Page:Tenorio v Pitzer 10th Circuit.pdf/32

 the scene, the totality of the circumstances justified the use of force." Id. (citing Sevier, 60 F.3d at 699).

Thus, the court in Estate of Larsen applied the same four non-exclusive factors from 'Zuchel I and Walker as did the district court here. Id. (citing Zuchel I, 890 F.3d at 274; Walker, 451 F.3d at 1159). As "undisputed facts support[ing] the heightened immediacy of the threat they faced and the objective reasonableness of the use of deadly force[,]" the court relied on several facts also found in Tenorio's case: Larsen had already threatened violence against himself (and others although no one else was nearby); the officers responded to an emergency call late at night; the officers encountered a man armed with a knife; the officers told Larsen to put down the knife but he did not comply; the second officer was also prepared to use force and positioned himself to do so; and Larsen took a step toward an officer. Id.

On the other hand, the court in Estate of Larsen mentioned some other facts bearing on danger to the officers not found in Tenorio's case: Larsen’s knife had a blade longer than twelve inches; Larsen "held the high ground" from his elevated porch; and Larsen raised and pointed the knife toward the officers. Id. at 1258, 1260. While the facts of all cases will differ in some regards, I do not believe the lack of these three facts deprives Officer Pitzer of summary judgment on qualified immunity. Giving Larsen the benefit of disputed fact issues, we must assume that he stood 20 feet from the officers when he took his first step. Plus, we must remember that the officers were outside and had the ability to safely retreat to avoid any need to use deadly force. In Estate of Larsen, no other people were at risk. And, of course, Larsen had to negotiate steps, hedges, and other obstacles 19