Armed With a Baseball Bat, But Not an Imminent Threat: Tenth Circuit Denies Qualified Immunity in Fatal Police Shooting
Vision Bank v. Avery, No. 25-6140 (10th Cir. Oct. 13, 2026)
TL;DR
The Tenth Circuit affirmed the denial of qualified immunity to an Oklahoma police officer who fatally shot a man holding an aluminum baseball bat during a civil standby. Although the man was intoxicated, verbally confrontational, armed with a potentially deadly weapon, and failed to comply with repeated commands to put the bat down, the court concluded that a reasonable jury could find that he did not pose an immediate threat of serious physical harm.
The entire encounter lasted approximately 16 seconds. The officer fired three fatal shots after the man took a single step generally toward him while holding the bat down by his side.
Applying Graham v. Connor and the Tenth Circuit's Larsen factors, the court emphasized that the man was not suspected of committing a crime, was not resisting arrest, and had made no hostile motions with the bat. The court further determined that existing circuit precedent clearly established that deadly force was unconstitutional under the facts a reasonable jury could find.
The takeaway: Possession of a dangerous weapon, refusal to obey commands, and close proximity to an officer are important considerations, but they do not automatically establish the immediate threat necessary to justify deadly force.
Facts
In July 2020, Melissa Poor contacted the police department in the City of The Village, Oklahoma, requesting an officer's assistance while she retrieved personal belongings from a residence occupied by Christopher Poor.
Melissa described Christopher as mean and reported that he had been drinking, had pending criminal charges, and had previously threatened to ram her vehicle. Officer Chance Avery was assigned to accompany her during the civil standby.
Upon arriving, Avery activated his body-worn camera and accompanied Melissa inside the residence. Melissa entered a bedroom to retrieve her belongings while Avery remained nearby in the hallway.
During the encounter, Melissa told Avery that Christopher was drinking heavily in the garage. She also described Christopher as mean and expressed her discomfort with the situation.
Approximately ten seconds later, an unidentified loud sound was heard, followed by Christopher shouting, "Where's the goddamn police?"
Avery immediately turned, drew his firearm, and confronted Christopher, who was standing in the living room holding an aluminum baseball bat in his right hand. Avery ordered Christopher to put the bat down.
Christopher responded, "I will, now that you're here," while briefly tipping the front of the bat upward and pointing it in Avery's direction.
Christopher then turned and walked farther into the living room, away from Avery. Avery requested another unit over his radio, repeated his command to put down the bat, and followed Christopher into the living room.
Christopher turned toward Avery and again indicated that he was putting the bat down. Avery responded by ordering him to set it down.
The encounter rapidly escalated over the next several seconds.
Christopher transferred the bat from his right hand to his left, pointed his right index finger toward Avery, and stated, "You put that down, you're in my f****** house."
Avery continued commanding Christopher to put the bat down. Melissa, standing behind Avery, also instructed Christopher to comply.
Almost simultaneously, Christopher took a step generally toward Avery and slightly toward the front door, transferred the bat back into his right hand, and Avery fired three rapid shots.
Christopher died from his injuries.
Only approximately 16 seconds elapsed between Christopher's appearance inside the residence and the fatal shooting.
Importantly, the district court determined that a reasonable jury could conclude Christopher had not charged Avery, swung the bat, raised it to strike, or otherwise made movements demonstrating an imminent threat of serious physical harm. Although Christopher failed to surrender the bat, the evidence permitted a finding that he continued holding it downward rather than using it in an overtly threatening manner.
Christopher's estate, through its special administrator, filed a federal civil rights action under 42 U.S.C. § 1983, alleging Avery used excessive force in violation of the Fourth Amendment.
Avery moved for summary judgment based on qualified immunity. The district court denied his motion, and Avery appealed to the Tenth Circuit.
Issues
Whether Officer Avery's use of deadly force against Christopher Poor, who was holding a baseball bat and refusing repeated commands to surrender it, violated the Fourth Amendment when a reasonable jury could find that Christopher made no hostile movements with the weapon.
Whether existing precedent clearly established that an officer could not constitutionally use deadly force under these circumstances, thereby defeating Avery's qualified immunity defense.
Holding
The Tenth Circuit affirmed the denial of qualified immunity, concluding that, under the facts a reasonable jury could find, Avery violated Christopher's clearly established Fourth Amendment right to be free from excessive force.
The court determined that the circumstances did not objectively justify deadly force because Christopher was not suspected of criminal activity, was not resisting or evading arrest, and could reasonably be found not to have presented an immediate threat of serious physical harm.
Although Christopher was armed with a baseball bat, failed to obey commands, and was only a few feet from Avery, those circumstances did not overcome the absence of hostile or aggressive movements with the weapon.
The court also rejected Avery's argument that the body-worn camera footage blatantly contradicted the district court's factual findings.
Procedural significance: This decision did not constitute a final jury determination of liability. The appellate court reviewed the denial of qualified immunity at summary judgment, accepting the factual version the district court determined a reasonable jury could find.
Reasoning
1. The Fourth Amendment Requires Objective Reasonableness Under the Totality of the Circumstances
The Tenth Circuit began with the established Fourth Amendment framework governing police uses of force.
Under Graham v. Connor, 490 U.S. 386 (1989), the reasonableness of force is assessed objectively in light of the totality of the circumstances confronting the officer.
The analysis includes three familiar considerations:
The severity of the crime at issue.
Whether the individual poses an immediate threat to officers or others.
Whether the individual is actively resisting arrest or attempting to evade arrest by flight.
Importantly, the analysis is not controlled merely by whether the individual possesses a weapon. Instead, the court must evaluate what the individual was doing with that weapon and whether the circumstances reasonably demonstrated an immediate threat of serious physical harm.
2. The First Graham Factor: No Crime Was Being Investigated
The court determined that the first Graham factor weighed against Avery's use of force.
Avery had not responded to investigate a crime or arrest Christopher. Rather, he was present to provide assistance during a civil standby while Melissa retrieved personal property.
Although Melissa had reported Christopher's drinking, pending criminal charges, and threatening behavior, Avery was not investigating Christopher for any particular offense during this encounter.
Relying on Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016), the court explained that situations involving welfare checks or similar noncriminal encounters generally weigh against significant force under the first Graham factor.
Avery argued that Christopher's hostile and confrontational behavior could nevertheless support an increased level of force.
The court disagreed, explaining that such conduct is more appropriately evaluated under the second Graham factor, which concerns the threat presented by the individual, rather than the severity of any crime.
The court also noted that Christopher initially agreed twice to put the bat down.
Accordingly, the first factor weighed against Avery.
3. The Third Graham Factor: No Active Resistance to Arrest or Flight
The third Graham factor also weighed against the use of force.
Christopher was not under arrest, Avery was not attempting to arrest him, and Christopher was not attempting to evade arrest by fleeing.
Although Christopher failed to comply with the commands to put down the bat, the court distinguished that conduct from active resistance to an arrest or an attempt to escape.
Because the encounter did not involve an attempted arrest or flight, the third factor provided no justification for Avery's use of deadly force.
4. The Second Graham Factor: Did Christopher Pose an Immediate Threat?
The court devoted its most significant analysis to the question of immediate danger.
In the Tenth Circuit, courts evaluating deadly force against an armed individual frequently apply the four considerations identified in Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255 (10th Cir. 2008).
Those considerations are:
Whether officers ordered the individual to drop the weapon and whether the individual complied.
Whether the individual made hostile motions with the weapon toward an officer.
The distance between the individual and the officer.
The individual's manifest intentions.
The court recognized that the evidence presented a mixed picture.
Two considerations favored Avery.
First, Christopher repeatedly failed to comply with Avery's commands to put the bat down.
Second, Christopher and Avery were only a few feet apart inside a confined residential space. The close proximity was significant because a baseball bat is capable of inflicting serious bodily injury or death.
However, the remaining considerations weighed against a finding that Christopher posed an immediate threat.
The court accepted that a reasonable jury could find Christopher did not swing the bat, raise it to strike, charge Avery, or otherwise move the weapon in a manner signaling an imminent attack.
The court also considered Christopher's observable intentions, including his statements indicating that he would put the bat down.
Although Christopher's words were confrontational, the court distinguished verbal hostility and noncompliance from physical conduct demonstrating an immediate threat of serious harm.
Consequently, a reasonable jury could conclude that Avery did not face the level of imminent danger necessary to justify deadly force.
5. Possessing a Weapon Is Not the Same as Threatening an Officer With It
A particularly important aspect of the decision is the distinction between an armed individual and an individual who presents an immediate threat.
Christopher undoubtedly possessed a potentially deadly weapon.
He also refused repeated commands to surrender it, was verbally confrontational, and remained in close proximity to Avery.
But the court emphasized the absence of hostile movements with the bat.
The district court's assessment permitted the conclusion that Christopher was not charging, swinging, raising, or otherwise employing the bat in a manner indicating an imminent attack.
This distinction was central to the court's constitutional analysis.
The presence of a dangerous weapon is unquestionably relevant to an officer's threat assessment.
Nevertheless, the Fourth Amendment requires examination of the particular circumstances rather than an automatic conclusion that every armed individual presents an immediate deadly threat.
The court ultimately determined that a reasonable jury could find that Avery's use of deadly force was excessive.
6. Clearly Established Law: Tenorio, Zuchel, and Walker
The court next examined whether the constitutional violation was clearly established when Avery shot Christopher in July 2020.
The central question was whether existing precedent provided sufficient notice that using deadly force under these circumstances was unlawful.
The court relied principally on three earlier Tenth Circuit decisions.
Tenorio v. Pitzer, 802 F.3d 1160 (10th Cir. 2015)
In Tenorio, officers encountered an intoxicated and potentially suicidal individual holding a kitchen knife loosely at his side.
The individual walked into a living room but did not make threatening movements with the knife.
An officer shot him shortly after ordering him to drop the weapon.
The Tenth Circuit held that the shooting violated the Fourth Amendment and that the constitutional prohibition was clearly established.
The court in Avery's case considered Tenorio particularly instructive because both incidents involved armed individuals who could be found not to have made hostile movements with their weapons.
Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir. 1993)
In Zuchel, an officer fatally shot an individual suspected of causing a disturbance at a restaurant.
The individual reportedly possessed a knife and had taken several steps toward the officer but had not brandished the knife or threatened the officer.
The Tenth Circuit affirmed a jury verdict finding the officer's use of force unreasonable.
Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006)
In Walker, officers confronted an individual suspected of vehicle theft and eluding police who was holding a knife against his own wrist.
The individual did not charge officers or make stabbing or slashing movements toward them.
The Tenth Circuit affirmed the denial of qualified immunity.
Together, these decisions established the constitutional significance of an individual's conduct with a weapon, rather than the mere possession of one.
The court rejected Avery's attempts to distinguish those decisions based on the subjects' suicidal behavior, the timing of when officers drew their weapons, or whether an officer announced his presence.
The court found those differences insufficient to undermine the clearly established constitutional rule.
It also discussed Baca v. Cosper, 128 F.4th 1319 (10th Cir. 2025), involving the shooting of an elderly woman holding two knives downward while taking steps toward an officer without making threatening movements. Because the Baca incident occurred after Christopher's shooting, the court used that decision to illustrate its application of earlier precedent—not to establish the law retroactively.
Street Takeaways
1. A weapon alone does not automatically justify deadly force.
Officers must evaluate the totality of the circumstances, particularly the individual's movements, behavior, proximity, and apparent intentions. A potentially deadly weapon is a significant factor, but possession alone does not invariably establish an immediate threat.
2. Noncompliance and an imminent attack are different considerations.
Refusing commands to surrender a weapon is an important warning sign. Nevertheless, officers must distinguish an individual's failure to comply from physical conduct indicating an immediate threat of serious bodily injury or death.
3. Watch what the person is doing with the weapon.
Courts may scrutinize whether the individual raised, swung, pointed, brandished, or otherwise moved a weapon threateningly. These actions can be critical to assessing the immediacy of danger.
4. Distance matters, but it is not dispositive.
The proximity between an officer and an armed individual directly affects the officer's ability to react and protect against an attack. However, proximity must be considered alongside the individual's conduct, available information, and the surrounding circumstances.
5. Civil standbys and welfare-related calls can create serious use-of-force risks.
Officers responding to noncriminal calls may encounter intoxicated, emotionally volatile, or armed individuals. The absence of a criminal investigation does not eliminate the potential for danger, but it remains relevant to the Graham analysis.
6. Verbal aggression does not necessarily equal an immediate physical threat.
Profanity, anger, and verbal confrontation may indicate escalating danger. Officers should consider those behaviors in context rather than treating them as automatic justification for deadly force.
7. Be precise when documenting threatening movements.
Descriptions such as "advanced toward me" or "came at me" may be insufficient without context. Reports should accurately identify the individual's specific movements, the position of the weapon, distance, direction of travel, commands, and any observable behavior indicating an imminent attack. Officers should distinguish what they actually observed from their interpretation of those observations.
8. The timing of body-worn camera footage is critical.
Video should be evaluated carefully to distinguish movements occurring before force is used from movements occurring simultaneously with or after gunfire. A post-shot reaction cannot automatically establish a pre-shot threat.
9. The Tenth Circuit's Larsen factors provide a useful training framework.
Although the Larsen framework is specific to Tenth Circuit jurisprudence, its focus on commands, hostile weapon movements, distance, and apparent intentions provides a practical method for analyzing armed encounters.
10. Qualified immunity depends on what the law clearly established at the time.
The court relied on decisions predating the July 2020 shooting. Officers and trainers should recognize that longstanding circuit precedent can provide constitutional notice even when no prior case presents identical facts.
Disclaimer
This article is provided for law enforcement education and training purposes only and does not constitute legal advice. The decision discussed is from the United States Court of Appeals for the Tenth Circuit. Officers should consult applicable Supreme Court precedent, controlling federal circuit decisions, state law, and departmental policies when evaluating use-of-force standards. The case involves an interlocutory appeal from the denial of qualified immunity, not a final determination of liability following trial.
