PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________

CODY WILLIAM COX, Plaintiff - Appellant/Cross- Appellee,

v. DON WILSON, in his individual capacity, Defendant - Appellee/Cross- Appellant. Nos. 18-1353 & 18-1376

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

________________ _________________ James F. Scherer, Miller & Law, P.C., L ittleton, Colorado, ar gued 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, Un ited States Senior Circ uit Judge, heard oral argument and participated in the panel’s co nference of this appeal, but passed away before its final resolution. The practice of this court pe rmits 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). FILED United States Court of Appeals Tenth Circuit 

### May 22, 2020 Christopher M. Wolpert Clerk of Court2 ________________ _________________ 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. C ox alleged that when Wilson shot him in his vehicle while stopped on Interstate 70, W ilson violated the constitutional prohibition against the use of excessive force by law-enforc ement officers. Plaintiff appeals the judgment on the ju ry 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 reckle ss conduct. We have jurisdiction under 28 U.S.C. § 1291 and affirm. Although th e district court incorrectly stated that the Supreme Court had recently abrogated this court’s pre cedents requiring such an instruction in appropriate circumstances, the ev idence in this case did not su pport 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 Janua ry 31, 2014, after a ca r 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 Coun ty Deputy Sheriff Kevin Klaus. Although Klaus testified about his observatio ns during the pursuit, the on ly evidence relevant to the3 propriety of Wilson’s actions is what Wilson obs erved or what he was informed of by others. Therefore, our account of what happened before Wilson joined the pursu it 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 inte rstate. The dispatcher said, “[W]e’ve got ab out three 9-11 calls.” Aplt. App., Vol. VII at 1566. An officer reported that Cox ha d “I-70 pretty-w ell blocked up behind him and he’s ha ving a hard time get ting 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 2321⁄2 , 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 co ntact until I get some cover.” Id. at 1569. He said: “I verbally told the party to turn off hi s 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 th at traffic was “almost at a sta ndstill” about 4 miles ahead. Id. Klaus said he needed help from someone with a sire n and reported that ther e 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 th at he had “spike strips” (also referr ed to by officers as stop sticks) and would join the tw o police vehicles alr eady at Exit 228. Id. at 1570. Klau s then reported that Cox was driving 60 miles per hour, then 70, and then 80 at mi leage marker 2301⁄2. After an officer reported th at westbound traffic was stoppe d about a mile and a half4 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 ac tion on this vehicle. This guy has got to be very drunk, and he is not stopping.” Id. at 1571. Shor tly after that, Klaus reported, “We’re in bumpe r-to-bumper traffic now at th e 2291⁄2. 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, wh ose 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 proceed ed at speeds between 5 and 15 miles per hour. Wilson obs erved Cox continue to drive dangerously. Each time Cox was momentaril y stopped by the traffic, he w ould wait for an opening and then accelerate through any gaps in the cars, losing traction and fishtailing wild ly nearly a dozen times and coming very cl ose to striking near by vehicles. He refu sed to pull over in response to Wilson’s li ghts and sirens or Wils on’s repeated orders ove r his loudspeaker that Cox stop his vehicle. Wi lson believed th at Cox was not goi ng to stop. Wilson was able to pull along th e right side of Cox’s vehicl e, which was in the lefthand lane about five feet from th e guardrail, while traffic conti nued to move very slowly in a stop-and-go fashion. Wils on had his window down and mo tioned for Cox to roll down his window, which Cox did. But Cox continued to i gnore Wilson’s repeated orders to turn off his engine. On several oc casions Wilson observed Cox dr op his right hand down to his right hip; given the circumstan ces, Wilson assumed that Cox was reaching for a firearm. Cox kept driving forward when possible, rolling up a few feet each time the traffic moved5 forward. Wilson believe d that Cox was striking the rear bum per of the car in front of him, driven by Sarah Kincaid, and pus hing her car forward each time that he pulled ahead. But Wilson testified that he was mistaken on this point; he sa id that his perc eptions at that moment were impaired beca use he was concentrating on giving Cox instructions and determining whether C ox had a weapon. Finally, Kincaid fully st opped her car, requiring Cox to stop. Kincaid stopped because she thought that Wils on wanted her to do so. Bu t Wilson and Kincaid had not communicated at any point and Kincaid kept the engine runni ng; so Wilson had no way of knowing that Kincaid was intentionally blocking Cox and woul d continue to do so even as traffic moved forward in front of her. Klaus stopped his vehicle a bout 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 ti me to get inside Cox’s car and take the keys out of the i gnition. He decided that prom pt action was necessary because he believed that the next st retch of highway posed increa sing dangers for the chase (for example, there was a crossove r area a mile ahead where C ox could have driven into oncoming traffic), and that Cox could, in the slow-moving traffi c, avoid the st op sticks that police had laid out at the next exit. Based on the radio tran smissions, 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 exit ed his vehicle, it was a ca r length ahead of Cox in the lane to the right. With his fi rearm drawn he moved toward C ox, again telling Cox to turn6 off his engine. Almost imme diately, he shot Cox thr ough the open passenger window, striking Cox in the neck. Th e shooting incident, from the ti me 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 tr ial regarding Wilson’s know ledge of the police radio traffic before he took over the lead of the pursuit; nor was th ere any dispute regarding the stop-and-go nature of the traf fic once he took the lead, Cox’s dangerous driving, or Cox’s refusal to comply with Wilson’s repeated orders for Cox to tu rn off his engine. But the eyewitness trial te stimony about the moments immediatel y preceding the shooting was not entirely consistent. Wilson claimed that before he ste pped 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 behi nd his patrol car. He said that he shot Cox because Cox at tempted to drive forward and to the right, toward his patrol car, in a manner that ca used him to believe th at 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 comi ng to a complete stop behind Kin caid. 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 somewh at uncertain. Klaus testified that he watched Cox’s stopped car for less th an a minute before exit ing his car, and that Wilson shot Cox about four seconds later. Wilson testif ied based on the radio transmis sions that the incident took about one minute and 15 s econds. Kincaid testified that the incident took “seven and a half minutes,” Aplt. App., Vol. I at 181, but admitted that her perception was af fected by the stress of the moment.7 Wilson had not fully ex ited his vehicle when he shot Cox, and Cox had not moved his vehicle after stopping behind Kincai d with Wilson to his right. Cox testified that he had no memory of th e car chase or the s hooting incident except that he recalled a silhouet te of a person who came up to his window while he was stopped in traffic, he heard some wo rds, and he hit the vehicle in front of him before losing consciousness. B. Procedural History Cox filed suit in the United States Dist rict Court for the Di strict of Colorado asserting a single clai m under 42 U.S.C. § 1983: namely, that his shoo ting constituted the use of excessive force in violation of the Fourth Am endment’s protection against unreasonable seizure. Wilson asserted th e defense of qualifi ed immunity. There have been two jury tria ls on Cox’s claim. The first jury returned a verdict in favor of Wilson, but the distri ct court vacated th e judgment because of misconduct at trial by defense counsel (who has si nce been replaced) and ordere d 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 defens e. He renewed this motion at the close of evidence, but the court denied the moti on. The second jury also rendered a verdict in favor of Wilson. Cox raises only one issue on a ppeal. He contends that th e district c ourt improperly failed to instruct the jury that it could consid er Wilson’s reckless conduct before the shooting in determining whethe r the shooting violated the F ourth Amendment. In his response to Cox’s appeal and in support of his own cross-a ppeal, Wilson argues that the8 district court committed seve ral errors during the trial. But because we affirm the judgment in Wilson’s favor, we ne ed not address those matters. II. Discussion In an excessive-force case, as in other Fo urth Amendment seizur e cases, a plaintiff must prove that the officer’s actions were “objectively unr easonable,” 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 quot ation 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 Wi lson’s own reckless conduct unreasonably created the need to use such force. According to Cox, the district court’s mistake was in changing the unreasonableforce jury instruction from wh at the court had used at th e first trial. The court’s instructions were almost identical to thos e it had previously given regarding what Cox needed to prove to establish his claim agains t Wilson. In both tria ls the court told the juries that the burden was on Cox “to establish by a preponde rance of the ev idence each of the following elements” of his excessive-forc e claim: “First: [Wil son] deprived [Cox] of his federal Constitutional right not to be subjected to unreasona ble force while being stopped; Second: [Wilson] acted under the colo r of state law; and Third: [Wilson’s] acts were the proximate cause of damages sustaine d by [Cox].” Aplt. App., Vol. VII at 1595. The court then instructed th e juries on the “Factors To Consider When Determining Whether Plaintiff Has Proven Th e 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 of9 which would have sufficed to establish a violation of hi s Fourth Amendment rights): (1) “that deadly force was not necessary to prev ent [Cox] from escaping” ; (2) “that [Wilson] did not have probable cau se to believe that [Cox] posed a significant thre at of serious physical injury to [Wilson] or others”; or (3) “that it would have been feasib le for [Wilson] to give [Cox] a warning before using dead ly force, but [Wils on] did not do so.” Id. at 1596–97. And the court told the juries that they s hould “consider all the relevant facts and circumstances [Wilson] reasonabl y believed to be true at th e time of the encounter,” and that the inquiry “is always wh ether, from the perspective of a reasonable officer on the scene, the totality of the circum stances justified the use of force at the time of the seizure.” Id. at 1597. But the court did make one ch ange to the factor s-to-consider instru ction 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 se t forth in regular type the pertinent paragraph from the instru ctions at the second trial, and italicize the sentence that was included at the first tr ial but not at the second: The reasonableness of Defe ndant’s acts must be j udged from the perspective of a reasonable office r on the scene at the time of the seizure, that is, the shooting. One of the fa ctors you should consider is whether Defendant Don Wilson was in danger at the tim e that he used force. Defendant Don Wilson’s own conduct prior to the shooting can be a part of your determination of reasonabl eness, but only if his ow n reckless or deliberate conduct during the seizure unreasonably cr eated the need to use such force. The concept of reasonableness makes allowance for the fact that police officers are often forced to make sp lit-second judgments in circumstances that are sometimes tense, uncertain, and rapidly e volving, about the amount of force that is necessary in a particular situation.10 Aplt. App., Vol. I at 57 (italics), VII at 1597 (regular type). Cox objected to the instruction but was overruled. The court e xplained that it thought the deleted language was legally incorrect and that Cox’ s contention that Wilson’s conduct be fore the shooting was reckless was unlikely to overcome qualified immunity. See Aplt. App., Vol. V II at 1436 (“It’s my view that some subsequent decisions sinc e the first trial call[] into question the continuing viability of that stat ement and that would be, in my view, the thinnest grounds that the plaintiff would have on th e qualified immunity issue.”). We ordinarily review a lower court’s refu sal 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). “T hat 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 mi sstated the applicable law.” Id. ; see Burke v. Regalado , 935 F.3d 960, 1009 (10th Cir. 2019) (“ We review de novo wh ether, as a whole, the district court’s jury instructions correctly stated the governing la w and provided the jury with an ample understanding of the issues a nd applicable standards. ” (internal quotation marks omitted)). Wilson argues that we should revi ew 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 suppo rting the district court’s view of the law. In City & County of San Franci sco, California v. Sheehan , the Court stated that a plaintiff could not “establish a Fourth Amen dment violation based merely on bad tactics11 that result[ed] in a deadly conf rontation 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 condu ct leading up to a deadly confrontation was imprudent, inappr opriate, 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 “perm it[ted] an excessive force claim under the Fourth Amendment where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an inde pendent 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] c ourts to look back in time to see if there was a different Fourth Ame ndment 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 Cour t was declining to address the view that assessing the reasonableness of the use of force requires “taking into account12 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 fo rce 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 sin ce 1995. . . . The Supreme Court very recently had an opportunity to reso lve 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 inst ruction 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 Ci r. 1989) (“Under federal law it is error to give an instructi on when there is no ev idence to support it. There must be more than a mere scintilla of evidence to support an instru ction. Sufficient competent evidence is required.” (citations omitted)); Higgins v. Martin Marietta Corp ., 752 F.2d 492, 496 (10th Cir. 1985) (“[A] party is entitle d to an instruction of [its] theory of the case only if the theory is supported by comp etent evidence. The ev idence introduced at trial must warrant the giving of the instru ction.” (citations omitted)). In this case, including the sentence omitted by the cour t would have denied Wilson the qualified immunity to which he was entitle d. Before addressing the specifics of this case, we briefly summarize the doctrine of qualified immunity.13 Qualified immunity shields public offi cials “from liability for civil damages insofar as their conduct does not violate cl early established stat utory or constitutional rights of which a reasonable person would have known.” Pauly , 874 F.3d at 1214 (internal quotation marks om itted). 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 resolv e 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 qualif ied-immunity purposes only if it was sufficiently clear that, at th e 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 sh owing in our circuit, “the plaintiff must point to a Supreme Court or Te nth 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 quot ation marks omitted). “[E]xi sting precedent must have placed the statutory or constitu tional question beyond debate.” Mullenix v. Luna , 136 S. Ct. 305, 308 (2015) (internal quotation mark s omitted). The clarity of the law must be viewed “in light of the specific context of th e case, not as a broad general proposition.” Pauly , 874 F.3d at 1222 (internal quotation marks omitted).14 Here, qualified immunity did not comple tely 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 test imony 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 thre at of imminent danger to Wilson after Wilson exited his vehicle, and that therefor e Wilson’s use of deadly force against Cox was unreasonable. But the jury found otherw ise. 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 conduc t during the seizure unreasonably created the need to use such for ce.” 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 immine nt danger when he shot Cox, the only reason Wilson was exposed to danger was that he unreasonably exited his police vehicle and a pproached Cox’s pickup. At trial Cox called as an expert witne ss a person with excellent credentials who testified that Wilson’s recklessness created the danger leading to the shooting. The expert opined that Wilson shou ld not have left his car to approach Cox because of the danger to Wilson once he was on foot on th e Interstate and in a vulnerable position between his patrol car and Cox’ s vehicle. He said that W ilson should have remained in15 his vehicle and attempted to deescalate th e 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 atplay. Cox had ignored rep eated warnings from Wilson to turn off his car’s engine. W ilson 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 fo r Wilson to believe that this situation would persist for any substantia l amount of time; Kincaid did not turn off her engine and had not spoken with Wilson or otherwise informed him th at she intended to remain stopped in front of Cox indefinitely. If Kincaid moved forwar d, Cox could have continued his dangerous driving, which, ac cording 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 drivi ng, 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 th e expert’s trial testimony that Wilson had acted unreasonably in leavin g his vehicle, qualifie d 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 dange rous chase of a suspect, the officer16 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 matte r, any other court, holding that an officer in similar circumstances acted unrea sonably. It would have been error for the district court to instruct the jury th at 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 sa me 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 even ts: 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 th e occupants exchanged unpleasantries. See id. The driver felt threatened and drove away (apparently without the women following him), going the short distance to his rura l 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 circumst ances 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 th en approached the driver’s home, using their flashlights only intermitte ntly until they neared the front door. See id. at 1204. The driver and his brother, fearin g intruders related to the prior road-rage17 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 th ink 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 c onduct—including approaching the suspect’s home “while it was dark and raining and, wi thout 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 unr easonably 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 us e of force, was precipitated by the officers’ own” reckless actions, and that therefore th e use of deadly force was unreasonable. Id. at 1221. We nevertheless held that the officers we re 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 reasonablen ess inquiry includes an evaluation of an officer’s actions leading up to the us e 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 cas e 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).18 Pauly illustrates the strength of the protec tion provided by qua lified immunity. Unlike Wilson’s decision to leave his vehicl e 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 absenc e 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 th e 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 ma tter 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 supporte d 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 unfairnes s in affirming on th e ground of qualified immunity. Wilson properl y invoked qualified imm unity in the district court and has fully briefed the issue on appeal.19 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 issu e. To begin with, the argumen t is untimely. “Arguments that are raised for the first tim e at oral argument come too la te 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-esta blished-law component of qualified immunity is not a jury issue. See Griess v. State of Colo. , 841 F.2d 1042, 1047 (1 0th Cir. 1988) (“[W]hether constitutional rights alle gedly violated were cl early establishe d for purposes of qualified immunity . . . is a purely le gal issue,” and ther efore “is appropriate for resolution on appeal.” (internal quotation marks omitted)). III. Conclusion We AFFIRM the district court’s judgment in favor of Defendant Wilson.