MURPHY, Circuit Judge.
Jeremy Nelson was injured when Deputy Sheriff James R. Hudek attempted to arrest him following his flight from the Willmar Regional Treatment Center (Willmar), and he later sued Hudek and Wright County under 42 U.S.C. § 1983 and Minnesota tort law. Nelson claims that Hudek used excessive force in violation of his Fourth Amendment rights and committed an unjustified battery and that the county should be vicariously liable for the battery. The district court
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 was issued and his mother was notified. Nelson's mother nevertheless allowed him to stay with her while he was waiting to meet with his attorney. After three days, they got into an argument. Nelson became agitated, and his mother called 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 the 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 identified the call as a domestic disturbance, and Deputy Hudek was the first officer to respond. 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 resisted when 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 the asp and Nelson reached for the deputy's gun. The parties disagree about which happened first, but Nelson admits that he reached for Hudek's gun early in the struggle and that he also hit the deputy repeatedly, kicked him in the chest, and knocked him down twice, finally pushing him onto the floor of a closet.
The entire incident lasted less than three minutes and was over by the time other officers arrived. Nelson was taken to the hospital where seven staples were used to close a head 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. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (court can accept a guilty plea despite claim of innocence if there is strong evidence of actual guilt.) His plea agreement provided that a charge of obstructing 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 defendants. The § 1983 claim was dismissed for insufficient evidence that Hudek's actions were objectively unreasonable. The court also concluded that Hudek was entitled to official immunity on the battery claim under state law and that Nelson could therefore not assert vicarious liability against the county.
Nelson argues on appeal that both claims were improperly dismissed. He argues Deputy Hudek is not entitled to qualified immunity on his constitutional claim for excessive force 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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
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 material 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, depositions, or otherwise, showing the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Government officials performing discretionary tasks are entitled to qualified immunity unless their actions violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ("[W]hether an official 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, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"). The applicability of qualified immunity is a question of law, Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992), which should be decided at the "earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).
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's actions were objectively reasonable.
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 threatened as the situation spun out of control. When Hudek went into Nelson'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 initially attempted 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 arrest, Foster v. Metropolitan Airports Comm'n, 914 F.2d 1076, 1081 (8th Cir.1990), and that an officer may use deadly force when threatened with serious physical harm. Garner, 471 U.S. at 11, 105 S.Ct. 1694. Nelson's hostility and increasingly violent reaction gave Hudek reason to fear grave personal
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 judgment 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 omitted). Police officers are generally classified as discretionary officers who may be entitled to official immunity. Johnson v. Morris, 453 N.W.2d 31, 42 (Minn.1990). The key issue here is whether, viewing the facts in the light most favorable to Nelson, Hudek committed a willful or malicious wrong.
The Minnesota Supreme Court has indicated that willful and malicious are synonymous in the official immunity context and mean "nothing more than the 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 (Minn.1991) (citations and footnote omitted). This is a subjective standard, in contrast to the objective qualified immunity standard. See Elwood, 423 N.W.2d at 676-79 (declining to follow federal precedent which eliminated the subjective good faith component for immunity). Nelson has not produced any evidence to suggest that Hudek did not believe that his personal safety was in jeopardy or that he intended to violate Nelson's rights. On the basis of this record, Hudek is entitled to official immunity under state law and the county 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.
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