please the court i'm carolyn hyatt and along with al gore hartstein we represent the plaintiff marcus newell i would like to reserve three minutes our plaintiff mr newell was shot by henry county special deputy while that deputy was participating in a firearms course at a shooting range as required by his position as a result of that special deputy's recklessness marcus suffered excruciating pain in his liver kidney and lungs were damaged and his spleen had to be removed plaintiff has brought state law and constitutional claims against that special deputy and against henry county his employer the only two issues currently before this court are one whether the trier of fact could find the defendant human back or was acting in the scope of his employment and to whether he but the definition of employee in the statute specifically includes unpaid employees sheriff or any body in the sheriff's office to take that particular course from those particular institution at the time here role he was required to take no a certification course to so your answer is no not at that particular institution i think or time were time and pacific instruction of any body in the sheriff's office was under the specific instruction to be in rolled and in good standing or to have complete on the answer is yes sure i think it was under specific instruction just not for you know that particular to have  evidence of any person in the sheriff's office who directed him specifically to take this course at the top at the time of within one year do what you refer he did not notify them with that specificity he testified and that is on the record that he notified the sheriff that he was taking the course but he did not provide the level of detail that it was at this day and this time but he was not  requested that commission the requirement was to take the course and become certified so what's the pluses ohio that would say what he was doing was in the scope of his employment or whatever the ohio supreme court case that the district court order cited to rogers i think actually very clearly shows where this actually was in the scope of employment  that case the district court says that that case requires that it was under the direction of the county and so because no one was there at the course watching over him he wasn't in the scope of employment but the case the supreme court of the high actually explicitly says in that case that it doesn't mean that you're watching over someone's shoulder what they say is that it must be under the direction and control of the employer such that if he failed to comply he could be penalize and what the sheriff has testified to and which is on the record is that he was required to take this course and that if he didn't become certified that he could no longer be a special deputy and terminations from his position is obviously that if you do if i'm a state employee and i'm doing something that's required by a margin something that would be required like getting a degree getting scioli getting whatever it is whatever job i have anything i do in connection with training or whatever would be in the scope of my employment like any tort that i commit like if i go to a common attorney i go to a c e o we trip and fall and you know rule that as a matter of law you're out of the scope employment when you're obtaining training education or any other off duty requirement so that's the sort of thing that needs to be heard by a jury and i think there are a lot of reasons that the jury could distinguish between this case and some of those other examples getting a bachelor's degree or the other example that the court raised below was requiring to exercise regularly and i think the difference here is that this course isn't like any other college course this course comes with a unique and necessary risk and that risk is exactly what happened here that there would be an accidental shooting so if the county is going to require that its employees take on this risk then it should also protect them from that risk and that includes  d and i want to go back to the employer employee employer relationship tell me again what is it about this case that makes your quiet and employee of the sh and forty four dollars defines employee is an officer whether or not compensated or full time or part time he didn't have a mechanism pointed to the position of a special deputy by the sheriff following an application and approval process he then worked several shifts as a special deputy providing security for the county and after the shooting he was terminated from that position so during that period he had an employment relationship the important question is whether he was in the scope of that employment at the time at this time and under the holding of the ohio supreme court if you're acting under the direction of your employer and you could be penalized for failing to follow that direction then that's in the scope employment or at least not as a matter of law outside of the scope of employment which means that a try or in fact deserves to hear this and decide if they think he really was in the scope but you agree that i mean it's like any other case you can have summary judgment right it's like any other fact case if there's not enough evidence or it's under spirited week the summary judgment is appropriate if it were undisputed and if there were no facts that a jury could rely on to find that he was not as good as employment that would be true but because there are facts most importantly the test jury could rely on to find that he was acting at the direction of the employer then it should well that's just that might not be that that's what we have here ok no ohio court has ever said that this is outside of the scope of employment as a matter of law if we were to craft that rule now that would actually be to change the ohio state law that said issue here they've repeated quite forcefully that this is very fact specific they've declined to even define it very concretely because they want the jury to have that part apply the ninety three dollars claim and any state tort claim i believe sounds ok but of course for the constitutional claims there are other barriers in terms of the munity it would also need to be addressed however for the city reason route that he in other words if you proved that there was a violation under color of law under twenty three by the individual and you had the damned if you wouldn't need to prove my mail why ability in order to collect money from the county ok the issue the issue before us now though is also whether he was acting under color of law and for the same reasons that he was acting within the scope his employment we could find that he was under color of law the rule is most clearly described pertain to the facts that we have here in stingel belcher where the police officer at issue was off duty not in his uniform did not invoke his position but god intervened in a bar fight and despite being off duty not in is uniform not even invoking his position not on a police officer stopped didn't do anything but the chief of police testified that he was required to intervene that requirement that this is a fact specific and that the focus is on the nature of the act so even in that case it does have a lot of the things you would usually look to it from your description that she was on duty but they looked at the fact that she was not in fact good morning may please the court my name is d j young i'm attorney for casey human becker he is the person who's accused of shooting the plaintiff in this case my client's interest in this hearing is that one of the decisions the judge made was that he was that my client was manifest my client's position is he is immune and he is entitled to do a defense because he was acting not manifestly outside the scope of employment we think he was inside the scope of employment we've argued that a very definitely if he's at a require officer training course and he's a police officer he's doing what he's required to do to keep his job he's surely not manifestly outside the scope of employment he directed to take that training from that provider at that time i think you can he was not specifically directed take it from that provider but oh poda training is required and he was directed by policy to take that so he took it why he chose that particular vendor of the program i don't know that henry county officials know that he was in that writing at that time i don't believe they knew that he was there on that particular time but that affect this this if you if the county had no knowledge that you know that he was doing this i mean you know had they had knowledge he was going to be doing it perhaps there were things that they would routinely do i don't know but i or if i think it's a legitimate question i think a jury would have to sort that because there are a lot of jobs in this world where the the boss does not know exactly where the employee is or what the employees ohio training program actually was a it was a state college just a community college so if we showed the firm the court and you go back to the state court this the district court's ruling on this point because i think it's just wrong on the issue of manifest well state court wouldn't be bound by anything anyway i worst case i would agree but i don't want to i don't want to easier if i didn't have to do so if the position is so so is this court follows my line of thinking that doesn't make the state of ohio liable for this accident and it doesn't give the plaintiff relief but it does give my client the bend if the immunity statute which is designed to protect employees of the state of ohio who are in situations that aren't exactly black and white as a matter of law and that was clear the situation might quite found himself in and it's unfortunate he has no defense no coverage no insurance nothing because of this but he would if if this court were to rule that the lower court was wrong in the holding of not manifestly outside the manifest trying to remember is that both of the duty to defend and one is different than the other we provide security a community events seven months later unbeknown to the henry county sheriff's office unbeknownst to the sheriff unbeknownst to the auxilary here is a road at northwest state community college to take a recognize that risk and here in this situation we have a circumstance in which henry county had no idea that casey hooping becker was at the city of napoleon gun range taking a class offered by north west a community college thing argument i don't remember seeing it in the cases like the proximate cause it is it is night specifically spoken to in the case that i've seen but i do think that when you analyze the case any case any scope of employment case because it's a tort concept that that issue has to be considered because otherwise there is no way to manage risk and especially so under these circumstances in which we're talking analysis year saying ok we assume that the course is required and as your opponent rightly points out it's a risky venture involves guns it's the gun range so why wouldn't it be foreseeable that something might happen where somebody has to take the course at some point to maintain their point that means it doesn't at all just fall in line or doesn't what should we just give it to a jury to decide i don't think you should give it to a jury because this case i unlike this is like every other case this is not a unique field of law and the facts here are are undisputed with respect to the major issues and brought up here and in fact this court has has determine scope of employment issues as a matter of law in summary judgment in other cases so that the issue is i don't think a concern but your other point which is isn't this the kind of thing they could be foreseen if this indeed is a requirement which which i challenge but if this indeed is a requirement the answer is still no because if you do not know when the student is taking the class the employee eastleigh student is taking the complex class who's offering the class with the qualifications of the trainers are what the circumstances the training curriculum is then there's no way to to manage that risk and so therefore we're that the concept of scope of employment cannot be read so broadly as to include any kind of educational training than an individual might be required to obtain to maintain a position and here in fact this is not to address judge donald's concerns earlier there is some really that is required to be an employee of  county even the henry county special deputy auxilary under the statute and obtaining the certification they have to ask to be acting within the scope of employment and they also have to be under the definition i would i would argue your honor that there are two different things actually being within the field prefer ming the function of a special deputy is one thing being in a private training event where you are not providing security for members of the community at the county fair is another thing to do in the training field if you can do that other thing you're doing the training you're doing the training to remain on the roster but you're never required to show up at any of these events and you're never paid by the by henry county you're paid by the organizations that for instance the school once in a uniformed officer at the basketball game they pay the auxilary who then pays the  other than that and he did terminate that commission when the shooting occurred because obviously if someone was careless enough to allow this shooting to occur you don't even want him out wearing a uniform at casey could have shot marcus new wont even if he had not been a special deputy he was an equal position of any other student at that training to have it the other student manipulated the gun dangerously as he did claim he has to be acting under color of state loan and that generally requires that his acts be fairly attributed to the state political subdivision that his acts be that heat a manifest his authority in some way and in this case there is absolutely no manifestation of authority related on the day of the shooting i mean fact because he lacked authority as a certified law enforcement officer was the  reason that he was taking the training there was no manifestation of henry county authority when that shooting occurred and he did not abuse the authority of his office which was the mark of color state law there was nothing about  position as a special deputy that put him in a position to commit to shooting anybody could have committed that shooting any of the non special deputy students who are enrolled in that class so i do want to take a moment to address and if if if there are no specific questions but address the pearson case which is the case that the plaintiff relies upon or mr newell relies upon extensively with their arguments  because that is the argument that is the case that they offer for the argument that partially benefits yourself and partially benefits the employer then that should be considered an action taken within the scope of employment and what i want to stress is that in that case the supreme court of ohio was considering an insurance policy issued to the city of walk and that it was the city's position that that policy that insurance policy should cover acts of a police chief which were sexual harassment type acts and the supreme court about ohio made two important points the st was that he could be this individual could be insured under the terms of the policy because these acts occurred by a supervisor and duty in the office and individual who had authority to hire and fire and that kind of thing so that could be considered the of that case a circumstance in which there would be an insured under the definition of the policy moreover there was a special interest met in that policy the crew of the extreme really brought coverage under the terms that policy which was nothing like the language that we're dealing with in two thousand seven hundred and forty four and the final point i want to make about the harrison case is that it was an interpretation of an insurance policy which generally are interpreted in said i believe this testimony i don't think is testimony goes so far as to describe the nature of the firearm he carried when he was in military service but he did indicate that he was trained to use firearms in the it i just want to take just a moment to direct the court to its responsibility here the only thing that we have to do is figure out what the county required and if he was acting the scope is employment and the court doesn't have any need to decide if the sheriff was defining duties and responsibilities for specialties in the right way or the way that we would want to he has complete discretion no which isn't relevant for the employment relationship he had as a special deputy which is the only one that matters for whether he was in the scope of that employment at the time of the shooting there is sorry there is no need to show any manifestation of the authority of the county to be under color of law or within the scope of employment in stingel he specifically did not manifest any authority didn't say he was a police officer wasn't in his uniform there the important thing was the requirement most cases address that manifestation of authority because most of them are harder than this under color of law is  broader than the scope of employment they could be under color of law outside of the scope of employment because they took advantage and abused their position of authority and it really important that we want government officials to be liable in that kind of situation but that's not what this is this is much more straightforward what were his duties and responsibilities and that's all we need to do and all of jury would need to find that he was within the scope of the claimant is to credit the testimony of the sheriff himself who is the band with the discretion to make these decisions  because there are those facts that they could rely on to find that he even becker was acting in the scope his employment because he was acting at the direction of the sheriff this court should find that he was not manifestly outside of his employment should find that he was under color of law because he was required to act and shouldn't allow this case to proceed to a jury decide that he was actually in the scope his employment as intended by revised code two thousand seven hundred and forty four which intends to set up