Page:Tenorio v Pitzer 10th Circuit.pdf/26

 208. Thus, it found that a reasonable jury could find this factor weighs against probable cause of danger. Again, I disagree. This factor seems inapplicable to this situation. Here, the immediate danger from Tenorio existed whether or not he gestured threateningly with the knife. Once Tenorio had gotten dangerously close to the officers, his previously not having waved the knife threateningly loses much of its significance. See Estate of Morgan v. Cook, 686 F.3d 494, 497–98 (8th Cir. 2012) (holding that officer had cause to believe that a suspect posed an imminent threat to officer when the suspect—who was 12 feet away—held a knife in his hand and tried to conceal it, and when the officer ordered him to drop it, he instead moved toward the officer).

Addressing the third factor (the distance between Tenorio and the officers when Officer Pitzer shot) the district court concluded that even this factor weighed against probable cause of serious physical harm. In my judgment, Officer Pitzer is entitled to summary judgment on qualified immunity based on this ground alone. Simply put, when Officer Pitzer fired his gun, he and others were endangered by Tenorio and his knife. Because so much depends on where Tenorio and Officer Pitzer were in the living room, I think any proper analysis needs to address that head-on. Here, we know that the four officers entered through the open front doorway into a furnished living room 16 feet long (toward the kitchen) and 14 feet wide. Officer Pitzer was first in the doorway. I cannot tell from the record where the furniture was in the room. I do know that once inside three officers must have situated themselves so that Officer Hernandez could grab Mrs. Tenorio and "hustle[] her out the front door." Appellant's App. at 207. 13