Page:Tenorio v Pitzer 10th Circuit.pdf/11

 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 11