PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

RUSSELL TENORIO,

 Plaintiff - Appellee,

v.

BRIAN PITZER,

 Defendant – Appellant,

and

RAYMOND D. SCHULTZ, THE CITY 

OF ALBUQUERQUE; ROBERT 

LICCIONE; ANDREA ORTIZ,

 Defendants.

No. 14-2114

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW MEXICO 

(D.C. No. 1:12-CV-01295-MCA-KBM)

 

Stephanie M. Griffin, Assistant City Attorney, Albuquerque, New Mexico, for Defendant 

- Appellant. 

Katherine Wray (Rachel E. Higgins and Kari T. Morrissey, with her on the brief), 

Albuquerque, New Mexico, for Plaintiff - Appellee. 

 

Before TYMKOVICH, Chief Judge, HARTZ, and PHILLIPS, Circuit Judges. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 6, 2015

Elisabeth A. Shumaker 

Clerk of Court

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HARTZ, Circuit Judge. 

 

Albuquerque Police Officer Brian Pitzer shot Russell Tenorio when responding 

to an emergency call. Tenorio sued Pitzer in the United States District Court for the 

District of New Mexico under 42 U.S.C. § 1983, asserting that Pitzer violated his 

Fourth Amendment rights by using excessive force. The district court denied Pitzer’s 

motion for summary judgment, concluding that there was evidence that Pitzer violated 

clearly established law under two theories: (1) when Pitzer shot Tenorio he “did not 

have probable cause to believe that [Tenorio] presented a threat of serious physical 

harm to [Pitzer] or another person,” Aplt. App. at 208, and (2) Pitzer and his fellow 

officers recklessly created the situation that resulted in the use of deadly force. Pitzer 

appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm the denial of 

summary judgment because the evidence would support a violation of clearly 

established law under the first theory. We therefore need not address the second 

theory,1

 and remand for further proceedings. 

I. BACKGROUND 

 

1 See Aldaba v. Pickens, 777 F.3d 1148, 1159 n.2 (10th Cir. 2015) (On review of denial 

of motion for summary judgment based on qualified immunity, once appellate court 

determined that initial use of force was excessive, it was unnecessary to determine on 

appeal “whether the officers’ subsequent actions would likewise constitute excessive 

force.”). 

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Although the district court denied summary judgment and has not entered a 

final judgment, “we have interlocutory jurisdiction over denials of qualified immunity 

at the summary judgment stage to the extent that they turn on an issue of law.” 

Romero v. Story, 672 F.3d 880, 882 (10th Cir. 2012) (brackets and internal quotation 

marks omitted). We reduce the question before us to one of law by accepting the 

district court’s assessment of the facts, which was based on the parties’ agreement on 

undisputed facts and the court’s construing the remaining evidence in the light most 

favorable to Tenorio. See id. at 882–83. Indeed, on an interlocutory appeal from the 

denial of a summary-judgment motion based on qualified immunity, we are almost 

always barred from reviewing whether the district court erred in determining that an 

alleged fact was supported by sufficient evidence. See id. at 883; Lewis v. Tripp, 604 

F.3d 1221, 1225−26 (10thCir. 2010) (noting the exceptions). 

The district court’s opinion set forth the following facts: On November 11, 

2010, at 7:56 p.m., a 911 operator received a call from Hilda Valdez, who told the 

operator, “I need someone to come over here right away.” Aplt. App. at 204 (internal 

quotation marks omitted). Ms. Valdez reported that her sister-in-law’s husband, later 

identified as Tenorio, was intoxicated and holding a knife to his own throat. 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 

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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 . . . 

Male takes meds for seizures . . . 

Male, [caller] and males wife Michelle are all [on scene] inside the [location] 

[Caller’s] brother Bob Torres is also [on scene] . . . 

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. They parked their vehicles a short distance from the 

residence. About a minute later they approached Ms. Valdez, who was standing 

outside the house still speaking to the 911 operator. She appeared frightened. Pitzer 

had not received crisis-intervention training, but Moore and Liccione had. Moore told 

Ms. Valdez to end her 911 call. She told the officers: “He’s got a knife. He’s been 

drinking . . . . He’s like thirty-seven, thirty-eight years old. Um, we tried to talk to 

him but he got mad ’cause we took his beer away from him.” Id. at 205 (internal 

quotation marks omitted). Pitzer announced that he was “going lethal.” Id. (internal 

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quotation marks omitted). Without asking if there was a hostage or settling on a 

tactical plan, the officers lined up outside the front door to the residence. Pitzer was 

in the front with his handgun drawn. Moore was behind him, carrying a Taser, and 

Liccione was third, with his handgun drawn. Hernandez was behind the other 

officers, carrying a shotgun loaded with beanbag rounds, but was temporarily 

occupied in preventing Ms. Valdez from reentering the residence. 

The front door was open. The living room’s dimensions were about 14 feet by 

16 feet, with the front door on one of the shorter walls. A lamp was on in the room. 

From his position outside the front door, Pitzer could see two doorways on the 

opposite wall. The one to his right, which led to the kitchen, was directly across from 

the front door. Part of the kitchen was obscured by the living-room wall. The officers 

did not hear raised voices or other sounds suggesting a disturbance. Without 

announcing his presence, Pitzer entered the living room, followed by Moore and 

Liccione. Mrs. Tenorio moved into the area of the kitchen visible through the right 

doorway. Pitzer first said, “Ma’am,” and then, “Please step out here. Let me see your 

hands, okay?” Id. at 206 (internal quotation marks omitted). At least one of the other 

officers understood “Please step out here” to be addressed to everyone in the kitchen. 

As Mrs. Tenorio moved out of the kitchen, she said, “Russell, put that down.” 

Id. She walked into the living room with her hands up and palms facing the officers. 

She was followed by Tenorio, who had a blank stare and was carrying a santoku-style 

kitchen knife with a three-and-a-quarter-inch blade. He was holding the knife loosely 

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in his right hand, his arm hanging by his side, as he walked behind his wife. He was 

followed by a second man. Hernandez grabbed Mrs. Tenorio and took her outside. 

Tenorio walked forward into the living room at an “average speed.” Id. at 207 

(internal quotation marks omitted). Pitzer saw the knife and yelled, “Sir, put the knife 

down! Put the knife down, please! Put the knife down! Put the knife down!” Id.

(internal quotation marks omitted). When Tenorio was about two and one-half steps 

into the living room, Pitzer shot him, Moore tased him, and he fell to the floor. The 

commands and the shooting lasted two or three seconds. The time between the first 

officer’s arrival and the shooting was less than four minutes. Tenorio was 

hospitalized for two months as a result of his life-threatening injuries. 

The district court analyzed Tenorio’s first theory of liability—that Pitzer shot 

him when Pitzer lacked probable cause to believe that Tenorio posed a threat of 

serious harm to anyone—under the four (nonexclusive) factors set forth in Estate of 

Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008): “(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.” The court concluded that a jury could find the first factor 

to be neutral because even though Pitzer ordered Tenorio to drop his knife, “[a] 

reasonable jury could find that Defendant did not ‘refuse’ to drop the knife because he 

was not given sufficient time to comply.” Mem. Op. & Order at 7, Tenorio v. Pitzer, 

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Civ. No. 12-01295 MCA/KBM consolidated with Civ. No. 13-00574 MCA/KBM 

(D.N.M. May 28, 2014). It said that a jury could find that the second factor weighed 

against probable cause because it could find that Tenorio “was holding a small 

kitchen knife loosely by his thigh and that he made no threatening gestures toward 

anyone.” Id. On the third factor, the court said that a jury could find that it weighed 

against probable cause because the jury could find that Tenorio, although walking 

toward Pitzer, was shot “before he was within striking distance of [Pitzer].” Id. at 8. 

And it said that a jury could also find that the fourth factor weighed against probable 

cause because the jury could reasonably find that the information provided to Pitzer 

“indicated that the only person that [Tenorio] was known to have threatened that night 

was himself, and that as [Tenorio] walked into the living room he did not raise the 

knife from his side or make threatening gestures or comments toward anyone.” Id. 

II. DISCUSSION 

A. Qualified Immunity 

“The doctrine of qualified immunity protects government officials from liability 

for civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Pearson v. 

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). In the Fourth 

Amendment context, “[t]his inquiry turns on the objective legal reasonableness of the 

action, assessed in light of the legal rules that were clearly established at the time it was 

taken.” Id. at 822 (internal quotation marks omitted). “Ordinarily, in order for the law to 

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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.” Becker v. Bateman, 709 F.3d 1019, 1023 (10th Cir. 

2013) (internal quotation marks omitted). We do not engage in “a scavenger hunt for 

prior cases with precisely the same facts” but examine “whether the law put officials on 

fair notice that the described conduct was unconstitutional.” Clark v. Wilson, 625 F.3d 

686, 690 (10th Cir. 2010) (internal quotation marks omitted). 

The plaintiff bears the burden of establishing both (1) that the defendant violated a 

constitutional right and (2) that the right had been clearly established by the time of the 

violation. See Becker, 709 F.3d at 1022. When, as here, the facts are not disputed (at 

least for the purposes of appeal), our review is de novo. See Aldaba, 777 F.3d at 1154. 

B. Excessive-Force Claims

We review Fourth Amendment claims of excessive force under a standard of 

objective reasonableness, judged from the perspective of a reasonable officer on the 

scene. See Graham v. Connor, 490 U.S. 386, 396–97 (1989). “The reasonableness of [an 

officer’s] actions depends both on whether the officers were in danger at the precise 

moment that they used force and on whether [the officer’s] own reckless or deliberate 

conduct during the seizure unreasonably created the need to use such force.” Sevier v. 

City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995) (footnote omitted). But “[t]he 

calculus of reasonableness must embody allowance for the fact that police officers are 

often forced to make split-second judgments—in circumstances that are tense, uncertain, 

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and rapidly evolving—about the amount of force that is necessary in a particular 

situation.” Graham, 490 U.S. at 396–97. 

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. But 

they are only aids in making the ultimate determination, which is “whether, from the 

perspective of a reasonable officer on the scene, the totality of the circumstances justified 

the use of force.” Id. The belief need not be correct—in retrospect the force may seem 

unnecessary—as long as it is reasonable. See id.

C. Application to Officer Pitzer

One could argue that Pitzer appropriately used lethal force. The officers were 

responding to an emergency call for police assistance to protect against danger from a 

man who had been violent in the past and was waving a knife around in his home. The 

man was walking toward Pitzer in a moderate-sized room while still carrying the knife 

despite repeated orders to drop it. 

But the district court ruled that the record supports some potential jury findings 

that would establish Tenorio’s claim—in particular, that Tenorio “did not ‘refuse’ to drop 

the knife because he was not given sufficient time to comply” with Pitzer’s order; that 

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Tenorio made no hostile motions toward the officers but was merely “holding a small 

kitchen knife loosely by his thigh and . . . made no threatening gestures toward anyone.”; 

that Tenorio was shot “before he was within striking distance of [Pitzer]; and that, for all 

Pitzer knew, Tenorio had threatened only himself and was not acting or speaking 

hostilely at the time of the shooting. Mem. Op. and Order, supra, at 7−8. As previously 

noted, we cannot second guess the district court’s assessment of the evidence on this 

interlocutory appeal; and we are comfortable that the evidence, viewed in this light, 

suffices for Tenorio’s claims. 

In fact, our precedents compel this result. Our decision in Zuchel v. City & County 

of Denver, 997 F.2d 730, 735–37 (10th Cir. 1993), as construed in Walker v. City of 

Orem, 451 F.3d 1139, 1160 (10th Cir. 2006), sets forth the clearly established law that 

resolves this case. 

 In Zuchel we reviewed the sufficiency of the evidence to support a jury verdict 

that Officer Frederick Spinharney had used excessive force against the plaintiffs’ 

decedent, Leonard Zuchel. We set forth the following evidence, excluding “other 

evidence more favorable to the [defendant].” Zuchel, 997 F.2d at 737. The manager of a 

restaurant had called the police to complain that Zuchel had been creating a disturbance 

at the restaurant. See id. at 735. By the time Spinharney and Officer Teri Hays arrived at 

the restaurant, Zuchel had departed. See id. They found him around the corner, where he 

was engaged in “a heated exchange” with four teenagers on bicycles. Id. One shouted to 

the officers that Zuchel had a knife. See id. According to one uninvolved observer, the 

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officers walked up behind Zuchel; Spinharney told him to shut up; Zuchel turned with his 

hands up in the air and took “three wobbly steps” toward Spinharney, who was six to 

eight feet away; and Spinharney shot him. Id. at 736. A second uninvolved observer 

gave essentially the same account, except that she said that Spinharney was about ten feet 

from Zuchel when he first shouted; that she heard Spinharney tell Zuchel to “drop it”; 

and that Zuchel’s left hand was pointing over his shoulder to the teenagers as he turned 

around and his right hand was by his side. Id. (internal quotation marks omitted). She 

added that he “was not charging the officer and made no slicing or stabbing motions 

toward him.” Id. Officer Hays testified that as she and Spinharney approached Zuchel 

from behind, she hollered “Hey” and “he turned around in a normal fashion.” Id.

(internal quotation marks omitted). Then one of the teenagers said, “Watch out: he’s got 

a knife.” Id. (internal quotation marks omitted). She said that when the officers were 

about 15 feet from him, Spinharney told Zuchel to “Drop it. Drop it.” Zuchel then 

“walk[ed] forward at a slow pace.” Id. (internal quotation marks omitted). She moved 

toward Zuchel; as she did so, she saw nothing in his right hand but could not clearly see 

his left. See id. When Spinharney fired, Zuchel was right next to her and less than five 

feet from Spinharney. See id. The coroner testified that Zuchel’s right arm was directly 

across his chest when he was shot, indicating that it was not “extended in a threatening 

manner.” Id. No knife was found. See id. 

We held that the evidence was sufficient for the jury to find that the “use of deadly 

force was not objectively reasonable under the circumstances.” Id. We did not parse the 

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evidence to say precisely what version the jury needed to believe to make that finding. It 

is possible, for example, that we thought it was necessary for the jury to disbelieve the 

testimony that Spinharney had told the plaintiff to drop his weapon. But the more natural 

reading of our opinion is that any discrepancies among the witnesses were irrelevant. 

 And that is how we construed Zuchel a few years later in Walker. We said that 

Zuchel “specifically established 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. 

 Given the facts that we must accept on this appeal, that standard applies to this 

case. Tenorio was not charging Pitzer. He had merely taken three steps toward the 

officer, as had Zuchel. Unspeaking and with a blank stare on his face, he made no 

aggressive move toward any of the officers with his knife. He was no closer to the 

officers than Zuchel had been. The district court said that the jury could find that he was 

not “within striking distance” when he was shot and was only “holding a small kitchen 

knife loosely by his thigh.” Mem. Op. & Order, supra, at 7−8. Zuchel had also been 

ordered to “drop it.” Unlike in Zuchel, Tenorio actually had a knife. But given the 

warning by the teenager, the officer in Zuchel could have reasonably believed that Zuchel 

had one; and, as determined by the district court here, the jury could have found that 

Tenorio did not have enough time to obey Pitzer’s order. Finally, Tenorio’s behavior 

before the officers arrived was not more aggressive than what had been reported to 

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Spinharney (it would have been reasonable for Spinharney to infer from the teenager’s 

warning that Zuchel had brandished a knife during the heated exchange). 

We recognize that we distinguished Walker’s statement of the law in our opinion 

in Estate of Larsen, 511 F.3d 1255. But the distinction we made in that case was that the 

victim had made “hostile actions toward” the officer. Id. at 1263. We said that “[t]he 

undisputed facts here show that [the victim] 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.” Id. In contrast, the evidence in this case would support a 

finding that Tenorio took no hostile or provocative action toward the officers. 

 We conclude that the district court, given its unreviewable assessment of the 

evidence, did not err in denying the qualified-immunity motion for summary judgment. 

We note, however, that because our review is predicated on the district court’s 

assessment of the evidence in the li ght most favorable to Tenorio, a contrary judgment 

may be permissible after a trial to a jury. 

III. CONCLUSION

We AFFIRM the district court’s denial of summary judgment. 

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No. 14-2114, Tenorio v. Pitzer

PHILLIPS, Circuit Judge, dissenting: 

I would reverse the district court’s denial of summary judgment for Officer Pitzer 

based upon qualified immunity. I see no violation of Russell Tenorio’s constitutional 

rights, let alone one clearly established in our law. 

A. General Principles

Qualified immunity “balances two important interests—the need to hold public 

officials accountable when they exercise power irresponsibly and the need to shield 

officials from harassment, distraction, and liability when they perform their duties 

reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine “‘gives ample 

room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who 

knowingly violate the law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley 

v. Briggs, 475 U.S. 335, 343 (1986)). This “accommodation for reasonable error exists 

because ‘officials should not err always on the side of caution’ because they fear being 

sued.” Id. (quoting Davis v. Scherer, 468 U.S. 183, 196 (1984)). Qualified immunity 

exists “to ensure that fear of liability will not ‘unduly inhibit officials in the discharge of 

their duties.’” Camreta v. Green, 563 U.S. 692, 131 S. Ct. 2020, 2030 (2011) (quoting 

Anderson v. Creighton, 483 U.S. 635, 638 (1987)). 

We evaluate Fourth Amendment excessive-force claims under an objectivereasonableness standard, measuring the challenged police conduct from a reasonable 

officer’s perspective. Graham v. Connor, 490 U.S. 386, 396–97 (1989). As the majority 

notes, “[t]he reasonableness of [an officer’s] actions depends both on whether the officers 

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were in danger at the precise moment that they used force and on whether [the officer’s] 

own reckless or deliberate conduct during the seizure unreasonably created the need to 

use such force.” Maj. Op. at 8 (quoting Sevier v. City of Lawrence, 60 F.3d 695, 699 

(10th Cir. 1995) (footnote omitted)). And as the majority also recognizes, “[t]he calculus 

of reasonableness must embody allowance for the fact that 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.” 

Maj. Op. at 8–9 (quoting Graham, 490 U.S. at 396–97). 

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. See Maj. Op. at 10–12. The 

majority believes this result is compelled by this single sentence taken from Walker v. 

City of Orem, 451 F.3d 1139, 1160 (10th Cir. 2006): 

It was specifically established [in Zuchel v. City & Cty. of Denver, 997 F.2d 

730, 735–36 (10th Cir. 1993) (Zuchel II)] 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. 

I disagree with the majority that Walker so dramatically shrunk—or intended to 

shrink—our analytical framework applied in Zuchel II until now. Rather than narrowing a 

robust totality-of-circumstances inquiry to two meager factors, I believe Walker simply 

recognized the importance of those factors as part of evaluating qualified immunity. See 

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451 F.3d at 1159 (considering “the totality of the circumstances” under the Fourth 

Amendment objective-reasonableness standard). 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. Sturdivan v. 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. 

At the outset, it is important to recognize that this court has decided two Zuchel 

appeals, the first contesting the district court’s denial of summary judgment on qualifiedimmunity grounds to the shooting officer, Zuchel v. Spinharney, 890 F.2d 273 (10th Cir. 

1989) (Zuchel I), and the second contesting the sufficiency of the evidence after a 

$300,000 jury verdict against the city and county of Denver, Zuchel II, 997 F.2d at 730. 

Unfortunately, the majority ignores Zuchel I, where we affirmed the district court’s denial 

of summary judgment to the shooting officer based on qualified immunity. We did so 

after acknowledging that the officer would easily be entitled to immunity if we 

considered only his evidence. 890 F.2d at 275. But because the record contained 

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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). The plaintiffs then settled the claim against the shooting officer 

and went to trial on the claim against Denver. Zuchel II, 997 F.2d at 733. In evaluating 

the appropriateness of summary judgment on Officer Pitzer’s claim of qualified 

immunity, we should focus on the reasons this court denied it to the shooting officer in 

Zuchel I:

Other testimony and evidence contained in the summary judgment record 

casts doubt on the objective reasonableness of Spinharney’s use of deadly 

force. At least one witness estimated Zuchel’s distance from Spinharney to 

be 10–12 feet at the time the shots were fired. This same witness testified 

that Zuchel was neither charging Spinharney nor stabbing at him, but 

instead was shot after Zuchel stopped and was trying to “explain what was 

going on.” Another witness indicated that Zuchel was clearly not close 

enough to stab Spinharney. Spinharney’s partner, Officer Rathburn, 

testified that she could not see any weapon in Zuchel’s hand. One witness 

claims to have heard Spinharney tell Zuchel to “shut up or you’re going to 

die.” Other witnesses heard no warning by the officers. At least one witness 

testified Spinharney fired the four shots “[a]s fast as he could pull the 

trigger.” 

890 F.2d at 275 (citations omitted). 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. 

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In Zuchel II, the plaintiffs (Zuchel’s parents) proceeded to trial on a municipalliability 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. at 734. Ultimately, a jury found in the plaintiffs’ favor. Id. at 733. On appeal, 

Denver contended that insufficient evidence supported the verdict. Id. Accordingly, this 

court in Zuchel II considered a similar issue as in Zuchel I: whether plaintiffs had 

presented sufficient evidence, together with favorable inferences, to sustain the decision 

made in the district court (whether on summary judgment or jury verdict). We reviewed 

de novo the district court’s denial of Denver’s post-verdict motion, and in doing so 

acknowledged that “[w]e must view the evidence in the light most favorable to the party 

against whom the motion is made and give that party the benefit of all reasonable 

inferences from the evidence.” Id. at 734 (citations omitted). 

With this in mind, the court in Zuchel II reviewed the trial evidence. It recounted 

testimony from eyewitnesses, including those whose deposition testimony we relied on in 

affirming the district court’s denial of summary judgment. Id. at 735–36. For instance, in 

Zuchel I, we noted that Jeffrey Purvis had testified in his deposition that Zuchel was 

clearly not close enough to stab Spinharney and that he heard Spinharney tell Zuchel to 

“shut up, or you’re going to die.” 890 F.2d at 275. At trial, Purvis testified consistently. 

Zuchel II, 997 F.2d at 735–36. In Zuchel I, we also relied on deposition testimony of 

Deborah Seme, who had estimated the distance between the two men at shooting at about 

10 to 12 feet, said that Zuchel was trying to “explain what was going on,” and said that 

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Officer Spinharney fired four shots “[a]s fast as he could pull the trigger.” 890 F.2d at 

275. At trial, Seme testified consistently, although estimating the two men’s original 

distance at 10 feet with Zuchel’s taking three steps before Officer Spinharney fired shots. 

Zuchel II, 997 F.2d at 736. Finally, in Zuchel I, we cited Officer Rathburn’s testimony 

that she had seen no weapon in Zuchel’s hand. 890 F.2d at 275. At trial, she gave more 

complete testimony, some favoring the plaintiffs’ claims, including that she and Officer 

Rathburn were about 15 feet from Zuchel, that she was surprised to hear gunshots 

because she did not expect Officer Spinharney to shoot, and that she was “right next to 

Mr. Zuchel when he was shot because she was intending to “grab him in some fashion or 

try to get him physically under some control until my partner could, you know, assist 

me.” Zuchel II, 997 F.2d at 736 (citation omitted). 

With similar evidence supporting the plaintiffs on summary judgment and at trial, I 

am unsurprised we affirmed the jury verdict just as we had affirmed the earlier denial of 

summary judgment. Rather than explaining our two affirmances as resulting from our 

giving the plaintiffs the benefit of disputed facts and the inferences from the evidence, the 

majority unwarrantedly speculates that the Zuchel II court might have “thought it was 

necessary for the jury to disbelieve the testimony that [the shooting officer] had told the 

plaintiff to drop his weapon.” Maj. Op. at 12. I see nothing in Zuchel I or II suggesting 

that the officer’s command to “drop it” was ever even disputed. Moreover, in view of our 

de novo review in Zuchel I and II, I cannot fathom the majority’s conclusion that “the 

more natural reading of our opinion is that any discrepancies among the witnesses were 

irrelevant.” Maj. Op. at 12. In addition to all else, Zuchel II itself defeats this 

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interpretation. As adequate support for the jury’s excessive-force finding, we relied on 

the coroner’s testimony about Zuchel’s arm position when shot (arm across chest) “along 

with the evidence recited above . . . .” Zuchel II, 997 F.2d at 736 (emphasis added). If the 

bulk of the recited evidence was irrelevant, this would be a strange way for the Zuchel II 

court to say so.1

 

In addition, if the majority is correct that the only relevant facts in our case are 

whether Tenorio charged the officers and slashed or stabbed with his knife, I would have 

expected to see that minority-of-circumstances approach applied in later cases involving 

an officer’s fatal shooting of a knife-wielding man. But in Estate of Larsen, 511 F.3d at 

1260, which we decided three years after Walker, the court did just the opposite. There, 

applying an objective-reasonableness standard, the court again applied a broad analytical 

framework and compiled a list of non-exclusive factors based, in part, on Walker and 

Zuchel I: “(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 

 1 See King, 2015 WL 3875551, at *7 (noting that the court in Zuchel I affirmed a 

denial of summary judgment on qualified-immunity grounds to the shooting officer 

because of “conflicting testimony in [Zuchel I] concerning what provoked the shooting”); 

Zia Trust Co. v. Montoya, 597 F.3d 1150, 1154–55 (10th Cir. 2010) (affirming denial of 

qualified immunity to the shooting officer at summary-judgment stage despite his own 

favorable testimony because “reading the record in the light most favorable to plaintiffs, 

it is not clear that [the decedent] manifested an intent to harm Officer Montoya or anyone 

else at the scene”); Sevier v. City of Lawrence, 60 F.3d 695, 700 (10th Cir. 1995) 

(affirming denial of summary judgment on qualified-immunity grounds to shooting 

officer in part based on disputed evidence about whether shooting victim had lunged at 

officer with a knife). 

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suspect; and (4) the manifest intentions of the suspect.” 511 F.3d at 1260 (citing Walker, 

451 F.3d at 1159; Jiron v. City of Lakewood, 392 F.3d 410, 414–15 (10th Cir. 2004); 

Zuchel I, 890 F.2d at 274). In doing so, the court looked at far more facts than charging, 

stabbing, and slashing to determine whether the officer had shown probable cause of 

serious physical harm to himself or others. 

Even under the majority’s shrunken analytical framework, I still cannot understand its 

bases for denying qualified immunity in this case. Although the majority apparently 

contends that Tenorio was not “charging” the officers, Maj. Op. at 12, I fail to see the 

difference between “charging” the officers and advancing toward them with a knife 

without pausing or breaking stride. I suspect that officers would much prefer a “charging” 

suspect from twenty feet away to a “non-charging” Tenorio advancing on them in a 

sixteen-foot room with a difficult retreat.2

 In this situation, we need to recognize the 

immediacy of the life-threatening danger to the officers. As I understand the majority’s 

new approach, Tenorio was free to get right up to the officers so long as he did not 

“charge” them while making stabbing or slashing motions with the knife. This illconceived approach ignores how quickly a knife-wielding man can thrust a knife and kill 

or grievously wound an officer or a bystander. It also fails to recognize the danger to the 

officers and Tenorio’s family had Tenorio gotten close enough to wrestle Officer Pitzer 

for his gun. Guns can fire in melees—accidentally or otherwise. The majority’s let’s-

 2

 Although the majority relies on Walker’s characterization of Zuchel as requiring 

“charging,” I note that in Walker the court said that David Walker “was not advancing on 

anyone with the small knife” and that “David was not advancing on him and had not 

threatened him in any way. . . .” 451 F.3d at 1160 (emphasis added). I do not think the 

majority denies that Tenorio was “advancing” on Officer Pitzer before being shot. 

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hope-nothing-bad-happens approach leaves officers at grave risk, one we have not 

previously required them to take. See Estate of Larsen, 511 F.3d at 1260 (noting that a 

reasonable officer need not await the “glint of steel” before taking self-protective action, 

which, by then, is often too late). 

In short, I believe the majority has derailed our qualified-immunity analysis from its 

previously sensible course, and rerouted it away from Supreme Court and Tenth Circuit 

precedent. Its quick knockout punch to qualified immunity absent charging, slashing, and 

stabbing precludes officers from firing shots even when a knife-wielding man gets 

within, or extremely close to, stabbing range so long as he gets there by walking (not 

charging) and has positioned his knife for a quick thrust (without the fanfare of 

menacingly waving it before striking). 

C. The District Court’s Analysis 

Before explaining why I believe the district court erred in denying summary judgment 

for qualified immunity, I pause to review the facts that the district court found. In its 

order denying summary judgment, the district court found facts and adopted transcripts 

that provide additional undisputed facts: 

 On November 11, 2010, at 7:56 p.m., Hilda Valdez, Tenorio’s sister-in-law, 

called 911, saying, “I need someone to come over here right away.” She 

said that Tenorio was intoxicated and holding a knife to his throat. She 

expressed fear that he would hurt himself or his wife. She advised that he 

had broken some windows and was saying that he was going to slice his 

throat. She again said that “I’m afraid he’s gonna hurt his wife.” Later, she 

repeated that he was threatening to kill himself and expressed fear that he 

might “do bodily harm” to his wife. She said he was waving around a very 

sharp knife. The dispatcher tried to calm her, telling her to take a deep 

breath. Ms. Valdez said, “Please hurry! Please hurry! Oh, god. Oh, god. Oh, 

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god.” Right before the officers arrived, Ms. Valdez said, “I’m outside and 

she’s yelling.” Appellant’s App. at 65–66, 71, 204. 

 The 911 operator relayed this information to the police dispatcher, who 

broadcast that Ms. Valdez had called about her brother-in-law Tenorio’s 

placing a knife to his throat. The dispatcher further advised the officers that 

Tenorio “has been violent in the past” (a mistaken characterization) and 

“takes meds for seizures.” Additionally, the dispatcher advised that Tenorio 

was in the kitchen “[waving] the knife around” but that no injuries had been 

reported. Finally, the dispatcher advised that Tenorio’s wife and Valdez 

were in the living room, and that Tenorio and his brother were in the 

kitchen. Appellant’s App. at 73–74, 204–05. 

 At about 8:03, the officers arrived and parked down the street. Within a 

minute or so, the officers spoke to Ms. Valdez, who clearly appeared 

frightened. On Pitzer’s belt recorder, Ms. Valdez is heard saying, “He’s got 

a knife. He’s been drinking . . . .” Appellant’s App. at 205. 

 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.”3

 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. Appellant’s App. at 205–06. 

 The home’s doorway sits directly across from the kitchen door through a 

furnished living room measuring 16 by 14 feet. When the officers entered, a 

lamp was on. The officers heard no raised voices or other sounds 

suggesting a disturbance. When Officer Pitzer saw Mrs. Tenorio through 

the kitchen doorway, he called out to her, “Ma’am, please step out here. Let 

me see your hands, okay?” As she came forward into the living room, she 

said to someone behind her, “Russell, put that down.” She entered the 

living room with her hands up and her palms facing the officers. Behind her 

came Tenorio with a “blank stare,” carrying a santoku-style kitchen knife 

with a 3 1/4 inch sheepsfoot blade. Tenorio’s brother-in-law followed him 

into the living room. Officer Hernandez “hustle[d] [Mrs. Tenorio] out the 

front door.” Appellant’s App. at 206–07. 

 3

 The district court did not find that this had any particular meaning. In reviewing the 

record, I see that it is simply a way the police communicate to each other which officer 

will proceed first carrying a lethal weapon as opposed to Tasers or beanbag rounds. 

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 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. Appellant’s App. at 207. 

1. Probable Cause to Believe Tenorio Presented a Threat of Serious Physical 

Harm to Others 

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. I disagree with this approach. In my view, the distance between the officers and 

the knife-wielding Tenorio bears more than any other fact on Tenorio’s ability to harm 

the officers. 

Addressing the first factor (whether the officer ordered the suspect to drop his weapon 

and whether the suspect complied), the district court acknowledged that Officer Pitzer 

had “ordered [Tenorio] to drop the knife prior to shooting [him]” and that Tenorio had 

kept hold of the knife. Appellant’s App. at 208. That is a bland account of a tense scene. 

As stated earlier in its opinion, an alarmed Officer Pitzer yelled the “drop-it” command 

four times in rapid succession. But the district court found this fact was “offset by 

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evidence that [Officer Pitzer] shot [Tenorio] within two or three seconds of the first 

command to drop the knife.” Id. This, it concluded, was insufficient time to comply with 

the commands. Accordingly, the district court determined that a reasonable jury could 

find this factor neutral in determining probable cause of a danger of serious physical 

harm. 

I disagree. Simply put, based on the district court’s findings, Tenorio had time to 

comply. Had Tenorio not advanced toward the officers, or had he even stopped after 

beginning to do so, the officers could have given him more time to drop the knife. He, 

more than anyone, controlled the time Officer Pitzer could safely let pass before 

shooting. Tenorio’s actions, and his actions alone, created the emergency requiring 

Officer Pitzer to protect himself, his fellow officers, and Tenorio’s family. The district 

court nowhere says how much more time Officer Pitzer needed to give Tenorio to drop 

his knife (and whether Tenorio could have stabbed him or others before that time 

elapsed). Nor does the district court recognize any of the times Tenorio’s family had tried 

to get him to put down the knife, including Mrs. Tenorio’s saying to him, “Russell, put 

that down,” as she entered the living room. Appellant’s App. at 206. Tenorio had plenty 

of time to put the knife down, but Officer Pitzer had very little time to avoid a stabbing.4

 

Addressing the second factor (whether the suspect made any hostile motions with the 

knife), the district court said that Tenorio “was holding a small kitchen knife loosely by 

his thigh and that he made no threatening gestures toward anyone.” Appellant’s App. at 

 4

 In my view, the district court erred in either assuming that Tenorio’s knife did not 

endanger the officers unless he had time to drop it (an action that would take little to no 

time at all) or that their safety was secondary to his having time to drop it. 

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208. Thus, it found that a reasonable jury could find this factor weighs against probable 

cause of danger. Again, I disagree. This factor seems inapplicable to this situation. Here, 

the immediate danger from Tenorio existed whether or not he gestured threateningly with 

the knife. Once Tenorio had gotten dangerously close to the officers, his previously not 

having waved the knife threateningly loses much of its significance. See Estate of 

Morgan v. Cook, 686 F.3d 494, 497–98 (8th Cir. 2012) (holding that officer had cause to 

believe that a suspect posed an imminent threat to officer when the suspect—who was 12 

feet away—held a knife in his hand and tried to conceal it, and when the officer ordered 

him to drop it, he instead moved toward the officer). 

Addressing the third factor (the distance between Tenorio and the officers when 

Officer Pitzer shot) the district court concluded that even this factor weighed against 

probable cause of serious physical harm. In my judgment, Officer Pitzer is entitled to 

summary judgment on qualified immunity based on this ground alone. Simply put, when 

Officer Pitzer fired his gun, he and others were endangered by Tenorio and his knife. 

Because so much depends on where Tenorio and Officer Pitzer were in the living room, I 

think any proper analysis needs to address that head-on. Here, we know that the four 

officers entered through the open front doorway into a furnished living room 16 feet long 

(toward the kitchen) and 14 feet wide. Officer Pitzer was first in the doorway. I cannot 

tell from the record where the furniture was in the room. I do know that once inside three 

officers must have situated themselves so that Officer Hernandez could grab Mrs. 

Tenorio and “hustle[] her out the front door.” Appellant’s App. at 207. 

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Because everyone agrees that Officer Pitzer was inside the living room, it is fair to say 

that his chest was at least two feet into the living room. Next, I note that the district court 

found that Tenorio had taken two-and-a-half steps5

 into the living room at an “average 

speed” toward Officer Pitzer as he yelled four times for Tenorio to drop the knife. Id. 

Because no one can stop mid-stride, this is the same as three steps. Even small steps at an 

average speed would stretch at least two feet each, so by the district court’s findings 

Tenorio conservatively was at least six feet into the room. Finally, by raising and 

extending his arm, it’s a fair estimate that Tenorio could have extended the point of the 

knife two feet in front of his body. Where does all that leave us? Even if Tenorio had 

stopped as he completed his third step—hardly a good gamble for officers concerned for 

their lives—quickly lifting his arm would in a split second have put the knife within six 

feet of Officer Pitzer’s chest, and even closer to his arms, which were extended pointing 

his gun.6

 I cannot comprehend how that dire situation would not amount to probable 

cause of harm. 

And, finally, addressing the fourth factor (the suspect’s manifest intentions), the 

district court concluded that this factor did not support probable cause of harm because 

Officer Pitzer knew only that Tenorio had threatened himself and that Tenorio “did not 

raise the knife from his side or make threatening gestures or comments toward anyone.” 

Appellant’s App. at 209. Again, this cannot be the standard. Even if Tenorio—clutching a 

 5 In his deposition, Tenorio said that he “took a couple—a few steps from the doorway 

into the living room” and later described it as “two and a half steps.” Appellant’s App. at 

79–80. 

6

 This account fully credits and relies upon the facts that the district court found. 

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knife he refused to drop even before the 911 call—had advanced toward the officers in 

the living room while grinning widely and thanking them profusely for helping his 

family, the officers would have been foolish to let him get too close. Unlike the district 

court, I think that in these circumstances Officer Pitzer was fully justified in believing 

Tenorio’s advancing toward him with the knife showed a manifest intention to harm 

others. In evaluating Tenorio’s actions, Officer Pitzer could also consider that, minutes 

earlier, Tenorio had been waving a knife and holding it to his throat, sufficiently 

frightening Ms. Valdez to call 911. The officers had also learned from the dispatcher that 

Tenorio had a violent history (although the dispatcher was mistaken). The officers also 

arrived to see a “clearly frightened” Ms. Valdez standing outside. Appellant’s App. at 

205. How much more danger is required to create probable cause of harm? Neither the 

majority nor the district court tells us. 

Relying on a string-cite of cases and a mere recitation of the Estate of Larsen factors, 

the district court further concluded that Officer Pitzer should have known that his acts 

violated clearly established law. See Plumhoff v. Richard, 134 S. Ct. 2012, 2023 (2014). 

Under this second prong, “a defendant cannot be said to have violated a clearly 

established right unless the right’s contours were sufficiently definite that any reasonable 

official in the defendant’s shoes would have understood that he was violating it.” Id. 

(citing Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). “In other words, ‘existing 

precedent must have placed the statutory or constitutional question’ confronted by the 

official ‘beyond debate.’” Id. (quoting Ashcroft, 131 S. Ct. at 2080). “Ordinarily, in order 

for the law to be clearly established, there must be a Supreme Court or Tenth Circuit 

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decision on point, or the clearly established weight of authority from other courts must 

have found the law to be as the plaintiff maintains.” Morris v. Noe, 672 F.3d 1185, 1196 

(10th Cir. 2012) (citation omitted). 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.” Pierce v. Gilchrest, 359 F.3d 1279, 1298 (10th Cir. 2004). 

The majority contends that Zuchel II, as construed in Walker, not only compels a 

conclusion of excessive force here but also “sets forth the clearly established law that 

resolves this case.” Maj. Op. at 10. For the reasons I have already mentioned, I believe 

that Tenorio did not provide comparable favorable evidence to what the plaintiffs offered 

in Zuchel II, rendering that case no help to him in showing clearly established law. We 

must remember that the Zuchel II plaintiffs could rely on strong facts that would establish 

excessive force, including these: 

 Police had responded to Zuchel’s relatively minor public disturbance at a fastfood restaurant rather than to a family member’s frantic 911 call; 

 One eyewitness testified that Zuchel had been 6 to 8 feet from the shooting 

officer when shot, stating his view that “they were so far apart, . . . there was 

no one in danger at that time”; 

 Before being shot, Zuchel had taken three wobbly steps toward Officer 

Spinharney and was trying to explain what was going on in his argument with 

the teen bicyclists7

; 

 7

 As we reported in Zuchel I, one of the same eyewitnesses earlier said that Zuchel 

“was shot after Zuchel stopped and was trying to ‘explain what was going on.’” 890 F.2d 

at 275 (emphasis added). 

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 While Zuchel pointed backwards at them with his left hand, the other officer 

saw that Zuchel had nothing in his right hand and was surprised to hear the 

shot because she was right next to Zuchel, getting ready to subdue him; 

 Zuchel obviously had no knife visible because he was not carrying one 

(leaving a fact question whether the shooting officer might have seen that he 

was unarmed); and 

 When the shooting officer first approached Zuchel from behind with gun 

drawn he announced his presence by telling that Zuchel that “you better shut 

up, or you’re going to die.” 

Zuchel II, 997 F.2d at 735–36. Obviously, Tenorio alleges no such things. Because 

Tenorio’s case is so much different from Zuchel II, I see no basis for our concluding that 

it is “beyond debate” that Zuchel I or II provided Officer Pitzer clear notice that his 

conduct amounted to excessive force. 

By focusing exclusively on Zuchel II, the majority also disregards our cases 

presenting less immediate danger where we have affirmed summary-judgment grants of 

qualified immunity to other shooting officers. In measuring whether his split-second 

decision to shoot amounted to excessive force under clearly established law, Officer 

Pitzer could rely on those cases, too. For example, in Estate of Larsen, 511 F.3d at 1258–

59, we affirmed a grant of summary judgment on qualified-immunity grounds to two 

officers who shot and killed a knife-wielding man. The man had earlier called 911 

threatening to “kill someone or himself.” Id. at 1258. As the officers approached Larsen’s 

home, they saw him standing alone on his front porch, separated from the street by a 

small front yard, a three- or four-foot retaining wall, a six-step concrete walkway leading 

to the sidewalk with an iron rail down its middle, and shrubbery atop the retaining wall 

on one side of the stairs. Id. After seeing Larsen holding a large knife, the officers 

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commanded him to put it down. Id. Standing at a distance of 20 feet from the officers,8

Larsen lifted the knife above shoulder-level and pointed it toward them. Id. at 1258, 

1260–61. After earlier commands to drop the knife, one officer warned Larsen to “[d]rop 

the knife or I’ll shoot.” Id. at 1258. Upon Larsen’s taking one step toward him, the 

officer, on the sidewalk below, fired twice, striking Larsen in the chest and killing him. 

Id. at 1258–59. 

On appeal, we said that the excessive-force claim “center[ed] on whether Larsen 

posed an immediate threat to the officers or the safety of others.” Id. at 1260 (citing 

Jiron, 392 F.3d at 414). We noted that “[d]eadly force is justified under the Fourth 

Amendment if a reasonable officer in Defendants’ position would have had probable 

cause to believe there was a threat of serious physical harm to themselves or to others.” 

Id. (emphasis original) (quoting Jiron, 392 F.3d at 415 (citation omitted)). In addition, we 

said that “[i]ndeed, 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 v. Katz, 533 U.S. 194, 205 (2001)). Then we 

recited and generally applied the factors based on Zuchel I and Walker, recognizing that 

“in the end the inquiry is always whether, from the perspective of a reasonable officer on 

 8

 As we routinely do in summary-judgment cases seeking qualified immunity, we 

construed the record in the light most favorable to the plaintiff, the non-moving party. 

511 F.3d at 1259 (citation omitted). So even though the shooting officer estimated his 

distance from Larsen as 7 to 12 feet, that would not control, because other competing 

evidence must have supported the court’s finding that “the distance between [Officer] 

Murr and Larsen at the time of the shooting, though disputed, was somewhere between 7 

and 20 feet.” Id. at 1260–61. 

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19 

the scene, the totality of the circumstances justified the use of force.” Id. (citing Sevier, 

60 F.3d at 699). 

Thus, the court in Estate of Larsen applied the same four non-exclusive factors from 

Zuchel I and Walker as did the district court here. Id. (citing Zuchel I, 890 F.3d at 274; 

Walker, 451 F.3d at 1159). As “undisputed facts support[ing] the heightened immediacy 

of the threat they faced and the objective reasonableness of the use of deadly force[,]” the 

court relied on several facts also found in Tenorio’s case: Larsen had already threatened 

violence against himself (and others although no one else was nearby); the officers 

responded to an emergency call late at night; the officers encountered a man armed with a 

knife; the officers told Larsen to put down the knife but he did not comply; the second 

officer was also prepared to use force and positioned himself to do so; and Larsen took a 

step toward an officer. Id.

On the other hand, the court in Estate of Larsen mentioned some other facts bearing 

on danger to the officers not found in Tenorio’s case: Larsen’s knife had a blade longer 

than twelve inches; Larsen “held the high ground” from his elevated porch; and Larsen 

raised and pointed the knife toward the officers. Id. at 1258, 1260. While the facts of all 

cases will differ in some regards, I do not believe the lack of these three facts deprives 

Officer Pitzer of summary judgment on qualified immunity. Giving Larsen the benefit of 

disputed fact issues, we must assume that he stood 20 feet from the officers when he took 

his first step. Plus, we must remember that the officers were outside and had the ability to 

safely retreat to avoid any need to use deadly force. In Estate of Larsen, no other people 

were at risk. And, of course, Larsen had to negotiate steps, hedges, and other obstacles 

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20 

before reaching the sidewalk where the officers stood. Based on all the circumstances, I 

believe it clear that Officer Pitzer was far more at risk of immediate serious bodily harm 

than were the officers in Estate of Larsen. That being so, I cannot see how Officer Pitzer 

does not get summary judgment on qualified-immunity grounds when the officers in 

Estate of Larsen did. Even more basically, I cannot see how Tenorio can show any 

excessive-force claim was clearly established under law when the court in Estate of 

Larsen found “the officer’s use of force was objectively reasonable.” Id. at 1261. 

2. Reckless and Unreasonable Creation of Dangerous Situation 

The district court found that Tenorio had presented evidence that “[t]he dispatcher had 

informed the officers shortly before they arrived that the two women inside Plaintiff’s 

residence were in the living room, not in the kitchen, and when the officers arrived, Ms. 

Valdez was waiting in the driveway.” Appellant’s App. at 210. From this, the district 

court surmised that “[Officer Pitzer] and the other officers knew or should have known 

that they were not confronting a situation in which Plaintiff was holding persons inside 

against their will.” Id. The district court noted that the officers “did not ask Ms. Valdez 

about the situation inside the house.” Id. Apparently because the dispatcher did not relay 

Ms. Valdez’s repeated concerns that Tenorio might injure his wife, the district court 

removed that fact from consideration. In addition, the district court criticized the officers 

for not “formulat[ing] a tactical plan prior to entering the residence.” Appellant’s App. at 

212. Finally, the district court noted that the officers could tell by looking inside the 

home that upon entering that the small room and its furnishings would make it “difficult 

or impossible . . . to maneuver once they were inside.” Appellant’s App. at 211. Based on 

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21 

this evidence, the district court concluded that “a reasonable jury could find that 

Defendant and the other officers acted recklessly by barging into the residence with 

deadly force deployed.” Appellant’s App. at 212.

In my view, the district court ignored the importance of the officers’ impressions after 

interacting with a frantic and “clearly frightened” Ms. Valdez and after hearing that an 

intoxicated, window-breaking, man with a violent history9

 had been waving a knife 

around in the home with family members nearby. Those facts alone justified the officers’ 

entrance into the home to separate the family members from the possible threat. They 

were well on their way to doing so when Tenorio entered the living room and headed for 

the officers.10 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.” Graham, 490 U.S. at 396. It also violates our own 

direction that “[w]e are not well-suited to act as a police supervisory board, making finely 

calibrated determinations of just what type of misbehavior justifies just what level of 

 9

 Although the dispatcher was incorrect about Tenorio’s having a violent history, the 

officers acted properly in treating it as so as they responded to the urgent call. 

10 The district court did not mention the undisputed testimony of Robert Torrez, 

Tenorio’s brother-in-law, who testified that upon hearing sirens approaching he kept 

trying to get Tenorio to put the knife away, and when he heard the police were outside the 

house, he told Tenorio, “‘Russell, the police are here, you really need to put that down or 

it’s not going to be good,’ and he refused.” Appellant’s App. at 85. 

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response.” Cordova v. Aragon, 569 F.3d 1183, 1190 (10th Cir. 2009). Imagine the 

criticism had the officers adopted the district court’s policing strategy and an hour later 

Tenorio either killed or wounded himself or a family member. 

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.” 

Id. at 697. Particularly worrisome were the son’s two previous suicide attempts. Id. Upon 

picking the lock on the son’s bedroom door with the father’s help, two officers opened 

the door, saw the knife on the son’s lap, and drew their guns. Id. at 698. After declaring 

that he had done nothing wrong, the son then rose and stood in his bedroom doorway 

holding the knife. Id. What happened next was disputed. The officers said the son lunged 

at them with the knife, and the parents denied this. Id. Both officers fired their guns at the 

son, hitting him six times and killing him. Id. 

In addition to their excessive-force claim, the parents had a second claim that the 

officers “acted recklessly and unreasonably in the events surrounding the seizure and that 

this conduct immediately led to the shooting.” Id. at 700. Because the district court 

summarily concluded that genuine issues of material fact remained, the Sevier court 

examined the record to “determine what facts the district court, in the light most 

favorable to the nonmoving party, likely assumed.” Id. (quoting Johnson v. Jones, 515 

U.S. 304, 319 (1995)). In one sentence, the court said that “the record reveals some 

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23 

evidence upon which a jury could conclude that Defendants acted recklessly by 

confronting [the son] in the manner that they did after knowing that he was armed and 

distraught over problems he was having with his girlfriend, and without gathering more 

information on the situation.” Id. at 701 n.10. 

Sevier cannot support Tenorio’s facts. Tenorio had frightened his family by his active 

resistance to putting the knife down and by his waving it around and holding it to his 

throat. Unlike the disputed lunging in Sevier, Tenorio’s case involves a district court’s 

finding that he entered the living room and walked directly toward the officers. While the 

police in Sevier had the luxury of time in which to involve others adept in dealing with 

similar situations, the officers called to Tenorio’s house faced a more immediate 

challenge. As mentioned, they knew that Tenorio had scared Ms. Valdez to a degree that 

she called 911 and then frantically waved them over when they arrived. They also knew 

that the dispatcher had told them that Tenorio was drunk; that he had held a knife to his 

throat that evening; that he had vandalized house windows that evening; that he had a 

violent history; that Tenorio’s wife and brother-in-law were with him in the house; and 

that Tenorio was in the kitchen waving the knife around. These circumstances presented 

much more of an emergency than did those in Sevier. I cannot see how the officers acted 

recklessly here in trying to get the two family members away from the knife-wielding 

Tenorio. Once that was accomplished, had he let that happen, the officers might well then 

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24 

have been able to take the approach with Tenorio that the district court would mandate 

upon their arrival.11

D. Conclusion

For these reasons, I would reverse the district court’s denial of summary judgment for 

Officer Pitzer and remand with instructions to grant Officer Pitzer qualified immunity. 

 11 In its closing sentence addressing this claim, the district court says that “[o]n this 

evidence a reasonable jury could find that Defendant and the other officers acted 

recklessly by barging into the residence with deadly force deployed.” Appellant’s App. at 

212. The district court’s own findings contradict “barging in.” It found that Ms. Valdez 

called 911 to enlist the police’s assistance in dealing with Tenorio, who was drunk, had 

held a knife to his throat, had vandalized windows soon before the call, and was waving 

the knife around in the kitchen. The front door was open. The district court certainly 

makes no findings that Ms. Valdez or anyone else protested when the police lined up and 

proceeded into the house. 

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