Opposition Brief — Angelic Salgado, as Personal Representative of the Wrongful Death Estate of Jonathan Molina, Petitioner v. Kevin Smith
Supreme Court briefNov 17, 2025
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No. 25-472
IN THE
SUPREME COURT OF THE UNITED STATES
_____________
ANGELIC SALGADO, AS PERSONAL REPRESENTATIVE
OF THE WRONGFUL DEATH ESTATE OF
JONATHAN MOLINA,
Petitioner,
V.
KEVIN SMITH,
Respondent.
_____________
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
_____________
BRIEF IN OPPOSITION
_____________
LUIS ROBLES
Counsel of Record
ROBLES, RAEL & ANAYA, P.C.
500 Marquette Ave., NW Suite 700
Albuquerque, New Mexico 87102
(505) 242-2228
luis@roblesrael.com
Counsel for Respondent
i
TABLE OF CONTENTS
Page
TABLE OF CITED AUTHORITIES ......................... iii
INTRODUCTION ....................................................... 1
STATEMENT OF THE CASE.................................... 6
I.
Statement of Facts ............................................... 6
A. The Traffic Stop ............................................. 6
B. Officer Smith’s first use of force .................... 8
C. Officer Smith’s subsequent use of force ...... 10
II. Procedural History ............................................. 11
A. United States District Court for the
District of New Mexico................................. 11
B. Tenth Circuit Court of Appeals ................... 15
REASONS FOR DENYING THE PETITION ......... 17
I.
Petitioner Bases Her Claimed Circuit Split
on Cherry-picked Passages from Various
Cases That Do Not Support Her Argument ...... 17
II. The Lower Courts Properly Applied This
Court’s Case Law ................................................ 24
III. Petitioner Fails to Identify Case Law That
Provided Molina With a Clearly Established
Right in This Case .............................................. 26
A. Petitioner failed to identify a clearly
established right created by Garner
and Graham ................................................. 27
ii
B. The lower courts correctly determined
that Fancher and Smart did not create a
clearly established right in this case........... 29
C. Waterman and Ellis do not create a clearly
established right .......................................... 30
D. Taylor v. Rojas, 592 U.S. 7 (2020), does not
create a clearly established right ................ 31
IV. The Lower Courts Considered the Totality of
the Circumstances When Analyzing Officer
Smith’s Use of Force ........................................... 33
THIS CASE CANNOT SERVE AS A VEHICLE
FOR THE QUESTIONS STATED IN THE
PETITION .......................................................... 34
CONCLUSION.......................................................... 35
iii
TABLE OF CITED AUTHORITIES
Cases
Page
Anderson v. Creighton,
483 U.S. 635 (1987) ............................................ 28
Barnes v. Felix,
605 U.S. 73 (2025) ............................... 5, 26, 33-35
Brosseau v. Haugen,
543 U.S. 194 (2004) ............................................ 27
District of Columbia v. Wesby,
583 U.S. 48 (2018) ........................................ 15, 32
Ellis v. Wynalda,
999 F.2d 243 (7th Cir. 1993) .....4, 5, 17-20, 23, 30, 34
Estate of Larsen ex. rel. Sturdivan v. Murr,
511 F.3d 1255 (10th Cir. 2008) .................... 12, 13
Estate of Smart v. City of Wichita,
951 F.3d 1161 (10th Cir. 2020) ................ 5, 14, 29
Fancher v. Barrientos,
723 F.3d 1191 (10th Cir. 2013) ............ 4, 5, 14-18,
........................................................... 22, 23, 29, 34
Graham v. Connor,
490 U.S. 386 (1989) ............................ 5, 12, 27, 28
Haugen v. Brosseau,
339 F.3d 857 (9th Cir. 2003) .............................. 28
McCoy v. Meyers,
887 F.3d 1034 (10th Cir. 2018) .................... 15, 16
Mocek v. City of Albuquerque,
813 F.3d 912 (10th Cir. 2015) ............................ 30
Mullenix v. Luna,
577 U.S. 7 (2015) .......................................... 27, 28
iv
Parea v. Baca,
817 F.3d 1198 (10th Cir. 2016) .................... 15, 16
Plumhoff v. Rickard,
572 U.S. 765 (2014) .................................. 4, 24, 25
Rowland v. Perry,
41 F.3d 167 (4th Cir. 1994) ................................ 19
Sevier v. City of Lawrence,
60 F.3d 695 (10th Cir. 1995) .............................. 13
Tan Lam v. City of Los Banos,
976 F.3d 986 (9th Cir. 2020) ... 4, 17, 18, 21-23, 34
Taylor v. Rojas,
592 U.S. 7 (2020) ...................................... 5, 31, 32
Tennessee v. Garner,
471 U.S. 1 (1985) ................................ 5, 12, 27, 28
Waterman v. Batton,
393 F.3d 471 (4th Cir. 2005) .....4, 5, 17-19, 23, 30, 34
Constitutional Provisions
U.S. Const. amend. IV ................. 11-13, 21, 24, 27, 29
U.S. Const. amend. VIII ........................................... 31
U.S. Const. amend. XIV ............................................ 11
1
INTRODUCTION
During the early morning hours of July 15,
2018, New Mexico State Police Officer Kevin Smith
(“Officer Smith”) performed a traffic stop of a blue
Honda driven by Brandon Smith (“Brandon”) - no
relation - and his passenger, Jonathan Molina
(“Molina”). Pet. App. 16a. The events were captured
on Officer Smith’s dash camera. Officer Smith
witnessed Brandon speeding approximately 35 mph
over the speed limit. Dispatch informed Officer Smith
that Brandon’s license plate belonged to a red Honda,
not a blue one. During his investigation into whether
the vehicle was stolen, Officer Smith asked Brandon
to “hop out” of the car. Pet. App. 17a. After Officer
Smith asked Brandon the name of his passenger,
Brandon stuttered and refereed to his passenger as
“Johnny.” Brandon stated that he could not recall
“Johnny’s” last name despite knowing him for several
months. Based on his experience and training as well
as Brandon’s nervousness and memory lapse, Officer
Smith believed Brandon to be concealing “Johnny’s”
identity. Pet. App. 18.
Officer Smith approached the passenger
window of the blue Honda where “Johnny” identified
himself as Molina. After Molina informed Officer
Smith that he had several outstanding warrants and
was an “absconder,” Officer Molina asked Molina to
“hop out” of the vehicle. Molina quickly shot out of the
passenger seat. Pet. App. 19a. Officer Smith stated
that Molina “clenched up his muscles and pulled his
legs underneath him, as if to gain leverage.” Officer
Smith pushed Molina back into the front seat of the
blue Honda, where the two began to struggle against
2
each other. Pet. App. 20a. The fight inside the vehicle
was not captured by the dashboard camera in Officer
Smith’s vehicle due to the Honda’s dark tinted rear
window and/or the fact that it was nighttime. Pet.
App. 20a.
During the struggle, Officer Smith heard a
“boom” and felt a sharp pain in his leg. Officer Smith
saw the muzzle of a gun in Molina’s hand and believed
that Molina had shot him in the leg. Molina grabbed
for Officer Smith’s gun from its holster, leading to a
struggle for both Molina’s gun and Officer Smith’s
gun. Pet. App. 21a. Officer Smith faced two potential
attackers as Molina called out for assistance from
Brandon. During the struggle, both Officer Smith and
Molina bit each other; Officer Smith’s bite to Molina’s
arm caused Molina to lose his grip on Officer Smith’s
holstered gun. Pet. App. 6a. Officer Smith withdrew
from the vehicle, drew his gun, and fired a single
round at Molina. Petitioner does not claim that Officer
Smith’s use of force up to this point was excessive.
Officer Smith, believing that Molina still
possessed the gun that Officer Smith had seen in
Molina’s hand, moved to the rear of the Honda and
pointed his gun toward the Honda’s rear windshield.
Pet. App. 22a-23a. As Officer Smith commanded
Molina to put his hands in the air, Molina’s foot or leg
extended out of the Honda’s passenger door. Pet. App.
23a. Officer Smith fired seven shots into the Honda
through the rear window. Approximately eight
seconds elapsed between Officer Smith’s first shot to
the time he began firing the volley of seven shots.
3
Petitioner filed a complaint in the United
States District Court for the District of New Mexico
(“District Court”), alleging that Officer Smith used
excessive force in violation of Molina’s Fourth
Amendment rights by deploying a second volley of
rounds. Pet. App. 38a. The District Court granted
Officer Smith’s motion for summary judgment on the
basis of qualified immunity, finding that Officer
Smith did not violate Molina’s rights and that
Molina’s rights were not clearly established. Pet. App.
2a. The District Court noted that, at the time of the
second volley, Officer Smith knew that Molina: (1) had
absconded from a warrant for his arrest, (2) had
violently resisted arrest, (3) had shot him in the leg,
(4) had tried to get control of Officer Smith’s gun, (5)
still had a gun in the Honda, (6) did not visibly obey
the command to put his hands in the air, and (7) had
made a motion with his leg outside the car that
appeared to Officer Smith as though Molina was
trying to get out of the Honda. Pet. App. 23a. The
Tenth Circuit affirmed the District Court, finding that
Molina lacked a clearly established right. Petitioner
now appeals.
The Petition makes several conflicting
arguments. First, Petitioner asserts that the Tenth
Circuit below created a circuit split by reviewing the
totality of the circumstances with respect to Officer
Smith’s second volley of shots. Petitioner asserts that
a circuit split exists as to whether the “totality of the
circumstances” analysis applies to a secondary use of
force, or whether “later shots must be justified by
current circumstances - not the dangerousness that
existed prior to the initial use of force.” Pet. 10.
Petitioner manufactures this circuit split, based on
4
“temporal segmentation” analysis where one does not
exist, by cherry-picking certain sections of Waterman
v. Batton, 393 F.3d 471 (4th Cir. 2005), Ellis v.
Wynalda, 999 F.2d 243 (7th Cir. 1993), Tan Lam v.
City of Los Banos, 976 F.3d 986 (9th Cir. 2020), and
Fancher v. Barrientos, 723 F.3d 1191 (10th Cir. 2013).
As discussed below, the respective circuit courts in
each of these cases applied the totality of the
circumstances analysis with respect to each use of
force. Petitioners’ misrepresentation is so blatant that
the Fancher court expressly stated that it lacked
jurisdiction to review the “segmented analysis” that
Petitioner claims the Fancher court endorsed.
Accordingly, no circuit split exists.
In her second argument, Petitioner asserts that
the lower courts violated Plumhoff v. Rickard, 572
U.S. 765 (2014) by finding a second volley of shots to
be permissible where Molina was clearly
incapacitated. Petitioner further argues that the
Tenth Circuit improperly “credited pre-first-shot
violence” when analyzing Officer Smith’s second
volley of shots. Pet. 13. Petitioner’s assertions
misrepresent the facts, as the district court below
already explained that “due to the opaqueness of the
Honda’s rear window, it is impossible for anyone
including Officer Smith, to know whether or not...
Molina had complied with Officer Smith’s order to
place his hands in the air. What Officer Smith could
see was that... Molina’s... lower leg emerged from the
Honda in a way that under the circumstances
reasonably appeared to Officer Smith as though...
Molina was trying to get out of the car.” Pet. App. 29.
The Tenth Circuit similarly agreed that Officer
“Smith had reason to think that Molina was not
5
subdued. Video evidence shows... Molina quickly
kicked his leg out of the passenger-side door just
before the second round of shots.” Further, the totality
of the circumstances analysis requires review of “prefirst-shot-violence.” Accordingly, Petitioner’s second
argument fails.
Petitioner supports her third argument, that
Molina had a clearly established right, with
haphazard references to cases that are not squarely
on point. Petitioner relies on Tennessee v. Garner, 471
U.S. 1, 11 (1985); Graham v. Connor, 490 U.S. 386,
398 (1989); Fancher, 723 F.3d 1191; Estate of Smart v.
City of Wichita, 951 F.3d 1161 (10th Cir. 2020);
Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005);
Ellis, 999 F.2d 243, and Taylor v. Rojas, 592 U.S. 7
(2020). Despite the fact that the lower courts already
rejected several of these cases, Petitioner provided no
analysis whatsoever. Indeed, Petitioner’s entire
analysis as to how Garner, 471 U.S. at 11 created a
clearly established right is the following sentence:
“deadly force only when necessary to prevent escape
and the suspect poses an immediate threat.” Without
question, Petitioner fails to identify a case which
created a clearly established right.
In her fourth and final argument, Petitioner
boldly asserts that the Tenth Circuit violated this
Court’s holding in Barnes v. Felix, 605 U.S. 73 (2025).
In Barnes, the Court struck down a “moment-ofthreat” used by the Circuit under which the excessive
force “inquiry is confined to whether the officer was in
danger at the moment of the threat that resulted in
his use of deadly force. Any prior events leading up to
the shooting,... were simply not relevant.” Id. at 78
6
(internal quotes omitted). Petitioner loses all
credibility as she also asserts the Tenth Circuit
deviated from the required “temporal segmentation”
analysis and analyzed the entire encounter between
Molina and Officer Smith in “one continuous
‘dangerous’ episode.’” Pet. 11-12. It is unclear how the
Tenth Circuit managed to both focus its analysis on a
single fact, while also focusing all the facts. In reality,
it is clear that the lower courts properly performed the
“totality of the circumstances” analysis.
As the District Court and Tenth Circuit
properly upheld qualified immunity for Officer Smith,
Respondent respectfully requests that the Court deny
the Petition.
STATEMENT OF THE CASE
I.
Statement of Facts.
A.
The Traffic Stop.
At approximately 2:00 am on July 15, 2018,
Officer Smith was on patrol along Interstate 25 in
Albuquerque, New Mexico. Pet. App. 16a. Officer
Smith saw a blue Honda driven by Brandon traveling
at approximately 101 mph in a 65-mph zone. Officer
Smith followed Brandon and radioed Brandon’s
license plate number into dispatch. Dispatch informed
Officer Smith that the license plate was registered to
a red Honda, not a blue one. Officer Smith activated
his emergency lights and initiated a traffic stop of
Brandon’s vehicle. Pet. App. 17a. After Brandon
pulled over, Officer Smith parked behind him.
7
Petitioner does not dispute that the traffic stop was
justified at its inception.
Officer Smith approached the blue Honda from
the driver side, noticing two men inside. Pet. App. 17a.
Brandon, in the driver seat, stated that he did not
have a registration or insurance for the Honda
because he recently purchased it. Brandon further
stated that the license plate belonged to a different red
Honda that he owned. Officer Smith began an
investigation as to whether the blue Honda was
stolen. Officer Smith asked dispatch for the VIN
number associated with the license plate currently
attached to the blue Honda. Dispatch responded with
a VIN number that did not match that of the blue
Honda, increasing Officer Smith’s suspicion that the
car might be stolen. Pet. App. 17a.
Officer Smith asked Brandon to “hop out” of the
blue Honda because he intended to issue Brandon
citations for speeding and improper use of
registration. Pet. App. 17a. Still concerned that the
blue Honda might be stolen, Officer Smith asked
Brandon for the name of his passenger. Brandon
responded “Johnny... Jonathan,” seeming nervous to
Officer Smith. Brandon stated that he knew “Johnny”
for a couple of months but could not remember his last
name. Officer Smith’s suspicions increased further as,
in his experience, “when people have memory lapses,
such as not knowing the name of the person that they
say that they’ve known for months [and who] is inside
their vehicle, in addition to them being nervous..., that
could mean that a crime has been taken or that they’re
concealing somebody’s identity, usually because of a
warrant.” Pet. App. 18a.
8
Officer Smith proceeded to the passenger
window to speak with “Johnny” and determine
whether Brandon was concealing his passenger’s
identity. The passenger identified himself as Molina.
After Molina handed Officer Smith his Social Security
card, Officer Smith asked Molina if he had any
outstanding warrants. Molina, who displayed a
nervous demeanor, stated that he had a warrant and
was an “absconder.” Officer Smith asked Molina to
“hop out” of the blue Honda so that Officer Smith
could confirm the warrant. Pet. App. 18a.
B.
Officer Smith’s first use of force.
Molina quickly shot out of the passenger seat.
Pet. App. 19a. Officer Smith stated that Molina
“clenched up his muscles and pulled his legs
underneath him, as if to gain leverage.” Officer Smith
pushed him back inside. Officer Smith believed that
Molina was preparing himself for a confrontation and
an attempt to escape. A violent struggle began with
Molina in the front seat and Officer Smith standing
just outside the passenger side of the car. Pet. App.
19a.
As shown by Officer Smith’s dash camera,
Officer Smith pulled out his handcuffs and tried to
restrain Molina, who resisted. The action inside the
car was not visible through the rear window the
vehicle. Pet. App. 19a, n. 3. Officer Smith appeared to
be trying to restrain Molina and then started
punching in Molina’s direction. Pet. App. 20a. Officer
Smith noted that Molina swung his arms and knocked
the handcuffs out of Officer Smith’s hands. In
9
response, Officer Smith struck Molina on the head at
least two times. Pet. App. 20a.
Officer Smith heard a “boom” and felt pain in
his left leg. Thinking Molina tased him, Officer Smith
tried to gain control over Molina’s hand. As he did
so, Officer Smith saw the muzzle of a gun and believed
that Molina shot him in the leg. Officer Smith did not
see the gun go off or Molina pull the trigger. Pet. App.
20a-21a. The presence of a gun in the vehicle was later
confirmed. Pet. App. 21a.
The struggle between the two men moved
inside the vehicle. Although the video did not visually
capture the fight due to the dark back window of the
Honda, the sounds of a struggle can be heard. Pet.
App. 21a. Officer Smith stated that Molina tried to
grab his gun and remove it from its holster, leading to
a struggle for both weapons. Molina then called for
Brandon to return to the car, alerting Officer Smith to
the potential danger of an attack from Brandon.
Officer Smith bit Molina’s arm, causing Molina to
release his grip on Officer Smith’s gun. Pet. App. 21a.
Molina then bit Officer Smith in the left shoulder.
Officer Smith retreated from the car, moving his right
hip, where his gun was holstered, away from Molina.
Molina continued to hold onto Officer Smith’s
handgun for several moments, ultimately releasing
his grip. Pet. App. 21a-22a.
Officer Smith released his grip on the hand
Molina used to hold his gun. Pet. App. 22a. As Officer
Smith drew his gun from its holster, Molina’s hand
and wrist can be seen emerging from the car, reaching
towards Officer Smith’s gun. Officer Smith aimed his
10
handgun and fired at Molina, who was still inside the
car. Pet. App 22a.
Plaintiff does not claim that Officer Smith’s use
of force up to this point was excessive.
C.
Officer Smith’s subsequent use of
force.
Officer Smith did not manage to take Molina’s
gun away from him, so Officer Smith assumed Molina
was still in possession of his gun. Pet. App. 22a.
Officer Smith moved away from the passenger door,
which was ajar. Officer Smith stated that he was
standing in Molina’s line of fire. Officer Smith yelled
at Molina to put his hands in the air. Officer Smith
moved behind the Honda, with his back to his patrol
car to escape Molina’s line of fire, and pointed his gun
toward the Honda’s rear windshield. Pet. App. 22a23a.
As Officer Smith moved behind the Honda and
yelled for Molina to put his hands in the air. Instead,
Molina’s foot or leg extended out of the Honda’s
passenger door. Pet. App. 23a. Officer Smith fired
seven shots into the Honda through the rear window.
Approximately eight seconds elapsed between Officer
Smith’s first shot to the time he began firing the volley
of seven shots.
At the time of he fired the volley of seven shots,
Officer Smith knew or had a reasonable basis to
believe that Molina: (1) had absconded from a warrant
for his arrest, (2) had violently resisted arrest, (3) had
shot the officer in the leg, (4) had tried to gain control
11
of Officer Smith’s gun, (5) still had a gun in the Honda,
(6) did not visibly obey the command to put his hands
in the air, and (7) had made a motion with his leg
outside the car that appeared to Officer Smith as
though Molina was trying to exit of the Honda. Pet.
App. 23a.
Officer Smith radioed dispatch to inform them
that shots were fired, the suspect was down, and an
ambulance was needed. Pet. App. 23a-24a.
II.
Procedural History.
A.
United States District Court for the
District of New Mexico.
Following Molina’s death, Petitioner brought
three claims against Officer Smith and the New
Mexico Department of Public Safety (“NMDPS”). Pet.
App. 60a-62a. The first claim was a claim for
unreasonable seizure under the Fourth Amendment.
The second claim was for excessive force under the
Fourth and Fourteenth Amendments. The third claim
was for Officer Smith’s alleged failure to render aid.
Petitioner dismissed all three claims against
NMDPS. Pet. App. 38. As for the claims against
Officer Smith, Petitioner dismissed her claim for
failure to render aid and her Fourteenth Amendment
excessive force claim. Pet. App. 38, 52. The District
Court granted Officer Smith summary judgment as to
Petitioner’s unreasonable seizure claim, leaving only
the Petitioner’s Fourth Amendment excessive force
claim against Officer Smith. Pet. App. 49a.
12
The District Court granted Officer Smith’s
motion for partial summary judgment as to
Petitioner’s excessive force claim on the basis of
qualified immunity. Pet. App. 16a. Petitioner did not
claim that Officer Smith’s initial use of force violated
the Fourth Amendment. Rather, Petitioner argued
that “Officer Smith violated... Molina’s right to be free
from the excessive use of force when he shot... Molina
seven additional times after shooting him the first
time.” Pet. App. 27a. Thus, the District Court stated
that the question presented was whether Petitioner
met her burden to show that Officer Smith violated
Molina’s right to be free from excessive force when he
fired the second volley of shots, and if so, whether
Officer Smith’s conduct was prohibited by clearly
established law.
As to the first prong of qualified immunity, the
District Court applied the standard for excessive force
claims as announced by this Court in Garner, 471 U.S.
at 11, Graham, 490 U.S. at 398, and several other
cases. The District Court stated, “[i]n Graham, 490
U.S. at 396-97, [this Court] listed three factors that
affect whether force was excessive, including (1)
severity of suspected crime, (2) whether the suspect
posed an immediate threat to officers or others, and
(3) whether the suspect resisted arrest or attempted
to flee.” Pet. App. 27a. Further, “[t]he Court must
evaluate the objective reasonableness of the officer’s
actions based on ‘whether the totality of the
circumstances justified the use of force,’ and ‘pay
careful attention to the facts and circumstances of the
particular case.’” Pet. App. 28a (quoting Estate of
Larsen ex. rel. Sturdivan v. Murr, 511 F.3d 1255, 1260
13
(10th Cir. 2008) and Sevier v. City of Lawrence, 60
F.3d 695, 699 (10th Cir. 1995)).
The District Court concluded that, under the
totality of the circumstances, Officer Smith did not
violate Molina’s Fourth Amendment right to be free
from excessive force. First, Molina admitted to Officer
Smith that he... absconded from a warrant for his
arrest, and then resisted arrest. Molina so resisted by
trying to get past Officer Smith and then by violently
resisting the officer’s efforts to handcuff him. Second,
Molina grabbed for the officer’s gun in its holster - an
act that Officer Smith could reasonably interpret as
an attempt to disarm him. Third, during the struggle,
Officer Smith was shot in the leg, and soon after that
he could see the barrel of a gun in Molina’s hands. At
that point, Molina also was still trying to gain control
of Officer Smith’s gun. Pet. App. 29a. Fourth, although
Officer Smith shot Molina once, he had reasonable
grounds to believe that Molina was still armed in the
car, as he had not gotten Molina’s gun away from him
and had retreated from the car without it. Fifth,
Officer Smith had reasonable concern that Brandon
might join the struggle against the officer, as Molina
had called out to Brandon. Sixth, due to the tinted,
opaque rear window, Officer Smith could not
determine whether Molina complied with the officer’s
orders to put his hands up. However, Officer Smith
could see Molina’s leg emerge from the Honda in way
that reasonably appeared to Officer Smith as though
Molina was trying to escape or continue using deadly
force upon Officer Smith. Finally, Officer Smith could
not be certain that Molina would not open fire at him
through the back window of the Honda.
14
As to the second prong of qualified immunity,
the District Court rejected Petitioner’s argument that
two Tenth Circuit cases clearly established that
Officer Smith’s second round of shots violated
Molina’s constitutional rights. Petitioner pointed to
Fancher, 723 F.3d 1191, a case in which an officer shot
a suspect as the suspect was trying to steal his patrol
unit that held an unsecured gun. The officer saw the
suspect slump, took a few steps away, felt “safer,” then
fired six more shots at the suspect. Pet. App. 30a. The
District Court stated that the key difference between
Fancher and this case is that here, after firing the first
shot, Officer Smith could not see Molina or determine
whether Molina continued to wield the weapon with
which he had already shot Officer Smith. Pet. App.
31a. Further, Officer Smith reasonably believed that
the emergence of Molina’s leg was indicative of an
attempt to escape or continue the fight. In contrast,
the officer in Fancher had the time and ability to see
the suspect and make the reasonable inference that
deadly force was no longer needed.
The District Court also rejected Petitioner’s
reliance on Smart, 951 F.3d 1161 for largely the same
reason. Smart involved an officer shooting an
unarmed suspect who fell to the ground and was lying
face down with arms stretched out and empty hands
visible. The court differentiated Smart from this case,
explaining that Molina was “not unarmed,” and that
Officer Smith did not have the time or opportunity to
determine whether Molina was still able to use the
gun with which Officer Smith had been shot. Pet. App.
32a. Accordingly, District Court correctly granted
Officer Smith’s motion for summary judgment based
on qualified immunity.
15
Petitioner appealed to the Tenth Circuit. Pet.
App. 2a.
B.
Tenth Circuit Court of Appeals.
The Tenth Circuit proceeded directly to the
second prong of qualified immunity, concluding that
Officer Smith did not violate Molina’s clearly
established rights, and that accordingly, Officer
Smith is entitled to qualified immunity. Pet. App. 8a.
The Tenth Circuit began its analysis by reciting
the standard for a clearly established right. Pet. App.
9a. Specifically, the “clearly established standard
requires that the law clearly prohibits the defendant’s
“conduct in the particular circumstances before him.
Pet. App. 9a (quoting District of Columbia v. Wesby,
583 U.S. 48, 63 (2018)).
In support of her argument that Molina’s rights
were clearly established, Petitioner relied again on
Fancher, 723 F.3d 1191, as well as McCoy v. Meyers,
887 F.3d 1034 (10th Cir. 2018) and Parea v. Baca, 817
F.3d 1198 (10th Cir. 2016). In McCoy, officers
continued beating a suspect and employing a carotid
restraint after the suspect was rendered unconscious,
handcuffed, and zip-tied, and was only just beginning
to regain consciousness. Pet. App. 11a. Similarly, in
Parea, officers continued tasing a suspect whom they
had already effectively subdued by getting him on the
ground on his stomach, with two officers on top of him.
Pet. App. 12a.
16
The Tenth Circuit aptly differentiated Fancher,
McCoy, and Parea from the case at hand, explaining
that “[i]n those cases, the suspect had clearly been
subdued, making continued use of deadly force plainly
unjustifiable.” (emphasis original).
The Tenth
Circuit furthered this distinction, stating,
[H]ere, [Officer] Smith had reason to
think that Molina was not subdued.
Video evidence shows, and neither party
disputes, that although [Officer] 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, [Officer] Smith
could not see Molina’s body other than
his feet. This additional, post-initialrestraint movement did not occur in the
cases [Petitioner] cites.
For these reasons, the Tenth Circuit explained,
Petitioner failed to meet her burden to supply a
Supreme Court or Tenth Circuit case clearly
establishing that Officer Smith’s conduct amounts to
a constitutional violation. Pet. App. 13a. Accordingly,
the Tenth Circuit affirmed.
17
REASONS FOR DENYING THE PETITION
I.
Petitioner Bases Her Claimed Circuit
Split on Cherry-picked Passages from
Various Cases That Do Not Support Her
Argument.
There is no genuine circuit split here.
Petitioner’s first argument is that “[t]he Fourth,
Seventh, and Ninth Circuits - joined by the Tenth
Circuit’s own earlier decision in Fancher - require
temporal segmentation” analysis for uses of force. Pet.
11. Despite the fact that this argument conflicts with
her later argument, Petitioner further asserts that
“the decision below rejects that approach by
aggregating the eight-second pause and changed
vantage into one continuous ‘dangerous’ episode...”
Pet. 11. In support of this claim of a circuit split,
Petitioner relies on Waterman, 393 F.3d 471; Ellis,
999 F.2d 243; Tan Lam, 976 F.3d 986, and Fancher,
723 F.3d 1191.
As discussed more fully below, Petitioner
cherry-picked certain quotes from these cases and
cited them out of context in an attempt to argue that
some circuits require “temporal segmentation”
analysis for uses of force. When reviewed in their
entirety, these cases demonstrate that the circuits
agree that a “totality of the circumstances” analysis
cannot be limited to only certain facts. Rather, the
totality of the circumstances includes all facts from
the start of the encounter through the moment force
is used. See Waterman, 393 F.3d at 481 (“[a]rtificial
divisions in the sequence of events do not aid a court’s
evaluation of objective reasonableness.”); Ellis, 999
18
F.3d at 247 (“[w]hen an officer faces a situation in
which he could justifiably shoot, he does not retain the
right to shoot at any time thereafter with impunity.”);
Tan Lam, 976 F.3d at 999 (finding a constitutional
violation where the officer fired a second round after
the suspect no longer posed a threat.). Petitioner’s
misrepresentation of the relevant case law is so
egregious that she claims that, in Fancher, the Tenth
Circuit approved the district court’s use of a
“segmented analysis” when, in reality, the Tenth
Circuit expressly stated that it lacked jurisdiction to
review the issue. See Fancher, 723 F.3d at 1201
(“[a]ccording to the factual scenario.., which this court
lacks authority to review...”).
In Waterman, 393 F.3d at 473, Waterman led
several police officers on a pursuit. One officer
announced over the radio that Waterman tried to “run
him off the road.” Id. at 474. Another officer
announced that Waterman reached under his seat,
indicating the presence of a firearm. As Waterman
neared a toll plaza at a normal speed, keeping a safe
distance from the vehicle in front of him, five more
officers approached Waterman’s vehicle from the front
with their weapons drawn. Waterman accelerated,
causing the officers to open fire. Id. at 475. The officers
continued to fire as Waterman drove past. As
Waterman passed through the toll lane, he ran over
“stop sticks” that punctured his tires and stopped his
vehicle. Waterman’s Estate brought a § 1983 claim for
excessive force. After the district court denied the
officers’ motion for summary judgment based on
qualified immunity, the case reached the Fourth
Circuit.
19
Based on the Estate’s arguments, the Fourth
Circuit bifurcated its analysis, looking first to the
shots fired as Waterman approached the officers, then
looking to the shots fired as Waterman passed the
officers. After finding the first volley constitutional,
the Fourth Circuit explained that the second volley
cannot be justified solely based on a finding that the
first volley was constitutional. Rather, “separate
analysis is appropriate.” Id. at 480. The court, citing
Rowland v. Perry, 41 F.3d 167 (4th Cir. 1994),
explained that “[t]he better way to assess the objective
reasonableness of force is to view it in full context,
with an eye toward the proportionality of the force in
light of all the circumstances.” Id. at 481. The court
elaborated, “To simply view all of the force employed
in light of only the information possessed by the officer
when he began to employ force would limit, for no good
reason, the relevant circumstances to be considered in
judging the constitutionality of the officer’s actions.”
(emphasis original). Id. Thus, the Fourth Circuit
agrees that a second volley must be justified by the
totality of the circumstances, including the
circumstances that existed from the start of the
encounter through the use of force, not only those that
existed between the first and second volleys.
Accordingly, Waterman does not require “temporal
segmentation” as Petitioner asserts.
In Ellis, 999 F.2d at 247, contrary to
Petitioner’s assertion, the Seventh Circuit similarly
stated that the totality of the circumstances analysis
applies to use of force cases. In Ellis, a suspect broke
into a pharmacy, using a sledgehammer to break
through the adjoining building’s wall. Id. at 245. The
suspect filled a bag with plastic vials, drug containers,
20
and paper currency. Officer Wynalda responded to the
pharmacy’s silent alarm. Through the hole in the wall,
Officer Wynalda observed a pair of legs walking out
the back door of the adjoining building. Officer
Wynalda exited the pharmacy, and ordered the
suspect to stop. The suspect tossed the lightweight
bag at Officer Wynalda before running away. Officer
Wynalda shouted for the suspect to stop then shot him
once in the lower back.
The Seventh Circuit determined that Officer
Wynalda was not entitled to qualified immunity,
noting that the suspect only tossed a bag weighing
four or five pounds toward Officer Wynalda. Id. at 247.
“That conduct, while risky and startling, is not the
equivalent of menacing an officer with a weapon.” The
court noted that if Officer Wynalda feared that the bag
might be heavy and might knock the gun from his
hand or provide an opportunity for Ellis to draw a
concealed weapon, Officer Wynalda would have been
justified in firing at that moment, but not after the
lightweight bag fell to the ground without injuring
him and the suspect had turned to run. Concluding
that the proper analysis involves all facts from the
entire encounter, the Seventh Circuit stated that
Officer “Wynalda had no reasonable fear of Ellis after
he backed away and ran.” Thus, Petitioner’s assertion
that Ellis requires “temporal segmentation” is simply
false.
21
In Tan Lam, 976 F.3d at 998, 1 the Ninth
Circuit explained that in analyzing excessive force
claims, it must “examine the totality of the
circumstances and consider whatever specific factors
may be appropriate in a particular case.” In Tan Lam,
a father called 911 as his son struck him. Id. at 99192. Officer Acosta arrived and the father led him to
the son’s bedroom door. Id. at 992. Officer Acosta
entered the door to see the son sitting at his desk,
unarmed. The son pushed Officer Acosta out of his
room into the main hallway and retrieved a pair of
scissors. Officer Acosta drew his firearm, took a step
back, and told the son to drop the scissors. When the
son stabbed Officer Acosta with scissors in the left
forearm, Officer Acosta shot him in the right calf.
Officer Acosta retreated down the hall, taking the
time to clear his jammed handgun. When Officer
Acosta neared a turn in the hallway, he fired a second
shot at the son. The father brought a § 1983 claim for
excessive force. Id. at 993.
After the case reached the Ninth Circuit, the
court determined that “objective evidence supported
the conclusion that [the son] was not a threat to
[Officer] Acosta between the first and second shot.” Id.
at 998. The Ninth Circuit rejected Petitioner’s concept
Petitioner asserts that in Tam Lam the Ninth
Circuit “treats a second burst a separate use of force requiring
renewed justification; continued fire against an incapacity or
non-threatening suspect violates the Fourth Amendment.” Pet.
10. Petitioner cites to “976 F.3d at 1001-02.” However, this
section of Tan Lam discusses the “clearly established” prong of
qualified immunity, not the “constitutional violation” prong
addressed in Petitioner’s first argument.
1
22
of “temporal segmentation,” instead using the
continuing analysis of the totality of the
circumstances used by the Fourth, Seventh, and
Tenth Circuit Courts. The court stated,
[T]hough [Officer] Acosta’s first shot fired after [the son] had stabbed him
with scissors - was likely an objectively
reasonable use of force, [Officer] Acosta’s
second shot was not an objectively
reasonable use of force. When [Officer]
Acosta fired the second shot, [the son] no
longer posed an immediate threat; [the
son] was injured and was not
approaching [Officer] Acosta with
scissors, and Acosta was retreating [the
son]. [Officer] Acosta could have
retreated further, even out of the house,
and waited for backup.
Id. at 999.
Finally, Petitioner again relies on Fancher
despite both the District Court and Tenth Circuit’s
agreement that Fancher is not applicable to the
present case. As stated above, Fancher, 723 F.3d at
1196-97, involved an officer shooting a suspect as the
suspect was trying to steal his patrol unit that held an
unsecured gun. The officer saw the suspect slump,
took a few steps away, felt “safer,” then fired six more
shots at the suspect. Id. at 1197. A § 1983 claim
ensued. Id. at 1198. When the officer moved for
summary judgment on the basis of qualified
immunity, the district court granted the motion as to
23
the officer’s initial shot, but not the second volley. The
officer appealed.
The officer first argued that the district court
erred by performing a “segmented analysis,” stating
“when the facts of the incident are that [the officer]
were placed in danger from the moment he was
attacked by the decedent until the time that [the
officer] was completely sure that the neither he nor
the public were in further danger.” Id. at 1199-1200
(emphasis original). The Tenth Circuit explained that
it lacked jurisdiction to decide that issue, as the
officer’s argument “cannot reasonably be understood
as anything other than an attack on the[] conclusions
of the district court.” Id. at 1200. Thus, Petitioner
bases her argument that the Tenth Circuit uses
“temporal segmentation” analysis solely on a case in
which the Tenth Circuit lacked jurisdiction and
cannot be found to have applied “temporal
segmentation.”
In sum, a basic review of the entire texts of
Waterman, Ellis, Tan Lam, and Fancher show that
there is no circuit split as to the analysis when an
officer fires a second volley. Rather, the circuit courts
are in harmony that the “totality of the
circumstances” analysis requires all facts, from the
start of the encounter through the end, to be
considered. Accordingly, this Court should reject the
Petition on the basis of a circuit split.
24
II.
The Lower Courts Properly Applied This
Court’s Case Law.
In her second argument, Petitioner cobbles
together two separate arguments each of which is
unavailing. First Petitioner incorrectly asserts that
Plumhoff, 572 U.S. 765 prohibits subsequent force
when a suspect has been incapacitated. Second,
Petitioner takes the bold position that the “totality of
the circumstances” does not apply to the use of force
in this case. Petitioner states that the Tenth Circuit
improperly “credited pre-first-shot violence” when
analyzing Officer Smith’s second volley of shots. Pet.
13. In effect, Petitioner attempts to divide the totality
of facts in this case into two “buckets” - one bucket
being all facts that occurred prior to Officer Smith’s
first shot and the other bucket being all facts that
came after.
First, in Plumhoff, 572 U.S. at 774, this Court
reaffirmed
that
the
Fourth
Amendment’s
“reasonableness” standard “requires analyzing the
totality of the circumstances.” Plumhoff involved a
suspect’s vehicle “spinning out” during a pursuit. Id.
at 769. After the suspect struck a police vehicle and
continued to accelerate, one officer fired three rounds
into the suspect’s car. Id. at 770. When the suspect
escaped capture, officers fired twelve more shots as
the suspect drove down the street, causing the suspect
to crash. In the ensuing lawsuit, the suspect’s
daughter argued that the officers used excessive force
by firing so many shots. Id. at 777. This Court flatly
rejected this argument, stating that “if police officers
are justified in firing at a suspect in order to end a
severe threat to public safety, the officers need not
25
stop shooting until the threat has ended.” Id. The
Court explained the limitation that, “[t]his would be a
different case if [the officers] had initiated a second
round of shots after an initial round had clearly
incapacitated [the suspect].” Id. Here, however, the
record does not contain any “clear” evidence of
purported incapacity.
Petitioner’s reliance on Plumhoff appears to be
an argument that the present case falls within this
Court’s limitation that a second volley is unreasonable
against a clearly incapacitated suspect. However, the
District Court below already explained that “due to
the opaqueness of the Honda’s rear window, it is
impossible for anyone including Officer Smith, to
know whether or not... Molina had complied with
Officer Smith’s order to place his hands in the air.
What Officer Smith could see was that... Molina’s...
lower leg emerged from the Honda in a way that under
the circumstances reasonably appeared to Officer
Smith as though... Molina was trying to get out of the
car.” Pet. App. 29. The Tenth Circuit similarly agreed
that Officer “Smith had reason to think that Molina
was not subdued. Video evidence shows... Molina
quickly kicked his leg out of the passenger-side door
just before the second round of shots.” Pet. App. 12a.
Thus, Petitioner’s argument fails, as Molina was not
incapacitated and still posed a threat to Officer Smith.
Second, Petitioner argues that the Tenth
Circuit improperly “credited pre-first-shot violence”
when analyzing Officer Smith’s second volley of shots.
Again, Petitioner’s argument conflicts with her final
argument that the Tenth Circuit violated this Court’s
mandate that “the ‘totality of the circumstances’
26
inquiry has no time limit.” Barnes, 605 U.S. at 80. In
Barnes, this Court struck down the “moment-ofthreat” rule used by the Fifth Circuit to analyze
excessive force claims. “Under that rule,... the inquiry
is confined to whether the officer was in danger at the
moment of the threat that resulted in his use of deadly
force. Any prior events leading up to the shooting,...
were simply not relevant.” Id. at 78 (internal quotes
omitted). This Court rejected the Fifth Circuit’s
“moment of threat” test, stating that “[a] court
deciding a use-of-force case cannot review the totality
of the circumstances if it has put on chronological
blinders.” Id. at 82. The Court explained that “earlier
facts and circumstances may bear on how a
reasonable officer would have understood and
responded to later ones... ‘in-the-moment’ facts cannot
be hermetically sealed off from the context in which
they arose.” Id. at 80.
Based on this Court’s mandate against
“chronological blinders,” the Tenth Circuit properly
“credited pre-first-shot violence” when analyzing
Officer Smith’s second volley of shots. As explained by
this Court, Molina’s violent actions prior to Officer
Smith’s first shot cannot be separated from his later
actions. Petitioner cannot argue that the Tenth
Circuit’s analysis was improper where that analysis
followed this Court’s instructions.
III.
Petitioner Fails to Identify Case Law That
Provided
Molina
With
a
Clearly
Established Right in This Case.
For her argument related to the “clearly
established” prong of qualified immunity, Petitioner
27
does not provide any analysis whatsoever. Petitioner
instead opts to throw case names into her Petition in
hopes that one carries the day - despite the fact that
almost all of the cases were disregarded by the lower
courts as not clearly establishing Molina’s rights in
this case. As discussed below, none of the cases upon
which Petitioner relies provided a clearly established
right.
A.
Petitioner failed to identify a clearly
established right created by Garner
and Graham.
Petitioner throws out the names of Garner, 471
U.S. at 11 and Graham, 490 U.S. at 398, without
explaining how these cases provided Molina with a
clearly established right. As explained by the Court in
Mullenix v. Luna, 577 U.S. 7, 12 (2015), “[t]he
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”
(emphasis original). Id. “Such specificity is especially
important in the Fourth Amendment context, where
the Court has recognized that it is sometimes difficult
for an officer to determine how the relevant legal
doctrine, here excessive force, will apply to the factual
situation the officer confronts.” Id.
In Mullenix, the Court rejected a “clearly
established rule” that “a police officer may not use
deadly force against a fleeing felon who does not pose
a sufficient threat of harm to the officer or others.” Id.
Similarly, in Brosseau v. Haugen, 543 U.S. 194 (2004),
the Court rejected a “clearly established rule” made by
28
the Ninth Circuit. See Haugen v. Brosseau, 339 F.3d
857, 873 (9th Cir. 2003) (establishing that “deadly
force is only permissible where the officer has
probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or
others.”). This Court explained that the formulation
of this rule fails to address the actual question at
issue: “[W]hether the circumstances with which [an
officer] was confronted constituted probable cause and
exigent circumstances.” Mullenix, 577 U.S. at 13
(quoting Anderson v. Creighton, 483 U.S. 635, 640-41
(1987)).
Here, Petitioner seemingly concedes that
Garner and Graham are not specific enough to provide
Molina with a clearly established right, as she refers
to these cases as “bedrock” without citing to any
holding that would apply to the facts of the present
case. Petitioner fails to identify a clearly established
right, and instead provides only broad general
propositions, stating:
Supreme Court bedrock: Garner, 471
U.S. at 11 (deadly force only when
necessary to prevent escape and the
suspect poses a significant immediate
threat) and Graham, 490 U.S. at 396-97
(objective reasonableness under the
totality).
Pet. 13.
29
B.
The
lower
courts
correctly
determined that Fancher and Smart
did not create a clearly established
right in this case.
Petitioner again relies on Fancher and Smart,
stating:
Tenth Circuit: Fancher, 723 F.3d 1191
(later shots unlawful where the officer
had time to reassess) and Smart, 951
F.3d 1161 (continuing to shoot an
incapacitated suspect violates the
Fourth Amendment).
The Tenth Circuit expressly found that Fancher
and Smart did not provide Molina with a clearly
established right, reasoning that Officer Smith could
not determine whether Molina was able to wield a
weapon due to the opaque rear window of the vehicle
Pet. App. 31a. Additionally, Officer Smith reasonably
believed that the emergence of Molina’s leg was
indicative an attempt to escape or continue the fight.
The Tenth Circuit further explained that Smart “is
inapposite for the same reason.” “Molina was not
unarmed, and Officer Smith did not have the time or
opportunity to observe... Molina to determine whether
he was still able to use the gun with which Officer
Smith had previously been shot.” Pet. App. 32. Thus,
Petitioner’s reliance on Fancher and Smart fails,
again.
30
C.
Waterman and Ellis do not create a
clearly established right.
Next, Petitioner throws out the names of
Waterman, 393 F.3d 471 and Ellis, 999 F.2d 243 as
cases that establish Molina’s rights. However, “[f]or a
violation to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or
the clearly established weight of authority from other
courts must have found law to be as the plaintiff
maintains.” Mocek v. City of Albuquerque, 813 F.3d
912, 922 (10th Cir. 2015). Waterman and Ellis do not
create “clearly established” rights, as they are neither
Supreme Court cases nor Tenth Circuit cases.
Further, a mere two cases do not represent
“established authority from other courts.”
Moreover, Waterman and Ellis do not govern
the facts of this case. As discussed above, Waterman
and Ellis involved uses of force after the danger had
clearly passed. See Waterman, 393 F.3d at 482
(“[O]nce Waterman’s vehicle passed the officers, the
threat to their safety was eliminated and thus could
not justify the subsequent shots.”); Ellis, 999 F.2d at
247 (finding a use of force to be excessive as the
suspect “posed no immediate threat and was not
apparently armed.”). Both the district court and Tenth
Circuit agreed that Officer Smith reasonably believed
that Molina still posed a threat. See Pet. App. 29a
(district court concluding that “a reasonably officer
could conclude that... Molina was still trying to either
escape or use deadly force upon Officer Smith.”); Pet.
App. 12a (Tenth Circuit stating that Officer “Smith
had reason to think that Molina was not subdued.”).
As the facts of Waterman and Ellis stand in stark
31
contrast to those of this case, they do not provide
Molina with a clearly established right.
D.
Taylor v. Rojas, 592 U.S. 7, does not
create a clearly established right.
For her final case, Petitioner cites to Taylor,
592 U.S. 7 , an exceedingly preposterous case
involving violations of the Eighth Amendment’s bar
on cruel and unusual punishment. Petitioner cites
Taylor in an effort to show that no case on “all-fours”
is needed in “obvious case[s].” Pet. 14. In Taylor, the
Court found that with “the particularly egregious
facts of [the] case, any reasonable officer should have
realized that [the prisoner’s] condition of confinement
offended the Constitution.” 592 U.S. at 9. Those facts
were as follows:
Taylor, [a prisoner], alleg[ed] that for six
full days... correctional officers confined
him in a pair of shockingly unsanitary
cells. The first cell was covered, nearly
floor to ceiling, in “‘massive amounts’ of
feces”: all over the floor, the ceiling, the
window, the walls, and even “‘packed
inside the water faucet.’” Fearing that
his food and water would be
contaminated, Taylor did not eat or
drink for nearly four days. Correctional
officers then moved [the prisoner] to a...
cell, which was equipped with only a
clogged drain in the floor to dispose of
bodily wastes... Because the cell lacked a
bunk, and because Taylor was confined
32
without clothing, he was left to sleep
naked on the sewage.
Id. at 7-8.
“[T]here 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
(emphasis added). However, the case at hand is not
such a case. Whereas the conduct of the prison guards
in Taylor was clearly wrongful, Officer Smith’s
conduct was not. Officer Smith had a reasonable basis
for firing his second volley of shots. At that time, he
knew that: Molina absconded from a warrant and
resisted arrest; Molina grabbed Officer Smith’s gun
holster; Officer Smith was shot in the leg during his
struggle with Molina; Molina was holding a gun;
Molina called out to Brandon to help him fight Officer
Smith; and Molina quickly pushed his leg out of the
car door after having been instructed to put his hands
in the air. It was further reasonable for Officer Smith
to believe that Molina was still a mobile threat despite
being shot, as Officer Smith himself was still mobile
after being shot. Accordingly, this is not one of the rare
obvious cases discussed in Taylor and Wesby.
Petitioner seemingly agrees that this is not one
of the rare obvious cases, as she failed to raise this
argument below (and thus failed to preserve it for
review). As noted by the Tenth Circuit:
There can be the rare obvious case where
the unlawfulness of the officer’s conduct
is sufficiently clear even though existing
33
precedent does not address similar
circumstances. [Petitioner] never argues
that this is such a case, and we do not
independently find it to be so.
Pet. App. 9a. n. 3.
As Molina lacked a clearly established right in
the case at hand, the Court should deny the Petition.
IV.
The Lower Courts Considered the Totality
of the Circumstances When Analyzing
Officer Smith’s Use of Force.
Petitioner’s argument based on Barnes, 605
U.S. 73, is the least credible of all her arguments.
Petitioner properly states that, “This Court recently
rejected the ‘moment-of-threat’ framing and held that
courts must assess the totality of the circumstances in
excessive-force cases.” Pet. 14. Petitioner proceeds to
argue that the Tenth Circuit “emphasized a splitsecond involuntary leg movement 2 while disregarding
the totality of the circumstances.” Pet. 14.
Petitioner loses all credibility by making this
argument. As discussed above, Petitioner asserts
that the Tenth Circuit deviated from the required
“temporal segmentation” analysis and analyzed the
entire encounter between Molina and Officer Smith in
It is unclear why Petitioner believes Molina
moving his leg was involuntary and due to Officer Smith’s first
shot. It is further unclear why the leg movement would not have
occurred instantly, instead waiting several seconds to occur. The
record is devoid of any such evidence or finding.
2
34
“one continuous ‘dangerous’ episode.’” Pet. 11-12. It is
unclear how the Tenth Circuit managed to both focus
its analysis on a single fact, while also focusing all the
facts. As outlined above, the lower courts analyzed the
“totality of the circumstances.” This was the
appropriate analysis, and the lower courts’
conclusions were correct.
Petitioner’s argument based on Barnes fails.
Accordingly, the Court should deny the Petition.
THIS CASE CANNOT SERVE AS A VEHICLE
FOR THE QUESTIONS STATED IN THE
PETITION
Petitioner asserts that this case is an ideal
vehicle to address her questions presented as
“[o]fficers, plaintiffs, and courts need a uniform rule
on reassessment between bursts of force, particularly
where the suspect was hit the first time and enough
time passes for the officer to reassess the need for
force.” Pet. App. 15. According to Petitioner, “[t]he
decision below perpetuates confusion and conflicts
with circuits that require segmentation and
reconsideration of the need for force in changed
circumstances.”
Petitioner’s argument ultimately fails on all
fronts. As discussed above, there is no circuit split and
none of the cases cited by Petitioner utilize a
“segmentation” analysis for uses of force. Rather,
Waterman, Ellis, and Tan Lam all analyze the totality
of the circumstances from the beginning of the
encounter through the final use of force. As for
Fancher, the Tenth Circuit expressly stated that it
35
lacked jurisdiction to create the holding that
Petitioner bases her circuit split upon. As to the
clearly established prong of qualified immunity, none
of the cited cases provided Molina with a clearly
established right. Finally, Petitioner was unable to
identify how the Tenth Circuit deviated from this
Court’s ruling in Barnes - saying that the Tenth
Circuit analyzed only one fact while also analyzing all
the facts. Accordingly, this case is a poor vehicle for
any questions presented by Petitioner.
CONCLUSION
The Court should deny the Petition.
Respectfully submitted,
LUIS ROBLES
Counsel of Record
ROBLES, RAEL & ANAYA
500 Marquette Ave., NW Suite 700
Albuquerque, New Mexico 87102
(505) 242-2228
luis@roblesrael.com
Counsel for Respondent
November 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.