The “Eight-Second Qualified-Immunity Gap”: Salgado v. Smith and the Limits of Clearly Established Excessive-Force Claims

Introduction

Salgado v. Smith, No. 24-2068 (10th Cir. July 8, 2025), arises from the fatal shooting of Jonathan Molina by New Mexico State Police Officer Kevin Smith after a traffic stop on Interstate 25. Angelic Salgado, acting as the personal representative of Molina’s wrongful-death estate, sued Smith under 42 U.S.C. § 1983, claiming a Fourth-Amendment violation for excessive force. The district court granted summary judgment for Smith on the grounds of qualified immunity. On appeal, the Tenth Circuit affirmed, concluding that—even taking the facts most favorably to the estate—no precedent “squarely governed” the officer’s second volley of shots, fired eight seconds after an initial shot.

Although the decision is an unpublished “Order and Judgment,” it can be cited for its persuasive value and, more importantly, it crystallizes a doctrinal clarification: when confronted with a rapidly evolving encounter in which an armed suspect’s status is uncertain, an officer does not violate clearly established law by firing a second round of shots mere seconds after an initial shot if contemporaneous precedent does not put the illegality “beyond debate.” This commentary unpacks the ruling’s reasoning, the cases cited, and its potential ripple effects on police-conduct litigation in the Tenth Circuit and beyond.

Summary of the Judgment

The panel (Judges Hartz, Phillips, and Eid) reviewed de novo the district court’s grant of summary judgment.
Invoking the two-prong qualified immunity test from Pearson v. Callahan, the court exercised its discretion to move directly to the second prong: whether the law was clearly established.
The court held that Salgado failed to identify Supreme Court or Tenth Circuit authority that “squarely governs” the situation: an injured officer, a suspect partly concealed in a vehicle, a known gun in the car, and an eight-second pause between two sets of shots.
Because the alleged right was not clearly established, the panel affirmed qualified immunity without deciding whether a constitutional violation occurred.

Analysis

1. Precedents Cited and Their Influence

The opinion surveys several leading Tenth-Circuit excessive-force precedents, measuring each against the facts at bar:

Fancher v. Barrientos, 723 F.3d 1191 (10th Cir. 2013): held that shooting a subdued suspect after signs of incapacity can be excessive. The panel distinguished Fancher because Officer Smith never saw Molina incapacitated; instead, Molina’s leg kicked outward seconds before the second volley.
McCoy v. Meyers, 887 F.3d 1034 (10th Cir. 2018): force on an unconscious, handcuffed arrestee was clearly excessive. Again, the suspect in McCoy was visibly subdued, unlike Molina.
Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016): repeated tasings after subdual violate clearly established law. The panel underscored that Molina had not been “effectively subdued.”
Other cases (Emmett v. Armstrong, Fogarty v. Gallegos, Weigel v. Broad, etc.) were cited to illustrate the consistent requirement that the unlawfulness be “beyond debate” in materially similar circumstances. None matched the lethal-force context of an active firearm threat inside a vehicle.

“It is the plaintiff’s burden to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.” — Hemry v. Ross, 62 F.4th 1248 (10th Cir. 2023) (quoted)

2. Legal Reasoning of the Court

Qualified Immunity Framework — The court applied the two-step Pearson test but elected first to decide the “clearly established” prong, thereby avoiding a merits ruling on the constitutional question (a common “prudential” choice).
Specificity Requirement — Invoking Wesby, Mullenix, and Escondido, the panel reiterated that excessive-force precedent must be highly fact-specific. General propositions (e.g., “deadly force must cease when threat ends”) are insufficient.
Distinguishing Prior Cases — The court parsed the minor but dispositive factual nuances: location of suspect (partly in car), presence of firearm, temporal gap (eight seconds), officer’s injury, visibility limitations (tinted windows), and absence of visibility of suspect’s hands.
Absence of a “Rare Obvious Case” — The panel noted Salgado had not argued the shooting was one of the “obvious” cases where constitutional wrongfulness is self-evident without on-point precedent. Nor did the court see it as such.

3. Impact on Future Litigation and Police Practice

Temporal-Gap Doctrine Clarified — The opinion effectively sets an “eight-second” benchmark, suggesting that a brief pause between volleys, coupled with ambiguous threat cues, does not automatically strip officers of immunity absent clear precedent.
Heightened Burden for Plaintiffs — Civil-rights plaintiffs must marshal precedent with near-identical facts or convincingly frame their case as an “obvious violation,” a demanding endeavor in rapidly evolving, firearm-involved confrontations.
Training Implications — Agencies in the Tenth Circuit may interpret the ruling as validation that officers can re-engage lethal force if uncertainty persists, even moments after an initial shot. However, prudent policy still requires documenting evolving risk perceptions to anticipate litigation.
Persuasive but Non-Precedential — Because the order is unpublished, it is not binding precedent, yet under Fed. R. App. P. 32.1 it can be cited for its persuasive reasoning. District courts may nonetheless rely on its logic to dispose of similar § 1983 claims at summary judgment.

Complex Concepts Simplified

Qualified Immunity — A legal shield for government officials sued for money damages, protecting them unless (1) they violated a constitutional right that (2) was “clearly established” at the time.
Clearly Established Law — Requires prior binding cases (Supreme Court or governing Circuit) with materially similar facts; the unlawfulness must be “beyond debate.”
Excessive Force — Force that is objectively unreasonable under the Fourth Amendment, judged from the perspective of a reasonable officer on the scene.
“Obvious Case” Exception — Rare scenarios where conduct is so egregious that no precedent is necessary to conclude its illegality (e.g., shooting a non-threatening detainee in handcuffs).
Summary Judgment — Procedural mechanism for deciding a case without trial when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law.

Conclusion

The Tenth Circuit’s decision in Salgado v. Smith does not rewrite excessive-force doctrine but solidifies a crucial contour: in the absence of factually comparable precedent, an officer confronting an uncertain, armed threat within seconds of prior gunfire retains qualified immunity for renewed lethal force. Plaintiffs must now overcome a higher evidentiary and precedential hurdle when challenging split-second shooting decisions that occur in quick succession. For law-enforcement agencies, the ruling underscores the importance of training officers to articulate real-time threat assessments, while for litigators it spotlights the strategic imperative of locating—or creating via future published opinions—“squarely governing” case law.