Page:Tenorio v Pitzer 10th Circuit.pdf/17

 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 at 275–76; see also King v. Hill, __ F. App'x __, 2015 WL 3875551, at *5–6 (10th Cir. June 24, 2015) (unpublished) (affirming denial of summary judgment for qualified immunity to deputy in shooting after considering the facts in the light most favorable to the plaintiff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. 4