Terry Harrington v. City of Council Bluffs

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2439
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Mario Molina-Gomes, as Trustee *
for the Next of Kin of Mario *
Molina-Campos, Deceased, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the District of
* Minnesota
Joel Welinski, Individually and in *
His Official Capacity as a City of *
Owatonna Police Officer, *
*
Defendant-Appellee. *
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Submitted: March 15, 2012
Filed: April 30, 2012
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Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
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MURPHY, Circuit Judge.
As part of a narcotics investigation, Owatonna police arranged for an
undercover officer to make a payment to Mario Molina Campos for drugs supplied
to an informant. The transaction did not go as planned, however. Molina Campos
attempted to drive away, dragging along the undercover officer, and rammed an
unmarked police vehicle blocking his path. At that point Sergeant Joel Welinski shot

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Molina Campos with his service revolver. Molina Campos died at the scene. Mario
Molina Gomes, as trustee for the next of kin of Molina Campos, brought this 42
U.S.C. § 1983 action alleging that Welinski had used excessive force in violation of
the Fourth Amendment. The district court granted summary judgment to the officer1
on the basis of qualified immunity, and Molina Gomes appeals. We affirm.
The Owatonna police had been told by the informant that Molina Campos was
supplying drugs to him and other dealers and that he owed Molina Campos some
money. Members of a drug task force set up a meeting at which an undercover officer
was to give Molina Campos the money owed by the informant, and other officers
would be present to make an arrest. The transaction was planned to take place at a
gas station located in Dodge City, Minnesota near the intersection of county roads 34
and 25. Much of the encounter between the police and Molina Campos was recorded
by a video camera mounted in one of the task force cars and by a hidden microphone
worn by the undercover agent.
After Molina Campos arrived at the gas station, the undercover agent
approached his car, placed the drug money in the backseat, and spoke to Molina
Campos through the rear window. As he was talking, Molina Campos began to drive
forward. Fearing Molina Campos would escape, one of the other officers drove his
unmarked car to block him from behind while Sergeant Welinski moved his vehicle
in front of Molina Campos. At the same time the undercover officer opened the
drivers door and ordered Molina Campos to get out of his car. Boxed in by the
police, Molina Campos first reversed, dragging along the undercover officer who fell
to the ground bleeding, and then attempted to drive around Welinski's vehicle,
heading toward county road 34.
The Honorable John R. Tunheim, United States District Judge for the District1
of Minnesota.
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As Molina Campos tried to escape, Sergeant Welinski got out of his vehicle
and fired eight shots at Molina Campos's car which began to make a slow u-turn away
from county road 34 before coming to a stop. One of the officers ordered Molina
Campos to get out of his vehicle. As Molina Campos complied, he collapsed on the
ground. The police called an ambulance and administered CPR, but Molina Campos
stopped breathing before the ambulance arrived. The audio recording indicates that
approximately 3 seconds had elapsed between Sergeant Welinski’s first and final
shots.
Molina Gomes, as trustee for the decedent’s next of kin, filed this § 1983 claim
against Sergeant Welinski in his individual and official capacities, claiming that the
sergeant had used excessive force in violation of the decedent’s Fourth Amendment
rights. Welinski moved for summary judgment, and the district court concluded that
he was entitled to qualified immunity because he had reasonably believed that Molina
Campos "posed a threat of serious harm" to others at the time he shot him. The court
granted summary judgment to Welinski in both his individual and official capacities.
Molina Gomes appeals only the grant of qualified immunity to Welinski in his
individual capacity.
We review the district court's grant of qualified immunity de novo, viewing the
facts in the light most favorable to the nonmoving party and drawing all reasonable
inferences in his favor. Johnson v. Carroll, 658 F.3d 819, 825 (8th Cir. 2011).
Qualified immunity protects government officials from liability under § 1983 unless
their conduct violates "clearly established statutory or constitutional rights of which
a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(citation omitted). The test for whether an officer is entitled to qualified immunity
depends on: (1) whether the facts alleged by the plaintiff make out a violation of a
constitutional right, and (2) whether that right was clearly established at the time of
the defendant's alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
A right is clearly established if a reasonable officer would understand that his conduct
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was unlawful. Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009). We may
exercise our discretion in deciding which of the two requirements to address first.
Pearson, 555 U.S. at 236.
Molina Gomes claims Sergeant Welinski violated the Fourth Amendment
rights of Molina Campos by using excessive force in trying to arrest him. This claim
is analyzed under the Fourth Amendment's objective reasonableness standard.
Graham v. Connor, 490 U.S. 386, 388–89 (1989). We examine "whether the officers'
actions are 'objectively reasonable' in light of the facts and circumstances confronting
them." Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005) (citation omitted). Our
analysis of whether the use of force was reasonable must allow "for the fact that
police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation." Graham, 490 U.S. at 396–97. The issue of
reasonableness "must be examined from the perspective of the facts known to the
officer at the time of the incident." Nelson v. Cnty. of Wright, 162 F.3d 986, 990 (8th
Cir. 1998). The use of deadly force is not unconstitutional if the officer had
"probable cause to believe that the suspect pose[d] a threat of serious physical harm,
either to the officer or others." Nance, 586 F.3d at 610 (citation omitted).
We conclude that Sergeant Welinski's use of deadly force did not violate
Molina Campos’s constitutional rights. The reckless driving by Molina Campos in
his attempt to escape was a danger to the arresting police officers and to any drivers
on the roadway. When Molina Campos sped backwards, he dragged the undercover
officer along, knocking him to the ground. He then crashed into a police vehicle
before driving around Welinski's vehicle towards county road 34. At the time
Welinski fired his weapon he had probable cause to believe that Molina Campos
posed a threat of serious danger to the officers as well as to other motorists. See Scott
v. Harris, 550 U.S. 380, 383–86 (2007); see also Sykes v. United States, 131 S. Ct.
2267, 2274 (2011) (“It is well known that when offenders use motor vehicles as their
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means of escape they create serious potential risks of physical injury to others.”).
Welinski made a split second decision to try to prevent Molina Campos from harming
the officers or others in the area. He fired for just 3 seconds and stopped shooting
before using all his bullets. See Sanders v. City of Minneapolis, 474 F.3d 523,
526–27 (8th Cir. 2007). Welinski's use of force under these quickly evolving
dangerous actions by Molina Campos was "objectively reasonable under the
circumstances as [Welinski] perceived them." See Hernandez v. Jarman, 340 F.3d
617, 623–24 (8th Cir. 2003).
We also reject the trustee’s remaining arguments. Although he claims that the
decedent’s driving posed no danger to other motorists, the video recording shows
numerous cars passing along county road 34 just before Molina Campos moved in the
direction of the roadway. See Scott, 550 U.S. at 380 (declining to adopt factual
allegations “contradicted by the record” in ruling on a motion for summary
judgment). Even if the officers failed to identify themselves before the shooting
began, as Molina Gomes claims, he has not shown that Sergeant Welinski’s use of
force was unconstitutional given the fast evolving circumstances and the officer's
reasonable belief that Molina Campos posed a serious threat to others. See Schulz
v. Long, 44 F.3d 643, 648–49 (8th Cir. 1995).
Accordingly, we affirm the judgment of the district court.
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