Divided Court Agrees with District Court's Denial of Qualified Immunity for Officer

Tenorio v. Pitzer, 2015 WL 5813292 (10/6/15) (N.M.) (Published) - A divided 10th affirms the district court's denial of summary judgment to an Albuquerque police officer who shot Mr. Tenorio. The 10th holds Mr. Tenorio's allegations, if true, establish Officer Pitzer did not have probable cause to believe Mr. Tenorio presented a threat of serious physical harm when the officer shot him. A woman reported in a 911 call that Mr. Tenorio was in the kitchen intoxicated and holding a knife to his own throat. She said she was afraid Mr. Tenorio would hurt himself or his wife. The dispatcher told officers Mr. Tenorio had vandalized windows at the home and had been violent in the past. Officers met the caller who appeared frightened. The woman explained Mr. Tenorio had gotten mad because they took beer away from him. Before entering the home, Officer Pitzer said he was "going lethal." The officers did not hear any sounds, such as raised voices, that indicated a disturbance. Without announcing his presence, Officer Pitzer two other officers entered the living room. Officer Pitzer told Mr. Tenorio's wife to move out of the kitchen. As she did so, she told Mr. Tenorio to "put that down." Mr. Tenorio followed his wife out of the kitchen. He had a blank stare. He carried loosely by his side a knife with a 3 1/4 inch blade. He walked at an "average speed." The officer yelled 4 times: "Put the knife down." After Mr. Tenorio took 2 1/2 steps into the living room, the officer shot him. Mr. Tenorio was hospitalized for two months as a result of his injuries. Judge Armijo found that a reasonable jury could determine Mr. Tenorio did not have sufficient time to comply with the order to put his knife down, did not make a threatening gesture and was not within striking distance of Officer Pitzer he was shot. The 10th interprets prior case law to mean if a suspect is holding a knife and is not charging at or threatening an officer, it is unreasonable for the officer to use deadly force. That is what happened here under the allegations and district court findings, the 10th concludes.

Judge Phillips dissents. He disagrees with the majority's interpretation of 10th precedent. The court must take a totality-of-the-circumstances approach, he says. Under that approach, Mr. Tenorio's advancing with a knife toward the officer in a 16-foot room with a difficult retreat, and with the possibility of him grabbing a gun from an officer, created probable cause to believe Mr. Tenorio presented a serious threat of harm to someone. The judge disagreed with the district court's conclusion that Mr. Tenorio might not have had enough time to comply with the command to drop his knife. In any event, the judge notes Mr. Tenorio previously did not comply with his family's requests to drop the knife. Plus the judge did not believe Officer Pizer had enough time to avoid being stabbed. It didn't matter, the judge says, that Mr. Tenorio did not gesture threateningly.