Key Points

  • The Tenth Circuit affirmed the denial of qualified immunity to Officer Chance Avery, who fatally shot Christopher Poor while Poor held a baseball bat down by his side during a civil-standby call.
  • The panel rejected Avery's argument that body-camera video blatantly contradicted the district court's finding that a jury could conclude Poor did not charge Avery or swing or raise the bat.
  • Applying Graham v. Connor, the court held that none of the three factors supported deadly force on the facts a reasonable jury could find, so the shooting was objectively unreasonable under the Fourth Amendment.
  • The court held that Zuchel, Walker and Tenorio clearly established that an officer may not use deadly force against someone armed with something other than a gun who makes no hostile motions and does not charge the officer.
  • The panel rejected Avery's attempt to distinguish those precedents because they involved suicidal suspects, calling his other distinctions minor.

An Oklahoma police officer who shot and killed a man holding a baseball bat down by his side is not entitled to qualified immunity, a federal appeals court ruled on Oct. 13.

Writing for a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit, Circuit Judge Moritz affirmed a Western District of Oklahoma ruling that denied summary judgment to Officer Chance Avery. Judges Hartz and Phillips joined the opinion, and the panel decided the appeal on the briefs.

The ruling keeps alive a Fourth Amendment excessive-force claim brought by the estate of Christopher Poor under 42 U.S.C. § 1983. The panel held that a jury could find the shooting unreasonable, and that circuit precedent "clearly establishes that an officer may not use deadly force against someone holding a baseball bat but making no hostile or aggressive motions with it."

The encounter began in July 2020, when Melissa Poor asked police in the City of the Village for an officer to accompany her while she retrieved belongings from a residence occupied by Christopher Poor. She reported that he was "mean," had "threatened to ram [her] vehicle," had criminal charges pending and had been drinking. Avery was assigned to the civil-standby call and activated his body-worn camera when he arrived.

According to the facts drawn from the district court's order, a loud sound preceded Christopher Poor yelling, "Where's the goddamn police?" Avery turned, drew his gun and told him to put down the aluminum bat in his right hand. Poor answered, "I will, now that you're here," while tipping the bat toward Avery, then walked into the living room before turning back and saying he was putting it down.

Over the next three to four seconds, Poor moved the bat to his left hand, pointed at Avery and told him, "You put that down, you're in my f****** house." Then Poor took a step and shifted the bat back to his right hand as Avery said "Set it down!" a third time and fired three rapid shots, killing him. "Only 16 seconds elapsed from the moment that Christopher walked into the residence until Avery shot him," Judge Moritz wrote.

Vision Bank, the estate's special administrator, sued Avery and the city, which won summary judgment on a separate hiring, training and supervision claim. The district court denied Avery's motion, finding a jury could conclude that Poor "was not charging Avery, he was not swinging the bat, and he was not raising it or otherwise engaging in motions that might suggest an imminent threat of serious physical harm."

Avery took an interlocutory appeal under the collateral-order doctrine, which the panel said limited its review to legal questions. He invoked two exceptions: that the record blatantly contradicted the district court's view of what a jury could find, and that the court committed legal error on the way to that view. The first required showing that the district court's findings were a "visible fiction."

Avery argued that the body-camera footage showed Poor advancing on him. The panel disagreed, writing that "the video at most shows Christopher taking a single step slightly toward Avery and slightly to the side, toward the front door." The timestamp Avery cited, the court added in a footnote, fell in the same second as all three shots.

The estate's brief had said that such arguments "have become increasingly routine in qualified[-]immunity cases in a naked attempt to induce the [c]ourt to engage in a fact-based review," and cited cases in which Avery's lawyer had made them for other clients without success. The panel called those past arguments irrelevant but paused "to emphasize, yet again, the extremely limited nature" of the exception, writing that "only rarely will a district court's assessment of the facts a reasonable jury could find" qualify.

On the merits, the panel applied the three factors from the Supreme Court's 1989 decision in Graham v. Connor: the severity of the crime, the immediacy of any threat and whether the suspect resisted or fled arrest. Avery was not there to make an arrest and never suspected Poor of any crime, the court said. It rejected his argument that Poor's early defiance tipped the crime-severity factor his way, noting that Poor had twice agreed to put the bat down.

On the threat factor, which the court called the most important, the district court had found the picture mixed. Poor kept the bat despite repeated commands, and the two men stood a few feet apart in a confined space. But the panel said it was "bound by the district court's conclusion that the jury could reject the presence of an immediate danger," and it affirmed that "Avery's three fatal and unwarned shots constituted excessive force."

To find the law clearly established, the panel relied on three earlier Tenth Circuit decisions in which officers shot knife-holding suspects: Zuchel v. City & County of Denver from 1993, Walker v. City of Orem from 2006 and Tenorio v. Pitzer from 2015. "Each case—including this one—involved a suspect armed with something other than a gun who made no hostile motions and did not charge the officer," Judge Moritz wrote.

Avery argued that Zuchel and Walker involved suicidal suspects, whose danger to themselves offered less support for force than a threat aimed at others. The panel answered that "Avery's distinction between the risk of harm to self and the risk of harm to others breaks down when we consider that the suspects posed no imminent threat in any of these cases."

The court also called "minor" Avery's points that he had announced his presence and drew his gun only after hearing a loud sound, noting how quickly each encounter unfolded. It said its reading matched a 2025 decision, Baca v. Cosper, involving a woman with dementia who held two knives pointed at the floor, though it did not rely on Baca's facts to clearly establish the law because its events postdated the 2020 shooting.

Avery was represented by Scott B. Wood of Wood, Puhl & Wood, P.L.L.C. The estate was represented by J. Derek Ingle of Boettcher Devinney Ingle & Wicker.