Tenorio v. Pitzer

• Decision Date: 06 October 2015
• Docket Number: No. 14–2114.,14–2114.
• Citation: 802 F.3d 1160
• Parties: Russell TENORIO, Plaintiff–Appellee, v. Brian PITZER, Defendant–Appellant, and Raymond D. Schultz, The City of Albuquerque; Robert Liccione; Andrea Ortiz, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

802 F.3d 1160

Russell TENORIO, Plaintiff–Appellee

v. Brian PITZER, Defendant–AppellantandRaymond D. Schultz, The City of Albuquerque; Robert Liccione; Andrea Ortiz, Defendants.

No. 14–2114.

United States Court of Appeals, Tenth Circuit.

Oct. 6, 2015.

Stephanie M. Griffin, Assistant City Attorney, Albuquerque, NM, for Defendant–Appellant.

Katherine Wray (Rachel E. Higgins and Kari T. Morrissey, with her on the brief), Albuquerque, NM, for Plaintiff–Appellee.

Before TYMKOVICH, Chief Judge, HARTZ, and PHILLIPS, Circuit Judges.

Opinion

HARTZ, Circuit Judge.

Albuquerque Police Officer Brian Pitzer shot Russell Tenorio when responding to an emergency call. Tenorio sued Pitzer in the United States District Court for the District of New Mexico under 42 U.S.C. § 1983, asserting that Pitzer violated his Fourth Amendment rights by using excessive force. The district court denied Pitzer's motion for summary judgment, concluding that there was evidence that Pitzer violated clearly established law under two theories: (1) when Pitzer shot Tenorio he “did not have probable cause to believe that [Tenorio] presented a threat of serious physical harm to [Pitzer] or another person,” Aplt.App. at 208, and (2) Pitzer and his fellow officers recklessly created the situation that resulted in the use of deadly force. Pitzer appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm the denial of summary judgment because the evidence would support a violation of clearly established law under the first theory. We therefore need not address the second theory,¹ and remand for further proceedings.

I. BACKGROUND

Although the district court denied summary judgment and has not entered a final judgment, “we have interlocutory jurisdiction over denials of qualified immunity at the summary judgment stage to the extent that they turn on an issue of law.”Romero v. Story, 672 F.3d 880, 882 (10th Cir.2012) (brackets and internal quotation marks omitted). We reduce the question before us to one of law by accepting the district court's assessment of the facts, which was based on the parties' agreement on undisputed facts and the court's construing the remaining evidence in the light most favorable to Tenorio. See id. at 882–83. Indeed, on an interlocutory appeal from the denial of a summary-judgment motion based on qualified immunity, we are almost always barred from reviewing whether the district court erred in determining that an alleged fact was supported by sufficient evidence. See id. at 883 ; Lewis v. Tripp, 604 F.3d 1221, 1225–26 (10th Cir.2010) (noting the exceptions).

The district court's opinion set forth the following facts: On November 11, 2010, at 7:56 p.m., a 911 operator received a call from Hilda Valdez, who told the operator, “I need someone to come over here right away.” Aplt.App. at 204 (internal quotation marks omitted). Ms. Valdez reported that her sister-in-law's husband, later identified as Tenorio, was intoxicated and holding a knife to his own throat. She said that she was afraid that Tenorio would hurt himself or his wife Michaele. Officers Moore, Hernandez, and Liccione were dispatched in response to the call, and Pitzer also responded. The 911 operator relayed some of the information provided by Ms. Valdez to the Albuquerque Police Department dispatcher, who relayed the following information to the officers:

Male [subject] Russell is [drunk] and [on scene]

[Subject] has a knife to his own throat ...

[No injuries] at this time

Male has [vandalized] windows in the [location] ...

Male has been violent in the past ...

Male takes meds for seizures ...

Male, [caller] and males wife Michelle are all [on scene] inside the [location]

[Caller's] brother Bob Torres is also [on scene] ...

Offender is in the kitchen [with] the knife

[Caller] is in the living room

Male is still holding the knife in his hand

Male is waving knife around ...

[Caller's] sister and [caller] are in the living room

Offender and [caller's] brother are in the kitchen

[Caller] is standing outside the [location] waiting for [officers] ...

Id. at 73–74 (capitalization omitted) (items in brackets are spelled-out abbreviations or translations of police codes).

The officers, all in uniform, arrived on the scene in separate vehicles within eight minutes of the original call. They parked their vehicles a short distance from the residence. About a minute later they approached Ms. Valdez, who was standing outside the house still speaking to the 911 operator. She appeared frightened. Pitzer had not received crisis-intervention training, but Moore and Liccione had. Moore told Ms. Valdez to end her 911 call. She told the officers: “He's got a knife. He's been drinking.... He's like thirty-seven, thirty-eight years old. Um, we tried to talk to him but he got mad ‘cause we took his beer away from him.” Id. at 205 (internal quotation marks omitted). Pitzer announced that he was “going lethal.” Id. (internal quotation marks omitted). Without asking if there was a hostage or settling on a tactical plan, the officers lined up outside the front door to the residence. Pitzer was in the front with his handgun drawn. Moore was behind him, carrying a Taser, and Liccione was third, with his handgun drawn. Hernandez was behind the other officers, carrying a shotgun loaded with beanbag rounds, but was temporarily occupied in preventing Ms. Valdez from reentering the residence.

The front door was open. The living room's dimensions were about 14 feet by 16 feet, with the front door on one of the shorter walls. A lamp was on in the room. From his position outside the front door, Pitzer could see two doorways on the opposite wall. The one to his right, which led to the kitchen, was directly across from the front door. Part of the kitchen was obscured by the living-room wall. The officers did not hear raised voices or other sounds suggesting a disturbance. Without announcing his presence, Pitzer entered the living room, followed by Moore and Liccione. Mrs. Tenorio moved into the area of the kitchen visible through the right doorway. Pitzer first said, “Ma'am,” and then, “Please step out here. Let me see your hands, okay?” Id. at 206 (internal quotation marks omitted). At least one of the other officers understood “Please step out here” to be addressed to everyone in the kitchen.

As Mrs. Tenorio moved out of the kitchen, she said, “Russell, put that down.” Id.

She walked into the living room with her hands up and palms facing the officers. She was followed by Tenorio, who had a blank stare and was carrying a santoku-style kitchen knife with a three-and-a-quarter-inch blade. He was holding the knife loosely 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, Civ. No. 12–01295 MCA/KBM consolidated with Civ. No. 13–00574 MCA/KBM (D.N.M. May 28, 2014). It said that a jury could find that the second factor weighed against probable cause because it could find that Tenorio “was holding a small kitchen knife loosely by his thigh and that he made no threatening gestures toward anyone.” Id. On the third factor, the court said that a jury could find that it weighed against probable cause because the jury could find that Tenorio, although walking toward Pitzer, was shot “before he was within striking distance of [Pitzer].” Id. at 8. And it said that a jury could also find that the fourth factor weighed against probable cause because the jury could reasonably find that the information provided to Pitzer “indicated that the only person that [Tenorio] was known to have threatened that night was himself, and that as [Tenorio] walked into the living room he did not raise the knife from his side or make threatening gestures or comments toward anyone.” Id.

II. DISCUSSION

A. Qualified Immunity

“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). In the Fourth Amendment context, “[t]his inquiry turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” Id. at 244, 129 S.Ct. 808 (internal quotation marks...