Page:Tenorio v Pitzer 10th Circuit.pdf/6

 in his right hand, his arm hanging by his side, as he walked behind his wife. He was followed by a second man. Hernandez grabbed Mrs. Tenorio and took her outside. Tenorio walked forward into the living room at an "average speed." Id. at 207 (internal quotation marks omitted). Pitzer saw the knife and yelled, "Sir, put the knife down! Put the knife down, please! Put the knife down! Put the knife down!" Id. (internal quotation marks omitted). When Tenorio was about two and one-half steps into the living room, Pitzer shot him, Moore tased him, and he fell to the floor. The commands and the shooting lasted two or three seconds. The time between the first officer’s arrival and the shooting was less than four minutes. Tenorio was hospitalized for two months as a result of his life-threatening injuries.

The district court analyzed Tenorio’s first theory of liability—that Pitzer shot him when Pitzer lacked probable cause to believe that Tenorio posed a threat of serious harm to anyone—under the four (nonexclusive) factors set forth in Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008): "(1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.” The court concluded that a jury could find the first factor to be neutral because even though Pitzer ordered Tenorio to drop his knife, "[a] reasonable jury could find that Defendant did not ‘refuse’ to drop the knife because he was not given sufficient time to comply." Mem. Op. & Order at 7, Tenorio v. Pitzer, 6