Page:Tenorio v Pitzer 10th Circuit.pdf/28

 knife he refused to drop even before the 911 call—had advanced toward the officers in the living room while grinning widely and thanking them profusely for helping his family, the officers would have been foolish to let him get too close. Unlike the district court, I think that in these circumstances Officer Pitzer was fully justified in believing Tenorio's advancing toward him with the knife showed a manifest intention to harm others. In evaluating Tenorio's actions, Officer Pitzer could also consider that, minutes earlier, Tenorio had been waving a knife and holding it to his throat, sufficiently frightening Ms. Valdez to call 911. The officers had also learned from the dispatcher that Tenorio had a violent history (although the dispatcher was mistaken). The officers also arrived to see a "clearly frightened" Ms. Valdez standing outside. Appellant's App. at 205. How much more danger is required to create probable cause of harm? Neither the majority nor the district court tells us.

Relying on a string-cite of cases and a mere recitation of the Estate of Larsen factors, the district court further concluded that Officer Pitzer should have known that his acts violated clearly established law. See Plumhoff v. Richard, 134 S. Ct. 2012, 2023 (2014). Under this second prong, "a defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Id. (citing Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). "In other words, 'existing precedent must have placed the statutory or constitutional question' confronted by the official '‘beyond debate.'" Id. (quoting Ashcroft, 131 S. Ct. at 2080). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit 15