Page:Tenorio v Pitzer 10th Circuit.pdf/30

 While Zuchel pointed backwards at them with his left hand, the other officer saw that Zuchel had nothing in his right hand and was surprised to hear the shot because she was right next to Zuchel, getting ready to subdue him; Zuchel obviously had no knife visible because he was not carrying one (leaving a fact question whether the shooting officer might have seen that he was unarmed); and When the shooting officer first approached Zuchel from behind with gun drawn he announced his presence by telling that Zuchel that "you better shut up, or you’re going to die." 

Zuchel II, 997 F.2d at 735–36. Obviously, Tenorio alleges no such things. Because Tenorio's case is so much different from Zuchel II, I see no basis for our concluding that it is "beyond debate" that Zuchel I or II provided Officer Pitzer clear notice that his conduct amounted to excessive force.

By focusing exclusively on Zuchel II, the majority also disregards our cases presenting less immediate danger where we have affirmed summary-judgment grants of qualified immunity to other shooting officers. In measuring whether his split-second decision to shoot amounted to excessive force under clearly established law, Officer Pitzer could rely on those cases, too. For example, in Estate of Larsen, 511 F.3d at 1258–59, we affirmed a grant of summary judgment on qualified-immunity grounds to two officers who shot and killed a knife-wielding man. The man had earlier called 911 threatening to "kill someone or himself." Id. at 1258. As the officers approached Larsen's home, they saw him standing alone on his front porch, separated from the street by a small front yard, a three-or four-foot retaining wall, a six-step concrete walkway leading to the sidewalk with an iron rail down its middle, and shrubbery atop the retaining wall on one side of the stairs. Id. After seeing Larsen holding a large knife, the officers 17