Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 22, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court ___________________________________________
ESTATE OF PATRICK HARMON, SR.; PATRICK HARMON, II, as personal representative of the Estate of Patrick Harmon, Sr. and heir of Patrick Harmon, Sr.; TASHA SMITH, as heir of Patrick Harmon, Sr.,
Plaintiffs - Appellants,
v. No. 23-4125
SALT LAKE CITY, a municipality; OFFICER CLINTON FOX, in his individual capacity,
Defendants - Appellees. ___________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:19-CV-00553-HCN) ___________________________________________
Cassandra Dinaro, Student Attorney, Student Law Office, University of Denver Sturm College of Law, Civil Rights Clinic, Denver, Colorado (Laura L. Rovner, Nicholas A. Lutz, and Miriam Kerler, and MaKenna Zoglmann and Teagn Foti, Student Attorneys, University of Denver Sturm College of Law; Qusair Mohamedbhai, Rathod Mohamedbhai, LLC, Denver, Colorado; and Corey D. Riley, Deiss Law, PC, Salt Lake City, Utah, with her on the briefs), for Plaintiffs-Appellants.
Katherine R. Nichols, Senior City Attorney, Salt Lake City Corporation, for Defendants-Appellees. ___________________________________________ Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 2
Before MATHESON, BACHARACH, and FEDERICO, Circuit Judges. ___________________________________________
BACHARACH, Circuit Judge. ___________________________________________
This appeal involves the Fourth Amendment’s protection against
unreasonable seizures. The reasonableness of a seizure turns on the totality
of circumstances. Tennessee v. Garner, 471 U.S. 1, 8–9 (1985). These
circumstances may include the threat posed by a suspect and the degree of
force that the officer uses. See Graham v. Connor, 490 U.S. 386, 396
(1989); Tenorio v. Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015).
When the circumstances create an imminent threat of serious physical
injury or death, an officer can ordinarily use lethal force. But how do we
assess the imminence of a threat at the summary judgment stage when
factfinders could reasonably disagree about the suspect’s actions?
1. Officer Fox shoots Mr. Harmon.
The circumstances began when a police officer for Salt Lake City
(Mr. Kris Smith) stopped a man, Mr. Patrick Harmon, for a traffic violation
while he was riding a bicycle. Mr. Harmon gave a fake name, but Officer
Smith was able to identify Mr. Harmon and found that he had an active
felony warrant. Officer Smith decided to arrest Mr. Harmon.
To make the arrest, Officer Smith tried to handcuff Mr. Harmon. But
Mr. Harmon broke free and ran, with Officer Smith giving chase along with
two other officers (Mr. Clinton Fox and Mr. Scott Robinson). All the 2 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 3
officers said that they had seen Mr. Harmon reach toward his waist or a
pocket.
Mr. Harmon slowed, turned sideways, and brought his hands together
in front of his chest. And all of the officers later said that they had heard
Mr. Harmon say something about cutting or stabbing.
Officer Fox added that he had seen Mr. Harmon holding a knife,
Officer Smith said that he hadn’t seen a knife, and Officer Robinson
couldn’t remember.
When Officer Fox was only about five to seven feet away, he shot
Mr. Harmon three times. Officer Smith, who was about fifteen feet away,
fired his taser. Mr. Harmon later died from the gunshots. When
Mr. Harmon fell, a knife lay next to his right arm.
2. Mr. Harmon’s estate sues for excessive force.
Mr. Harmon’s estate and his two children sued Officer Fox and Salt
Lake City, claiming excessive force. 1 The district court dismissed the
action, but we reversed. Est. of Harmon, Sr. v. Salt Lake City, No. 20-
4085, 2021 WL 5232248 (10th Cir. Nov. 10, 2021) (unpublished). On
remand, the district court granted summary judgment to Officer Fox and
Salt Lake City, reasoning that any factfinder would have
1 The estate and children also claimed a denial of equal protection and asserted state-law claims for wrongful death and unnecessary rigor. These claims aren’t at issue here.
3 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 4
found that Mr. Harmon had been holding a knife and
regarded the shooting as reasonable.
Mr. Harmon’s estate and his children appeal.
3. We independently consider the grant of summary judgment.
In deciding this appeal, we conduct de novo review, applying the
same standard that governed in the district court. See Grubb v. DXP
Enters., Inc., 85 F.4th 959, 965 (10th Cir. 2023). Under that standard,
Officer Fox and Salt Lake City are entitled to summary judgment if they
show a right to judgment as a matter of law based on the absence of a
genuine dispute of material fact. Fed. R. Civ. P. 56(a). In determining
whether Officer Fox and the city are entitled to judgment as a matter of
law, we view the evidence and all reasonable inferences in the light most
favorable to Mr. Harmon’s estate and his children. Tolan v. Cotton, 572
U.S. 650, 656–67 (2014).
That evidence includes video and audio recordings from the officers’
body cameras. If the events are conclusively shown in the recordings, we
rely on the recordings to determine the facts. See Scott v. Harris, 550 U.S.
372, 380–81 (2007). But “[i]f the recording[s] do[] not clearly depict an
action, and the evidence can reasonably be interpreted to support either
party’s version of what happened,” we would need to credit the version
given by the estate and children. Baca v. Cosper, 128 F.4th 1319, 1324
(10th Cir. 2025). 4 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 5
4. For Officer Fox’s assertion of qualified immunity, a genuine dispute of material fact exists.
Officer Fox asserted a defense of qualified immunity, shifting the
burden to the estate and children to show that
a constitutional violation had taken place and
this violation had been clearly established.
Sanchez v. Guzman, 105 F.4th 1285, 1292 (10th Cir. 2024). A right is
clearly established when it’s “sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.”
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam).
a. A factfinder could reasonably find a constitutional violation.
The constitutionality of the shooting turns on its reasonableness.
Tenorio v. Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015). This
determination involves three factors: (1) the severity of Mr. Harmon’s
crime; (2) the immediacy of a threat to the officers or others; and (3) the
resistance of Mr. Harmon or an effort to flee. Graham v. Connor, 490 U.S.
386, 396–97 (1989). (We refer to these as the Graham factors.)
The second factor—the immediacy of a threat to safety—is
“undoubtedly the ‘most important’ and fact intensive.” Arnold v. City of
Olathe, 35 F.4th 778, 789 (10th Cir. 2022) (cleaned up). This factor
triggers a separate test when the force is deadly, inquiring into “probable
cause to believe that the[] [suspect posed] a threat of serious physical harm 5 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 6
to [the officer] or to others.” Tenorio v. Pitzer, 802 F.3d 1160, 1164 (10th
Cir. 2015). This inquiry is guided by four considerations: (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.” Est. of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260
(10th Cir. 2008). (We refer to these as the Larsen considerations.)
The first two Larsen considerations assume that an officer sees the
suspect with a weapon. But we apply these considerations even when the
parties disagree over whether the officer saw a weapon. See Clerkley v.
Holcomb, 121 F.4th 1359, 1362–63 (10th Cir. 2024) (applying the four
Larsen considerations when the officer contended that the suspect was
holding “something black in his hand” and the suspect maintained that his
hands were empty). So we apply the Larsen considerations here.
The first Larsen consideration is whether Officer Fox ordered
Mr. Harmon to drop his weapon. Reavis Est. of Coale v. Frost, 967 F.3d
978, 988 (10th Cir. 2020). For this consideration, Officer Fox and the city
don’t contend that anyone ordered Mr. Harmon to drop the knife.
But the district court doubted that Officer Fox had enough time to
tell Mr. Harmon to drop the knife. Est. of Harmon, Sr. v. Salt Lake City,
No. 2:19-cv-553-HCN, 2023 WL 5334118, at *8 (D. Utah. Aug. 18, 2023)
6 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 7
(unpublished). The estate and children argue that Officer Fox had enough
time to warn Mr. Harmon during the six seconds that elapsed during the
chase.
Officer Fox and the city challenge the preservation of this argument,
pointing out that in district court, Mr. Harmon’s estate and children didn’t
rely on the six seconds that had elapsed. Appellant’s App’x vol. 3, at 670.
But the estate and children preserved their overarching contention on this
Larsen consideration by contending that Officer Fox could have issued a
warning:
“As to the first Estate of Larsen factor, the officers never ordered Mr. Harmon to drop a weapon.” Est. of Harmon, Sr., 2021 WL 5232248, at *10. While Defendants argue that Officer Fox did not have time to issue an order or warning prior to opening fire on Mr. Harmon, the Tenth Circuit Court of Appeals did not credit that defense in its de novo review of the video evidence. See id. This factor unquestionably weighed in favor of Plaintiffs.
Appellant’s App’x vol. 3, at 670. Through this contention in district court,
the estate and the children preserved their argument that Officer Fox had
enough time to issue a warning.
Because this argument was preserved, we address the merits. A
factfinder could conclude, like the district court, that it was not feasible
for Officer Fox to issue a warning in “rapidly evolving circumstances
involving deadly threats.” Est. of Harmon, Sr. v. Salt Lake City, No. 2:19-
cv-553-HCN, 2023 WL 5334118, at *8 (D. Utah. Aug. 18, 2023)
(unpublished). But a factfinder could also conclude that during the chase,
7 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 8
which took six seconds, Officer Fox had enough time to issue a warning.
So the first Larsen consideration favors the estate and the children. See
Clerkley v. Holcomb, 121 F.4th 1359, 1365 (10th Cir 2024) (concluding
that the first Larsen consideration favored the suspect because the officer
had immediately fired a weapon after shouting “show me your hands” and a
factfinder could conclude that the suspect’s hands had been empty); Pauly
v. White, 874 F.3d 1197, 1216 (10th Cir. 2017) (concluding that the first
Larsen consideration favored the suspect’s estate and family because an
officer could have provided a warning during a five-second interval).
The second Larsen consideration is whether Mr. Harmon made
hostile motions with a knife. Est. of Larsen ex rel. Sturdivan v. Murr, 511
F.3d 1255, 1260 (10th Cir. 2008). We know that Mr. Harmon had a knife,
for it was lying on the ground close to his right arm when he collapsed
from the gunshots. 2 But did Officer Fox see Mr. Harmon brandishing a
knife?
The parties disagree in their answers. Officer Fox insists that he saw
Mr. Harmon brandish the knife near his torso area; the estate and children
deny that Mr. Harmon did anything with the knife. Though the estate and
2 The estate and children speculate that someone else might have left the knife on the ground where Mr. Harmon fell. But that speculation is unreasonable even when we credit the estate and the children with all reasonable inferences from the evidence. See Part 3, above.
8 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 9
children weren’t present at the scene, we “should be cautious on summary
judgment to ‘ensure that the officer is not taking advantage of the fact that
the witness most likely to contradict his story—the person shot dead—is
unable to testify.’” Pauly v. White, 874 F.3d 1197, 1217–18 (10th Cir.
2017) (quoting Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999)).
With this caution, we conclude that a reasonable factfinder could
have credited the version embraced by the estate and children, for “there
was no knife visible in the video.” Est. of Harmon, Sr. v. Salt Lake City,
No. 20-4085, 2021 WL 5232248 (10th Cir. 2021) (unpublished). Though
the video doesn’t reflect a knife, Officers Fox and Smith testified about
what they had seen. Both officers testified that they had been looking near
Mr. Harmon’s torso area. With this focus, Officer Fox testified that he had
seen Mr. Harmon hold the knife near his chest area when they were about
five to seven feet away. Officer Smith was about fifteen feet away, but he
testified that he hadn’t seen a knife while looking at the same part of
Mr. Harmon’s body:
Q. Did you see anything in Mr. Harmon’s hands?
A. No.
. . . .
Q. . . . And at no point in the interaction up to this time did you observe anything in Mr. Harmon’s hands?
9 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 10
A. I did not.
Q. . . . Did you believe that Mr. Harmon was armed at the time you fired your taser?
Q. . . . What did you think when you heard the shots from Mr. Fox?
A. Truthfully? What the f***.
Q. What made you think that?
A. Because what I perceived was different than what [Officer Fox] saw and in my head I had not seen a knife or any other reason, so I was trying to figure out exactly what he saw and why he felt it was appropriate to fire his pistol.
Q. At that time did you think that deadly force was necessary?
A. If I was basing it solely off of what I could see at that time, no.
Appellants’ App’x vol. 6, at 1119.
The videos reflect similar viewpoints for Officers Smith and Fox. For
example, this is what Officer Smith saw from roughly fifteen feet away:
10 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 11
Appellant’s App’x vol. 7, at 557. And this is what Officer Fox saw from
roughly five to seven feet away:
Appellant’s App’x vol. 2, at 489.
In addition to Officer Smith’s testimony and the absence of a knife in
the videos, the estate and children point to two other pieces of evidence
suggesting that Mr. Harmon hadn’t brandished a knife:
1. The police conducted DNA tests on the knife, which lay next to Mr. Harmon’s right arm, and the results were inconclusive.
11 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 12
2. Officer Fox didn’t warn the other officers about a knife or mention it right after the shooting.
Granted, Officer Fox and Salt Lake City presented contrary evidence,
including the chaotic nature of the chase, with Mr. Harmon changing
direction and the officers looking at different parts of Mr. Harmon’s body.
For example, Officer Fox said that he was watching Mr. Harmon’s hands;
Officer Smith said that he was looking at Mr. Harmon’s torso area in order
to shoot him with a taser.
But these circumstances wouldn’t prevent a reasonable factfinder
from crediting the version presented by the estate and children. After all,
the chaotic events affected Officer Fox as well as Officer Smith. And even
though Officer Smith was looking at Mr. Harmon’s torso area,
Mr. Harmon’s right hand was in front of that area when Officer Fox says
that he saw the knife. So both officers had a similar view of Mr. Harmon’s
hands right before Officer Fox fired.
Downplaying the videos and Officer Smith’s account, Officer Fox
and the city rely on
Estate of Valverde by & through Padilla v. Dodge, 967 F.3d 1049, 1065 (10th Cir. 2020) and
Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1263 n.4 (10th Cir. 2008).
In these cases, multiple officers saw the suspect wielding a weapon.
Valverde, 967 F.3d at 1065; Larsen, 511 F.3d at 1263 n.4. In Valverde,
12 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 13
other officers didn’t see a weapon; but these officers had a different view
of the suspect. 967 F.3d at 1065.
These opinions don’t apply here. Only one officer saw Mr. Harmon
brandishing a knife even though Officer Smith had a similar view, and
none of the video recordings show a knife in Mr. Harmon’s hand. Given
the video recordings and different accounts, a reasonable factfinder could
find that Mr. Harmon hadn’t brandished a knife.
Officer Fox and the city point out that a knife was ultimately found
near Mr. Harmon’s right arm when he crashed to the ground. Given the
nearby knife, a reasonable factfinder would surely have found that
Mr. Harmon had the knife when he was running. See p. 8 n.2, above. But
was the knife in his pocket, or was he brandishing it? The difference
matters because there’s “a fundamental distinction between mere
possession of a weapon and hostile movements with it.” Rosales v.
Bradshaw, 72 F.4th 1145, 1153 (10th Cir. 2023) (quoting St. George v.
City of Lakewood, No. 20-1259, 2021 WL 3700918, at *7 (10th Cir.
Aug. 20, 2021) (unpublished) (emphasis in original)). Though Mr. Harmon
unquestionably possessed the knife, a genuine dispute of material fact
exists over whether he had made hostile movements with it.
Officer Fox and the city point out that the three officers saw
Mr. Harmon moving his hands toward either his waist or his pocket. These
accounts are supported by the video recordings.
13 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 14
But was that movement hostile? Perhaps if the officers knew that
Mr. Harmon had a knife in his pocket. But how would they have known
that?
Officer Fox and the city answer that the officers would have known
because the officers had heard Mr. Harmon state that he was going to cut
or stab. But this statement can’t be heard on any of the video recordings
even though other sounds are audible (like Officer Fox yelling “I’ll
f***ing shoot you” and noises from Officer Smith’s radio). See Est. of
Harmon, Sr. v. Salt Lake City, No. 20-4085, 2021 WL 5232248, at *4 (10th
Cir. Nov. 10, 2021) (unpublished) (stating that “no verbal threats made by
Mr. Harmon can be heard on the video”). Moreover, we’ve held that even
when a video recording lacks audio, we must credit the claimant’s version
if the parties disagree about what a suspect had said. Est. of Booker v.
Gomez, 745 F.3d 405, 412 n.3 (10th Cir. 2014).
Granted, a factfinder might have credited the account by Officer Fox
and the city despite the lack of corroboration in the recordings. For
example the recordings pick up Mr. Harmon’s voice before the chase, and
Mr. Harmon allegedly referred to stabbing or cutting while everyone was
running. In addition, the officers were wearing microphones; Mr. Harmon
wasn’t. So valid reasons exist for a factfinder to credit the officers’
accounts about Mr. Harmon’s threats to stab or cut.
14 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 15
But we must view the evidence and reasonable inferences favorably
to the estate and children. See Part 3, above. When viewing the evidence
and reasonable inferences favorably to the estate and children, a factfinder
could legitimately disbelieve the officers’ testimony about hearing threats
of stabbing or cutting. See Pauly v. White, 874 F.3d 1197, 1218 (10th Cir.
2017) (observing that the court “must . . . look at the circumstantial
evidence that, if believed, would tend to discredit the police officer’s
story”). So a reasonable factfinder could question the account of Officer
Fox and the city based on what’s missing from the recordings.
Officer Fox also argues that even if he had been wrong, he still might
have reasonably believed that Mr. Harmon was making hostile motions
with a knife. But this argument assumes that a factfinder would need to
regard Officer Fox’s mistaken belief as reasonable. The reasonableness of
a mistake would entail a question of fact rather than a matter for the court
to decide as a matter of law. See Clerkley v. Holcomb, 121 F.4th 1359,
1364 (10th Cir. 2024).
In resolving this factual dispute, the jury could question the
reasonableness of Officer Fox’s mistake based on Officer Smith’s account.
After all, Officer Smith had a clear view of Mr. Harmon’s torso from
roughly fifteen feet away and hadn’t seen Mr. Harmon making hostile
motions with a knife. Because the jury could regard a factual mistake as
unreasonable, the mistake wouldn’t entitle Officer Fox to summary
15 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 16
judgment. See id. (concluding that the reasonableness of an officer’s
mistaken perception involved a question of fact preventing summary
judgment for the officer).
The third Larsen consideration involves the distance between the
officers and the suspect. The district court concluded that Officer Fox had
been only five to seven feet from Mr. Harmon, creating a “menacing and
imminent threat to the officers’ safety.” Est. of Harmon, Sr. v. Salt Lake
City, No. 2:19-cv-553-HCN, 2023 WL 5334118, at *9 (D. Utah. Aug. 18,
2023) (unpublished).
The proximity doesn’t necessarily compel a factfinder to regard a
threat as imminent. We recently addressed a similar issue in Baca v.
Cosper, 128 F.4th 1319 (10th Cir. 2025). There the officer was six feet
away from the suspect, who was walking toward the officer while wielding
two knives. Id. at 1324. We held that even then, a reasonable factfinder
could find that the suspect hadn’t posed an imminent threat to the officer.
Id. at 1328–29; see p. 20 n.4, below. Under Baca, the five-to-seven-foot
distance between Mr. Harmon and Officer Fox didn’t necessarily create an
imminent threat.
Addressing the fourth Larsen consideration, the district court
concluded that the suspect’s manifest intentions support the existence of an
immediate threat. Est. of Harmon, Sr. v. Salt Lake City, No. 2:19-cv-553-
HCN, 2023 WL 5334118, at *9 (D. Utah. Aug. 18, 2023) (unpublished).
16 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 17
For this conclusion, the court reasoned that Mr. Harmon had turned toward
the officers while brandishing a knife and threatening to stab or cut them.
Id. at *9. But if Officer Fox hadn’t seen a knife or heard a threat, the
factfinder could reasonably doubt the imminence of a threat from
Mr. Harmon’s turn to his side.
Applying the four Larsen considerations, a factfinder could
reasonably find that
Mr. Harmon hadn’t brandished a knife or threatened to stab or cut anyone and
Officer Fox hadn’t ordered Mr. Harmon to drop the knife (if he was holding it).
Officer Fox and the city counter with arguments on the two other
Graham factors:
1. The crime was serious because Officer Fox knew that Mr. Harmon had an outstanding warrant for a felony.
2. Mr. Harmon was fleeing to avoid arrest.
See Graham v. Connor, 490 U.S. 386, 396–97 (1989).
Challenging the defendants’ reliance on the first Graham factor, the
estate and children question whether Officer Fox knew about the felony
warrant. Officer Fox acknowledged that he hadn’t known the specifics
about the warrant, but stated under oath that he had known that the crime
was a felony because the jail was accepting bookings only for felony
warrants. For the sake of argument, we can assume that the estate and
17 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 18
children failed to create a genuine dispute of material fact over Officer
Fox’s awareness that the warrant involved a felony. With this assumption,
the first Graham factor would support Officer Fox’s decision to use force. 3
And the third Graham factor supports the reasonableness of the force
because Mr. Harmon was admittedly fleeing to avoid an arrest.
Two Graham factors thus support the reasonableness of force: (1) the
severity of the crime and (2) Mr. Harmon’s attempt to flee in order to
avoid arrest. But when the disputed evidence is viewed in the light most
favorable to Mr. Harmon’s estate and children, the remaining factor—the
immediacy of a threat to officer safety—would suggest that the deadly
force was unreasonable. And this factor is the most important of the three.
See Pauly v. White, 874 F.3d 1197, 1215–16 (10th Cir. 2017). Given this
Graham factor, we consider the constitutionality of the shooting if
Mr. Harmon hadn’t posed an immediate threat to anyone. Without such a
threat, the shooting would have violated the Constitution. See Clerkley v.
Holcomb, 121 F.4th 1359, 1365 (10th Cir. 2024) (stating that if a suspect
“posed no threat . . . and . . . a reasonable officer would have recognized as
much,” this fact would be “dispositive of a Fourth Amendment violation
3 In district court, the estate and children admitted that the severity of the offense had supported the use of some force, but argued that the use of deadly force had been disproportionate to the need. See Appellants’ App’x vol. 8, at 1563 (plaintiffs’ counsel conceding that this factor supports the use of force while noting that the disagreement involves “a matter of degree and proportionality”). 18 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 19
. . . because deadly force is constitutional only ‘if a reasonable officer . . .
would have had probable cause to believe that there was a threat of serious
physical harm to themselves or others’” (quoting Zia Trust Co. v. Montoya,
597 F.3d 1150, 1154 (10th Cir. 2010))); Tenorio v. Pitzer, 802 F.3d 1160,
1164–1166 (10th Cir. 2015) (concluding that a jury could find that an
officer’s use of lethal force had been unreasonable when the suspect was
holding a knife at his side but hadn’t taken “hostile or provocative action
toward the officers”). So at the stage of summary judgment, the estate and
children have shown a constitutional violation.
b. A constitutional violation would have been clearly established.
For the claim against Officer Fox, a constitutional violation would
have been clearly established. See Sanchez v. Guzman, 105 F.4th 1285,
1292 (10th Cir. 2024). In challenging the clarity of a violation, Officer Fox
points to factual differences in the cases and the possibility of a reasonable
mistake.
In the prior appeal, we considered the clarity of a constitutional
violation at the motion-to-dismiss stage. At that stage, we observed that
“[t]here have been numerous cases in this circuit involving an officer
shooting of an unarmed (or knife-wielding) person.” Est. of Harmon, Sr. v.
Salt Lake City, No. 20-4085, 2021 WL 5232248, at *5 (10th Cir. Nov. 10,
2021) (unpublished). We concluded that those cases had established a
19 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 20
constitutional violation “where an officer had reason to believe that a
suspect was only holding a knife, not a gun, and the suspect was not
charging the officer and had made no slicing or stabbing motions toward
him.” Id. (quoting Walker v. City of Orem, 451 F.3d 1139, 1160 (10th Cir.
2006) (citing Zuchel v. City & Cnty. of Denver, 997 F.2d 730, 735–36
(10th Cir. 1993))).
We also addressed the potential threat from Mr. Harmon’s sideward
turn, suggesting that he might try to approach Officer Fox. We pointed out
that we had held in Tenorio v. Pitzer that a factfinder could reasonably
view a shooting as unreasonable even when a suspect had wielded a knife
and taken three steps toward the officers. 802 F.3d 1160, 1164–1166 (10th
Cir. 2015). 4
We concluded that if Mr. Harmon hadn’t brandished a knife or
threatened to cut or stab the officers, the shooting would have violated a
clearly established constitutional right. Id. That conclusion is equally
4 As noted above, our opinion in Baca v. Cooper relied on Tenorio to characterize a constitutional violation as clearly established when a suspect carrying two knives had taken two steps to come within six feet of an officer. Baca v. Cosper, 128 F.4th 1319, 1328–29 (10th Cir. 2025); see p. 16, above. Though Officer Fox wouldn’t have had the benefit of our opinion in Baca, it provides guidance on the applicability of Tenorio when a police officer shoots a suspect who isn’t making stabbing or cutting motions with a knife. See Clerkley v. Holcomb, 121 F.4th 1359, 1366 (10th Cir. 2024) (stating that opinions issued after an incident can bear on qualified immunity by providing guidance on the historical state of the law). 20 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 21
fitting here: If Mr. Harmon hadn’t brandished a knife or threatened the
officers, the shooting would have violated a clearly established
constitutional right.
Officer Fox and Salt Lake City argue that factual differences exist
between this case and three others (Tenorio v. Pitzer, 802 F.3d 1160 (10th
Cir. 2015), Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006), and
Zuchel v. City and County of Denver, 997 F.2d 730 (10th Cir. 1993)). But
before this incident, we had held that it wasn’t reasonable for an officer to
use deadly force when a suspect was wielding a knife but not making any
“slicing or stabbing motions toward [the officer].” Walker, 451 F.3d at
1160. Given our prior focus on the absence of slicing or stabbing motions,
the factual distinctions between the cases don’t undermine the clarity of a
constitutional violation under the plaintiffs’ version of events. See
Clerkley v. Holcomb, 121 F.4th 1359, 1366 (10th Cir. 2024) (rejecting the
defendant’s reliance on factual distinctions with prior cases because their
“unit[ing]” characteristic had involved recognition of the constitutional
prohibition against shooting someone who was “unarmed and
nonthreatening”).
* * *
A factfinder could legitimately determine that
Officer Fox had shot Mr. Harmon despite the absence of an imminent threat and
21 Appellate Case: 23-4125 Document: 72 Date Filed: 04/22/2025 Page: 22
a mistaken perception of a threat would have been unreasonable.
Given the reasonableness of these potential findings, the district court
should have denied qualified immunity to Officer Fox.
5. The existence of a constitutional violation requires reconsideration of the city’s liability.
The estate and children sued not only Officer Fox, but also Salt Lake
City. The district court granted summary judgment to the city, reasoning
that it couldn’t incur liability in the absence of an underlying
constitutional violation by Officer Fox. But we have elsewhere concluded
that a reasonable factfinder could find a constitutional violation by Officer
Fox. The district court should thus revisit the city’s argument for summary
judgment.
Reversed and remanded for further proceedings consistent with this
opinion.