Page:Tenorio v Pitzer 10th Circuit.pdf/12

 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 12