Casey,

509 F.3d at 1282-87; Walker v. City of Orem, 451 F.3d 1139, 1159-61 (10th Cir. 2006);

Currier v. Doran, 242 F.3d 905, 919-25 (10th Cir. 2001). As we explained above, in

Pauly I we analyzed Officers Mariscal and Truesdale together while analyzing Officer

White separately because we thought the facts warranted it. 814 F.3d at 1071. Although

we now recognize that a reasonable jury could find Officer White’s pre-seizure conduct

                                              25
to be just as reckless as Officers Mariscal and Truesdale, we still believe the facts warrant

a separate qualified immunity analysis because Officer White is the only officer who

actually shot Samuel Pauly.

A. Officer White

       1. The Reasonableness of Officer White’s Conduct

       “[A]ll claims that law enforcement officers have used excessive force—

deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of

a free citizen should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard.” Graham, 490 U.S. at 395. We review these

excessive force claims under a standard of objective reasonableness, “judged

from the perspective of a reasonable officer on the scene, rather than with 20/20

vision of hindsight.” Id. at 396. “In determining the reasonableness of the

manner in which a seizure is effected, ‘[w]e must balance 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.’” Scott,

550 U.S. at 383 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). This

balancing test “requires careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or others, and whether he

is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396 (emphasis added). And our balancing must always account “for the

fact that police officers are often forced to make split-second judgments—in

                                             26
circumstances that are tense, uncertain, and rapidly evolving—about the amount

of force that is necessary in a particular situation.” Id. at 397. Ultimately, “the

inquiry is always whether, from the perspective of a reasonable officer on the scene, the

totality of the circumstances justified the use of force.” Estate of Larsen, 511 F.3d at

1260.

        Turning to this case, we look first to Officer White, as he is the one who

actually “seized” Samuel Pauly by shooting him. Viewing the facts in the light

most favorable to plaintiffs, the district court determined that the brothers were in

their home when Officers Mariscal and Truesdale—and Officer White shortly

thereafter—approached their house while it was dark and raining and, without

knocking on the door, made threatening comments about intruding into the home.

In response, the brothers shouted “We have guns,” hoping to scare off their

perceived home invaders, and all three officers took cover. In particular, Officer

White took cover behind a rock wall approximately fifty feet away from the

house. Samuel Pauly opened the window of his home and pointed his gun

aimlessly into the dark in the direction of Officer White. Within five seconds of

Samuel pointing his gun out of the window, Officer White shot Samuel in the

heart without first identifying himself or warning Samuel to put down his

weapon. To analyze the reasonableness of Officer White’s actions, we turn to the

ubiquitous three factor test from Graham v. Connor.

              a. The First Graham Factor



                                             27
       The first Graham factor, “the severity of the crime at issue,” 490 U.S. at 396,

weighs in favor of plaintiffs. The district court noted that once police arrived at

the Glorieta off-ramp in response to a call concerning road rage, “the Officers did

not believe any exigent circumstances existed,” and they “did not have enough

evidence or probable cause to make an arrest.” Aplt. App. at 677. It is unclear

from the record what, if any, crime was committed during the road rage incident.

At best, the incident might be viewed as a minor crime such as reckless driving or

driving while intoxicated. 5

              b. The Second Graham Factor

       The second Graham factor, “whether the suspect pose[ed] an immediate threat to

the safety of the officers or others,” 490 U.S. at 396, is undoubtedly the “most important”

and fact intensive factor in determining the objective reasonableness of an officer’s use of

force, Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). Thus, like many of our

excessive force cases, our analysis will focus mostly on it. See, e.g., Estate of Larsen,

511 F.3d at 1260-61; Jiron v. City of Lakewood, 392 F.3d 410, 418 (10th Cir.

2004); Zuchel v. Spinharney, 890 F.2d 273, 275 (10th Cir. 1989).

                     i. The Estate of Larsen Test

       In this case, Officer White used deadly force, and the use of deadly force is only

justified if the officer had “probable cause to believe that there was a threat of

5
 Under New Mexico law, reckless driving and driving while intoxicated (first
offense) are misdemeanor offenses. State v. Trevizo, 257 P.3d 978, 982 (N.M. Ct.
App. 2011) (citing N.M. Stat. Ann. § 66-8-113(B) (1978) (reckless driving);
§ 66-8-102(E) (DWI) (holding that one-year statute of limitations for petty
misdemeanors applied to the defendant’s DWI and reckless driving charges).
                                            28
serious physical harm to [himself] or others,” Estate of Larsen, 511 F.3d at 1260

(quoting Jiron, 392 F.3d at 415). Accordingly, in evaluating the degree of threat

facing an officer, we look to a four component test first highlighted in Estate of

Larsen:

       (1) whether the officers ordered the suspect to drop his weapon, and
       the suspect’s compliance with police commands; (2) whether any
       hostile motions were made with the weapon towards the officers; (3)
       the distance separating the officers and the suspect; and (4) the
       manifest intentions of the suspect.

Id. We apply each in turn.

                            1) The First Larsen Component

       The first Larsen component, “whether the officers ordered the suspect to drop his

weapon, and the suspect’s compliance with police commands,” id., clearly supports

plaintiffs. Officer White did not identify himself or order Samuel Pauly to drop his

weapon. In excessive force cases, “if the suspect threatens the officer with a weapon . . .

deadly force may be used if necessary to prevent escape, and if, where feasible, some

warning has been given.” Garner, 471 U.S. at 11-12 (emphasis added); see also

Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003) (fact issue as to whether warning was

feasible before deadly shot fired). Plaintiffs’ expert witness, Glenn A. Walp, testified

that in his professional opinion it was feasible for Officer White to give the suspect a

warning during the five-second interval between when Samuel aimed the gun and Officer

White fired his weapon, and that Officer White’s failure to do so was unreasonable. See

Aplt. App. at 286. (“[B]etween the time when he saw the pointing of the weapon and

what we will use for the sake of argument here today, five seconds, I feel that there was

                                             29
an extensive amount of time to at least yell something to the effect . . . of ‘State Police,

drop your weapon.’”).6

                             2) The Second Larsen Component

       The second Larsen component, “whether any hostile motions were made with the

weapon towards the officers,” 511 F.3d at 1260, weighs in favor of Officer White

because the record reflects that Samuel Pauly pointed a handgun at Officer White, or at

least in his direction. Officer White relies on some of our decisions for the proposition

that use of deadly force is always reasonable where someone aims a gun at an officer.

Aplt. Br. at 14 (citing Thomson v. Salt Lake Cty., 584 F.3d 1304, 1317-18 (10th Cir.

2009); Wilson v. Meeks, 52 F.3d 1547, 1553-54 (10th Cir. 1995), abrogated on other

grounds by Saucier, 533 U.S. at 205). But the facts in those cases were entirely different

from the facts here. In both cases, the officers were in close proximity to the suspect, and

in Wilson one of the officers ordered the suspect to show his hands before he shot him.

52 F.3d at 1549. Neither of these facts is present in this case—Officer White was some

fifty feet away and he did not order Samuel Pauly to show his hands before shooting him.

Moreover, none of our cases have created a per se rule of objective reasonableness where

a person points a gun at a police officer. See Allen, 119 F.3d 837 (denying qualified

immunity to police officers who shot armed man because fact issues remained as to

whether the officers’ actions unreasonably precipitated the need to use deadly force); see

also Sledd v. Lindsay, 102 F.3d 282, 288 (7th Cir. 1996) (denying qualified immunity to

6
  In Tenorio v. Pitzer, 802 F.3d 1160, 1163 (10th Cir. 2015), for instance, within “two or
three seconds” the officer “yelled, ‘Sir, put the knife down! Put the knife down, please!
Put the knife down!’” before he shot the decedent.
                                              30
police officers who shot armed man because there were fact questions as to whether

officers announced their presence and whether a reasonable officer would have thought

the plaintiff posed such a risk under all the circumstances that the immediate use of

deadly force was justified); Yates v. City of Cleveland, 941 F.2d 444, 445, 449 (6th Cir.

1991) (denying qualified immunity to police officer who shot armed man because act of

entering private residence late at night without identifying himself was enough to show

he had unreasonably created the encounter that led to the use of force).

       Moreover, and importantly, the district court determined that a genuine fact issue

remains as to whether Samuel Pauly even fired his weapon. Although Officers White

and Mariscal claim that Samuel fired the handgun, the district court noted the following:

       A revolver later found on the living room floor under the front window
       where Samuel Pauly was shot had one casing forward of the firing pin
       while the other four chambers were loaded. No bullet casing was recovered
       from the handgun, so there is no forensic proof that Samuel Pauly fired the
       handgun that night.

Aplt. App. at 681 n.8. Significantly, “Officer Mariscal strongly believes that he fired a

shot at Samuel Pauly after Samuel Pauly fired the handgun,” and the district court found

that “Officer Mariscal was missing one cartridge from his magazine.” Id. at 681 n.9

Thus, the court concluded the following: “since only four shots were fired that night, if

Officer Mariscal fired the third shot as he claims and Officer White fired the fourth shot,

then Samuel Pauly could not have fired upon Officer White.” Id.

       Officer White stated in his deposition that when he was kneeling behind the rock

wall, he saw Samuel Pauly shoot a “silver gun” directly towards his face. Aplt. App. at

223-24 (“I observed the male, with his right hand, extend his hand in a parallel position to

                                            31
the ground, pointing the gun toward my direction . . . [and] I observed the muzzle flash,

and I heard the bang of the gun.”). Nevertheless, “[b]ased on [the] physical evidence, a

jury could reasonably decide to reject [Officer White’s] testimony.” Abraham v. Raso,

183 F.3d 279, 294 (3d Cir. 1999) (holding fact issue precluded summary judgment on

excessive force claim against officer). Indeed, “[c]onsidering the physical evidence

together with the inconsistencies in the officer’s testimony, a jury will have to make

credibility judgments, and credibility determinations should not be made on summary

judgment.” Id. Moreover, “since the victim of deadly force is unable to testify, courts

should be cautious on summary judgment to ‘ensure that the officer is not taking

advantage of the fact that the witness most likely to contradict his story—the person shot

dead—is unable to testify.’” Id. (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.

1994)). As the Ninth Circuit noted in Scott, 39 F.3d at 915, “the court may not simply

accept what may be a self-serving account by the police officer.” Rather, “[i]t must also

look at the circumstantial evidence that, if believed, would tend to discredit the police

officer’s story, and consider whether this evidence could convince a rational factfinder

that the officer acted unreasonably.” Id. Thus, if the evidence is viewed in the light most

favorable to Plaintiffs, Samuel Pauly did not fire his weapon at Officer White, but only

pointed it in his direction while Officer White was fifty feet away and behind both

physical cover and the cover of night.

                            3) The Third Larsen Component

       The third Larsen component, “the distance separating the officers and the

suspect,” 511 F.3d at 1260, clearly supports plaintiffs because not only was Officer

                                             32
White fifty feet away from Samuel Pauly, he was also sequestered behind a rock

wall. And Samuel was aiming his gun through the open window of a lighted

house toward a target obscured by the dark and rain.

      As Officer White described it when he was asked to explain what he did

after he heard “We have guns,” he said he ran and took cover behind a rock wall

before Samuel opened the window and stuck his gun out.

      Q. And, I’m sorry, I think you just said this, but the position that you took,
      you know, you ran down on the other side of the rock wall. Tell me again.
      Were you standing? Were you crouched? What position were you in?
      A. I was kneeling.
      Q. So you’re kneeling, one knee up and one knee down?
      A. Both knees down.
      Q. So both of your knees were on the ground, and where–were you looking
      towards the residence?
      A. I was.
                                            ***
      Q. So you kneeled down, both knees on the ground and looking over the
      top of the rock wall. Is that right?
      A. Correct.
      Q. Did you have your duty weapon drawn?
      A. I did.
                                            ***
      Q. Nobody was in the window at that point? Is that correct?
      A. That’s correct.
      Q. Was the window up?
      A. As in closed? It was closed.
      Q. Yes. So the window–both windows were closed at the point that you
      run down to the position in Exhibit 2?
      A. Correct.
      Q. You have your weapon drawn. Where is it pointing at that time?
      A. It’s pointing in the direction of the house.
      Q. Was it resting on the wall?
      A. It was.

Aplt. App. at 222 (emphasis added). Officer White’s own description of his position at

the time Samuel Pauly opened the window and pointed his gun out clearly supports the

                                           33
district court’s description of him as “behind a stone wall located 50 feet from the front of

the house.” Id. at 680.

                            4) The Fourth Larsen Component

       We consider the fourth Larsen component, “the manifest intentions of the

suspect,” 511 F.3d at 1260, to also weigh in favor of plaintiffs. All three officers claim

that they announced their presence numerous times, but there is only one instance of

audio evidence of their announcements, which comes from Officer Truesdale’s COBAN

recording, in which Officer Mariscal shouted “State Police” and “Open the Door.” Aplt.

App. at 164. Thus, we agree with the district court in its determination that “a reasonable

jury could find” that “the Officers provided inadequate police identification by yelling

out ‘State Police’ once,” and “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.”

Id. at 685. Accordingly, if we view the evidence in the light most favorable to plaintiffs,

the manifest intention of the brothers was to protect their home from ostensible home

invaders.

       In fact, under the version of events that plaintiffs present, it was no surprise that

the brothers armed themselves to protect their home, because it was their

constitutional right to do so:

       [T]he inherent right of self-defense has been central to the Second
       Amendment right. The handgun ban amounts to a prohibition of an entire
       class of “arms” that is overwhelmingly chosen by American society for that
       lawful purpose. The prohibition extends, moreover, to the home, where the
       need for defense of self, family, and property is most acute. Under any of

                                             34
       the standards of scrutiny that we have applied to enumerated constitutional
       rights, banning from the home the most preferred firearm in the nation to
       keep and use for protection of one’s home and family . . . would fail
       constitutional muster.

District of Colombia v. Heller, 554 U.S. 570, 628-29 (2008) (emphasis added)

(footnote, citation, and quotation marks omitted). Moreover, in State v. Boyett, 185 P.3d

355, 358 (N.M. 2008), the Supreme Court of New Mexico reiterated that the “[d]efense

of habitation has long been recognized in New Mexico,” and that “[i]t gives a person the

right to use lethal force against an intruder when such force is necessary to prevent the

commission of a felony in his or her home.” Thus, viewing the facts in the light most

favorable to plaintiffs, the manifest intention of the brothers was to protect their home

after inadequate identification from the officers, which was their legal right under both

the United States Constitution and New Mexico state law.

                     ii. The Reckless Conduct of the Officers in Effecting the Seizure

       Our precedent recognizes that “[t]he reasonableness of the use of force

depends not only on whether the officers were in danger at the precise moment

that they used force, but also on whether the officers’ own ‘reckless or deliberate

conduct during the seizure unreasonably created the need to use such force.’” 7


7
  This has been the law in our circuit since 1995. See Sevier, 60 F.3d at 699; see also
Allen, 119 F.3d at 840. But the concept that pre-seizure conduct should be used in
evaluating the reasonableness of an officer’s actions is not universally held among other
circuits. See, e.g., Schulz v. Long, 44 F.3d 643 (8th Cir. 1995) (holding that evidence of
pre-seizure conduct was irrelevant to reasonableness); Cole v. Bone, 993 F.2d 1328, 1333
(8th Cir. 1993) (same); Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992) (same);
Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991) (same). The Supreme Court very
recently had an opportunity to resolve this issue but declined to do so:

                                             35
Jiron, 392 F.3d at 415 (quoting Sevier v. City of Lawrence, 60 F.3d 695, 699

(10th Cir. 1995)). We will “consider an officer’s conduct prior to the suspect’s

threat of force if the conduct is ‘immediately connected’ to the suspect’s threat of

force.” Allen, 119 F.3d at 840 (quoting Romero v. Bd. of Cty. Comm’rs, 60 F.3d 702,

705 n.5 (10th Cir. 1995)); cf. Garner, 471 U.S. at 8 (“[I]t is plain that

reasonableness depends on not only when a seizure is made, but also how it is

carried out.”). The officer’s conduct prior to a suspect threatening force “is only

actionable if it rises to the level of recklessness.” Thomson, 584 F.3d at 1320.

Thus, “[m]ere negligen[ce]” will not suffice. Sevier, 60 F.3d at 699 n.7.

       Our seminal case on this issue, Allen v. City of Muskogee, 119 F.3d 837 (10th Cir.

1997), is instructive. In Allen, Mr. Allen left his home with ammunition and several guns

after an altercation with his family. Id. at 839. The altercation was reported to the

Wagoner County Sheriff’s Department, which in turn sent a teletype message to the

       [Respondents] argue that the judgment below should be affirmed under
       Graham itself. Graham commands that an officer's use of force be
       assessed for reasonableness under the “totality of the circumstances.” 490
       U.S., at 396, 109 S. Ct. 1865 (internal quotation marks omitted). On
       respondents' view, that means taking into account unreasonable police
       conduct prior to the use of force that foreseeably created the need to use it.
       Brief for Respondents 42–43. We did not grant certiorari on that question,
       and the decision below did not address it. Accordingly, we decline to
       address it here. See, e.g., McLane Co. v. EEOC, ––– U.S. ––––, ––––, 137
       S.Ct. 1159, 1170, 197 L.Ed.2d 500 (2017) (“[W]e are a court of review, not
       of first view” (internal quotation marks omitted)).

County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1547 n.* (2017). Thus, at least for
now, Sevier and Allen remain good law in this circuit.




                                             36
Muskogee Police Department (“MPD”) describing Mr. Allen and his car, and warning

that he was armed and had an outstanding decade-old warrant for impersonating an

officer. Id. A 911 call from Mr. Allen’s sister’s house warned that Mr. Allen was

threatening suicide. Id. When Lt. Smith arrived at the scene, he cleared bystanders from

the area and found Mr. Allen sitting in the driver’s seat of his vehicle. Id. Mr. Allen had

one foot out the door and a gun in his right hand, which was resting on the center console.

Seeing this, Lt. Smith told Mr. Allen to drop his gun several times. Id.

       Officers McDonald and Farmer arrived at the scene shortly after Lt. Smith, and

Officer McDonald joined Lt. Smith at the driver side door. Id. Lt. Smith reached into the

vehicle, attempting to seize the gun, while Officer McDonald held Mr. Allen’s left arm.

Id. At this point, Officer Farmer attempted to open the passenger side door and Mr.

Allen pointed the gun at him, forcing Officer Farmer to duck and move behind the car.

Id. Mr. Allen then directed the gun towards Lt. Smith and Officer McDonald and shots

were exchanged. Id. Lt. Smith and Officer McDonald fired a total of twelve shots—four

of which struck Mr. Allen. Id. The entire encounter, from Lt. Smith’s arrival to Mr.

Allen’s death, took ninety seconds. Id.

       Mr. Allen’s family brought a § 1983 claim against the officers involved and the

City of Muskogee. The defendants moved for summary judgment and set forth a

statement of facts in their brief, which the plaintiff did not dispute. Id. Ruling that there

was no genuine issue of material fact and that defendants were entitled to judgment as a

matter of law, the district court granted summary judgment in favor of defendants on

plaintiff’s § 1983 claim.

                                             37
       We reversed as to the individual officers. Id. at 845. We recognized that “[t]he

excessive force inquiry includes not only the officers' actions at the moment that the

threat was presented, but also may include their actions in the moments leading up to the

suspect's threat of force.” Id. at 840 (citing Sevier, 60 F.3d at 699). We noted that “[w]e

will thus consider an officer's conduct prior to the suspect's threat of force if the conduct

is ‘immediately connected’ to the suspect's threat of force,” id. (quoting Romero, 60 F.3d

at 705 n.5), and pointed out that there was deposition testimony that Lt. Smith “ran

‘screaming’ up to Mr. Allen’s car and immediately began shouting at Mr. Allen to get out

of his car.” Id. at 841. Since the altercation took place in a ninety-second window, we

concluded that the officers’ preceding actions were so “immediately connected” to Mr.

Allen’s threat of force that they should have been included in the reasonableness inquiry.

Accordingly, we held that a reasonable jury could conclude that the officers’ actions were

reckless and precipitated the need to use deadly force. Id.

       Similarly, in this case, the alleged reckless actions of all three officers were so

immediately connected to the Pauly brothers arming themselves that such conduct should

be included in the reasonableness inquiry. Thus, if we view the evidence in the light

most favorable to plaintiffs, the threat made by the brothers, which would normally

justify an officer’s use of force, was precipitated by the officers’ own actions and that

Officer White’s use of force was therefore unreasonable.

                     iii. Whether Officer White Reasonably Feared for the Safety of
                     the Other Officers




                                              38
       Finally, although Officer White claims he thought Officer Truesdale was hit by the

two shotgun blasts he heard from behind the house, he admitted in his deposition that “I

did not hear anything that would suggest [Officer Truesdale] had been hit.” Id. at 223.

Significantly, “the law is clear that [Officer White’s] belief must be reasonable.”

Attocknie v. Smith, 798 F.3d 1252, 1257 (10th Cir. 2015). In our view, there is at least a

fact question for the jury as to whether it was objectively reasonable for Officer White to

immediately assume that one of his fellow officers was shot after hearing two shots from

the back of the house but nothing more to indicate that anyone had been hit. Cf.

Attocknie, 798 F.3d at 1257 (affirming denial of qualified immunity to officer and

rejecting officer’s claim he saw suspect run into house, noting “that a jury might

reasonably refuse to credit his belief as reasonable” because a jury “could well find that

[the officer] is not telling the truth about seeing someone running, or at least that he was

not reasonable in inferring that the person he saw was [the suspect], especially given

other evidence that [the suspect] was not seen by anyone else at the time and was not

found there after the shooting.”) Thus, there are multiple issues of fact that must be

resolved in order to determine “whether [Samuel Pauly] pose[d] an immediate threat to

the safety of the officers or others.” Graham, 490 U.S. at 396. Accordingly, the second

Graham factor does not weigh conclusively in favor of Officer White.

              c. The Third Graham Factor

       The third Graham factor, “whether [the suspect] is actively resisting arrest or

attempting to evade arrest by flight,” 490 U.S. at 396, also weighs in favor of plaintiffs.

As the district court determined, after the officers arrived at the Glorieta off-ramp, spoke

                                             39
with the women about the incident, and then allowed the women to leave, “any threat to

the females was over.” Aplt. App. at 676. More importantly, the court recognized that

“the Officers did not believe any exigent circumstances existed,” and that at that point,

they “did not have enough evidence or probable cause to make an arrest.” Id. at 677

(emphasis added). Thus, when the officers, including White, went to the brothers’

residence, they were not there to make an arrest because no grounds existed to do so.

This is especially true for Samuel Pauly, who had been in his home playing video games

before Daniel arrived that night. Accordingly, the brothers could not have been

“attempting to evade arrest by flight,” Graham, 490 U.S. at 396. This factor supports

plaintiffs.

       Based on the record in the present case, viewed in the light most favorable to

plaintiffs, Officer White did not have probable cause to believe there was an immediate

threat of serious harm to himself or to Officer Mariscal. This is especially true

considering Officer White may have participated in the reckless conduct that lead to his

perceived need to shoot Samuel Pauly. Thus, Officer White’s use of deadly force was

not objectively reasonable and violated Samuel Pauly’s constitutional right to be free

from excessive force.

       2. Clearly Established

       Having held that the evidence is sufficient to raise a fact issue regarding the

excessive force claim, we turn to whether the law was clearly established at the time of

the violation because “immunity protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Pauly II, 137 S. Ct. at 551 (quoting Mullenix, 136 S. Ct. at

                                             40
308). “For a right to be clearly established there must be Tenth Circuit or Supreme Court

precedent close enough on point to make the unlawfulness of the officers’ actions

apparent.” Mascorro v. Billings, 656 F.3d 1198, 1208 (10th Cir. 2011); see also Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011) (“A Government official’s conduct violates clearly

established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right

[are] sufficiently clear’ that every ‘reasonable official would have understood that what

he is doing violates that right.’” (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987))); Hope, 536 U.S. at 739 (“For a constitutional right to be clearly established, its

contours must be sufficiently clear that a reasonable official would understand that what

he is doing violates that right.” (internal quotation marks omitted)). The Supreme Court

has noted that “[w]e do not require a case directly on point, but existing precedent must

have placed the statutory or constitutional question beyond debate.” Mullenix, 136 S. Ct.

at 308 (quoting al-Kidd, 563 U.S. at 741). Indeed, “the dispositive question is ‘whether

the violative nature of particular conduct is clearly established,’” id. (quoting al-Kidd,

563 U.S. at 742) (emphasis added), and “[the] inquiry ‘must be undertaken in light of the

specific context of the case, not as a broad general proposition,’” id. (quoting Brosseau v.

543 U.S. at 198).

       The district court relied on Allen, 119 F.3d at 841, in concluding that Officer

White had violated clearly established law. It stated that “[s]ince 1997, it has been

clearly established in the Tenth Circuit ‘that an officer is responsible for his or her

reckless conduct that precipitates the need to use force.’” Aplt. App. at 687 (quoting

Murphy v. Bitsoih, 320 F.Supp. 2d 1174, 1193 (D.N.M. 2004)). But this statement

                                              41
suffers from the same lack of specificity as does the general propositions from Graham

and Garner that “use of force is contrary to the Fourth Amendment if it is excessive

under objective standards of reasonableness,” which, by itself, “is not enough.” Saucier,

533 U.S. at 202; see also Pauly II, 137 S.Ct. at 552 (“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.”). The statement in Allen, that the reasonableness inquiry includes an

evaluation of an officer’s actions leading up to the use of force, is absolutely relevant in

determining whether a police officer acted unreasonably in effecting a seizure, as we

illustrated above. But it cannot alone serve as the basis for concluding that an officer’s

particular use of excessive force was “clearly established,” Pauly II, 137 S. Ct. at 552.

Accordingly, Allen is of little help in this case because the facts are completely different.

       Because there is no case “close enough on point to make the unlawfulness of

[Officer White’s] actions apparent,” Pauly I, 814 F.3d at 1091 (Moritz, J., Dissenting)

(alteration in original) (quoting Mascorro, 656 F.3d at 1208), we conclude that Officer

White is entitled to qualified immunity.

B. Officers Mariscal and Truesdale

       42 U.S.C. § 1983 not only imposes liability on those who actually deprive a

person of their rights under the Constitution, but also imposes liability on those who

“cause” a person to be subjected to a deprivation. “The requisite causal connection is

satisfied if the defendant[s] set in motion a series of events that the defendant[s] knew or

reasonably should have known would cause others to deprive the plaintiff of [his]

                                             42
constitutional rights.” Trask, 446 F.3d at 1046 (quoting Snell v. Tunnell, 920 F.2d 673,

700 (10th Cir. 1990)). This is plaintiffs’ theory of liability for Officers Mariscal and

Truesdale, that their reckless conduct leading up to the shooting caused Officer White to

use constitutionally excessive force. But, as we explained above, Officer White is

entitled to qualified immunity because his alleged use of excessive force was not clearly

established in the circumstances of this case. It therefore cannot serve as the basis of

liability for Officers Mariscal and Truesdale. Cf. Mendez, 137 S. Ct. at 1549 (stating that

officers’ violation of knock and announce rule, which appellate court held was a

constitutional violation but not a clearly established one, could not serve as basis for

liability on theory that it was proximate cause of subsequent use of force). And neither

Officer Mariscal nor Truesdale committed a constitutional violation in his own right.

Thus, there is no basis for holding either of them liable under § 1983.

       Accordingly, we REVERSE the district court’s denial of summary judgment to

Officers Mariscal, Truesdale, and White, and REMAND with instructions to enter

judgment in favor of each officer.




                                             43
No. 14-2035, Daniel T. Pauly, et al. v. Ray White, et al.

MORITZ, J., concurring.

       I agree with the majority that White is entitled to qualified immunity because the

contours of the constitutional right at issue aren’t clearly established. See Maj. Op.

40–42. But unlike the majority, I would decline to address the constitutional question.

Compare id. at 25–40, with Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir. 2011) (stating

that “courts should proceed directly to, ‘should address only,’ and should deny relief

exclusively based on” plaintiff’s failure to show that the law is clearly established where,

e.g., “the . . . constitutional violation question ‘is so factbound that the decision provides

little guidance for future cases’” (first quoting Camreta v. Greene, 563 U.S. 692, 707

(2011); then quoting Pearson v. Callahan, 555 U.S. 223, 237 (2009))). Moreover,

although I agree with the majority’s ultimate conclusion that all three defendants are

entitled to summary judgment, see Maj. Op. 43, I question whether the analytical

approach the majority applies in reaching that conclusion is consistent with our case law.

       My questions arise, in large part, from the procedural posture of this appeal. We

typically lack jurisdiction to review the denial of a motion for summary judgment. Cox v.

Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015). But “denial of qualified immunity to a

public official . . . is immediately appealable under the collateral order doctrine to the

extent it involves abstract issues of law.” Fancher v. Barrientos, 723 F.3d 1191, 1198

(10th Cir. 2013). “Specifically, we have jurisdiction ‘to review “(1) whether the facts that

the district court ruled a reasonable jury could find would suffice to show a legal

violation, [and] (2) whether that law was clearly established at the time of the alleged
violation.”’” Cox, 800 F.3d at 1242 (quoting Roosevelt–Hennix v. Prickett, 717 F.3d 751,

753 (10th Cir. 2013)).

       Critically, in exercising that limited jurisdiction, we generally aren’t at liberty to

undertake our own de novo review of the record evidence. Instead, “[t]he district court’s

factual findings and reasonable assumptions comprise ‘the universe of facts upon which

we base our legal review of whether defendants are entitled to qualified immunity.’” Id.

(quoting Fogarty v. Gallegos, 523 F.3d 1147, 1154 (10th Cir. 2008)); see also Lewis v.

Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (“[I]f a district court concludes that a

reasonable jury could find certain specified facts in favor of the plaintiff, . . . we usually

must take them as true—and do so even if our own de novo review of the record might

suggest otherwise as a matter of law.”).

       In short, “‘whether or not the pretrial record sets forth a “genuine” issue of fact for

trial’ is not an abstract legal question that we may review” on interlocutory appeal. Cox,

800 F.3d at 1242 (quoting Johnson v. Jones, 515 U.S. 304, 320 (1995)); see also Morris

v. Noe, 672 F.3d 1185, 1189 (10th Cir. 2012). Indeed, the question of whether a genuine

issue of material fact exists is largely irrelevant to the qualified-immunity analysis.

Instead, that question arises if—and only if—the plaintiff first demonstrates the

defendant’s alleged conduct violated clearly established law. See Nelson v. McMullen,

207 F.3d 1202, 1206 (10th Cir. 2000) (“If, and only if, the plaintiff [shows a violation of

clearly established law] does a defendant then bear the . . . burden of . . . showing ‘that

there are no genuine issues of material fact and that he or she is entitled to judgment as a

matter of law.’” (quoting Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995))).

                                               2
Until a plaintiff makes that showing, “a federal court’s factual analysis relative to the

qualified-immunity question” asks only “whether [the] plaintiff’s factual allegations are

sufficiently grounded in the record such that they may permissibly comprise the universe

of facts that will serve as the foundation for answering the legal question before the

court.” Cox, 800 F.3d at 1243 (quoting Thomson v. Salt Lake Cty., 584 F.3d 1304, 1326

(10th Cir. 2009) (Holmes, J., concurring)); see also id. (“[T]he objective” at that point “is

not to determine whether a plaintiff survives summary judgment because plaintiff’s

evidence raises material issues that warrant resolution by a jury.” (alteration in original)

(quoting Thomson, 584 F.3d at 1326 (Holmes, J., concurring))).

       The majority correctly articulates these standards. See Maj. Op. 2–3 (noting that

we must accept as true those facts that district court found and relied on in denying

summary judgment; acknowledging that we can’t “consider whether the district court

correctly identified the set of facts that the summary judgment record is sufficient to

prove” (quoting Morris, 672 F.3d at 1189)); id. at 24 (stating that question of whether

genuine dispute of material fact exists doesn’t arise unless and until plaintiff first

demonstrates that defendant violated clearly established constitutional right). But I’m not

convinced that after articulating these standards, the majority applies them.

       For instance, I question whether the facts the majority relies on in evaluating the

constitutional question are part of the “the universe of facts” as the district court found it

to exist, or whether instead the majority has gleaned at least some of those facts from its

own independent review of the record. Compare Cox, 800 F.3d at 1242 (explaining that

we must decide the constitutional question based on “[t]he district court’s factual findings

                                               3
and reasonable assumptions,” as opposed to our own de novo review of the record), with,

e.g., Maj. Op. 18 (“Our review of the record on remand shows otherwise.”).1

       Likewise, I question whether the majority exceeds the bounds of this court’s

jurisdiction by taking a position on what facts a reasonable jury might find or whether

any genuine disputes of material fact might exist. Compare Cox, 800 F.3d at 1242

(“‘[W]hether or not the pretrial record sets forth a “genuine” issue of fact for trial’ is not

an abstract legal question that we may review [on interlocutory appeal].” (quoting Jones,

515 U.S. at 320)), with Maj. Op. at 23 (“[A] reasonable jury could find that . . . White

participated in the events leading up to the armed confrontation and heard the other

officers threaten the brothers by saying, ‘Come out or we’re coming in.’” (quoting Aplt.

App. at 678)), id. at 38 (“In our view, there is at least a fact question for the jury as to

whether it was objectively reasonable for . . . White to immediately assume that one of

his fellow officers was shot after hearing two shots from the back of the house but

nothing more to indicate that anyone had been hit.”), and id. at 39 (“Thus, there are

multiple issues of fact that must be resolved in order to determine ‘whether [Samuel

Pauly] pose[d] an immediate threat to the safety of the officers or others.’” (alterations in

original) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989))).


       1
         True, when a “district court fails to make its factual assumptions explicit, we
must ‘undertake a cumbersome review of the record’ to ferret out facts that the district
court ‘likely assumed.’” Fogarty, 523 F.3d at 1154 (10th Cir. 2008) (quoting Behrens v.
Pelletier, 516 U.S. 299, 313 (1996)). But the majority doesn’t suggest that’s what
happened here.



                                               4
       Finally, even assuming this court may take a position on whether such fact

questions exist, I question whether it’s appropriate to do so in determining, for purposes

of the qualified immunity analysis, whether the plaintiffs have demonstrated a

constitutional violation. See, e.g., id. at 40 (“Having held that the evidence is sufficient to

raise a fact issue regarding the excessive force claim, we turn to whether the law was

clearly established at the time of the violation . . . .”).

         Before the burden shifts to a defendant to demonstrate that no genuine issues of

material fact exist, a plaintiff must first show both (1) a violation of (2) clearly

established law. See Nelson, 207 F.3d at 1206. And here, the majority concludes that the

plaintiffs fail to clear the second of these two hurdles. That is, the plaintiffs fail to

demonstrate that the law is clearly established. See Maj. Op. 40–42. Accordingly, the

defendants are entitled to qualified immunity and the burden never shifts to them to show

that no genuine issues of material fact exist. See Nelson, 207 F.3d at 1206; Cox, 800 F.3d

at 1243 (explaining that the court’s objective isn’t to “determine whether a plaintiff

survives summary judgment because plaintiff’s evidence raises material issues that

warrant resolution by a jury” (quoting Thomson, 584 F.3d at 1326 (Holmes, J.,

concurring))); United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 940 n.6 (10th Cir.

2008) (“[T]he task of district courts, and consequently appellate courts, is different in

reviewing motions for summary judgment under traditional standards and qualified

immunity principles,” and “courts should exercise care not to confuse the two analytic

frameworks.”). As a result, I see no need to resolve whether such fact questions exist.



                                                 5
       Nevertheless, despite my reservations about the majority’s analytical approach, I

agree with its ultimate conclusion: even assuming that (1) all the facts the majority relies

on belong to the “universe of facts upon which we base our legal review of whether

defendants are entitled to qualified immunity,” Cox, 800 F.3d at 1242 (quoting Fogarty,

523 F.3d at 1154), and (2) under those facts, White violated Samuel Pauly’s

constitutional right to be free from excessive force, no existing precedent “place[s] the

. . . constitutional question beyond debate,” Maj. Op. 40 (quoting Mullenix v. Luna, 136

S. Ct. 305, 308 (2015)). Accordingly, White is entitled to qualified immunity. Id. at 42.

And because White is entitled to qualified immunity, his conduct “cannot serve as the

basis of liability for” Mariscal and Truesdale. Id. Thus, all three defendants are entitled to

summary judgment and we must reverse and remand with directions to enter judgment in

their favor. Id. at 43.




                                              6
