Salgado v. Smith

Appellate Case: 24-2068 Document: 43-1 Date Filed: 07/08/2025 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 8, 2025

_________________________________

Christopher M. Wolpert

Clerk of Court

ANGELIC SALGADO, as personal

representative of the Wrongful Death

Estate of Jonathan Molina,

Plaintiff - Appellant,

v. No. 24-2068

(D.C. No. 1:21-CV-00749-JCH-GBW)

KEVIN SMITH, in his individual capacity, (D. N.M.)

Defendant - Appellee.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges.

_________________________________

Plaintiff-Appellant Angelic Salgado, personal representative of the wrongful

death estate of the deceased, Jonathan Molina, sued Defendant-Appellee New Mexico

State Police Officer Kevin Smith under 42 U.S.C. § 1983, asserting that Smith

violated Molina’s Fourth Amendment right to be free from excessive force when

Smith fatally shot him. The district court granted summary judgment for Smith based

on qualified immunity, finding no constitutional violation and no violation of clearly

established law. Salgado appeals. We affirm.

*

This order and judgment is not binding precedent, except under the doctrines

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Appellate Case: 24-2068 Document: 43-1 Date Filed: 07/08/2025 Page: 2

I.

A.

This case concerns the tragic death of Jonathan Molina in Albuquerque, New

Mexico, on July 15, 2018.1 In the early morning hours (shortly before 2:00 A.M.) of

July 15, 2018, Officer Kevin Smith was on random patrol along Interstate 25 within

the city boundaries of Albuquerque. While patrolling southbound, Smith saw a blue

Honda sedan traveling at a high rate of speed. Using his radar, Smith clocked the

blue Honda traveling at around 101 miles per hour in a posted 65 mile-per-hour zone.

Smith then pursued the blue Honda and radioed to police dispatch his location

and the blue Honda’s license plate number. The dispatcher responded to Smith and

informed him that the license plate number belonged to a red—not a blue—Honda.

Smith confirmed this report by repeating the blue Honda’s license plate number, and

the dispatcher again stated that the license plate came back as belonging to a red

Honda.

Smith pulled the blue Honda over along the shoulder of Interstate 25, near an

exit ramp. Smith exited his police vehicle, approached the Honda on the driver side,

and began an investigation into whether the Honda was stolen. Smith saw that there

were two male occupants in the Honda, one in the driver seat and one in the front

1

We draw the following facts from the dashboard camera footage of the

responding officer’s vehicle, the audio from police radio dispatch, and the responding

officer’s declaration and deposition testimony. We construe these facts, and draw

reasonable inferences from them, in the favor of the nonmovant. Henderson v. Inter-

Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994); see Scott v. Harris, 550 U.S. 372,

380–81 (2007).

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passenger seat. The driver identified himself as Brandon Smith. Brandon explained

that he had recently purchased the Honda and did not have the registration or proof of

insurance for the vehicle. Brandon also stated that he was aware that the license

plate on the Honda belonged to a different car. Officer Smith examined the blue

Honda’s Vehicle Identification Number (“VIN”), located on the Honda’s driver side

dashboard. Smith saw that the last four digits of the blue Honda’s VIN were 2582.

Officer Smith asked Brandon to exit the Honda, and Brandon complied. The

two interacted for about three minutes outside of the Honda. During this time, Smith

asked Brandon for the passenger’s name. Brandon answered that the passenger’s

name was “Johnny . . . Jonathan.” D.C.V. at 7:15–18.2 Brandon could not remember

Johnny’s last name. Brandon also told Smith that he had known Johnny for a couple

of months. Smith directed Brandon to stay standing on the shoulder.

Smith radioed to ask for the last four digits of the VIN associated with the

license plate on the blue Honda. Dispatch responded that the last four digits of the

VIN associated with that plate were 8463. That did not match the last four digits that

Smith saw inside of the Honda.

At 2:06 A.M., Smith re-approached the blue Honda, this time approaching on

the passenger side. The passenger, Molina, identified himself and provided his

Social Security card to Smith. Smith asked Molina if he had any outstanding

2

“D.C.V.” refers to the dashboard camera video footage from Smith’s vehicle.

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warrants. Molina replied that he had an outstanding warrant for his arrest and that he

had absconded from that warrant.

Smith asked Molina to exit the Honda. Before getting out, Molina looked

straight ahead and repeated, “I’m not going back to prison. I’m not going back to

prison.” App’x Vol. I at 74, 210. Smith then again asked Molina to exit the car.

Molina opened the door and began to quickly get out of the car while leaning

forward. Smith saw Molina clench his muscles and pull his legs underneath him, as

if to gain leverage. Molina managed about one step out of the car before Smith

grabbed Molina and pushed Molina back into the car.

A physical struggle ensued between Smith and Molina. The struggle began

with Molina in the front seat and Smith standing just outside of the passenger side of

the car, and then it moved largely out of sight of the dashboard camera’s view as

Smith moved into the car with Molina. See D.C.V. at 9:48–11:15.

At the start of the struggle, Smith pulled out his handcuffs and tried to restrain

Molina. Smith also warned Molina, “I’ll f*cking tase your ass.” Id. at 9:53–55. The

pair struggled for about 23 seconds. Molina swung his arms around, and he knocked

the handcuffs out of Smith’s hands. Smith punched Molina in the head at least twice.

At some point during the struggle, Smith heard a “boom” and felt a pain in his

leg. Smith had been shot in his left hip by a .25 caliber pistol, a gun which was not

his. Smith then tried to gain control of Molina’s hand, and when he did, Smith saw

the muzzle of a gun. Though Smith saw the gun in Molina’s hand at some point

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during the struggle, Smith did not see the .25 pistol go off, nor did he see Molina pull

the trigger.

The struggle then moved inside the Honda, and it stayed there for just over a

minute. See id. at 10:12–11:15. During that time, Molina reached his hand toward

Smith’s holstered police-issued firearm, and, at some point, Molina managed a grip

on Smith’s (still-)holstered weapon. Molina also yelled for Brandon to come back to

the Honda. On the dashboard camera video, Molina’s foot twice can be briefly seen

sticking out of the car, id. at 10:49, 11:00, then Smith’s head emerges from the car,

id. at 11:07, and then Molina’s foot and leg extend out of the car, id. at 11:11. As the

two scuffled, Smith bit down on Molina’s arm, which caused Molina to lose his grip

on Smith’s holstered gun. Molina screamed, and he bit Smith’s left shoulder.

Following Molina’s bite, Smith fully exited the Honda. As Smith exited the Honda,

Molina’s hand emerged from the car and reached toward Smith’s holstered police-

issued firearm. Id. at 11:11–13.

Smith unholstered his firearm as he exited the Honda. Once out of the car,

Smith pointed his gun at Molina, who was still in the car, and Smith fired his gun

toward Molina’s chest. After the gunshot, Molina loudly groaned.

After that shot, Smith quickly moved away from the Honda’s passenger door,

which remained open. Both Molina and the .25 pistol were still in the Honda.

Smith’s gun malfunctioned, and it took Smith four seconds to clear it. Once he

cleared the malfunction, Smith pointed his weapon in the direction of Molina and

yelled, “put your f*ckin’ hands in the air, b*tch!” Id. at 11:18–20. Then Smith

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quickly moved to the back of the Honda, near his patrol car, with his gun pointing

toward the Honda’s back windshield. From that position, Smith could not see any

part of Molina’s body other than his feet. Smith could not see Molina’s hands, nor

did Smith see or know where exactly in the car the .25 handgun was. The back

window’s tint kept Smith from being able to see Molina through that window.

Right after Smith ordered Molina to put his hands up and moved to the back of

the Honda, Molina’s foot and lower leg quickly jutted out from the passenger door.

Then, Smith immediately fired seven shots in rapid succession at Molina, starting

through the rear window and then, as Smith circled to his right, at an angle through

the passenger door. Molina screamed.

About eight seconds passed from Smith’s first shot to Smith’s second round of

shots. About three seconds elapsed between Smith ordering Molina to put his hands

in the air to Smith’s second round of shots.

After firing the second round of shots, Smith ordered Molina to place his

hands in the air and exit the Honda. Smith radioed dispatch informing that he was

hit, shots were fired, the suspect was down, and an ambulance was needed. Smith

then retrieved his medical bag and administered first aid to Molina. Molina died at

the scene.

B.

Salgado filed suit on behalf of Molina in New Mexico state court against

Smith, the New Mexico Department of Public Safety, and three John Doe defendants.

As relevant to this appeal, one of Salgado’s claims was a Fourth Amendment

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excessive force claim under § 1983 against Smith for the shooting. The defendants

removed the case to the United States District Court for the District of New Mexico

based on federal question jurisdiction.

Smith moved for summary judgment on the excessive force claim, invoking

qualified immunity. The district court granted the motion. The court held that

(1) Smith did not use excessive force under the circumstances and (2) Smith did not

violate clearly established law. The district court entered final judgment in Smith’s

favor.

Salgado timely appealed.

II.

We review the district court’s grant of summary judgment de novo. Lance v.

Morris, 985 F.3d 787, 793 (10th Cir. 2021). Summary judgment is appropriate where

“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We consider the facts in the

light most favorable to the nonmovant and draw all reasonable inferences in the

nonmovant’s favor. Lance, 985 F.3d at 793. “In qualified immunity cases, this

generally means adopting the plaintiff’s version of the facts; however, we do not

have to accept versions of the facts contradicted by objective evidence, such as video

surveillance footage.” Palacios v. Fortuna, 61 F.4th 1248, 1256 (10th Cir. 2023)

(brackets and internal quotation marks omitted).

Public officials are entitled to qualified immunity unless they (1) violated a

constitutional or statutory right which (2) was clearly established at the time of the

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official’s conduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009); see Palacios, 61

F.4th at 1256. When a defendant asserts the qualified immunity defense at summary

judgment, the plaintiff bears the burden to establish both prongs. Palacios, 61 F.4th

at 1256. We may address the two prongs in either order. Pearson, 555 U.S. at 236.

III.

We find it appropriate in this case to proceed directly to the second prong of

qualified immunity—whether the right was clearly established. We hold that Smith

did not violate Molina’s clearly established rights. As a result, Smith is entitled to

qualified immunity.

A.

A right is clearly established if, “at the time of the officer’s conduct, the law

was sufficiently clear that every reasonable official would understand that what he is

doing is unlawful. In other words, existing law must have placed the

constitutionality of the officer’s conduct beyond debate.” Hemry v. Ross, 62 F.4th

1248, 1253 (10th Cir. 2023) (quoting District of Columbia v. Wesby, 583 U.S. 48, 63

(2018)). The “law must be ‘settled,’” meaning, there must be “a Supreme Court or

Tenth Circuit published decision, or a ‘robust consensus of cases of persuasive

authority,’ [that] made clear the unconstitutionality of” the defendant’s conduct “at

the time of the incident.” Lewis v. City of Edmond, 48 F.4th 1193, 1198 (10th Cir.

2022) (quoting Wesby, 583 U.S. at 63). “It is the [plaintiff’s] burden to identify a

case that establishes that ‘every reasonable official’ would have understood” that the

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challenged conduct violated the law. Hemry, 62 F.4th at 1258 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

The “clearly established” standard requires that the law clearly prohibit the

defendant’s “conduct in the particular circumstances before him.” Wesby, 583 U.S.

at 63. This “requires a high degree of specificity.”3 Id. (internal quotation marks

omitted); see Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (“The dispositive

question is whether the violative nature of particular conduct is clearly established.

This inquiry must be undertaken in light of the specific context of the case, not as a

broad general proposition.” (citation and internal quotation marks omitted)).

Specificity in the law “is particularly important in excessive force cases.” City

of Escondido v. Emmons, 586 U.S. 38, 42 (2019) (per curiam). This is “because

circumstances that are ‘tense, uncertain, and rapidly evolving’ often force police

officers to make ‘split-second judgments . . . about the amount of force that is

necessary in a particular situation.’” Lewis, 48 F.4th at 1198 (quoting Graham v.

Connor, 490 U.S. 386, 397 (1989)). “Claims of excessive force turn ‘very much on

the facts of each case,’ and a police officer is entitled to qualified immunity unless

existing prior precedent ‘squarely governs’ the specific facts at issue.” Id. at 1199

(quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curiam)).

3

There can be “the rare ‘obvious case,’ where the unlawfulness of the officer’s

conduct is sufficiently clear even though existing precedent does not address similar

circumstances.” Wesby, 583 U.S. at 64 (quoting Brosseau v. Haugen, 543 U.S. 194,

199 (2004) (per curiam)). Salgado never argues that this is such a case, and we do

not independently find it to be so.

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B.

Salgado challenges the district court’s determination that Smith did not violate

clearly established law by firing a second round of shots at Molina eight seconds

after Smith fired a first shot at Molina’s chest,4 where Smith ordered Molina to put

his hands up, Smith could not see Molina’s body except his feet, Smith saw Molina’s

feet jut quickly out of the car, Smith knew Molina was in a car that had a gun inside

it, and Smith had just been shot in the leg by that gun. Salgado argues that Smith’s

conduct violated the clearly established principle that the “use of deadly force is

unreasonable when a reasonable officer would have perceived that the threat had

passed.” Aplt. Br. at 19 (quoting Reavis Est. of Coale v. Frost, 967 F.3d 978, 989

(10th Cir. 2020)).

For support, Salgado relies primarily on our decision in Fancher v. Barrientos,

723 F.3d 1191 (10th Cir. 2013).5 In Fancher, the officer, responding to a report of

stolen beer, fired his weapon into the suspect’s chest after the suspect took control of

the officer’s still-running patrol vehicle that the officer had left to pursue the suspect

on foot. Id. at 1194–98. After the first shot, the officer saw the suspect slump. Id. at

4

On appeal, Salgado does not argue that Smith’s first shot at Molina violated

Molina’s clearly established constitutional rights.

5

Below and initially on appeal, Salgado also placed great reliance on our

decision in Estate of Smart v. City of Wichita, 951 F.3d 1161 (10th Cir. 2020). But

Smith shot and killed Molina in 2018, and we decided Smart in 2020. Therefore,

Smart, “decided after the shooting at issue, is of no use in the clearly established

inquiry” in this case. City of Tahlequah v. Bond, 595 U.S. 9, 13 (2021) (per curiam).

The same goes for our decision in Reavis, though Salgado only cites Reavis as

evidence of the law Salgado says Fancher clearly establishes.

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1196–97. The officer testified that after the first shot, he stepped away from the

vehicle and “felt safer” before firing at the suspect six more times. Id. at 1197. We

explained that the officer fired six shots into a suspect that was no longer able to

control the patrol vehicle, escape, or fire the long guns located inside the vehicle. Id.

at 1201. Prior to his additional shots, the officer stepped back, felt safer, and noticed

the suspect had slumped. Id. This provided the officer enough time to recognize and

react to the changed circumstances and cease firing. Id.

Salgado also cites McCoy v. Meyers, 887 F.3d 1034 (10th Cir. 2018), and

Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016). In McCoy, officers continued beating

and employing a carotid restraint on a suspect “after [the suspect] was rendered

unconscious, handcuffed, and zip-tied” and was only just beginning to regain

consciousness. 887 F.3d at 1051–52. In Perea, officers continued tasing a suspect

whom they had “effectively subdued” by “get[ting him] on the ground on his

stomach, with both officers on top of him.” 817 F.3d at 1201, 1204.

But the facts of this case are meaningfully distinguishable from those cases. In

those cases, “the suspect had clearly been subdued . . . , making continued use of

deadly force plainly unjustifiable.” See Lewis, 48 F.4th at 1200. But here, Smith had

reason to think that Molina was not subdued. Video evidence shows, and neither

party disputes, that although Smith had shot at Molina once already, Molina quickly

kicked his leg out of the passenger-side door just before the second round of shots.

And it is likewise undisputed that before he fired the second round of shots, Smith

could not see Molina’s body other than his feet. This additional, post-initial-restraint

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movement did not occur in the cases Salgado cites. This distinction also holds with

our other published excessive-force cases that we have uncovered in our independent

study. See Emmett v. Armstrong, 973 F.3d 1127, 1136, 1138–39 (10th Cir. 2020)

(concluding that officer violated clearly established law by tasing suspect who “was

lying on his back on the ground, visibly relaxed, laughing, and had ceased any active

resistance”); Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (affirming

order denying summary judgment for officers who used “force adequate to tear a

tendon . . . against a fully restrained arrestee”); Weigel v. Broad, 544 F.3d 1143,

1152–53 (10th Cir. 2008) (reversing grant of qualified immunity to officers as to use

of force against suspect after suspect “was handcuffed and his legs were bound” and

one officer reported to dispatch that the suspect was under control); Casey v. City of

Federal Heights, 509 F.3d 1278, 1285 (10th Cir. 2007) (holding that force used

against “a citizen peacefully attempting to return to the courthouse with a file”

violated clearly established law); Carr v. Castle, 337 F.3d 1221, 1225, 1227 (10th

Cir. 2003) (affirming order denying qualified immunity to officers that fired fatal

shot at decedent when he “had his head near the ground with his buttocks slightly

elevated”); Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991) (concluding that

officer violated clearly established law by striking individual who “had already been

frisked, had his hands up against [a] van with his back to the officers, and was not

making any aggressive moves or threats”).

For these reasons, Salgado has not met her burden to supply a Supreme Court

or Tenth Circuit case clearly establishing that Smith’s conduct amounts to a

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constitutional violation.6 And after our independent review of the caselaw, “we

cannot ‘identify a case where an officer acting under similar circumstances was held

to have violated the Fourth Amendment’” either. See Hemry, 62 F.4th at 1260

(quoting Wesby, 583 U.S. at 64). We thus cannot say that “existing prior precedent

‘squarely governs’ the specific facts at issue” here, Lewis, 48 F.4th at 1199 (quoting

Kisela, 584 U.S. at 104), and places the unconstitutionality of Smith’s conduct

“beyond debate,” Hemry, 62 F.4th at 1253 (quoting Wesby, 583 U.S. at 63).

Consequently, Smith is entitled to qualified immunity.

IV.

For the foregoing reasons, we AFFIRM.

Entered for the Court

Allison H. Eid

Circuit Judge

6

It therefore makes no difference if, as Salgado suggests, factual disputes

remain about whether (1) Molina indeed was actually subdued after the first shot and

(2) Molina’s additional movement was an attempt to flee. Even if resolving those

purported disputes in Salgado’s favor would establish a constitutional violation on

the first qualified immunity prong, it would not remedy the shortcoming on the

second prong to provide Supreme Court or Tenth Circuit precedent showing that such

a constitutional violation was clearly established.

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