PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ELSA KARINA PALACIOS, as the personal representative of the Estate of Bernardo Palacios Carbajal, Plaintiff - Appellant,

v. OFFICER KEVIN FORTUNA, in an individual and offici al capacity; OFFICER NEIL IVERSEN, in an individual and official capacity; SALT LAKE CITY CORPORATION, Defendants - Appellees, and
SALT LAKE CITY POLICE DEPARTMENT; CHIEF MIKE BROWN, in an official capacity as police chief of the Salt Lake City Police Department, Defendants. No. 22-4025

________________ _________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:20-CV-00714-DBB)

________________ _________________ Caroline Anais Olsen, (Dick J. Baldwin of Zimmerman Booher, with her on the briefs), Salt Lake City, Utah, for Plaintiff - Appellant. Samantha J. Slark of Salt Lake City Corpor ation, Salt Lake City, Utah, for Defendants - Appellees. FILED United States Court of Appeals Tenth Circuit 

### March 7, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 12 ________________ ________________ Before McHUGH , KELLY , and EID , Circuit Judges.

________________ _________________ KELLY , Circuit Judge.

________________ _________________ Plaintiff-Appellant Elsa Kari na Palacios, personal repr esentative of the estate of the deceased, Bernardo Palacios Carb ajal, brought this action under 42 U.S.C. § 1983 against Defendants-Appe llees Salt Lake City Poli ce Officers Neil Iversen and Kevin Fortuna in their individual capacities, as well as Salt Lake City Corporation. 1 She alleged that the officers violated Mr . Palacios’ Fourth Amendment right to be free of excessive force when he was fatally shot during a police pursuit. The district court granted summary judgment on the basi s of qualified immunity in favor of Defendants, finding a lack of a constitutional violation a nd that Plaintiff failed to show a violation of clearly es tablished law. Palacios v. Salt Lake City Police Dep’t, No. 20-cv-00714, 2022 WL 605005 (D. Utah Mar. 1, 2022). 2 Because there was no constitutional violation, the district court dismissed the claims against the city and also dismissed state constitutional claims. On appeal, Plaintiff contends that disputes about mate rial and historical facts preclude summary judgment. Plaintiff argues th at (1) the officers’ initial use of force

1 Several other defendants we re previously dismissed. 4 Joint App. 19. These three defendants remain on appeal. 2 Before the district court, Plainti ff also brought a claim under the Utah Constitution. Plaintiff does not challenge the district court’s dism issal of that claim on appeal. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 23 was unreasonable under the to tality of the circumstan ces and (2) circumstances changed after Mr. Palacios fell onto his side during the shooting such that it was unreasonable to continue to fire. According to Plaintiff, the di strict court erred by not making reasonable factual inferences in Plaintiff’s fa vor, primarily that: (1) Mr. Palacios may have been unaware he was being pursued by police because officers did not verbally identify themselves, he was se verely intoxicated, a nd he did not match the full description of the r obbery suspect; (2) once Mr. Pa lacios fell onto his side during the shooting and did not point his gun at officers, he was effectively subdued; and (3) Mr. Palacios’ conduc t shows he was attempting to avoid confrontation, not evade arrest. Plaintiff also contends that officers exaggerated the seriousness of the offenses that precipitated th e pursuit and that officers shoul d have used less intrusive means of apprehension because Mr. Palacios did not pose an imminent threat. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Background This case concerns the trag ic death of Mr. Palacios in Salt Lake City, Utah, on May 23, 2020. The following facts are taken from the body cameras of four responding officers, a surveillance camera of the storage facility overlooking the area where two officers ultimately shot and k illed Mr. Palacios, audio from police radio dispatch, and officer declara tions and depositions. We re count the facts as shown by the video evidence, while making reasonable inferences in favor of the nonmovant where there is a genuine dispute. See Sc ott v. Harris, 550 U.S. 372, 380–81 (2007). Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 34 In the early morning hours (2:06 am) on May 23, 2020, a man called 911 and reported that a man just threatened him with a gun and told him to shut up at the Utah Village Motel when he was in Room 3. The Utah Village Motel is next to the Trails Gentleman’s Club, which had ju st closed for the night. 2 Joint App. 96. Dispatch broadcast a priority one cal l, the most serious gradi ng possible on the multi-level scale, 3 indicating the suspect fled in an unk nown direction and gave the description of the suspect that the caller had provided: Hispanic male, fi ve feet seven inches tall, in his 30s, wearing all black. Specific offi cers were dispatched , but because the call was priority one, other officers in the area were expected to re spond if they were available. 2 Joint App. 96. Officers Iversen and Kilgor e were dispatched and arri ved within minutes at the Utah Village Motel. 2 Joint App. 96. O fficer Iversen arrived first and waited for Officer Kilgore in his patrol car. 2 Joint App. 96–97. As he arrived, Officer Iversen noted that there were pedestrians in the ge neral area. 2 Joint Ap p. 134–35. Before Officer Iversen exited the ve hicle, he learned of a seco nd incident at the motel: a woman, in Room 15, said two men with a gun entered her room and threatened her. 2 Joint App. 96–97. Officer Iversen asked fo r a description of th e suspect. 2 Joint

3 The Salt Lake City police policy manual currently defines a priority one call as the following: “These are calls requiring immediate atte ntion. They include inprogress crimes, major crimes ju st occurred with a time laps e of five minutes or less for property crimes and fifteen minutes or less for crimes agai nst a person, and noncriminal situations of an em ergency nature.” Salt Lake City Police Dep’t, Salt Lake City Police Pol’y Manual 537 (Oct. 25, 2022), https://www.slcpd.com/ass3ts/uploads/ 2023/01/RELEASE_2022 1025_T142134_Salt _Lake_City_Police_Departme nt_Policy_Manual.pdf. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 45 App. 96–97. Dispatch stated the description was “definite ly Hispanic, but very light skinned,” but that the second caller disconnected before providing further description. Dispatch then added that th e first caller in Room 3 reported that the suspect had short, dark hair and repeated the description from the first caller. The second call was also broadcast as high priority, and dispat ch advised that “all units respond.” Officers Iversen and Kilgor e began walking around Utah Village Motel. Both officers saw a man (Mr. Palaci os) outside Room 15 of the motel. At the time, Mr. Palacios, a Hispanic male, was wearing jeans, a black shirt, a gray-black jacket, and a red bandana. 3 Joint App. 90 . The officers shone a flashlight on Mr. Palacios from some distance away and each shouted “Show us your hands!” one tim e. Mr. Palacios fled from the officers around the corner of the motel and down an alley. Officer Iversen began pursuit and shouted “Show me your hands!” two more times. Throughout the chase, Mr. Palacios ran past several blind corners. Another officer, Sergeant Schneider ar rived at the mote l in response to dispatch as Officer Iversen began his foot pursuit. Sergeant Schneider shouted “Drop it!” three times as Mr. Palacios and Officer Iversen ran by, and he joined the foot pursuit. Sergeant Schneider was some distan ce behind Officer Iversen, about five or six seconds behind him at the start of the chase. During the start of the pursuit, Sergeant Schneider radioed that Mr. Pala cios had something in his pocket, and thereafter that Mr. Palacios had a gun and ha d reached into his waistband. He later testified that he was “fairly certain” Mr. Palacios had a gun. He did not know if Mr. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 56 Palacios maintained possession of the gun af ter he rounded the co rner. 2 Joint App.
169–70. When Mr. Palacios ran out from the alle y and across the str eet, he fell to the ground. While running across the street be hind Mr. Palacios, Officer Iversen yelled “Drop it!” four times and “Show me your hands!” three times before stopping, remaining in the street. He appears to be a few yards away fro m Mr. Palacios. Mr. Palacios got up with an object in his ha nd and took a few steps away from Officer Iversen, then fell again. He reached out to pick up an object — and it is unclear from the videos what it is — as he got up again. He took a fe w more steps and fell a third time off the curb into the park ing lot of Granary Storage. Officer Iversen also moved closer, now onto the sidewalk outside Granary Storage. Officer Iversen woul d later testify that he was 99% sure that the object was a gun, based on the sound it made when Mr. Palacios dropped it and because he was responding to a suspect who threatened seve ral people with a gun. 2 Joint App. 131– 32, 133. When Mr. Palacios fell the third time, Officer Iversen c ould clearly see that he had a gun. Id. at 133. Officer Fortuna was in the area and h eard the dispatch reports of multiple threats with a gun, and that Officer Iversen was engaged in foot pursuit. Right before Mr. Palacios fell the third time, Officer Fo rtuna arrived at the scene with sirens and lights on. He shouted “Drop it! ” five times as he joined Officer Iversen, now both on the sidewalk outside Granary Storage. By this time, Mr. Palacios had been told to drop it or show his hands at least eighteen times by four diffe rent officers. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 67 As Mr. Palacios got up a third time, he reached again for the object, fumbled it, and then picked it up as he continued to flee. It is visibly a gun, and Officers Iversen and Fortuna each testified that they clearly saw the gun. 2 Joint App. 133, 210. Officers Iversen and Fortuna were on the sidewalk outside of Granary Storage with guns raised at Mr. Palaci os. They appear to be a bout 15 feet away from him. See 2 Joint App. 137, 214. Sergeant Sc hneider was in the street behind Officer Iversen and approaching the other two offi cers. Approaching the scene next to Officer Fortuna’s parked car, Sergeant Schneider yelled “Tas e him! Tase him! Tase him!” Sergeant Schneider later testified th at he could not see what the officers saw (because he was at least 10 yards behind th em), and yelled “Tase him!” because Mr. Palacios may have been separated from th e gun while running. 2 Joint App. 171. After Mr. Palacios picked up the object on the ground and took two or three steps away from the o fficers, bringing the gun he just picked up to the front of him with his right arm, Officers Iversen and Fo rtuna opened fire. They fired continuously for about eight to ten seconds, and the last shot came one second after the rest. Officer Fortuna appeared to fi re first, and Officer Iverse n fired at nearly the same time. 2 Joint App. 134, 211. When shots were fired, Mr. Palacios had his back to the officers. Sergeant Schneider ca ught up with the other office rs as they began to fire. After several shots, Mr. Palacios fell to the ground and landed on his right side. What happened next is the subject of dispute. Officer Iv ersen’s and Fortuna’s body cameras, which are closer to their perspective, reco rded video clearly showing Mr. Palacios continuing to move his legs as he rolled onto hi s back. As he rolled, his Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 78 arms were also moving and he brought his hands near his waistband. During this time, Sergeant Schneider yelled “Alright ! Alright! Alright!” Sergeant Schneider drew his gun, but did not fire, and was movi ng to the right of Officers Iversen and Fortuna around Mr. Palacios. The parties disagree as to what Mr. Pa lacios was doing with his hands after he fell to the ground. Plain tiff speculates he was attempting to surrender or cover a wound. Aplt. Br. at 38, 41, 44–45. De fendants contend that the videos show Mr. Palacios pointing the gun in a ready position at Officers Iversen and Fortuna as he rolled onto his back. Aplee. Br. at 14–15, 36–37, 40 (citing both officers’ body camera videos and the surveillance footage from Granary Storage) ; 2 Joint App. 138– 39; see also id. 216. What is clear from the videos, is th at prior to any shots being fired Mr. Palacios fell and picked up his gun in his ri ght hand. After officers began shooting and Mr. Palacios fell onto his right side, he immediately began moving his legs and bringing his arms and hands to the front of his body as he rolled over. Although Plaintiff contends that ther e was a pause or time to stop shooting, the video evidence is directly contrary: Mr. Pala cios is not immobile after he falls to the ground and just prior, he picked up his gun for the third time. Plaintiff asserts that Mr. Palacios did not point his gun directly at the officers and was not making a threatening motion. The district court re jected Plaintiff’s contention that Mr. Palacios rolled over and was using his hands to protect himself or surrender, finding that “the vide os taken together . . . conf irm that Mr. Palacios had a Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 89 gun in his hand, pointed toward the officers . . . .” 4 Jo int App. 42–43. We do not think that either characterization is defini tively supported by the video evidence. It simply is unclear exactly wh at motion Mr. Palacios made. But even if Mr. Palacios was not pointing his gun directly at the officers (and even assuming he intended to surrender or cover a wound), su ch a dispute is not material . We have held that a mistaken belief does not def eat qualified immunity so l ong as it is reasonable. Thomas v. Durastanti, 607 F.3d 655, 666 (10th Cir. 2010). Officers Iversen and Fortuna together fired over 30 rou nds. At that point, the officers stopped shooting a nd resumed shouts of “Show us your hands!” and “Drop it!” Mr. Palacios did not appear to be mo ving. Several other officers arrived on the scene, for a total of six officers. Serg eant Schneider radioed in for medical help, informing that the suspect wa s down. Officer Southworth is one of the officers who arrived later and he appro ached Mr. Palacios on the gr ound first. From Officer Southworth’s body camera, a gun is clearly vi sible on Mr. Palacios ’ left hip, outside of his pants, as he lay on his back. O fficer Southworth kicked the gun away, and another officer kicked it further. 4 Mr. Palacios was pronounced dead at the scene. 3

4 About five minutes after the shooting ended, dispatch reported that a third caller had been robbed in the area by tw o men who put a gun to his head. This victim’s wallet was recovered from Mr. Pala cios. 2 Joint App. 30. We note that although this robbery happened before the ot her two incidents, the victim was unable to call 911 to report the crime until he f ound someone willing to let him use their phone. 2 Joint App. 29. Thus, this info rmation was unavailable to Officer Iversen prior to beginning his pursuit and unavailable to Officer Fortuna prior to arriving at the scene. See 2 Joint App. 38–40. We th erefore do not consider this third incident or the recovery of the wallet from Mr. Palaci os as part of the re asonableness analysis Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 910 Joint App. 88.
Discussion We review the district court’s grant of summary judgment de novo. Lance v. Morris, 985 F.3d 787, 793 (10th Cir. 2021). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A di sputed fact is ‘material’ if it might affect the outcome of the suit unde r the governing law . . . .” Est. of Beauford v. Mesa Cnty., 35 F.4th 1248, 1261 (10th Cir. 2022). On summary judgment, we “construe the facts in the lig ht most favorable to the nonmovant and . . . draw all reasonable inferences in its fa vor.” Id. In qualified immunity cases, this generally means adopting the plaintiff’s ve rsion of the facts; however, “[w]e do not have to accept versions of the facts contradicted by objec tive evidence, such as video surveillance footage.” Id. at 1261, 1267. Officers are entitled to qua lified immunity unless they “(1) violated a federal statutory or constitutiona l right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of Columbia v. Wes by, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U. S. 658, 664 (2012)). When a defendant asserts qualified immunity at the summary judgment stage, the plaintiff bears the burden on both questions. Est. of Beauford, 35 F.4th at 1261. We may address the two qualified immunity questions in either order. Pearson v. Callahan, 555 U.S. 223,

leading to either officer’s d ecision to use deadly force. See Est. of Taylor v. Salt Lake City, 16 F.4th 744, 748 n.1 (10th Cir. 2021). Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1011 236 (2009).
A. Constitutional Violation “[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amen dment.” Reavis Est. of Coale v. Frost, 967 F.3d 978, 985 (10th Cir. 2 020) (quoting Tennessee v. Garn er, 471 U.S. 1, 7 (1985)). Here, deadly force was used to apprehend Mr. Palacios. Therefore, the inquiry is: “[W]hether the officers’ actions are ‘objectiv ely reasonable’ in light of the facts and circumstances confronting them, without regard to their underl ying intent or motivation.” Id. (quoting Graham v. Conno r, 490 U.S. 386, 397 (1989)). Reasonableness is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 49 0 U.S. at 396. “Courts are particularly deferential to the split-second decisions police must make in de termining precisely when a deadly threat has passed.” Est. of Smart by Smart v. C ity of Wichita, 951 F.3d 1161, 1177 (10th Cir. 2020). Even a mistaken view of the facts does not preclude a finding that an officer acted reasonably. Thomas, 607 F.3d at 666. To determine whether an o fficer acted reasonably, we co nsider the totality of the circumstances. Est. of Valverde by and thro ugh Padilla v. Dodge, 967 F.3d 1049, 1060 (10th Cir. 2020). In Graham v. Connor, th e Supreme Court outlined three factors to consider: (1) “the severity of the crime at issue;” (2) “whether the suspect poses an immediate threat to the safety of the officers or others;” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396. The second factor is generally the most important to de termine whether an officer acted reasonably. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1112 Valverde, 967 F.3d at 1060 –61. The Graham factors are nonexclusive and not dispositive; the inquiry rema ins focused on the totality of the circumstances. Id.
1. Factor 1: Severity of the Crime at Issue When the crime at is sue is a felony, regardless of whether the felony is violent or nonviolent, the crime is c onsidered to have a high degr ee of severity which weighs against the plaintiff. Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1170 (10th Cir. 2021). Here, dispatch classified the ca ll as priority one, the most serious level possible on the multi-level sc ale. The first caller, fro m Room 3 at the motel, described one male who threat ened him with a gun as an a dult, Hispanic male about five foot seven, in his 30s, wearing all bl ack. The second caller, from Room 15 at the motel, reported that two men entered her room with a gun, describing one of them as Hispanic and lighter-skinned, but disconnect ed before describing the second man. When Officer Iversen shone hi s flashlight at Mr. Palacios , Mr. Palacios was outside of Room 15. This was minutes after the threat in Room 15 was reported. Officer Fortuna also understood he was responding to reports of multip le threats that involved a gun. Plaintiff does not challenge these facts, but in reply argues that officers exaggerated the seriousness of the crimes at issue. Aplt. Reply Br. at 4–5. Under Utah law, burglary and aggr avated burglary are felony o ffenses and include entering or remaining unlawfully in a building with in tent to commit theft, an assault, or other felony. Utah Code § 76-6-2 02 to 203. Aggravated bur glary is doing so with a Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1213 dangerous weapon, including a gun. Id . § 76-6-203; id. § 76-1-101.5(7). 5 Even considering only the second caller’s descrip tion of events, the crime at issue is potentially a serious, violent fe lony involving direct threats to others. Mr. Palacios was seen by Officer Iversen outside of R oom 15, where the second call had come from, and he fit at least so me of the general descripti on of one of the men and no description was given of the other. The first call was al so termed priority one, the most serious level possible. Officers Iversen and Kilgore directed him to show his hands, and he turned and fled. Thus, this factor weighs in favor of Defendants.
2. Factor 3: Actively Resisting or Attempting to Evade Arrest Turning to the third Gr aham factor, Mr. Palacios fled after being told to show his hands. Plaintiff argues that Mr. Palacios did not know that he was being pursued, at least initially, by police because they did not verbally identify themselves and that a jury could conclude that officers were at least partly resp onsible for his flight. Aplt. Br. at 28, 32. An officer’s merely negligen t conduct is not actionable un der § 1983, the officer must have acted recklessly or deliberately. Sevier v. City of Lawrence , 60 F.3d 695, 699 & n.7 (10th Cir. 1995). A suspect’s subjective know ledge of whether he is encountering police is not relevant to the inquiry, but rath er the question is whether “an objectively reasonabl[e] officer could conclude, based on the facts and circumstances surrounding the situation,” that the suspect knew that he wa s being pursued by the police. Emmett v. Armstrong, 973 F.3d 1127, 1133 (10th Cir. 2020).

5 Utah law also defines r obbery and aggravated robbery as felonies, which may also apply. Utah Code § 76-6-301 to 302. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1314 Here, though neither officer verbally identified themselv es as police officers, they were in police uniforms when O fficer Iversen shone a flashlight on Mr. Palacios. He and Officer Kilgore both shouted “Show me your ha nds!” It is unclear if either officer’s marked patrol car was visible to Mr. Palaci os. Then, Mr. Palacios fled while Officer Iversen pursued him. Sergeant Schneider arri ved, got out of his car, and also shouted “Drop it!” As Mr. Palacios continued down the alley and out across the street, Officer Iversen again gave commands to “Drop it!” Officer Fortuna arrived with lights and sirens on in a marked patrol car. As Mr. Pa lacios fell for the third time, Officer Fortuna exited his car and also yelled “Drop it!” five ti mes, yet Mr. Palacios picked his gun back up. Before either officer fired, Mr. Palacios had been told to drop it or show his hands repeatedly, consistent with law enforcemen t instruction. An objectively reasonable officer under the circumstances would believe Mr. Palacios knew he was being pursued by the police. Officers Iversen and Fortun a did not act recklessly by not verbally identifying themselves. Plaintiff makes two additional arguments: that a reasonable officer (1) would have realized Mr. Palacios did not match the descri ption of the robber and thus would not have anticipated that officers would be looking for him, Aplt. Re ply Br. at 17; and (2) would have taken Mr. Palacios’ intoxi cation and “obvious panic” into account to realize he did not know police were chasing hi m. Id. Mr. Palacios was not an exact match to either description that had been reported, but a fu ll description was not given by the second caller from Room 15. And, he was seen outsi de Room 15, where the most recent threat with a gun occurred, right after the caller re ported it, and fled when asked to show his Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1415 hands. Given his location and that he was al so at least partially consistent with the witness’ description, a reasonable officer would not immediately dismiss him as a suspect. See Est. of Taylor v. Salt Lake Ci ty, 16 F.4th 744, 773 (10th Cir. 2021) (noting that a report of flashing a gun, even if a low le vel of threat or even if not a crime at all, does not mean a reasonable officer is require d to drive away and not engage a suspect). Second, tripping or stumbling while ru nning is not necessarily indicative of intoxication, and even if it wa s, that does not mean that M r. Palacios would be unaware it was police officers chasing him. 6 See Coronado v. Olsen, No. 20-4118, 2022 WL 152124, at *4 (10th Cir. Jan. 18, 2022) (unpub lished). Furthermore, even if officers could perceive a suspect was intoxicated, “a reasonable police officer would understand [the suspect] still posed a substantial and im mediate threat” and that the suspect can be more unpredictable. Id. Particularly so he re, when Mr. Palacios was suspected of just threatening multiple individuals with a gun despite being intoxicated. Lastly, Plaintiff argues that Mr. Palacios ’ actions overall are indicative of someone “attempt[ing] to avoid confr ontation with unknown persons,” and not to evade arrest. Aplt. Reply Br. at 15. First, any suspect flee ing from the police could be characterized as “attempting to avoid confrontation.” Second , as described above, it was reasonable under the circumstances for Officers Iversen and Fort una to conclude that Mr. Palacios knew he was being confronted by the police. Thus, th is factor weighs in favor of Defendants.

6 To the extent Plaintiff argues that Mr. Palacios’ int oxication was obvious because his blood alcohol content was 0.192, th is fact was unavailable to the officers prior to pursuing him. Aplt. Reply Br. at 6–7; 3 Joint App. 88. Thus, it is irrelevant to the inquiry. See Tayl or, 16 F.4th at 748 n.1. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1516 3. Factor 2: Immediate Threat to the Officers or Others To determine whether there was an immediate threat to the officers or to others, we consider the four nonexhaustive Larsen factors. Est. of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) . These factors are (1) whether the suspect was given orders and the suspect’s complian ce with the orders; (2) whether any hostile motions were made toward the officers; (3) the physical distance between the officers and the suspec t; and (4) the manifest intentions of the suspect. Id.

a. Ordered to Drop Weap on and Compliance If a suspect was given orders and did not comply, this weighs in the officers’ favor. See id. Here, Mr. Palacios was ordered to “drop it” or show his hands by four different officers (Iversen, Kilgore, Fortuna, and Sergeant Schneider) at least eighteen times before deadly force was used. He did ne ither. Plaintiff argues that deadly force is only reasonable when warning has been given, and that officers failed to warn Mr. Palacios before they op ened fire despite it being feasible to do so. Aplt. Br. at 24. However, Mr. Palacios received many ve rbal commands and wa rnings to drop his weapon and had at least three clear oppor tunities to do so, instead maintaining possession. For example, Officer Fortuna sh outed “Drop the gun!” and “Drop it!” five times, and then Mr. Palacios pi cked up the gun. These warn ings were given about four seconds prior to opening fire and when the gun was out of Mr. Pa lacios’ possession, yet Mr. Palacios picked up the gun again. Th us, this is not a case where Mr. Palacios received no warning or had no opportunity to comply. This court has held the warning Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1617 does not need to be specifically that officers are about to open fire. See Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1318–19 (10th Ci r. 2009). Here, Mr. Palacios was given many warnings over the course of the pursu it and not only ignored them, but also kept picking up his gun. This factor weighs in favor of Defendants.
b. Hostile Motions Made “Toward the Officers”
Plaintiff argues that the danger to offi cers must be presen t at the precise moment force is used. See Sevier, 60 F.3d at 699. And, that when the officers began to fire, Mr. Palacios was not a threat be cause he was facing away from them and not pointing a weapon at them. Aplt. Br. at 24, 33. Plaintiff conte nds that because Mr. Palacios did not make a threat directly to wards police, such as not ambushing Officer Iversen and not pointing the gun at officers, 7 he took no hostile acti on. First, simply because a suspect has not yet fired a weapon does not mean that he will not do so in the future, particularly when intentionally keeping his gun with him. See Valverde, 967 F.3d at 1062. Second, Mr. Palacios ha d been warned, repeatedly, to drop the gun. The videos show that Mr. Palacios brought his hands to the front of his body immediately after both Officer Iversen a nd Officer Fortuna watched him pick up a gun for the third time, and immediately af ter several warnings to “Drop it” were again given. And, from Officer Southwor th’s body camera, the gun was found on top Mr. Palacios’ left hip, outside the waistb and. Before firing, a reasonable officer

7 It is undisputed that Mr. Palacios did not point a gun at Officer Iversen during the chase prior to reaching the Granary Storage parking lot. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1718 would not only know that Mr. Palacios had possession of a gun, but also that it was out, that Mr. Palacios affirmatively kept it with him despite warn ings otherwise, and that he was suspected of having just used it to threaten at least two people. “Perhaps a suspect is just pulling out a w eapon to discard it rather than to fire it. But waiting to find out what the susp ect planned to do with the weapon could be suicidal.” Id. Here, a re asonable officer would not cons ider that Mr. Palacios was going to discard his weapon, given that he picked it up three times. In Taylor, the court concluded the officer ha d a split second to decide, wh en it was unclear what the suspect was doing with his ha nds, if the suspect was atte mpting to draw or use a weapon. Taylor, 16 F.4th at 770 & n.10. The court reasoned when the suspect previously was noncompliant with office r commands, the undisputed facts did not reasonably suggest that the suspect abruptly decided to become compliant. Id. There, the suspect turned out to be unarmed, but the o fficer’s actions were still objectively reasonable. Id. at 766–67. An officer can act reasonably even with a mistaken view of the facts. See id. at 765. Here, a reasonable officer would see a suspect who just picked up his gun and brou ght it in front of him, ignoring officer commands, as making a hostile motion. This factor weighs in fa vor of Defendants.

c. Distance Between Officers and Mr. Palacios In Larsen, this court found that a dist ance between 7 and 20 feet heightened the immediacy of the danger and supported a finding of objec tive reasonableness of the use of deadly force. Larsen, 511 F.3d at 1260–61. Further, this court in Taylor found that a distance of 10 to 20 feet, particularly wher e the officer was exposed and lacked cover, Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1819 supported the objective reasonableness of dead ly force. 16 F.4th at 769–70. Here, the videos show that Officers Iversen and Fortun a were close to Mr. Palacios when they opened fire and each testified that the distance was about 15 to 20 feet. The officers were without cover, while Mr. Palacios was headed in the direction of the storage facility which had more cover. 2 Joint App. 213. Pl aintiff does not argue to the contrary. Thus, the distance between the officers and Mr. Pa lacios weighs in favor of Defendants.
d. Manifest Intentions of Mr. Palacios Plaintiff makes no direct argument regard ing this Larsen factor, but speculates throughout that Mr. Palacios intended to av oid confrontation, supported by the fact he never directly threatened the officers or stopped to ambush Officer Iversen when the opportunity presented itself. S ee Aplt. Br. at 23–24. Howe ver, the inquiry is not what Mr. Palacios subjectively intended, but how a “reasonable officer on the scene would have assessed the manifest indicators of [Mr. Palacios’] intentions.” Taylor, 16 F.4th at 770. Considering Mr. Palacios’ conduct, he (1) was discovered outs ide the room where, minutes earlier, two men threatened the occupant with a gun; (2) fled police when asked to show his hands; (3) continued to ignore repeated warnings from multiple officers; and (4) while running, had at leas t three clear opportunities to leave his gun and instead continued to pick it up and maintain it in his hand. As described above, a reasonable officer in Officer Iversen’s and Officer Fo rtuna’s positions would conclude that Mr. Palacios made hostile gestures and manifested a hostile intent. In sum, the second Graham factor, immedi ate threat to officers or others, weighs in favor of Defendants. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 1920 4. Totality of the Circumstances The Graham factors are nonexhaustive and the test is not mechanical. See Graham, 490 U.S. at 396. While the prec eding discussion shows that the factors weigh in favor of Defendants, Plaintif f makes several arguments regarding the totality of the circumstances and that ove rall the district court failed to draw reasonable inferences in her favor. She c ontends the district court erred by (1) not considering that Mr. Palacios was intoxicat ed and less able to engage in “lethal confrontation,” Aplt. Br. at 24–25; (2) that circumstances change d after Mr. Palacios fell to the ground such that it became objectively unreasona ble to continue shooting, Aplt. Br. at 40–44; and (3) there were less intrusive means available, as suggested by Sergeant Schneider to “Tase him!” despit e Sergeant Schneider’s belief that Mr. Palacios had a gun, and at leas t one opportunity to tase Mr. Palacios, Aplt. Br. at 25. First, as described previ ously, intoxication does not ma ke a person less able to engage in confrontation and in fact can increase unpredictable behavior. Next, Plaintiff argues that officers had enough time (three seconds) to stop shooting when Mr. Palacios fell onto his side after the first shots were fired, before rolling onto his back. Aplt. Br. at 37. She argues the di strict court erred by not drawing reasonable inferences in her favor, such as that it is unclear what Mr. Palacios was doing with his hands while on the ground and Sergeant Sc hneider’s shouts of “A lright!” indicate the officers should have stopped s hooting. Aplt. Br. at 37–40. First, Sergeant Schneider was behind O fficers Iversen and Fortuna when they initially began to fire such that he did not have the sa me perspective. 2 Joint App. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 2021 164, 171–72. He was not facing Mr. Palacios squarely, but moving to the right. Second, he shouted “Alright!” to attemp t to recenter the ot her two officers and potentially get them out of tunnel vision, if they were experiencing that. 2 Joint App. 163. Sergeant Schneider testified that it was not a command, an d he was not telling them to stop shooting and only wanted to assi st if he could. Id . Sergeant Schneider’s perspective is not categorica lly irrelevant but because he was not in the same position as the officers who fired a nd did not observe the same circumstances, his choices do not inform what a reasonabl e officer in Officer Iverse n’s and Officer Fortuna’s positions would see and do. S ee Valverde, 967 F.3d at 1065. While it is possible that an initial reasonable decision to use deadly force may become unreasonable later, these facts do not support that conclusion. See Smart, 951 F.3d at 1177–78; cf. Pe rea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016). The mere fact that a suspect ha s fallen does not mean it is unreasonable to continue to fire. Smart, 951 F.3d at 1176. Plaintiff maintains there is a genuine dispute of material fact on whether Mr. Palacios wa s surrendering once he was on the ground. It is unclear the exact motion that Mr. Pala cios made, however, this is immaterial. The clear video evidence shows that as Mr. Pa lacios fell to the gr ound, he then began to roll over and move his hands near his wa ist. Plaintiff concedes that it is undisputed that he is movi ng. Aplt. Br. at 37–38. A reasonable officer would not perceive that the threat had ended and that Mr. Pala cios was effectively subdued merely because he fell, given that he re peatedly maintained possession of a gun. Even if Officers Iversen and Fortuna were mistaken as to wh at Mr. Palacios was Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 2122 doing, it is not unreasonable to conclude th at hand motions near the waist, as he rolled over, could indicate that Mr. Palacios was preparing to shoot. Mr. Palacios still had possession of his gun and was not immobile, thus a changed circumstances analysis is inapplicable. Plaintiff’s third argument is that officers could have used a taser, supported by Sergeant Schneider’s suggestion to tase Mr. Palacios. Ag ain, Sergeant Schneider was behind and to the right of Officers Iversen and Fortuna, at least 10 or 15 yards away, when he yelled to tase Mr. Palacios, and testified he c ould not see 100% of what Mr. Palacios was doing. 2 Joint App. 164, 171. Thus, his suggestion does not mean that it was unreasonable for Officers Iversen and Fo rtuna to use deadly force. Moreover, the least intrusive or rest rictive means possible are not required, only reasonable means. Taylor, 16 F.4th at 773. Plaintiff also argues that the lo cation of the shooting would allow a jury to conclude that it was unreasonable to use deadly force because pedestrians may have been in the area and bullets were found in a surrounding building. Aplt. Br. at 28. The test fo r reasonableness accounts for the fact that officers are often “forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.” Grah am, 490 U.S. at 396–97. To be clear, pursuing a fleeing felon does not automatically mean that a decision to use deadly force is objectively reasonable. S ee Garner, 471 U.S. at 11. Rather, under the totality of circumstances, here a reasonable officer would know that Mr. Palacios was suspected of involvement in two violen t felonies where bystanders were threatened with a gun, fl ed police, continually ignore d warnings to drop his gun, Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 2223 was running around corners where it was possible to ambush officers, had his gun out, and picked up his gun repeatedly after being told to drop it. Thus, under the totality of the circumstances it was reasona ble for the officers to use deadly force.

5. Harmening Declaration Lastly, Plaintiff argues the declaration of her expert witness, Mr. William Harmening, who served as a law enforcement officer for 37 years and as a police instructor, was erroneously di sregarded by the district cour t. Aplt. Br. 29–31, 48–49; see Cavanaugh v. Woods Cro ss City, 718 F.3d 1244, 1250 (10th Cir. 2013). Before the district court, Plainti ff conceded some of Mr. Ha rmening’s statements were impermissible and properly excluded. 4 Join t App. 29. Plaintiff now primarily relies on Mr. Harmening’s opinion that a reasona ble officer would have interpreted Mr. Palacios’ movement on the ground as a gest ure of surrender or se lf-defense. Aplt. Br. at 48–49. Plaintiff also argues that Mr. Harmening’s opinions as to how officers should have interpreted Mr. Pa lacios’ actions show there is a genuine factual dispute, i.e., that Mr. Palacios never pointed the gun at the officers while running means that he did not intend to use his weapon; and, that a reasonable officer would have understood that a taser could have been used under the ci rcumstances. Id. at 30. Mr. Harmening’s declaration is irrelevant because the only question before this court is the objective legal question of whether the officers acted reasonably under the totality of the circumstances. The uni verse of undisputed fa cts to consider on summary judgment excludes ch aracterizations of facts and legal arguments. See Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 2324 Taylor, 16 F.4th at 759 n.7. Plaintiff’s argument that Mr. Harmening’s declaration shows there are different fact ual inferences to be drawn from the videos, thus there are material disputed facts, is misplaced. We have re viewed the video evidence in this case extensively and ma de reasonable factual infere nces in Plaintiff’s favor where not contradicted by video evidence. Although tragic, these facts do not rise to a constitutional violation. Moreover, to th e extent Mr. Harmening opined about what an officer could have concluded or othe rwise done under these circumstances based on his years of experience, this is exactly the type of hinds ight analysis that we are reluctant to conduct. See Valverde, 967 F.3d at 1065 (finding plaintiff’s policepractices expert’s affidavit unpersuasive b ecause it did not addre ss the situation from the officer’s perspective, which required a split-second judgment); see also Thomson, 584 F.3d at 1321 (concluding same). An officer’s belief need not be correct, so long as it is re asonable. Taylor, 16 F.4th at 765. And, officers are not required to “await the g lint of steel” before taking protective action. Valverde, 967 F.3d at 1063 (quoting Larsen, 511 F.3d at 1260). The question is only whether it is objectiv ely reasonable for an officer under the totality of the circumstances to use d eadly force. We find that there was no constitutional violation.
B. Clearly Established Law Having determined that ther e is no constitutional violati on, it is unnecessary to consider whether the law was clearly estab lished at the time of the incident. See Pearson, 555 U.S. at 236. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 2425 C. Claim Against Salt La ke City Corporation Because there is no constitutional violati on, the district c ourt properly found that Plaintiff’s claim agains t Salt Lake City Corporation fails. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978).
AFFIRMED. Appellate Case: 22-4025 Document: 010110822620 Date Filed: 03/07/2023 Page: 25