{"id":25277,"date":"2017-01-09T11:55:46","date_gmt":"2017-01-09T16:55:46","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=25277"},"modified":"2017-01-09T18:33:11","modified_gmt":"2017-01-09T23:33:11","slug":"scotus-warning-before-use-of-deadly-force-not-clearly-established-or-established-at-all","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=25277","title":{"rendered":"SCOTUS: Warning before use of deadly force not “clearly established” [or established at all]"},"content":{"rendered":"

It does not violate clearly established law under the Fourth Amendment to shoot without warning when the shooting is otherwise justified. White v. Pauly<\/a>, 2017 U.S. LEXIS 5 (Jan. 9, 2017) (per curiam):
\n<\/p>\n

Today, it is again necessary to reiterate the longstanding principle that \u201cclearly established law\u201d should not be defined \u201cat a high level of generality.\u201d Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). As this Court explained decades ago, the clearly established law must be \u201cparticularized\u201d to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Otherwise, \u201c[p]laintiffs would be able to convert the rule of qualified immunity … into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.\u201d Id., at 639. <\/p>\n

The panel majority misunderstood the \u201cclearly established\u201d analysis: It failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment. Instead, the majority relied on Graham, Garner, and their Court of Appeals progeny, which\u2014as noted above\u2014lay out excessive-force principles at only a general level. Of course, \u201cgeneral statements of the law are not inherently incapable of giving fair and clear warning\u201d to officers, United States v. Lanier, 520 U.S. 259, 271 (1997), but \u201cin the light of pre-existing law the unlawfulness must be apparent,\u201d Anderson v. Creighton, supra, at 640. For that reason, we have held that Garner and Graham do not by themselves create clearly established law outside \u201can obvious case.\u201d Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam); see also Plumhoff v. Richard, 572 U.S. ___, ___ (2014) (slip op., at 13) (emphasizing that Garner and Graham \u201care \u2018cast at a high level of generality\u2019\u201d).<\/p>\n

This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the majority did not conclude that White\u2019s conduct\u2014such as his failure to shout a warning\u2014constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that \u201cthis case presents a unique set of facts and circumstances\u201d in light of White\u2019s late arrival on the scene. 814 F. 3d, at 1077. This alone should have been an important indication to the majority that White\u2019s conduct did not violate a \u201cclearly established\u201d right. Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed. No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here. <\/p>\n

On the record described by the Court of Appeals, Officer White did not violate clearly established law. …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

It does not violate clearly established law under the Fourth Amendment to shoot without warning when the shooting is otherwise justified. White v. Pauly, 2017 U.S. LEXIS 5 (Jan. 9, 2017) (per curiam):<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[52,83],"tags":[],"class_list":["post-25277","post","type-post","status-publish","format-standard","hentry","category-excessive-force","category-scotus"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/25277","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=25277"}],"version-history":[{"count":3,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/25277\/revisions"}],"predecessor-version":[{"id":25282,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/25277\/revisions\/25282"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=25277"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=25277"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=25277"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}