Month: September 2017

On January 9, 2017, the Supreme Court decided White v. Pauly, a petition involving a denial of qualified immunity to law enforcement officers in a civil rights dispute. In October 2011, officers Kevin Truesdale and Michael Mariscal went to the home of Daniel and Samuel Pauly to investigate a complaint made by several drivers that Daniel had been driving erratically that evening. The officers entered the Pauly property while a third officer, Ray White, remained near the highway in case Daniel returned there. Truesdale and Mariscal did not find Daniel’s truck, but they did notice lights on in one of two houses on the property. Upon approaching the building covertly they spotted two men moving around inside, and then requested that Officer White join them. When the Paulys became aware that strangers were present outside there was a verbal confrontation; according to the officers, the officers self-identified as police and threatened to enter the house if the brothers did not come out. It appears however, that neither Pauly heard the self-identification. Just as White was arriving the brothers warned that they had firearms. Upon hearing the warning, White took cover behind a stone wall fifty feet from the house. Daniel then fired two shotgun blasts out the back door and when Samuel pointed a handgun out the window in White’s direction, Mariscal fired at him but missed. Several seconds later White also fired and hit Samuel, killing him. Samuel Pauly’s estate and Daniel Pauly sued the officers under 42 U.S.C. § 1983, alleging an excessive use of force in violation of the Fourth Amendment. The district court denied qualified immunity to the officers and a divided panel of the U.S. Court of Appeals for the Tenth Circuit affirmed. The majority reasoned that, taking the plaintiffs’ version of the facts as true, a reasonable person in the position of Officers Mariscal and Truesdale should have understood that their conduct might cause the Paulys to use deadly force in defense of their home. As to Officer White, the majority concluded that while he did not participate in much of the lead up to the shootout, a reasonable officer in his position would have believed a verbal warning was required given that the stone wall afforded him secure cover. -- The Supreme Court granted the officers’ petition for certiorari, vacated the judgment of the Tenth Circuit, and remanded the case. Qualified immunity attaches when an official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” On the record described by the Tenth Circuit, the Supreme Court held, Officer White did not violate clearly established law. But because the parties disputed whether White actually arrived on the scene several minutes before the shooting started and should have known that the other officers had not properly identified themselves, the Court left this potential alternative ground for affirmance--as well as whether Truesdale and Mariscal were entitled to qualified immunity in light of the Supreme Court’s ruling--for further consideration by the Tenth Circuit on remand. Justice Ginsburg issued a concurring opinion. -- To discuss the case, we have Josh Skinner, Of Counsel with Fanning, Harper, Martinson, Brandt & Kutchin, P.C.

Today's show discusses the Trump budget, scientist Kevin Folta's defamation lawsuit, and the recent debt ceiling deal struck between Trump and Democrats. In the wake of hurricanes Harvey and Irma, the guys encourage you to donate to either (or both) the Red Cross and/or Habitat for Humanity's hurricane relief efforts.  If you do, please post your receipt on Facebook for a chance to win an Opening Arguments t-shirt. We begin with a great question from British listener David Cartwright about the Trump presidency -- and the answer will surprise you! In the main segment, the guys break down Kevin Folta's defamation lawsuit in which he alleges that the New York Times defamed him by publishing a "hit piece" implying that he's in the pocket of Monsanto. Next, we explain the practical and political ramifications of the debt ceiling agreement. Finally, we end with the answer to Thomas Take the Bar Exam Question #40 regarding jury instructions and the presumption of intent.  Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None.  Have us on your show! Show Notes & Links

1. This is a link to the Red Cross's page for donations for hurricane relief; and here is a link to Habitat for Humanity's hurricane relief efforts.
2. Find out how to win a T-shirt from us by clicking here.
3. Here is where you can find the recently-created Opening Arguments Facebook Community, which you should definitely join!
4. This is the full list of all 54 bills that Donald Trump has signed into law.
5. Here is a link to S.442, the $19.5 billion NASA 2017 budget.  For comparison, this is the NASA press release detailing the agency's 2016 budget.
6. Click here to read Kevin Folta's lawsuit against the New York Times (which contains the original article as an exhibit).
7. Finally, the debt ceiling is codified at 31 U.S.C. § 3101.

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