                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    November 1, 2006
                    UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                            FO R TH E TENTH CIRCUIT                    Clerk of Court




    TARIA BUTLER,

               Plaintiff-Appellant,

    v.                                                  No. 06-5078
                                              (D.C. No. 03-CV-558-CVE-PJC)
    CITY OF TU LSA ; JAM ES STU M P,                    (N.D. Okla.)
    Officer; BILL LAFORTUNE, M ayor,

               Defendants-Appellees,

         and

    DAVE BEEN, Chief of Police,

               Defendant.



                            OR D ER AND JUDGM ENT *


Before T YM KOV IC H, A ND ER SO N, and BALDOCK , Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Plaintiff-appellant Taria Butler, a prisoner of the State of Oklahoma

appearing pro se, appeals from the district court’s grant of summary judgment in

favor of defendants-appellees in this civil rights suit filed under 42 U.S.C.

§ 1983. 1 W e have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      On August 13, 2002, at 3:25 a.m., appellee James Stump, a Tulsa police

officer, was dispatched to appellant’s apartment in response to a 911 domestic

violence call from appellant’s w ife. As noted by the district court, the facts

asserted by the parties diverge somewhat. Appellant conceded, however, that as

Officer Stump approached appellant’s apartment, the door to the apartment was

open, appellant was arguing with his wife, he was intoxicated, he held a large

knife, he did not drop the knife until after the third time Officer Stump ordered

him to, and he ran toward the officer attempting to flee past him in the dimly-lit

area outside of the apartment. Officer Stump shot at appellant, hitting him in the

upper arm. Appellant ran off but was apprehended nearby and was ultimately

charged with and convicted of Assault with a Deadly W eapon and Assault and

Battery-D omestic.

      The district court determined that Officer Stump was entitled to qualified

immunity because it was objectively reasonable on the undisputed facts to believe

that appellant was a threat to the safety of the officer and to appellant’s wife,



1
       Appellant voluntarily dismissed his suit against Police Chief Been, who is
not a party to this appeal.

                                         -2-
even if appellant had dropped the knife before Officer Stump shot him.

R., Doc. 51, at 7. The district court accordingly granted summary judgment to

Officer Stump and to the other two appellees, the C ity of Tulsa and Tulsa’s

mayor, who were sued under the doctrine of respondeat superior. The district

court granted appellant’s motion for leave to proceed in forma pauperis on appeal.

      “W e review de novo the grant of a summary judgment motion based on a

qualified immunity defense.” Phillips v. James, 422 F.3d 1075, 1080 (10th Cir.

2005). Appellant argues on appeal that he dropped the knife, stopped, and then,

believing that he would not be shot, took a few steps attempting to flee, and then

stopped again. Aplt. Opening Br. at 1. He claims that he had stopped and raised

his arms in surrender before Officer Stump shot him, demonstrating that there is a

genuine issue of material fact to be tried.

      W e have carefully reviewed the materials in light of the applicable law and

are unpersuaded by appellant’s claims of error. “To be constitutionally

permissible, an officer’s use of force must be reasonable, which is measured

‘from the perspective of a reasonable officer on the scene,’ recognizing that

officers are sometimes ‘forced to make split-second judgments’ in uncertain and

dangerous circumstances.” Id. (quoting Graham v. Connor, 490 U.S. 386, 395,

396-97 (1989)). “W hat may later appear to be unnecessary when reviewed from

the comfort of a judge’s chambers may nonetheless be reasonable under the

circumstances presented to the officer at the time.” Id. (citing Graham, 490 U.S.

                                          -3-
at 396). Even under appellant’s version of the facts, he threatened to kill his

wife, and the time between allegedly dropping the knife, running toward the

officer, and being shot was “approximately two seconds.” R., Doc. 33, at 4 ¶ 16.

W e therefore affirm for substantially the same reasons as those stated in the

district court’s thorough Opinion and Order dated February 23, 2006.

       The judgment of the district court is AFFIRM ED. Appellant is reminded

that he remains obligated to continue making partial payments until the filing fee

is paid in full.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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