Baca v. CosperBaca v. Cosper
Eric Loman of Jackson Loman Stanford Downey & Stevens-Block, P.C., Albuquerque, New Mexico (Daniela Labinoti of Law Firm of Daniela Labinoti, P.C., El Paso, Texas, with him on the briefs), for Plaintiff-Appellant.
Philomena M. Hausler (Luis Robles with her on the brief), of Robles, Rael & Anaya, Albuquerque, New Mexico, for Defendants-Appellees.
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
PHILLIPS, Circuit Judge.
This case arises from the fatal shooting of Amelia Baca, a 75-year-old, mentally diminished woman in Las Cruces, New Mexico. The Estate filed a complaint alleging that the police officer who shot her acted with excessive force in violation of the Fourth Amendment. The district court granted the officer summary judgment on qualified-immunity grounds, reasoning that the Estate had not raised a genuine dispute of material fact about the officer‘s claim that he in fact perceived that Ms. Baca presented an immediate danger of serious bodily harm to himself and others. We conclude that the district court erred. Viewing the evidence in the light most favorable to the Estate, a reasonable jury could find a Fourth Amendment excessive-force violation. We also conclude that such a violation would have been clearly established under controlling law on the date of the shooting. So exercising our jurisdiction under
BACKGROUND
I. Factual Background
On April 16, 2022, one of Amelia Baca‘s daughters called 911, reporting that Ms. Baca, her 75-year-old mother who was suffering from dementia, had become aggressive and threatened to kill her and her daughter. Officer Jared Cosper, who was less than one-minute away, heard the dispatcher‘s description of the scene, and seeing how close he was to the Bacas’ home, responded to the call. He testified that he learned the following information while he was driving to the Bacas’ home: (1) that the 911 call concerned a domestic “behavioral issue“; (2) that Ms. Baca had a history of behavioral issues; (3) that Ms. Baca had threatened to kill the caller; (4) that the caller had barricaded herself and a child in a bedroom; (5) that Ms. Baca had been making stabbing motions at the floor with a knife; (6) that during the call, the caller had gone silent; and (7) that the 911 operator had at some point heard a child crying in the background. As he arrived on the Bacas’ street, he saw two women walking toward the Bacas’ home, but he was unsure if they entered it.
Media Ex. A at 1:11. As he walked past the outside of the duplex building itself, Officer Cosper arrived at the residence‘s “front” door on his right and saw into the living room through the screen door. Again, the view from Officer Cosper‘s body camera best sets the scene:
Officer Cosper announced himself in an ordinary tone and told the two women to step outside. As they passed by him, the first woman said something to Officer Cosper that he didn‘t hear clearly, and the second said to him, “Please be very careful with her.” Id. at 1:24-1:26. Now alone in the living room, Ms. Baca came more fully into Officer Cosper‘s view. Ms. Baca stood stationary about ten feet from Officer Cosper. Baca v. Cosper, No. 2:22-CV-00552-RB-GJF, 2023 WL 5725427, at *2 (D.N.M. Sept. 5, 2023). In each hand, Ms. Baca held a knife pointed toward the floor.
After Officer Cosper saw Ms. Baca, the calm scene he encountered ended. Officer Cosper immediately pointed his firearm at Ms. Baca and began yelling at her to drop the knives. The flashlight attached to Officer Cosper‘s firearm was turned on, shining light on Ms. Baca‘s chest and face. The women who had left the house hovered nearby and became frantic at the deteriorating situation. One of the women stressed to him that Ms. Baca “was mentally sick” to which Officer Cosper responded, “Okay.” Media Ex. A 1:26-1:37. Officer Cosper continued to yell at Ms. Baca to drop the knives. E.g., id. at 1:41-1:43 (“Drop the fucking knife!“), 2:04-2:05 (“Put the fucking knife down!“). After being told that Ms. Baca was “mentally sick,” Officer Cosper yelled at the two frantic women to back away, while keeping his eyes and firearm on Ms. Baca.
About then another Las Cruces police officer, Officer Fierro, arrived and moved the two women out past the tarp-lined entryway and into the open driveway. That left Officer Cosper an unobstructed retreat to the same area.
About thirty seconds after Officer Cosper started yelling at Ms. Baca, she moved the knife in her left hand to her right hand, so that both knives were in her right hand. Amid the now-intense scene, Ms. Baca lifted her right arm toward the inside of the house, removing the knives from Officer Cosper‘s view, and then turned her head that way too. While keeping her right arm extended, she turned back to Officer Cosper, raised her empty left hand to shoulder level toward him and pointed her hand toward the floor, and then lowered her head. Throughout the encounter, Ms. Baca was speaking to Officer Cosper, but
Officer Cosper continued to yell at her to put the knives down, and Ms. Baca lowered her right arm so the knives in her hand were again pointing to the floor and visible to him. After this, she made eye contact with Officer Cosper, and with the two knives in her right hand still pointing at the floor, she tilted her head back some and took two slow steps toward Officer Cosper. As her foot landed on the second step, when she was about six feet from Officer Cosper, he shot her twice in the chest, and she fell to the floor. As her face lay in the collecting pool of blood, Officer Cosper ordered another officer to pull her out into the pathway and handcuff her. Only 45 seconds elapsed from Officer Cosper‘s arriving at her doorway to his firing the fatal shots.
II. Procedural Background
Ms. Baca‘s estate filed a complaint in federal court against Officer Cosper, Miguel Dominguez (Las Cruces‘s chief of police), and the City of Las Cruces.1 Complaint, Baca v. Cosper, No. 2:22-CV-00552-RB-GJF (D.N.M. July 25, 2022), ECF No. 1. The Estate sued Officer Cosper for using excessive force
in violation of the Fourth Amendment.2 It also brought a claim of supervisory liability against Chief Dominguez and a claim of municipal liability against Las Cruces based on Officer Cosper‘s allegedly unconstitutional conduct.
The district court concluded that Officer Cosper was entitled to qualified immunity and thus granted him summary judgment. Baca, 2023 WL 5725427, at *14. Given that ruling, the parties agreed that Chief Dominguez and Las Cruces‘s joint motion for summary judgment was moot because the claims against those defendants depended on the excessive-force claim against Officer Cosper. So the parties also agreed that the order granting Officer Cosper summary judgment “resolved this matter so that entry of a final and appealable judgment is proper.” Amend. Supp. App. at 70. The Estate timely appealed the order.
DISCUSSION
We review de novo a district court‘s grant of summary judgment. Sanchez v. Guzman, 105 F.4th 1285, 1292 (10th Cir. 2024). In doing so, we view the evidence in the light most favorable to the Estate and draw all reasonable inferences in its favor as the non-moving party at summary judgment. Tolan v. Cotton, 572 U.S. 650, 656-67 (2014). But we accept facts clearly depicted in the officers’ body camera video footage if they dispel any
genuine dispute about those facts. See Scott v. Harris, 550 U.S. 372, 380-81 (2007). If the recording does not clearly depict an action, and the evidence can reasonably be interpreted to support either party‘s version of what happened, then we must take the Estate‘s version of what happened. See id.
“When a defendant asserts qualified immunity at summary judgment, the
A. The Constitutional Violation
The Estate asserts that Officer Cosper violated Ms. Baca‘s Fourth Amendment right to be free from excessive force by fatally shooting her when she posed no immediate threat of serious bodily injury or death to Officer Cosper or others. “We review Fourth Amendment claims of excessive force under a standard of objective reasonableness, judged from the perspective of a reasonable officer on the scene.” Tenorio v. Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015); accord Graham v. Connor, 490 U.S. 386, 396-97 (1989). “The reasonableness of an officer‘s actions depends both on whether the officers were in danger at the precise moment that they used force and on whether the officer‘s own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” Tenorio, 802 F.3d at 1164 (cleaned up); Arnold v. City of Olathe, 35 F.4th 778, 790 (10th Cir. 2022) (noting that “binding Tenth Circuit precedent requires us to consider whether the officers’ alleged reckless conduct created the need to use deadly force“).
In considering whether force was reasonable, we look to three non-dispositive factors, known as the Graham factors: (1) the severity of the crime; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or trying to flee. Graham, 490 U.S. at 396. In a deadly-force case, we also consider whether the officer had “probable cause to believe that there is a threat of serious physical harm to the officer or to others.” Tenorio, 802 F.3d at 1164 (quoting Est. of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008)) (alterations accepted).
To determine whether a reasonable officer would have probable cause to believe the suspect presented an immediate threat of serious physical harm, we are guided by four nonexclusive sub-factors, known as the Larsen factors:
(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.” Larsen, 511 F.3d at 1260. But those are only guides in determining “whether, from the perspective of a reasonable officer on the scene, the totality of the circumstances justified the use of force.” Tenorio, 802 F.3d at 1164 (quoting Larsen, supra).
Here, addressing the first Graham factor, we agree with the district court that the reported crime was a serious one—the 911 caller stated that Ms. Baca
That leaves us with what we‘ve termed the “most important” Graham factor. Est. of Taylor v. Salt Lake City, 16 F.4th 744, 763 (10th Cir. 2021) (cleaned up). In a deadly-force case, that factor asks whether Ms. Baca posed an immediate threat of serious physical harm to Officer Cosper or others. See
id. That means Officer Cosper‘s use of deadly force was unreasonable unless at the instant he fired his shots, a reasonable officer on the scene would have believed that Ms. Baca posed an immediate threat of serious physical harm to himself or others. See Larsen, 511 F.3d at 1260.
And our case law answers that question. We have held that it is unreasonable for an officer to use deadly force where the “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.” Tenorio, 802 F.3d at 1165-66 (quoting Walker v. City of Orem, 451 F.3d 1139, 1160 (10th Cir. 2006)); accord Zuchel v. City & Cnty. of Denver, 997 F.2d 730, 735-36 (10th Cir. 1993). Here, it is undisputed that Ms. Baca was holding only knives and that she made no slicing or stabbing motions toward Officer Cosper.3 And we agree with the district court that a jury could conclude
that Ms. Baca was not charging Officer Cosper.4 Baca, 2023 WL 5725427, at *9.
Because a jury could find that Ms. Baca was holding only a knife, was not charging Officer Cosper, and made no slicing or stabbing motions toward him, we conclude that the district court erred by granting summary judgment against the Estate. We now turn to the district court‘s conclusion that Officer Cosper‘s conduct did not violate clearly established law.
B. Clearly Established Law
Though we have determined that a reasonable jury could find that Officer
to the conduct at issue,” Lowe v. Raemisch, 864 F.3d 1205, 1208 (10th Cir. 2017). Similarity between the cases is “especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix, 577 U.S. at 12 (cleaned up).
With those requirements in mind, we rely on the same clearly established law as Tenorio did, as well as the clearly established law announced in Tenorio itself.5 802 F.3d at 1165-66. In Tenorio, we interpreted two of our decisions—
Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006) and Zuchel v. City & Cnty. of Denver, 997 F.2d 730 (10th Cir. 1993)—as clearly establishing “that 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
In Tenorio, police were called to the home of a man (Russell Tenorio) who was intoxicated, waving a knife around, holding a knife to his own throat, and threatening self-harm. 802 F.3d at 1161-62. The 911 caller said she was afraid Tenorio was going to hurt himself or his wife. Id. at 1162. The dispatcher told the responding officers that Tenorio had a history of violence
and that other family members, including the caller, were inside the home. Id. When the officers arrived, they were met in the front yard by the 911 caller, who was still speaking to the dispatcher and appeared frightened. Id. After speaking briefly with her, the officers walked through the front door and into the living room, which was about 14 feet by 16 feet. Id. The officers heard no raised voices or other sounds that suggested a disturbance. Id.
Tenorio, his wife, and another man were inside the kitchen, which was partially visible from the living room where the officers were standing. Id. at 1162-63. As the officers entered the living room, one officer said, “Please step out here.” Id. at 1162. Tenorio‘s wife stepped out of the kitchen first and said, “Russell, put that down.” Id. Tenorio followed her out of the kitchen, and the other man in the kitchen followed him. Id. at 1163. An officer assisted Tenorio‘s wife from the house. Id. When Tenorio appeared to the officers, he had a blank stare on his face and was holding a santoku-style kitchen knife with a three-and-a-quarter-inch blade. Id. “He was holding the knife loosely in his right hand, his arm hanging by his side . . . .” Id. As Tenorio entered the living room, he kept walking at an unbroken “average speed.” Id. (internal quotation marks omitted). The lead officer saw the knife in his hand and yelled at him four times in rapid succession to put the knife down. Id. But Tenorio continued another two and one-half steps into the 14-by-16-foot living room without dropping the knife. Id. at 1162-63. With the doorway congested with law enforcement officers, the lead officer shot him and another officer tased him, causing nonfatal but life-threatening injuries. Id. at 1163.
On those facts, we affirmed the denial of summary judgment because Tenorio had made no aggressive move or hostile action toward the officer (i.e., the suspect was holding only a knife, was not charging, and was not making slicing or stabbing motions toward the officer), meaning that Zuchel and Walker compelled our conclusion that the officer‘s use of deadly force violated clearly established law. See id. at 1165-66.
Tenorio, Zuchel, and Walker compel the same result in this case. Ms. Baca was not charging Officer Cosper and made no slicing or stabbing motions toward him. See id.; Walker, 451 F.3d at 1160; Zuchel, 997 F.2d at 735-36. So it was clearly established that Officer Cosper‘s use of deadly force against Ms. Baca was unreasonable.
Before we conclude, we note that the district court‘s analysis credited Officer Cosper‘s argument that he had no realistic option to retreat because if he stepped to his right, he‘d lose sight of Ms. Baca and put the other people in the home at risk. Baca, 2023 WL 5725427, at *12-13. This overstates the risks that Officer Cosper faced. If Ms. Baca moved toward him, he could step to his right and back down the pathway and into the driveway. If she followed, she would pose no risk to the people inside the home and Officer Cosper would not lose sight of her. Indeed, he would lead her down the driveway, where another officer with a taser would be waiting. If she did not follow him, he would
Taking the facts in the light most favorable to the Estate, a reasonable jury could conclude that Officer Cosper violated Ms. Baca‘s clearly established constitutional rights by shooting her. As a result, we conclude the district court erred in finding Officer Cosper was entitled to summary judgment based on qualified immunity.
CONCLUSION
For the reasons stated, we reverse the district court‘s decision to grant Officer Cosper summary judgment on the § 1983 excessive-force claim. The case is remanded for further proceedings consistent with this opinion.