On May 28, 2025, the Tenth Circuit Court of Appeals decided Cruz v. City of Deming[i], which serves as an excellent review of the law related to the use of deadly force under the Fourth Amendment. The relevant facts of Cruz, taken directly from the case, are as follows:
On February 3, 2021, a motorist driving on Interstate 10 near Deming, New Mexico called 911 to report a man, wearing a gray sweater and a hat, standing in the median “shooting” a “big gun” at westbound traffic. The motorist indicated she was unclear if the gun was real.
Officers from multiple law enforcement agencies, including the Deming Police Department and Luna County Sheriff’s Office, responded to the report of an active shooter. An officer spotted Valencia, who matched the reported description, walking north of the highway. He observed Valencia carrying a weapon resembling an AR-15 rifle in front of him, pointing it to the ground. The officer shared Valencia’s location over radio, indicating that Valencia had “an AR.”
A short time later, a group of law enforcement officers on foot encountered Valencia in a mesquite field, located north of Interstate 10; some of the officers recognized Valencia from previous encounters. Several officers were aware Valencia had a history of mental illness, and that he could be unpredictable and violent. They were also aware he sometimes carried weapons such as pellet guns and BB guns. The officers testified that they believed Valencia was the suspect described by the central dispatch and that he was carrying a real firearm. One of the officers testified Valencia informed him that “he had been ‘out shooting rabbits,’ which confirmed [his suspicion] that he was carrying a firearm.” App. Vol. I, 174.
- The Fatal Shooting
Approaching Valencia, multiple officers shouted commands and more than one officer told him to put his hands up. Valencia momentarily put his hands up, but then brought his hands back down and crossed his arms in front of his chest. The officers again ordered Valencia to put his hands up and drop to his knees, and he complied. After getting to his knees, Valencia touched the gun hanging from a shoulder strap at his left side with his left hand and moved the gun so that it was positioned in front of his stomach. The officers shouted to not reach for the gun and to let go, and Valencia again put his hands above his head. Officers commanded Valencia to keep his hands up and get on his stomach. Instead of complying, Valencia reached for his pocket and withdrew what appeared to be a wallet and flashed it at the officers as if it were a badge, and then placed it back in his pocket.
At this point, Valencia was on his knees with his hands free and his weapon on the ground in front of him, slightly off to the side. The officers continued to command Valencia to get on his stomach. Valencia then looked down, leaned forward slightly, placed his left hand on the weapon near the barrel, and used his left hand to lift the weapon off the ground and raise it towards his body. He then placed his right hand on the weapon closer towards the grip and removed his left hand from the barrel. This motion caused the barrel to rotate towards the officers, although it did not fully rotate so that it was pointing at the officers. Valencia continued to lean forward, placing his left hand on the ground in front of him. As the barrel rotated towards the officers, however, several of them feared for their safety and for the safety of the officers around them, and shot Valencia in response.
The entire encounter at the mesquite field lasted at least 44 seconds and was captured by at least two body-worn cameras. A total of 20 shots were fired by five officers, and Valencia was hit approximately 10 times. Valencia died from the gunshot wounds.
It was later determined that Valencia was carrying an airsoft gun with an orange tip that had been painted black. The weapon had several features indicating it was not an operable firearm, such as residual orange paint on the muzzle, a missing handguard on the forward section of the barrel, an empty magazine well, and no stock or buffer tube attached to the rear of the gun. An investigation by the state police located casings from the officers at distances ranging approximately 31 to 41 feet from where Valencia collapsed.[ii]
Cruz, the Administrator of Valencia’s estate, filed suit claiming that the officers violated Valencia’s rights under the Fourth Amendment by using excessive force when they shot him. [Note: This article will not discuss the state law claims.]. The officers filed motions for qualified immunity. The district court granted the officers qualified immunity, finding that the officers did not violate the Fourth Amendment, and dismissed the suit. The plaintiff appealed to the Tenth Circuit Court of Appeals.
Regarding qualified immunity, the court of appeals stated
When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).[iii]
The court also discussed the legal principles relevant to use of force and use of deadly force. Specifically, the court stated
Deadly force is justified under the Fourth Amendment if a reasonable officer in Defendants’ position would have had probable cause to believe that there was a threat of serious physical harm to themselves or to others.” Est. of Larsen, 511 F.3d at 1260 (citation omitted).
In determining whether a use of force is reasonable, we consider: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. Flores v. Henderson, 101 F.4th 1185, 1194 (10th Cir. 2024) (citing Graham, 490 U.S. at 396).[iv]
The court then set out to determine if the officers’ use of deadly force violated the Fourth Amendment. To do so, they examined each of the factors from Graham v. Connor.
Factor One: The severity of the crime
Regarding the severity of the crime, the court of appeals stated
[T]he first Graham factor weighs against the plaintiff when the crime at issue is a felony, irrespective of whether that felony is violent or nonviolent.” Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1170 (10th Cir. 2021) (citations omitted).[v]
Here, the court noted that officers received information that a male who matched Valencia’s description was in the middle of a highway and appeared to be shooting a gun. The court stated that this would constitute aggravated assault, a violent felony, under New Mexico law. The court also noted that even assuming the officers were made aware that Valencia had not yet fired the gun, “the crime at issue does not become any less severe because officers would have reasonably believed Valencia could, at any time, choose to fire shots.”[vi]
Therefore, this factor weighed in favor of the officers.
Graham Factor Two: The immediate threat to the safety of officers or others
The court of appeals stated that this is the most important factor in the Graham analysis. The court also stated
In assessing the degree of threat facing officers, we consider several nonexclusive factors. These include: (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, 511 F.3d at 1260.[vii]
In determining the degree of threat posed to the officers by Valencia, the court examined each factor above.
First, the court examined whether the suspect was ordered to drop his weapon and whether he complied. The court determined that this factor weighed in favor of the officers. While Valencia partially obeyed commands, he did not immediately or fully comply. For example, he was told to raise his hands and not touch his weapon; however, Valencia would raise, then lower his hands and he would touch his weapon.
The plaintiff argued that the officers gave multiple, conflicting commands. The court observed that, while several officers shouted commands, they were “not contradictory to the point where it would have confused Valencia.”[viii] For example he was told to “get on the ground” and “get on your stomach.” The court noted
As recently held by this Circuit, an order to “raise his hands” does not conflict with an order to “get on the ground.” Alcala v. Ortega, 128 F.4th 1298, 1308 & n.8 (10th Cir. 2025) (affirming qualified immunity for an officer because he reasonably but fatally shot the defendant when the latter “disobeyed [commands] for a full six seconds before making his sudden threatening movement” as if drawing a gun).[ix]
The plaintiffs also argued that the officers should have considered Valencia’s mental health conditions. The court was not persuaded by this argument and stated
We recently held the argument that an officer “should have realized” a plaintiff could have been “dazed, injured, mentally unwell, or otherwise impaired” is unconvincing because “that possibility takes a back seat to the [officers’] legitimate fear that [they were] about to be shot.” Alcala v. Ortega, 128 F.4th 1298, 1308 & n.8 (10th Cir. 2025)[x]
Second, the court considered whether any hostile motions were made with the weapon towards the officers. This is a primary area of contention between the plaintiffs and the officers. The plaintiffs argue that Valencia was attempting to comply with commands to get on the ground, which is why he touched and slightly moved the weapon.
However, even if the officers mistakenly interpreted Valencia’s actions as posing a threat, a mistaken belief can still be reasonable under the Fourth Amendment. The court of appeals stated
Moreover, an officer’s actions can still be objectively reasonable even if a suspect turns out to be unarmed because an officer can act reasonably even with a mistaken view of the facts. Id. at 1260 (citing Est. of Taylor, 16 F.4th at 765-76). And if “an officer reasonably, but mistakenly, believed that a suspect was likely to fight back . . . the officer would be justified in using more force than in fact was needed.” Est. of Larsen, 511 F.3d at 1260 (citation [*16] omitted) (finding a reasonable officer need not await the “glint of steel” before taking self-protective action; by then, it is “often . . . too late to take safety precautions.” (citation omitted)); see also Alcala, 128 F.4th at 1308-09 (finding an officer to have made a reasonable, split-second decision when he fatally shot a suspect because the latter made sudden movements as if he were going to pull out a gun, even though he was not visibly carrying a firearm).[xi]
The court, noting the totality of the circumstances that they considered, then stated
[B]ased on the totality of circumstances, we consider that: (1) the officers mistakenly believed Valencia had a real firearm; (2) some of the officers were aware Valencia was mentally unstable and could be unpredictable or violent,4 although he had not been violent towards officers in the past; (3) some of the officers were aware Valencia sometimes carried pellet guns or BB guns; (4) Valencia did not consistently comply with the officers’ orders and touched or moved his firearm more than once, against the officers’ commands; and (5) Valencia lifted his weapon and shifted its position slightly towards the officers. Construing inferences in Valencia’s favor, we assume the officers knew Valencia did not open fire at traffic. At the same time, we consider the testimony of the officers, which indicate that they thought Valencia’s final movement was dangerous and threatened the safety of those at the scene. We find these factors support that the officers were reasonable in believing Valencia was making hostile motions with his weapon.[xii]
Third, the court considered the distance between Valencia and the officers. Both sides agree that the distance at the time of the shooting was unknown. The plaintiffs argued that the distance was short enough that the officers should have recognized that the weapon was a “toy rifle.” The court disagreed pointing out the “high-pressure situation” faced by the officers.
Fourth, the court considered “how a reasonable officer on the scene would have assessed the manifest indicators of Valencia’s intentions.”[xiii] The court examined the facts relevant to this factor. First, the officers received a report that a person who matched Valencia’s description was in the middle of a highway with a firearm. Second, some of the officers recognized Valencia from previous encounters and knew he was mentally unstable, unpredictable and potentially dangerous. Third, Valencia did not fully comply with officers’ commands to not touch his weapon and keep his hands up. Fourth, Valencia touched his weapon and moved slightly in the direction of the officers.
Considering these facts the court stated
The Estate argues Valencia was shot while attempting to comply with the order to get on his stomach by moving his gun out of the way. Indeed, analyzing the video by still frame, it is plausible to infer in the Estate’s favor that Valencia was attempting to comply with the command to get on his stomach, and in the process, tried to move the weapon. Yet, Valencia’s subjective intent is not the relevant inquiry. Instead, “[t]he reasonableness of a particular use of force must be ‘judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'” Id. at 759 (quoting Bond, 981 F.3d at 821).
Moreover, this Circuit has held that “police officers are often forced to make split-second judgments —in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation,” and thus “the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective.” Est. of Larsen, 511 F.3d at 1259-60 (citation omitted and cleaned up). And because officers must make “split-second decision[s],” the “Constitution permits officers to make reasonable mistakes” as they “cannot be mind readers and must resolve ambiguities immediately.” Est. of Valverde ex rel. Padilla v. Dodge, 967 F.3d 1049, 1062 (10th Cir. 2020) (citation omitted). So even though Valencia may have subjectively intended to move his gun, a reasonable officer on the scene would have assessed the situation as dangerous and threatening to himself and others. See id. (“Perhaps a suspect is just pulling out a weapon to discard it rather than to fire it. But waiting to find out what the suspect planned to do with the weapon could be suicidal.”).[xiv]
Interestingly, the plaintiff noted that one officer on-scene during the shooting made a declaration that “he did not shoot Valencia because he did not feel threatened.”[xv] The plaintiff argued that this suggests that the use of deadly force was not reasonable. However, the court of appeals noted that they previously held that “the failure of the other officers to fire is of little relevance.”[xvi]
The plaintiff also argued that their police expert witness opined that, after reviewing officer body camera video, the officers’ impressions of Valencia’s conduct was incorrectly stated to attempt to justify the use of deadly force. The court of appeals was not persuaded and replied
But as we stated, the declaration improperly considers the facts based on an expert’s 20/20 hindsight viewed through bodycam videos, and is not responsive to our inquiry as to what a reasonable officer in the officers’ situation would have seen or believed. See Est. of Larsen, 511 F.3d at 1259; Est. of Taylor, 16 F.4th at 759.[xvii]
Lastly, the plaintiff argued that a shooting reconstruction expert opined that “the majority of Mr. Valencia’s gunshot wound paths are consistent with shots fired into his body immediately after his body had fallen and came to rest in a supine position.”[xviii] The plaintiff argued that this is similar to Estate of Smart ex rel. Smart v. City of Wichita,
[W]here we found an officer violated clearly established law by shooting an individual “after it became clear he posed no threat.” 951 F.3d 1161, 1175 (10th Cir. 2020) (denying qualified immunity for an officer who fired “his final shots” after the unarmed suspect had surrendered on the ground and no longer posed a threat, despite an opportunity to reassess the situation).[xix]
The plaintiffs assert that Valencia was similarly shot after he no longer posed a threat. However, the court noted that in Valencia’s incident, the officers fired at the same time over less than three-seconds, and no shots were fired after the officers reassessed the situation. Therefore, this situation was different than the situation in Smart.
Graham Factor Three: Did Valencia actively resist or evade arrest by flight
The court determined that this is the only Graham factor that weighed for the plaintiff. While the officers argued that Valencia’s lack of compliance was akin to active resistance, the court determined that those facts fit better in the discussion regarding the threat perceived by the officers.
However, in conclusion, the court held
[I]t was objectively reasonable for the officers to use lethal force based on the totality of circumstances of the full encounter, which a reasonable officer at the scene would have perceived as dangerous and hostile. . . . Whether Valencia subjectively intended to move his gun is irrelevant under the Graham factors and does not create material disputed facts that preclude summary judgment.[xx]
Therefore, the court of appeals affirmed the grant of qualified immunity to the officers on the Fourth Amendment excessive force claims.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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4 While “[t]he mentally ill or disturbed condition of the suspect is a relevant factor in determining reasonableness of an officer’s responses to a situation . . . . officers are not required to use alternative, less intrusive means if their conduct is objectively reasonable.” Est. of Ceballos, 919 F.3d at 1214 (citations and internal quotations omitted).
[i] No. 24-2091(10th Cir. May 28, 2025)
[ii] Id. at 2-6
[iii] Id. at 8
[iv] Id. at 10 (emphasis added)
[v] Id. at 11 (emphasis added)
[vi] Id.
[vii] Id. at 12 (emphasis added)
[viii] Id.
[ix] Id. at 13 (emphasis added)
[x] Id. (emphasis added)
[xi] Id. at 15-16 (emphasis added)
[xii] Id. at 16-17(emphasis added)
[xiii] Id. at 18
[xiv] Id. at 18-20 (emphasis added)
[xv] Id. at 20
[xvi] Id. (quoting Est. of Valverde ex rel. Padilla v. Dodge, 967 F.3d 1049, 1062, 1065
(10th Cir. 2020)
[xvii] Id. at 21 (emphasis added)
[xviii] Id.
[xix] Id. at 21-22 (emphasis added)
[xx] Id. at 22-23 (emphasis added)
