ALBUQUERQUE, N.M. — The claim in the lawsuit is by now a familiar one: Police are called to a family incident and, by the time the shouting is over, the agitator is shot and the caller wishes he or she had never picked up the phone.
Those are the claims of Russell Tenorio, a man with mental disabilities shot in November 2010 after a family member called police for help calming him after he had been drinking and threatening himself with a knife. And an appeals court says a jury can hear them.
U.S. District Court Chief Judge M. Christina Armijo refused to dismiss the case based on qualified immunity, a doctrine that protects officials from civil damages as long as their conduct doesn’t violate a clearly established constitutional right.
The 10th Circuit Court of Appeals, upholding Armijo’s ruling, said there’s enough evidence to let a jury decide whether Albuquerque police officer Brian Pitzer lacked probable cause to believe Tenorio seriously threatened him or two other officers who entered the home with weapons.
Tenorio survived the shooting, but only after 2½ months in the hospital and the loss of a kidney.
In a 2-1 decision this month, Circuit Judge Harris Hartz found for Tenorio, who also had argued that it was Pitzer who created the danger. Armijo examined factors such as whether the suspect was ordered to drop his weapon, whether he had made any hostile motions and the distance separating the suspect from the officer.
For purposes of the appeal, attorneys for the city and for Tenorio agreed on the following facts:
Hilda Valdez called 911 to report that Tenorio, her sister-in-law’s husband, was intoxicated and holding a knife to his own throat, and she was worried that he might hurt himself or his wife.
Three officers were dispatched, and Pitzer, who had no crisis-intervention training, also responded.
“Without asking if there was a hostage or settling on a tactical plan, the officers lined up outside the front door,” the opinion says in summarizing facts.
Pitzer announced that he was “going lethal” and had his handgun drawn as he entered the home first. Officers behind him carried a Taser, a drawn handgun and a shotgun with beanbag rounds. Pitzer entered without announcing himself.
Mrs. Tenorio walked into the living room with her hands up, followed by her husband, who had “a blank stare” and was carrying a kitchen knife with a 3¼-inch blade held loosely in his right hand, his arm by his side. An officer grabbed Mrs. Tenorio and took her outside. When Pitzer saw the knife, he ordered Tenorio three times to put it down. Tenorio took two steps into the living room before Pitzer shot him.
The entire incident lasted less than four minutes.
“One could argue that Pitzer appropriately used lethal force,” Hartz wrote. But he said a jury potentially could find that Tenorio didn’t have enough time to comply with the officer’s order.
Judge Gregory Phillips, former attorney general of Wyoming, said in a 24-page dissent that he saw no violation of Tenorio’s constitutional rights. He said there was probable cause to believe Tenorio presented a serious threat of harm to others.