Update at 12:27 p.m.: This post has been expanded to include a discussion of the cases in which the court called for the views of the solicitor general.

Returning to the bench this morning for the first time in the new year, the Supreme Court issued additional orders from last week’s conference, but it did not add any new cases to its merits docket. The justices did, however, issue a summary ruling that sent a lawsuit against three New Mexico police officers back to the lower courts for another look. In that unsigned decision, the court reiterated that there is a high bar for allowing lawsuits against government officials to go forward. The justices had considered the case of White v. Pauly at five conferences before issuing today’s unsigned, eight-page ruling. The case arose when police officers Michael Mariscal and Kevin Truesdale, investigating accusations of “road rage” and drunk driving against Daniel Pauly, went to Pauly’s home, where they attempted to speak with him. When a third officer – Ray White – arrived, someone inside the home yelled “We have guns,” and shots were fired at the officers. White fired at Samuel Pauly, the suspect’s brother, who had pointed a gun in White’s direction, killing him.

Samuel Pauly’s estate filed a lawsuit against the officers, arguing (among other things) that they had violated his constitutional right to be free of excessive force. The officers countered that their use of force was reasonable and that they were entitled to qualified immunity, but the trial court rejected those arguments. On appeal, the U.S. Court of Appeals for the 10th Circuit affirmed.

Today the court vacated the appellate court’s ruling. It explained that public officials are entitled to qualified immunity from lawsuits as long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person should have known.” Noting with more than a hint of frustration that in recent years it had issued “a number of opinions reversing federal courts in qualified immunity cases,” the court emphasized that the concept of “clearly established law” is quite narrow: It “should not be defined ‘at a high level of generality,’” but instead must hew fairly closely to the facts of a particular case.

In this case, the justices continued, the lower courts’ inquiry fell short, as they failed “to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.” Instead, they simply relied on “general principles from other excessive force cases.” The court noted that White arrived on the scene late, and it concluded that clearly established federal law did not require him to “second-guess the earlier steps already taken by his or her fellow officers.”

Today’s ruling left open the possibility that Pauly’s estate could prevail on another ground – in essence, that White should have assessed the scene and tried to correct his colleagues’ mishandling of the situation before using deadly force against Samuel Pauly. Justice Ruth Bader Ginsburg filed a brief concurring opinion in which she emphasized that the court’s decision also had no bearing on whether the lower courts could deny summary judgment to all three officers because of disputes over the facts of the case.

The justices also asked the U.S. solicitor general to file briefs expressing the views of the United States in four new cases. Two of the cases in which the justices asked the U.S. solicitor general to weigh in, Rubin v. Iran and Bank Melli v. Bennett , arise from lawsuits against the Islamic Republic of Iran for its alleged role in financing or otherwise supporting groups that have committed terrorism. The Foreign Sovereign Immunities Act generally bars lawsuits in U.S. courts against foreign countries; at issue in the two cases is the interpretation of one FSIA provision that allows plaintiffs to attach assets of foreign countries and execute judgments in lawsuits based on terrorism. The case turns on how broadly to read that provision: Does it allow plaintiffs to execute terrorism judgments against a foreign country’s property even if the property does not fall with the FSIA’s traditional exceptions to immunity, as the U.S. Court of Appeals for the 9th Circuit ruled in a case brought against a commercial bank owned by the Iranian government, or is it more narrow in scope, as the U.S. Court of Appeals for the 7th Circuit has ruled? In Fenkell v. Alliance Holdings, the question before the court is whether the Employee Retirement Income Security Act of 1974 allows a lawsuit by an individual who has been found liable for breaching his fiduciary duty against other fiduciaries. And in Bulk Juliana v. World Fuel Services, the federal government will weigh in on a maritime-law dispute between a Singaporean marine fuel supplier and a Panamanian-flagged ship. There is no deadline for such briefs, but the briefs requested today almost certainly will be filed by the solicitor general (or someone acting in that role) in the Trump administration.

Recommended Citation: Amy Howe, A summary ruling and four CVSGs, but no grants, from today’s orders (Expanded), SCOTUSblog (Jan. 9, 2017, 11:38 AM), https://www.scotusblog.com/2017/01/summary-ruling-four-cvsgs-no-grants-todays-orders/