[00:00:02] Speaker 01:
The last case is 24-1025, Hernandez v. Norton.

[00:00:06] Speaker 01:
May I proceed?

[00:00:08] Speaker 02:
Thank you, Your Honors.

[00:00:09] Speaker 02:
Good morning.

[00:00:10] Speaker 02:
May it please the Court, my name is Kevin Flesch.

[00:00:12] Speaker 02:
I'm representing Joel Hernandez in this appeal.

[00:00:16] Speaker 02:
In preparing for the oral argument, I had time to contemplate what the Court had to decide here.

[00:00:21] Speaker 02:
It seems that the question is whether or not an officer in this case, with the facts presented, had the constitutional protection to use lethal force to question a member of the community.

[00:00:33] Speaker 02:
What we know about the contact and what the officer knew of prior to that contact is that an officer had believed that Mr. Hernandez had been speeding and had expired plates on his vehicle.

[00:00:46] Speaker 02:
The officer then did a U-turn and started to attempt to stop Mr. Hernandez for the traffic citations, but he had lost sight of them.

[00:00:57] Speaker 02:
At that point, Mr. Hernandez had parked his vehicle in an industrial park on the outside of Kiowa.

[00:01:07] Speaker 02:
Kiowa is a small town in eastern Colorado.

[00:01:09] Speaker 02:
I don't know if you know where it is or what it's like, but the industrial park is, I would say, not necessarily in a high crime area or one that officers would expect any sort of felony activity to be going on.

[00:01:22] Speaker 02:
In this particular case, the officers had no information other than what I've just given you when they started to try to contact Mr. Hernandez.

[00:01:31] Speaker 00:
Do you agree that the shooting was basically accidental?

[00:01:35] Speaker 02:
No.

[00:01:37] Speaker 02:
And I'll explain why.

[00:01:38] Speaker 02:
Because I think the way that the officer was searching the area, I understand that he was taking the weapon out of his holster and then it'll low and ready.

[00:01:46] Speaker 02:
But that's not what he did when he was looking underneath this tarp just beforehand.

[00:01:50] Speaker 02:
He had the weapon pointed at the tarp, and he must have had his finger inside the trigger guard.

[00:01:57] Speaker 02:
The Glock didn't have an external safety, and so at that point, I think he was reckless in the way that he was searching the area.

[00:02:03] Speaker 02:
So not purposeful, but reckless.

[00:02:05] Speaker 02:
Yes.

[00:02:07] Speaker 02:
If he had only had it low and ready and not had his finger in the trigger guard, then we wouldn't have had this situation where he was startled by Mr. Hernandez underneath the tarp.

[00:02:17] Speaker 03:
Was it unreasonable?

[00:02:20] Speaker 02:
Objectively unreasonable in this circumstance.

[00:02:22] Speaker 03:
If you pull the tarp up and hit somebody with a gun, you kind of wish that you had had your firearm on them, wouldn't you?

[00:02:28] Speaker 02:
Well, yes and no.

[00:02:29] Speaker 02:
I mean, I understand what the court is saying relating to what ifs, but there was no indication that this individual was that person.

[00:02:36] Speaker 03:
He fled.

[00:02:37] Speaker 02:
I'm sorry?

[00:02:38] Speaker 02:
He fled.

[00:02:39] Speaker 02:
He did, but he had the right to.

[00:02:41] Speaker 02:
He didn't know that the police were chasing him.

[00:02:43] Speaker 02:
He had parked his car and he had locked it.

[00:02:45] Speaker 02:
There's no suggestion that he abandoned the vehicle there.

[00:02:49] Speaker 02:
And when they did the search relating to whether or not the vehicle was stolen, it came up clear.

[00:02:55] Speaker 02:
It is strange.

[00:02:55] Speaker 02:
I'm not disagreeing with you.

[00:02:57] Speaker 02:
But I think that the court has to consider whether it was objectively reasonable for the officer to be clearing this area in the manner that they did.

[00:03:04] Speaker 00:
Yeah, I mean, we've got to look at it, don't we, from the standpoint of a reasonable officer.

[00:03:11] Speaker 00:
And you pull up in the parking lot where someone you were trying to chase down for speeding was, and you find out that

[00:03:19] Speaker 00:
their trucks locked and someone says, oh yeah, that guy took off.

[00:03:22] Speaker 00:
He ran off.

[00:03:24] Speaker 02:
And he might be a customer.

[00:03:26] Speaker 00:
I'd like customers like him who are so excited to shop that they're going to run over to my stuff.

[00:03:34] Speaker 02:
And that's why I was saying in my contemplation of this argument, that's really what we're talking about, is we're talking about whether or not officers, in this sort of circumstance, have the right to have their gun at the ready.

[00:03:46] Speaker 02:
Now, if Mr.

[00:03:47] Speaker 02:
Hernandez would have stayed in his vehicle.

[00:03:51] Speaker 02:
They wouldn't have had the right to approach him with guns drawn.

[00:03:54] Speaker 00:
Well, you'd agree with me, wouldn't you, that under the facts as we know them, the cops are not going to view him as an excited shopper, anxious to get out and see what's in the park.

[00:04:12] Speaker 00:
I would agree.

[00:04:13] Speaker 00:
When someone flees to them, it's a sign that the person is worried about being apprehended.

[00:04:21] Speaker 02:
Potentially, but that doesn't mean they have to use lethal force to apprehend them.

[00:04:25] Speaker 00:
I understand.

[00:04:26] Speaker 00:
Let's take it step by step.

[00:04:29] Speaker 00:
And so it wouldn't be unreasonable for an officer if someone said, oh, yeah, that guy jumped out of his truck, locked it, and took off that way for the officer to believe that the person was fleeing.

[00:04:43] Speaker 02:
If that person knew the mindset of the person that was fleeing knew that the officers were following them, yes, I would say that there would be closer.

[00:04:50] Speaker 00:
They can't know your client's mindset.

[00:04:53] Speaker 00:
All they know is objectively someone jumped out of their truck and took off.

[00:04:58] Speaker 02:
But that's not against the law.

[00:04:59] Speaker 00:
I didn't say it was.

[00:05:01] Speaker 00:
It's just a fact.

[00:05:04] Speaker 02:
And that was my point in contemplating what took place here as to whether or not the officer should be allowed to do this sort of activity, to just talk to someone.

[00:05:13] Speaker 02:
Because that's all that they were really doing at that point.

[00:05:15] Speaker 00:
Right.

[00:05:16] Speaker 00:
Well, I mean, they found him hiding under a tarp.

[00:05:20] Speaker 02:
Yeah.

[00:05:23] Speaker 00:
That's odd, isn't it?

[00:05:23] Speaker 02:
It is odd.

[00:05:24] Speaker 02:
Yeah.

[00:05:25] Speaker 00:
But I don't think it's... To an officer, that might seem like they have somebody who's worried about apprehension.

[00:05:34] Speaker 02:
At the same time, the officer is pointing a gun at him with his finger on the trigger.

[00:05:39] Speaker 02:
That's the problem that we see with this case, that it wasn't a mere accident.

[00:05:45] Speaker 00:
I could understand if... But there are other facts, too.

[00:05:48] Speaker 00:
The officer was shouting out for the person to make themself known.

[00:05:53] Speaker 02:
So Mr. Hernandez says that all he heard was Spanish.

[00:05:55] Speaker 02:
He didn't hear any English speaking relating to that.

[00:05:58] Speaker 02:
So there's a dispute of fact relating to whether or not he shouted that out or not.

[00:06:03] Speaker 00:
Well, you don't know either way.

[00:06:05] Speaker 02:
We don't.

[00:06:05] Speaker 02:
It's a dispute of fact.

[00:06:07] Speaker 00:
Well, we know the officer says that.

[00:06:08] Speaker 00:
But your client's not saying he didn't say it.

[00:06:12] Speaker 00:
He said all he heard was Spanish.

[00:06:15] Speaker 02:
I don't have any evidence.

[00:06:15] Speaker 00:
Maybe he didn't hear the officer.

[00:06:17] Speaker 02:
I didn't hear.

[00:06:17] Speaker 02:
That's true.

[00:06:18] Speaker 02:
Or maybe the officer didn't say it.

[00:06:21] Speaker 00:
Well, that would be a credibility issue, I guess.

[00:06:24] Speaker 02:
And we never got to that because the case was dismissed.

[00:06:28] Speaker 00:
So what if the officer was peeking up

[00:06:32] Speaker 00:
And this may seem a little far afield to you, but I have reason for asking it.

[00:06:37] Speaker 00:
What if the officer was peeking up under the tarp, had his gun pointed there, and one of his partners came up behind him and startled him and he accidentally discharged the gun?

[00:06:46] Speaker 00:
Still the same analysis.

[00:06:47] Speaker 00:
Same analysis, OK.

[00:06:49] Speaker 02:
Shouldn't have the gun pointed at an individual unless there's some reason that there's some provocation relating to lethal force, or there's some other indication that the person is meaning direct harm to the officer.

[00:07:00] Speaker 00:
Or that they're desperate.

[00:07:02] Speaker 00:
and in fear of apprehension.

[00:07:04] Speaker 02:
But that doesn't give them the right to apprehend them with lethal force.

[00:07:07] Speaker 00:
Well, I'm not saying it gives them the right to shoot them, but it might have put them on the defensive to where they feel like they need to defend themselves if possible.

[00:07:15] Speaker 02:
And I can understand if we were talking factually about a gun that maybe had an external safety on it or some mechanism to be safe so that if you are startled, that you don't immediately shoot someone.

[00:07:25] Speaker 02:
But that's not what this situation is.

[00:07:27] Speaker 02:
The situation is a gun that you have your finger on that trigger.

[00:07:30] Speaker 00:
Are you making the point that officers carrying a firearm with no external safety are basically being reckless?

[00:07:40] Speaker 02:
I'm making the argument that under that circumstance, they have to be very careful.

[00:07:43] Speaker 02:
And they are trained relating to where their position of their finger is on that gun whenever they're involved with the public.

[00:07:50] Speaker 02:
As you learn in basic hunter safety, you point a gun at someone, you're assuming that they're going to shoot you with it.

[00:07:57] Speaker 02:
It's the same sort of situation here, except the officer has his finger on the trigger.

[00:08:03] Speaker 02:
There's no other way that this sort of thing wouldn't happen if someone were startled.

[00:08:09] Speaker 01:
What's the clearly established case you're relying on?

[00:08:12] Speaker 02:
There isn't one, other than the fact that the analysis relating to lethal force is used in this case.

[00:08:19] Speaker 02:
And that's what the district court said, is that there had to be a specific case that's directly on point.

[00:08:25] Speaker 02:
Now there's other cases relating to officers using lethal force relating to speaking with individuals that are not causing them any harm, or it looks like there's lethal force being brought against the officer.

[00:08:38] Speaker 02:
And I think the standard would be relating to that, that the officers understand that

[00:08:43] Speaker 02:
In a traffic situation, when you're pulling someone over, you don't use a lethal force to talk to someone in a traffic stop or in a misdemeanor.

[00:08:50] Speaker 02:
There's other cases relating to those situations.

[00:08:54] Speaker 02:
This case is just really unusual in the fact pattern.

[00:08:57] Speaker 03:
Do I have it correct?

[00:08:59] Speaker 03:
One conduct piece that you say was objectively unreasonable was having his finger on the trigger.

[00:09:05] Speaker 02:
Yes.

[00:09:05] Speaker 03:
Everything else is good.

[00:09:07] Speaker 02:
No, I would still say that pulling the weapon out and using it in this fashion, in the sense of low and ready, would still be objectively unreasonable under these circumstances.

[00:09:20] Speaker 02:
With a tarp?

[00:09:22] Speaker 02:
There was no criminal activity that was going on.

[00:09:24] Speaker 03:
But we do look at this from the perspective of the officer, right?

[00:09:30] Speaker 03:
And if you're the officer and what you have seen has happened,

[00:09:37] Speaker 03:
Could you not reasonably think that when you're dealing with your own life, maybe this is someone who's absconded, maybe this is someone with a warrant who obviously doesn't want to get caught, maybe I've got the worst person in the world here, I'd better be really careful.

[00:09:52] Speaker 02:
If that's the case, then you have backup.

[00:09:55] Speaker 02:
Then you bring in backup and you believe that the individual is in this relatively small area and then you search the area in a more systematic way with more backup.

[00:10:05] Speaker 02:
And you do it.

[00:10:05] Speaker 02:
I think in this particular case, what they were doing is they had an individual that may have had a traffic stop that

[00:10:12] Speaker 02:
that ran from that, but they still don't know.

[00:10:14] Speaker 02:
They do have contact with another member of the community that says the person may be a customer of theirs.

[00:10:20] Speaker 02:
I understand the excited customer argument, but it's still what they have.

[00:10:25] Speaker 02:
So your question is, in this particular case, is it always presumed reasonable for an officer to have his gun drawn to speak with a member of the community?

[00:10:34] Speaker 02:
And I think that that's not reasonable.

[00:10:42] Speaker 01:
I don't know if this is true.

[00:10:45] Speaker 01:
I guess probably a majority of officer shootings where officers get shot are during routine traffic stops, right?

[00:10:55] Speaker 01:
Absolutely.

[00:10:57] Speaker 02:
Absolutely, Judge.

[00:10:58] Speaker 02:
And that's some of the analysis that I was looking at is that, so we've got an individual who, if he had been stopped and stayed unseen, they wouldn't have been able to pull their guns on him.

[00:11:09] Speaker 02:
So what changes, I guess, in the analysis with regard to the officer safety or a reasonable officer and their expectations when then they go out and search, and whether or not they should be able to use their guns, unholster their guns while doing that search?

[00:11:25] Speaker 02:
And that's what we're saying was the predicate for, we believe, the reckless act of having his finger on the trigger.

[00:11:35] Speaker 00:
OK.

[00:11:35] Speaker 00:
Just so we're clear on what's reckless and what's not being contended as being reckless, we have the finger on the trigger is reckless.

[00:11:44] Speaker 02:
Yes.

[00:11:44] Speaker 00:
And how about having the gun drawn?

[00:11:46] Speaker 00:
Is that reckless?

[00:11:47] Speaker 02:
I don't think that's reckless.

[00:11:49] Speaker 00:
OK.

[00:11:49] Speaker 00:
Are we just going to call that negligent?

[00:11:52] Speaker 00:
Or is it all right?

[00:11:53] Speaker 02:
Well, I don't think it's negligent.

[00:11:55] Speaker 02:
I think the analysis then is whether or not drawing the weapon in that circumstance is objectively unreasonable for qualified immunity.

[00:12:07] Speaker 02:
Because I don't know if the negligence discussion really helps us in any way relating to the qualified immunity issues.

[00:12:19] Speaker 02:
And having the gun drawn by itself doesn't cause the situation here.

[00:12:24] Speaker 02:
It's that the finger is on the trigger.

[00:12:26] Speaker 02:
No one is alleging that the weapon just sort of went off on its own.

[00:12:32] Speaker 02:
I think the facts are pretty clear that it was because he had the weapon drawn and he had his finger on the trigger.

[00:12:37] Speaker 00:
Oh yeah, I was not under the impression that it discharged pulling the trigger.

[00:12:42] Speaker 02:
It didn't come up in this particular case, but there is some anecdotal evidence out there that these glocks sometimes spontaneously go off.

[00:12:50] Speaker 02:
But that's not the case here.

[00:12:52] Speaker 00:
I'll keep that in mind.

[00:12:55] Speaker 02:
With that, I don't have any other comments.

[00:12:57] Speaker 02:
Thank you, Your Honor.

[00:12:57] Speaker 02:
Thank you.

[00:13:24] Speaker 04:
Good morning and may it please the court.

[00:13:25] Speaker 04:
My name is Ashley Hernandez Schlegel and I represent Sergeant Michael Sklinski, Sheriff Tim Norton in his official capacity and the Elbert County Sheriff's Office with respect to this matter.

[00:13:36] Speaker 04:
You've heard that this case involves a Fourth Amendment claim against Sergeant Sklinski and there seems to be a two-pronged part to that claim.

[00:13:45] Speaker 04:
One was Sergeant Sklinski's drawing of his weapon in search for this fleeing individual who

[00:13:52] Speaker 04:
Was seen speeding reasonable or was it reckless in some way?

[00:13:58] Speaker 04:
And was the discharge of the weapon that based on the facts of the complaint can only be seen as accidental or incidental to not having a safety mechanism on the weapon more than negligent, right?

[00:14:17] Speaker 04:
Something that could be cognizable under 1983.

[00:14:20] Speaker 04:
The other part of this case, and what Mr. Flesch clearly admitted, is there's no clearly established law.

[00:14:27] Speaker 04:
So what the district court found, not analyzing the constitutional violation or whether one occurred, was that there is no clearly established law.

[00:14:36] Speaker 04:
And so because Sergeant Sklisky made a qualified immunity argument, the district court found it appropriate to just analyze that prong of the qualified immunity analysis.

[00:14:47] Speaker 04:
And we hear today that there is no clearly established law.

[00:14:50] Speaker 04:
Sergeant Sklicki is entitled to qualified immunity.

[00:14:54] Speaker 04:
I would also note that the cases that Mr. Hernandez did cite in his brief are clearly distinguishable.

[00:15:00] Speaker 04:
I think the court can see that on its face.

[00:15:01] Speaker 04:
There's three specific cases that were cited.

[00:15:04] Speaker 04:
None of them are on point or even close to the facts of this case.

[00:15:10] Speaker 04:
And so there is no clearly established law that Sergeant Sklicki would have been on notice of that his actions in this case would have been

[00:15:18] Speaker 04:
clear violation of Mr. Hernandez's constitutional rights.

[00:15:23] Speaker 04:
We also heard Mr. Flesch discuss some of the facts that are alleged in the complaint, and obviously were constrained to the four corners of the complaint in this case.

[00:15:32] Speaker 04:
And the district court judge did decide to maintain the four corners and not rule on any other factual information that may have been impliedly part of the complaint.

[00:15:48] Speaker 04:
And what we know from those factual allegations with respect to Sergeant Skliski's actions was that, one, he knew that this individual was speeding 17 miles over the speed limit, so not an insubstantial amount of speeding, that there was no plates and that the registration was expired.

[00:16:10] Speaker 04:
He also knew at the time that this individual fled, or they had information that he may have fled, which

[00:16:18] Speaker 04:
Your Honors have noticed is a strange thing to have done if you were not potentially engaged in some nefarious conduct.

[00:16:26] Speaker 04:
So that was what Sergeant Sklowski had to work with.

[00:16:30] Speaker 04:
He did not know whether this individual was armed.

[00:16:33] Speaker 04:
He didn't know what his intentions were, et cetera.

[00:16:36] Speaker 04:
So he reasonably pulled out his weapon.

[00:16:39] Speaker 04:
Now, there are no allegations that say that a weapon of this sort without a safety mechanism

[00:16:45] Speaker 04:
is automatically a reckless kind of conduct.

[00:16:51] Speaker 04:
There's no allegations that certain law enforcement officers have safety mechanisms, certain don't, and those that don't have been found, that there's some kind of issue with that.

[00:17:04] Speaker 04:
There's no allegations of that in this complaint.

[00:17:08] Speaker 00:
Isn't it odd to investigate

[00:17:13] Speaker 00:
a completed traffic misdemeanor with the level of vigor that occurred here?

[00:17:18] Speaker 04:
I think that based on what Sergeant Sklisky knew at the time and the fact that he's in this industrial complex where someone could be hidden and ambush him, he didn't know whether this individual was armed and he really had no idea what his intentions were in fleeing from the police.

[00:17:35] Speaker 00:
By that time though, he'd already checked the VIN and found out that it wasn't a stolen vehicle.

[00:17:43] Speaker 00:
And so what he had was someone speeding with no plates.

[00:17:47] Speaker 00:
And then he decided to put himself in the position of potentially being in harm's way by taking a really aggressive approach to investigating this completed misdemeanor.

[00:18:02] Speaker 04:
Well, so the aggressive approach being looking for this individual who may have fled in

[00:18:10] Speaker 04:
a hidden location where he's uncertain if that individual is armed.

[00:18:18] Speaker 00:
There's no allegation in this complaint that the person just fled a very short distance where he might be taking shots at the officer, is there?

[00:18:29] Speaker 00:
There's no belief that that was occurring.

[00:18:31] Speaker 04:
No, no, Your Honor.

[00:18:32] Speaker 00:
So this was a pretty extensive search of the industrial park to find him.

[00:18:37] Speaker 04:
Yes.

[00:18:37] Speaker 04:
Well, at least that's what it seems like based on what we know currently is that this search, there had been an initial search done.

[00:18:44] Speaker 04:
And then even after that, they went back to start to look for him again.

[00:18:49] Speaker 04:
And I would note that the 10th Circuit has decided that even in a routine traffic stop, officers may, if they feel it's necessary to protect themselves, draw their weapons.

[00:19:02] Speaker 00:
Um, and so this is a little different though, because this isn't a situation where the officer walked up to the car.

[00:19:09] Speaker 00:
This is a situation where the officer walked up to the car and there was nobody in it.

[00:19:14] Speaker 00:
And he, and he did some investigation that didn't turn up anything suspicious before he went out into the industrial park in search of the person who left the car.

[00:19:25] Speaker 04:
Well, I would disagree slightly.

[00:19:26] Speaker 04:
There wasn't anything suspicious other than the running away.

[00:19:29] Speaker 04:
Well, and the fact that the truck didn't have plates, and it was in expired registration.

[00:19:35] Speaker 04:
So there were indications of concern.

[00:19:40] Speaker 04:
There was suspicion here.

[00:19:41] Speaker 04:
And I think that that was then highlighted by the fact that he fled or could have fled in the officer's mind.

[00:19:47] Speaker 04:
And so having your gun drawn in such a circumstance, especially you're walking up to a vehicle, a truck bed with a tarp over it, you pull the tarp up, you don't know what's under there.

[00:19:58] Speaker 04:
There's no allegation in here that says Sergeant Sklisky knew he was under the tarp and pointed his gun at him because he knew he was there.

[00:20:08] Speaker 04:
No, he pulled up the tarp pointing his gun in the general area because he's clearing the area.

[00:20:13] Speaker 00:
Did he also have his light on?

[00:20:16] Speaker 00:
He did.

[00:20:17] Speaker 04:
His gun did have a flashlight on it, and he was using that to clear the areas where he couldn't see.

[00:20:27] Speaker 04:
Closing up on Sergeant Sklitsky, I think it's clear.

[00:20:29] Speaker 04:
There's just no constitutional violation here.

[00:20:31] Speaker 04:
At most, we have a negligent action, and that's just not actionable under Section 1983.

[00:20:39] Speaker 04:
And even if it were, like the district court found, there is no clearly established law here where Sergeant Sklitsky would have been put on notice that his conduct was unconstitutional.

[00:20:49] Speaker 04:
Mr. Flesch didn't really get to the Menell liability argument here, but the district court did find that there was

[00:20:56] Speaker 04:
Insufficient allegations that could not state a claim against Elbert County Sheriff's Officer Tim Norton, Sheriff Norton in his official capacity.

[00:21:06] Speaker 04:
Nearly alleging that someone, that the training was deficient or some unknown vague policy exists that Sergeant Skaliski violated is insufficient to show liability with respect to the county or Sheriff Norton in his official capacity in this case.

[00:21:26] Speaker 04:
And we would request that the court uphold and affirm the district court's decision.

[00:21:33] Speaker 04:
I have plenty of time, so if the court would like to ask any additional questions, I'm happy to hear them.

[00:21:40] Speaker 01:
Thank you.

[00:21:40] Speaker 01:
You may cede your time.

[00:21:41] Speaker 01:
Yes.

[00:21:43] Speaker 01:
Thank you.

[00:21:43] Speaker 01:
And Mr. Flesch, you had some rebuttal, if you care for it.

[00:21:46] Speaker 01:
I don't.

[00:21:47] Speaker 01:
Thank you, counsel.

[00:21:47] Speaker 01:
Counsel will excuse, and the case is submitted.

[00:21:49] Speaker 01:
And we are in recess until further notice.

[00:21:54] Speaker 01:
January.

[00:21:56] Speaker 00:
December, yes.