Vision Bank v. Avery.
No. 25-6140. 10/13/2026. W.D.Okla. Judge Moritz. Police Officer’s Use of Force—Fourth Amendment—Qualified Immunity—Clearly Established Law.
October 13, 2026
Melissa Poor went to a police station to ask for an officer to go with her to retrieve personal property from a residence. Melissa reported that Christopher Poor was at the residence and was “drunk and mean.” Officer Avery accompanied Melissa to the residence and activated his body-worn camera upon arrival. The video shows Melissa entering the home and beginning to gather belongings in a bedroom while Avery remains in the hallway outside the bedroom. Christopher was initially not in the residence, and Melissa told Avery that he was drinking in the garage. When Christopher came into the residence, he held a baseball bat by his side while loudly asking where the police were located. Avery drew his gun and ordered Christopher to drop the bat, and Christopher said he would. Christopher then turned away from Avery and walked into the living room. Avery radioed for another unit and for several seconds he repeated his command for Christopher to put the bat down, with Christopher stating that he was putting the bat down but not doing so. Then, almost simultaneously, Christopher stepped toward Avery and moved the bat from his left hand to his right hand; Avery said, “Set it down!” for the third time; and Avery fired three rapid shots at Christopher, killing him. Sixteen seconds had elapsed from the moment Christopher entered the residence until Avery shot him. Vision Bank, special administrator of Christopher’s estate, filed this 42 USC § 1983 action against Avery, asserting a Fourth Amendment excessive force claim. Avery moved for summary judgment based on qualified immunity. The district court ruled that, based on the facts a reasonable jury could find, Avery’s use of force was objectively unreasonable and violated the Fourth Amendment under clearly established law. The court denied Avery’s motion.
On appeal, Avery challenged the denial of his motion for summary judgment, arguing for review of the district court’s factual conclusions on two grounds. First, he maintained that the body camera video blatantly contradicts the district court’s determination that a reasonable jury could conclude that Christopher was not charging Avery, was not swinging the bat, and was not moving in ways that could suggest an imminent threat of serious physical harm. However, the video does not support Avery’s argument. Second, Avery asserted that the district court legally erred in making its factual determination that a reasonable jury could conclude Christopher posed no immediate threat. However, the district court applied the correct legal standards, so there was no legal error in the immediate-threat finding. Accordingly, the Tenth Circuit proceeded with its usual jurisdictional limitation of resolving the legal issues as to the qualified immunity ruling.
Avery contended that the district court erred by concluding that he violated Christopher’s Fourth Amendment right to be free from excessive force. The Tenth Circuit analyzed the totality of the circumstances under Graham v. Connor, 490 U.S. 386, 396 (1989), focusing on the severity of the crime, whether Christopher posed an immediate threat, and whether Christopher was actively resisting arrest or trying to flee. The first factor weighs against Avery because Avery never suspected Christopher of any crime, and at the beginning of the encounter, Christopher twice agreed to put the bat down. As to the second factor, a reasonable officer in Avery’s position would not have believed he faced an imminent threat of serious physical harm because Christopher didn’t charge Avery, swing the bat, or engage in other threatening behavior. And the third factor does not support the use of force because Avery was not at the residence to make an arrest, and Christopher was not attempting to flee. Accordingly, none of the Graham factors supports Avery’s use of force, so the district court properly ruled that Avery used excessive force in violation of Christopher’s Fourth Amendment rights.
Avery further asserted that any constitutional violation wasn’t clearly established. However, at the time of the incident, the Tenth Circuit had established that an officer may not use deadly force against someone holding a baseball bat who is not making hostile or aggressive motions with it.
The order denying qualified immunity was affirmed.