UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

“ The Fourth Amendment permits an officer to use deadly force only if there is “probable cause to believe that there [is] a threat of serious physical harm to [the officer] or to others." Estate of Larsen, 511 F.3d at 1260 (internal quotation marks omitted) . "A reasonable officer need not await the glint of steel before taking self-protective action; by then, it is often too late to take safety precautions." Id. (ellipsis and internal quotation marks omitted) . The four factors noted by the district court are quite significant. ”

“ Ordinarily, in order for the law 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 the law to be as the plaintiff maintains. ”

“ For Officer Pitzer to avoid liability, the district court seems to require that the officers have “attempt [ed] to resolve the situation verbally (as for example by calling into the residence directing the occupants to come outside) . . . ." Appellant’s App. at 211. This runs counter to the rule that " [t] he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." ”

“ Although I certainly agree with the majority that these two facts were important ones considered in Zuchel II, I disagree that they rendered all other facts and factors meaningless. In assessing danger to self and others, a reasonable officer and a reviewing court must account for far more than what's highlighted in the single sentence quoted from Walker. To determine if conduct is objectively reasonable, we consider all circumstances, not just two circumstances. See Estate of Larsen ex rel. ”

“ The district court correctly identified the Estate of Larsen factors as useful in determining whether Officer Pitzer was entitled to qualified immunity. Acknowledging that the four Larsen factors were "nonexclusive," the district court acknowledged that the factors seek to measure the danger presented by a knife-wielding person who is confronting officers. The district court considered the second factor as bearing on Tenorio's ability to harm others, and the other three factors as bearing on his intention to do so. ”

“ Tenorio walked forward into the living room at an "average" speed. Officer Pitzer saw the knife and yelled, "Sir, put the knife down! Put the knife down, please! Put the knife down! Put the knife down!" After Tenorio continued about two-and-a half-steps into the living room, Officer Pitzer fired his gun. At the same time, Officer Moore fired his Taser, also striking Tenorio. The shooting occurred less than four minutes after the officers arrived. ”

“ B. The Majority’s Analysis As I read the majority opinion, it refuses qualified immunity to any law-enforcement officer who shoots a knife-wielding suspect unless that person "charges" the officer and aggressively motions toward the officer with the knife. ”

“ Even so, our circuit uses a "sliding scale" system in which "the more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." ”

“ Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) ("We assess objective reasonableness 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.") (citation omitted) . Nothing in Walker deprives Officer Pitzer of summary judgment based on qualified immunity. To see why, we need look no further than our cases on point. ”

“ But because the record contained sufficient evidence (if a trier of fact believed it) to support a finding that the officer's conduct was not objectively reasonable, we affirmed the district court’s denial of summary judgment and remanded the case. Id. at 275–76; see also King v. Hill, __ F. App'x __, 2015 WL 3875551, at *5–6 (10th Cir. June 24, 2015) (unpublished) (affirming denial of summary judgment for qualified immunity to deputy in shooting after considering the facts in the light most favorable to the plaintiff and giving plaintiff all reasonable inferences) . ”

“ As its sole case supporting Tenorio’s alternate theory that " [Officer Pitzer] and the other officers recklessly and unreasonably created a situation giving rise to Defendant's resort to deadly force," the district court cited to Sevier, 60 F.3d 701 n.10. In Sevier, a father called police for assistance after seeing his son—despondent about troubles with his girlfriend—"sitting on the edge of his bed with a knife in his hand resting on his lap." ”

“ Offender is in the kitchen [with] the knife
[Caller] is in the living room
Male is still holding the knife in his hand
Male is waving knife around . . .
[Caller’s] sister and [caller] are in the living room
Offender and [caller’s] brother are in the kitchen
[Caller] is standing outside the [location] waiting for [officers] . . .
Id. at 73–74 (capitalization omitted) (items in brackets are spelled-out abbreviations or translations of police codes) .
The officers, all in uniform, arrived on the scene in separate vehicles within eight minutes of the original call. ”

“ No officer asked if Tenorio had taken hostages, and the district court found that Officer Pitzer, lacking any crisis-intervention training, "immediately" announced "going lethal." [4] Then, without announcing their presence as police officers, the officers lined up and entered the home through the open front door. Although Officer Moore was in charge, Officer Pitzer was first in line, followed by Officer Moore with a Taser, Officer Liccione with a handgun drawn, and Officer Hernandez with a shotgun loaded with beanbag rounds. ”

“ She said that she was afraid that Tenorio would hurt himself or his wife Michaele. Officers Moore, Hernandez, and Liccione were dispatched in response to the call, and Pitzer also responded. The 911 operator relayed some of the information provided by Ms. Valdez to the Albuquerque Police Department dispatcher, who relayed the following information to the officers:
Male [subject] Russell is [drunk] and [on scene]
[Subject] has a knife to his own throat . . .
[No injuries] at this time
Male has [vandalized] windows in the [location] . . .
Male has been violent in the past . . . ”

“ Importantly, we can see from this that more was involved in our denying Officer Spinharney summary judgment for qualified immunity than Zuchel's not charging him or making slashing or stabbing motions.
In Zuchel II, the plaintiffs (Zuchel’s parents) proceeded to trial on a municipal liability claim against Denver based on its deliberate indifference in inadequately training its officers. 997 F.2d at 733–35. To prevail, the plaintiffs needed to prove (among other things) that Officer Spinharney exceeded constitutional limitations in the use of deadly force. Id. ”