Page:Tenorio v Pitzer 10th Circuit.pdf/2



HARTZ, Circuit Judge.

Albuquerque Police Officer Brian Pitzer shot Russell Tenorio when responding to an emergency call. Tenorio sued Pitzer in the United States District Court for the District of New Mexico under 42 U.S.C. § 1983, asserting that Pitzer violated his Fourth Amendment rights by using excessive force. The district court denied Pitzer's motion for summary judgment, concluding that there was evidence that Pitzer violated clearly established law under two theories: (1) when Pitzer shot Tenorio he "did not have probable cause to believe that [Tenorio] presented a threat of serious physical harm to [Pitzer] or another person," Aplt. App. at 208, and (2) Pitzer and his fellow officers recklessly created the situation that resulted in the use of deadly force. Pitzer appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm the denial of summary judgment because the evidence would support a violation of clearly established law under the first theory. We therefore need not address the second theory, and remand for further proceedings.

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