[00:00:00] Speaker 03:
We're ready.

[00:00:00] Speaker 03:
Our third case this morning is 23-1113 Quintana versus Dodge.

[00:00:09] Speaker 03:
You may proceed.

[00:00:13] Speaker 00:
May it please the Court.

[00:00:14] Speaker 00:
Good morning, Your Honors.

[00:00:15] Speaker 00:
My name is James Cadel.

[00:00:16] Speaker 00:
I'm appellate counsel for the defendants in this case, Denver Police Department officers Justin Dodge and Richard Averharder.

[00:00:24] Speaker 00:
Your Honor, this is a case about an hour's long armed standoff in Denver, Colorado.

[00:00:30] Speaker 00:
where the individual defense in this case entered negotiations with Mr. Joe Quintana and those negotiations were unsuccessful.

[00:00:44] Speaker 00:
Later a robot was used to attempt to communicate with him which was also unsuccessful and eventually both smokeless and tear gas canisters ended up being used.

[00:00:55] Speaker 00:
in the house where Mr. Quintana was staying, which is the plaintiff, is Mary Quintana's house.

[00:01:03] Speaker 00:
Here, Your Honors, we are on appeal from an order denying summary judgment as to the individual officers, and the defendants here respectfully request that this court reverse the district court for a few reasons.

[00:01:19] Speaker 00:
Most importantly, Your Honors, because the district court's ultimate finding that

[00:01:25] Speaker 00:
the facts in the case indicated that the officers were willful and wanton is an error.

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And beyond that, Your Honors, the district court's analysis also appears to be an error.

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Beyond that, Your Honors, this court does have jurisdiction to hear this case.

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I intend to first address the jurisdictional issue for this court before turning to the merits, but I of course welcome the court's questions.

[00:01:50] Speaker 00:
As to the jurisdictional issue, the most pertinent issue for the court appears to be whether or not this is a sufficiency of the evidence appeal that is prohibited by the United States Supreme Court case Johnson v. Jones.

[00:02:04] Speaker 00:
Here, however, the most compelling argument for why this is not a sufficiency of the evidence appeal is by reviewing both the record of Johnson v. Jones and the record here in addition to binding law on the court.

[00:02:18] Speaker 00:
In Johnson v. Jones,

[00:02:20] Speaker 03:
I thought your argument was that it wasn't a jury question.

[00:02:24] Speaker 03:
Both of them wasn't a jury question.

[00:02:26] Speaker 03:
It was a question for the trial court.

[00:02:31] Speaker 00:
Your Honor, I don't think that that argument is made in our briefs.

[00:02:36] Speaker 00:
That would be a state procedural element that's in the Colorado Governmental Immunity Act.

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we do make an argument that should the court feel inclined to affirm the district court, that it may remand with the instruction to conduct an evidentiary hearing as to whether or not the officers were ultimately wolf or one.

[00:02:59] Speaker 03:
Who decides, jury or judge?

[00:03:03] Speaker 00:
Well, Your Honor, that has to do with the specific, the quick answer, Your Honor, is in Colorado, a judge.

[00:03:10] Speaker 00:
And in federal court, we would respectfully submit that eventually a judge must determine that.

[00:03:16] Speaker 04:
Well, the judge did decide that.

[00:03:19] Speaker 04:
He didn't conduct a Trinity hearing, but he did entertain a 12-by-1 motion.

[00:03:25] Speaker 04:
And under the Colorado Governmental Immunity Act, the Trinity hearing is a procedure to facilitate the disposition of a motion to dismiss.

[00:03:36] Speaker 04:
The judge had already decided the motion to dismiss.

[00:03:40] Speaker 00:
Your Honor, I think that's right.

[00:03:42] Speaker 00:
I think that that issue was determined in the motion to dismiss, but I'm not certain that the court's holding was conclusive in that sense.

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And I think that has to do with sort of the complicated interplay between the Colorado statutory law, which requires a conclusive finding as opposed to what Rule 12B1 requires, which is some limited fact finding on top of a plausibly fled complaint.

[00:04:10] Speaker 04:
Well, there can be, under 12-B-1, a factual attack on jurisdiction.

[00:04:18] Speaker 04:
I mean, you can present affidavits, and I don't think it happens often, but I don't see why you couldn't ask a judge for an opportunity for an evidentiary hearing.

[00:04:28] Speaker 04:
Because it can be considered not only a facial attack on the jurisdiction predicated on the complaint, but it can also be predicated on actual facts.

[00:04:38] Speaker 04:
And so it seems to me that if you wanted a Trinity hearing, when you've moved to dismiss in district court, you present affidavits, you ask district court for an evidentiary hearing, and that would be the same as if you did it after losing on a 12B1, losing on a 56 motion, and then coming back and saying, okay, well, we want to go back and do our second 12B1.

[00:05:03] Speaker 04:
And now we're in a Trinity hearing, which we could have asked for two motions ago.

[00:05:07] Speaker 04:
But why am I wrong about that?

[00:05:11] Speaker 00:
Well, Your Honor, I think your question is well taken here.

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But I'm not certain that the factual record in this case indicates that that review was undergone.

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And more pointed towards your question, Your Honor, I'm not certain that

[00:05:31] Speaker 00:
a Trinity-type hearing is actually something that a federal court can engage in at that Rule 12b1 stage, just because the procedures present in Rule 12b1 are sufficient to serve that state interest.

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In addition, there is a subsequent federal procedural rule that would aid the court, which would be Rule 56.

[00:05:58] Speaker 03:
And so I believe that... Why wouldn't the Governmental Immunity Act be substantive state law that the federal court should apply rather than a federal procedural law?

[00:06:13] Speaker 00:
Your Honor, I believe elements of the Governmental Immunity Act are substantive.

[00:06:20] Speaker 00:
Most importantly, as held in Schmitz and in Aspen Orthopedics, it's that rights and immunity from suit

[00:06:29] Speaker 00:
And however, I believe also in Schmitz, Your Honor, the court, Schmitz versus Colorado State Patrol, the court found that the applicable Trinity procedures were not

[00:06:47] Speaker 00:
were not substantive in terms of the way that a federal court could apply them.

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So while the right itself is substantive, Your Honor, and provides jurisdiction under the collateral order doctrine, the procedure is in the Trinity hearing or not.

[00:07:03] Speaker 01:
Council, could I get back to your jurisdictional argument?

[00:07:10] Speaker 01:
In the summary judgment order, the district court

[00:07:13] Speaker 01:
said, and I'm quoting, the individual defendants readily admit that whether a defendant acted willfully or wantonly, it's usually a fact issue reserved for the jury.

[00:07:23] Speaker 01:
Do you agree with that?

[00:07:25] Speaker 00:
Your Honor, I think frequently it can be an issue of fact.

[00:07:31] Speaker 00:
And Your Honor, whether or not someone is willful or wanton

[00:07:37] Speaker 00:
can be an issue of fact, certainly.

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But that does not mean that it can't also be an issue of law.

[00:07:44] Speaker 00:
And it doesn't mean that it can't be a mixed issue.

[00:07:48] Speaker 01:
Go ahead.

[00:07:49] Speaker 01:
Just to muddy it up a little more, some of the Colorado cases talk about willful and wanton as a mixed question of law and fact.

[00:08:04] Speaker 01:
And so it seems we've got to grapple with

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whether Wilful and Wanton has enough of a factual component to it in this case to raise a question whether we should be reviewing this at all.

[00:08:21] Speaker 01:
That is, we're back to jurisdiction.

[00:08:24] Speaker 00:
Your Honor, I think you're right.

[00:08:25] Speaker 00:
And I think

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Whether or not Wolf or One is a question of fact is something that would be different depending on the case that's before the court.

[00:08:34] Speaker 00:
For example, if there were important disputed facts between the parties, if the defendants in this case argued that they didn't throw the last CS canister into Ms.

[00:08:48] Speaker 00:
Quintana's home, I believe that that would be an obvious issue that would create an issue of fact as to whether or not they're Wolf or One.

[00:08:57] Speaker 00:
But here, your honor, there's no disputed facts, and particularly in relation to the type of facts in Johnson versus Jones.

[00:09:09] Speaker 00:
In Johnson versus Jones, it's a 1983 case, it's a police brutality case.

[00:09:15] Speaker 00:
And before the Supreme Court, there was a question of whether or not an officer was present when an individual was beaten.

[00:09:23] Speaker 00:
And the Supreme Court rightly decided there that that's an issue of fact, a very basic issue of fact that the courts of appeals should not be holding interlocutory appeals for.

[00:09:37] Speaker 00:
But here, Your Honors, it's more of an ultimate question of liability in this case.

[00:09:43] Speaker 00:
It's not the underlying facts that are being challenged, but rather or not the ultimate

[00:09:50] Speaker 00:
grading whether that conduct is negligent, whether it's Willful or Wanton or Reckless.

[00:09:55] Speaker 01:
Well, the district court characterized it as Willful and Wanton presenting a genuine issue of material fact.

[00:10:08] Speaker 01:
I take it you do disagree with that.

[00:10:11] Speaker 00:
We do, Your Honor.

[00:10:12] Speaker 00:
And I think the most on-point authority for the Court here would be either Walton v. Powell or Plumhoff v. Rickard, which both sort of modify the Johnson v. Jones test.

[00:10:28] Speaker 01:
Well, one case that gave me pause out of Colorado, Pettengel v. Modi, the Court said,

[00:10:38] Speaker 01:
quoting, the evidence is such that reasonable minds might draw different conclusions there from it is proper that a jury decide the issue has to, again, willful and wanton.

[00:10:50] Speaker 01:
Isn't that what the judge did here?

[00:10:53] Speaker 01:
Reasonable minds could disagree on willful and wanton, so it's got to go to the jury.

[00:10:59] Speaker 00:
Your Honor, that is what the court has done here.

[00:11:03] Speaker 00:
But the Colorado Supreme Court in terror mining

[00:11:06] Speaker 00:
a case that's about 40 years after PatentGel, came out on the different side and found that this was, in fact, an issue of law that could be resolved in an appeal.

[00:11:18] Speaker 00:
In Tara Meiniger honors, the court conducted an analysis of both the willful and wanton mental state and the culpable conduct of the defendant in that case.

[00:11:32] Speaker 00:
Now, as plaintiff points out in his briefing, that's not a CGI case.

[00:11:37] Speaker 00:
But the court's applying essentially the same substantive definition of willful and wanton.

[00:11:42] Speaker 00:
And furthermore, because of the procedural posture in Colorado courts, the issue of CGIA, willful and wanton, is frequently not litigated in an interlocutory stance.

[00:11:53] Speaker 00:
There's a final decision made as to whether or not it happened.

[00:11:57] Speaker 01:
You referred to your brief as to the evidence being insufficient.

[00:12:02] Speaker 01:
Is that the right way to

[00:12:05] Speaker 01:
present your argument if what you're saying, I take it what you're saying is that the facts are undisputed and on the basis of those facts, we don't have willful want, but is it really sufficiency of the evidence question?

[00:12:25] Speaker 00:
Your Honor, I think you're making an important point here.

[00:12:29] Speaker 00:
Perhaps the argument in the brief is a little bit inartfully termed, but that is the substance of what we're arguing.

[00:12:37] Speaker 00:
And as you can tell from the substance of the brief, there's no disputed fact between the parties.

[00:12:42] Speaker 00:
We're not arguing that we didn't start the fire for the purposes of this motion, and we're not arguing any of the printed issues, particularly those that the district court found to constitute Welfare in One Conduct in its order, Your Honor.

[00:12:59] Speaker 00:
And with the court's permission, I'd like to reserve the rest of my time.

[00:13:04] Speaker 02:
Thank you, Your Honor.

[00:13:19] Speaker 02:
So may it please the court?

[00:13:21] Speaker 02:
Your Honor, this is a... Could you identify yourself?

[00:13:24] Speaker 02:
Oh, I'm sorry.

[00:13:25] Speaker 02:
Please forgive me.

[00:13:26] Speaker 02:
Joseph Salazar on behalf of Mary Quintana, appellee in this case.

[00:13:31] Speaker 02:
Your Honor, this case is basically a second bite of an apple.

[00:13:37] Speaker 02:
They want you to sort this case all over again.

[00:13:41] Speaker 02:
As Judge Baccarac has indicated, is that there was a 12b motion that was a 12b1 motion that was filed in this case early on with the original complaint.

[00:13:54] Speaker 02:
And the judge dispensed with that, saying that there was sufficient vaccine there for willful and wanton conduct to be found.

[00:14:02] Speaker 02:
And so then we engaged in a basically three-year litigation stance, including discovery and motion for summary judgment.

[00:14:15] Speaker 02:
And the entire time, even though the Colorado Governmental Immunity Act allowed them to appeal this

[00:14:23] Speaker 02:
denial of the 12b1 motion on the issue of willful and law and conduct, they never did.

[00:14:28] Speaker 04:
Well, I think that issue is front and center on the alternative argument that the appellants make.

[00:14:37] Speaker 04:
with regard to their request for a Trinity hearing.

[00:14:41] Speaker 04:
But obviously, the decision on the 12B1 motion, that's predicated on the face of the complaint, not based on the evidence that is elicited during discovery.

[00:14:50] Speaker 04:
So obviously, that's not going to forestall someone moving for summary judgment.

[00:14:54] Speaker 04:
We have that virtually every case of our civil documents.

[00:14:58] Speaker 02:
Do you agree with that?

[00:15:00] Speaker 02:
Truly, but the line of cases demonstrate that when a

[00:15:05] Speaker 02:
an entity wants to request, or even an individual wants to request a trinity hearing, they usually do so, which leads up to the issue of deciding a 12b1 motion.

[00:15:16] Speaker 02:
And that's not what happened here.

[00:15:17] Speaker 02:
We conducted limited discovery.

[00:15:19] Speaker 02:
We asked the judge for limited discovery, which was allowed.

[00:15:22] Speaker 02:
And it was based off of that limited discovery that we found a wealth of information to demonstrate that willful and wanton conduct indeed did exist.

[00:15:31] Speaker 02:
And then we amended the complaint.

[00:15:32] Speaker 02:
Now the entire time, they had the opportunity to request a Trinity hearing, to submit affidavits, to conduct a factual evidentiary hearing, and they failed to do that.

[00:15:44] Speaker 02:
So once the judge, under a 12b1 motion, determined that willful and wanton conduct could be found, now we get to the fact phase of this issue.

[00:15:55] Speaker 03:
Under the Immunity Act, as I asked counsel, is that a question for the

[00:16:00] Speaker 03:
jury or is that a question for the trial court to decide?

[00:16:03] Speaker 02:
So under 12b1 and under the issue of the Trinity, yes, that would be for the judge to decide.

[00:16:09] Speaker 02:
But once we got beyond that, now it became a fact issue.

[00:16:12] Speaker 02:
And so we conducted our discovery, as I stated, and then we went into motions for summary judgment.

[00:16:19] Speaker 02:
And the judge correctly decided that there are disputed issues here.

[00:16:22] Speaker 01:
Well, what were they though?

[00:16:25] Speaker 01:
Didn't the judge just say that there was a disputed issue on whether there's willful and wanton?

[00:16:32] Speaker 01:
Is there anything else that's disputed?

[00:16:34] Speaker 01:
As a matter of fact, counsel says there aren't any disputed facts.

[00:16:38] Speaker 01:
And we're really talking about whether you have willful and wanton.

[00:16:42] Speaker 01:
Do you see it otherwise?

[00:16:43] Speaker 02:
I think, well, for our point of view, is that it's undisputed that they made numerous admissions.

[00:16:50] Speaker 02:
They knew that the chemical products that they were going to use were flammable.

[00:16:55] Speaker 02:
They worked on a plan to throw these chemical products as flammable.

[00:16:59] Speaker 01:
Let me just interject.

[00:17:03] Speaker 01:
I don't know that they're contesting any of that.

[00:17:07] Speaker 01:
if we want to zero in on what the issue is at this point, isn't it just willful and wanton?

[00:17:13] Speaker 01:
And is that an issue of law or is that an issue of fact?

[00:17:16] Speaker 02:
Thank you, Your Honor.

[00:17:17] Speaker 02:
It's an issue of fact.

[00:17:19] Speaker 02:
Because if these facts indeed can be presented to a jury, then it's up to a jury to decide credibility.

[00:17:25] Speaker 02:
It's up to a jury to decide whether it was purposeful.

[00:17:27] Speaker 02:
It's up to a jury to decide whether it was, you know, with a deliberate indifference, right?

[00:17:33] Speaker 02:
That's at that point

[00:17:35] Speaker 02:
with summary judgment where it's a merit-based issue, it becomes an issue for the jury.

[00:17:41] Speaker 02:
And they admit in their appellate brief and their opening brief on page 10 that this is an issue for the jury.

[00:17:49] Speaker 02:
That leads me to then say that this court doesn't have jurisdiction over this case.

[00:17:53] Speaker 04:
Before you segue to jurisdiction, what if hypothetically we were to say that under Colorado law, the state law for willful and wanton conduct

[00:18:05] Speaker 04:
requires an awareness that the conduct will cause the danger or, alternatively, that it will probably cause the danger.

[00:18:16] Speaker 04:
Was there evidence in the summary judgment record in which a fact finder could reasonably find that Officer Eberhardt and Dodge knew that this would cause a fire or would probably

[00:18:31] Speaker 04:
cause a fire.

[00:18:32] Speaker 04:
That was absolutely the opposite of what they said in their responses to the admission request.

[00:18:38] Speaker 02:
Sure.

[00:18:38] Speaker 02:
Thank you for that.

[00:18:39] Speaker 02:
If that was the definition of willful and wanton conduct developed by the Colorado Supreme Court, that they did know that it would cause a fire, then that would be one thing.

[00:18:49] Speaker 04:
But that's... But that one thing happens to be one thing that I asked you about.

[00:18:54] Speaker 04:
So not to be mean, but that is my question.

[00:18:57] Speaker 04:
If we find that is the law, do you lose?

[00:19:01] Speaker 02:
No, we don't lose.

[00:19:03] Speaker 04:
So what evidence was there in which, in fact, Funder could find that the two officers were aware that this would cause a fire?

[00:19:12] Speaker 04:
Being flammable and knowing that it will cause a fire are two different things.

[00:19:17] Speaker 02:
The fact that they put these flammable chemical munitions inside of these burn boxes because they knew it would cause a fire.

[00:19:26] Speaker 02:
And so their thought process was, hey, let's take something that's really hot that burns from 600 to 800 degrees where you need a welder's mitt, and let's throw it in a metal box, one that we've never tested, one that we've never experimented on, and just throw it in the house, right?

[00:19:42] Speaker 02:
They knew that the flammable chemical munitions would cause a fire.

[00:19:47] Speaker 02:
And they think that the mitigation is what helps them escape, but it doesn't.

[00:19:52] Speaker 04:
This is the fourth canister that they had done exactly the same thing.

[00:19:56] Speaker 04:
Did the first three canisters in which they put it in these metal blocks cause a fire?

[00:20:02] Speaker 02:
They didn't.

[00:20:03] Speaker 02:
They didn't cause a fire.

[00:20:04] Speaker 02:
But we don't know where those canisters, if they were placed next to flammable materials, that was another part of our request for recognition.

[00:20:12] Speaker 04:
So they didn't necessarily know that just the fact that they're putting the tear gas

[00:20:17] Speaker 04:
in these metal containers in itself would cause a fire because they had three experiences where it didn't, right?

[00:20:27] Speaker 02:
They still knew that this could cause a fire.

[00:20:29] Speaker 02:
Could cause a fire.

[00:20:31] Speaker 02:
Well, if they didn't put it in the burn box, it would cause a fire.

[00:20:35] Speaker 02:
But as I said, I'm sorry, go ahead.

[00:20:39] Speaker 04:
Well, I'm not trying to play games.

[00:20:41] Speaker 04:
They put it in all four of these.

[00:20:44] Speaker 04:
tear gas canisters in these metal boxes.

[00:20:48] Speaker 04:
And I've not tried to monopolize your time, but my question is really simple.

[00:20:53] Speaker 04:
Was there evidence in which the fact finder could find that these two officers knew that putting these tear gas canisters in the metal boxes would cause a fire?

[00:21:08] Speaker 02:
The admissions from the city and county of Denver to this one particular question

[00:21:13] Speaker 02:
was even placing these canisters in a metal box, did the risk of fire still exist?

[00:21:24] Speaker 02:
And the answer was yes.

[00:21:26] Speaker 02:
And also, the Denver Fire Department came back with their own report saying, you can place these flammable chemical munitions inside a metal box, but the risk of the fire still existed.

[00:21:38] Speaker 02:
as well as all the materials that defense technologies provided to the city and county of Denver purportedly that the defendants were aware of that they told everyone do not throw these... So there was evidence that these two officers do of the warnings from DTI and if so, where is that evidence?

[00:22:01] Speaker 02:
The fact is that they admitted that they went through training on these particular canisters.

[00:22:09] Speaker 02:
Those materials came from defense technologies.

[00:22:13] Speaker 02:
In defense technologies materials, it clearly states that they were for outdoor use only.

[00:22:20] Speaker 02:
Now they haven't come across saying,

[00:22:22] Speaker 02:
Well, yeah, we knew this.

[00:22:23] Speaker 02:
We knew that Defense Technology said not to use these indoors.

[00:22:29] Speaker 02:
What they said is that we have received training on this, and the training materials that they received was from Defense Technologies.

[00:22:36] Speaker 03:
But the city, the police department has made a determination that there are circumstances when they're gonna use this product indoors.

[00:22:50] Speaker 02:
I'm sorry, can you repeat that?

[00:22:52] Speaker 03:
These officers were trained by the department that there are circumstances when you can use the product indoors.

[00:23:00] Speaker 03:
That's why there's the metal container, the burn box, right?

[00:23:04] Speaker 02:
I did ask for that.

[00:23:05] Speaker 02:
Did you train them on using these flammable chemical munitions inside of burn boxes to be thrown inside a house?

[00:23:14] Speaker 02:
They said that there was no training materials available for that.

[00:23:20] Speaker 03:
Well, let me try to ask it a different way.

[00:23:24] Speaker 03:
These officers, they weren't just innovating on the run here, were they?

[00:23:28] Speaker 02:
I think they were innovating on the run.

[00:23:31] Speaker 02:
I think that's exactly what happened here.

[00:23:33] Speaker 02:
It was like a bunch of kids with some pretty dangerous materials, and they're like, hey, let's see what happens when we put it in a box and let's throw it in there.

[00:23:40] Speaker 03:
And what part of the record would support that, your position on that?

[00:23:45] Speaker 02:
The fact that they've never received training on this.

[00:23:47] Speaker 01:
Is this the first time they'd ever used burn boxes?

[00:23:50] Speaker 02:
Well, they say that this wasn't the first time that they ever used burn boxes.

[00:23:54] Speaker 02:
One person said that, we've been doing this since 2015, all right?

[00:23:57] Speaker 02:
Then provide me the information.

[00:23:59] Speaker 02:
Provide me the training materials that says that

[00:24:03] Speaker 02:
that defense technologies trained you to use their flammable chemical materials inside of burn boxes to be thrown inside a house.

[00:24:10] Speaker 02:
And they came back, we can't provide you any materials.

[00:24:12] Speaker 02:
So I went to defense technologies, which was also part of the record.

[00:24:15] Speaker 02:
And I said, hey, did you ever let city and county of Denver know that they could disregard your manufacturer warning of not using these flammable chemical munitions inside of a house if they threw it in a burn box?

[00:24:26] Speaker 02:
They came back and said, we never told them that.

[00:24:29] Speaker 02:
And so that's why it becomes an issue of jury of fact.

[00:24:32] Speaker 02:
This becomes an issue of credibility, right?

[00:24:35] Speaker 02:
They want to say, hey, we've done this before.

[00:24:37] Speaker 02:
Look at us.

[00:24:38] Speaker 02:
There's never been a fire.

[00:24:40] Speaker 02:
And we get to come back and tell a jury, you know what?

[00:24:43] Speaker 02:
They admitted there's no training material about this at all.

[00:24:46] Speaker 02:
And defense technologies never told them that they could use this either.

[00:24:49] Speaker 02:
They purposely did this.

[00:24:51] Speaker 02:
And that's where we get to the willful and wanton conduct.

[00:24:55] Speaker 04:
I thought you had just said a couple of minutes ago when you were answering my questions that

[00:24:59] Speaker 04:
the officers knew about what DTI said because DTI had told the city that and that the city had provided the training to these two officers.

[00:25:09] Speaker 04:
But I must have misunderstood because now I understand you to say that the officers did not get this training about what DTI's warnings were.

[00:25:18] Speaker 02:
I asked them for the training material and they said that there was none available.

[00:25:22] Speaker 04:
So did the two officers get

[00:25:25] Speaker 04:
directly or indirectly training that DTI had said not to put these things in metal containers.

[00:25:30] Speaker 02:
And that's where it comes down to an issue of the trial because in the GIGI affidavit, which is part of the record, he said that he did the training.

[00:25:38] Speaker 02:
He was a defense technology certified trainer and that he provided the training.

[00:25:45] Speaker 02:
Well, indeed, if he's the one who provided the training and he is certified by Defense Technology, then we get to ask the questions in front of a jury, wasn't it true that Defense Technologies never said that you could use their products outside of their specification?

[00:25:59] Speaker 04:
Okay, but the question is, are you taking the position that they did get the DTI training?

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

[00:26:07] Speaker 04:
So your position is that the officers did, in effect, get this training from DTI

[00:26:15] Speaker 04:
even though you're saying that they didn't get trained.

[00:26:18] Speaker 02:
Yes, I am saying that they were trained on the specifications of the product and that they operated outside those specifications.

[00:26:29] Speaker 02:
And they've also indicated that they did receive training on the use of these materials.

[00:26:33] Speaker 02:
And this raises the issue of constructive knowledge and I did point out to the court

[00:26:40] Speaker 02:
the US Supreme Court's decision on Intel Corp versus Salema, where they say when a person fails to learn something, a reasonable person, diligent, would have learned, right?

[00:26:50] Speaker 02:
So in their position, a reasonable person, a reasonable, diligent person would have learned about should they have thrown these, or should they have used these products indoors.

[00:26:59] Speaker 02:
They knew that they weren't supposed to use the products indoors, that's why they threw them in a burn box.

[00:27:04] Speaker 02:
Now with respect in my final moments, this is a merit-based case.

[00:27:09] Speaker 02:
This is an issue no longer about the legal aspects of willful and wanton conduct.

[00:27:15] Speaker 02:
That was decided three years ago.

[00:27:17] Speaker 02:
Next week will be three years that the district court decided the issue of willful and wanton.

[00:27:22] Speaker 02:
Now we are in the merits-based aspect of this case.

[00:27:27] Speaker 02:
And this court,

[00:27:29] Speaker 02:
I must say that the defendant, or the appellees here, or appellants, they haven't even talked about the Cohen test.

[00:27:36] Speaker 02:
They haven't discussed whether the district court's denial of their summary judgment motion conclusively determines the disputed questions.

[00:27:44] Speaker 02:
It doesn't.

[00:27:45] Speaker 02:
Wilful and wanton is a fact issue, still must be decided by the jury.

[00:27:48] Speaker 02:
Number two, whether the district court's denial of the summary judgment motion resolves an important issue completely separate from the merits of the action.

[00:27:56] Speaker 02:
Wilful and wanton conduct is entwined in the merits of the action.

[00:27:59] Speaker 02:
and whether the district court's denial of summary judgment motion is unrevealable appeal from final judgment.

[00:28:05] Speaker 02:
A denial of summary judgment is reviewable on appeal from a final judgment, which is one of the cases that you had just before you.

[00:28:12] Speaker 02:
In closing, may I close?

[00:28:14] Speaker 02:
Yeah, you finish up your thought.

[00:28:15] Speaker 02:
Thank you.

[00:28:16] Speaker 02:
In closing, I submit to the court that you don't have jurisdiction over this case because it is merit-based at this point, and it should proceed to a trial, and then they have the ability to appeal after that.

[00:28:28] Speaker 02:
But if you do find that you do have jurisdiction over this case, there's sufficient evidence in the record itself to demonstrate that there is willful and wanton conduct here.

[00:28:42] Speaker 02:
And there is no need for a Trinity hearing.

[00:28:44] Speaker 02:
Thank you very much.

[00:29:08] Speaker 00:
Your Honors, two brief points here in the bottle.

[00:29:12] Speaker 00:
As to the record before the court on summary judgment, Your Honors asked whether or not there was evidence that the officers knew for a fact, and correct me if I'm misstating the statement here, that

[00:29:28] Speaker 00:
the CS canisters, the tear gas canisters, would cause a fire.

[00:29:32] Speaker 00:
And the fact of the matter is that there is not, Your Honors, and that was, of course, plaintiff's burden to introduce that evidence at that point.

[00:29:41] Speaker 00:
What there is evidence of, to the extent that I can help clear this up, is that the officers did receive training in using the burn boxes, and that's from the Adam Gagee affidavit attached to the motion for summary judgment.

[00:29:57] Speaker 01:
There is also a... Was that from the manufacturer, the canister then?

[00:30:03] Speaker 01:
Was that the defense technology trainer?

[00:30:07] Speaker 00:
Your Honor, he is not a member of defense technologies.

[00:30:10] Speaker 00:
He's just an officer at the Denver Police Department.

[00:30:15] Speaker 00:
He may have a certification related to defense technology.

[00:30:20] Speaker 00:
I'm happy to follow up a supplemental briefing on that if the court requests.

[00:30:25] Speaker 00:
But in addition to that, Your Honors, there is evidence that these officers did use these canisters multiple times on the day of the incident in question and indeed before this incident for a few decades even, in that those did not cause fires and that the officers in their own affidavits noted that they had never seen it cause a fire before either.

[00:30:49] Speaker 00:
And that goes directly to the court's question there.

[00:30:53] Speaker 00:
As to my last point, Your Honors, I'll just briefly conclude at this point.

[00:30:59] Speaker 00:
I respectfully request that the Court reverse the District Court's denial summary judgment.

[00:31:05] Speaker 03:
Thank you.