mr bryant are you ready to begin i am your honor twelve at three thirty am treats other new travel police officers use stealth blackout tactics to approach plaintiff's rule home which concealed their police identities and scared plaintiff into believing the officers were dangerous getting members committed earlier certain confrontation at his home and went back for revenge after seeing the dark colored s u v that looked similar to the gang members turn off a ted light and dri slowly past his house plaintiff obtained back from them from inside the home and watch from strung yard as the darkly clad figures approaches home on foot and the directly clad figures appeared intent to trespass onto his family property and were immediately in front of the home plaintiff ran toward then yelling with a baton hand in order to scare them off you can turn away to run back home and officer shot him in the back plaintiff asserted constitutional claims pursuant to the th amendment negligence claims pursuant to the f t c a in colorado law the constitutional claims were deemed close to the facts in light be poly and were dismissed based on qualified immunity more negligent than the officer stealth approach and preclude liability in defendant's basement germination a point this kind that constituted an intervening cause that group chain of causation we are asking this court to overturn the district court order primarily because the district court failed to recognize and apply important principles of colorado negligence law district court erred in forming ways that we'd like to discuss today st that your court failed to trespassing nd the district court failed to consider or apply colorado's broader scope of risk analysis to test whether i think it's intervene team intervening force was truly an intervening cause sufficient to preclude order and which is going to become problematic for a court assessing how it negligent the parties were in this case deficient to making a decision that would otherwise require something other than  target on the st three issues on what basis do you say that the judge did not consider those legal principles well your honor st and foremost there's no mention of colorado law anywhere in the judge's six page order except as it pertains to colorado comparative negligence the court simply finds that colorado law says if it points if it's more negligent defendant then plaintiff some indication in what the judge said that he was not following those statutes not considering the bat yes your honor we can look to the substance of the negligence analysis to if the court had considered it he would have indicated how far he strayed from the right to forward in the statute or how far he strayed from the standard of care the court was considering but the court did not do that and instead the court simply declared that mr martinez was completely negligent or morning with them the officers and running towards the officers with the bat in hand and that conduct is exactly the type of conduct that is protect well he has a right to use under the statute so since the court fall to plaintiffs for engaging in conduct that would be protected in this statute without any mention of the statute or how his conduct differed from the statute we can conclude that he did not consider the statute the same holds true for the scope of risk analysis the court with event need to examine the scope of risk in order to make a determination about whether or not clinton's conduct was truly an intervening cause colorado law it's clear that intervening forces do not absolve defendants from injury to plaintiffs when it was a natural and probable consequence of defendant's conduct county sorry sorry to interrupt i'm going to ask you i want to take you back to the discussion you were having with  somebody is justified in using reasonable and appropriate physical force upon another person what's the standard for determining whether the force your client used was reasonable and appropriate under your argument well i think that force which would be reasonable and appropriate to scare away the intruders would be saying reasonable since there was no actual use of force here it was only the threat of force plaintiff never contacted the officers whatsoever and in fact after he started running towards the officers and yelling to make that stretch with the bat he then turned away and ran back home and was actually shot in the back so i think that since the statute affords a right to use force certainly a threat of force would be considered reasonable under these types of circumstances two percent permits the use of deadly force as well but since there is a threat i think it's clear that it was reasonable under the circumstances  not intended to cause serious bodily injury to prevent intrusion on the actor's land yes don't you think that running at somebody with a basket be construed as courts have said that statute allows the use of deadly force or force that would cause serious bodily injury you know unfortunately your honor we could not find a case i could not find in a case in my research that specifically justified in using physical force but in that case for self defense so according to the value that at the at the common law they amount to force you can use to repel i'd attack near a person  has historically been a higher level will allow of course than for protecting property would you agree with that you said would your own ok and i guess what i'm getting at is we have to have something that is the the level of course that's appropriate under this statute to define the term reasonable and appropriate force and i was just wondering why the common law  moment but there are considerations of going in with in the statute and the court did not examine notes so that's another reason may be sure the court didn't apply it  brother threshold question why don't we lacked jurisdiction in this case under the discretionary function exception to the federal tort claims  i'm not sure which you mean to give me a little more to go on holiday but there is a federal park claims act playing correct for negligence correct and the discretionary function an exception in the act is an exception to the government's waiver of sovereign immunity and my question is why do we have jurisdiction here why isn't this a discretionary function exception type of case i think i understand what you mean are you talking about tw and i'm come just wondering why we have jurisdiction here why wasn't this a discretionary act that's policy based i think is a disk i unfortunately are and i have i wouldn't be able to attend to that without the briefing we did brief it extensively on the court did make a determination on it i just did not prepare that for argument today and i thought yes i would need to reference the case law to be able to to address it ok let me just ask you one other question about what the stats of property act japanese colorado cases where the act has been considered in assessing for c ability or comparative negligence  i am your mark your honor good morning thank you please the courts i am kyle brenton on behalf of the united states after hearing five days of testimony the district court concluded that the approach that the tactics the three officers used in approaching the martinez home the night of the shooting were not unreasonable the court acknowledged that the stealth approach tactics used could create a risk of confusion and confrontation with the property owner but help but in light of the purpose of those tactics to protect officer safety and the potentially dangerous nature of the call using the tactic did not breach a duty of care the court  found no negligence attributable to the officers moreover the court concluded that martinez's conduct in leaving the property charging into the public road and ambushing the officers with the bats was not reasonably foreseeable to the officers and was more negligent than any tom ducked on the part of the officers even if their conduct had been negligent and those conclusions were correct and the judgment in favor of the united states should be affirm now i would like to address martinez's argument regarding colorado sex statutes section eight hundred s one best avenue of phys ed is argument regarding the scope of the risk though of course to the extent the court has questions about other arguments and happy to address those as well before i begin i will address judge matheson's question regarding the discretionary function exception to the federal tort claims act because that obviously is a significant issue for the court's jurisdiction there was a substantial briefing before the district courts in if you take an own somewhat tortured procedural history there are originally two cases raising different claims they were ultimately consolidated at this case there was briefing regarding whether the x the us politics that sion to the f t c a bar jurisdiction the district court concluded that that that it did bar in a sole on assault claim but not a negligence claim in the end the united states did not assert  discretionary function defense and so that issue was was never addressed in the district court because that defense was not asserted to be extent the court would like supplemental briefing on that issue to address that we are of course mean that that's obviously an essential issue here so if you could submit started within ten days if you like on the discretionary function exception we can get simultaneous  g by the two parties happy to do so your honor thank you very much now turning to the argument regarding section seven no far as martinez argues  should have changed the district court's analysis in two ways st by affecting what the officers had reason to foresee and nd place by playing into the analysis of comparative fault neither argument is correct but before i address  i want to address just heartless question and really the entire crux of martinez's arguments that the district court failed to consider this a legally error by failing to cite section seven o five inconsiderate and in response to judge hearts pacific question that if your court did not request that the parties submit proposed findings inconclusive so that was not i think that was not part of judge matsch is typical practice it certainly did not occur in this case but whether the issue of martinez and we reason that whether his actions were reasonable in attempting to if he thought the same as property was squarely before the district court throughout the trial martinez raised the statute in this trial brings to question the officers about their knowledge of property owners right his expert discussed the issue and he discussed it in this closing so to say that that the general issue of whether martinez acted reasonably in defense of his property is something the district court ignored is i think not a fair characterization of what occurred below now i mentioned that martinez raises this argument in the context of foreseeability and comparative fault and i want to address those two separately because they're analytically quite distinct now as to force the ability martinez argues that the officers are charged with the knowledge of colorado law and so based on section seven hundred and five they had reason to foresee that martinez would as the occupant of the property mistake them for trespassers and that he would run into the public road and threaten them with force to get them to leave now the problem with this is that even if you assume the officers should have foreseen tondo act in conformity with the statutes martinez did not act in conformance with the statutes now there is no language in the statutes or in any case applying it to the effect that a property occupant is permitted to leave the property and preemptive attack potential intruders there's thus no basis to say that the officers should have based on the statute standing alone foreseen that martinez might sally forth from the top ready and ambush them in the public road now martinez points out that there is no language in the statute explicitly barring a property owners from leaving the property to send it and that's true but when you're talking about foreseeability it is simply unreasonable to suggest that the officers should have foreseen martinez's actions based on what the statute doesn't the question as to foreseeability is not whether some courts might someday hold that the statute does permit preemptive strikes off the property it's not an abstract question about the scope of the statute instead it's a very practical question about whether on december th two thousand and twelve these three officers should have foreseen that martinez would leave the property based entirely on the statute no because there's no positive law of any kind saying that the statute sanctions leaving the property there's no basis for that conclusion d that the officer should have foreseen that conduct based on the statute so even if the district court had expressly discussed section seven o five in its order there's no reason to believe that would change the court's foreseeability analysis now the nd area we comparative fault only comes into play where the court determines that the defendant was negligence and then must compare the fault of the parties now here the district court concluded that the tactics the officers used were not  reasonable and that they were not a basis for finding a lack of reasonable care for the safety of our residents and that the officers had no reason to force the martinez's conduct so the office of the court here found no negligence on the part of the officers so the whole question of comparative negligence is something the court doesn't need to address at all to the extent the district court discussed it it was at best an alternative rationale for the hol ding and i think the discussion called for by the extreme nature of martinez's conduct but it is certainly not an issue that this court app needs to address but to the extent the court wants to address it martinez is precluded from relying on the statute here because the statute requires a criminal defendant claiming it's protection to act reasonably now the statute in fact tells the fact finder that a defendant invoking it protection must be reasonable three times he has to use reasonable appropriate physical force to the extent reasonably necessary to prevent what he reasonably believes to be a trespass now here the district court found that martinez is conduct in going out of his house and confronting what he assumed were the price brothers in the public road was unreasonable and that exhibited a lack of reasonable care for his own safety now to be sure the district court did not hit each of the three boxes next to the three factors in section seven hundred and five of this analysis but it is simply impossible that the district court's overall findings of martinez's unreason the billeted could co exist with findings that in fact no he did act reasonably when you only look at it under three prongs of the statute those there's simply no universe where those can both be true so as a statue a matter the court's conclusion that my team has acted in reasonably bars him from claiming the protection of the statute and i do want to address before i move just one factual issue regarding the specific nature of what exactly happened in the moments before mr martinez for some counsel this morning and in the district court and in fact mr martinez and stop on the stand is testified that he turned from the officers reading turn and then he was shot in the back well that is not consistent with the ran and was then shot ultimately the district court adopted the version of the facts proposed by dr but the expert for in the past ologist presented by the united states and his discussion of heard the st shot which myth began to turn and was found with hit by the spec and shot as his side he was he was presenting his side to the front of the weapon so and that's how he was shot in the side of his back which is what the district court found so i just want to make sure that that factual issue is as the district court found it is addressed so i can move on to the scope of the risk if very briefly counselor this judge mathis in could i just ask you even mentioned the question of whether the officers were found to be negligent her not a couple of times  that the district court addressed this issue in the st paragraph of its decision under conclusions of law and i've read that paragraph a number of times now and i'm not finding it quite as cut and dried as your describing it but i'm not saying that he found them negligent but i'm not saying that he found them not negligent could to do you  but i will say that what what i think because the burden is on the plaintiff to establish negligence i think we have to find a clear indication in the order of negligence to conclude that that's what he concluded and what he safety so that's the st piece the nd piece is later in that paragraph where he says that the decision to use these tactics quote may have been imprudent but it is not a basis for finding a lack of reasonable care for the safety of our residents so they are i mean certainly the district court he's using the word improvements i think he's making his views in terms of whether as a policy matter this is a good thing to do is it when he's discussing foreseeability because of course to find the officers negligent yes to find all four elements of a negligence claim one of those elements this causation and for to find the he has to find proximate cause ation and so has to examine foreseeability which under colorado law is a question of fact and he determines that even though the officers are charged with knowledge that a stealth approach could be misinterpreted and cause the occupant to believe they were about to be assaulted they had no reason to believe that martinez would run at them on the county road threatening them with a bat with little time to react so right there he has rejected the premise that this could be the officers tactics could be the proximate cause