## United States Court of Appeals FOR THE EIGHTH CIRCUIT

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* Defendants/Appellees. *

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Submitted: Oct. 20, 1998

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Jeremy Nelson arrest him following his flight from t and and Minnesota t h

ommitted an unjustified battery and that the county should beThe Honorable David S. Doty, United States District Judge for the District of 1 Minnesota.
– 2– vicariously liable for the b attery. The district court granted summary judgment to the 1 defendants, and Nelson appeals. We affirm.

Nelson was committed to Willmar as chemically dependent and mentally ill in October 1994 . Later that month he left the center without permission and returned to his mother’s house in Monticello. When he was found missing, a pickup order wa s issued and his mother was notified. N elson’s mother nevertheless allowed him to stay with her while he was waiting to meet with his attorney. Aft er three days, they got into an argument. Nelson became agitated, and his mother call ed 911 to request assistance. She reported

that Nelson was screaming at her and threatening suicide. She also told the operator about the treatment center pickup order. While his mother was on th e phone, Nelson ingested approximately eighteen white cross tablets and a half bottle of aspirin. The record indicates that at the time Nelson was eighteen years old and 6'3" in height; he weighed 140 pounds.
The county dispatcher identif ied the call as a domestic disturbance, and Deputy Hudek was the first officer to respo nd. The dispatcher indicated that Nelson had been acting violently, that he was believed to be suicidal, and that he had fled from a regional treatment center for mental illness and chemical dependency. When Hudek arrived at the house, he spoke with Nelson’s mother and learned that her son had just taken the pills, that he was in his bedroom, and that he did not have any weapons.
Hudek went into the bedroom and found Nelson lying on the bed. The deputy explained that he needed to arrest Nelson and to handcuff him, but Nelson resiste d wh en he tried to cuff his hands behind his back. Nelson struggled with Hudek as the deputy attempted to gain control over his arms, and Hudek applied his asp as an arm bar. At some point in the continuing struggle, Hudek hit Nelson on the head with theIn reviewing this grant of summary judgment, we accept Nelson’s version of 2 the facts and have not recounted all the conflicting testimony of Deputy Hudek, including his claims that Nelson reached for his gun and unsnapped its holster before he hit him on the head with the asp and that Nelson again attempted to get his gun after he was knocked onto the closet floor.
– 3– asp and Nel son reached for the deputy’s gun. The parties disagree about whic h happened first, but Nelson admits that he reached f or Hudek’s gun early in the struggle
an d that he also hit the deputy repeatedly, kicked him in the chest, and knocked hi m down t wice, finally pushing him onto the floor of a closet. Hudek admits strikin g 2 Nelson o n the head with his asp several times in an attempt to control him. Nelso n admits that he went down after Hudek while the deputy was on the closet floor; he says he lost his balance. Hudek fired two shots from the closet floor; the second hit Nelson in the chest.

The entire incident lasted less than three minu tes and was over by the time other office rs arrived. Nelson was taken to the hospital where seven staples were used t o close a he ad wound; the bullet remains in his back. Nelson was charged with assaulting an officer and pled guilty under North Carolina v. Alford , 400 U.S. 2 5 (1970) (court can accept a guilty plea despite claim of innocence if there is stron g eviden ce of actual guilt.) His plea agreement provided that a charge of obstructin g legal process would be dropped in return for his plea on the assault charge and that he would be sentenced to time served (94 days).
Nelson subsequently brought this civil action against Hudek and the county, and the district court granted summary judgment for the d efendants. The § 1983 claim was dismissed for insufficient evidence that Hudek’s actions were objec tively unreasonable. The court also concluded that Hudek was entitled to official immunity on the battery claimunde r state law and that Nelson could therefore not assert vicarious liabilit y against the county.The district court did not reach this question, and we need not address it 3 because of our resolution of other issues.
– 4– Nelson argues on appeal that both claims were improperly dis missed. He argues Deputy H udek is not entitled to qualified immunity on his constitutional claim fo r excessive fo rce and that there are genuine issues of material fact. Appellees disagree and also argue that Nelson is barred from bringing this claim because of his conviction for assaulting Deputy Hudek, citing Heck v. Humphrey , 512 U.S. 477 (1994). Nelson 3 also argues that the district court erred in granting Hudek official immunity unde r Minnesota l aw and dismissing the battery claim. Appellees respond that Hudek i s immune because he did not commit a willful or malicious wrong.
A district court’s grant of summary judgment is reviewed de novo. Mayard v. Hopwood , 105 F.3d 1226, 1227 (8th Cir. 1997). The decision should be affirmed if, “viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of ma

terial fact and the moving party is entitled to judgment as a matter of law.” Id. at 1227-28 (citation and internal punctuation omitted). Summary judgment is not appropriate if the nonmoving party can set forth specific facts, by affidavit , depo sitions, or otherwise, showing the existence of a genuine issue for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986).

Gove rnment

officials performing discretionary tasks are entitled to qualifie d immunity unless their actions violate “clearly established statutory or constitutiona l righ ts of which a reasonable person would have known.” Harlow v. Fitzgerald , 45 7 U.S

. 800, 818 (1982); see also Anderson v. Creighton , 483 U.S. 635, 639 (1987 ) (“[W]hether an of

ficial protected by qualified immunity may be held personally liable

. . . generally turns on the ‘objective’ legal reasonableness of the action . . . assessed in light of legal rules that were clearly established at the time it was taken.”); Malley
v. Briggs , 475 U.S. 335, 341 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”). The applicability of qualified– 5–

immunity is a question of law, Get Away Club, Inc. v. Coleman , 969 F.2d 664, 66 6 ( 8 th Cir. 1992), which should be decided at the “earliest possible stage in litigation.” Hunter v. Bryant , 502 U.S. 224, 227 (1991).

Exc essive force claims arising from arrests are analyzed under the Fourth Amendment, Graham v. Connor , 490 U.S. 3 86, 394 (1989), and the use of force is not constitutionally e xcessive if the “officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Id. at 397. In apply ing this objective reasonabl eness standard, a court must pay close attention to the particular facts. I t should consider such factors as the severity of a suspected crime, whether the suspect poses an imm ediate threat to the safety of the officer or others, and whether he i s actively resisting or evading arrest. Graham , 490 U.S. at 396. It may also b e appropriate to consider the extent of any injury sustained by the suspect, Foster v

. Metropol itanAirports Comm’n , 914 F.2d 1076, 1082 (8th Cir. 1990), and standar d pol ice procedures, Ludwig v. Anderson , 54 F.3d 465, 472 (8th Cir. 1995). As th e Supreme Court has noted, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- i n circumsta nces that are tense, uncertain, and rapidly evolving -- about the amount o f force that is necessary in a particular situation.” Graham , 490 U.S. at 397. Critica l decisions regarding the use of force often must be made without much time fo r reflection. The issu e of reasonableness must be examined from the perspective of the facts known to the officer at the time of the incident. Schulz v. Long , 44 F.3d 643, 648 (8th Cir. 1995). Deadly force is justified if the totality of the circumstances gives the officer “probable cause to believe that the [arrestee] poses a threat of serious physical harm, either to the officer or others.” Tennessee v. Garner , 471 U.S. 1, 11 (1985).
The parties agree that either shooting someone or striking him on the head with an asp can be an application of deadly force, but they disagree on whether Hudek’sAt oral argument counsel for Nelson stated that even if the gun shots were 4 justified as a matter of law, material questions of fact would remain regarding the reasonableness of the use of the asp. Appellees argue, and the district court agreed, that the standard for 5 determining qualified immunity is identical to the standard for deciding if the use of force was excessive. Both involve considerations of objective reasonableness. The Supreme Court expressly declined to comment in Graham on the application of qualified immunity in excessive force cases because the defense had not been raised. 490 U.S. at 399 n.12. Since we conclude Hudek is entitled to qualified immunity, we need not analyze whether there is any conceptual difference in the standards. In any event, after reviewing the record from Nelson’s point of view, we conclude no rational jury could find that Hudek’s actions were objectively unreasonable in light of the evolving circumstances. Nelson has made an insufficient showing to succeed on his excessive force claim.
– 6– actions were objectively reasonable. A reasonable police officer would have known 4 in October 1994 that no greater force should be used in making an arrest than wa s reasonable under the circumstances and tha t deadly force would not be justified unless there was probable cause to believe he was faced with a threat of serious physica l h a rm. The standard was clearly established. Whether Hudek is entitled to qualified 5 immunitymust be examined from the perspective of the situation as he understood it at the time. Anderson v. Creighton , 483 U.S. 635, 640-41 (1987).
It is undisputed that the entire encounter between Hudek and Nelson lasted less than three minutes and that it escalated rapidly. Hudek could have reasonably believed his safety was thre atened as the situation spun out of control. When Hudek went into Nelso n’s room, he knew that Nelson had previously been committed to Willmar, had been acting violent and suicidal, and had taken a number of pills. Hudek initiall y at tempted to arrest and cuff Nelson without using force. Nelson actively resisted. A reasonable officer would have known that force may be used to overcome resistance to arres t, Foster v. Metropolitan Airports Comm’n , 914 F.2d 1076, 1081 (8th Cir

. 1990), and that an officer may u se deadly force when threatened with serious physical– 7–

harm. Garner , 471 U.S. at 11. Nelson’s hostility and increasingly viole nt reaction gave Hudek reason to fear grave personal injury. It is not disputed that during the struggle, Nelson reached for Hu dek’s gun and shoved Hudek onto the floor and into the closet. Even when the facts are viewed in the light most favorable to Ne lson, it is clear that the physical fight was intense and that there would have been little time for the officer to reflect as the situation quickly escalated. Nelson now trie s to analyze the brief struggle
as if the incident were composed of distinct and separate segments. At the time , howev er, it was uncertain what would happen next. The situation was tense an d “rapidly evolving.” Graham , 490 U.S. at 397. An “officer’s actions are not to b e assessed with 20/20 hindsight” when he was faced with the need to ma ke instantaneous decisions. Salim v. Proulx , 93 F.3d 86, 91 (2nd Cir. 1996). After carefully reviewing th e record, we conclude that under the circumstances encountered by Hudek, a reasonable officer could have believed that the use of potentially deadly force was not
exc essive or in violation of the clearly established law requiring an objectivel y reasonable response. Hudek is thus entitled to qualified immunity. See id. at 91-92.
Nelson also challenges the district court’s conclusion that Hudek is immune from suit on the state law battery charge. To qualify for official immunity under Minnesota law, the public official must be “charged by law with duties which call for the exercise of his judgm ent or discretion” and not be “guilty of a willful or malicious wrong.” Elwood v. County of Rice , 423 N.W.2d 671, 677 (Minn. 1988) (citations and internal punctuation om

itted). Police officers are generally classified as discretionary officers who may be ent itled to official immunity. Johnson v. Morris , 453 N.W.2d 31, 4 2 (M inn. 1990). The key issue here is whether, viewing the facts in the light mos t favorable to Nelson, Hudek committed a willful or malicious wrong.

The Minne sota Supreme Court has indicated that willful and malicious ar e synon ymous in the official immunity context and mean “nothing more than th e intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Rico v. State , 472 N.W.2d 100, 107– 8–

(Minn. 1991) (citations and footnote omitted). This is a subjectiv e standard, in contrast to the objective qualified immunity standard. See Elwood , 423 N.W.2d at 676-7 9 (decl ining to follow federal precedent which eliminated the subjective good faith component f

or immunity). Nelson has not produced any evidence to suggest tha t Hudek did not believe that his personal safety was in jeopardy or that he intended to violat e Nelson’s rights. On the basis of this record, Hudek is entitled to officia l immunity under state law and the count y is relieved of any potential vicarious liability. See, e.g. , Kari v. City of Maplewood , 582 N.W.2d 921 (Minn. 1998).
For these reasons, the judgment is affirmed.

A true copy.

ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.