[00:00:00] Speaker 03:
or 25-1139 Driscoll versus City and County of Denver.

[00:00:04] Speaker 03:
Council please proceed.

[00:00:14] Speaker 00:
Thank you your honors.

[00:00:15] Speaker 00:
Jonathan Helfgott on behalf of plaintiff and appellant Michael Driscoll.

[00:00:20] Speaker 00:
In proceedings below, the district court failed to address two of the three events at which plaintiff alleged his constitutional rights were violated by Denver police officers excessive uses of force.

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Looking just at one of those events, the district court granted summary judgment on narrow factual grounds without giving plaintiff the benefit of the reasonable inferences to which he was entitled.

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And in fact, drawing inferences the other way in appellate the city and county of Denver's favor.

[00:00:47] Speaker 00:
Beginning with the event that the district court did address, which the parties have referred to as the 13th and Cherokee events, describing events that took place on May 31st, 2020 outside of Denver police headquarters.

[00:00:58] Speaker 03:
Let me back you up a little bit.

[00:01:02] Speaker 03:
I mean, the district court apparently thought he disposed of those events and, you know,

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for whatever reason, there had been a lot of there had been litigation about individual defendants at those locations, right?

[00:01:19] Speaker 00:
Yes, there's quite a bit of prior procedure.

[00:01:22] Speaker 03:
Right.

[00:01:22] Speaker 03:
And so so those those person, the cases, those events were resolved vis a vis the individuals and the district court went ahead and just made a decision.

[00:01:33] Speaker 03:
And I'm just looking at your opening brief.

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And we have

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you know, in essence, about a page of argument.

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But you don't seem to develop any real, other than saying, look, the district court should have addressed these things and didn't.

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I don't see much about why you were right.

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You think you had a burden to do that?

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Or do you just need to say, hey, we had these other claims.

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District court didn't address them.

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I mean, because he did address them.

[00:02:07] Speaker 03:
He ruled against you.

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He just didn't have any real analysis to go with it, right?

[00:02:14] Speaker 00:
Well, he ruled against plaintiff on causation grounds.

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And as to those events, causation was not at issue.

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Now, had there been and... Well, a judgment was entered on the whole case.

[00:02:25] Speaker 00:
Correct, but without addressing these events.

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But I would further direct the courts to Denver's summary judgment motion.

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Denver did not seek summary judgment as to those events either.

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In its summary judgment motion, Denver incorrectly

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Asserted that the plaintiffs only claim against the city of Denver was for failure to train the district court.

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Flatly disagreed with Denver in its order and note 17 of its summary judgment order acknowledging that all of plaintiffs claims were asserted against the city and county of Denver, including the claims based on what we've called the 13th and Lincoln event and the Colfax and Clarkson.

[00:03:02] Speaker 00:
Now, addressing the 13th and Cherokee event, and I'm happy to continue with those events.

[00:03:08] Speaker 00:
No, go ahead.

[00:03:08] Speaker 02:
Well, if we agree with you that those weren't addressed properly, don't we have to remand?

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I mean, there's just not enough here for us to, nor should we be making the decision in the first instance.

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plaintiff certainly agrees with that position.

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But to the extent Denver would argue for some sort of limited remand, I do think we should address the 13th and charity event as well, because we would strenuously disagree with that position.

[00:03:35] Speaker 01:
So as to, I know you were going to move to the Cherokee, but as to the district courts, the allegation of error, the district court didn't address the Lincoln and Clarkson events.

[00:03:47] Speaker 01:
Can you help me understand what the

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the legal issue is here, because saying that the district court didn't look at some allegations at summary judgment doesn't really resonate as the operative error.

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It has to be that the district court ignored some body of evidence that you contend created a genuine issue, a jury issue on your claims as to these events.

[00:04:14] Speaker 01:
Is that?

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Right?

[00:04:15] Speaker 00:
Absolutely, Judge Rossman.

[00:04:17] Speaker 00:
And as to each event, plaintiffs claim, based on Monell, is that Denver official policies created an environment where Denver police officers felt free to use and did use excessive force with impunity.

[00:04:32] Speaker 03:
So where is that in your opening brief on that issue?

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In our opening brief, we describe

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the use of force policy and the body worn camera activation policy at length, and point to the unrebutted testimony presented at summary judgment of plaintiffs expert, Professor Edward McGuire.

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Testimony that the district of Colorado in another case, Epps versus the city and county of Denver found was sufficient to survive summary judgment pointing specifically at these same two policies.

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Those policies, I'll remind your honors, were with respect to uses of force reports.

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Denver did not require the completion of use of force reports close in time to the events they described for protests.

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That was a wholesale matter of affirmative policy of the city and county of Denver.

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Nor did Denver require activation of officers' body-worn cameras during protests.

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And for Denver's SWAT officers, many of whose actions are at issue in the events that led to the violation of plaintiff's constitutional rights,

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In a case of doublespeak, or call it a catch-22, Denver's written policy was that SWAT officers did not need to activate their body-worn cameras during so-called tactical deployments.

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But there's testimony in the record from multiple such officers that any time Denver SWAT was deployed, that was considered a tactical deployment.

[00:05:51] Speaker 01:
Go ahead.

[00:05:52] Speaker 01:
And what was your expert offer to advance?

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What was the expert evidence for?

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to advance the causal link between those affirmative written policies and the constitutional violations at issue.

[00:06:05] Speaker 01:
And the district court never reached the substance of Denver's motion to exclude because it thought it was moot at that point, right?

[00:06:12] Speaker 01:
Okay, so that would be appropriate to consider.

[00:06:15] Speaker 03:
Correct.

[00:06:18] Speaker 03:
And my and my question was what you just what you were just saying about that various evidence and in your position on that that was that was common to all three locations.

[00:06:29] Speaker 03:
Okay, and the district court.

[00:06:34] Speaker 03:
I mean, it was it was expounded on by the district court as to the 13th and Cherokee.

[00:06:42] Speaker 00:
Yes, it was.

[00:06:43] Speaker 03:
Location, OK.

[00:06:44] Speaker 00:
It just simply was not at issue in the summary judgment record because Denver misidentified plaintiff's claims and incorrectly assumed that the claims based against the, asserted against the individual officers had nothing to do with the city and county of Denver, an assertion the district court disagreed with and an assertion that was flatly wrong.

[00:07:00] Speaker 00:
OK, thanks.

[00:07:02] Speaker 00:
Turning to the 13th and Cherokee event.

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Based on the evidence presented in proceedings below,

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A reasonable jury could conclude, first, that the officers located in the parking lot diagonally across from protesters were Denver SWAT officers, and second, that one of those officers fired the less lethal munition that caused plaintiffs severe and life-changing injuries.

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The first conclusion is simple and amply supported by evidence presented below.

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Denver denied its officers were present at the event at all, but the evidence shows otherwise.

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A use of force report prepared by Denver SWAT officer Craig Mowen put his Denver SWAT team, Metro 3, at the 13th and Cherokee event.

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From the video of the event, and this is in conventionally submitted exhibit 191, there are two groups of officers seen participating in the ultimate altercation with protesters.

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One group formed a skirmish line across the road, about a third of a block in front of the protesters, and another group in the parking lot diagonally across the street.

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Now, according to Denver,

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Aside from a single Denver police officer, Sergeant Stack, that skirmish line consisted entirely of officers from Jefferson County or Jeffco.

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Now, Your Honors, if both Denver SWAT and Jeff co-officers were present at the event and the skirmish line were Jeff co-officers, the only place the Denver SWAT officers could have been was in that parking lot.

[00:08:38] Speaker 01:
So let's assume for argument's sake that we spot you, that the summary judgment evidence shows a jury question on the Denver officers were on the scene

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and fired, and then that leaves us still with the question of whether the summary judgment evidence shows a genuine dispute that something fired by a Denver officer is what actually injured your client.

[00:09:10] Speaker 01:
And on that point, I'd like you to describe what you understand to be the applicable legal standard and then tell me how you satisfy it.

[00:09:20] Speaker 00:
To my mind, the applicable legal standard is whether a reasonable jury viewing the evidence that the district court reviewed and the plaintiff presented could draw the reasonable inference that that was the case, that plaintiff was struck by ammunition fired by one of the- What is the doctrine?

[00:09:37] Speaker 01:
What guides the inquiry on causation?

[00:09:40] Speaker 01:
Don't we have case law that describes how you satisfy, how we assess the facts according to the legal standard?

[00:09:49] Speaker 00:
Well, according to Valdez and McDonald and Burke versus the city of Oklahoma City and Valdez the court reason that the burden was to bring causation above a speculative level Burke went even farther Burke pointed to allegations mere allegations that.

[00:10:06] Speaker 00:
the injury in question, the injury alleged was caused by the identified officer.

[00:10:11] Speaker 01:
Haven't we held that only, if it's 50-50, if it's an equipoise, then that's not enough.

[00:10:19] Speaker 01:
Is that your understanding of the legal standard?

[00:10:22] Speaker 00:
That's correct.

[00:10:22] Speaker 01:
Okay, and so go ahead.

[00:10:25] Speaker 00:
Our position is that this is far from a 50-50 proposition, and this was made clear by causation arguments the plaintiff raised in summary judgment briefing and that the district court ignored

[00:10:34] Speaker 03:
But could a reasonable jury find that Jeffco fired the shot that hit your client?

[00:10:39] Speaker 00:
I don't believe so, Your Honor.

[00:10:42] Speaker 00:
Well, why not?

[00:10:43] Speaker 00:
Well, Denver, in its answering brief, pointed to evidence of muzzle flashes from the Jeffco skirmish line.

[00:10:49] Speaker 00:
Those happened at minute 1013 in exhibit 191.

[00:10:52] Speaker 02:
But you, to accept your position, we have to assume that the officers on the roof were all Denver officers, right?

[00:11:05] Speaker 00:
Well, assume or agree with plaintiff's position that the evidence permits that reasonable inference.

[00:11:11] Speaker 02:
Well, how, I mean, I look at that video and you have, first of all, I'm not sure we get to look at exhibit 213.

[00:11:20] Speaker 02:
I mean, it wasn't submitted until the motion to alter or amend judgment.

[00:11:27] Speaker 02:
So you've got one truck goes in, which everyone says is a Jeffco truck.

[00:11:34] Speaker 02:
And then behind it is another truck that without 213, I don't think you can tell.

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whose truck it is.

[00:11:41] Speaker 02:
And then you have not a continuous feed, a video, and you have some officers going down an alley, some officers walking towards the skirmish line and some officers disappear inside.

[00:11:55] Speaker 02:
It looks like a building.

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And then some officers appear later on the roof.

[00:12:02] Speaker 02:
How do we know if those are Jeff co, how do we know who those people are on the roof?

[00:12:10] Speaker 00:
Well, Your Honor, I don't think Denver pointed to any evidence that would be sufficient to meet the summary judgment standard that any Jefferson County officer went up to the parking lot.

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Conversely, it is undisputed and plaintiff never disputed.

[00:12:24] Speaker 00:
Well, what Denver said and what plaintiff has not disputed is that only Jefferson County officers were on the skirmish.

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So at a minimum, it is reasonable to infer.

[00:12:34] Speaker 02:
Well, just because only Jeffco officers are on the skirmish line doesn't mean that all Jeffco officers were on the skirmish line.

[00:12:49] Speaker 00:
That's true, Your Honor, but it does mean that the Denver officers who were there had to be somewhere else.

[00:12:53] Speaker 00:
And the only other group of officers.

[00:12:55] Speaker 02:
We assume Denver officers were there.

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And the only way you get there is if we look at exhibit 213 and decide that the trucks look similar.

[00:13:09] Speaker 00:
Well, I would disagree with you respectfully, Your Honor.

[00:13:12] Speaker 00:
Officer Moen's report said that his SWAT team was there.

[00:13:16] Speaker 00:
He said that it was at police headquarters

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on the night of May 31st, 2020, and described an altercation that is entirely consistent with the video evidence of the altercation at which plaintiff was injured.

[00:13:30] Speaker 00:
Your Honor, I would like to reserve some time for rebuttal.

[00:13:32] Speaker 03:
Okay.

[00:13:33] Speaker 03:
Judge Rosman, do you have anything else?

[00:13:34] Speaker 03:
No, thank you.

[00:13:36] Speaker 03:
Go ahead.

[00:13:36] Speaker 03:
We'll reserve the rest.

[00:13:44] Speaker 04:
And the rest layers for Denver.

[00:13:46] Speaker 04:
The court should affirm for three reasons.

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First, there's no evidence Denver's policies on body worn cameras or use of force reports contributed to Mr. Driscoll's injuries in any way, let alone approximately cause them.

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Second, there's no evidence those policies were enacted with deliberate indifference, which was required for all Monell claims that involve policies that are lawful on their face.

[00:14:11] Speaker 04:
And finally, third, with respect to the 13th and Cherokee incident event, Mr. Driscoll failed to put forth material facts that connect a Denver officer to his injury.

[00:14:25] Speaker 03:
Well, he had Officer Mullen at the scene.

[00:14:31] Speaker 04:
I don't think he did.

[00:14:31] Speaker 04:
I know he did not.

[00:14:33] Speaker 04:
Mowen's report says that he went to headquarters that evening, that night.

[00:14:37] Speaker 04:
He doesn't have a specific location and he doesn't have a specific time.

[00:14:40] Speaker 04:
He could have been anywhere around the area.

[00:14:42] Speaker 03:
I mean, isn't he entitled to an inference that if Mowen was there with his team that, and it was describing an incident that that was the incident?

[00:14:54] Speaker 04:
No, he's entitled to reasonable inferences.

[00:14:57] Speaker 04:
For example, in exhibit 192,

[00:15:00] Speaker 04:
After Mr Driscoll's injury, the Denver officers join Jeff Coe's skirmish line and continue to move out and disperse the protesters and fire munitions at the protesters to disperse them.

[00:15:13] Speaker 04:
Who's to say Moen wasn't that group?

[00:15:16] Speaker 04:
There's nothing that places Moen in that parking lot.

[00:15:22] Speaker 04:
And to Judge McHugh's early point, we don't even get to assume Denver is in that parking lot without exhibit 213.

[00:15:32] Speaker 04:
And even if we consider that, and the Denver Bearcat did drive up shortly before the injury, who's to say that those officers are in the parking lot?

[00:15:43] Speaker 04:
We don't know.

[00:15:44] Speaker 04:
There's too many unknowns.

[00:15:46] Speaker 04:
jumping back to Denver's.

[00:15:49] Speaker 03:
How how is he ever supposed to?

[00:15:51] Speaker 03:
I mean, how is he ever supposed to prove a claim?

[00:15:54] Speaker 03:
You have two sets of officers out there firing into the crowd.

[00:15:57] Speaker 03:
The evidence is very difficult to muster to.

[00:16:03] Speaker 03:
I mean, nobody can tell who's whose munitions are hitting who.

[00:16:07] Speaker 03:
He knows they were both firing.

[00:16:10] Speaker 03:
We have evidence that both Jeffco and Mullen were firing.

[00:16:16] Speaker 03:
At least at some point.

[00:16:17] Speaker 03:
So I mean, how is he ever supposed to prove his case under your theory?

[00:16:21] Speaker 04:
Well, it's not my theory.

[00:16:22] Speaker 04:
It's this court's theory.

[00:16:24] Speaker 04:
Under Valdez.

[00:16:25] Speaker 03:
We don't have theories.

[00:16:27] Speaker 04:
Under this court's law.

[00:16:28] Speaker 04:
Under this court's law.

[00:16:30] Speaker 04:
Under this court's law, Valdez, that's exactly what happened.

[00:16:33] Speaker 04:
Two different officers fired.

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We didn't know which bullet, which officer struck the individual.

[00:16:38] Speaker 04:
And that's why they lost.

[00:16:41] Speaker 04:
To come up with an analogy,

[00:16:44] Speaker 04:
in which he could potentially defeat summary judgment.

[00:16:47] Speaker 04:
Let's say that it was Denver in the skirmish line, not Jeffco, Denver in the parking lot.

[00:16:54] Speaker 04:
Then sure, I would get up here and argue that no, that's not enough.

[00:16:57] Speaker 04:
Maybe it's a protester, something like that.

[00:16:59] Speaker 04:
But if that situation happened, potentially that could defeat summary judgment.

[00:17:03] Speaker 03:
It seemed to me that everybody agreed that he was hit with a munition.

[00:17:07] Speaker 03:
Was there any evidence?

[00:17:08] Speaker 03:
I mean, there was also evidence that rocks and bottles and different things were flying around.

[00:17:12] Speaker 03:
Is there evidence in the record as to what he was hit with?

[00:17:15] Speaker 04:
There is no evidence.

[00:17:16] Speaker 04:
We don't know.

[00:17:17] Speaker 04:
And we do not agree it was hit with the munition.

[00:17:19] Speaker 04:
We argued in our summary judgment motion it could have been a rock from the protesters, which Jeff Coe's sergeant in the skirmish line testified at deposition that protesters were throwing rocks.

[00:17:30] Speaker 04:
And that's why they deployed munitions to disperse the crowd.

[00:17:35] Speaker 02:
His best evidence seems to be the report from Officer Mowen.

[00:17:42] Speaker 02:
I mean, isn't it true that that puts the Denver Police Department at the scene?

[00:17:49] Speaker 02:
And you focus on that, you know, he fired around at someone who was throwing objects at the police.

[00:17:59] Speaker 02:
But he says he fired at least one direct impact round.

[00:18:05] Speaker 02:
It could have been one of the other ones who fired that hit the plaintiff.

[00:18:11] Speaker 04:
No, two parts.

[00:18:13] Speaker 04:
First, no, as argued earlier, it does not put Mo on at the scene.

[00:18:18] Speaker 04:
He could have been at another event.

[00:18:19] Speaker 04:
He could have followed up later.

[00:18:20] Speaker 02:
Well, he says he's at 10 quarters, right?

[00:18:23] Speaker 02:
And that's what we're talking about.

[00:18:26] Speaker 02:
The administrative building right headquarters and it's in the evening.

[00:18:33] Speaker 02:
Correct and he's dealing with a large crowd of protesters.

[00:18:41] Speaker 02:
I mean, isn't there a reasonable inference that he's talking about this group?

[00:18:49] Speaker 04:
No, to have it reasonable, we need a specific location and time.

[00:18:54] Speaker 04:
The protests were huge.

[00:18:55] Speaker 02:
Where do you get that?

[00:18:57] Speaker 02:
That you have to have a specific location and time to have a reasonable inference?

[00:19:10] Speaker 04:
I would guess coming back to the speculation case.

[00:19:12] Speaker 02:
You wouldn't need an inference if you had a specific location and time, right?

[00:19:18] Speaker 04:
Well, I would say if he had a specific time and location, then maybe we could talk about is it in the parking lot incident or is it later on when the Denver officers joined and advanced the crowd further down the road, something like that.

[00:19:31] Speaker 04:
But just saying, hey, I was at headquarters this evening and it must have been this event, that's speculative.

[00:19:37] Speaker 03:
What does the record show as to what else?

[00:19:40] Speaker 03:
I gleaned from the briefing that there were other things going on around headquarters.

[00:19:45] Speaker 03:
It wasn't just at this particular incident that there were things going on at headquarters that night.

[00:19:51] Speaker 03:
But I don't think it was very definitive.

[00:19:54] Speaker 03:
Can you expound on that?

[00:19:56] Speaker 04:
Yeah, absolutely.

[00:19:57] Speaker 04:
And as a prelude to this, to prevail, plaintiff needs to prove that Denver's policies on body-worn camera and use of force reports

[00:20:07] Speaker 04:
were the proximate cause for his injuries.

[00:20:09] Speaker 04:
So let's say for the sake of argument, a Denver officer or he was injured by a Denver officer.

[00:20:14] Speaker 04:
Fine.

[00:20:15] Speaker 04:
That does not mean plaintiff prevails.

[00:20:17] Speaker 04:
He needs to connect it to Denver's policies and show that they were enacted with deliberate indifference.

[00:20:22] Speaker 02:
And the district court ruled on a different ground.

[00:20:26] Speaker 02:
The district court ruled that he couldn't even show that a Denver officer was present at the scene or fired the round that hit him.

[00:20:37] Speaker 02:
Right.

[00:20:39] Speaker 02:
The basis for the district court decision.

[00:20:43] Speaker 04:
Correct.

[00:20:44] Speaker 04:
But under Walton, the court can affirm on alternate grounds when the grounds are adequate, apparent in the record, and sufficiently illuminated by counsel on appeal.

[00:20:54] Speaker 04:
The grounds are adequate because there is no nexus between Denver's policies and Mr. Driscoll's alleged injury.

[00:21:02] Speaker 04:
apparent in the record because the parties fully briefed the issue below.

[00:21:05] Speaker 04:
It's perfectly teed up for the court and council has illuminated it in the briefs and here at our oral argument.

[00:21:12] Speaker 04:
If the court does decide to remand, whoever loses, whichever side loses is going to appeal and we'll find ourselves right back here two years later.

[00:21:20] Speaker 03:
How about the use of force policy?

[00:21:22] Speaker 03:
I mean, there's a nexus there, isn't it?

[00:21:24] Speaker 03:
If we assume that it was a Denver officer,

[00:21:28] Speaker 03:
that shot the munition and hit the plaintiff, then don't we have, I mean, pursuant to the use of force policy, I mean, don't we have a connection to the policy?

[00:21:38] Speaker 04:
No.

[00:21:38] Speaker 04:
Denver's use of force policy was that any time an officer used force, that officer was required to detail that force in a report, saying what force was used, why, the circumstances behind it.

[00:21:50] Speaker 04:
And looking at Mr. Driscoll's encounters with police,

[00:21:54] Speaker 04:
So that policy has nothing to do with the officer's decision to deploy force.

[00:21:59] Speaker 04:
For example, at Colfax in Lincoln, officers deployed tear gas after protesters were throwing water bottles at them, launching fireworks, and the canister that landed near Mr. Driscoll was launched only after someone standing next to Mr. Driscoll bent down, picked up an object, and threw it at the police officer.

[00:22:20] Speaker 04:
That's what caused the officer to deploy forest or tear gas, not anything with Denver's policies.

[00:22:26] Speaker 04:
The same is true at Colfax and Clarkson, which didn't even involve Denver's officers.

[00:22:30] Speaker 04:
That was Brighton and Commerce City officers who were under their own policies.

[00:22:34] Speaker 01:
Why aren't these arguments most appropriately made to the district court in the first instance?

[00:22:39] Speaker 04:
They were made to the district court, and that's why it's apparent in the record.

[00:22:42] Speaker 04:
It's perfectly teed up for this court.

[00:22:44] Speaker 04:
The arguments are there.

[00:22:47] Speaker 01:
The arguments are there, but the district court just ignored them for a reason we don't know.

[00:22:53] Speaker 04:
Correct.

[00:22:54] Speaker 04:
It seems the district court apparently may have forgotten to complete the analysis, but this court can finish.

[00:23:02] Speaker 02:
Turning back to the Cherokee incident, one of the arguments that Mr. Driscoll makes is that you can tell the shot that hit him

[00:23:12] Speaker 02:
came from the roof because of how he's holding his plywood sign that he's protected.

[00:23:20] Speaker 02:
And if you look very slowly and carefully at each of the frames, it is clear that he keeps it in front of him so that he would be protected from shots from the skirmish line.

[00:23:33] Speaker 02:
And their argument is the area where he was vulnerable was coming in to the side

[00:23:39] Speaker 02:
and down, which would be from the roof.

[00:23:43] Speaker 02:
Is that enough for a reasonable inference, at least not who shot, but that it came from the roof?

[00:23:50] Speaker 04:
No, there's several reasons there.

[00:23:52] Speaker 04:
I also have looked very closely at the frames and it seems that his head appears above and below it at multiple times.

[00:23:58] Speaker 04:
So it could have been coming from the skirmish line.

[00:24:01] Speaker 04:
Again, we have the video evidence from the helicopter night vision that shows the munitions coming.

[00:24:07] Speaker 04:
Mr. Driscoll's argument that

[00:24:09] Speaker 04:
It happened later is not persuasive because later the crowd had already been dispersed.

[00:24:16] Speaker 04:
Secondly, that is very technical argument or analysis that would require something like an expert.

[00:24:25] Speaker 04:
Would the trajectory depend on the type of munition?

[00:24:28] Speaker 04:
Was it a 40 millimeter foam round?

[00:24:30] Speaker 04:
Is it a bean bag?

[00:24:31] Speaker 04:
We have no idea.

[00:24:33] Speaker 04:
So to say that it was fired from, I don't know, maybe a hundred yards away and we don't know what, and based on the way his head move, it had to come from the parking lot.

[00:24:43] Speaker 04:
That is not persuasive.

[00:24:45] Speaker 02:
Well, it doesn't have to be ultimately persuasive.

[00:24:49] Speaker 02:
It just has to be a reasonable inference, right?

[00:24:52] Speaker 02:
I should have used my, change the other word.

[00:24:54] Speaker 04:
That is not reasonable.

[00:24:58] Speaker 04:
And.

[00:25:00] Speaker 04:
Jumping back to Colfax and Washington, which did involve Denver officers, there, oh, and again, I didn't mention that Colfax and Clarkson, the officers were saying, rock incoming, rock, rock, rock, and then they deployed pepper ball munitions.

[00:25:17] Speaker 04:
Again, those are Brighton and Commerce City.

[00:25:20] Speaker 04:
At Colfax and Washington, Denver officers, they deployed force at Mr. Driscoll's plywood sign that's caught on body worn camera,

[00:25:28] Speaker 04:
You hear him say, that guy behind the plywood sign, Mr. Driscoll, he's kicking shit back at us.

[00:25:33] Speaker 04:
He's kicking shit back at us.

[00:25:34] Speaker 04:
Then they deploy force.

[00:25:36] Speaker 04:
Mr. Driscoll kicking things is what made the officers use force, not Denver's policies.

[00:25:44] Speaker 04:
And as noted, he needs to prove deliberate indifference.

[00:25:48] Speaker 04:
The policies were enacted with deliberate indifference.

[00:25:51] Speaker 04:
He points to Waller to say otherwise, that it only applies to failure to train and supervise.

[00:25:57] Speaker 04:
But in Waller, they say it applies at least to failure to train and supervise.

[00:26:04] Speaker 04:
Later in Finch v. Rep, this court applied deliberate indifference to policies on discipline.

[00:26:14] Speaker 04:
And again, in Lucas versus Turner Key Health Clinics,

[00:26:19] Speaker 04:
The court applied delivered indifference to all Monell claims, and that was for medical cost savings.

[00:26:25] Speaker 04:
Just last year in Griffith versus El Paso County, the court applied delivered indifference to policies on gender classification.

[00:26:34] Speaker 04:
It's also consistent with the US Supreme Court framework in city of Oklahoma City versus Tuttle and Board of County Commissioners versus Brown, where they noted that the only reason deliberate indifference wasn't in Monell, the initial case, is because it was unconstitutional on its face.

[00:26:52] Speaker 04:
And then later applied deliberate indifference to all claims in Gesper versus Lago Vista.

[00:26:59] Speaker 04:
And that's consistent with this second circuit the DC circuit and the seventh circuit which analyze the issue, and all come out that way.

[00:27:06] Speaker 04:
Every single other circuit has a case.

[00:27:09] Speaker 04:
case law, overwhelming case law, that says deliberate indifference applies to all claims.

[00:27:15] Speaker 04:
Really, in theory, technically, it isn't analyzed for facially unconstitutional policies, because if a policy is unconstitutional on its face, then obviously it is enacted with deliberate indifference.

[00:27:28] Speaker 04:
So yes, he needs to prove deliberate indifference, and he is not.

[00:27:35] Speaker 04:
I want to rebut a few things that were made earlier about nothing in the record for no body worn cameras at the protests.

[00:27:43] Speaker 04:
That's inaccurate.

[00:27:44] Speaker 04:
Denver's policy was that officers needed to wear the cameras for the duration of their shifts and record them for all interactions with pedestrians with a particular emphasis to record it if the encounter could become adversarial or was adversarial.

[00:28:00] Speaker 04:
The citation that it's not required for protesters or for officers, it comes from a SWAT sergeant technician who said it isn't required for SWAT.

[00:28:13] Speaker 04:
He doesn't say for officers.

[00:28:14] Speaker 04:
And again, that's just an opinion of a low-level employee, kind of boxed in in a deposition.

[00:28:19] Speaker 04:
There's nothing coming from

[00:28:20] Speaker 03:
final policy maker higher ups in Denver that say officers did not need to use body worn camera and that also so you're saying that the officer's testimony that the SWAT was not required to use their body worn testimony is is actually contradicts the official policy.

[00:28:38] Speaker 04:
It does contradict the official policy and there's also loads of body worn camera footage in this case.

[00:28:44] Speaker 03:
Okay, thank you.

[00:28:46] Speaker 03:
Council Judge McHugh.

[00:28:48] Speaker 03:
You have anything else to trust me?

[00:28:52] Speaker 03:
Good.

[00:28:54] Speaker 00:
He would go.

[00:28:57] Speaker 00:
Thank you, Your Honor.

[00:28:58] Speaker 00:
Briefly addressing the last thing that my colleague from the city of Denver just said.

[00:29:02] Speaker 00:
The body worn camera activation policy for SWAT was a matter of official written policy.

[00:29:07] Speaker 00:
And we cite in our opening brief to the page and paragraph.

[00:29:10] Speaker 00:
I don't have the page at my fingertips, but it was paragraph 10b.

[00:29:14] Speaker 03:
Say it again.

[00:29:15] Speaker 00:
It was a paragraph 10b, but I couldn't tell you off the top of my head.

[00:29:21] Speaker 00:
I do want to call Your Honor's attention to the fact that the arguments about not linking the events that the district court did not address to official policy were not teed up in summary judgment proceedings below.

[00:29:33] Speaker 00:
This is a new argument raised on appeal because Denver misidentified plaintiff's claims.

[00:29:37] Speaker 00:
Denver believed.

[00:29:37] Speaker 00:
And to the extent arguments were made at all, they were only made with respect to a failure to train theory.

[00:29:44] Speaker 00:
I'd like to talk about two other things.

[00:29:48] Speaker 00:
First, the inferences that Denver is urging your honors to make in its favor, beyond those already made by the district court to conclude that Officer Moen could have been somewhere else.

[00:29:57] Speaker 00:
Denver had access to all of the raw halo footage Denver produced in its exhibit 00, which I misidentified in our reply brief, and I apologize, it's exhibit W. Halo footage from each of the four corners surrounding Denver police headquarters for an hour before to an hour after the event.

[00:30:14] Speaker 00:
There is absolutely no indication in that evidence that any other altercation happened consistent with the events described by Officer Moen.

[00:30:23] Speaker 00:
Moreover, Officer Moen put those events after the curfew order.

[00:30:26] Speaker 00:
That was at 8 PM.

[00:30:28] Speaker 00:
He did other things after the curfew order that only began after several announcements.

[00:30:32] Speaker 00:
His description is perfectly consistent with events that happened at 10, 10 PM.

[00:30:38] Speaker 00:
And finally, on the question of causation, if you'll permit me just a moment more.

[00:30:41] Speaker 00:
Go ahead.

[00:30:42] Speaker 00:
I just want to issue one clarification that it's plaintiff's position that he could have been struck from someone in the parking lot or atop the structure.

[00:30:49] Speaker 00:
There were three officers in each location by the time he was struck.

[00:30:53] Speaker 00:
But Your Honors, and it's difficult to see, and it's directly contrary to one of the conclusions the district court drew, but two seconds before it is clear that the plaintiff has been injured in exhibit 191, in a narrow gap

[00:31:07] Speaker 00:
an officer is walking from right to left across the frame between the street sign that says 13th Avenue and the street pole holding it up.

[00:31:14] Speaker 00:
You can see two muzzle flashes from the direction of the parking lot and two seconds later plaintiff is seen bending over crying and

[00:31:23] Speaker 03:
Can we identify the officer from that footage?

[00:31:25] Speaker 00:
You can't.

[00:31:26] Speaker 00:
We have to rely on the reasonable implements.

[00:31:29] Speaker 03:
So we have to infer that it was not a Jeffco officer and that it was those shots that hit him.

[00:31:38] Speaker 00:
Correct, Your Honor.

[00:31:39] Speaker 00:
And in light of these inconsistent policies on body worn camera activation,

[00:31:43] Speaker 00:
The best we can do is the best we can do from the video evidence we have.

[00:31:46] Speaker 00:
Frankly, I think it's a miracle that it's as strong as it is given that those officers weren't activating their body worn cameras, but we believe it is more than sufficient.

[00:31:53] Speaker 03:
Thank you, counsel.

[00:31:55] Speaker 03:
Your case will be submitted and counselor excused.