Page:Tenorio v Pitzer 10th Circuit.pdf/25

 evidence that [Officer Pitzer] shot [Tenorio] within two or three seconds of the first command to drop the knife." Id. This, it concluded, was insufficient time to comply with the commands. Accordingly, the district court determined that a reasonable jury could find this factor neutral in determining probable cause of a danger of serious physical harm.

I disagree. Simply put, based on the district court's findings, Tenorio had time to comply. Had Tenorio not advanced toward the officers, or had he even stopped after beginning to do so, the officers could have given him more time to drop the knife. He, more than anyone, controlled the time Officer Pitzer could safely let pass before shooting. Tenorio’s actions, and his actions alone, created the emergency requiring Officer Pitzer to protect himself, his fellow officers, and Tenorio's family. The district court nowhere says how much more time Officer Pitzer needed to give Tenorio to drop his knife (and whether Tenorio could have stabbed him or others before that time elapsed). Nor does the district court recognize any of the times Tenorio's family had tried to get him to put down the knife, including Mrs. Tenorio’s saying to him, "Russell, put that down," as she entered the living room. Appellant's App. at 206. Tenorio had plenty of time to put the knife down, but Officer Pitzer had very little time to avoid a stabbing. Addressing the second factor (whether the suspect made any hostile motions with the knife), the district court said that Tenorio "was holding a small kitchen knife loosely by his thigh and that he made no threatening gestures toward anyone." Appellant’s App. at 12