PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MARTA SANCHEZ; THE ESTATE OF STEPHANIE LOPEZ; DOMINIC MARTINEZ, Plaintiffs - Appellants,

v. ANTHONY GUZMAN, individually; LUKE MCGRATH, in dividually; JOSEPH CARNS, individually; BRIAN MARTINEZ, individually, Defendants - Appellees. No. 22-1322

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-01871-RMR-MEH)

________________ _________________ Robert E. Barnes, Barnes Law, Los Angele s, California, for Plaintiffs-Appellants. Jonathan N. Eddy, SGR, LLC, Denver, Colo rado (Eric M. Ziporin, SGR, LLC, Denver, Colorado, and Josh A. Marks and David J. Goldfarb, Berg Hill Greenleaf Ruscitti LLP, Boulder, Colorado, withhim on the brief), for Defendants-Appellees.

________________ _________________ Before HOLMES , Chief Judge, McHUGH , and CARSON , Circuit Judges.

________________ _________________ HOLMES , Chief Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### June 28, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 12 Plaintiffs Marta Sanchez, the Estate of Stephanie Lopez, and Dominic Martinez brought a § 1983 excessive-force ac tion against Littleto n, Colorado Police Department Officers Anthony Guzman, Luke McGrath, and Joseph Carns, as well as Englewood Police Department O fficer Brian Martinez (colle ctively, “Defendants”). The district court granted summary judgmen t to Defendants on th e basis that they were entitled to qualified immunity. Ex ercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm

. I The parties’ arguments reveal starkl y different pictures of the factual circumstances that form the basis of this action. On one hand, Plaintiffs describe an incident in which De fendants fired sixtysix bullets into Plaintiffs’ motionless vehicle while they were attempting to surrender and presenting no observable threat—actions that killed Stephanie Lopez, rendered Marta Sanchez a paraplegic, and seve rely injured Dominic Martinez. On the other hand, Defendants descri be a multifaceted police pursuit and shooting whereby Plaintiffs—a fter fleeing the scene of an armed carjacking in a stolen vehicle—led police on a high-speed car chase, fleeing after each of Defendants’ three attempts to stop Plaintif fs’ vehicle. And, according to Defendants, Plaintiffs used their vehicle as a weapon against Defendants and, more generally, endangered the public through th eir use of the vehicle. Though we acknowledge the different perspec tives of the parties, in our review of the district court’s qualif ied-immunity summary-judgment order, we are obliged to Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 23 accept Plaintiffs’ version of the facts; yet, cr itically, that is true only insofar as that version is supported by record evidence. See, e.g. , Thomson v. Salt Lake Cnty. , 584 F.3d 1304, 1312 (10th Cir. 2009) (“[B]eca use at summary judgment we are beyond the pleading phase of the litigation, a plaint iff’s version of the fa cts must find support in the record . . . .” ). Ordinarily, the plaintiff’s version of the facts provides the foundation for our qualified-immunity legal analysis. See, e.g. , Palacios v. Fortuna , 61 F.4th 1248, 1256 (10th Ci r. 2023) (noting that, in the qualified-immunity summary-judgment context, construing the fa cts in the plaintiff’ s favor “generally means adopting the plaintiff’s version of th e facts”). Consider ing the plaintiff’s record-based facts, ordinarily we would de termine whether the pl aintiff has satisfied its burden of proof—and thus defeated the defendant’s qualified-immunity defense— by showing (1) that the defendant violated the plaintiff’s constitutional rights and (2) that the violation contravene d clearly established law. See, e.g. , A.M. v. Holmes , 830 F.3d 1123, 1136 (10th Cir. 2016) (noting that we look to th e plaintiff’s version of the facts “in determining whether the plainti ff has satisfied the necessary two-pronged qualified-immunity showing”). However, under the unique circumstances of this case, we are unable to make that qualified-immunity determination because Plaintiffs have failed to identify the record evidence that supports the version of the facts that th ey have pleaded and argued in their briefing. In other words, Plaintiffs have failed to supply the factual foundation for our qualified-immunity legal analysis. As a necessary consequence, Plaintiffs have effectively waived our review of their challenge to the district court’s Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 34 grant of qualified immunity to Defendants. More specifically, this is so because Plaintiffs’ failure to define the opera tive factual universe—with citations to supportive record evidence—pr events us from assessing whether Plaintiffs have carried their two-part qualified-immunity bu rden. In particular , absent Plaintiffs identifying for us a record-based factual uni verse reflecting their version of events, we cannot opine on whether the district court committed re versible error in concluding that Plaintiffs did not satisfy the clearly establishe d law prong of the qualified-immunity test. The assessment of whether a plaintiff ha s satisfied that pr ong—as well as the first prong of the qualified-immun ity test (constitutional violation vel non )—turns on the nature of the reco rd-based factual universe that a pl aintiff has defined. But here Plaintiffs have failed to define such a uni verse. Therefore, th ey have effectively waived our review of their qualified-immu nity challenge. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we are constrained on this basis to uphold the district court’s judgment.
II On February 4, 2022, Defendants m oved for summary judgment on the basis that they were entitle d to qualified immunity. The district court referred the motions to a magistrate judge. The magistrate judge recommended granting the motions for summary judgment on the ba sis of qualified immunity. See Aplts.’ App. at 47 (Mag. Judge’s R. & R. on Defs.’ Mots. fo r Summ. J., filed July 29, 2022) (“Recommendation”). Specifically, the magist rate judge conclude d that Plaintiffs Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 45 had failed to carry their burden on the clearly established law issue, and recommended that the district court gr ant Defendants’ motions for summary judgment on the ground of qualified immunity. Plaintiffs filed objections to the magistrate judge’s Recommendation. In large part, Plaintiffs’ objections related to the ma gistrate judge’s treatm ent of the facts. They argued that the Recommendation “ignored or marginalized” Plaintiffs’ version of the facts—including their sworn testimony— thus not taking the facts, as the judge should, in the light most fa vorable to the plaintiffs. Id. at 80 (Pls.’ Objs. to Mag. Judge’s R. & R. on Defs.’ Mots. for Summ. J., filed Aug. 12, 2022). Specifically, Plaintiffs said that “the Recommendation’s analysis re garding the second prong of qualified immunity is undermined by impr oper deference to the Defendants’ proposed facts, while disregarding cont radictory video evidence, weighing the Plaintiffs’ credibility agai nst them, and disregarding th e defendants’ sworn testimony when it conflicts with the Magistrate ’s opinion of the video evidence.” Id. at 88. They said that the judge’s approach was erroneous because the “question of qualified immunity demands clearly reas onable inferences in the plai ntiffs’ favor. Instead, the Recommendation systematically eliminated all disputes of material fact, finding each in favor of the Defendants without any in ferences provided to the Plaintiffs, and concluded that no analysis of the constitutional rights at issue was necessary.” Id. (citation omitted). The district court nevertheless issued an order adopting the magistrate judge’s Recommendation. Significantly, despite Pl aintiffs’ vigorous objections, the district Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 56 court fully adopted the Recommendation’s f actual statement. In anticipation of tackling the legal questions thatPlaintiffs raised, the dist rict court offered a summary of the magistrate judge’s factual fi ndings. It bears repeating here: On the evening of June 29, 2017, Defendant Officers Anthony Guzman, Joseph Allen Carn s, and Luke McGrath were on duty with the Littleton Police Depart ment. Just before midnight, they received a dispat ch report that a white Chevy Malibu had been carjacked by four individuals. On e of the suspects was armed and had fired a shot near the victim’s head, according to the dispatch report. This constituted felony auto theft in violation of Colorado Revised Statute § 18-4-409. Th e officers responded to the report in full police uniform, each driv ing a fully marked police SUV. They observed the suspect Mali bu driving northbo und on Santa Fe Drive. There were th ree suspects in the ve hicle at that time: Plaintiffs Marta Sanchez and Do minic Martinez, as well as decedent Stephanie Lopez, whose Estate proceeds as the third Plaintiff in this action. The officers began to follow the Malibu with lights and sirens activated, but the suspects did not yield. Plaintiff Martinez estimated th at the Malibu was driving “at least” seventy-five miles per hour . The suspects ran red lights at Oxford Avenue and Dartmouth Avenue and began to weave between lanes. Officer Carns observed the suspects narrowly avoid colliding with a motorcycle, but Plaintiff Sanchez testified that she did not recall almost hi tting a motorcycle. Officer Carns requested and was authorized to perform a Pursuit Intervention Technique (“PIT”) maneuver once sp eeds decreased, in order to stop the Malibu. Eventually, th e Malibu appeared to skid and decelerate, and at that time , Officer Carns performed the authorized PIT maneuver. The Malibu spun roughly 170 degrees and came to rest. This was the firs t of three “stops ” that took place during this pursuit, all of which were captured on video that has been submitted to the Court. Officer Brian Martinez of the Englewood Police Department join ed the other Defendant officers at the third stop, in response to their dispatch cal l for assistance. In total, the pursuit of the suspects in the Malibu covered more than six miles and spanne d three jurisdictions, including Littleton, Englewood, and Denver. Plaintiff Sanchez, who was the driver, was shot multiple times. Plaintiff Lopez, who was in the Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 67 front passenger seat, was fatally s hot. Plaintiff Martinez, who was in the back seat, jumped out of the moving vehicle at some point during the chase between the fi rst and second stops, unbeknownst to the officers, and had no further involvement. He alleges that he does not know whether he was hit but had previously told investigators that he had not been shot during the entirety of the events. Id. at 206–207 (Dist. Ct. Orde r on Defs.’ Mots. for Summ. J., filed Aug. 30, 2022) (citation omitted). The district court recognized that “Pla intiffs argue that there are disputes of fact as to what took place at each of the three stops , including the circumstances under which the various officers exerted fo rce and fired their weapons at Plaintiffs during those stops, that prec lude summary judgment.” Id. at 207. Nevertheless, the district court concluded that “Plaintiffs have failed to sati sfy the ‘clearly established’ prong of the qualified immunity analysis” a nd that certain “disputes of fact are not material to the motions for su mmary judgment at issue.” Id. at 208. More specifically, as rele vant to our disposition he re, the court reasoned: Upon de novo review of the motions for summary judgment and the record evidence, including the video evidence of the events of that evening, the Court is skep tical whether, abse nt the qualified immunity issues discussed herein , there would remain no disputes of fact that would be suitable fo r a jury—particularly regarding the circumstances under which various officers discharged their weapons; whether, at those times, Plaintiffs were attempting to surrender and had brought the Mali bu to a full stop; and whether and in what direction(s) the Ma libu was moving at those times. However, even if the Court were to find in favor of Plaintiffs and conclude that these disputes of f act raised material issues as to whether the officers’ conduct wa s unconstitutional, this would not be sufficient to defeat summary judgment because Plaintiffs have not borne their burden on the second prong of the qualified immunity analysis[.] Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 78 Id. at 226. In other words, the court determ ined that, even assu ming that the potential disputes of fact that it iden tified were resolved in Plai ntiffs’ favor—such that there were triable factual issues bearing on th e alleged unconstitutionality of Defendants’ conduct—Plaintiffs would none theless not succeed because they could not carry their burden of establishing that De fendants violated clearly establ ished constitutional law.
III We review a district court’s grant of summary judgment based on qualified immunity de novo. See Est. of Taylor v. Salt Lake City , 16 F.4th 744, 756 (10th Cir. 2021). “‘The doctrine of qualified immunity shields officials fro m civil liability so long as their conduct “does not violate clearly establishe d statutory or constitutional rights of which a reasonable pe rson would have known.”’” Est. of Smart ex rel. Smart v. City of Wichita , 951 F.3d 1161, 1168 (10th Cir. 2020) (quoting Mullenix v.
Luna , 577 U.S. 7, 11 (2015)). “When a § 1983 defendant asserts qualified immunity, this affirmative defense ‘creates a presum ption that [the defe ndant is] immune from suit.’” Id. (alteration in original) (quoting Perea v. Baca , 817 F.3d 1198, 1202 (10th Cir. 2016)). “‘To overcome this presump tion,’ the plaintiffs bear the burden of ‘show[ing] that (1) the offi cers’ alleged conduct violat ed a constitutional right, and (2) [that right] was clearly established at th e time of the violation, such that “every reasonable official would have understood,” that such c onduct constituted a violation of that right.’” Id. (alterations in original) (quoting Perea , 817 F.3d at 1202). Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 89 This case concerns the second prong—th at is, the clearly established law prong. “Constitutional rights are clearly es tablished when Tenth Circuit or Supreme Court precedent particularized to the case at issue exists.” Shepherd v. Robbins , 55 F.4th 810, 815 (10t h Cir. 2022) (emphasi s added) (citing Apodaca v. Raemisch , 864 F.3d 1071, 1076 (10th Cir. 2017)). “ Materially similar facts can make the precedent sufficiently particularized.” Id. (emphasis added). “Thus , a right is clearly established when our preceden t encompasses ‘“materially similar conduct” or applies “with obvious clarity” [1] to the conduct at issue.’” Id. (quoting Apodaca , 864 F.3d at 1076). “We do not require a case directly on point, but existing precedent must have placed the statutory or constituti onal question beyond debate.” Mullenix , 577 U.S. at

1 In the Recommendation, the magi strate judge acknowledged Plaintiffs’ attempt to “draw the Court’s attention to the ‘sliding sc ale’ [approach to clearly established law] of th e Tenth Circuit.” Aplts.’ App. at 65. But the magistrate judge noted that “the Supreme Court has [recentl y] limited the application of such an approach.” Id. at 66. We observe in this regard that, a lthough the language of the “sliding scale” still exists in our precedent, our recent cases have moved away from that rubric—questioning its viability. See Shepherd , 55 F.4th at 818 n.5 (“Plaintiff argues the ‘sliding scale’ a pproach should apply to show that the unlawfulness of Defendant’s conduct was apparent. Our more recent jurisprudence has shifted to consider ‘obvious clarity’ or ‘flagrantly unlaw ful conduct’ rather than engage in the sliding scale approach.” (first citing Lowe v. Raemisch , 864 F.3d 1205, 1210–11 & 1211 n.10 (10th Cir. 2017); and then citing Contreras v. Doña Ana Cnty. Bd. of Cnty. Comm’rs , 965 F.3d 1114, 1123 ( 10th Cir. 2020) (Cars on, J., concurring))); accord Reyes v. Fowlks , No. 22-4028, 2023 WL 4486155, at *3 (10th Cir. July 12, 2023) (unpublished); see also Luchetti v. N.M. State Pers. Bd ., No. 21-2109, 2022 WL 2678826, at *4 (10th Cir. July 12, 2022) (unpublished) (“Our more recent jurisprudence [] has observed th at the ‘sliding scale’ appr oach ‘may arguably conflict with recent Supreme Court precedent on qualified immunity.’” (quoting Lowe , 864 F.3d at 1211 n.10)). As we do here with Reyes and Luchetti , we cite unpublished cases for their persuasive va lue only and do not treat th em as binding authority. See United States v. Ellis , 23 F.4th 1228, 1238 n. 6 (10th Cir. 2022). Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 910 12 (quoting Ashcroft v. al–Kidd , 563 U.S. 731, 741 (2011)). “To be clear, we do not require plaintiffs to engage in a scavenger hunt for a prio r case with iden tical facts.” Shepherd , 55 F.4th at 815 (citing Casey v. City of Fed. Heights , 509 F.3d 1278, 1284 (10th Cir. 2007)). “We as k whether the existing law pr ovides fair warning to a defendant.” Id. (citing Est. of Smart , 951 F.3d at 1168). In recent years, the Supreme Court “has issued a number of opinions reversing federal courts in qualifi ed immunity cases.” White v. Pauly , 580 U.S. 73, 79 (2017) (per curiam) (citing City & Cnty. of S.F. v. Sheehan , 575 U.S. 600, 611 n.3 (2015)). “The Court has found this necessary . . . to reiterate the longstanding principle that ‘clearly established law’ s hould not be defined ‘at a hi gh level of generality.’” Id. (quoting al–Kidd , 563 U.S. at 742). “‘[G]eneral statements of the law are not inherently incapable of giving fair and clea r warning’ to officers, . . . but ‘in the light of pre-existing law the unlawfuln ess must be apparent[.]’” Id. at 79–80 (emphasis added) (first quoting United States v. Lanier , 520 U.S. 259, 271 (1997); and then quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)). Accordingly, the Supreme Court has held that Tennessee v. Garner , 471 U.S. 1 (1985), and Graham v.
Connor , 490 U.S. 386 (1989)—t he Court’s seminal cases on Fourth Amendment seizures and excessive for ce—“do not by themselves crea te clearly established law outside ‘an obvious case.’” Id. at 80 (first quoting Brosseau v. Haugen , 543 U.S. 194, 199 (2004) (per curiam); and then citing Plumhoff v. Rickard , 572 U.S. 765, 779 (2014)). Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1011 The specificity of clearly established law is “especially important in the Fourth Amendment context, where th e Court has recognized that ‘[i]t is sometimes difficult for an officer to dete rmine how the relevant legal doctr ine, here excessive force, will apply to the factual situati on the officer confronts.’” Mullenix , 577 U.S. at 12 (quoting Saucier v. Katz , 533 U.S. 194, 205 (2001)). “It is with reluctance that we second-guess the split-sec ond decisions of trained o fficers reacting to difficult situations in the line of duty. We are not well-suited to act as a police supervisory board, making finely calibrated determinati ons of just what type of misbehavior justifies just what level of response.” Cordova v. Aragon , 569 F.3d 1183, 1190 (10th Cir. 2009).
IV
Plaintiffs raise two argumen ts on appeal that bear on our disposition of this action. 2 We consider them bot h and reject them.

2 Plaintiffs also argue that the distri ct court erred in it s clearly established law analysis by placing an “effectively in surmountable” burden on them. Aplts.’ Opening Br. at 6. Specifically, Plaintiffs allege that the dist rict court improperly concluded that “qualified immunity def eated all claims [on the second, clearly established law prong] unless [they] pr oduced precedent from analogous types of cases with directly analogous facts demons trating the Constitutional rights alleged to be violated.” Id. Because we conclude, at the threshold, that Plai ntiffs have failed to provide us with a record-based factual version of events upon which to conduct a clearly established law analys is on appeal, any error by th e district court in placing too high of a clearly established law burden on Plaintiffs must be deemed harmless. By failing to establish a r ecord-based factual foundation for our clearly established law analysis, Plaintiffs have effectively given up the oppo rtunity to demonstrate that any error in the particulars of the district court’s clearly esta blished law analysis harmed them. That is because Plaintiffs cannot show us without such a record-based factual universe that there actually is any particular ized controlling law that Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1112 First, Plaintiffs argue that the dist rict court erred by placing the burden on them to overcome Defendants’ asserti on of qualified immun ity. This argument crumbles under the weight of our extensiv e body of caselaw that places the burden on the plaintiffs in the qualified- immunity context. And second, Plaintiffs argue that the district court erred in conc luding that Defendants were en titled to qualified immunity because Plaintiffs failed to show that Defendants violated clearly established law. We conclude that Plaintiffs have effectiv ely waived our review of this argument by failing to define a factual universe that is supported by record evidence upon which we can perform the requisite legal analysis . We cannot opine on whether the district court committed reversible error in concludi ng that Plaintiffs did not satisfy the clearly established law prong of the qualif ied-immunity test without a universe of record-based facts ag ainst which to conduct a particul arized assessment of the state of the law existing at the time of these events. Because th ey failed to supply us with this universe of record-based facts, Plaintiffs have effect ively waived our review and we must uphold the district court’s qualifi ed-immunity determination—in particular, its ruling regarding clear ly established law.
A As to Plaintiffs’ first contention that the district court erred by placing the burden on them to overcome Defendants’ assertion of qua lified immunity, we need

demonstrates the unconstitutionality of De fendants’ conduct. And, by necessary extension, they therefore ca nnot show us that the distri ct court reached the wrong outcome on the clearly es tablished law question. Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1213 not linger long: they are flat out wrong. Ca ses in this circuit ar e legion that place the burden on the plaintiffs to negate a qualified -immunity defense. See, e.g. , Riggins v. Goodman , 572 F.3d 1101, 1107 ( 10th Cir. 2009) (“When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant’s motion. The plaintiff must demonstrate on the facts alleged both that th e defendant violated his constitutional or statutory rights, and that the right was clea rly established at the time of the alleged unlawful activity.” (citing Pearson v. Callahan , 555 U.S. 223, 232, 236–37 (2009))); Quinn v. Young , 780 F.3d 998, 1013 (10th Cir. 2015) (noting that it is “well-settled” that “[t]he plaintiff bears the burden of citing to us what he thinks constitutes clearly established la w.” (quoting Thomas v. Durastanti , 607 F.3d 655, 66 9 (10th Cir. 2010))); accord Cox v. Glanz , 800 F.3d 1231, 1245–46 (10th Cir. 2015); Est. of Taylor , 16 F.4th at 757. 3 Therefore, the district c ourt did not err in placing the burden on Plaintiffs to def eat Defendants’ assertion of qualified immunity—more specifically, to show that Defendants’ conduct violated clearl y established law.

3 We recognize that some circuits interpret the relevant Supreme Court precedent on this issue differently. Compare McClelland v. Katy Indep. Sch. Dist. , 63 F.4th 996, 1005 (5th Cir. 2023) (placing the burden on plaintiffs to overcome a qualified immunity defense once asserted, as we do), with Mack v. Yost , 63 F.4th 211, 227 (3d Cir. 2023) (“‘[T ]he party asserting the affi rmative defense of qualified immunity’ bears the burden of persuasion on both prongs at summary judgment.” (quoting Halsey v. Pfeiffer , 750 F.3d 273, 288 (3d Cir. 2014))). But we have consistently read the S upreme Court’s decision in Harlow v. Fitzgerald , 457 U.S. 800 (1982), as only placing the burden on government officials to assert a qualified immunity defense; after that, the burden of proof shifts to the plaintiffs to show that the officials are not entitled to qualified immunity. See, e.g. , Cox , 800 F.3d at 1245– 46. Accordingly, Plaintiffs’ contrary argument here borders on the frivolous. Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1314 B Our consideration of Plain tiffs’ second argument reveals the fatal flaw in their appellate challenge: they have not given us an adequate factual foundation to assess whether the district court erred in determin ing that they failed to carry their burden on the clearly established law question. As we see things, we have no occasion to assay the caselaw that Plainti ff identifies as clearly established law. That is because Plaintiffs showing of clearly established law fails at the th reshold: that is, they have failed to define a factual universe grounde d in record evidence that could form the foundation for our particularized inquiry in to existing clearly es tablished law. The magistrate judge’s Recommendation—a nd by extension the district court’s order—rested on extensive factual findings, 4 which paint a menacing picture of Plaintiffs’ conduct that would at the very least supply the Defendants with a solid

4 The magistrate judge purported to rest his extensive findings on undisputed facts and the record evidence, construed in Plainti ffs’ favor. In this regard, the judge stated: On the surface, the part ies’ briefings would s eem to indicate that this case is rife with genuine issu es of material fact. However, the evidence removes reasonabl e disputes as to the material facts. In particular, the video evidence of each of the three stops is particularly insightful into what happened on the night in question. When the video evidence contradi cts the parties’ versions of events, the Court adheres as cl osely as possible to the video evidence. . . . With that understanding, the following are the Court’s findings of material facts that are relevant to the Court’s analysis and either undisputed or supported by the record, when viewed in the light most favorable to Plaintiffs as the non-moving parties. Aplts.’ App. at 50 (c itations omitted). Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1415 basis to argue cogently (if not dispositively) that their use of lethal force did not violate clearly establis hed law. Indeed, in the “State ment of the Facts” section of their response brief—which spans approxi mately nine pages—Defendants portray Plaintiffs’ conduct in a si milarly threatening light a nd support their portrait with extensive citations to ev idence in the record. See Aplees.’ Resp. Br. at 3–13. Yet under the governing law, it is Plaintiffs ’ version of the facts—insofar as it is supported by the summary-judgment record —that must frame the legal analysis, including the clearly establishe d law inquiry. This appeal has presented Plaintiffs with a platform to explicate their record-based version of the facts. And importantly, even if we are willing to assu me that in some ci rcumstances this act of explication is simply a matter of best practices , that certainly is not true here: it is a legal obligation that Plaintiffs had to disc harge, if they hoped to de monstrate that Defendants’ conduct violated their clearly established rights. This is so where the district court adopted extensive factual findi ngs that seemingly undercut their version of the facts. 5

5 This is not a situation where “the district court failed to set forth the facts it believed a reasonable jury could find with respect to the critical question[s] before us.” Lewis v. Tripp , 604 F.3d 1221, 1226 (10th Cir. 2010). On the contrary, the district court fully adopted the Recommendation’s factual statement, which contained extensive factual findi ngs. Though when reviewing a grant of summary judgment in the qualified-immunity context, “w e need not defer to the district court’s performance of this [fact-finding] task,” Est. of Taylor , 16 F.4th at 758 n.5—if Plaintiffs hope to prevail—it is incumbent on them to give us an alternative universe of record-based facts upon wh ich to conduct our qualified-i mmunity analysis. It is not enough to assert in a conc lusory fashion that the distri ct court erred in its factfinding mission by failing to construe the recordin the light most favorable to them; instead, Plaintiffs must demons trate the correctness of this assertion by offering us an alternative, record-bas ed version of the facts that purportedly adheres more closely to their version of the events at issue. Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1516 And where, to make matters worse, Defend ants have offered on appeal a detailed “Statement of the Facts,” th at likewise is at odds w ith Plaintiffs’ contentions regarding the allegedly non-threat ening nature of their conduct. Far from discharging their legal obligation, however, Plaintiffs have failed to define in any meaningful manner a factual universe grounded in record evidence that could form the foundation for our inquiry into existing clearly esta blished law. In other words, Plaintiffs have failed to pres ent their record-based version of the events that bear on Defendants’ use of force for our use in evaluating the merits of their legal challenge. Indeed, Plai ntiffs did not even includ e a “Statement of Facts” section in their Opening Brief. Accordi ngly, we conclude th at Plaintiffs have effectively waived our review of their a ppellate challenge to the district court’s clearly established law ruling. And for that reason, we reject Plaintiffs’ appellate challenge and uphold the distri ct court’s judgment. As our discussion of the governing law supra should have made patent, the clearly established law inquiry is fact-i ntensive because it ordinarily focuses on determining whether there is caselaw with ma terially similar facts to the facts of the case before the court. See, e.g. , Hemry v. Ross , 62 F.4th 1248, 1256 (10th Cir. 2023) (“As with the force inquiry , our evaluation is fact-int ensive, and in the qualified immunity context, we look for ‘a case where an officer acting under similar circumstances was held to have violat ed the Fourth Amendment.’” (quoting District of Columbia v. Wesby , 583 U.S. 48, 64 (2018))); accord Thomson , 584 F.3d at 1312. And, in the summary-judgment context, the pl aintiff is obliged to define the factual Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1617 universe by reference to record evidence. That is, the plaintiff has the burden of supporting her version of events, as refl ected in the plaintiff’s complaint and arguments, with record evidence. See Thomson , 584 F.3d at 1312; accord Koch v. City of Del City , 660 F.3d 1228, 1238 (10th Cir. 2011) . Absent this record-based picture of the case facts, th ere is no foundation for the court to conduct a clearly established law inquiry—that is, there are no facts groun ded in the evidence against which the court can compare the facts of the caselaw that comprises clearly established law. Stat ed otherwise, the plaintiff is ob liged to offer a record-supported version of the facts that would reveal th e unlawfulness of the defendants’ conduct— when those facts are viewed through the pr ism of clearly established law. Here, Plaintiffs have completely failed to fulfill this obligation. In the course of their brie fing on the clearly establishe d law question, Plaintiffs cite to only two portions of the record. First, they cite to a section where the district court questioned whether there were disputes of fact that would raise triable factual issues bearing on the alleged unconstitutiona lity of Defendants’ conduct but noted that, even if it were to resolve those disputes in Plaintiffs’ favor, they would not prevail on the issue of clear ly established law. Second, Plaintiffs seek—in a roundabout, indirect fashion— to rely on a portion of the r ecord in which the district court, in resolving Defendant s’ motions to dismiss, accep ted as true the facts of Plaintiffs’ complaint. Howe ver, these citations are not enough to satisfy Plaintiffs’ obligation to define a record -based factual universe that we may use in resolving the clearly established law question. Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1718 Regarding the first cited por tion of the record, recall that in resolving the clearly established law question, the district court said the following: Upon de novo review of the motions for summary judgment and the record evidence, including the video evidence of the events of that evening, the Court is skep tical whether, abse nt the qualified immunity issues discussed herein , there would remain no disputes of fact that would be suitable fo r a jury—particularly regarding the circumstances under which various officers discharged their weapons; whether, at those times, Plaintiffs were attempting to surrender and had brought the Mali bu to a full stop; and whether and in what direction(s) the Ma libu was moving at those times. However, even if the Court were to find in favor of Plaintiffs and conclude that these disputes of f act raised material issues as to whether the officers’ conduct wa s unconstitutional, this would not be sufficient to defeat summary judgment because Plaintiffs have not borne their burden on the second prong of the qualified immunity analysis[.] Aplts.’ App. at 226. This passage could be liberally read—a s Plaintiffs suggest—as indicating that the court probably believed that there were triable issues in certain factual areas and that it was prepared to assume that, if thos e issues were resolved in Plaintiffs’ favor, they would indicate that Defendant s’ conduct was unconstitutional. See Aplts.’ Opening Br. at 29 (“[E]ven the District C ourt in the Order of Dismissal appealed here[] conceded . . . that di sputes of material facts pr ecluding [Defendants’] summary judgment motions likely existed . . . .”). Bu t the district court in this passage spoke in general terms—simply rec iting certain factual areas in which there were probably disputed issues. The court did not arti culate with any specificity a narrative— supported by citations to the record— that c onformed (at least as Pl aintiffs see it) to Plaintiffs’ version of events. In effect, the court did the contrary, in that the court Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1819 adopted the magistrate judge’s extensive factual findings, which closely resemble Defendants’ version of events . Putting aside our concerns about the district court’s approach in that regard, 6 its general statement that it was willing to assume certain

6 We do have concerns about the cour t’s treatment of the facts in this case, but those concerns do not ultimately c ontrol the outcome here. To start, the district court acknowledged th at it was “skeptical whether, absent the qualified immunity issues . . . , there would remain no disputes of fact that would be suitable for a jury”—specifically, disput es that would “raise[] mate rial issues as to whether the officers’ conduct was unconstitutional.” Aplts.’ App. at 226. In effect, the district court was expres sing skepticism about whethe r the magistrate judge’s extensive statement of facts was, in ac tuality, fully undisputed and favorable to Plaintiffs’ record-based vers ion of events—which Plaintiffs vigorously claimed it was not. That is, the distri ct court was sugges ting that if the magistrate judge actually had taken Plaintiffs’ version into account, it likely would have given rise to the triable issues of fact of which the district court spoke . Yet rather than using its skepticism as a basis for rej ecting portions of the magist rate judge’s statement of undisputed facts—which the court seemingly decided was not fully reflective of facts that were undisputed and favor able to Plaintiffs ’ record-based version of events—the district court simply “incorpor ated” in full the magistrate judge’s statement of facts. Id. at 206. Furthermore, thoug h the court seemed to believe that it was likely that there were triable issues of fact b earing on the alleged unconstitutionality of Defendants’ conduct, rather than making a definitive determination as to the existence of such facts fo r purposes of summary judgme nt and, as appropriate, resolving any material disputes of fact in Plaintiffs’ fa vor, the court was willing only to assume the existence of such triable issues of fact and to assume their resolution in Plaintiffs’ favor. This approach is problematic under cont rolling law. The district court was obliged to “undertake[] the es sential task of specifying wh at a reasonable jury could find the facts to be.” Lewis , 604 F.3d at 1226. And the district court was required to resolve any disputes of fact in the light most favorab le to the plaintiff unless “blatantly contradicted” by the video evidence, befo re turning to the issue of clearly established law. Scott v. Harris , 550 U.S. 372, 380 (2007); see Est. of Taylor , 16 F.4th at 756 (“[W]here the record does not unequivocally point in one direction and allows for a genuine dispute concerning the facts, ‘[a]ll disput ed facts must be resolved in favor of the party resisting su mmary judgment.’” (alt eration in original) (quoting McCoy v. Meyers , 887 F.3d 1034, 1044 (10th Cir. 2018))); Lewis , 604 F.3d at 1226 (“Only then [after the court ha s determined the specific facts that a reasonable jury could infer based on the ev idence] can the district court (and we, on Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 1920 disputed facts in Plaintiffs’ favor did nothing to relieve Pl aintiffs of their burden here of defining a record-based factual universe as to which we could assess the existence of clearly establishe d law. For instance, nothing in the court’s general statements about the factual disputes it was prepared to resolve in Pl aintiffs’ favor equates to the specific factual findings that Plaintiffs infer from it. Contrary to Plaintiffs’ assertions, nowhere did the c ourt say that it was assuming as true that Defendants “fir[ed] 66 bullet shots into a vehicle o ccupied by three unarmed people who were attempting to surrender and posed no observab le threat to the of ficers.” Aplts.’ Opening Br. at 26; see also Aplts.’ Reply Br. at 22 n.7 (stating conclusorily that “[Defendants] in the instant case fired 66 bullet shots into a vehicle occupied by three unarmed people who were attempting to su rrender and posed no observable threat to the officers”). In other words, notwithstanding Plaintif fs’ contrary assert ions, it cannot be reasonably argued that the district cour t’s summary judgment order “along with the relevant record cited and di scussed therein, results in it being assumed that none of

appeal) undertake the job of answering the question whether the defendant is entitled to qualified immunity on those f acts as a matter of law.”). However, these concerns do not contro l the outcome here. As we have stressed throughout this opinion, Plaintif fs bear the burden of proof on the clearly established law issue, and cl early established law does not exist in a vacuum; instead, such law must be determined in relation to a specific set of facts. Irre spective of the problems associated with the court’s appro ach in finding the relevant facts here, in order to establish reversible error on th e clearly established law issue, it was incumbent on Plaintiffs to define a unive rse of record-based facts upon which we could conduct our clearly esta blished law analysis. And Pl aintiffs’ failure to do so scuppers their appellate challenge. See also supra note 5. Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 2021 the [Plaintiffs] were armed or an imminent threat to any [Defendants], and in fact were attempting to surrender as the [eve nts] unfolded.” Aplts.’ Opening Br. at 28– 29. Rather than relying on the district c ourt’s general statements regarding the areas of fact that it was willing to assume in Plaintiffs’ favor, Plaintiffs were obliged to define here a record-based factual universe—viewing th e facts in the light most favorable to them—which we could use in re solving the legal, cl early established law issue. But Plaintiffs failed to do so. And, second, Plaintiffs’ roundabout, indi rect reliance on the district court’s order resolving the motions to dismiss does not advance the ball for them one iota. In their briefing here, Plaint iffs quote from a portion of th e district court’s summary judgment order, where the court was reciting the procedural histor y of this case and specifically acknowledging—thr ough citations and parenthe ticals containing quoted language—its rulings in resolving the motions to dismiss. In so doing, the district court quoted the following language: “Constru ing these facts as true, the Court finds that plaintiffs have plausibly alleged that defendants violated cl early established law by using deadly force, wit hout being in imminent dang er, against plaintiffs, who posed no threat to the officers and were no t resisting.” Aplts.’ App. at 210 (quoting Dist. Ct.’s Order on Defs.’ Mots. to Dismiss, filed Sept. 30, 2020). However, Plaintiffs’ reliance on this por tion of the record where the district court was accepting as true certain facts for purposes of resolving Defendants’ motions to dismiss is unavailing. It does not help Plainti ffs to carry their burden of proof of defining a universe of record-based facts to support our clearly established Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 2122 law analysis. It is axiomatic that, in reso lving motions to dismi ss, courts accept the well-pleaded factual averments of the plaintiff’s complaint as true and construe the facts in the light most favor able to the plaintiff. See, e.g. , A.N. by & through Ponder v. Syling , 928 F.3d 1191, 1196 (10th Cir. 2019) (“We review ‘the district court’s denial of a motion to dism iss based on qualified immunity de novo, accepting as true all well-pleaded factual allega tions in the complaint and viewing the allegations in the light most favorable to the non-moving part y.’” (quoting Wilson v. Montano , 715 F.3d 847, 852 (10t h Cir. 2013)). Indeed, the distri ct court recogni zed as much. See Aplts.’ App. at 169 n.1 (noting that the order’s “facts are take n from plaintiffs’ Amended Civil Rights Complaint With Reque st for Trial by Jury and are assumed true for purposes of this order unless othe rwise noted” (citations omitted)). However, this pleading-based approach is inapposite in the summary-j udgment context. In that context, as here, the plaintiff cannot re st on her well-pleaded factual averments; rather, the plaintiff must point to reco rd evidence supportive of the plaintiff’s position; this means that, though ordinarily the court accepts plaintiff’s version of the facts as the starting point for the legal analysis, that vers ion will be cognizable only if it is supported by record evidence. See, e.g. , Thomson , 584 F.3d at 1312 (“[B]ecause at summary judgment we are beyond the plead ing phase of the liti gation, a plaintiff’s version of the facts must find support in the record.”). As applied here, the upshot is this. The district court properly accepted the well-pleaded factual averments of Plaintiffs’ complaint in resolving the motions to dismiss. And those averments did favor Plaintiffs’ argument that the Defendants Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 2223 used excessive force—in that, among ot her things, they de pict Defendants as shooting at Plaintiffs’ vehicle, even though Plaintiffs supposedly posed no threat to Defendants and were not resisting. Yet Plaintiffs’ citation to the portion of the record involving the district court’s resolution of the moti ons to dismiss does not help them carry their summary-judgment burden. Plaintiffs are no longer free to rely on the district court’s acceptan ce of their complaint averment s. Rather, Plaintiffs are obliged to demonstrate that their version of the facts is supported by evidence in the record. Stated otherwise, th ey are required to ground th eir version of the facts in such evidence. Perhaps that record evidence would suppor t Plaintiffs’ argument that the Defendants used excessive force, as Plai ntiffs’ complaint aver ments did. Perhaps not. But either way, Plaintif fs are obliged here to rest their version of the facts— upon which they seek to defeat Defenda nts’ assertion of qualified immunity—on record evidence, not pleading averments. Only such a re cord-based version of the facts could form the foundation for our cl early established la w analysis in the summary-judgment context. Plaintiffs, howev er, have failed to provide us with such a version of the facts; th ey cannot do so by relying on the well-pleaded factual averments of the complaint that the district court accepted as true at the motion-todismiss stage of the proceedings. The inquiry into the existence of clearl y established law is not undertaken in a factual vacuum; rather, it turns on the closene ss of the fit of the f acts contained in the controlling caselaw to a universe of record-bas ed facts in the case at bar. Because Plaintiffs have failed to define for us on summary judgment a universe of recordAppellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 2324 based facts, we have no factual foundation upon whic h to determine whether Defendants violated Plaintiffs ’ clearly established legal ri ghts. Stated otherwise, by failing to define for us the operative unive rse of record-supporte d facts, Plaintiffs have prevented us from determining what la w was clearly established. And because Plaintiffs bear the burden of showing that applicable cl early established law defeats Defendants’ qualified-immunity defense, this definitional failure as to the operative factual universe sounds the d eath knell for their appellate challenge. In short, we have no basis to disturb the district court’s determinati on—on clearly established law grounds—that Defendants are entitled to qualified immunity.
V For the above reasons, we AFFIRM the district court’s judgment. Appellate Case: 22-1322 Document: 010111072019 Date Filed: 06/28/2024 Page: 24