Page:Tenorio v Pitzer 10th Circuit.pdf/19

 Officer Spinharney fired four shots "[a]s fast as he could pull the trigger." 890 F.2d at 275. At trial, Seme testified consistently, although estimating the two men's original distance at 10 feet with Zuchel’s taking three steps before Officer Spinharney fired shots. Zuchel II, 997 F.2d at 736. Finally, in Zuchel I, we cited Officer Rathburn's testimony that she had seen no weapon in Zuchel’s hand. 890 F.2d at 275. At trial, she gave more complete testimony, some favoring the plaintiffs' claims, including that she and Officer Rathburn were about 15 feet from Zuchel, that she was surprised to hear gunshots because she did not expect Officer Spinharney to shoot, and that she was "right next to Mr. Zuchel when he was shot because she was intending to "grab him in some fashion or try to get him physically under some control until my partner could, you know, assist me." Zuchel II, 997 F.2d at 736 (citation omitted).

With similar evidence supporting the plaintiffs on summary judgment and at trial, I am unsurprised we affirmed the jury verdict just as we had affirmed the earlier denial of summary judgment. Rather than explaining our two affirmances as resulting from our giving the plaintiffs the benefit of disputed facts and the inferences from the evidence, the majority unwarrantedly speculates that the Zuchel II court might have "thought it was necessary for the jury to disbelieve the testimony that [the shooting officer] had told the plaintiff to drop his weapon." Maj. Op. at 12. I see nothing in Zuchel I or II suggesting that the officer’s command to "drop it" was ever even disputed. Moreover, in view of our de novo review in Zuchel I and II, I cannot fathom the majority’s conclusion that "the more natural reading of our opinion is that any discrepancies among the witnesses were irrelevant." Maj. Op. at 12. In addition to all else, Zuchel II itself defeats this 6