Here, though Knoblauch raised qualified immunity fifty-two months after the complaint was filed, substantial time remained before trial for Pasco to respond to the defense. Knoblauch asserted qualified immunity two months before discovery was due and six months before the pretrial conference. Pasco submitted a full response to the defense to the district court and has briefed it on appeal to this court. No evidence indicates that Pasco was prejudiced by the late assertion or that Knoblauch intentionally delayed raising the defense to prejudice Pasco. On the contrary, the record indicates the delay resulted from the lengthy procedural history of this case (including numerous stays, which totaled twenty-nine months while the first two appeals were pending), combined with significant developments following the appeal in
Pasco II. One such development occurred when Pasco abandoned the claim, on appeal in
Pasco II, that Roy Pasco died from blunt trauma injuries inflicted by the police after he walked away from the crash.
Further, a major legal development occurred when the Supreme Court handed down
Scott v. Harris in April 2007, a month after we remanded
Pasco II. Scott addressed, for the first time, the Fourth Amendment implications of a police officer ending a high-speed car chase by ramming the fleeing suspect's vehicle off the road.
See generally Scott, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686. As we noted in
Johnson, a delay in raising an affirmative defense is particularly excusable where, as here, the law was not clearly settled prior to
Scott. See Johnson, 385 F.3d at 516 n. 7.