concurring in part and dissenting in part.
T58 Today the majority upholds a $1.4 million defamation award 1 against Air Wisconsin based on a report it made to the Transportation Safety Agency ("TSA") that it was concerned that one of its pilots, who had just been terminated, was mentally unstable and possibly armed. Although I agree with the majority that the district court should have decided the question of qualified immunity rather than sending the issue to the jury, I disagree with its conclusion that the error was harmless on the theory that the airline was not entitled to immunity in any event. I would hold that Air Wisconsin was entitled to immunity under the Aviation and Transportation Security Act ("ATSA") because the statements it made to the TSA were substantially true. The majority's conclusion otherwise-based on its mistaken view that the airline "overstated" its concerns, maj. op. at 132-is not only contrary to the report itself, but also contrary to federal airline safety protocols, which require the reporting of potential flight risks even when based on tentative information and evolving cireumstances. Because the majority's decision threatens to undermine the federal system for reporting flight risks, I respectfully dissent from all but sections IIA. and B. of its opinion.
€59 The ATSA provides that any airline "shall not be civilly lable" under the law of any state for a "voluntary disclosure of any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism" to the TSA. 49 U.S.C. § 44941(a). This immunity is lost only if the disclosure is made with "actual knowledge that the disclosure was false, inaceu-rate, or misleading," or made with "reckless disregard" as to the truth or falsity of the disclosure. Id. § 44941(b). This exception to immunity encompasses the standards articulated in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 LEd.2d 686 (1964), including the requirement that the *843plaintiff prove that a statement is false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 773-75, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (under New York Times, plaintiff must prove that the statement was false and that it was made with knowledge of falsity or with reckless disregard toward whether it was false). Here, this standard cannot be met-and therefore ATSA immunity must attach-because Air Wisconsin's statements to the TSA were substantially true.2
T60 The jury verdict in this case states that Air Wisconsin made the following statements to the TSA:
(a) [Hoeper] was an FFDO who may be armed. He was traveling from [Dulles to Denver] later that day and we were concerned about his mental stability and the whereabouts of his firearm.
(b) Unstable pilot in FFDO program was terminated today.
These statements were true in substance.
T61 Beginning with the statements in paragraph (a), it was true that Air Wisconsin "Iwas] concerned about [Hoeper'sl mental stability and the whereabouts of his firearm." (emphasis added). Air Wisconsin employees met for one and one-half hours to discuss Hoeper's angry outburst after the failed proficiency-test a test Hoeper knew he had to pass or face imminent termination. See maj. op. at 134. The employees discussed the fact that Hoeper was an FFDO, making it possible that he could be carrying a firearm on board with him on his return flight home. They also discussed two incidents involving employees from other air carriers: one in which the terminated employee boarded a plane with a firearm, shot the pilots, and caused the plane to crash, killing all on board; and the other in which an employee facing termination boarded a plane intending to crash it into the company headquarters. After these discussions, the Air Wisconsin employees concluded that they had an obligation under federal aviation protocols to report their concerns to the TSA. Because the statements Air Wisconsin made to the TSA were true-the employees were in fact concerned about the risk that Hoeper might pose to airline safety for the stated reasons-they were not actionable under New York Times and, accordingly, would fall within ATSA immunity.
162 The statement in paragraph (b) was also true. The record makes clear that this statement was the subject line of an email written by a TSA operator summarizing Air Wisconsin's call to the TSA.3 In other words, the TSA used the term "unstable pilot" as a summary of its conversation with Air Wisconsin, in which Air Wisconsin expressed "concern[s] about [Hoeper's] mental stability" referred to in paragraph (a). But even if the statement "unstable pilot" is taken as one used by Air Wisconsin, as the majority mistakenly concludes, maj. op. at 1 51, it would be true.
T63 During the proficiency check (which occurred in a flight simulator), Hoeper ran the aircraft out of fuel, flamed out the engines, and nearly crashed. When the train*844ing instructor froze the simulator, Hoeper slid back his seat and threw off his headset. In a raised voice he stated that "this is a bunch of [expletive]," that the flight instructor was "railroading the situation," and that the simulation was "not realistic." Realizing that he would not pass the test required by the "Last Chance Agreement" in order to maintain his employment, Hoeper stopped the training and stated, "you win, I'm calling ... [pilot union] legal." Hoeper admitted that he stopped the simulator session, slid his seat back, raised his voice, and used profanity. The flight instructor thought that Hoe-per was going to strike him at the time.
After the simulation ended, Hoeper was standing in the lobby acting in an unprofessional manner, talking in a raised voice, and using profanity. When the flight instructor and another Air Wisconsin employee exited the building, Hoeper followed them to the parking lot and yelled at the instructor. Later, when Hoeper called the training center, he was described as "not exactly calm." It is reasonable to conclude from these events that Hoeper was unstable. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 519, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (speaker is entitled to make statements reflecting a "rational interpretation" of events).
T 65 Similarly, the statement in paragraph (b) that Hoeper "was terminated today" was the TSA's, not Air Wisconsin's, as the majority mistakenly suggests. Maj. op. at 151. But even if Air Wisconsin stated that Hoeper had been terminated, the statement would have been substantially true. As noted above, the Last Chance Agreement provided that Hoeper's continued employment was dependent upon him passing the proficiency test-a test he had failed on three previous occasions. During the test, he stopped the simulator after nearly crashing, said he would "call legal," left the facility, and headed to the airport for a flight home to Denver. Everyone knew-Hoeper included-that he had just failed to pass the test upon which his continued employment depended. Of course, official notification of his termination did not come until the following day, as the majority notes. Id. But official notification was just a formality. Hoeper himself admitted that he expected to be terminated, because, having left the facility without passing the test, he could do nothing to prolong his employment. His employment had, in effect, been terminated. Air Wisconsin's statement was therefore substantially true.
T66 The majority acknowledges that the airline acted properly in making the report to the TSA, but concludes that the report fell outside of ATSA immunity because the airline's statements "overstated ... events to such a degree that they were made with reckless disregard of their truth or falsity." Maj. op. at 132. The majority then offers what would have been, in its view, the proper wording of the report to the TSA:
Air Wisconsin would likely be immune under the ATSA if [it] had reported that Hoeper was an Air Wisconsin employee, that he knew he would be terminated soon, that he had acted irrationally at the training three hours earlier and "blew up" at the test administrators, and that he was an FFDO pilot.
Id. at I 89.
T 67 The majority, in my view, draws hairsplitting distinctions that make no difference to the analysis. It would have made no difference, for example, had the airline reported, as the majority would have it, that Hoeper "knew he would be terminated soon," instead of describing him as terminated. As discussed above, the only thing left with regard to Hoeper's termination was formal notification-and everyone, including Hoeper, knew that was coming. Similarly, there is no difference of any consequence between stating "[Hoeperl had acted irrationally at the training three hours earlier and 'blew up' at the test administrators," as the majority would have it, and stating "concerns" about his "mental stability." As chronicled above, Hoeper's "irrational[ |" behavior is precisely what caused the airline to have concerns about his mental stability. And, in fact, the airline did convey the underlying facts to the TSA concerning Hoeper's behavior during the training session.4 Finally, the majority's *845approved statement that Hoeper "was an FFDO pilot" contains the very implication that Air Wisconsin expressed to the TSA-namely that, as an FFDO pilot, Hoeper "may be armed." The majority's approved wording elevates form over substance, contrary to its own recognition that substantially true statements are not actionable. Id. at 155.
168 The majority is able to find that Air Wisconsin's deviations from the script were substantial only by reading "implications" into the airline's statements that simply are not there. For example, the majority thinks the statement that Hoeper "['was an FFDO who may be armed'] implies the assertion of some fact which led [the airline] to conclude that Hoeper was armed.... The tenor of the statement ... suggests that someone had seen Hoeper with his weapon or that Hoeper had told someone he had his weapon"-an implication that, in its view, was untrue. Maj. op. at 135. The "implication" that the majority draws, however, is nowhere to be found in the statement itself. Instead, the obvious "assertion of some fact which led [the airline] to conclude that Hoeper was [possibly] armed" was the fact that was actually conveyed to the TSA-namely, that Hoeper, as an FFDO, had access to a TSA-issued weapon. Maj. op. at 12. It is as if the majority tosses up the overblown "implication" just to have something to swat down as false.
T 69 Similarly, the majority reads into the report an "implication" that "Hoeper was so unstable that he might pose a threat to the crew and passengers"-an implication that, again in its view, was false. Id. at 186; see also id. at 1 56 ("[T}he erux of the defamatory statements was that Hoeper was so mentally unstable that he might constitute a threat to aircraft and passenger safety. The record reveals sufficient evidence to support that jury's determination that Hoeper was not mentally unstable."); id. at 150 (rejecting Air Wisconsin's argument that the statement was one of opinion, on the ground that the statement "implies knowledge of facts
which lead to the conclusion that Hoeper was so mentally unstable that he might constitute a threat to others"); Hoeper v. Air Wisconsin Airlines Corp., 232 P.3d 230, 242 (Colo.App.2009) (resting its decision on the same implication). But again, the majority's "implication" far outstrips the statement itself. Air Wisconsin reported its "concerns" about Hoeper's mental stability-which, as noted above, represented a reasonable interpretation of events. Of course, the majority is correct that a report of a "suspicious" incident such as the one here suggests, at least implicitly, that the suspicions might actually be true. But this implicit suggestion is present in virtually every report to the TSA. Under the majority's rationale, a person who makes a report to the TSA would be exposed to a defamation judgment whenever the possible threat turned out to be a false alarm.
170 At bottom, the majority's reasoning threatens to eviscerate ATSA immunity and undermine the federal system for reporting possible threats to airline safety to the TSA. The federal reporting system rests on the assumption that airlines should report possible threats to airline safety to the TSA even when the report is based on tentative information and evolving cireumstances. The text of the ATSA itself makes clear there is immunity for reporting a "suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism." 49 U.S.C. § 4494l(a) (emphasis added). Moreover, the TSA reporting protocol affirms the tentative nature of the information contained in an airline's report. Prior to the events giving rise to this case, the TSA issued a security directive5 requiring all airlines to report suspicious activities to the TSA. This directive was part of a fundamental shift in airline security in the wake of 9/11. Prior to 9/11, the airlines were responsible for assessing and investigating possible threats to airline security. After 9/11, the TSA assumed responsibility for such assess*846ment and investigation. According to the TSA official who testified at trial, "we [the TSA] wanted to know about suspicious incidents" from the airlines, but "we did not want to have the carriers .... doing the investigation, the assessment of ... potential security matters that came to their attention." The post-9/11 policy was known as "when in doubt, report." By its very nature, then, a report of a suspicious incident to the TSA-including the report at issue in this case-is a tentative assessment of an evoly-ing situation based on imperfect information. Contra maj. op. at 1% 88-39. The majority's reasoning turns the TSA's "when in doubt, report" policy on its head; in other words, if there is doubt, a report may lead to a hefty defamation verdict.
T 71 The majority gives assurances that its "conclusion does not require [the airline] to be sure that Hoeper actually posed a threat." Maj. op. at $36. But its reasoning belies this assertion, as it repeatedly cites grounds for its decision that are inconsistent with airline safety protocols. For example, it faults Air Wisconsin for making the report when it "could not form an opinion as to whether Hoeper was mentally unstable." Maj. op. at T 33. It also faults Air Wisconsin for failing to investigate the matter sufficiently, id. at 16 (noting that Air Wisconsin "never sought nor received any additional information about the confrontation from others who were at the test center that day or about Hoeper's demeanor after the confrontation"); id. at 17 (Air Wisconsin "never sought nor received any additional information about whether Hoeper actually brought his firearm to Virginia"); id. at 183 (Air Wisconsin made a report "[blased on [ ] minimal facts"), and for not taking additional action to prevent Hoeper from boarding the flight. See id. at 136 (noting that, had Air Wisconsin "truly believed" Hoeper was a threat, it would not have booked him on a flight back to Denver and had an employee drive him to the airport); id. at 1 86 (had Air Wisconsin believed Hoeper was a threat, it could have "instructed [him] to return to his hotel room for the evening and booked him a flight only when his mental state improved"). Finally, the majority stresses that Hoeper was not actually a threat. Id. at 186 (Hoe-per "spent over two hours at the airport waiting for his flight without incident"); id. at T 56 (noting that "although Hoeper lost his temper and 'blew up' at one test administrator, [he] did not exhibit any other irrational behavior"); id. ("the record reveals sufficient evidence to support the jury's determination that Hoeper was not mentally unstable"). Under the federal safety protocols, however, none of this is relevant. The majority's concerns fall within the purview of the TSA's investigative authority, not within Air Wisconsin's responsibility. Air Wisconsin reported truthfully that it had concerns about Hoeper given his angry outburst, impending termination, and possible possession of a firearm. -Under these circumstances, ATSA immunity plainly attaches.
T72 The fundamental error committed by the majority is that it ignores the overall context in which the report in this case was made. It is easy for an appellate court to write a seript for what Air Wisconsin should have said to the TSA after having had the benefit of hours of trial testimony and ample time for appellate review and reflection. But this is exactly the sort of approach the U.S. Supreme Court has rejected. Most recently, the Court summarily reversed a federal appellate decision that had reversed a district court's grant of qualified immunity to suit under 42 U.S.C. § 1988. See Ryburn v. Huff, -- U.S. --, 132 S.Ct. 987, 181 LEd.2d 966 (2012) (per curiam). Without merits briefing or oral argument, the Court in Ryburn reversed, criticizing the appellate court for, inter alia, resting its decision "on an account of the facts that differed markedly from the District Court's finding"; "analyzing the string of events that unfolded ... [in an] entirely unrealistic" manner; "second-guessing a police officer's assessment, made on the scene"; and making the qualified immunity determination from the perspective of "hindsight and calm deliberation." Id. at 991-92. While the Ryburn decision addressed the issue of qualified immunity in the context of a suit alleging a Fourth Amendment violation, the Court's admonitions hold true in the ATSA context as well.
T73 Finally, the majority makes a significant procedural error in deferring to the jury *847verdict in this case to conclude the statements were false. Although early on in its opinion the majority properly notes that it must decide "as a matter of law" whether Air Wisconsin is entitled to immunity, maj. op. at 11 28, it then concludes that there is sufficient evidence in the record to support a determination that the statements made by the airline were false. Id. at 1% 54, 57; see also id. at 1 80 n. 6 (erroneously concluding that falsity is not part of the immunity analysis). But the issue here is not whether the trial court verdict as to falsity can be sustained-that is, whether a rational jury could have decided the way this jury did when the evidence is viewed in the light most favorable to the verdict, see Western Fire Truck, Inc. v. Emergency One, Inc., 134 P.3d 570, 576 (Colo. rather whether the defendant is entitled to immunity under the ATSA as a matter of law. See Trinity Broad., Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo.1993) (noting that the trial court "is the finder of fact" in the Colorado Governmental Immunity context); maj. op. at 128 (relying on Trinity ).6 Thus, it is irrelevant that the jury could have rationally concluded that the statements were false (although I would find that a jury could not have so concluded in this case). The issue is whether the statements were false as a matter of law-and they were not.7
174 It may be tempting to dismiss this case as an outlier. Indeed, the case before us appears to be the first reported case rejecting immunity in the ATSA's ten-year history. But a $1.4 million verdiet is not easy to dismiss, nor is the majority's troubling rationale, which I fear may threaten to undermine the federal system for reporting flight risks,. The majority recognizes that the entire point of immunity under the ATSA is to "encourage [private air] carriers to take action on issues of public importance, such as avoiding air piracy and other threats to national security, without fear of consequences." Maj. op. at 125. Unfortunately, the majority appears to forget this statement in analyzing whether immunity would apply in this instance. I therefore respectfully dissent from all but section II.A. and B. of its opinion.8
*848175 I am authorized to state that Justice COATS and Justice BOATRIGHT join in this concurrence in part and dissent in part.
. The award consists of $849,625 in presumed damages, $350,000 in punitive damages (reduced from $391,875 in accordance with Virginia law), and $222,123.09 in costs.
. The majority concludes that whether the statements were true is not part of the ATSA immunity analysis to be determined by the court; instead, the court (and here, the majority) need only decide whether the statements were made with reckless disregard to whether they were false-and, if so, immunity is lost and the case is to be submitted to the jury. Maj. op. at 130 n.6. To put it differently, the majority believes that ATSA immunity is lost when a statement is made recklessly even though it may be true.
In my view, the majority misinterprets the New York Times standard. The Supreme Court has held that although the standard-namely, that a statement must be made "with knowledge that it was false or with reckless disregard of whether it was false or not"-speaks in terms of "fault," rather than "falsity," it requires the plaintiff to show falsity of the statement. Hepps, 475 U.S. at 774-75, 106 S.Ct. 1558 (citing New York Times and other cases). Therefore, when Congress incorporated the standard into the exception to ATSA immunity, it incorporated the falsity component as well. Even if falsity were not part of the ATSA immunity determination, however, the result would be the same: Hoeper's defamation claim cannot succeed because Air Wisconsin's statements were true and therefore not actionable as defamation. See id. at 775, 106 S.Ct. 1558.
. The subject line and "Quick Summary" section of the TSA email stated: "Unstable pilot in FFDO program was terminated today," which is identical to the language in paragraph (b) of the verdict form.
. The email written by the TSA operator stated that '"[Hoeper] has been very upset and angry *845with Air Wisconsin simulator technicians and other personnel."
. The security directive is classified. Its general contours were described at trial by Thomas Blank, who, at the time of the incident, was a high ranking official in the TSA. Blank also testified about the evolution of airline security since 9/11.
. There is a split in the federal circuit courts with regard to whether federal qualified immunity is a question of law for the court. The majority of circuits have held that it is. See Curley v. Klem, 499 F.3d 199, 208-09 (3d Cir.2007) (noting that the qualified immunity issue is a question of law for the court in the "First, Fourth, Seventh, and Eleventh Circuits" and that the Second and Eighth Circuits are moving in that direction). By contrast, the Tenth Circuit permits the court to submit the issue to the jury "in exceptional circumstances where historical facts are so intertwined with the law that a jury question is appropriate as to whether a reasonable person in the defendant's position would have known that his conduct violated the right at issue." Gonzales v. Duran, 590 F.3d 855, 859 (10th Cir.2009) (internal quotation omitted). Even under the Tenth Circuit's approach, this case is not one of "exceptional circumstances" requiring a jury verdict, as the relevant facts are rather straightforward.
. No deference should be paid to any portion of the jury's liability determination given that it was permitted to find liability on standards below those articulated in New York Times. For example, instruction 9 applies the preponderance of the evidence standard instead of the more exacting "clear and convincing" standard required by New York Times. 376 U.S. 254, 279-80, 84 S.Ct. 710. Further, the jury instructions allowed the jury to find liability where Air Wisconsin was "negligent," contrary to New York Times, and contained the stock recklessness standard (permitting a finding of liability when the actor "consciously disregards a substantial and unjustifiable risk"), rather than recklessness in the New York Times sense ("high degree of awareness of [the statement's] probable falsity"). See Garrison v. State of Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) ("only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions"). Finally, the instructions allowed the jury to reject Air Wisconsin's privilege defense if it found that the statements were "unnecessarily insulting," were "stronger or more violent than was necessary under the circumstances," or were made "because of hatred, ill will, or a desire to hurt the Plaintiff" -again, all inconsistent with New York Times. See, eg., Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 666-67, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (New York Times malice should not be confused with malice in the sense of ill will). Affirming the verdict in this case, purportedly as a matter of law, is problematic not only because the jury was deciding something (the immunity issue) it should not have decided, but also because it was deciding that issue under improper standards.
. Because I would find that the statements made by Air Wisconsin were substantially true, I would find that they could not have been made with *848actual knowledge of, or reckless disregard toward, falsity.