court my name is jonathan thorne and i represent appellant agent john martin's before i begin today the plaintiff's attorney mr jackson who is also an appellant i would like to reserve two minutes for him to give an argument on standing we're here today to determine whether or not the government should be substituted for martin's with regard to a claim under the westfall act with shree lates to martin's use of force that occurred while he was an ice employee at a nice detention center if martin was acting within the scope of them claim and the government must be substituted for martinson on that claim today for purposes of argument we can assume that martin since conduct was an overreaction that it was wrong but that does not take it outside the scope of employment and the two issues that i want to address today relate to the district court can we assume a lot more than that which is to say don't we assume what the district court namely that his account was not credible and that he had done a personal reason well we can assume don't we have to assume yes we can yes we do and the two issues that i want to address relate to the court's error in the analysis of the law and the st being that the court looked at the situation in a vacuum as opposed to looking at martin's overall job duties in conjunction with the situation and what he was doing the nd issue that i want to address as the court's error and looking at motivation there the district  court fell to properly analyze martin says motivation in conjunction with the business interests of ice so i want to briefly address some of the details as determined facts as determined by the district court and thirteen agent martin was working as an ice agent at a nice detention facility his duties included maintaining order at the jail and overseen detainees on the morning of the incident he was tasked with counting the number of detainees they had to determine whether or not they were whether or not they had enough vans because this was a temporary housing center they didn't hold them overnight so the detainees were brought to this facility to be processed told about their court dates and then they were transferred back to the jails so mr martin was trying to count the detainees and he had a detainee that was blocking the window and so he asked the detainee to sit down in the detainee disobeyed his commands as a result mr martin and district court didn't find and he continued to disobey that there was a finding there that he had said that he attends to his arm or something but then watching the video did not see that the other two agents behind did not see that then you have to stick to the facts that your district court yeah and i believe she found that martin said and gave him commands of stop disobeying and she did in her finding she talked about him disobeying his commands and disrespecting his authority and it wasn't directly clarified that disrespect of authority i mean there are some commands he was given when he was in the cell but he was also giving commands i believe she found that you know markets and was making these statements she determined that there was a particular case in these cases all look at the overall situation in conjunction with the duties and there's a particular case that is are you ready are you focusing on the st factor when you say that the general conduct must be of the general kind that the employee this form yes thank you so there's a particular case and instructive here that's directly on point which we cited to and that's the bowman versus hayward case that's utah supreme court case and i recognize it's from one thousand nine hundred and fifty three but it's still good law it was cited with approval in clarkie pagan when that court was saying that intentional courts can be within the scope of employment including assault and there the facts are almost identical there there was a deputy sheriff that was tasked with maintaining order at a  and he directed he was over he was tasked with overseeing inmates and he directed one inmates ago and washes a personal automobile in the parking garage when the inmate disobeyed his command and refused to follow his orders the deputy sheriff attacked and repeatedly assaulted the detainee and there the court said that the evidence overwhelmingly supports the conclusion as to make it a matter of law that the deputy sheriff was acting in the scope of employment well that that woman case is interesting and fifty three dollars and i i have to wonder about the result today but all that you know not considering that that it seems almost unbelievable that you know assaulting an inmate who wouldn't wash your personal vehicle it was within the scope of employment there was in that case something distinct from this case which was another guard who or other deputies whatever who testified that  washing personal vehicles the inmates washing their personal vehicles was something that they were asked to do and considered it was considered within the scope of their employment to ask them to do that and now how that means that the the assault on the officer for not performing for not performing that task was within the scope i don't know but my point is there was a factual difference here because we don't have anybody here that was present on the scene none of the witnesses indicated that within his lawful duties to direct this detainee to sit down to shackle him up and take them to the the transport but the bowman case they didn't focus on the intentional point but they said that this this deputy sheriff he was cloth official character he was it was his official position that prompted this oppressive act and like martin said it's his official position that prompted the oppressive act it was you know the overall situation and circumstance yes he overreacted he should have he should have done that but it's so such of such relation to type of job duties you know he's trained we've got to we've got to take into consideration the the environment the work environment this isn't an office complex this is a you know  potentially scary place it's a detention center that how is this criminal some of whom are violent and because of that ice trained their officers on you know maintaining order and to taking action when the detainees don't listen to them and part of that something they're taught  the use of force so looking at this in a in a totally you know different way it's outside the scope of employment if he was wholly involved in a personal endeavor that means you know he has to be on an independent course of action as says it needs to be a departure from his job duties now departure has been defined by the utah supreme court and in burton or when they're talking about scope of duty they cite carter versus bessie and i don't think we cited that in our in our documents but  defines departure and it says that a course of conduct that is a departure is something that is in no way related to the business interests of the ploy or so that means it's got to be some sort of conduct that has nothing to do what with what he's been and so what  is the limit but if you would have taken a billy club and hit him over the head twenty times well fully and body change given that this is a situation in which martin sinister trained to do those duties you can't look at the intentional the intentional torte this is the type of conduct that's reasonably incidental to martin's and job duties so we're trained on that what's the answer if you noted him twenty times with the billy club that would be fine because he was transporting him to a cell in this situation i think using a billy club on the detainee you is within the scope of employment is there anything that isn't what if it would have fired a gun at him well in this situation martin said it's a facility that doesn't allow  weapons within the facility but yes he i mean you've got to look at the situation of you know isis providing if they provide him a gun and they're providing you know these people billy clubs this is under utah law it's incidentally related to the type of conduct they're employed to perform was there any testimony from anyone that suggested in this situation which was a per inmate who is or detainee who was fully shackled fully shack and being walked short distance from so to sell by four guards right four guards and fully shackled yes he couldn't defend himself he couldn't break his folly couldn't do anything  apparently other than maybe make some slight movements is there any suggested in the record that under the that scenario it was ever appropriate to do the type of takedown that your client did here there is evidence on the record and it was ignored by the dish or court both martin sent an auburn he testified that they had been trained on doing takedowns on partially restrained right to thinking i'm something about fully restrained but they also said that the instructor told them that because somebody posed a question of the instructor what if he's fully restrained in the instructor said that you do the takedown i mean these guys are as the government i was i mean i was there an explanation for that doesn't make sense to me you know and there is there is that i obviously the district court must a film that not credible i take it because she believed the united states expert who said there's basically in this scenario there's never a reason to do a takedown and this was that the individual who trained these officers ignored that evidence but she did she did believe she did believe him that's correct and you're not challenging that in terms of being clearly erroneous but that would never essentially her finding that what he said was true which is that there is just not us under this scenario we have here it would never be appropriate and that's she also ignore testimony from the expert that said there are circumstances in which you could do if a takedown on a  the record but that brings us back to the to the standard of how we leave you in this case because under the law she's given the authority to make the findings and conclusions in regards to this and we just can't ignore that even though i might have found differently doesn't allow me to substitute what i would do or what she did now that means you've already cited to we you've got to show as a matter of law that her ruling is wrong i've made known the facts but based on the law now what law gives us the authority that it did she ignore other testimony that would weigh own this this factual decision that she made completely well one thing she did she discussed was we had raised an issue of policy there is no policy that prohibited or even address the issue of doing a takedown and she said that wasn't significant but is a says they relied exclusively in finding that employers outside the scope of employment by the employee admitting that it was a personal endeavor had nothing to with business or lation ship and the employers policy which strictly prohibited the conduct in that case in that case it was a therapist who had sexual relations with a client and the policy specifically said you are not allowed to have sexual relations and there's also a regulation for that persons license that prohibit it and that's what the burglar court rely on i see that i'm running out of time here and i would like to reserve the remaining two minutes thank you it please the court and good morning my name is james jackson i represent appellant pinay on this matter this court specifically asked me in my appeal to address the jurisdictional standing issue of my client so i want to touch on that briefly believing case on this is cohen be beneficial industrial which lays out three factors on whether an in a lock a tory a pill can be had and if you have standing those factors are one if the order conclusively decided the disputed issue which we have a disputed issue conclusively decided here on december th we have number two whether the issue is completely separate from the merits of the case the merits of this case involved assault and battery this order in this appeal is regarding a westfall petition and number three and most importantly is if the order would be and would be effectively under reviewable an appeal from a final judgment now our position is who you're defending is plays a big role in how you litigate in try case your trial strategy in preparation so our position is that knowing who or defendant is whether we have a solvent defendant or not is an reviewable on appeal so we believe that we do in fact meet those three elements and have jurisdiction and standing to raise this appeal and i have about fifty seconds left now i like to save for  case do you acknowledge that mr mala nado he admitted that he didn't and wouldn't following it ructions given to him so the fact that the trial court found that  the officers testimony wasn't credible there is still other evidence that supports what the in this instance what the officer climbing in there i would say that there was evidence of him tensing up he admitted something about his shoulder dropping down or something like that i wouldn't say that that's any evidence of significant resistance and that's the really evidence of resistance so that's not the way that mr maldonado characterized it as a resistance it was an adjustment he was being pushed in full shackles i don't think that he characterized it that way and more importantly the video is not perfect evidence it misses audio and it's not the best quality more importantly what we have is two individuals who testified on behalf of mr martin's and they were sitting there they observed the same thing that he did and these are persons who are colleagues of his they're walking the same side of the thin blue line and they didn't see anything that was worth intervening for they didn't see any resistance and you know that's what's important about what the trial court was able to observe at the time during the evidentiary hearing she's the one that's able to look these people in the eyes while they're testifying and when you read the transcript you can see that counsel tried really really hard to get them to say that there was resistance going on and they didn't see it they didn't remember seeing any resistance there was mr cost i said at one point very close to what was to be the next cell that he was going to get in to change direction or something but then he admitted on cross examination the fact  is that mr moulton autumn might have actually been waiting for the door to open that was right there and so while mr maldonado did indeed say that he moved his shoulder the court acknowledged that i think to some extent in the in the in the order to she said little or no resistance and so there's an acknowledgement that maybe there was but it certainly didn't justify what took place and quite frankly  saying that the trial court did recognise that and addressed it and her or that's absolutely correct in fact i think that's what she said was little or no resistance and so i think that's an acknowledgment of the fact that mr maldonado did make that statement it's also i think she called the other individuals but the other detention officers testimony has either not remembering the resistance we're providing vague and odd answers which is consistent with the fact that not only did they not see the resistance but important to hear they not only didn't corroborate his story they also significantly damaged it by saying we also heard him saying stop resisting which is intuitively a cue to be kind of paying attention and they still didn't see it and that was you know part of the theory which is all of this was a pretext from the time that he pulled them out of that that cell there was an intent to do this individual harm and not only is that presented by virtue of kayla vitale who is the use of force expert within ice but it's also again with these other two detention officers they said i don't remember ever seeing mr martin some before or after chain somebody up on there by themselves it is certainly not the protocol to put somebody in full restraints to move him thirty feet from one cell to another cell inside of a locked building three behind three locks and three other individuals that are helping with the escort there was no reason to put those restraints on except for the fact that he intended to show this individual who was boss and he was going to punish him and what better way to do that than to put him in for over str could you address the kirchner criteria specifically the st criteria which the district court found in weighed in favor as i understood her decision weighed in favor of of the united states and that is that employees conduct was be of the general kind the employee right and i centrally isn't wasn't he performing that generally i mean if you're looking at this generally this is what he was mr martin has been trying to advocate for since the beginning of this issue and that is you know you can't string together three different ideas of yes we as part of our job duties move people from one cell to another yes his job duties we do take downs yes his job duties we also apply shackles that's based on a false false premise in this case because that's not what he was doing he wasn't intending to just move this individual from one cell to another the intent was for him to do harm and it was an entire false firms and how do we know that because all of his actions are inconsistent with what he was saying he was doing and why don't you point me to case law that supports what you're saying on that berkner factor which is that you don't look at the general scope of their employment you look you hone right in on the specific act as it is in question which i think i understand your question is it's really kind of implicitly taking a bit of a motivation as part of it and i know you're arguing subjective versus objective and that's what the court asking you right is you're saying well there's evidence that he intended to do that asking about the st criteria and i i didn't see any case law that really necessarily supports your position and i'm not sure there's case law the other way i'm just no i yeah i don't i don't have case law that would specifically answer the question you're asking i think the way i would respond to that is this wasn't some sort of you know unfortunate extension of lawful duty it was a complete abandon and abandon meant of it  there was not ever in training or any sort of idea either from the lawful perspective of a takedown with a fully restrained individual but just that didn't happen that's never been trained on and so i think that's the distinction is whether it's motivation or not involved as part of it could you tell me what if we disagreed with the district court on the st factor and said that that weighed in favor mr martin soon and i understand there's an issue about the nd factor but assuming which clearly if it still exists weighs in his favor also  what is there any guidance have we gotten any guidance from the utah courts on how you would weigh essentially the factors or the criteria is it ok to on his side want to on his be some dispute with that but you have to meet you have to satisfy them all and so even if the court were to disagree as to the st prong that the district court found she also made the finding that his actions were taken out of a personal desire to physically punish  the individual for disrespecting his authority and that he acted soley from personal motives and so that's the rd prong there and in addition to that you have this other sort of i don't know if you call it kind of a  weigh the motivation factor or not but critically important and i think somewhat gets lost here is there is no liability if it's out of for personal motives or if it's unprovoked highly unusual and again remember the last one something about grossly you know look at her and down here well let me just say i don't read i don't think i didn't see you tall supporting what you just said which is that you've got he's got to prove all three factors they've been pretty clear about saying there are three criteria which is what they call them that are relevant to the determination i didn't find in the case and i'd like you to point me to some of you have some saying all three well i think and i'm sure i've actually seen it where it says you must prove all three but it's the way it's written to the way they've always been analyzed i think clarke versus pangan perhaps is probably the best case that would demonstrate  you have to in fact i think they said something along the lines of  one of the parties that lobbied for an expected billet prong and that was consistent with the restatement at the time and i think it's essentially what councils are going for now but the court declined their stating the ex back to bill it has already taken into account by applying the three elements of the berkner test well considering that conduct that is unprovoked highly unusual and quite outrageous should be outside the scope of the employment and so really if there's one and it's generally of the job that he's assigned to do it shouldn't matter if it's completely outside the scope when it's unprovoked we on usual are quite outrageous on that point in looking at the st person or factor of which i want you i want to hear your view of that what i'm looking at is m j and it cites berkner and it lists as the st factor whether the agents conduct is quote of the general kind the agent is employed to perform so conduct that word there is it your position that if conduct is something that's allowed to be performed for instance if this individual had gotten out of the cell and was running free and there's a takedown that would be conduct that's allowed to be perform but you have to measure that conduct and the context of the facts that existed in this particular case exactly in other words the conduct might be within general duties the same conduct might be within general duties and one circumstance but not in another no that's exactly correct your honor and and i think i would add to it the really important part here is these facts include an individual who was entirely restrained completely unable to defend himself and mr martin's and didn't sit him down didn't push him up against the wall he put his hand on the back of his neck and slammed him into the concrete floor that is not conduct of a general nature that ice is ever supposed to perform and that's what the expert indicated i think it goes back what judge is mentioning it depends on the facts and what's actually happened and that brings me back you agree that  under the under the act that we're looking at the trial court gets to make the findings and we're bound by those findings unless by some violation of the law and she's gone too far that's correct  and i think i want to make two points on that st it is the general rule in utah of its scope of employment issues for fact and the factual question is going to be decided by the trier of fact that that's the state law for utah that's what they set and secondarily the standard for this court would be whether or not she made clearly erroneous findings and i would submit to the court there's absolutely no basis to determine that she made any clearly erroneous findings in fact i think it's to the you it appears as if the appellant and that being mr mcmullan ought to believe that somehow they have more right to an appeal than they would have had down below i mean the fact the matter is he could not have asked the district court to review the decision of the united states attorney as to whether or not mr martin was if within the scope of his employment he couldn't done that down below it doesn't make any sense why he would be able to now  in front of the th circuit i mean there are unique reasons why you get to do this on an interlocutory basis and immunity is one of them and mr martin's in his being denied that immunity under the westphal act by virtue of that united states attorney's decision and so  basically but then you talk about cohen which is the appellate jurisdiction the clatter order doctor and i guess i'm a little confused by your argument you never cite any cases discussing standing  well that seems to be what you're arguing i guess so i don't remember exactly what case i did cite for that proposition but was standing was a term used in your heading but that you didn't really discuss standing beyond that right yeah i i don't know how to respond to that whether or not it's a case that i should have cited or whether or not it was standing that there trying to provide jurisdiction for thank you the berkner factors are criteria as m j focused on the st element and saying that we hold the key question is whether or not just was acting within the scope of employment when performing work assigned by the employer or engaging in a course of conduct such up to the employer's control i also want to briefly discuss motivation motivation requires that it be in no way connected to the employer's interests here but for the detainee disobeying martin's command this wouldn't have happened martin s was may have been misguided it was wrong but his motivation came out because of his job it wasn't personal endeavor purely personal it was related to the employer's interests well so when she's saying that he took this action because the detainee was disrespecting authority his authority his clothing his official character he is acting as ice and you've got a detainee that's disrespecting him disobeying ice and but for  disobedience this action would not have occurred if i can i did realize i'm out of time but if i give an analogy is the disobedience the suppose the tensing of his arm which the court recounts the agent martinson's testimony on that i'm not sure makes finding is that the respect or as a what happened in the whole sale i think it's the i think it's a continuation of violence that started with the detainee refusing to sit down doing laps around the jell turning his back and refusing to obey  commands and then when he was walking with them as martin's and said and as the detainee testified to you know there is this point away and these guys there are trained there they're trained on these takedowns that when they  receive any resistance they're finely tuned machines where when they feel that they've been trained to know desiring about to hurry and do a takedown and while it was you know misguided here it's the type of conduct he was employed to perform