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.
A recent decision of this court provides a compelling illustration of the scope of
qualified immunity 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
16 incident, asked who was approaching, see id.; the officers 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. 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.
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.
18 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
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.