Page:Tenorio v Pitzer 10th Circuit.pdf/29

 decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012) (citation omitted). Even so, our circuit uses a "sliding scale" system in which "the more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Pierce v. Gilchrest, 359 F.3d 1279, 1298 (10th Cir. 2004).

The majority contends that Zuchel II, as construed in Walker, not only compels a conclusion of excessive force here but also "sets forth the clearly established law that resolves this case." Maj. Op. at 10. For the reasons I have already mentioned, I believe that Tenorio did not provide comparable favorable evidence to what the plaintiffs offered in Zuchel II, rendering that case no help to him in showing clearly established law. We must remember that the Zuchel II plaintiffs could rely on strong facts that would establish excessive force, including these:

Police had responded to Zuchel’s relatively minor public disturbance at a fastfood restaurant rather than to a family member’s frantic 911 call; One eyewitness testified that Zuchel had been 6 to 8 feet from the shooting officer when shot, stating his view that “they were so far apart,. . . there was no one in danger at that time"; Before being shot, Zuchel had taken three wobbly steps toward Officer Spinharney and was trying to explain what was going on in his argument with the teen bicyclists ; 

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