Qualified Immunity for Lethal Force on Reasonably Perceived Armed Threat

Introduction

Cruz v. City of Deming is a 2025 decision of the United States Court of Appeals for the Tenth Circuit addressing when police officers are entitled to qualified immunity after using lethal force against a suspect who turns out to be armed only with a replica firearm. The case arose when law‐enforcement officers in New Mexico responded to a 911 call reporting an armed man firing at westbound traffic. Officers encountered Gilbert Valencia holding what appeared to be an AR-style rifle. After Valencia failed to follow repeated orders, touched the weapon and made what officers believed were hostile movements in their direction, five officers fired twenty shots. Valencia died and was later discovered to have carried a blacked-out airsoft rifle. His estate sued under 42 U.S.C. § 1983 (Fourth Amendment) and New Mexico Tort Claims Act theories. The district court granted summary judgment for the City and officers; the Tenth Circuit affirmed.

Summary of the Judgment

The Tenth Circuit held:

Qualified immunity protects the officers on the Fourth Amendment excessive‐force claim because a reasonable officer in their position could have believed Valencia’s repeated noncompliance and hostile motion toward what looked like a real rifle justified deadly force.
Under the Graham v. Connor factors (severity of the crime, threat to officers or others, active resistance), officers were objectively reasonable in perceiving an active‐shooter threat and responding with lethal force.
The Estate’s New Mexico Tort Claims Act causes of action (assault and battery, negligence, negligent training/supervision) failed because:
- Officers enjoy a statutory privilege to use reasonably necessary force.
- § 41-4-12 waives immunity only for individual officers, not municipalities or state agencies.
- The Estate presented no evidence of subjective bad faith or unprivileged force.

Accordingly, the district court’s grant of summary judgment was affirmed in full.

Analysis

Precedents Cited

The court’s analysis rests on a line of Fourth Amendment and qualified-immunity cases:

Graham v. Connor (490 U.S. 386, 1989): Established the “objective reasonableness” framework for excessive-force claims.
Estate of Larsen ex rel. Sturdivan v. Murr (511 F.3d 1255): Outlined nonexclusive factors (orders given, hostile motions, distance, manifest intent).
Est. of Taylor v. Salt Lake City (16 F.4th 744, 2021): Officers need only a reasonable, albeit mistaken, belief that a suspect is drawing a weapon.
Palacios v. Fortuna (61 F.4th 1248, 2023): Repeated retrieval of a weapon despite commands justified deadly force.
Est. of Ceballos v. Husk (919 F.3d 1204): Mental illness does not require officers to defer justified force.
Alcala v. Ortega (128 F.4th 1298, 2025): Split-second perceived threat excuses 20/20 hindsight critique.
Smart ex rel. Smart v. City of Wichita (951 F.3d 1161, 10th Cir. 2020): Distinguished a scenario where post-surrender shots were unreasonable.
Hernandez v. Parker (508 P.3d 947, N.M. Ct. App. 2022): New Mexico Tort Claims Act waives immunity only for individual officers using force.

Legal Reasoning

The court applied the familiar two‐part qualified‐immunity test:

Did the officers violate a constitutional right?
Under Graham, the use of deadly force is permissible if a reasonable officer would believe there is a threat of serious harm. Reviewing body-worn camera footage in the Estate’s favor, the court concluded:
- Severity of the crime: An active-shooter report on an interstate is a violent felony under New Mexico law.
- Threat: Valencia repeatedly ignored commands, handled what looked like an AR-rifle, and made a final upward motion—“hostile motion”—toward officers.
- Resistance or flight: Although he did not flee, his noncompliance with repeated orders showed risk and unpredictability.
Even though the rifle was an airsoft replica, officers need not await the “glint of steel” or certainty of a live weapon before acting.
Was the right clearly established?
The Tenth Circuit has long made clear that mistakes about whether a weapon is real do not strip officers of qualified immunity if the mistake was reasonable under pressure.

Because the Estate could not show a Fourth Amendment violation under the objective‐reasonableness standard, the inquiry ended and qualified immunity applied.

Separately, under the New Mexico Tort Claims Act (N.M. Stat. Ann. § 41-4-12), officers enjoy a dual test:

Objective reasonableness: Would a reasonable officer in the same situation believe the force used was no more than necessary?
Subjective reasonableness: Did the officer personally believe the force used was necessary?

The Estate offered no evidence of bad intent or unreasonably excessive force, so the privilege to use necessary force barred assault/battery claims. The statute’s waiver does not extend to municipalities or state agencies, so the City of Deming, Luna County, and New Mexico Department of Public Safety were immune.

Impact

This decision reinforces several key points:

Officers making split-second decisions about suspected shooters are protected even if the “gun” proves to be a replica, so long as the mistake was reasonable.
Repeated noncompliance and handling of a suspect weapon constitute sufficient “hostile motion” under the second Larsen factor.
Video evidence can and should be reviewed on summary judgment, but courts are not bound by 20/20 hindsight or expert declarations that ignore the on-scene perspective.
Under New Mexico law, assault and battery claims and related tort theories can only proceed against individual officers, not agencies or municipalities.
Lower courts will cite Cruz for the proposition that both federal and state excessive‐force claims require clear evidence of unprivileged force or bad faith beyond an honest mistake.

Complex Concepts Simplified

Qualified Immunity: A doctrine that shields government officials from liability unless they violate “clearly established” constitutional rights of which a reasonable official would have known.
Fourth Amendment Excessive Force: Use of force by police is a “seizure” governed by the Fourth Amendment’s reasonableness standard, judged from an on-scene officer’s perspective.
Graham Factors: Three inquiries—(1) severity of the crime; (2) threat to officers or others; (3) resistance or flight—guide whether force is objectively reasonable.
Objective vs. Subjective Reasonableness: Objective asks what a reasonable officer would do. Subjective (in New Mexico) asks what the particular officer thought was necessary.
Summary Judgment: A ruling that decides a case when no material facts are in dispute and one side is entitled to judgment as a matter of law.
N.M. Tort Claims Act § 41-4-12: Waives immunity for individual law enforcement officers—but not municipalities—when they commit certain torts (like assault and battery) using unjustified force.

Conclusion

Cruz v. City of Deming clarifies that police officers are entitled to qualified immunity when they reasonably—but mistakenly—perceive a lethal threat and respond with deadly force. Even if the suspect holds a replica weapon, repeated noncompliance and “hostile motions” satisfy the Fourth Amendment’s standard of objective reasonableness. On parallel state‐law claims, New Mexico’s waiver applies only to individual officers and preserves their privilege to use necessary force. This decision underscores the high bar plaintiffs must meet to overcome qualified immunity and the limited scope of municipal liability under New Mexico tort law.