Date: 10-11-2015

Case Style: Tenorio v. Pitzer

Case Number: 14-2114

Judge: Timothy Tymkovich

Court: UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Plaintiff's Attorney: Katherine Wray, Rachel E. Higgins, Kari T. Morrissey

Defendant's Attorney: Stephanie M. Griffin

Description: 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 (10th Cir. 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
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.

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

Plaintiff's Experts:

Defendant's Experts:

Comments: 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.