three parts today st i'd like to explain why this court has jurisdiction under federal law to hear this appeal nd i'll explain why the colorado state patrol as a public entity rather than a public employee should be dismissed from the case because the claim against the entity is legally impossible and rd i'll address the claim that plaintiff has brought against state trooper ben evans under the colorado governmental immunity act and explain why the district court does not have subject ma dismiss where those motions are based on immunity from suit and that's exactly what we have here like in aspen we are it appealing the district court order the nine our motion to dismiss based on immunity from suit you know it used to be under colorado law and specifically under a case called city of lake or lake what verses grace that colorado drew a distinction between sovereign immunity from suit of my community from liability but that is not the case any longer under the estate the black case which we've cited in several cases in our briefing the court overturned the brace decision and abrogated that distinction and so under the estate the black case public employees like public entities enjoy such immunity and have the right to an early determination of immunity and in particular in early determination of whether or not the conduct is willful and wanton for purposes of subject matter jurisdiction no as on the case of said by us but the very broad proposition that this court is without jurisdiction to analyze willful and wanton conduct but symbiotes doesn't stand for that proposition the bio simply affirms the applicable l under aspen orthopedics and then simply holds that in that particular case the appellant didn't satisfy his burden of establishing this court's jurisdiction and that's because in that case the appellant insisted that the jurisdiction came under state law under the a and that is not what we contend here as i noted we contend that this court has jurisdiction under federal law i'd like to move onto the claim against the colorado state patrol and i'll be brief here because this is fairly straightforward the claim against the current state patrol is legally impossible because under colorado law a claim for willful and wanton conduct cannot form the basis of a claim against a public entity it can form the basis of a claim against a public employee but not an entity now the district court here allow that vicarious liability claim to go forward relying on a case called peterson versus arapahoe county sheriff which the court cited at page thirteen of its order but that case expressly decided was expressly decided quote by operation of the statutorily imposed respond yet superiority liability against the sheriff that statutory liability is specific to county sheriffs and does not apply in this case so again a pretty straightforward legal issue we ask that this court dismissed the case against the current state patrol now i'd like to focus the rest of my judge phillips that you haven't a question i'd like to focus the rest of my remarks on the claim against trooper evans now this is the key question that we presented with respect to trooper evans in our statement of the issues did the district court err by concluding mister smith's established subject matter jurisdiction as to the tort claim against trooper evans for willful and wanton conduct and we can tell me answer is yes the court erred for two reasons st the district court failed to hold plaintiff to a proof standard and nd the court failed to apply the specificity requirement to the complaint now i'm going to address the proof requirement st this is a well settled requirement under colorado law which applies here under the c g i a a public employee acting within the scope of his or her employment is immune from tort liability and less the conduct was willful and wanton and determining whether conduct is well wanton is a jurisdictional prerequisite under colorado law a claim can't go forward until the court is satisfied that it has subject matter jurisdiction and justice i'd explain that requirement at length in the estate of bleck case this is what she held there well the trial court erred in simply determining that blackhead adequately pled that martina's his conduct was willful and wanton instead the trial court should have determined all issues relating to martinez's immunity claim including factual issues and quit now here the district court committed the exact same error that just as i had to correct in the est of black here it was it is this is this  trace there can be no fact finding here we have to just look at the complaint and see facially if there are enough facts and we don't have a record of you're shaking your head argument an issue and on a twelve b one motion the court has to consider all facts and if there are not enough facts to make a determination the court can order a hearing in fact in the state of  the facts that are or is to review are if the could play told us there's no other facts in the record this is not a summary judgment case dorsett a case on the merits so other than the complaint what is there for us to review what one important piece of information here is plaintiff's characterization of evidence even though it's not technically in the record because plaintiffs didn't attach it to the complaint plaintiff describes the video footage in the dash cam and this is you know your honor i can't remember if it was mentioned in it might have been referenced in passing it certainly wasn't described when the plaintiff described it it was in response for a motion to dismiss and the district court didn't rely on it either court did not rely on the i'm back with judge who sero are we just looking at the complaint and deciding whether it was sufficient to establish a jurisdiction here we contend that the complaint is not wasn't specific enough it's not enough as a matter of law can you do let's let's do a little more work with what actually is in the complaint what's going to lead and why isn't this mission church i'm happy to go and here's what the plaintiff says in the complaint and it's and it's very sparse as to true previn so there's there's not a lot actually with respect to previn's here's how the plaintiff describes the conduct it says at paragraph eighteen of the complaint the trooper evans observed mister smith's slurring was having a hard time forming words and standing up he was standing up he was talking to some extent but having a hard time sort of getting through basic questions this was an indication to trooper evans that mister smith was intoxicated now we know of course they stand toxicology reports that came in weeks after this incident happened and after trooper evans made his judgment call but he had no way of because he called the sergeant and said what do i do with this that's right that's right and that is in ditch of thoroughness of careful assessment not evidence of reckless conduct he took his time he spent over an hour about an hour with mister smith's asking him questions trying to figure out what was going on he called his supervisor a drug recognition expert trying to understand what was happening and ultimately what he concluded was that mister smith's was intoxicated now it turned out that he was wrong about would you agree that someone under the influence of alcohol or drugs could also be in need of medical attention you seem to be saying if always just intoxicated but sometimes when people are very intoxicated they need some medical help or maybe or maybe under under some some drug influence they still need medical help are you are you saying that they never need medical help if they're intoxicated or under drugs your honor i wouldn't say never because it depends on the facts and circumstances but in the end this case on the circumstances as alleged in this complaint there was no indication that he needed medical attention he wasn't bleeding he was standing up he was still forming words he was still following basic commands not perfectly obviously he did think that he was under the influence but there wasn't anything to indicate that he needed medical attention he never needed i have a medical condition i need medicine i need help he never made those types of statements and so i won't say never but these circumstances there was nothing to indicate that he needed medical attention and also pointed to you must be under the influence of drugs what's your best definition and well all are wanting justice i gives a good definition at definition that courts rely on over and over again in the state of black and what she says is that willful and wanton conduct is defined as conduct that is not only negligent but exhibits a conscious disregard for the safety of others and when she's describing that when she's defining that she incorporates definitions of definitions and concepts that also incorporate notions of recklessness and she notes sometimes they even imply elements of evil it's a very high standard and it is much more than negligence which is really all the plaintive please here is that a subjective standard if it your honor it is  an objective standard but informed by the facts and circumstances of the case and so here in this particular case objective lee officer or trooper evans was thoughtful careful going back to look it does talk about conscious disregard for the safety of others correct that's right that's right which one is what does that mean conscious disregard that that indicates that it is important that  trooper evans knew in this particular case and honing in on a particular facts or the trooper evans knew that there was some medical condition that needed medical attention he did and the following morning when the wife comes to pick him up what do they tell her the following morning the wife didn't even know that his condition was related to his medical condition she didn't know that the symptoms were associated that they thought but wife and the son thought that a stroke might have occurred they didn't realize that this medical condition was at issue in till days later when blood tests came back and showed elevated levels of ammonia in his system so not even his own thank you for that information but my question is when they came to pick her up what did the state patrol specifically which was what did they tell her well when they picked him up state trooper evans was out of the picture your honor so i'm not i'm not sure what you're out if you're asking about mental impressions that you're previn's might have had days later he transferred custody to the county the case against the county is proceeding to the extent that the prolonged symptoms indicated to the county to the jail officers that something was going on it needed to get medical attention that rest of the feet of the county not trooper evans who spent an hour with him transferred custody submitted the lab test and then was off of his shift by the time the wife and son came to pick him up the next morning trooper evans was not part of that process was not in the picture anymore his on them but just as a practice to when you're asked questions about it answered i'm sorry your honor i was not trying to evade your question i was focused on trooper evans conduct and i thought you were suggesting that somehow trooper evan said something to them that day he was not  i see i'm out of time so i unless or any other questions i asked that this court dismissed the case against the current state patrol and against your preference thank you very much counsel are there gaps in the pleadings that leave substantial question about whether your client had anything other to do with this case other than to make the initial arrest and take him to into custody counsel tells us that that's the situation and that there's really no connection in the complaint here to her client individual if they think he's intoxicated and driving and the trooper from my understanding wait have not obviously had discovery west with yeah for some period of time in the jail and i don't know what period of time that is thank you and you get that a dash cam video after you had already filed a complaint you know i had the trooper evans and the fact that he contacted his superiors and that they and that he said that he didn't think he had cause and so what medications he was making no coherent sense he closed to the truck door on his arm he couldn't get him to get out of the truck as an initial matter  so he had he knew that there was something really wrong and he did nothing to him about it well you mentioned that he spent an hour with him i'm just wondering what believe comes in as far as the fact that he did nothing to get him any medical care nor did he say to that we know that did he say to the jail when he took them there that he needed any medical attention or he we encounters a driver who has wrecked a car and is not making sense that you have to take him to the hospital well one would think that one that it would be behoove someone to get him at least some kind of medical care have a doctor come to see him have the medic there's a medical team at the jail if they if you were going to take  thought it seems to me there's an anger complaint that you have a lot of allegations which collectively may rise to reckless conduct on someone's part but we're here only to examine the allegations in so far as they relate to this specific and particular state trauma and the state patrol collectively and as i understand your complaint the gentleman your client was taken to the jail and it is it's best as i can tell while he is in custody that almost all of your allegations relate to what may arise to reckless conduct willful deliberate ignorance of this gentleman's needs but you have your burden before us is a little bit more aggressive than that you have to prove that it was this officer who do or during the course of the period in custody worse things said about the three of us you i'm sure some over the space of an hour and there just is no way that he did not know that he should have done something to get that need medical care she had he knew that and he's told his supervisor that there was a problem and he smelled no alcohol and whether he had been on drugs as was raised by the fort that doesn't mean he didn't need medical care citron out he was culpability on behalf of the supervisor because he wasn't even there he couldn't witness it but the trooper did not say a great deal he told him that he didn't think he had cause he said i don't think i've got it but he then just followed orders while it's ok to follow orders it's not if you're putting someone's life in jeopardy ences in favor the nonmoving party meaning you but this is a twelve b one motion are we supposed to draw reasonable inference is in favor of  i'm i'm i was kind of hoping that we could you have some law on the issue of you research that question and can you help us out on that i'm we can do it i just was wondering if you have i'm sorry i don't have anything directly in front of me on that however i would note that i just don't think there is jurisdiction here in any event under johnson and that's been completely ignored by the state patrol and i that this court does not have the jurisdiction and it's to defer to the findings of the district court my understanding is that it's not a leventhal amendment immunity but that i understand the argument about the state patrol as the entity however that is beyond the notice of of the scope of the notice of appeal and you agree with your opposing counsel on that question do i agree i say i was yes actually that there is there is a question of whether or not there so they shouldn't be in the case anymore so are you're saying while i hate to say that i think that is in fact correct thank you berry which was about a pro se complainant claimant rather and he they found that there was a functional equivalent of unnoticed of appeal and denver and rio grande western railroad company the question was whether the the order was properly identified and the or they found that since the order that was under review was attached the fact that it wasn't named properly was not fatal however there's nothing under kuna car average that would say that there's that you can go beyond the notice of appeal on the notice of appeal clearly says that they are just are going to be arguing internal inconsistency is within this district court's order and i do think that johnson controls here and that's if i'm if i may just briefly that state's argument concerning the lower court's order just ignores the fact that he said on numerous occasions that he was not reaching that constitutional question because he couldn't find out but that clearly established prong as matt and he says and as and the footnote on page eleven that that the tests are obviously fastly different control there's also beyond the jurisdiction of the court because this is beyond the scope of the notice of appeal and if they're if the court is going to look at the merits of the case the