Page:Tenorio v Pitzer 10th Circuit.pdf/10

 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 10