                                                                                     FILED
                                                                         United States Court of Appeals
                                        PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                            August 19, 2020

                                                                             Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                               Clerk of Court
                         _________________________________

 CODY WILLIAM COX,

        Plaintiff - Appellant/Cross-
        Appellee,                                        Nos. 18-1353 & 18-1376
                                                  (D.C. No. 1:15-CV-00128-WJM-NYW)
 v.                                                             (D. Colo.)

 DON WILSON, in his individual capacity,

        Defendant - Appellee/Cross-
        Appellant.
                       _________________________________

                                      ORDER
                         _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES,
MATHESON, BACHARACH, PHILLIPS, MCHUGH, MORITZ, EID, and
CARSON, Circuit Judges.
                    _________________________________

       On May 22, 2020, the court issued its opinion and judgment in these matters. An

active judge of the court then called a poll, sua sponte, to consider en banc review of the

panel decision. Subsequently, the panel sua sponte granted panel rehearing to amend its

May 22, 2020 opinion for clarification purposes, and circulated its amended opinion to

the en banc court.

       A majority of the judges in regular active service voted against en banc rehearing,

and as a result the poll failed. See Fed. R. App. P. 35(a). Judges Lucero and Phillips voted
to grant en banc rehearing. Judge Lucero has prepared the attached written dissent from

the denial of en banc rehearing, in which Judge Phillips joins.

         Pursuant to the panel’s sua sponte grant of panel rehearing, the original version of

the opinion is withdrawn and shall be replaced by the attached amended opinion. Because

the amended opinion contains only non-substantive changes that do not affect the

outcome of this appeal, it shall be filed nunc pro tunc to the date the original opinion was

filed.

         The mandate shall issue forthwith.


                                               Entered for the Court



                                               CHRISTOPHER M. WOLPERT, Clerk




                                               2
18-1353 & 18-1376, Cox v. Wilson

LUCERO, J., joined by PHILLIPS, J., dissenting from the denial of rehearing en banc:

       Because the panel decision in this case exponentially expands in this circuit the

judicially created doctrine of qualified immunity into an all-purpose, no-default, use-at-

any-time defense against asserted police misconduct, and because it clearly demonstrates

so much of what is wrong with qualified immunity, I requested that my colleagues review

the panel decision en banc. From the denial of that request, I respectfully dissent.

       Before the panel was an appeal asserting instructional error at trial below, and on

cross-appeal, several unrelated evidentiary issues. Instead of expressly ruling on the

merits of the issues raised and granting the parties the due process to which they are

entitled, the panel chose to openly entangle the previously denied and dismissed doctrine

of qualified immunity into its analysis. It denied the parties a ruling on the merits of their

appeal and instead concluded that because police misconduct in a prior case was arguably

more egregious than the misconduct at issue in this case—but was nevertheless shielded

by qualified immunity—the deputy sheriff in this case is similarly protected by qualified

immunity. Specifically, the panel reasons that because the conduct in the prior case was

apparently “improp[er]” to “most laypersons” but not in violation of clearly established

law, it follows that the officer’s conduct in this case is also not a violation of clearly

established law. (Op. 18.)

       I review the facts: the appellee, Deputy Wilson, pursued a motorist who

recklessly drove his vehicle on an icy Interstate 70. Fortunately, the motorist, Cox, drove

into a traffic jam that forced him to slow down and allowed Wilson and a second patrol
car to box him in. With Cox stopped, Wilson exited his car, approached Cox’s vehicle at

the passenger window, and—in the panel’s words—“[a]lmost immediately” shot Cox in

the neck. Cox was unarmed. He is now a quadriplegic.

       Suit followed. Deputy Wilson raised qualified immunity in his Answer and,

following discovery, moved for summary judgment on the basis of qualified immunity.

On the finding that there was a conflict in the evidence on point, the district court denied

qualified immunity. Interlocutory appeal was not taken. The case proceeded to trial and

ended in a mistrial. Only then did Wilson seek to bring an interlocutory appeal based on

the earlier denial of qualified immunity. Because it was untimely, a panel of this court

dismissed the appeal. It added that in addition to being untimely, final judgment had not

been entered. The case again proceeded to trial and, following the close of evidence in

the second trial, Deputy Wilson sought to raise qualified immunity again—this time in a

Rule 50(a) motion for judgment as a matter of law. That motion was denied. A jury

verdict was entered favoring Wilson, and an appeal was taken by Cox, presenting a

straightforward question: did the district court err in failing to instruct the jury on his

theory of the case? Deputy Wilson cross-appealed on three unrelated damages and

evidence issues. He did not appeal the issue of qualified immunity but argued in a

responsive brief that alternatively, the judgment below could be affirmed on any basis

supported by the record, including qualified immunity.1


       1
        Following the second trial, Wilson attempted to appeal the district court’s denial
of his Rule 50(a) motion in which he raised qualified immunity, but he did not move for a
directed verdict on his qualified immunity defense under Rule 50(b). A pre-verdict Rule


                                               2
       In addressing the issue presented to it by the appellant—whether error was

committed in failing to instruct on plaintiff’s theory of the case—the panel acknowledges

our decision in Higgins v. Martin Marietta Corp., 752 F.2d 492 (10th Cir. 1985), in which

we held that “a party is entitled to an instruction of [its] theory of the case only if the

theory is supported by competent evidence.” Id. at 496. This test is satisfied if the

requesting party provides “more than a mere scintilla of evidence to support an

instruction.” Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1297 (10th Cir. 1989). The

panel acknowledges that the district court misinterpreted Supreme Court precedent and

our own in denying Cox’s requested instruction, and it discusses the testimony Cox

adduced in support of the instruction from—as the panel put it—an expert with “excellent

credentials.” (Op. 10-14.) But rather than reach the conclusion compelled by these

acknowledgements, the panel resurrects the qualified immunity issue, and from it,

fashions something akin to harmless-error review: it concludes the court committed no

error at all because “including the sentence omitted by the court would have denied

Wilson the qualified immunity to which he was entitled.” (Op. 12.)

       As has been noted, the text of 42 U.S.C. § 1983 “makes no mention of defenses or

immunities.” Baxter v. Bracey, 140 S. Ct. 1862, 1862 (2020) (Thomas, J., dissenting

from the denial of certiorari) (quotation and alteration omitted). Qualified immunity is



50(a) motion “cannot form the basis of [an] appeal.” Unitherm Food Sys. v. Swift-
Eckrich, Inc., 546 U.S. 394, 406 (2006). The panel nevertheless granted qualified
immunity notwithstanding this procedural default. This is but one more example of the
panel choosing to ignore procedural default and hastening to use the “new and improved”
mutated doctrine of qualified immunity.

                                               3
entirely a court-created doctrine. As concerns police officer misconduct, it stems from

the Court’s 1967 decision, Pierson v. Ray, 386 U.S. 547, 556-57 (1967). Following its

creation, which intended to prevent frivolous and harassing litigation, see Pearson v.

Callahan, 555 U.S. 223, 231 (2009), the doctrine has mutated in seemingly unending

fashion. The case before us is Exhibit A of that continuing transformation. Much of the

problem with the expansion of the doctrine is exacerbated because the Court has failed to

give direction on (1) the scope of appellate court power to raise qualified immunity as a

basis for disposition of a case when qualified immunity was denied by or not raised

before the district court, and (2) the required nexus of particular facts necessary to satisfy

the clearly-established element of qualified immunity analysis.

       In concluding that Wilson was entitled to qualified immunity, the panel relies

solely on the second prong of the qualified immunity inquiry—whether the constitutional

right violated “was clearly established at the time of the defendant’s unlawful conduct.”

(Op. 13 (citing Pauly v. White, 874 F.3d 1197, 1214 (10th Cir. 2017), cert. denied, 138 S.

Ct. 2650 (2018)).) But it ignores that the district court denied qualified immunity to

Wilson under this prong because the relevant “factual context [wa]s highly disputed.”

See City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019) (“Use of excessive

force is an area of the law in which the result depends very much on the facts of each

case, and thus police officers are entitled to qualified immunity unless existing precedent

squarely governs the specific facts at issue.” (quotation omitted)). And worse, rather than

compare the specific facts of the present case with those of prior cases, the panel satisfies




                                              4
itself with comparing the relative perceived egregiousness of police conduct in factually

dissimilar cases.

       Specifically, the panel relies only on the facts of Pauly, a case that did not involve

a car chase, vehicular pursuit, or any facts remotely similar to the facts of the instant case.

874 F.3d at 1203-05. Rather, Pauly involved a situation in which several officers, on

foot, approached the plaintiff’s rural home “using their flashlights only intermittently

until they neared the front door.” (Op. 16.) Fearful that there were intruders, the plaintiff

and his brother “asked who was approaching,” to which “the officers responded hostilely,

yelling[,] ‘Hey, (expletive), we got you surrounded. Come out or we’re coming in.’”

(Op. 16-17 (quotation omitted).) In response, the brothers armed themselves, announced

that they had guns, and one of the officers shot and killed one of the brothers after seeing

him point a gun in the officer’s direction. (Op. 17.)

       These facts bear virtually no resemblance to those of the present case.

Nevertheless, the panel relies on Pauly to conclude that Deputy Wilson is protected by

qualified immunity, stating:

       Pauly illustrates the strength of the protection provided by qualified
       immunity. Unlike Wilson’s decision to leave his vehicle to try to disable
       Cox’s vehicle, the impropriety of the alleged actions by the officers before
       the shooting in Pauly would be apparent to most laypersons. Yet the Pauly
       officers were protected by qualified immunity because of the absence of
       clearly established law prohibiting their conduct. If qualified immunity
       protects the officers in Pauly against the claim of unreasonably creating a
       dangerous situation that led to the use of deadly force, surely Wilson is
       similarly protected.




                                              5
(Op. 18.)2 Thus, rather than attempt to compare the particular facts of Pauly with the

particular facts of the present case, the panel compares its assessment of the relative

impropriety of wholly different misconduct in distinct qualified immunity cases to

determine whether the clearly-established prong is satisfied.3

       No precedent supports this novel, expansive inquiry. The Supreme Court has

repeatedly warned lower courts not to assess the clearly-established prong at a high level

of generality. See City of Escondido, 139 S. Ct. at 503 (“[T]he clearly established right

must be defined with specificity. This Court has repeatedly told courts not to define

clearly established law at a high level of generality.” (quotation and alteration omitted)).

“Clearly established” means “the ‘contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’” DeSpain

v. Uphoff, 264 F.3d 965, 979 (10th Cir. 2001) (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)). This inquiry must be “particularized” to the facts of the case, White v.

Pauly, 137 S. Ct. 548, 552 (2017) (quotation omitted), and it “must be undertaken in light

of the specific context of the case, not as a broad general proposition,” Mullenix v. Luna,

136 S. Ct. 305, 308 (2015) (quotation omitted).




       2
         The quoted language appears in the panel opinion as filed on May 22, 2020.
       3
         On August 19, 2020, panel rehearing was granted, and the final sentence in the
foregoing quote was deleted. The following words were substituted, nunc pro tunc: “So
too, here.” This substituted analytical standard, in my judgment, is even more deficient
than the standard announced in the deleted sentence. Apparently, trial courts and
appellate panels of this circuit need only cite to a previous decision in which qualified
immunity has been granted and state, “So too, here.” Those words present no reviewable
standard whatsoever.

                                              6
       The panel opinion moves far afield of these strictures. At a time when “courts of

appeals are divided—intractably—over precisely what degree of factual similarity must

exist” for a constitutional violation to be clearly established, Zadeh v. Robinson, 928 F.3d

457, 479 (5th Cir. 2019) (Willett, J., concurring in part, dissenting in part), the panel

opinion effectively signals to lower courts that they may circumvent issues of factual fit

by relying on idiosyncratic assessments of the relative impropriety of officer misconduct.

Shifting the focus from “particularized” facts to nebulous notions of comparative

impropriety places this case squarely into the conflict among our sibling circuits in

applying the clearly-established prong. See id.; see also John C. Jeffries, Jr., What’s

Wrong with Qualified Immunity?, 62 Fla. L. Rev. 851, 852 (2010) (“[D]etermining

whether an officer violated ‘clearly established’ law has proved to be a mare’s nest of

complexity and confusion. The circuits vary widely in approach, which is not surprising

given the conflicting signals from the Supreme Court.”).4 And it calls for just “the sort of

‘freewheeling policy choice[s]’” the Court has “disclaimed the power to make.” Ziglar v.

Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., concurring in part and concurring in

the judgment) (quoting Rehberg v. Paulk, 566 U.S. 356, 363 (2012)).

       Further, the panel’s most unusual resurrection of the qualified immunity issue to

correct a squarely presented trial error similarly invites lower courts to make


       4
         Illustrating the problem with the reasoning of the panel, it is easy to identify
cases in which officers committed arguably less egregious conduct than Wilson and were
not protected by qualified immunity. See, e.g., Est. of Ceballos v. Husk, 919 F.3d 1204,
1215-17 (10th Cir. 2019). The panel opinion creates and applies a highly generalized
inquiry likely to produce contradictory results in the future.



                                              7
“freewheeling policy choice[s]” inappropriate under § 1983. Rehberg, 566 U.S. at 363.

It is a fundamental principle that “[c]ourts do not, or should not, sally forth each day

looking for wrongs to right.” Greenlaw v. United States, 554 U.S. 237, 244 (2008)

(quotation omitted). Instead, we generally “decide only questions presented by the

parties.” Id. (quotation omitted). Though the federal courts of appeals disagree as to

whether courts are empowered to raise sua sponte the affirmative defense of qualified

immunity on behalf of the government,5 none have suggested appellate power extends to

reversing the trial court’s denial of qualified immunity when such reversal has not been

appealed—until now. Thus, by resurrecting an issue raised, resolved, and not appealed,

the panel takes yet another step down the road of mutating the doctrine into an “absolute

shield” against consequences for the violation of constitutional rights. See Kisela v.

Hughes, 138 S. Ct. 1148, 1155 (2018) (Sotomayor, J., dissenting). As noted, this case is

Exhibit A of that metastasis.

       For these reasons, the panel’s decision is neither “right [n]or just under the law.”

Id. The modern qualified immunity doctrine already sends the “alarming signal to law

enforcement officers . . . that they can shoot first and think later.” Id. Our panel opinion



       5
         Compare Guzmán-Rivera v. Rivera-Cruz, 98 F.3d 664, 667-68 (1st Cir. 1996);
Bines v. Kulaylat, 215 F.3d 381, 386 (3d Cir. 2000); Suarez Corp. Indus. v. McGraw, 125
F.3d 222, 226 (4th Cir. 1997); Kelly v. Foti, 77 F.3d 819, 823 (5th Cir. 1996); Summe v.
Kenton Cnty. Clerk’s Off., 604 F.3d 257, 269-70 (6th Cir. 2010); Narducci v. Moore, 572
F.3d 313, 323-25 (7th Cir. 2009); Greer v. Dowling, 947 F.3d 1297, 1303 (10th Cir.
2020); Moore v. Morgan, 922 F.2d 1553, 1557-58 (11th Cir. 1991); and Robinson v.
Pezzat, 818 F.3d 1, 11 (D.C. Cir. 2016), with Dean v. Blumenthal, 577 F.3d 60, 67 n.6
(2d Cir. 2009); Story v. Foote, 782 F.3d 968, 969-70 (8th Cir. 2015); and Graves v. City
of Coeur D’Alene, 339 F.3d 828, 845 n.23 (9th Cir. 2003).

                                              8
adds another signal: egregious police misconduct will go unpunished if the court can

locate prior, arguably more improper conduct that escaped liability. In other words, the

Tenth Circuit now holds that a reasonable officer would not “understand that what he is

doing violates [a constitutional] right,” Anderson, 483 U.S. at 640, if “worse” conduct

has previously been shielded by qualified immunity. This terrible precedent, thus

created, is two-fold. One: it allows panels to use qualified immunity, at any stage of

litigation, to uphold an otherwise erroneous decision of the district court—

notwithstanding a substantial dispute regarding the evidence; notwithstanding the denial

of a previous motion not appealed in a timely manner; and notwithstanding the district

court denied qualified immunity time and again. Two: it shields police misconduct from

liability so long as any other government officer at some point committed—in the panel’s

mind—more improper conduct and was not held liable. Together, these two

pronouncements create a carte blanche which can be scripted and negotiated to counter

the public interest and foster the violation of constitutional rights by those charged with

protecting them.

       Regrettably, this case is one of many illustrating that the profound issues with

qualified immunity are recurring and worsening. “Given the importance” of these issues,

we can no longer delay confronting them. Baxter, 140 S. Ct. at 1865 (Thomas, J.,

dissenting from the denial of certiorari). Particularly in light of recent—though not

novel—unrest, at least one of our sibling circuits has recognized that the relentless

transformation of qualified immunity into an absolute shield must stop. See Est. of Jones

by Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020), as amended (June 10,


                                              9
2020). But as it stands in the Tenth Circuit, the panel opinion allows courts to finesse

ambiguities to avoid confronting the hard issues presented. And that’s a denial of due

process any way you look at it. By continuing to await addressing deep and troubling

qualified immunity issues brought to our attention time and again, we are complicit in

this denial.




                                            10
                                                                               FILED
                                                                   United States Court of Appeals
                                       PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       May 22, 2020

                                                                       Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                          Clerk of Court
                        _________________________________

 CODY WILLIAM COX,

        Plaintiff - Appellant/Cross-
        Appellee,
                                                        Nos. 18-1353 & 18-1376
 v.

 DON WILSON, in his individual capacity,

        Defendant - Appellee/Cross-
        Appellant.
                       _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                       (D.C. No. 1:15-CV-00128-WJM-NYW)
                       _________________________________

James F. Scherer, Miller & Law, P.C., Littleton, Colorado, argued on behalf of
Appellant/Cross-Appellee

Gordon L. Vaughan (Ann B. Smith, with him on the briefs), Vaughan & Demuro,
Colorado Springs, Colorado, argued on behalf of Appellee/Cross-Appellant.
                       _________________________________

Before HARTZ and EID, Circuit Judges*




* The late Honorable Monroe G. McKay, United States Senior Circuit Judge, heard oral
argument and participated in the panel’s conference of this appeal, but passed away
before its final resolution. The practice of this court permits the remaining two panel
judges, if in agreement, to act as a quorum in resolving the appeal. See United States v.
Wiles, 106 F.3d 1516, 1516, n* (10th Cir. 1997); 28 U.S.C. § 46(d).
                         _________________________________

HARTZ, Circuit Judge.
                         _________________________________

       Plaintiff Cody Cox sued Defendant Don Wilson, a deputy in the Clear Creek

County Sheriff’s Department, under 42 U.S.C. § 1983. Cox alleged that when Wilson

shot him in his vehicle while stopped on Interstate 70, Wilson violated the constitutional

prohibition against the use of excessive force by law-enforcement officers. Plaintiff

appeals the judgment on the jury verdict against him. He argues that the district court

erred in failing to instruct the jury to consider whether Wilson unreasonably created the

need for the use of force by his own reckless conduct. We have jurisdiction under 28

U.S.C. § 1291 and affirm. Although the district court incorrectly stated that the Supreme

Court had recently abrogated this court’s precedents requiring such an instruction in

appropriate circumstances, the evidence in this case did not support the instruction. No

law, certainly no law clearly established at the time of the incident, suggests that Wilson

acted unreasonably up to and including the time that he exited his vehicle and approached

Cox’s vehicle.

       I.     Background

              A.     The Shooting

       Cox was shot on January 31, 2014, after a car chase on Interstate 70. It had been

snowing so the Interstate was wet, and some parts were snow-packed or icy. The first

officer to pursue Cox was Clear Creek County Deputy Sheriff Kevin Klaus. Although

Klaus testified about his observations during the pursuit, the only evidence relevant to the



                                              2
propriety of Wilson’s actions is what Wilson observed or what he was informed of by

others. Therefore, our account of what happened before Wilson joined the pursuit is limited

to what was broadcast on police radio channels that Wilson heard.

       The radio traffic indicated a dangerous situation. It began as Cox’s Toyota pickup

passed Exit 235 on the interstate. The dispatcher said, “[W]e’ve got about three 9-11 calls.”

Aplt. App., Vol. VII at 1566. An officer reported that Cox had “I-70 pretty-well blocked up

behind him and he’s having a hard time getting up the road.” Id. at 1567. The officer

described the vehicle as a “Silver Tacoma with damage all over the body and a camper shell

on the back.” Id. Klaus reported that at about mileage marker 232½, Cox “just wiped out in

the, uh, number one lane. He’s – was all over the road.” Id. at 1568. Klaus also noted that

his police vehicle did not have a siren. Id. Klaus then reported that near Exit 232 the

pickup “got stuck, but he’s trying to get away again. I’m not going to contact until I get

some cover.” Id. at 1569. He said: “I verbally told the party to turn off his car. I do have a

good look of – at him, and he’s taking off again. Westbound. All over the road.” Id. An

officer reported that traffic was “almost at a standstill” about 4 miles ahead. Id. Klaus said

he needed help from someone with a siren and reported that there was “nobody in front of

this guy, but we have a lot behind me.” Id. After the other officer reported that he was at

Exit 228, Klaus responded, “Uh, the way he’s driving, I doubt we’ll make it that far.” Id.

Another officer stated that he had “spike strips” (also referred to by officers as stop sticks)

and would join the two police vehicles already at Exit 228. Id. at 1570. Klaus then reported

that Cox was driving 60 miles per hour, then 70, and then 80 at mileage marker 230½.

       After an officer reported that westbound traffic was stopped about a mile and a half


                                                3
ahead, Klaus said, “[W]e just caught up with this traffic. He is not going to stop.” Id.

Klaus continued, “[W]e’re going to have to, uh, take some physical action on this vehicle.

This guy has got to be very drunk, and he is not stopping.” Id. at 1571. Shortly after that,

Klaus reported, “We’re in bumper-to-bumper traffic now at the 229½. He is not stopping.

He’s just showing me a peace sign.” Id. Another officer informed the others that he was at

the 228 offramp with spike strips.

       About that time, Wilson, whose vehicle had a siren, had caught up with Cox and

taken over from Klaus as leader of the pursuit. For the next mile, traffic became heavily

congested, moving slowly in a stop-and-go fashion. The pursuit proceeded at speeds

between 5 and 15 miles per hour. Wilson observed Cox continue to drive dangerously.

Each time Cox was momentarily stopped by the traffic, he would wait for an opening and

then accelerate through any gaps in the cars, losing traction and fishtailing wildly nearly a

dozen times and coming very close to striking nearby vehicles. He refused to pull over in

response to Wilson’s lights and sirens or Wilson’s repeated orders over his loudspeaker that

Cox stop his vehicle. Wilson believed that Cox was not going to stop.

       Wilson was able to pull along the right side of Cox’s vehicle, which was in the left-

hand lane about five feet from the guardrail, while traffic continued to move very slowly in

a stop-and-go fashion. Wilson had his window down and motioned for Cox to roll down

his window, which Cox did. But Cox continued to ignore Wilson’s repeated orders to turn

off his engine. On several occasions Wilson observed Cox drop his right hand down to his

right hip; given the circumstances, Wilson assumed that Cox was reaching for a firearm.

Cox kept driving forward when possible, rolling up a few feet each time the traffic moved


                                               4
forward. Wilson believed that Cox was striking the rear bumper of the car in front of him,

driven by Sarah Kincaid, and pushing her car forward each time that he pulled ahead. But

Wilson testified that he was mistaken on this point; he said that his perceptions at that

moment were impaired because he was concentrating on giving Cox instructions and

determining whether Cox had a weapon.

       Finally, Kincaid fully stopped her car, requiring Cox to stop. Kincaid stopped

because she thought that Wilson wanted her to do so. But Wilson and Kincaid had not

communicated at any point and Kincaid kept the engine running; so Wilson had no way of

knowing that Kincaid was intentionally blocking Cox and would continue to do so even as

traffic moved forward in front of her.

       Klaus stopped his vehicle about 10 feet behind Cox. By this point Wilson had

drawn his firearm and pointed it at Cox, again ordering Cox to turn off his engine. While

Cox was boxed in, Wilson believed he had a brief window of time to get inside Cox’s car

and take the keys out of the ignition. He decided that prompt action was necessary because

he believed that the next stretch of highway posed increasing dangers for the chase (for

example, there was a crossover area a mile ahead where Cox could have driven into

oncoming traffic), and that Cox could, in the slow-moving traffic, avoid the stop sticks that

police had laid out at the next exit. Based on the radio transmissions, Wilson thought that

officers providing support for the chase about a half mile to a mile down the road were not

coming to assist him.

       Wilson said that when he exited his vehicle, it was a car length ahead of Cox in the

lane to the right. With his firearm drawn he moved toward Cox, again telling Cox to turn


                                              5
off his engine. Almost immediately, he shot Cox through the open passenger window,

striking Cox in the neck. The shooting incident, from the time Cox’s vehicle came to a

complete stop to the time that Wilson shot Cox, probably took about a minute.1 The shot to

the neck rendered Cox quadriplegic.

       There was no dispute at trial regarding Wilson’s knowledge of the police radio

traffic before he took over the lead of the pursuit; nor was there any dispute regarding the

stop-and-go nature of the traffic once he took the lead, Cox’s dangerous driving, or Cox’s

refusal to comply with Wilson’s repeated orders for Cox to turn off his engine. But the

eyewitness trial testimony about the moments immediately preceding the shooting was not

entirely consistent. Wilson claimed that before he stepped from his vehicle onto the

highway, he witnessed Cox roll his car forward and backward twice. When he stepped

onto the highway, Cox had backed up to a point completely behind his patrol car. He said

that he shot Cox because Cox attempted to drive forward and to the right, toward his patrol

car, in a manner that caused him to believe that he was going to be crushed and perhaps

killed between the two vehicles. Klaus, however, testified that Wilson stopped his patrol

car right next to Cox’s car, and that Cox moved his car only once (a foot backward and

then a foot forward) after coming to a complete stop behind Kincaid. Kincaid testified that



1
   The duration of the incident, from the time that Cox’s car came to a complete stop to the
time of the shooting, is somewhat uncertain. Klaus testified that he watched Cox’s stopped
car for less than a minute before exiting his car, and that Wilson shot Cox about four
seconds later. Wilson testified based on the radio transmissions that the incident took
about one minute and 15 seconds. Kincaid testified that the incident took “seven and a half
minutes,” Aplt. App., Vol. I at 181, but admitted that her perception was affected by the
stress of the moment.

                                              6
Wilson had not fully exited his vehicle when he shot Cox, and Cox had not moved his

vehicle after stopping behind Kincaid with Wilson to his right.

       Cox testified that he had no memory of the car chase or the shooting incident except

that he recalled a silhouette of a person who came up to his window while he was stopped

in traffic, he heard some words, and he hit the vehicle in front of him before losing

consciousness.

       B.     Procedural History

       Cox filed suit in the United States District Court for the District of Colorado

asserting a single claim under 42 U.S.C. § 1983: namely, that his shooting constituted the

use of excessive force in violation of the Fourth Amendment’s protection against

unreasonable seizure. Wilson asserted the defense of qualified immunity.

       There have been two jury trials on Cox’s claim. The first jury returned a verdict in

favor of Wilson, but the district court vacated the judgment because of misconduct at trial

by defense counsel (who has since been replaced) and ordered a new trial. After Cox

rested his case in the second trial, Wilson moved under Fed. R. Civ. P. Rule 50(a) for a

judgment as a matter of law on his qualified-immunity defense. He renewed this motion at

the close of evidence, but the court denied the motion. The second jury also rendered a

verdict in favor of Wilson.

       Cox raises only one issue on appeal. He contends that the district court improperly

failed to instruct the jury that it could consider Wilson’s reckless conduct before the

shooting in determining whether the shooting violated the Fourth Amendment. In his

response to Cox’s appeal and in support of his own cross-appeal, Wilson argues that the


                                              7
district court committed several errors during the trial. But because we affirm the

judgment in Wilson’s favor, we need not address those matters.

       II.    Discussion

       In an excessive-force case, as in other Fourth Amendment seizure cases, a plaintiff

must prove that the officer’s actions were “objectively unreasonable,” taking into account

the “totality of the circumstances.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d

1255, 1259–60 (10th Cir. 2008) (internal quotation marks omitted). Cox argues that the

district court erred in failing to instruct the jury that in determining the reasonableness of

Wilson’s use of force, it could consider whether Wilson’s own reckless conduct

unreasonably created the need to use such force.

       According to Cox, the district court’s mistake was in changing the unreasonable-

force jury instruction from what the court had used at the first trial. The court’s

instructions were almost identical to those it had previously given regarding what Cox

needed to prove to establish his claim against Wilson. In both trials the court told the

juries that the burden was on Cox “to establish by a preponderance of the evidence each

of the following elements” of his excessive-force claim: “First: [Wilson] deprived [Cox]

of his federal Constitutional right not to be subjected to unreasonable force while being

stopped; Second: [Wilson] acted under the color of state law; and Third: [Wilson’s] acts

were the proximate cause of damages sustained by [Cox].” Aplt. App., Vol. VII at 1595.

The court then instructed the juries on the “Factors To Consider When Determining

Whether Plaintiff Has Proven The Elements Of His Claim.” Id. at 1596. It told the juries

that they could consider whether Cox had proved at least one of the following (each of


                                               8
which would have sufficed to establish a violation of his Fourth Amendment rights): (1)

“that deadly force was not necessary to prevent [Cox] from escaping”; (2) “that [Wilson]

did not have probable cause to believe that [Cox] posed a significant threat of serious

physical injury to [Wilson] or others”; or (3) “that it would have been feasible for [Wilson]

to give [Cox] a warning before using deadly force, but [Wilson] did not do so.” Id. at

1596–97. And the court told the juries that they should “consider all the relevant facts and

circumstances [Wilson] reasonably believed to be true at the time of the encounter,” and

that the inquiry “is always whether, from the perspective of a reasonable officer on the

scene, the totality of the circumstances justified the use of force at the time of the seizure.”

Id. at 1597.

       But the court did make one change to the factors-to-consider instruction given at the

first trial, and that is the basis of Cox’s appeal. The second-trial instruction excluded one

sentence regarding the jury’s reasonableness inquiry. We set forth in regular type the

pertinent paragraph from the instructions at the second trial, and italicize the sentence that

was included at the first trial but not at the second:

       The reasonableness of Defendant’s acts must be judged from the perspective
       of a reasonable officer on the scene at the time of the seizure, that is, the
       shooting. One of the factors you should consider is whether Defendant Don
       Wilson was in danger at the time that he used force. Defendant Don
       Wilson’s own conduct prior to the shooting can be a part of your
       determination of reasonableness, but only if his own reckless or deliberate
       conduct during the seizure unreasonably created the need to use such force.
       The concept of reasonableness makes allowance for the fact that police
       officers are often forced to make split-second judgments in circumstances
       that are sometimes tense, uncertain, and rapidly evolving, about the amount
       of force that is necessary in a particular situation.




                                                9
Aplt. App., Vol. I at 57 (italics), VII at 1597 (regular type). Cox objected to the instruction

but was overruled. The court explained that it thought the deleted language was legally

incorrect and that Cox’s contention that Wilson’s conduct before the shooting was reckless

was unlikely to overcome qualified immunity. See Aplt. App., Vol. VII at 1436 (“It’s my

view that some subsequent decisions since the first trial call[] into question the

continuing viability of that statement and that would be, in my view, the thinnest grounds

that the plaintiff would have on the qualified immunity issue.”).

       We ordinarily review a lower court’s refusal to give a particular instruction for

abuse of discretion. See Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d

1221, 1231 (10th Cir. 1999). “That deferential review is superseded, however, by this

court’s de novo review of the instructions given to determine whether, in the absence of

the refused instruction, they misstated the applicable law.” Id.; see Burke v. Regalado,

935 F.3d 960, 1009 (10th Cir. 2019) (“We review de novo whether, as a whole, the

district court’s jury instructions correctly stated the governing law and provided the jury

with an ample understanding of the issues and applicable standards.” (internal quotation

marks omitted)). Wilson argues that we should review the denial of the requested

instruction for abuse of discretion, while Cox argues that our review is de novo. But we

need not resolve that dispute because on de novo review we hold that the instruction

would have been improper in light of the evidence.

       There is some Supreme Court authority supporting the district court’s view of the

law. In City & County of San Francisco, California v. Sheehan, the Court stated that a

plaintiff could not “establish a Fourth Amendment violation based merely on bad tactics


                                              10
that result[ed] in a deadly confrontation that could have been avoided.” 135 S. Ct. 1765,

1777 (2015) (internal quotation marks omitted). “[S]o long as a reasonable officer could

have believed that his conduct was justified, a plaintiff cannot avoid summary judgment

by simply producing an expert’s report that an officer’s conduct leading up to a deadly

confrontation was imprudent, inappropriate, or even reckless.” Id. (original brackets and

internal quotation marks omitted).

       Two years later, County of Los Angeles, California v. Mendez rejected the Ninth

Circuit’s “provocation” rule, which had “permit[ted] an excessive force claim under the

Fourth Amendment where an officer intentionally or recklessly provokes a violent

confrontation, if the provocation is an independent Fourth Amendment violation.” 137 S.

Ct. 1539, 1546 (2017) (internal quotation marks omitted). “The rule’s fundamental

flaw,” as the unanimous Court explained, was that it “use[d] another constitutional

violation to manufacture an excessive force claim where one would not otherwise exist.”

Id. The rule went beyond the “operative question in excessive force cases,”—“whether

the totality of the circumstances justifie[d] a particular sort of search or seizure,” id.

(internal quotation marks omitted)—and instead “instruct[ed] courts to look back in time

to see if there was a different Fourth Amendment violation that [was] somehow tied to

the eventual use of force,” id. at 1547.

       But Mendez made clear that it was not deciding the validity of the proposition of

law stated in the sentence omitted from the instruction by the district court in this case. A

footnote to the opinion states that the Court was declining to address the view that

assessing the reasonableness of the use of force requires “taking into account


                                              11
unreasonable police conduct prior to the use of force that foreseeably created the need to

use it.” Id. at 1547 n*. And after both Sheehan and Mendez we held in Pauly v. White

that “[t]he reasonableness of the use of force depends not only on whether the officers

were in danger at the precise moment that they used force, but also on whether the

officers’ own reckless or deliberate conduct during the seizure unreasonably created the

need to use such force.” 874 F.3d 1197, 1219 (10th Cir. 2017), cert. denied, 138 S. Ct.

2650 (2018) (internal quotation marks omitted); see also id. at 1219 n.7 (“This has been

the law in our circuit since 1995. . . . The Supreme Court very recently had an

opportunity to resolve this issue [in Mendez] but declined to do so . . . .”).

       Nevertheless, the district court did not commit any error by declining to include

the sentence in the instruction. A party is not entitled to a jury instruction just because it

correctly states a proposition of law. It must be supported by the evidence at trial. See

Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1297 (10th Cir. 1989) (“Under federal law it

is error to give an instruction when there is no evidence to support it. There must be

more than a mere scintilla of evidence to support an instruction. Sufficient competent

evidence is required.” (citations omitted)); Higgins v. Martin Marietta Corp., 752 F.2d

492, 496 (10th Cir. 1985) (“[A] party is entitled to an instruction of [its] theory of the

case only if the theory is supported by competent evidence. The evidence introduced at

trial must warrant the giving of the instruction.” (citations omitted)). In this case,

including the sentence omitted by the court would have denied Wilson the qualified

immunity to which he was entitled. Before addressing the specifics of this case, we

briefly summarize the doctrine of qualified immunity.


                                              12
       Qualified immunity shields public officials “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pauly, 874 F.3d at 1214

(internal quotation marks omitted). When a defendant asserts a qualified-immunity

defense, the plaintiff bears the burden of showing that (1) the defendant violated a

constitutional or statutory right, and (2) this right was clearly established at the time of

the defendant’s unlawful conduct. See id. We have discretion to address these two

prongs in either order, and “[w]e may resolve a case on the second prong alone if the

plaintiff fails to show a right was clearly established.” Gutierrez v. Cobos, 841 F.3d 895,

900 (10th Cir. 2016).

       The law is clearly established for qualified-immunity purposes only if it was

sufficiently clear that, at the time of the public official’s conduct, every reasonable

official would have understood that the conduct was unlawful. See District of Columbia

v. Wesby, 138 S. Ct. 577, 589 (2018). To make such a showing in our circuit, “the

plaintiff must point to a Supreme Court or Tenth Circuit decision on point, or the clearly

established weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Callahan v. Unified Gov’t of Wyandotte Cty., 806 F.3d 1022, 1027

(10th Cir. 2015) (internal quotation marks omitted). “[E]xisting precedent must have

placed the statutory or constitutional question beyond debate.” Mullenix v. Luna, 136 S.

Ct. 305, 308 (2015) (internal quotation marks omitted). The clarity of the law must be

viewed “in light of the specific context of the case, not as a broad general proposition.”

Pauly, 874 F.3d at 1222 (internal quotation marks omitted).


                                              13
      Here, qualified immunity did not completely protect Wilson from Cox’s claim.

Cox was certainly entitled to an instruction on the unreasonable use of force. The jury

could have inferred from the testimony of Officer Klaus and of Ms. Kincaid that, contrary

to Wilson’s testimony, Cox had not made any attempt to drive his vehicle at Wilson when

Wilson shot him, that Cox did not pose a threat of imminent danger to Wilson after

Wilson exited his vehicle, and that therefore Wilson’s use of deadly force against Cox

was unreasonable. But the jury found otherwise. And, in light of the doctrine of

qualified immunity, it would have been contrary to law for the jury to hold Wilson liable

based on his conduct before the time of the shooting. Therefore, it would have been

improper to give the jury an instruction that would have allowed it to do so. We explain.

      The sentence omitted from the instruction said: “Defendant Don Wilson’s own

conduct prior to the shooting can be a part of your determination of reasonableness, but

only if his own reckless or deliberate conduct during the seizure unreasonably created the

need to use such force.” Aplt. App., Vol. I at 57. Cox sought the instruction to allow

him to base liability on his claim that, even if Wilson was in imminent danger when he

shot Cox, the only reason Wilson was exposed to danger was that he unreasonably exited

his police vehicle and approached Cox’s pickup.

      At trial Cox called as an expert witness a person with excellent credentials who

testified that Wilson’s recklessness created the danger leading to the shooting. The

expert opined that Wilson should not have left his car to approach Cox because of the

danger to Wilson once he was on foot on the Interstate and in a vulnerable position

between his patrol car and Cox’s vehicle. He said that Wilson should have remained in


                                            14
his vehicle and attempted to deescalate the situation, perhaps waiting for support from

additional officers. And he said that once Wilson stepped onto the Interstate, he should

have moved to a position of safety at the rear of his vehicle.

       Perhaps it would have been safer for Wilson to remain in his vehicle. But there

were other considerations at play. Cox had ignored repeated warnings from Wilson to

turn off his car’s engine. Wilson reasonably believed that if Cox could continue to drive

on the Interstate, he would present a profound danger to other motorists. Although Cox

was temporarily boxed in, there was no reason for Wilson to believe that this situation

would persist for any substantial amount of time; Kincaid did not turn off her engine and

had not spoken with Wilson or otherwise informed him that she intended to remain

stopped in front of Cox indefinitely. If Kincaid moved forward, Cox could have

continued his dangerous driving, which, according to both Wilson and Kincaid, he

appeared intent on doing. And both Wilson and Kincaid testified that Cox was

repeatedly reaching down for something, which they assumed was a firearm. If Cox was

to be prevented from further dangerous driving, the most reasonable thing for Wilson to

do may have been to expose himself to danger in order to disable Cox from driving.

       More importantly, even if the jury was persuaded by the expert’s trial testimony

that Wilson had acted unreasonably in leaving his vehicle, qualified immunity protected

Wilson from liability on that score. As Wilson frames the issue, the question on appeal is

whether there is:

       a controlling case finding a Fourth Amendment violation due to the
       officer’s recklessly causing the need to use deadly force, where after
       participating in a high speed and dangerous chase of a suspect, the officer


                                             15
       exited his vehicle during a temporary stop in traffic to confront the driver
       with a show of deadly force?

Aplee. Br. at 49. Cox has not presented, nor are we aware of, any opinion by the

Supreme Court or this court, or, for that matter, any other court, holding that an officer in

similar circumstances acted unreasonably. It would have been error for the district court

to instruct the jury that it could find Wilson liable on a ground for which he was protected

by qualified immunity.

       This court recently reached essentially the same conclusion on an appeal where the

issue was the same as in this case—allegedly unreasonable police conduct leading to the

use of deadly force. In Pauly we reversed the denial of summary judgment in favor of

the officers, even though the evidence would support a finding of the following events:

Two women called 911 late one evening to report a drunk driver and then began to

tailgate him. See 874 F.3d at 1203. At one point both vehicles stopped at an exit ramp

and the occupants exchanged unpleasantries. See id. The driver felt threatened and drove

away (apparently without the women following him), going the short distance to his rural

home, where he lived with his brother. See id. The three responding officers determined

“that there was not enough evidence or probable cause to arrest [the driver], and that no

exigent circumstances existed at the time. Nevertheless, the officers decided to try and

speak with [the driver] to get his side of the story.” Id. at 1203–04. The officers located

and then approached the driver’s home, using their flashlights only intermittently until

they neared the front door. See id. at 1204. The driver and his brother, fearing intruders

related to the prior road-rage incident, asked who was approaching, see id.; the officers



                                             16
responded hostilely, yelling “Hey, (expletive), we got you surrounded. Come out or

we’re coming in,” id. As a result, the brothers, who had no reason to think the intruders

were police officers, armed themselves and shouted that they had guns; one of the

officers shot and killed the driver’s brother after seeing him point a gun in the officer’s

direction. See id. at 1205. We held that the officers’ reckless conduct—including

approaching the suspect’s home “while it was dark and raining and, without knocking on

the door, ma[king] threatening comments about intruding into the home,” id. at 1215—

understandably caused the suspect and his brother to arm themselves, and therefore

unreasonably created the need to use deadly force, see id. at 1211, 1213, 1221. We

concluded that the threat “made by the brothers, which would normally justify an

officer’s use of force, was precipitated by the officers’ own” reckless actions, and that

therefore the use of deadly force was unreasonable. Id. at 1221.

       We nevertheless held that the officers were entitled to qualified immunity because

there was no clearly established law that such recklessness created liability. Id. at 1223.

We explained:

       The statement . . . that the reasonableness inquiry includes an evaluation of
       an officer’s actions leading up to the use of force, is absolutely relevant in
       determining whether a police officer acted unreasonably in effecting a
       seizure, as we illustrated above. But it cannot alone serve as the basis for
       concluding that an officer’s particular use of excessive force was clearly
       established. . . . Because there is no case close enough on point to make the
       unlawfulness of [the shooting officer’s] actions apparent, we conclude that
       [the officer] is entitled to qualified immunity.

Id. (internal quotation marks omitted).




                                             17
       Pauly illustrates the strength of the protection provided by qualified immunity.

Unlike Wilson’s decision to leave his vehicle to try to disable Cox’s vehicle, the

impropriety of the alleged actions by the officers before the shooting in Pauly would be

apparent to most laypersons. Yet the Pauly officers were protected by qualified

immunity because of the absence of clearly established law prohibiting their conduct. So

too, here.

        Cox argues that Wilson is procedurally barred from raising qualified immunity on

appeal because his preverdict Rule 50(a) qualified-immunity motion was not followed by a

postverdict Rule 50(b) motion. See Kelley v. City of Albuquerque, 542 F. 3d 802, 817

(10th Cir. 2008) (“[T]he precise subject matter of a party’s Rule 50(a) motion—namely, its

entitlement to judgment as a matter of law—cannot be appealed unless that motion is

renewed pursuant to Rule 50(b).” (emphasis added) (internal quotation marks omitted)).

But Wilson had no occasion or reason to file a Rule 50(b) motion because the jury’s verdict

was in his favor. The motion-renewal requirement of Rule 50(b) applies only to parties

dissatisfied with the verdict—that is, appellants. Now, as an appellee, Wilson can defend

the judgment on any ground supported by the record, at least when it is fair to do so. See

Feinberg v. Comm’r of Internal Revenue, 916 F.3d 1330, 1334 (10th Cir. 2019), cert.

denied, 140 S. Ct. 49 (2019). There is no unfairness in affirming on the ground of qualified

immunity. Wilson properly invoked qualified immunity in the district court and has fully

briefed the issue on appeal.

       We also reject Cox’s apparent assertion at oral argument that qualified immunity is

a separate, nonrelevant issue, and not an issue on appeal, because the jury was not


                                             18
presented with deciding the issue. To begin with, the argument is untimely. “Arguments

that are raised for the first time at oral argument come too late to merit our attention.”

United States v. DeRusse, 859 F.3d 1232, 1240 n.3 (10th Cir. 2017) (brackets and internal

quotation marks omitted). Moreover, were we to consider this argument, it would fail

because the clearly-established-law component of qualified immunity is not a jury issue.

See Griess v. State of Colo., 841 F.2d 1042, 1047 (10th Cir. 1988) (“[W]hether

constitutional rights allegedly violated were clearly established for purposes of qualified

immunity . . . is a purely legal issue,” and therefore “is appropriate for resolution on

appeal.” (internal quotation marks omitted)).

       III.   Conclusion

       We AFFIRM the district court’s judgment in favor of Defendant Wilson.




                                              19
