[00:00:04] Speaker 02:
Next case this morning is 23-1213, estate of Alir versus Wahira.

[00:00:11] Speaker 02:
Counsel for appellant, if you'd make your appearance and proceed, please.

[00:00:18] Speaker 01:
May I please support?

[00:00:20] Speaker 01:
Good morning.

[00:00:20] Speaker 01:
My name is Sullivan Banyan, and I represent the estate of Steve Alir and his wife, Arlinda Alir.

[00:00:27] Speaker 01:
I would like to reserve two minutes for a bottle.

[00:00:30] Speaker 01:
This case is about the dismissal of plaintiffs' complaint for a 12b6 motion for failure to state a claim upon which relief could be granted.

[00:00:41] Speaker 01:
The court, in dismissing that case, relied heavily on finding that the defendants were entitled to qualified immunity.

[00:00:49] Speaker 01:
The court based that conclusion on the two-step analysis that's found in LIDOC, that being whether the plaintiffs met its burden in establishing sufficient facts

[00:01:00] Speaker 01:
that would show that defendants violated a right and whether that right was clearly established at the time.

[00:01:07] Speaker 01:
The court assumed, for its reason, that the first step had been met.

[00:01:12] Speaker 01:
And so therefore, I'm going to focus on the second step.

[00:01:15] Speaker 01:
But before I do so, I would like to highlight that when reviewing a motion to dismiss based upon qualified immunity, the court should not dismiss a case unless it appears beyond the doubt

[00:01:28] Speaker 01:
the plaintiff can prove no set of facts that were entitled in truth, beyond a doubt.

[00:01:35] Speaker 01:
Now, when we look at the clearly established law, we need to find Supreme Court, 10th Circuit, or other circuit authority that would establish that a reasonable official would understand that the actions they took violated that right.

[00:01:49] Speaker 01:
We believe we do so in both cases, in Allen and Slavs.

[00:01:54] Speaker 01:
The defendants would like to believe that Allen would like to argue that Allen stands for the position that in order to overcome qualified immunity, that you need to assert that an officer took some overt action that aggravated or precipitated the need to use deadly force.

[00:02:13] Speaker 01:
However, that's not what Allen stood for.

[00:02:15] Speaker 01:
This court and Allen analyzed that there was a material dispute, a fact, a genuine issue, a fact.

[00:02:29] Speaker 01:
Mr. Allen was sitting in his car outside his sister's house and there was conflicting testimony as to whether officers ran up screaming at Mr. Allen or rather they came up calmly.

[00:02:41] Speaker 01:
The court found that based upon those facts it could find that a jury would rule in favor or establish a verdict in favor of the plaintiffs that under a 12-26 motion all the facts are taken in light most favorable to the plaintiff

[00:03:00] Speaker 01:
of fact were established in the light most favorable to the plaintiff.

[00:03:06] Speaker 01:
That means that the officers ran up and confronted out of the way of sitting in his car.

[00:03:13] Speaker 04:
Did they not use the term that the officers escalated the situation?

[00:03:17] Speaker 01:
They did, Your Honor, and that was in that case that the officers escalated.

[00:03:21] Speaker 01:
But the real issue was, what was the fact?

[00:03:24] Speaker 01:
There was conflicting testimony about what happened.

[00:03:26] Speaker 01:
And in that case, it was the issue of what the officers did.

[00:03:32] Speaker 01:
in Sevier, which Sebalos relied upon, where it was the actions of the victim that what did they do immediately prior to being shot and immediately prior to that excessive lethal force.

[00:03:49] Speaker 01:
In Sebalos, there was the question of whether Mr. Sebalos approached the officers quickly or if he was slow.

[00:03:56] Speaker 02:
Let me ask you a question about your complaint and then another question about your reliance on these two cases.

[00:04:07] Speaker 02:
Your complaint described the replica that was at play here and the fact that traditionally they have orange tips on there.

[00:04:16] Speaker 02:
I don't recall in a vermin in the complaint where you said this replica had an orange tip.

[00:04:25] Speaker 02:
That's correct, Your Honor.

[00:04:26] Speaker 01:
We don't have facts to establish that that actually occurred.

[00:04:30] Speaker 01:
The discovery is limited as we are in the motion dismiss stage, so we did not have that fact to base our... Okay, so you don't know whether the...

[00:04:41] Speaker 02:
purported gun in this case had an orange tip on it or not.

[00:04:46] Speaker 01:
That's correct, Your Honor.

[00:04:46] Speaker 01:
However, we do establish that upon Mr. Allier throwing that gun down, the barrel broke off.

[00:04:53] Speaker 01:
That should have been a clear indication that this was a pellet gun.

[00:04:56] Speaker 02:
It was the barrel that broke off.

[00:04:57] Speaker 02:
It was the barrel that broke off.

[00:05:00] Speaker 02:
And the second question is, I want to be clear, what is it that

[00:05:07] Speaker 02:
that you're relying on Alan and Sebalos for.

[00:05:12] Speaker 02:
I mean, what is the through line that you deem to be pertinent to establishment of clearly established law in this case?

[00:05:21] Speaker 02:
What about those two cases?

[00:05:23] Speaker 02:
I think first you have to look at the mental state of the victim.

[00:05:26] Speaker 01:
In Allen, it was suicidal ideation.

[00:05:28] Speaker 01:
Ceballos was an individual who I believe was under some kind of drugs.

[00:05:32] Speaker 01:
That is, friends are saying that maybe he was on drugs.

[00:05:35] Speaker 01:
That altered mental state, in combination with the circumstances in those cases, it was unreasonable for the officers to use excessive force without doing something more, without investigating more, without using alternative tactics.

[00:05:48] Speaker 01:
because of the situation, which you could clearly tell these individuals were under an altered mental state.

[00:05:53] Speaker 02:
And did you plead here that the officers were aware that this decedent was aware of, had an altered mental state?

[00:06:02] Speaker 01:
Yes, Your Honor.

[00:06:02] Speaker 01:
We allege that first that the officers knew of this individual, or at least he was known to the community for having some behavioral problems.

[00:06:11] Speaker 01:
He also, during this altercation,

[00:06:16] Speaker 01:
And so I think both of those things, in conjunction, raised that mental state even higher than it was in Simoas or Allen, where essentially as an individual, there was just one phone call.

[00:06:28] Speaker 04:
But as I read, maybe I'm mistaken, but the officers in your case, they kind of formed a perimeter, but never took another action aggressive or anything toward the decedent.

[00:06:44] Speaker 04:
Isn't that correct?

[00:06:45] Speaker 01:
Your Honor, I would argue that we don't allege that they took any further step in terms of progressing towards Mr. O'Lear.

[00:06:55] Speaker 01:
However, we do allege that they took actions which aggravated and precipitated the use of deadly force.

[00:07:02] Speaker 01:
That being calling Mr. O'Lear out of his house after the situation had already dissipated.

[00:07:07] Speaker 01:
Whatever the situation was,

[00:07:11] Speaker 01:
was back in his house and the individuals that reported this were no longer there.

[00:07:15] Speaker 01:
They called him out and asked him to then turn over his weapon.

[00:07:19] Speaker 01:
He throws the weapon at the officers and hopes that they would bring him to pick it up.

[00:07:24] Speaker 01:
Then he goes back inside, under this altermental state, the officers call him back out.

[00:07:30] Speaker 01:
They continue to call him back out without going, picking up the gun, without establishing a closer perimeter, trying to retrieve this airsoft replica, and instead continue to aggravate these circumstances until the point when they made the premeditated decision that if he were to go and try to touch the gun again,

[00:07:47] Speaker 01:
that they would then fire.

[00:07:49] Speaker 02:
Okay, so the aggravation of the situation, precipitation of the need to use deadly force, is the other through line that you see of Allen and Zabalas, is that right?

[00:08:05] Speaker 02:
That's correct.

[00:08:05] Speaker 02:
Okay, and so mithil state aggravation, is there anything else in those two cases that you draw on?

[00:08:13] Speaker 01:
The totality of the circumstances, I think we can look at both the grand factors and large factors, but I think what we can really look at is to what was the weapon?

[00:08:21] Speaker 01:
In this case, it was an airsoft replica.

[00:08:23] Speaker 01:
It was not as lethal as the case of Allen, where he was holding a handgun.

[00:08:28] Speaker 01:
It was maybe potentially more lethal than a bat, I would say, but from 187 feet away.

[00:08:37] Speaker 01:
that he was going to use the airsoft replica as any sort of weapon outside of what it can do to shoot the pellets.

[00:08:44] Speaker 02:
And was it more lethal than the bat in the sense that the barrel broke off?

[00:08:49] Speaker 01:
I would argue that if anything, it would be more lethal to Mr. Lear if it were to misfire than to any of the officers.

[00:08:56] Speaker 01:
And on that point, there was no immediate threat to any of the officers or to the public at large.

[00:09:04] Speaker 01:
And that's based upon our

[00:09:06] Speaker 01:
genuine issue of material fact.

[00:09:08] Speaker 01:
That being what exactly happened immediately prior to Mr. O'Lear being shot and killed.

[00:09:15] Speaker 01:
Was he picking up the gun?

[00:09:17] Speaker 01:
Did he go grab a gun?

[00:09:19] Speaker 01:
Did he aim the gun at the officers at all?

[00:09:20] Speaker 01:
We have conflicting testimony.

[00:09:22] Speaker 01:
We have officers who state that on that final approach, he picked up the gun and aimed it at them.

[00:09:27] Speaker 01:
We have other officers that say during the entire encounter, Mr. O'Lear did not pick up the gun and aim it at them.

[00:09:32] Speaker 01:
However, when we are reviewing this

[00:09:36] Speaker 01:
standard, we have to take those factual suits in the favor of the plaintiff.

[00:09:40] Speaker 02:
Well, what does that mean?

[00:09:42] Speaker 02:
See, this whole conversation about discrepancies in what the officers say really seems to me as irrelevant.

[00:09:49] Speaker 02:
The point is, we're taking your universe of facts based upon the pleadings.

[00:09:53] Speaker 02:
And so, taking your view of what the world is, what can one reasonably read your complaint as saying happen?

[00:10:03] Speaker 02:
Did he pick up the gun?

[00:10:05] Speaker 02:
Did he not pick up the gun?

[00:10:06] Speaker 02:
What is the view?

[00:10:07] Speaker 01:
The view is that he either didn't pick up the gun in that final approach, or that he also and or never aimed that airsoft replica at any of the officers.

[00:10:22] Speaker 05:
For clearly established law, you're relying on Allen and Subias.

[00:10:31] Speaker 05:
Anything else?

[00:10:33] Speaker 01:
Are there any other comparable cases you're relying upon?

[00:10:47] Speaker 01:
based upon these grounds, but had similar facts, in which Sevier was, he was essentially, he had a knife, but there was this determination that, okay, there's a dispute of material fact as to if he had a knife, if he came at the officers, and that, again, that dispute of material fact was weighed in his favor, and therefore the officers acted requisite

[00:11:14] Speaker 01:
an individual who had a mental health crisis, who may or may not have approached him with a knife, and therefore that was something to take into consideration under the fatality of the circumstances.

[00:11:26] Speaker 01:
And so Sevier is maybe a more analogous case.

[00:11:28] Speaker 01:
I would say Sebalos and Sevier are the most analogous cases in terms of the victim's conduct being at issue of what exactly occurred immediately prior to the shooting.

[00:11:42] Speaker 01:
However, even if we concede the fact that this Allen case requires us to establish that there is some aggravation, as I discussed earlier, we believe that we alleged that.

[00:11:55] Speaker 01:
That he was co-staffed at his house, that he tried to comply, and that he was shot without any other regard, without investigating into the case any further.

[00:12:04] Speaker 01:
We also believe that the district court erred in dismissing the state law claims

[00:12:11] Speaker 01:
without addressing them whatsoever.

[00:12:15] Speaker 05:
Didn't you also have a claim, a failure to protect claim separate from the excessive force claim?

[00:12:23] Speaker 01:
We had a failure to treat, yes.

[00:12:25] Speaker 01:
That is correct, Your Honor.

[00:12:26] Speaker 01:
And that claim was based on essentially their care.

[00:12:30] Speaker 01:
They failed to provide any care for Mr. Leary.

[00:12:33] Speaker 05:
What was your best case to support that claim?

[00:12:37] Speaker 05:
What is your best case?

[00:12:39] Speaker 01:
Well, Your Honor, to be quite honest, I didn't even necessarily look at that because we were trying to overcome the establishment of qualified immunity and to try to get into the Fourth Amendment excessive force case.

[00:12:49] Speaker 01:
And so under that second action, I don't have any case law to bring to you other than what's in our brief and what's in our report.

[00:12:59] Speaker 05:
All right.

[00:12:59] Speaker 05:
Let's move to the, oh, go ahead.

[00:13:00] Speaker 05:
No, please.

[00:13:02] Speaker 05:
On the municipal liability claims,

[00:13:08] Speaker 05:
What are you relying on in your complaint for policy or custom?

[00:13:14] Speaker 01:
Your Honor, we established that there are staggering statistics that the county, Mesa County, had a five times higher rate of these types of shootings in which an individual, under some kind of altermental capacity, had been shot and killed.

[00:13:30] Speaker 01:
We believe that that statistic alone brings into question whether there should be a policy on how to evaluate these types of cases.

[00:13:38] Speaker 05:
When you arrive to the scene, you have an individual... Have we ever held that statistics alone will establish a claim?

[00:13:45] Speaker 01:
No, Your Honor, but we believe that the statistics

[00:13:47] Speaker 01:
combined with the facts of this case and the fact that we can't find any established policy, that the fact that there is no established policy is a policy in itself, a policy of indifference.

[00:13:58] Speaker 01:
And by not creating a policy, you're enacting a policy by doing nothing.

[00:14:03] Speaker 02:
Well, Grand Junction is not coterminous with Mesa County, right?

[00:14:08] Speaker 02:
That is correct.

[00:14:09] Speaker 02:
So those statistics aren't even entirely directed at Grand Junction.

[00:14:13] Speaker 02:
Okay, and so why isn't that relevant to the question of you're saying this should have told them a grand junction that they should have a policy?

[00:14:23] Speaker 02:
Well, there are other parts of Mesa County where they're engaged in this activity.

[00:14:27] Speaker 02:
Why would that necessarily be prohibitive to them?

[00:14:30] Speaker 01:
Well, Your Honor, I would essentially argue that as the top down, that you have to have the county addressing these issues to all the other police departments within the county, and that therefore they lacked and they did not take their affirmative stat to enact policy.

[00:14:46] Speaker 02:
Oh, the county should have had the policy.

[00:14:48] Speaker 02:
The county should have had policy, correct.

[00:14:50] Speaker 02:
Okay, and isn't there...

[00:14:54] Speaker 02:
What do you do with the argument that a lawsuit against the county is not appropriate anyway?

[00:14:59] Speaker 02:
That it should have been a lawsuit against the Board of County Commissioners?

[00:15:03] Speaker 01:
Your Honor, I agree with that.

[00:15:04] Speaker 01:
And so I believe that the only real argument that I can state here is that we possibly stated the claim, just however it was against the wrong party.

[00:15:13] Speaker 01:
And if you were to amend that complaint, that's a simple cross out and write in.

[00:15:17] Speaker 01:
And I see that I'm out of time.

[00:15:20] Speaker 02:
Okay.

[00:15:21] Speaker 02:
We'll give you a little bit of a rebuttal, unless there are any questions.

[00:15:25] Speaker 02:
Okay.

[00:15:25] Speaker 02:
Thank you.

[00:15:27] Speaker 00:
Morning.

[00:15:28] Speaker 00:
May it please the court.

[00:15:29] Speaker 00:
My name is Eric Zapporin.

[00:15:30] Speaker 00:
I am here on behalf of Defendants of Belize, Thomas Nelson, Thomas O'Hara, and the City of Grand Junction.

[00:15:38] Speaker 00:
Those who have been referred in the briefing as the Grand Junction Defendants.

[00:15:41] Speaker 00:
There are also the Mesa County Defendants involved in the case.

[00:15:44] Speaker 00:
In seated at the council table is Christopher Brophy.

[00:15:47] Speaker 00:
He will be addressing arguments on behalf of Mesa County.

[00:15:52] Speaker 00:
time be split here 50-50 so absent any questions or and with the permission of the court at that midway point I will sit down and defer the rest of my time to Mr. Brophy.

[00:16:03] Speaker 02:
You're gonna need to be watching that clock okay?

[00:16:06] Speaker 02:
I will do my best.

[00:16:07] Speaker 02:
Okay well let me start by

[00:16:12] Speaker 02:
As it relates to clearly established law, we had a 2010 decision called Zia Trust Company, XREL Causey versus Montoya.

[00:16:22] Speaker 02:
And in that case, where we cited another case, we said, quote, we do not think it requires a court decision with identical facts to establish clearly that it is unreasonable

[00:16:35] Speaker 02:
to use deadly force when the force is totally unnecessary to restrain a suspect or to protect officers, the public or the suspect himself.

[00:16:47] Speaker 02:
My question to you is, why isn't that this case?

[00:16:54] Speaker 02:
He has pled that the barrel on the gun was not on the gun

[00:17:03] Speaker 02:
under the best version of the complaint.

[00:17:06] Speaker 02:
Either he did not have the gun with the stock of the gun in his hand, or he was not pointing it at anyone in that situation, and he was a distance from the officers.

[00:17:20] Speaker 02:
Why do you need more to know you cannot shoot him?

[00:17:26] Speaker 00:
It's important, Your Honor, to look at both what is pled and what is not pled in the First Amendment complaint.

[00:17:31] Speaker 00:
And I agree with Your Honor's question earlier.

[00:17:33] Speaker 00:
We are limited to that only which is in the First Amendment complaint.

[00:17:37] Speaker 02:
And everything I just said is in the First Amendment complaint.

[00:17:40] Speaker 02:
And so why could they shoot him?

[00:17:44] Speaker 00:
And I would respectfully disagree as to one fact that you referenced, Your Honor.

[00:17:47] Speaker 00:
Which is?

[00:17:48] Speaker 00:
No, we're in the First Amendment complaint.

[00:17:50] Speaker 00:
Is there the allegation?

[00:17:51] Speaker 00:
that Mr. O'Lear was not touching the gun or grabbing the gun at the time he was shot.

[00:17:56] Speaker 00:
What is alleged to be inconsistent is whether or not he was pointing the gun.

[00:18:01] Speaker 00:
And there's an allegation that he was never pointing the gun, but there is not an allegation anywhere in that First Amendment complaint that he was never at any point touching the gun at the moment he was shot.

[00:18:12] Speaker 02:
What about the officer saying, if he grabs the gun, I will shoot him?

[00:18:17] Speaker 02:
Isn't an inference from that, that he wasn't grabbing the gun at all?

[00:18:21] Speaker 00:
That is what is in the complaint, but reading that in context, it's what the officer is saying, if he grabs the gun,

[00:18:28] Speaker 00:
before he grabs the gun that I'm going to shoot him.

[00:18:31] Speaker 00:
There is no comment from that particular officer.

[00:18:33] Speaker 00:
There is no allegation in the plaint that that officer said he never grabbed the gun.

[00:18:37] Speaker 02:
Well, we're construing the facts in light most favorable to the plaintiff, and it says if he does something, if he does something, infers the inferences, he didn't done it yet, right?

[00:18:47] Speaker 00:
Well, we also have officers, an allegation that multiple officers

[00:18:52] Speaker 00:
stated in their interviews following the event that Mr. O'Leary grabbed the gun immediately prior to him being shot.

[00:18:59] Speaker 00:
That's in the complaint as well.

[00:19:00] Speaker 02:
Okay, let's... Well, let's back up then.

[00:19:05] Speaker 02:
If for a moment we adopt the view that he had the gun, it seems to me that, construing the facts in the light most favorable to the plaintiff, he did not point it at anyone.

[00:19:16] Speaker 02:
And he did not point it at anyone, and the barrel was off the gun.

[00:19:22] Speaker 00:
There is no allegation in the complaint.

[00:19:23] Speaker 00:
You asked about the orange muzzle.

[00:19:25] Speaker 00:
There's no allegation in the complaint officers saw an orange muzzle that would identify as a replica.

[00:19:30] Speaker 00:
There is no allegation in the complaint that the officers from 187 feet away saw the muzzle break off of the weapon.

[00:19:38] Speaker 00:
More importantly to your question, Your Honor, there is no constitutional requirement that police officers wait for a gun to be pointed at them before they're allowed to use lethal force.

[00:19:50] Speaker 00:
have to wait for the glint of steel because by that point in time it's often too late for them to protect themselves.

[00:19:59] Speaker 02:
Well, in Thompson versus Salt Lake County, I believe that case is, a lot of effort was spent on the whole question of whether he had lifted the gun up to point it at the officers.

[00:20:12] Speaker 02:
It seems to me it's relevant in this case to know whether he in fact had done anything with that gun.

[00:20:19] Speaker 02:
If he just had a gun, and let's assume it didn't, well, as we clarified, we don't know whether it had an orange tip or not, and that's not fled.

[00:20:29] Speaker 02:
But the point is, if he picks up the gun, note, a third time, the first two times that he picked up the gun, he pushed it away from himself, right, towards the officers.

[00:20:40] Speaker 02:
Well, why would it be a natural inference for the officers to believe he would do anything other than that this time?

[00:20:48] Speaker 00:
Because the totality of the circumstances here, when they arrive on scene with a significant police force and they loud speak of him out of the home, what is the very first thing that Mr. Leary does when he exits that home?

[00:20:59] Speaker 00:
he brings a gun.

[00:21:01] Speaker 00:
He eventually goes back inside, he drops the gun, he eventually goes back inside, on multiple occasions, what does he do each time he comes out of that home?

[00:21:09] Speaker 00:
He goes towards that weapon.

[00:21:10] Speaker 02:
And the weapon that he had pushed away from himself the first time, right?

[00:21:14] Speaker 02:
Correct.

[00:21:14] Speaker 02:
Okay, so he pushed it away from himself the first time, second time he does likewise, right?

[00:21:21] Speaker 00:
I believe the allegations are either in one occasion he throws it, in another occasion he kicks it,

[00:21:27] Speaker 02:
Okay, each occasion pushing it away from himself instead of using it.

[00:21:32] Speaker 02:
Instead of lifting it up, instead of pointing it, he pushes it away from himself.

[00:21:36] Speaker 02:
So he comes out a third time.

[00:21:39] Speaker 02:
Why is it natural inference to believe that he's doing anything other than what he did the first two times?

[00:21:44] Speaker 00:
Because if his true intent was to not use the weapon, then the easiest

[00:21:58] Speaker 00:
His idea that there was no threat, that the threat had dissipated because he was in his home and the boys that were playing basketball had run away, this was a significant threat to these officers.

[00:22:09] Speaker 02:
Yes, and to be clear, I'm not focusing on the boys running away.

[00:22:12] Speaker 02:
I'm focusing on what threat they had in that moment in time when they shot him.

[00:22:18] Speaker 02:
And if the first two times he pushed the weapon away, if he was going to do something, why didn't he do it then?

[00:22:26] Speaker 00:
Because he chose, for whatever reason,

[00:22:36] Speaker 00:
under the State of Larson v. Muir, the fourth factor, this manifest intentions of the subject, it was reasonable for them to assume each time he keeps going for that.

[00:22:47] Speaker 00:
And on this occasion, we have an allegation.

[00:22:50] Speaker 00:
One of the officers says he reached to the bent down and grabbed the gun.

[00:22:54] Speaker 02:
That's his complaint.

[00:22:55] Speaker 02:
Well, wait a minute.

[00:22:56] Speaker 02:
Okay, well, for the moment, I'm not contesting whether he had the gun in his hand or not.

[00:23:05] Speaker 02:
What I'm saying, though, is under the best, at a minimum, under the best case scenario in the complaint, he didn't point the gun at anybody.

[00:23:14] Speaker 02:
And you say manifest intent.

[00:23:16] Speaker 02:
Well, you got two times where he had an intent to push the gun away from him.

[00:23:21] Speaker 02:
And so the question is, what's the intent the third time?

[00:23:23] Speaker 02:
Let me ask you this question.

[00:23:25] Speaker 02:
Would it be your view that when he walked out the first time and had that gun, the officers had a right to shoot him then?

[00:23:33] Speaker 02:
They could have, yes, Your Honor.

[00:23:35] Speaker 02:
Okay, so if he hadn't pointed the gun at them, walked out of his house with the gun, they could have shot him.

[00:23:41] Speaker 00:
Yes, it's not incited to by the plaintiff.

[00:23:46] Speaker 00:
There is no constitutional requirement.

[00:23:48] Speaker 00:
In fact, it's the opposite.

[00:23:50] Speaker 02:
There's a constitutional right requirement that you face a threat, a threat to you or a threat to the public.

[00:23:56] Speaker 02:
If somebody walks out with their gun like this across their chest,

[00:24:01] Speaker 02:
and walks out of their home, you mean to tell me you can shoot him dead, right then?

[00:24:06] Speaker 00:
I would think based on the totality of the circumstances, Your Honor, this is somebody who's brandished a knife at boys playing basketball.

[00:24:12] Speaker 00:
This is somebody who has already pointed a rifle at these boys who are playing basketball and has now secreted himself inside his home.

[00:24:21] Speaker 00:
He's told to come out of his home, and what does he do?

[00:24:23] Speaker 00:
He comes out with a rifle.

[00:24:25] Speaker 00:
At that point, there is no case that I am aware of that would have required the officers to sit back and wait for Mr. O'Leary to point that rifle at one of them before they could use lethal force.

[00:24:35] Speaker 02:
There are cases that require you, and the constitutional right requires you, to have, as pointed out in this case that I just read to you, there has to be some notion that it was necessary to protect yourself.

[00:24:48] Speaker 02:
A reasonable officer would believe that.

[00:24:50] Speaker 02:
that.

[00:24:51] Speaker 02:
You're distance away from him.

[00:24:53] Speaker 02:
There are multiple officers there.

[00:24:56] Speaker 02:
Under my hypothetical, he comes out, which is actually a better one for you than what turned out to be the fact, which was that he threw the gun towards you.

[00:25:05] Speaker 02:
Well, under my hypothetical, he comes out with the gun across his chest.

[00:25:09] Speaker 02:
At that moment in time,

[00:25:11] Speaker 02:
What reasonable officer believes their life is in danger?

[00:25:14] Speaker 00:
Well, there is a risk of serious physical harm or their life would be in danger because in a moment's notice, based on the history they have with this particular man, that gun could be pointed and turned upon any of them in a moment's notice.

[00:25:29] Speaker 00:
And that's why we provide the settlement authority of the city of rifle case, because the court, the 10th Circuit, very much addressed that issue, this issue of a hostile motion.

[00:25:37] Speaker 00:
They're not required to wait for a gun to be pointed at them before they can protect themselves.

[00:25:42] Speaker 00:
They get to go home that night.

[00:25:43] Speaker 02:
Well, what's the hostile motion when he pushes the gun away from them two times, and the third time, at a minimum, construing the facts in light most favorable to the plaintiff, he grabs the gun but doesn't pull it up.

[00:25:58] Speaker 02:
And I want to be cognizant of your time, too.

[00:26:02] Speaker 02:
So you tell me when you want to sit down.

[00:26:04] Speaker 00:
Let me answer the question, and then I'll sit down with the permission of the court.

[00:26:07] Speaker 02:
Yes.

[00:26:09] Speaker 00:
Every time, and I've already said it, so I apologize that I'm repeating myself.

[00:26:13] Speaker 00:
The threat here is enhanced each and every single time that Mr. Allier decides to approach that weapon.

[00:26:19] Speaker 00:
If his intentions truly were not to use it, why go near it?

[00:26:22] Speaker 00:
And in the very moment that he's shot, as alleged in the complaint, he bends down and he grabs that gun.

[00:26:28] Speaker 00:
And at that very moment, these officers, under clearly established law, are justified in using lethal force.

[00:26:33] Speaker 00:
Could I just ask one thing?

[00:26:34] Speaker 05:
Sure, of course.

[00:26:37] Speaker 05:
Related to this line of questioning, based on the allegations in the complaint, could a reasonable jury, based on those allegations, find that the officers knew that this was a replica and was not capable of lethal force?

[00:26:56] Speaker 00:
Based on the distance they were away, based on the lack of any allegation that the officers could see any safety measures on that weapon that would lead them to believe it was a replica, based on no allegation that they were able to see the barrel break when it was thrown, I don't believe a reasonable juror could conclude that the officers knew this was a replica.

[00:27:15] Speaker 05:
The complaint, the alleged that the victim said it was a pellet gun.

[00:27:19] Speaker 05:
Correct.

[00:27:25] Speaker 00:
With the court's permission, I'll yield a limited time to Mr. Brophy.

[00:27:42] Speaker 03:
Thank you.

[00:27:42] Speaker 03:
Please.

[00:27:43] Speaker 03:
Good morning, Your Honors.

[00:27:44] Speaker 03:
May it please the court to, as we've said on Mr. Brophy, I represent Jason Bailey and Shaver Hanson, two of the Mason County deputies.

[00:27:55] Speaker 03:
charged in the complaints, as the court alluded to in this questioning of the plaintiff, I'll address what I think is a unique issue related to Mesa County, and that is, was the county properly named in this case?

[00:28:08] Speaker 03:
Is it a proper party in this case?

[00:28:09] Speaker 03:
I think the answer to that question is no.

[00:28:11] Speaker 03:
As the court previously pointed out, we had a state statute in Colorado that requires the Board of County Commissioners to be the named entity if you're going to sue the county of Mesa.

[00:28:20] Speaker 03:
We also have a case, in fact, on Judge Matheson, you were on a panel for, that points out that in Colorado under the Constitution, the Sheriff's Department is a separate legal entity from the Board of County Commissioners.

[00:28:33] Speaker 03:
We raised this in our motion under the Manil discussion because I think it goes to the heart of

[00:28:39] Speaker 03:
the problem that the plaintiffs had on their Mandela claim.

[00:28:43] Speaker 03:
That is that they haven't identified a policy and they haven't provided enough facts or any facts really to indicate that any policymaker, whether it be Mason County or the sheriff, had sufficient notice of a training deficiency such that failure to implement training or failure to change their training constituted deliberate indifference with them and almost

[00:29:02] Speaker 02:
We're going to be a little flexible here on time, and what I want to ask you is this argument about Mesa County not being the appropriate party to sue, you're raising that here now for the first time, right?

[00:29:17] Speaker 02:
No, that's not correct.

[00:29:18] Speaker 02:
On appeal?

[00:29:18] Speaker 03:
I believe we raised it in the district court, and to the extent we are raising it as a jurisdictional question.

[00:29:25] Speaker 02:
Well, is it a jurisdictional question for us?

[00:29:29] Speaker 02:
It may be a jurisdictional question under state law, but the whole question of who is a proper party to be sued, if you forfeited that, if you did not allege that in the appropriate context in the district court, I don't know what, that doesn't deprive us of Article 3 jurisdiction, does it?

[00:29:45] Speaker 03:
I don't necessarily know that it's derived from number three jurisdiction.

[00:29:48] Speaker 03:
I think it goes more to the point of

[00:29:50] Speaker 03:
why Judge Gallagher was correct in denying him a null liability.

[00:29:54] Speaker 03:
Because even if we set aside that issue, there's still not enough, as Judge Gallagher found, to find that there is a policy of practice here, or a lack of policy of practice here, that establishes a null liability according to the motion Smith was correct.

[00:30:09] Speaker 03:
I raise it here simply because it's an issue that has come up and an issue that highlights exactly that point.

[00:30:16] Speaker 03:
And that is, we're not even clear which policymakers we should be considering.

[00:30:20] Speaker 03:
simply because the plaintiff hasn't brought in the proper parties to the suit.

[00:30:26] Speaker 03:
I see my time has expired.

[00:30:28] Speaker 03:
On the issues that you were discussing, Your Honor, if I may have just a minute or so to comment on the things that Mr. Sporum was discussing.

[00:30:35] Speaker 03:
You've got one minute, go.

[00:30:37] Speaker 03:
Thank you.

[00:30:38] Speaker 03:
Your Honor, I think the key phrase that needs to be taken into consideration here, and it comes from the city of Rice, and it comes from the Scorsese Provences,

[00:30:47] Speaker 03:
From the moment that Mr. O'Leary threatened with a knife and pointed the gun at civilians on the basketball court, through the police perimeter, through all of his actions in non-compliance with police orders with the gun, we talk about the muzzle coming off.

[00:31:03] Speaker 03:
It's unclear what that action means.

[00:31:05] Speaker 03:
Does it mean perhaps that orange tip?

[00:31:07] Speaker 03:
Are they using that as a phrase of muzzle?

[00:31:09] Speaker 03:
Are they talking about the actual barrel of the gun itself?

[00:31:12] Speaker 03:
There are questions here that are not clearly pleaded facts.

[00:31:15] Speaker 02:
Well, they may be questions, but the point is we're supposed to be construing these well-pleaded facts, and even if they raise some ambiguity, that ambiguity is construed in favor of the plaintiff, right?

[00:31:26] Speaker 03:
And that's fine, but that's when we come back to the totality and circumstances.

[00:31:30] Speaker 03:
We have to look at it.

[00:31:31] Speaker 03:
Is this simply a case where a person walked out and the barrel fell off with his gun and then he got shot by police?

[00:31:37] Speaker 03:
That is absolutely not.

[00:31:38] Speaker 03:
We are the farthest from that.

[00:31:39] Speaker 03:
Is it like elements of violence where those cases happen within 60 or 90 seconds with actions by the police that escalated these events?

[00:31:45] Speaker 03:
That is absolutely not what happened.

[00:31:47] Speaker 02:
Well, I think that that's true, that it wasn't this condensed period of time.

[00:31:51] Speaker 02:
But the question on totality of the circumstances, isn't our law to the effect that?

[00:31:56] Speaker 02:
you know, except for this sort of notion of escalation of activity, that the question of lethal force and the reasonableness of it is judged in that moment in time, right?

[00:32:10] Speaker 03:
Yes.

[00:32:10] Speaker 03:
Okay.

[00:32:11] Speaker 03:
And if you judge in that moment of time.

[00:32:13] Speaker 03:
You have an individual who, by the plaintiff's admission, approached for a fourth time with a weapon on the ground, touched it, picked it up, and he made a strong point, but he didn't point it at anybody.

[00:32:23] Speaker 03:
The jurisprudence of this court and others, and the Fifth Circuit used the glint of steel argument, the jurisprudence of the courts is not that the officers have to wait until the gun is pointed at them, or hear the sound of the shot, or anything like that to react and protect themselves and their fellow officers.

[00:32:40] Speaker 03:
If a reasonable officer under the circumstances believes that that is imminent is going to happen, then that is justification for the use of deadly force.

[00:32:50] Speaker 02:
And we're getting on that minute.

[00:32:53] Speaker 02:
Do you agree with your colleague that if he had walked out of that house the first time with a gun against his chest, they could have shot him?

[00:33:01] Speaker 03:
I think to the extent I agree, there are circumstances where that would be

[00:33:08] Speaker 03:
does before some of the circumstances and it would depend on the totality of the circumstances surrounding that event.

[00:33:13] Speaker 03:
What I will say is if the court wants to hold that a person walking out of his house with a gun in the face of law enforcement and not complying with their orders

[00:33:24] Speaker 03:
cannot under any circumstances be the subject of deadly force it would need to say that because we don't have case law that says that and if that's where we want to go we're back to the qualified immunity question because where is the case that says under no circumstances if a man walks out of his house with a gun across his chest

[00:33:39] Speaker 02:
You heard my quote initially, and the quote was focused on the question of whether there was a reasonable perception of threat to himself or to the public.

[00:33:49] Speaker 02:
And if I come out of that house with a gun against my chest, and there are officers there who have their guns, and in that moment in time I'm not pointing the gun at anybody,

[00:34:00] Speaker 02:
the question becomes whether it's reasonable to use lethal force to kill that person right then and there.

[00:34:06] Speaker 03:
If an officer in the presence sees, for example, children surrounding this person... That's not what we have here.

[00:34:13] Speaker 03:
But that's the problem with the hypothetical, is that if we simply say, in a vacuum, if this person is not surrounded by other people, is not in this neighborhood... And what you agree with me on is what we're judging is that moment in time... Right.

[00:34:25] Speaker 02:
Okay.

[00:34:26] Speaker 02:
Well, in my hypothetical, the moment in time is him walking out of that house.

[00:34:30] Speaker 02:
All other things can be the same as they were in this case.

[00:34:33] Speaker 02:
And the question is, could they shoot him and kill him?

[00:34:36] Speaker 02:
And that's my question to you, because really what we're talking about is, was there a threat to them then?

[00:34:44] Speaker 02:
And no, they were a distance from him.

[00:34:46] Speaker 02:
They had their guns.

[00:34:48] Speaker 02:
They were able to respond to what he did.

[00:34:51] Speaker 02:
Was a reasonable officer able to kill him right then?

[00:34:56] Speaker 03:
Well, let's talk about two things he brought up.

[00:34:57] Speaker 03:
The first time he walks out of the house, if a reasonable officer thought that that gun was making a motion towards a fellow officer and he shot... That's not what I said, right?

[00:35:05] Speaker 02:
Well, well, but... I said the gun was against his chest.

[00:35:09] Speaker 02:
It wasn't pointing at anybody.

[00:35:11] Speaker 03:
But at that moment, if a gun doesn't move and there's absolutely nothing else to worry about, he's frozen solid, he's got one hand in the air, he's got a gun against his chest, he's a substantial distance, 500 yards away from the officers, then no, probably not an opportunity for a regional officer to say that there was a risk of threat.

[00:35:29] Speaker 03:
which is all other sacras being the same.

[00:35:31] Speaker 03:
He had kicked that gun closer and closer and closer and closer to these officers.

[00:35:35] Speaker 03:
And on that fourth time, he was as close as he was going to get to those officers.

[00:35:39] Speaker 03:
And he went down and he picked up that gun.

[00:35:40] Speaker 03:
He wasn't holding it against his chest.

[00:35:42] Speaker 03:
He wasn't not moving.

[00:35:43] Speaker 03:
He was not complying with the orders.

[00:35:45] Speaker 03:
At that time, is it reasonable for those officers to believe there was a threat, even though if we argumentative argued that he wasn't pointing it directly at any one of the officers, was it reasonable for those officers to believe that was a threat?

[00:35:58] Speaker 02:
is that under those circumstances, if we go all the way... Okay, we'll go full stop.

[00:36:04] Speaker 02:
I understand.

[00:36:04] Speaker 02:
Thank you.

[00:36:06] Speaker 02:
Thank you.

[00:36:07] Speaker 02:
As I said, your time is up, but no, no, no, I'm sorry, but let's just go with two minutes here and let's tell us what you have to say.

[00:36:15] Speaker 01:
Your Honor, very briefly, I agree with counsel that we need to look at the totality of the circumstances.

[00:36:21] Speaker 01:
Here we have an individual who has suffering from a mental health condition.

[00:36:25] Speaker 01:
that's known to the officers in this area.

[00:36:28] Speaker 01:
He stresses that by saying that he is having suicidal ideations.

[00:36:32] Speaker 01:
This is an individual who tries to comply with the demands, throwing his gun at the officers, upon which that airsoft replica then breaks.

[00:36:40] Speaker 01:
Along with the statement that it's just a pellet gun, it is unreasonable for the officers to use deadly force and shoot this individual 16 times until he was dead.

[00:36:50] Speaker 01:
Thank you.

[00:36:51] Speaker 02:
Thank you, counsel.

[00:36:52] Speaker 02:
The case is submitted.

[00:36:55] Speaker 02:
Appreciate the arguments.