Page:Tenorio v Pitzer 10th Circuit.pdf/33

 before reaching the sidewalk where the officers stood. Based on all the circumstances, I believe it clear that Officer Pitzer was far more at risk of immediate serious bodily harm than were the officers in Estate of Larsen. That being so, I cannot see how Officer Pitzer does not get summary judgment on qualified-immunity grounds when the officers in Estate of Larsen did. Even more basically, I cannot see how Tenorio can show any excessive-force claim was clearly established under law when the court in Estate of Larsen found “the officer’s use of force was objectively reasonable." Id. at 1261.

The district court found that Tenorio had presented evidence that "[t]he dispatcher had informed the officers shortly before they arrived that the two women inside Plaintiff’s residence were in the living room, not in the kitchen, and when the officers arrived, Ms. Valdez was waiting in the driveway." Appellant’s App. at 210. From this, the district court surmised that "[Officer Pitzer] and the other officers knew or should have known that they were not confronting a situation in which Plaintiff was holding persons inside against their will." Id. The district court noted that the officers “did not ask Ms. Valdez about the situation inside the house." Id. Apparently because the dispatcher did not relay Ms. Valdez's repeated concerns that Tenorio might injure his wife, the district court removed that fact from consideration. In addition, the district court criticized the officers for not "formulat[ing] a tactical plan prior to entering the residence." Appellant’s App. at 212. Finally, the district court noted that the officers could tell by looking inside the home that upon entering that the small room and its furnishings would make it "difficult or impossible. . . to maneuver once they were inside." Appellant's App. at 211. Based on 20