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Judge: Texted ‘death scene’ pics of man taken by NM officer didn’t violate privacy rights

A federal judge has ruled that no constitutional right to privacy was violated when a New Mexico State Police officer used his personal cellphone to take and text to friends pictures of the body of a Santa Fe-area man who had been shot and killed by police in 2011.

In an order issued earlier this month, U.S. District Court Judge Judith C. Herrera found that the father and brother of Samuel Pauly, 34, who lived in rural Glorieta, had failed to “show that the constitutional right asserted – a privacy right of close family members to control dissemination of ‘death scene photographs’ under the Fourteenth Amendment – was clearly established at the relevant time.”

In effect, said Lee Hunt, attorney for the Paulys, the judge ruled that there is no privacy right for a dead person.

“We probably will appeal,” Hunt said. “And our intent on appeal would be to try to establish that there is a right to privacy for the images of a loved one and that the right to privacy doesn’t die with the person.”

Last year, Daniel T. Pauly, Samuel Pauly’s father, and Daniel B. Pauly, his brother, filed a civil rights complaint against Mario Vasquez, the officer who took the pictures, and the state Department of Public Safety. The Paulys later added former and current New Mexico state police chiefs as defendants. But, by the time of Judge Herrera’s Aug. 10 ruling, the Paulys had dismissed from the case all the defendants except for Vasquez.

Samuel Pauly was killed by a State Police officer’s gunshot in the Glorieta home where he lived with his brother Daniel, after a bizarre road-rage incident set off a series of events that brought officers to the house late at night on Oct. 4, 2011.

Two young women driving on Interstate 25 east of Santa Fe had called 911 to report that the driver of a truck – who turned out to be Daniel Pauly – was driving recklessly and in a harassing manner. The women gave police a license plate number that was used to lead officers to the Pauly brothers’ house in Glorieta. (Daniel Pauly has maintained that it was the women who were driving dangerously.)

Once they arrived, officers started approaching the house on foot with flashlights. Daniel Pauly said the two brothers inside didn’t know that those outside were officers, that they didn’t hear officers identifying themselves and that the brothers thought the visitors might be people connected to the road-rage incident.

Daniel Pauly said he fired two warning shots out the back of the house and yelled, “We have guns.” The district attorney’s office has said that evidence shows that Samuel Pauly also fired a shot. He died from a gunshot by officer Raymond White.

An excessive force wrongful death lawsuit over the fatal shooting also is pending. The question of whether that litigation can go to trial – and whether the officers involved have immunity from liability for Pauly’s death – was recently appealed to the U.S. Supreme Court, as police shootings have exploded into a national issue in the years since Pauly was killed.

No judicial ‘consensus’

In the right-to-privacy suit over the pictures taken by Officer Vasquez, who was called to the scene after the Samuel Pauly shooting, Judge Herrera considered a long list of prior cases in reaching her decision to dismiss the Pauly family’s claims. She found that there is not the required “robust” judicial consensus that there was a constitutional right to privacy in this particular fact situation, at least not at time Samuel Pauly was killed.

Herrera concluded “that existing precedent did not place the constitutional question beyond debate; and Vasquez is entitled to qualified immunity.”

Qualified immunity is an established legal protection for government officials and employees, protecting them from liability for civil damages in the performance of their duties as long as their conduct does not violate “clearly established” statutory or constitutional rights.

Herrera, in her order, discusses a California case where the defendant had sent autopsy photos to the press. A federal appeals court, not the one for the federal 10th Circuit that includes New Mexico, held that there was a constitutional right to privacy under such circumstances, but not until 2012 – after the Pauly shooting.

Since the Paulys “failed to carry their burden to identify case law showing the relevant constitutional right was clearly established on Oct. 4-5, 2011, Vasquez is entitled to qualified immunity,” Herrera wrote.

An officer is entitled to “fair and clear warning of what the Constitution requires,” she added, quoting another prior case.

The Paulys’ lawyer quoted Vasquez’s own sworn testimony admitting that he understood sending out the pictures could be harmful to the family and cause them pain. But an individual’s beliefs aren’t necessarily “relevant or persuasive,” Herrra wrote, noting that Vasquez in any case wasn’t asked specifically about a constitutional right. The judge said she agreed that “Vasquez’s conduct was offensive and unprofessional.”

S. PAULY: Killed by shot from State Police officer

S. PAULY: Killed by shot from State Police officer

The pictures Vasquez took of the body ended up being broadcast by an Albuquerque television station, Herrera’s decision says. Robert Shilling, state police chief at the time, called Vasquez’s actions “unprofessional and appalling,” and Vasquez was the subject of an internal affairs investigation.

In October 2012, a Santa Fe County investigative grand jury found that the shooting of Samuel Pauly by police was justified.

Wrongful death case

In the family’s separate wrongful death suit, qualified immunity is also at issue.

In February 2014, federal District Judge Kenneth J. Gonzales rejected motions for dismissal by White and two other officers, in the process rejecting qualified immunity claims. He wrote that “genuine issues of material fact exist which concern whether the Officers’ conduct prior to the shooting of Samuel Pauly was reckless and unreasonably created Officer White’s need to shoot Samuel Pauly.”

A three-judge panel of the 10th Circuit Court of Appeals, in a 2-1 split decision, upheld the decision earlier this year. The majority opinion notes that, while officers say Samuel Pauly fired his gun and a revolver was found with his body, “there is no forensic proof” that Samuel Pauly fired a shot. The dissenting judge said, “Officer White did what any objectively reasonable officer in his position would do – respond in kind to the immediate threat of deadly force.”

A petition for a “writ of certiorari,” asking the U.S. Supreme Court to take on the case, was filed by lawyers for the officers and the state on July 11.