[00:00:01] Speaker 04:
Our case is 24-11-1058, Moreno v. Circle Case Stores.

[00:00:08] Speaker 04:
And for Ms.

[00:00:08] Speaker 04:
Moreno is Ms.

[00:00:10] Speaker 04:
Butler.

[00:00:11] Speaker 04:
May it proceed.

[00:00:17] Speaker 00:
Good afternoon, Your Honors.

[00:00:18] Speaker 00:
Virginia Hill Butler on behalf of Appellant Ms.

[00:00:20] Speaker 00:
Mary Moreno.

[00:00:22] Speaker 00:
May it please the Court.

[00:00:24] Speaker 00:
The issue in this case is whether an employer can force you to choose between your life and your livelihood.

[00:00:30] Speaker 00:
In this case, 72-year-old Mary Marino chose to protect herself, and it cost her her job.

[00:00:37] Speaker 00:
Ms.

[00:00:37] Speaker 00:
Marino was working the cash register alone when she tried to defend herself from a man robbing the store while holding two knives.

[00:00:45] Speaker 00:
Instead of supporting Ms.

[00:00:46] Speaker 00:
Marino after this traumatic event, Circle K fired her.

[00:00:50] Speaker 00:
Circle K's purported reason for firing Ms.

[00:00:52] Speaker 00:
Marino was because she violated its policy against confronting robbers when she put up her hands to defend herself as the robber came near her.

[00:01:00] Speaker 00:
behind the sales counter and came towards her.

[00:01:03] Speaker 00:
To the contrary, Circle K fired Ms.

[00:01:05] Speaker 00:
Marino because she acted in self-defense.

[00:01:07] Speaker 00:
I will first address appellant's motion to certify to the Colorado Supreme Court before moving on to the self-defense public policy wrongful discharge claim.

[00:01:19] Speaker 00:
Ms.

[00:01:20] Speaker 00:
Marino moves this court to certify the question to the Colorado Supreme Court of whether a cause of action exists for self-defense

[00:01:29] Speaker 00:
as a wrongful discharge claim when the employee played no role in escalating the circumstances.

[00:01:39] Speaker 00:
In looking at whether or not to certify this question, this court looks to whether or not the question is determinative of the outcome of the appeal and whether or not it is novel.

[00:01:48] Speaker 00:
This question is determinative because Ms.

[00:01:49] Speaker 00:
Marino appealed only the narrow legal question of whether or not this cause of action exists.

[00:01:54] Speaker 00:
Ms.

[00:01:54] Speaker 00:
Marino did not appeal

[00:01:56] Speaker 00:
the district court's other holdings involving more factual determinations.

[00:02:00] Speaker 00:
If this cause of action exists, then the district court must be reversed.

[00:02:04] Speaker 00:
If the cause of action does not exist, then the district court must be affirmed.

[00:02:08] Speaker 04:
Isn't there still a fact question below as to Circle K's belief that she was not engaged in self-defense?

[00:02:21] Speaker 00:
Your Honor, I would first note that this is not the basis of the district court's order.

[00:02:25] Speaker 00:
The district court ruled as a matter of law that Ms.

[00:02:27] Speaker 00:
Marino's cause of action did not exist.

[00:02:30] Speaker 00:
I understand that this court can still reach that question if it does, in fact, find.

[00:02:34] Speaker 04:
The court assumed there was a fact.

[00:02:36] Speaker 04:
If we send it over to the Colorado Supreme Court, and they rule in your favor, it still needs to come back here for a trial on basically circled case state of mind.

[00:02:50] Speaker 00:
Your Honor, Ms.

[00:02:52] Speaker 00:
Marino would argue that whether or not the decision makers honestly believed that she was acting in self-defense is an irrelevant question here.

[00:03:01] Speaker 00:
This is not a case where an employee was frequently tardy and then filed a sexual harassment complaint, and then she was terminated.

[00:03:13] Speaker 00:
And the decision makers honestly believed that they were terminating her because of her tardiness.

[00:03:19] Speaker 00:
In that case, the decision makers honestly held belief that they were firing her because of her tardiness could be a defense.

[00:03:28] Speaker 00:
Here, the decision makers honestly terminated Ms.

[00:03:31] Speaker 00:
Marino because of her contact, her physical contact with the robber on October 4th, 2020.

[00:03:37] Speaker 00:
There's no dispute that that physical contact was the basis for their termination for her.

[00:03:42] Speaker 03:
But you would agree that just because there's physical contact doesn't mean that in every case it would be self-defense?

[00:03:51] Speaker 00:
Not all physical contact would be self-defense, no.

[00:03:54] Speaker 00:
But in this case, there is a factual dispute about whether or not Ms.

[00:03:58] Speaker 00:
Moreno was acting in self-defense.

[00:03:59] Speaker 00:
This is a quintessential factual dispute between the parties about whether or not her physical contact was in self-defense.

[00:04:06] Speaker 00:
Ms.

[00:04:06] Speaker 00:
Moreno, I think her language to the

[00:04:10] Speaker 00:
to her supervisor the night of the attack is telling, when he asked her why she put her hands up, she said, because I didn't know, I thought he was going to stab me.

[00:04:20] Speaker 00:
This is a quintessential jury issue for whether or not she was, in fact, acting in self-defense.

[00:04:25] Speaker 00:
But the primary issue for the court today is whether or not this cause of action does, in fact, exist.

[00:04:32] Speaker 00:
If this cause of action does exist, then this case will go down to the district court, and Ms.

[00:04:37] Speaker 00:
Marino

[00:04:38] Speaker 00:
must prove up her claims to a jury of her peers.

[00:04:41] Speaker 00:
But that's a factual dispute for a jury to hear, not a legal dispute for not something that can be decided at this stage of the case.

[00:04:54] Speaker 00:
And I would also, going back to certification, this issue is novel.

[00:05:00] Speaker 00:
I think the district courts own

[00:05:03] Speaker 00:
Uncomfortable, the language is expressed being uncomfortable, recognizing this right shows how novel this issue is.

[00:05:09] Speaker 00:
There are no state law cases that the parties have been able to recognize, excuse me, have been able to find discussing this.

[00:05:18] Speaker 00:
This, the issue of whether or not this cause of action has come up once before to this court, this court, and this is the Donas versus Leprino foods case that is cited in the briefing.

[00:05:32] Speaker 00:
And in that circumstance, the court chose to assume without deciding that this cause of action did, in fact, exist and then resolve it.

[00:05:40] Speaker 00:
Because in that case, the employer did not know that the employee claimed to have acted in self-defense.

[00:05:46] Speaker 00:
Whereas here, there is clear evidence that the employer knew that Ms.

[00:05:49] Speaker 00:
Moreno was acting in self-defense.

[00:05:51] Speaker 01:
What if we look at the video and we don't see self-defense at all?

[00:05:54] Speaker 01:
We see cigarette defense.

[00:05:56] Speaker 01:
He's reaching for the cigarette.

[00:05:57] Speaker 01:
She grabs his arm away.

[00:05:59] Speaker 01:
He's not turned toward her.

[00:06:00] Speaker 01:
He never turns toward her.

[00:06:03] Speaker 00:
Your Honor, I would say again, these are factual disputes that must be resolved by a jury of Ms.

[00:06:07] Speaker 00:
Marino's peers.

[00:06:09] Speaker 00:
The police came and arrested the robber.

[00:06:13] Speaker 00:
He was charged with multiple felonies.

[00:06:14] Speaker 00:
He pled guilty to felony menacing with a deadly weapon.

[00:06:17] Speaker 00:
I think these are all considerations that a jury would take into account when they see a 72-year-old woman working behind a cash register alone, putting out her hand telling him, don't come back here, and this man still comes back here.

[00:06:31] Speaker 00:
And what we have is her in a U-shaped counter where she has no means of exit.

[00:06:36] Speaker 01:
I don't see the video that way at all.

[00:06:38] Speaker 01:
He's up against, there's a counter that comes out, he goes into the counter, he reaches with his left arm, and there's a good two feet.

[00:06:45] Speaker 01:
of space, which you could have walked directly behind him.

[00:06:48] Speaker 00:
Your Honor, I think, again, that these disputes are whether I'm happy to argue whether or not this is self-defense, but I think that these are factual determinations that are for the jury to make in this case.

[00:07:02] Speaker 00:
This is not the basis of how the district court resolved this issue.

[00:07:06] Speaker 00:
I think the fact that... Shouldn't it be, though?

[00:07:08] Speaker 01:
Shouldn't we get a decision whether or not summary judging should be granted

[00:07:12] Speaker 01:
In other words, there's not a genuine issue of material fact on self-defense before we go off on this public policy odyssey.

[00:07:23] Speaker 00:
I believe here, Your Honor, there is a clear basis to find that there are disputes of material fact about whether or not Ms.

[00:07:29] Speaker 00:
Marino acted in self-defense.

[00:07:30] Speaker 00:
Again, there's no dispute that she believed that she was under assault.

[00:07:35] Speaker 00:
Did she initiate the contact?

[00:07:37] Speaker 00:
Your Honor, I think when the assailant, when the rubber comes behind the counter,

[00:07:42] Speaker 00:
He clearly places her at a position of vulnerability.

[00:07:46] Speaker 00:
Whether or not there can be arguments about whether or not she could have sidled away from him to the side or things like that.

[00:07:51] Speaker 00:
But the fact of the matter is that he's somewhere that customers are not allowed to be.

[00:07:58] Speaker 00:
She clearly communicated that to him.

[00:08:00] Speaker 00:
He's in the middle of what

[00:08:04] Speaker 00:
he pled guilty to as a felony menacing.

[00:08:07] Speaker 00:
And I don't think you can ignore the factual situation of what we have.

[00:08:10] Speaker 00:
This is after sunset.

[00:08:12] Speaker 00:
It's during the COVID-19 pandemic.

[00:08:13] Speaker 00:
She's working alone.

[00:08:14] Speaker 00:
And another customer calls 911 because he was concerned about what had happened.

[00:08:21] Speaker 01:
So I think all- So when did the menacing occur?

[00:08:24] Speaker 01:
Was it when he was on the other side of the counter from her?

[00:08:30] Speaker 01:
We don't know that, right?

[00:08:33] Speaker 00:
Excuse me, Your Honor.

[00:08:35] Speaker 00:
He had two knives when he came behind the counter.

[00:08:38] Speaker 00:
And so that's why he was pled.

[00:08:40] Speaker 01:
What if he would have never come behind the counter?

[00:08:42] Speaker 01:
He still could have been found guilty of menacing, could he not, for displaying the knife?

[00:08:47] Speaker 00:
Your Honor, I don't know that that was ever decided at the criminal level.

[00:08:51] Speaker 01:
That's my point.

[00:08:52] Speaker 01:
My point is that menacing doesn't really have anything to do with self-defense here, does it?

[00:08:58] Speaker 00:
I believe, Your Honor, because

[00:09:02] Speaker 00:
His having of the knives clearly puts her in a circumstance where she's at a physical disadvantage already.

[00:09:08] Speaker 00:
I mean, she already starts out.

[00:09:09] Speaker 00:
You have a young man, and she's a 72-year-old woman who is in this counter where she's unable to get out.

[00:09:15] Speaker 00:
There is one entry and exit.

[00:09:18] Speaker 00:
And when you have a man holding two knives in that position, whether or not she has a tiny bit of space in order to get out from behind him is really a difficult question.

[00:09:28] Speaker 00:
And again, that makes it even

[00:09:30] Speaker 00:
more evidence that this is something that Ms.

[00:09:32] Speaker 00:
Marino should be able to argue to a jury of her peers, who may see these facts differently.

[00:09:38] Speaker 00:
Because what you have is a circumstance, you know, the police officers were very concerned about her when they came to the store.

[00:09:47] Speaker 00:
The district attorney's office charged him with multiple crimes.

[00:09:49] Speaker 00:
There's no dispute that she honestly believed that she was under

[00:09:55] Speaker 00:
getting robbed and that she was under an attack.

[00:09:57] Speaker 00:
And I think that the presence of the knives only further elevates that to show that she was at a significant risk of harm.

[00:10:05] Speaker 00:
And thankfully, she wasn't physically harmed in this circumstance, but she had no way to know that that would be the outcome.

[00:10:12] Speaker 04:
Turning to the merits, we have to make an eerie guess here on what the Colorado Supreme Court would do with a public policy exception.

[00:10:21] Speaker 04:
What do you think the best legal support

[00:10:24] Speaker 04:
for the position you're arguing would be from the Colorado cases?

[00:10:30] Speaker 00:
Your Honor, I think that, you know, first we start with the Martin Marietta versus Lorenz test.

[00:10:36] Speaker 00:
And I think that what you see is how throughout the Colorado Constitution statutes, how self-defense is a fundamental right that every Colorado resident and employee is aware of.

[00:10:48] Speaker 00:
It's clearly against public policy to make an employee stand there

[00:10:52] Speaker 00:
and get assaulted by a customer in order to keep her job.

[00:10:56] Speaker 00:
And I think the state recognizes that you don't lose the right to self-preservation when you go to work.

[00:11:01] Speaker 04:
And a lot of companies have these zero tolerance confrontation policies, don't they?

[00:11:06] Speaker 04:
I don't know if Circle K is an outlier in that regard.

[00:11:09] Speaker 04:
And it's a difficult choice, but couldn't the company say, well, our policy is actually safer for our employees because it

[00:11:22] Speaker 04:
prevents escalations.

[00:11:25] Speaker 04:
More employers are better off with our policy rather than a case-by-case self-defense policy.

[00:11:32] Speaker 04:
Does that militate against an exception to the at-will employment doctrine, or is that really irrelevant?

[00:11:39] Speaker 04:
Is that just an irrelevant consideration here, because we should only focus on the employee

[00:11:47] Speaker 00:
I think in this circumstance, the analysis of the Utah Supreme Court in the Ray versus Walmart stores, the 2015 case from there is helpful because they do take into consideration these are serious concerns.

[00:11:59] Speaker 00:
And we understand why these companies have these policies.

[00:12:02] Speaker 00:
But at a fundamental basis, that policy cannot trump an individual's right to self-preservation in that circumstance.

[00:12:08] Speaker 00:
It's against public policy to force an employee to stand there and either choose between getting assaulted and keeping their job.

[00:12:16] Speaker 00:
and that that decision is not something that the state can sanction, even if these employers have these policy.

[00:12:24] Speaker 00:
And I think that, you know, fortunately, Ms.

[00:12:28] Speaker 00:
Moreno was not harmed, but we have to think about the logical consequences of whether or not this cause of action exists in circumstances where, you know, I don't mean to be sensationalist, but we have circumstances like the King Super shooting, and employees who are in those types of situations as well

[00:12:45] Speaker 00:
We have to consider how the existence of this right is necessary for them to be able to protect themselves in those circumstances.

[00:12:58] Speaker 04:
What would be your counter to the, well, we should just let the Colorado General Assembly come up with at will exceptions.

[00:13:05] Speaker 04:
It's done it in other circumstances.

[00:13:07] Speaker 04:
Why don't we just let the political process work here?

[00:13:11] Speaker 00:
Your Honor, there's no specific employment law that gives rise to a cause of action that Circle K violated.

[00:13:16] Speaker 00:
And that is why the public policy exception exists.

[00:13:19] Speaker 00:
The public policy exception exists for those circumstances where the General Assembly has not made an affirmative proclamation creating a cause of action.

[00:13:28] Speaker 00:
And I think the language from Crawford Rehabilitation Services.

[00:13:32] Speaker 04:
They could create a defense, couldn't they?

[00:13:35] Speaker 04:
The General Assembly could say it's improper to fire somebody who

[00:13:41] Speaker 04:
exercises, good faith, self-defense.

[00:13:44] Speaker 00:
The General Assembly could do that, but the fact that they haven't done so doesn't mean that this cause of action doesn't exist.

[00:13:49] Speaker 00:
I think, again, the Crawford Rehabilitation Services versus Weisman language from the Colorado Supreme Court in 1997, the General Assembly is the branch of government charged with creating public policies, and the courts may only recognize and enforce such policies.

[00:14:05] Speaker 00:
And what we have here is we have

[00:14:07] Speaker 00:
the Colorado Constitution and the statutes and case law that Ms.

[00:14:12] Speaker 00:
Marino has cited that are creating this public policy and that are the expressions of the public policy of the state.

[00:14:21] Speaker 00:
And the court is charged with recognizing those public policies.

[00:14:24] Speaker 00:
And one thing I do want to emphasize is that the district court chose not

[00:14:32] Speaker 00:
placed an improper weight on its basis as a federal court interpreting state law.

[00:14:36] Speaker 00:
And it refused to recognize the right in part because it was a federal court.

[00:14:41] Speaker 00:
And in so doing, it did not place itself in the shoes of the Colorado Supreme Court.

[00:14:46] Speaker 00:
And I would like to reserve my remaining time for remodel.

[00:14:50] Speaker 04:
Thank you.

[00:14:55] Speaker 04:
Mr. Carroll for Circle K. May it please the court

[00:15:02] Speaker 02:
Good afternoon, Your Honors.

[00:15:03] Speaker 02:
Tom Carroll from Littler Mendelsohn on behalf of Circle K. With me at council table is Nick Hankins, who's also on the briefs.

[00:15:09] Speaker 02:
I want to pick up on some of Judge Phillips' questionings from the opening argument.

[00:15:13] Speaker 02:
One thing is crystal clear.

[00:15:14] Speaker 02:
This court can affirm on any grounds.

[00:15:16] Speaker 02:
We cited the Siegmiller case in our briefs, but I think it's beyond reproach that Your Honors may affirm on any grounds.

[00:15:24] Speaker 02:
I also think it's important to note that we're here before you on summary judgment.

[00:15:27] Speaker 02:
Rule 56 of the Federal Rules of Civil Procedure

[00:15:30] Speaker 02:
says if there's no genuine issue of material fact, then the movement would be entitled to a judgment as a matter of law.

[00:15:35] Speaker 02:
That's summary judgment.

[00:15:37] Speaker 02:
So just because there's some fact issue, or any fact, I should say, doesn't mean that this goes to jury.

[00:15:43] Speaker 02:
If there's no genuine issue of material fact, this court should affirm.

[00:15:47] Speaker 02:
And picking up on Judge Phillips's questions about the self-defense itself, your honors have a video.

[00:15:52] Speaker 02:
I hope that you've watched it, and if you haven't, I hope you watch it several times again.

[00:15:56] Speaker 02:
The way it comes through, you can click through frame by frame and see exactly what happened.

[00:16:01] Speaker 02:
It's about a minute and 25 seconds from start to finish, this whole encounter.

[00:16:06] Speaker 02:
And what any reasonable fact finder, whether it be the jury, whether it be the decision makers from Circle K, or whether it be your honors in making this decision, will see is that Ms.

[00:16:15] Speaker 02:
Moreno was not defending herself.

[00:16:18] Speaker 01:
And so you're asking us to make that ruling, that there's no genuine issue of material fact when the district court did not?

[00:16:24] Speaker 02:
Correct, Your Honor.

[00:16:25] Speaker 02:
And to put a finer point on it, there are three different ways that this Court can affirm.

[00:16:28] Speaker 02:
One of them, no genuine issue of material fact as to whether this was actually self-defense.

[00:16:34] Speaker 02:
And similar to the Donnez case, that Your Honor knows well because you were on that panel yourself,

[00:16:38] Speaker 02:
You needn't decide this question of whether this exception to at-will employment in Colorado exists or not if you decide the case on the facts.

[00:16:46] Speaker 01:
Did you make that pitch to the District Court?

[00:16:48] Speaker 02:
We did, Your Honor.

[00:16:49] Speaker 01:
Yes, it did.

[00:16:49] Speaker 01:
And the District Court chose not to rule on that.

[00:16:51] Speaker 02:
Correct.

[00:16:52] Speaker 02:
It's in the briefings very similar to how it's been presented to Your Honors on de novo review.

[00:16:57] Speaker 02:
The District Court made her decision, as did the Donnes District Court.

[00:17:01] Speaker 02:
on the basis that Colorado's Supreme Court would not recognize this exception to at-will employment.

[00:17:07] Speaker 02:
I think there's, in particular, a footnote in the district court's opinion that says, look, the parties have different characterizations of the encounter itself, but they're not material to the court's analysis.

[00:17:17] Speaker 02:
And then she went on to say, having decided as a matter of law, I needn't decide the fact issue.

[00:17:21] Speaker 02:
But it was certainly presented and fully briefed.

[00:17:23] Speaker 01:
Could we remand for that determination as opposed to make it ourselves?

[00:17:27] Speaker 02:
Was your question, can you or should you?

[00:17:30] Speaker 01:
start with can.

[00:17:31] Speaker 02:
You certainly can.

[00:17:31] Speaker 02:
No question about it, Your Honors.

[00:17:34] Speaker 02:
This is up on de novo review.

[00:17:36] Speaker 02:
I would suggest that if it's remanded for the basis to have the district court reconsider the video and make an independent determination on that, it is very likely that we'll just be right back here one way or the other.

[00:17:48] Speaker 02:
Not certain.

[00:17:50] Speaker 02:
So I think you can.

[00:17:51] Speaker 02:
I don't think you need to.

[00:17:53] Speaker 02:
There are three different grounds for the courts to affirm here.

[00:17:55] Speaker 02:
Only one of them is the self-defense.

[00:17:59] Speaker 04:
Why couldn't a jury disbelieve Circle K's rationale and just make a finding that it was pretextual, and that they really did believe there was self-defense, but didn't care?

[00:18:12] Speaker 02:
I think this really weaves together, Your Honor, our two arguments about whether it was self-defense and whether the decision makers honestly believed it.

[00:18:21] Speaker 02:
And I suppose I'll try to work through that backwards.

[00:18:23] Speaker 02:
One way that a jury could not come to a different conclusion is that it's undisputed in the record that the decision makers considered the video, three of them.

[00:18:31] Speaker 02:
It was the market manager who manages several stores, the regional manager above him, and somebody from HR.

[00:18:37] Speaker 02:
All three of them watched the video.

[00:18:39] Speaker 02:
All three of them considered it.

[00:18:41] Speaker 02:
All three of them considered whether it was self-defense, and they decided that it wasn't.

[00:18:46] Speaker 02:
And it's undisputed in this record before you on summary judgment that they honestly believed it.

[00:18:52] Speaker 02:
Now, I'm not here to tell you that just because someone says it's honest, that makes it undisputed.

[00:18:56] Speaker 02:
But there is nothing else in the record that calls into question their honest belief.

[00:19:00] Speaker 04:
And so... This is editorializing, but I can't believe Circle K fired this employee for what we saw in the video.

[00:19:08] Speaker 02:
Well, Your Honor... I mean, I know they have their policy, but... Yeah, I might quote the district judge who said this is regrettable.

[00:19:15] Speaker 02:
And I don't disagree.

[00:19:16] Speaker 02:
I wasn't there.

[00:19:19] Speaker 02:
as has already come to light today, and as Your Honor Chetinkovitch already recognized, and as you see in all these cases that discuss it, and particularly in West Virginia and Utah, where the courts are the ones creating the policy.

[00:19:33] Speaker 02:
There's the Escalante case in California as well in the briefing.

[00:19:38] Speaker 02:
There's a lot going on here.

[00:19:39] Speaker 02:
There are countervailing interests for sure.

[00:19:42] Speaker 02:
But what the Circle K witness has testified, and is also undisputed, is that this policy is for the safety of everybody, for the safety of the employees, for the safety of the customers, for the safety of other customers.

[00:19:55] Speaker 03:
What do you think about if the fellow stealing the cigarettes instead had attacked Ms.

[00:20:06] Speaker 03:
Moreno with deadly force?

[00:20:08] Speaker 03:
Would she be precluded by policy from fighting back?

[00:20:13] Speaker 02:
Two answers to that question, first of all, Your Honor.

[00:20:15] Speaker 02:
As to the policy, the policy only prohibits these types of confrontations.

[00:20:20] Speaker 02:
There's lots of synonyms resisting, chasing.

[00:20:22] Speaker 02:
They don't want people going outside of the convenience store and going after somebody, for example.

[00:20:26] Speaker 02:
So first of all, as you describe it, it doesn't sound like that would be a confrontation and therefore not a violation of the policy.

[00:20:34] Speaker 03:
Well, let me change it for you.

[00:20:35] Speaker 03:
Say he came around the corner to come back toward her

[00:20:39] Speaker 03:
And he had his knife out, pointing at her.

[00:20:43] Speaker 03:
And she lunged at him.

[00:20:45] Speaker 02:
I think those are different facts.

[00:20:49] Speaker 03:
I didn't ask if they were different facts.

[00:20:51] Speaker 03:
I want to know if that's a violation of the policy.

[00:20:54] Speaker 02:
If we take exactly the video that I'm picturing in my mind's eye here, having watched it countless times.

[00:20:59] Speaker 03:
Nope, I'm not asking about your video.

[00:21:02] Speaker 03:
I'm asking about a situation where the guy came around the corner, and he had a knife out, pointed at her.

[00:21:07] Speaker 03:
And she lunged at him.

[00:21:09] Speaker 02:
I fully predict, Your Honor, that the employee would not be terminated in those situations.

[00:21:13] Speaker 02:
And we would not be here today.

[00:21:14] Speaker 03:
But I've got to ask you different.

[00:21:15] Speaker 03:
That's not responsive.

[00:21:17] Speaker 03:
Is that a violation of the policy?

[00:21:20] Speaker 03:
I mean, they may make a discretionary decision not to terminate her in that situation.

[00:21:25] Speaker 03:
But is it a violation of the policy?

[00:21:28] Speaker 02:
I'm not trying to be coy, Your Honor.

[00:21:29] Speaker 02:
If it's up to me, I would say that that's not a confrontation.

[00:21:32] Speaker 02:
And no, what you're describing in just a snapshot there does not sound like a violation of the policy to me.

[00:21:39] Speaker 02:
All right.

[00:21:40] Speaker 02:
What should Ms.

[00:21:40] Speaker 02:
Moreno have done?

[00:21:42] Speaker 02:
She should have taken a step back.

[00:21:43] Speaker 02:
Here's another fact in the record.

[00:21:44] Speaker 02:
I'm glad you asked, Your Honor.

[00:21:45] Speaker 02:
Thank you.

[00:21:47] Speaker 02:
You mentioned earlier there's about two feet for her, maybe, to get around her.

[00:21:50] Speaker 02:
But Willow is also undisputed in the record from both testimony and from the video itself, the one that I call sort of the front on video, where you see her face.

[00:21:58] Speaker 02:
You can see the cigarette case behind her.

[00:22:00] Speaker 02:
You can see, again, with your own eyes, confirmed by undisputed testimony, she had approximately 10 feet to step back.

[00:22:08] Speaker 02:
That's it.

[00:22:09] Speaker 02:
And there's also undisputed testimony in the record from Craig Holmes, who is the regional supervisor.

[00:22:14] Speaker 02:
He said, had she only taken a step back, we wouldn't be here today.

[00:22:18] Speaker 02:
That was in his deposition, and the same is true here in this moment.

[00:22:22] Speaker 04:
Although on these facts, the perpetrator pled guilty to felony menacing, which is fear of imminent serious bodily injury, right?

[00:22:34] Speaker 02:
Right.

[00:22:34] Speaker 02:
A person commits the crime of menacing if, by any threat or physical action,

[00:22:39] Speaker 02:
They knowingly attempt or attempt to place someone in fear of imminent serious body injury.

[00:22:43] Speaker 02:
I don't dispute whether Ms.

[00:22:44] Speaker 02:
Moreno feared that she was in danger.

[00:22:47] Speaker 04:
I will tell you as a very clear...

[00:22:50] Speaker 04:
fight or flee, right, when you're in fear of serious bodily injury?

[00:22:53] Speaker 02:
Right, and she should flee.

[00:22:54] Speaker 02:
But here's the other thing, not to lose sight of your honors.

[00:22:56] Speaker 03:
I mean, but that's sort of the whole point.

[00:23:00] Speaker 03:
Sometimes the best defense is a good offense, and that's why it sounds like, at least to the extent you're arguing that, it's clear she was not defending herself, that perhaps she was, she just wasn't doing it the way you liked.

[00:23:19] Speaker 02:
Your Honor, a couple of things I would point out just on the facts before you.

[00:23:22] Speaker 02:
First of all, Ms.

[00:23:23] Speaker 02:
Moreno herself testified that she was not verbally threatened.

[00:23:27] Speaker 02:
That was in response to her own counsel's questioning.

[00:23:29] Speaker 02:
I asked her, do you understand the word threaten?

[00:23:31] Speaker 02:
She said yes.

[00:23:32] Speaker 02:
And I said, were you threatened?

[00:23:34] Speaker 02:
No.

[00:23:34] Speaker 02:
And then third, she called 911 that night.

[00:23:36] Speaker 02:
You have the recording.

[00:23:38] Speaker 02:
And you heard the operator said, and he threatened you with it?

[00:23:41] Speaker 02:
And she said, no, he did not threaten me with your knife.

[00:23:44] Speaker 01:
The knife.

[00:23:45] Speaker 01:
But that's verbally threatened.

[00:23:48] Speaker 01:
But he did have a knife.

[00:23:50] Speaker 02:
Correct.

[00:23:51] Speaker 01:
No doubt about it.

[00:23:51] Speaker 01:
And so she may have understood the question, did he utter the words, unless you give me that pack of cigarettes, which is what he was after, I'll stab you.

[00:23:58] Speaker 01:
And the answer to that would be no.

[00:24:00] Speaker 02:
Right.

[00:24:01] Speaker 02:
And so to judge him to this question about the menacing charge and the aggravated robbery, honestly, my answer to that is that I don't think that that matters.

[00:24:10] Speaker 02:
Mr. Wimmer pleaded guilty.

[00:24:12] Speaker 02:
And whether or not that he was charged with a crime, whether he pleaded,

[00:24:16] Speaker 02:
The crime, I don't think, has anything to do with the factual question, our first argument, of whether this was, in fact, self-defense.

[00:24:23] Speaker 02:
But Judge Carson, as you're talking about these different hypotheticals and this fight or flee and what should they do, I think that really brings us back to the policy side of it, which is how the district court decided it.

[00:24:35] Speaker 02:
And I'd like to spend my last few minutes here, if I may, of course, interrupt me if you will, talking about... I will.

[00:24:42] Speaker 03:
Let me go ahead and do that.

[00:24:45] Speaker 03:
So I want you to assume that she was attacked with deadly force.

[00:24:51] Speaker 03:
I also want you to assume that fighting back would be a violation of the policy.

[00:24:58] Speaker 03:
Okay?

[00:24:58] Speaker 03:
Okay.

[00:24:58] Speaker 03:
In that instance, would there be a public policy cause of action for her?

[00:25:03] Speaker 02:
In Colorado, Your Honor?

[00:25:04] Speaker 03:
In Colorado.

[00:25:05] Speaker 02:
No, there would not.

[00:25:06] Speaker 02:
And let me explain why.

[00:25:08] Speaker 02:
So going back to the Martin Marietta case, on through, by my count, a total of six Colorado Supreme Court cases have talked about this tort.

[00:25:17] Speaker 02:
You have the Mariani case.

[00:25:19] Speaker 02:
You have Crawford.

[00:25:20] Speaker 02:
You have the Coors case.

[00:25:22] Speaker 02:
Two more, forgive me, that escaped me.

[00:25:23] Speaker 02:
They're cited in one of the footnotes to our briefing on the motion to certify where they were interpreting whether a contract was void under public policy.

[00:25:31] Speaker 02:
And it's the same line of law.

[00:25:33] Speaker 02:
So we have at least six Colorado Supreme Court cases that have articulated

[00:25:37] Speaker 02:
When is there this exception to outwell employment?

[00:25:39] Speaker 02:
And in Colorado, the Colorado Supreme Court has been clear as a bell.

[00:25:43] Speaker 02:
It must truly impact the public.

[00:25:45] Speaker 02:
It must be job related.

[00:25:47] Speaker 02:
And the source of public policy must be sufficiently concrete to give people guidance about the behaviors that it does or doesn't require.

[00:25:54] Speaker 02:
And as to those sources of public policy, and this is where, and it's in our briefings, this is where we are very, very different than West Virginia and Utah.

[00:26:03] Speaker 02:
In Colorado, the Colorado Supreme Court has said,

[00:26:06] Speaker 02:
The sources of public policy for this tort that the court recognized must come out of legislative pronouncements.

[00:26:13] Speaker 02:
Now, it's expanded a little bit to include things like accounting rules, attorney's rules of professional responsibility, but in no way can it be coming out of the common law or jurisprudence.

[00:26:25] Speaker 02:
As counsel said in the opening argument, and it comes out of, I believe it's the Crawford decision, where the Colorado Supreme Court said, in Colorado, the General Assembly creates public policy.

[00:26:36] Speaker 02:
only recognize and enforce it.

[00:26:38] Speaker 02:
And so the Colorado Supreme Court recognized this exception to Atwell employment and Martin Marietta, no doubt about it.

[00:26:46] Speaker 02:
But they have since given all courts, including this court, the guidance on how to apply that and that it must be sufficiently clear.

[00:26:55] Speaker 02:
And so when it comes to these particular sources of public policy, as Judge Gorsuch said, now Justice Gorsuch, in the DeFazio case that we cited,

[00:27:05] Speaker 02:
The court must take the facts as they're presented.

[00:27:08] Speaker 02:
It is a plaintiff's burden to present to this court what the sources of public policy are that she says create an exception to at-will employment.

[00:27:16] Speaker 03:
She says the Constitution.

[00:27:18] Speaker 03:
Sure.

[00:27:21] Speaker 03:
That's something the General Assembly had some involvement with, didn't they?

[00:27:25] Speaker 02:
Undoubtedly.

[00:27:26] Speaker 02:
And unquestionably, the Constitution is 100% a source of public policy.

[00:27:30] Speaker 02:
Is it a sufficiently clear source of public policy such that actors can determine their behaviors based on it?

[00:27:35] Speaker 02:
discern more than just a hortatory statement of general guidance.

[00:27:39] Speaker 03:
Is it really unclear if you have a constitution that says you have a natural right to defend your life that really needs to be explained much further?

[00:27:53] Speaker 03:
I mean, do you have to have something that says, oh, an employee shall have the right to defend their life if they're attacked with deadly force behind a U-shaped counter?

[00:28:02] Speaker 03:
I mean, how far do we have to go?

[00:28:05] Speaker 03:
I mean, it just seems common sense to me that if someone is being attacked, they ought to be able to fight off the attack.

[00:28:14] Speaker 03:
And I realize that that's not exactly the facts that we have here.

[00:28:18] Speaker 03:
But your argument has far-reaching implications.

[00:28:23] Speaker 02:
I would say the plaintiff's argument has far-reaching implications too.

[00:28:26] Speaker 02:
And this is where, as I mentioned earlier, you have that the Wray case talks about this a lot.

[00:28:32] Speaker 03:
OK, but before you tell me about the Wray case, tell me about whether you disagree that the Constitution and the idea of self-defense is not clear enough to govern the situation.

[00:28:48] Speaker 02:
I do disagree with that, Your Honor.

[00:28:50] Speaker 02:
I would submit to you that the district court in the Donnez case, the district court here, the West Virginia Supreme Court in the Feliciano case, the North Dakota Supreme Court in the Potts case,

[00:29:01] Speaker 02:
have all found under materially identical provisions.

[00:29:04] Speaker 02:
No, this is not enough of a basis for us to intrude upon the employer-employee relationship and say, this is what you can and can't do.

[00:29:12] Speaker 02:
And what I was going to say about Ray is, and it comes up in the dissent, where he's talking about the fact that in Utah, the court can sort of develop their own public policy.

[00:29:21] Speaker 02:
They say, we've recognized this common law.

[00:29:23] Speaker 02:
We get to define it, which makes it much different than Colorado.

[00:29:26] Speaker 02:
And as the dissent says in that case, look, you have to now define it.

[00:29:30] Speaker 02:
What are the parameters?

[00:29:32] Speaker 02:
What is the nature and scope of this tort?

[00:29:35] Speaker 02:
And to your point, Judge Carson, certainly self-defense is in the Constitution.

[00:29:38] Speaker 02:
There's no doubt about it.

[00:29:40] Speaker 02:
But is it so clear that actors, such as Circle K or such as any other retail business or employer, can look at that?

[00:29:48] Speaker 02:
I have it here.

[00:29:49] Speaker 02:
Enjoying and defending their lives and liberties.

[00:29:54] Speaker 02:
So is that enough to say that they can't have fired Marianne Moreno in this case?

[00:29:57] Speaker 02:
That's what they're asking the court to say.

[00:29:59] Speaker 02:
But I think it requires that sort of grappling with the public policy itself that is the proper province of the court, excuse me, of the Colorado General Assembly.

[00:30:11] Speaker 02:
The Colorado Supreme Court has told you that.

[00:30:13] Speaker 02:
I don't think that there's any reason to certify this.

[00:30:15] Speaker 02:
You have a clear and principled basis.

[00:30:18] Speaker 02:
I see my time has expired.

[00:30:19] Speaker 02:
Your Honors, the district court was correct.

[00:30:22] Speaker 02:
Summary judgment should be affirmed.

[00:30:23] Speaker 04:
Thank you, counsel.

[00:30:24] Speaker 02:
We appreciate that.

[00:30:25] Speaker 04:
Could you give Ms.

[00:30:26] Speaker 04:
Butler 90 seconds, minute and a half?

[00:30:31] Speaker 00:
Thank you, Your Honors.

[00:30:32] Speaker 00:
I want to make a couple of points going off of what Judge Carson said.

[00:30:36] Speaker 00:
The Constitution can be a source of public policy, and this fundamental right of self-defense goes back to America's founding.

[00:30:46] Speaker 00:
The Declaration of Independence recognizes the inalienable right to life inherent in that right is the right to self-defense.

[00:30:54] Speaker 00:
You must be able to defend yourself in order

[00:30:57] Speaker 00:
to preserve your life.

[00:30:58] Speaker 00:
You do not have to let someone attack you before you have the right to defend yourself.

[00:31:02] Speaker 00:
This right is implicit in the US Constitution and is discussed in Second Amendment jurisprudence.

[00:31:08] Speaker 00:
And this is why this right is explicit in the Colorado Constitution and codified in Colorado's statute.

[00:31:15] Speaker 00:
And talking about the facts, I do want to talk about a little bit what came up about how Ms.

[00:31:21] Speaker 00:
Marino, under Sokolke's argument, could have gone back into this U-shaped counter

[00:31:27] Speaker 00:
And I just want to clarify that that's not an ability to remove herself from danger.

[00:31:33] Speaker 00:
If I am trapped in a room and there's someone blocking the door and I run from wall to wall along the back wall, that's not my ability to retreat.

[00:31:43] Speaker 00:
I have no ability to get out of the danger if my exit is blocked.

[00:31:47] Speaker 01:
But it wasn't here.

[00:31:47] Speaker 01:
And we'll watch the video and decide.

[00:31:52] Speaker 01:
And the briefing was great, both sides, quality counsel.

[00:31:55] Speaker 01:
There's a Sahara Desert in there, though, which is, are there any cases that you know of, and you can tell what I'm stuck on, where a woman reaching up and grabbing someone's sleeve as they're trying to take cigarettes, and that's the extent of it, would be considered self-defense?

[00:32:16] Speaker 00:
Your Honor, I don't have

[00:32:19] Speaker 00:
I don't have a case to point you to on the same facts.

[00:32:23] Speaker 01:
There's a good reason.

[00:32:24] Speaker 01:
Self-defense is she pops him over the head with a Coke bottle, or she takes a shotgun out from underneath the counter and shoots him, or something like that.

[00:32:33] Speaker 01:
She's defending the store's product.

[00:32:37] Speaker 00:
Your Honor, I think this is a factual dispute that different jurors could see this video differently and could take the testimony of Ms.

[00:32:43] Speaker 00:
Moreno and see this differently.

[00:32:45] Speaker 00:
And that that really brings us to how this is, whether or not she was acting in self-defense is a jury question that Ms.

[00:32:53] Speaker 00:
Moreno would like to argue to a jury of her peers.

[00:32:56] Speaker 00:
And for that reason, she would ask you to reverse the district court or certify this question to the Colorado Supreme Court.

[00:33:04] Speaker 04:
Any follow-up?

[00:33:05] Speaker 04:
Thank you, counsel.

[00:33:06] Speaker 04:
We appreciate your arguments.

[00:33:07] Speaker 04:
Well done.

[00:33:07] Speaker 04:
As Judge Phillips says, the briefings were excellent.

[00:33:11] Speaker 04:
And it's an issue of first impression for us.

[00:33:13] Speaker 04:
And we look forward to deciding it.

[00:33:15] Speaker 04:
Counsel, excuse.