Page:Tenorio v Pitzer 10th Circuit.pdf/24

 Tenorio walked forward into the living room at an "average" speed. Officer Pitzer saw the knife and yelled, "Sir, put the knife down! Put the knife down, please! Put the knife down! Put the knife down!" After Tenorio continued about two-and-a half-steps into the living room, Officer Pitzer fired his gun. At the same time, Officer Moore fired his Taser, also striking Tenorio. The shooting occurred less than four minutes after the officers arrived. Appellant’s App. at 207.

The district court correctly identified the Estate of Larsen factors as useful in determining whether Officer Pitzer was entitled to qualified immunity. Acknowledging that the four Larsen factors were "nonexclusive," the district court acknowledged that the factors seek to measure the danger presented by a knife-wielding person who is confronting officers. The district court considered the second factor as bearing on Tenorio's ability to harm others, and the other three factors as bearing on his intention to do so. I disagree with this approach. In my view, the distance between the officers and the knife-wielding Tenorio bears more than any other fact on Tenorio's ability to harm the officers.

Addressing the first factor (whether the officer ordered the suspect to drop his weapon and whether the suspect complied), the district court acknowledged that Officer Pitzer had "ordered [Tenorio] to drop the knife prior to shooting [him]" and that Tenorio had kept hold of the knife. Appellant’s App. at 208. That is a bland account of a tense scene. As stated earlier in its opinion, an alarmed Officer Pitzer yelled the "drop-it" command four times in rapid succession. But the district court found this fact was "offset by 11