FILED

United States Court of Appeals

Tenth Circuit

January 2, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ESTATE OF LYLE EUGENE

LARSEN, by and through Florence

Sturdivan, personal representative,

Plaintiff-Appellant,

v. No. 06-1094

RANDY MURR, GERALD

WHITMAN, Chief of Police of the

City and County of Denver, and CITY

AND COUNTY OF DENVER,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 03-CV-2589-MSK(MEH))

Andrew B. Reid, Walter L. Gerash Law Firm, P.C., Denver, Colorado, for

Plaintiff-Appellant.

Thomas S. Rice (Brett A. McDaniel, Senter Goldfarb & Rice, L.L.C., and John

Eckhardt, Assistant City Attorney, Office of the Denver City Attorney, with him

on the brief), Senter Goldfarb & Rice, L.L.C., Denver, Colorado, for DefendantsAppellees.

Before MURPHY, HOLLOWAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.
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Responding to a 911 emergency call, a Denver police officer shot and

killed Lyle Eugene Larsen outside his home. Larsen’s next of kin brought a 42

U.S.C. § 1983 suit against (1) the officer for excessive force in violation of the

Fourth Amendment, and (2) the City and County of Denver and its police chief

regarding the City’s deadly force policy. The district court granted summary

judgment against Larsen’s Estate on all claims, and this appeal followed. 

Finding no constitutional violation, we AFFIRM the district court’s grant of

summary judgment. 

I. Background

After midnight on April 15, 2003, Lyle Larsen called 911 threatening to

“kill someone or himself.” Aplt. App. 124. Officers Randy Murr and David

Brase were dispatched to Larsen’s residence and arrived in separate vehicles. 

They parked on the street near the home and approached by foot from different

directions. The home had a front porch and a small front yard separated from the

street by a three- to four-foot high retaining wall. A concrete stairway of six

steps connected the yard to a sidewalk in front of Larsen’s house, with an iron

railing down the middle of the steps. Some shrubbery also sat atop the retaining

wall on one side of the stairs. 

As the officers approached the house, Larsen stood alone on the front

porch. In his hands, he held a large knife with a blade over one foot long. 
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Because of its size, Murr initially thought the knife was a pipe. Officer Brase,

who at first had a better angle, described the knife as looking like “a small

sword.” Supp. App. 20. As they neared Larsen, Brase warned Murr that Larsen

was armed, and both men drew their service pistols. Brase told Larsen in a loud

voice: “I’m Corporal Brase, the Denver police. I need you to put that knife down

right now.” Id. 

Larsen appeared to bend over, as if intending to place the knife on the

ground, but then straightened up with the weapon still in his hand. Although the

record is unclear as to the exact distance, Murr believed Larsen was within 7 to

12 feet. Larsen’s eyes became “the size of quarters.” Aplt. App. 86. Appearing

agitated, he raised the knife above his shoulder with the blade pointed outward

and turned towards Officer Murr. Brase heard Murr tell Larsen to “Drop the

knife, drop the knife, drop the [expletive] knife.” Supp. App. 22. A few seconds

later, Murr again told Larsen, “Drop the knife or I’ll shoot.” Aplt. App. 86. 

Larsen turned and took a step towards Murr, who was on the sidewalk below. 

Fearing for his life, Murr fired twice, hitting Larsen in the chest and killing him. 

Officer Brase held his fire during the encounter, but later stated that he too was

prepared to use force at the time of the shooting and was maneuvering into

position when Murr fired. 

No other eyewitnesses observed the shooting.
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II. Discussion

Appellant claims Officer Murr used excessive force during the encounter in

violation of the Fourth Amendment. It also claims the City and County of Denver

and the police chief failed to adequately train and supervise police officers

concerning the use of deadly force. The district court granted summary judgment

on all claims, finding Murr’s use of force was not unreasonable in the

circumstances. Absent an unreasonable use of force, the court determined the

officer was immune from suit on the basis of qualified immunity, and Appellant

had not shown a constitutional violation that would enable it to prevail on its

other claims.

A. Standard of Review

We review de novo a grant of summary judgment based on qualified

immunity. Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004). 

Summary judgment is appropriate if there is no genuine issue of material fact and

one party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). We

construe the record in the light most favorable to the nonmoving party. Jiron,

392 F.3d at 414. But the nonmoving party “must do more than simply show that

there is some metaphysical doubt as to the material facts. . . . Where the record

taken as a whole could not lead a rational trier of fact to find for the nonmoving

party, there is no ‘genuine issue for trial.’” Scott v. Harris, 127 S. Ct. 1769, 1776

(2007) (citations omitted).
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Reviewing summary judgment in the qualified immunity context involves a

two-part inquiry. Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007). 

First, the plaintiff must establish the defendant violated a constitutional right. If

no constitutional violation is established by the plaintiff’s allegations or the

record, our inquiry ends. But if a constitutional right was violated, we next ask if

the constitutional right was clearly established. To be clearly established, either

Supreme Court or Tenth Circuit precedent must be on point or the clearly

established weight of authority from other courts must agree with plaintiff’s

contention. Id. at 1114–15.

B. Fourth Amendment Violation

Appellant claims the officer’s use of deadly force violated the Fourth

Amendment. Our case law involving claims against police officers for the use of

excessive force provides the framework to assess the claim and the district court’s

grant of summary judgment.

1. Legal Framework

We treat excessive force claims as seizures subject to the reasonableness

requirement of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395

(1989). To establish a constitutional violation, the plaintiff must demonstrate the

force used was objectively unreasonable. Thus the “‘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.” Id. at 396. 
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Moreover, because “‘police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation,’

the reasonableness of the officer’s belief as to the appropriate level of force

should be judged from that on-scene perspective.” Saucier v. Katz, 533 U.S. 194,

205 (2001) (quoting Graham, 490 U.S. at 397). 

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.” Sevier v. City of Lawrence, 60 F.3d

695, 699 (10th Cir. 1995) (internal quote and alteration marks omitted). In this

case, Appellant’s claim of excessive force centers on whether Larsen posed an

immediate threat to the officers or the safety of others. See Jiron, 392 F.3d at

415. “Deadly force is justified under the Fourth Amendment if a reasonable

officer in Defendants’ position would have had probable cause to believe that

there was a threat of serious physical harm to themselves or to others.” Id. at 415

(quoting Sevier, 60 F.3d at 699) (emphasis supplied). Indeed, even “[i]f an

officer reasonably, but mistakenly, believed that a suspect was likely to fight back

. . . the officer would be justified in using more force than in fact was needed.” 

Id. (quoting Saucier, 533 U.S. at 205). A reasonable officer need not await the

“glint of steel” before taking self-protective action; by then, it is “often . . . too
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late to take safety precautions.” People v. Morales, 603 N.Y.S.2d 319, 320 (N.Y.

App. Div. 1993).

In assessing the degree of threat facing officers, then, we consider a

number of non-exclusive factors. These include (1) whether the officers ordered

the suspect to drop his weapon, and the suspect’s compliance with police

commands; (2) whether any hostile motions were made with the weapon towards

the officers; (3) the distance separating the officers and the suspect; and (4) the

manifest intentions of the suspect. See, e.g., Walker v. City of Orem, 451 F.3d

1139, 1159 (10th Cir. 2006); Jiron, 392 F.3d at 414–15; Zuchel v. Spinharney,

890 F.2d 273, 274 (10th Cir. 1989). 

But in the end the inquiry is always whether, from the perspective of a

reasonable officer on the scene, the totality of the circumstances justified the use

of force. See Sevier, 60 F.3d at 699.

2. Application

Applying these principles here, the district court did not err in granting

summary judgment. 

Based on the totality of the circumstances facing the responding officers, a

number of undisputed facts support the heightened immediacy of the threat they

faced and the objective reasonableness of the use of deadly force: (1) Larsen had

already threatened violence against himself and others; (2) the officers responded

to an emergency call late at night; (3) when the officers arrived, they encountered
1

 Denver’s use of force policy training manual instructs that knife-wielding

persons within 21 feet pose an “imminent threat” to officers based on the time in

which the distance can be closed in an attack. Aplt. App. 427.

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a man armed with a knife; (4) both officers repeatedly told Larsen to put down the

knife; (5) the knife was a large weapon with a blade over a foot in length rather

than a mere pocket knife or razor blade; (6) Larsen refused to cooperate with the

officers’ repeated orders to drop his weapon; (7) Larsen held the high ground visa-vis the officers; (8) Larsen raised the knife blade above his shoulder and

pointed the tip towards the officers; (9) Officer Brase was also prepared to use

force and was moving into position to be able to do so; (10) Larsen turned and

took a step toward Officer Murr; (11) the distance between Murr and Larsen at

the time of the shooting, though disputed, was somewhere between 7 and 20 feet.1

Examining the totality of the circumstances and the undisputed facts, we

agree with the district court that the officer’s use of deadly force was objectively

reasonable. This is a prototypical case where police officers were “forced to

make split-second judgments,” and even if Officer Murr’s assessment of the threat

was mistaken, it was not objectively unreasonable.

a. Alleged Disputes of Fact

The Appellant argues two genuine disputes of material fact preclude

summary judgment in this case. First, it argues Officer Murr provided

inconsistent testimony about the circumstances of the shooting, and second, the

distance separating Officer Murr from Larsen is subject to dispute. But the “mere
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existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Scott, 127 S. Ct. at 1776

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248 (1986)). 

Neither of the alleged disputes of fact is material to the totality of the

circumstances we considered above. 

Murr’s Testimony. Appellant suggests Officer Murr provided inconsistent

testimony immediately after the shooting and at a later deposition. Appellant

argues the discrepancies in Murr’s testimony create a genuine dispute regarding

whether Murr’s use of force was reasonable. At a debriefing interview the

morning of the shooting Murr told investigators, “Once he turned an’ pointed the

knife at me an’ faced me, I shot twice.” Aplt. App. 42–43. Later, during a

deposition, Murr testified that Larsen, after first appearing to comply with the

order to drop the knife, “stood back up with the knife in his right hand, raise[d]

the knife up past his chest above his shoulder, turned towards me looked at me

and took one step towards me.” Id. at 85. 

The debriefing interview statement is hardly inconsistent with Murr’s later

testimony that Larsen took a step toward him. For one thing, the deposition

testimony responded to detailed questions and painted a moment-by-moment

description of the shooting. The debriefing interview, in contrast, provided a
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broad brush review of the shooting, with the officer responding to open-ended

questions. Neither statement precludes the other. 

Both of Murr’s statements, moreover, are entirely consistent with the

contemporaneous statement of Officer Brase the morning of the shooting. Brase

said he “saw the blade come up again . . . an’ he [Larsen] turned towards

Corporal Murr. . . . And then I could see this movement going in that direction

. . . an’ then I heard two gunshots.” Id. at 45. Even if we could see a conflict

among these statements, a minor discrepancy does not amount to a dispute of

material fact for the jury precluding summary judgment. 

Distance from Larsen to Murr. Officer Murr testified the distance between

him and Larsen was between 7 and 10 feet, but Appellant points to a deposition

exhibit that suggests the distance might have been as far as 20 feet. Based on this

uncertainty, Appellant argues that taking the facts in the light most favorable to it,

the distance was so great that—as a matter of law—no reasonable officer would

have used deadly force.

In assessing objective reasonableness, we employ no bright line rules, and

in a totality of the circumstances analysis, distance is but one factor of many.

Our cases decline to adopt a per se rule where distance alone would create a fact

question as a matter of law. The district court considered distance in its totality

of the circumstances analysis, properly crediting the facts most favorable to
2

 For purposes of summary judgment, the district court accepted a range of

15 to 20 feet, a number advocated by Appellant based on a handwritten not-toscale drawing produced at Murr’s deposition. The outer range accepted by the

court is generous since the exhibit on which it is based shows Murr must have

been inside a light pole that a police drawing indicates was no further than 15 feet

from Larsen’s body. Aplt. App. 33–34. Appellant’s expert testified Murr was

likely within 18 feet. Id. at 136. Neither party presented scale drawings to the

district court.

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Appellant,2 and concluded the totality supported the use of force as a matter law. 

We agree.

Appellant relies on two cases involving fatal police shootings. These cases

illustrate why we consider the totality of the circumstances, but neither supports

the proposition that any particular distance makes the use of force unreasonable. 

In the first case, Zuchel v. Spinharney, 890 F.2d 273 (10th Cir. 1989), we

concluded summary judgment was improper where disputed facts called into

question the immediacy of the threat facing the officer. One witness, for

example, claimed that the distance between the officer and a knife-wielding

decedent was only three and a half feet. Id. at 275. But another witness testified

the officer and the decedent were 10 to 12 feet apart at the time of the shooting. 

Id. Other factual disputes involved whether the officers could reasonably think

the decedent was armed when he in fact was holding fingernail clippers, whether

the decedent had made a stabbing motion, and whether the officers had warned

the decedent to drop his weapon. Id.
3

 Other excessive force cases involving knife-wielding suspects have been

resolved on summary judgment. See, e.g., Jiron, 392 F.3d at 410; Romero v. Bd.

of County Comm’rs, 60 F.3d 702 (10th Cir. 1995). 

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In a second case, Walker v. City of Orem, 451 F.3d 1139, 1160 (10th Cir.

2006), we also found fact questions remained regarding the level of threat facing

officers responding to a knife-wielding suspect. One fact supporting the absence

of a threat was the distance of more than 21 feet between the officer and the

decedent. Id. at 1144–45, 1158. But the plaintiff also presented disputed

evidence that the scene was bright enough for officers to see clearly, that the

decedent’s weapon was a two-inch blade, which he was holding against his own

wrist, that the officers issued no warnings, that the decedent was not behaving

aggressively and was not facing the officers, and that officers knew the decedent

was suicidal but not homicidal. Id. at 1157–59.

In both Zuchel and Walker, the totality of the circumstances presented a

factual dispute about whether the officer reasonably perceived a threat. 

Eyewitnesses contested the degree of danger facing the officer at the time deadly

force was exercised. Admittedly, one of the disputed facts in Zuchel and Walker

involved the distance between the officer and the decedent, but while distance is

one factor in assessing the immediacy of threat, it is not the only one. In this

case, the question of distance is unpersuasive when we consider the other

undisputed facts in their totality.3
4

 Appellant raises several other minor points that we can quickly dismiss. 

Investigators determined after the shooting that Larsen had been drinking. But

Murr did not know that Larsen had been drinking, and Larsen’s behavior before

the shooting did not indicate he was drunk either to Murr or Brase. Nor does the

fact that Officer Brase held his fire provide any support for Appellant’s argument

that Murr’s actions were unreasonable. Larsen turned and moved toward Murr,

not Brase. And, in any event, Brase testified he too was moving into position to

shoot.

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b. Additional Circumstances

Appellant also argues the district court failed to adequately account for two

circumstances that minimized the threat Larsen presented.4

 It claims (1) a number

of barriers blocked the way between Larsen and Murr, and Murr therefore could

not reasonably have perceived a threat, and (2) Larsen’s physical behavior was

not sufficiently provocative to justify Murr’s use of force because he made no

lunging or stabbing motions. The facts underlying these arguments are not in

question: the physical characteristics of the scene are undisputed, and the

uncontradicted testimony regarding Larsen’s physical behavior is that Larsen

raised a knife above his shoulder and stepped toward Officer Murr. We think the

district court’s analysis adequately incorporated these circumstances in

concluding the totality of the circumstances justified the use of force. 

Barriers. Appellant argues force was unnecessary because of physical

barriers between Murr and Larsen, including a retaining wall, shrubbery, and an

iron railing down the middle of the front sidewalk stairs. These facts do not

create a jury issue. 
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It is undisputed Larsen occupied the high ground in the confrontation. In

this position, the stairs and the retaining wall support the officers’ objective

perception of a threat as much as they support a perception of increased

protection. Larsen could have easily used the retaining wall to his advantage. In

a situation where other circumstances indicated an attack was imminent, nothing

suggests a reasonable officer would hold his fire because the physical terrain

between him and the threat could either hinder or help an attack. And Murr’s

actions were justified if any mistake in his judgment regarding the relative

disadvantage of his position was reasonable. 

Movement. Finally, Appellant argues the absence of hostile motions made

it unreasonable for Murr to fire. It again points to Walker, where we held 

that where an officer had reason to believe that a suspect was only

holding a knife, not a gun, and the suspect was not charging the

officer and had made no slicing or stabbing motions toward him, that

it was unreasonable for the officer to use deadly force against the

suspect.

451 F.3d at 1160. But again the undisputed facts distinguish this case—Larsen

did make hostile actions toward Murr. The undisputed facts here show that

Larsen ignored at least four police commands to drop his weapon and then turned

and stepped toward the officer with a large knife raised in a provocative motion. 

Under these circumstances, Murr reasonably concluded Larsen posed an

immediate threat to his safety.

* * *
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For all these reasons, we agree with the district court that the use of deadly

force in these circumstances was objectively reasonable. The undisputed

evidence paints a picture that Officers Murr and Brase were faced with an armed

suspect in an agitated condition, who ignored repeated warnings to drop his

weapon, and appeared willing and able to attack. In response to these facts,

Appellant offers only speculation and conjecture for the jury, arguing that Murr

might have overreacted. That is insufficient to show a constitutional violation. 

In these circumstances, the district court did not err in granting summary

judgment based on qualified immunity.

C. Claims Against City and County of Denver

Appellant makes two claims against Denver and its police chief. First, it

alleges the City adopted an unconstitutional policy or practice on the use of

deadly force. Second, it claims the City failed to adequately train and supervise

police officers. 

A § 1983 suit against a municipality for the actions of its police officers

requires proof that (1) an officer committed a constitutional violation and (2) a

municipal policy or custom was the moving force behind the constitutional

deprivation that occurred. Jiron, 392 F.3d at 419. But without the predicate

constitutional harm inflicted by an officer, no municipal liability exists. Id.

(citing City of Los Angeles v. Heller, 475 U.S. 796 (1986)). Because no
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constitutional violation exists here, the district court properly granted summary

judgment on the claims against the City and County of Denver.

Appellant’s final claim argues the chief of police failed to train or

supervise Officer Murr appropriately. To make a prima facie claim for failure to

train or supervise in an excessive force case, a plaintiff must demonstrate the

officers in question “exceeded constitutional limitations on the use of force.” 

Carr v. Castle, 337 F.3d 1221, 1228 (10th Cir. 2003). Again, since no

constitutional violation occurred in this case, Appellant cannot proceed on this

claim.

III. Conclusion

We AFFIRM the district court’s summary judgment ruling in favor of the

defendants on all claims.