Page:Tenorio v Pitzer 10th Circuit.pdf/9

 and rapidly evolving—about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396–97.

The Fourth Amendment permits an officer to use deadly force only if there is “probable cause to believe that there [is] a threat of serious physical harm to [the officer] or to others." Estate of Larsen, 511 F.3d at 1260 (internal quotation marks omitted). "A reasonable officer need not await the glint of steel before taking self-protective action; by then, it is often too late to take safety precautions." Id. (ellipsis and internal quotation marks omitted). The four factors noted by the district court are quite significant. But they are only aids in making the ultimate determination, which is "whether, from the perspective of a reasonable officer on the scene, the totality of the circumstances justified the use of force." Id. The belief need not be correct—in retrospect the force may seem unnecessary—as long as it is reasonable. See id.

One could argue that Pitzer appropriately used lethal force. The officers were responding to an emergency call for police assistance to protect against danger from a man who had been violent in the past and was waving a knife around in his home. The man was walking toward Pitzer in a moderate-sized room while still carrying the knife despite repeated orders to drop it.

But the district court ruled that the record supports some potential jury findings that would establish Tenorio’s claim—in particular, that Tenorio “did not ‘refuse’ to drop the knife because he was not given sufficient time to comply" with Pitzer's order; that 9