Tenorio v Pitzer

Tenorio sued Pitzer alleging excessive force when Pitzer shot Tenorio during a domestic call. The district court denied Pitzer’s motion to dismiss on qualified immunity grounds. The panel, 2-1, affirmed. The majority held that under circuit precedent, Tenorio stated a claim as he did not make any sudden movements toward Pitzer, did not threaten Pitzer held a knife by his side and did not threaten anyone with it and may have had insufficient time to obey instructions to drop the knife. The dissent argued that circuit precedent requires a totality of the circumstances evaluation of qualified immunity claims, that under the facts here-Tenorio had threatened himself and scared family members, was told several times by several people to put down his knife, advanced towards Pitzer who was in the living room with very limited opportunities to withdraw and Tenorio was at most 6 feet from Pitzer-all combine to make Pitzer fear of death of serious injury reasonable under the circumstances. It also argued that circuit precedent had affirmed qualified immunity grants in less dangerous circumstances. Reaching an alternative theory, the dissent argued that Pitzer did not create the dangerous circumstances here as Tenorio got drunk, threatened family members and advanced on officers in a small living room and thus the district court’s insistence on trying to talk Tenorio down was impermissible second guessing.