Appellate Case: 23-1113 Document: 010111013377 Date Filed: 03/11/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 11, 2024
_______________________________________
Christopher M. Wolpert
Clerk of Court
MARY QUINTANA,
Plaintiff - Appellee,
v. No. 23-1113
(D.C. No. 1:20-CV-00214-WJM-KLM)
JUSTIN DODGE, in his individual (D. Colo.)
and official capacity; RICHARD
EBERHARTER, in his individual
and official capacity,
Defendants - Appellants,
and
CITY AND COUNTY OF DENVER,
a municipality,
Defendant.
___________________________________________
ORDER AND JUDGMENT *
_________________________________________
Before BACHARACH, TYMKOVICH, and MATHESON, Circuit Judges.
___________________________________________
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
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This appeal involves immunity under state law. Like many states,
Colorado generally protects its employees from civil liability for torts
committed in the course of employment. Colo. Rev. Stat. Ann. § 24-10-
118. An exception exists when the employee’s conduct is “willful and
wanton.” Id. But what makes conduct willful and wanton?
The parties agree that conduct is willful and wanton when an
employee consciously disregards the harm. But what qualifies as conscious
disregard of a harm? Here the issue arose when the police caused a fire.
They didn’t expect the fire, but knew it was a possibility. Without
awareness that a fire would take place, the police didn’t consciously
disregard the harm. So the conduct wasn’t willful and wanton.
1. Colorado law-enforcement officers react to a gunman after he
injures two other officers.
This case arose from a standoff between a gunman and the Denver
police. The gunman, Mr. Joseph Quintana, was in his mother’s house when
someone called 9-1-1 to report gunshots. The police descended on the
house and learned that the gunman had two arrest warrants. The police
tried to approach Mr. Quintana; but he resisted, shooting and injuring two
officers.
The police tried to negotiate with Mr. Quintana, using loudspeakers
from outside the house; but he refused to leave the house. To coax him
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outside, the police put a robot inside the house to help in negotiating. But
the police couldn’t connect to the robot.
The police then tried using a canister of tear gas, putting it in a metal
container to diffuse the heat and dropping the container in the house. Mr.
Quintana reacted by firing shots inside the house and then going outside.
But he quickly returned inside. The police responded by putting two more
canisters of tear gas inside the metal boxes and dropping them inside the
house. This time, Mr. Quintana stayed inside.
The police noticed that the tear gas hadn’t spread throughout the
house. So the police tried using smaller chemical munitions through
different windows. But Mr. Quintana didn’t relent. So the police decided to
use a fourth canister of tear gas. The police put the canister inside a fourth
metal box, broke a window, and threw the canister inside. A fire erupted,
engulfing the house. Mr. Quintana shot himself and later died from his
injuries.
2. Mr. Quintana’s mother sues, and the district court denies the
motion for summary judgment by two of the police officers.
Mr. Quintana’s mother sued two of the police officers (Justin Dodge
and Richard Eberharter) for negligence. 1 The officers moved for summary
judgment, arguing that they enjoyed immunity under the Colorado
1
Mr. Quintana’s mother also sued the officers under 42 U.S.C. § 1983.
The district court dismissed the § 1983 claims, and Mr. Quintana’s mother
doesn’t appeal these dismissals.
3
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Governmental Immunity Act. This motion turned on Colorado’s statutory
exception for conduct that was willful and wanton. The district court
concluded that a material dispute of fact existed, allowing a reasonable
factfinder to regard the conduct as willful and wanton based on awareness
that the tear gas could cause a fire.
The two police officers appeal. Mr. Quintana’s mother argues that
we lack jurisdiction because the district court’s order wasn’t
final and
the district court was correct on the merits.
3. We have appellate jurisdiction under the collateral-order
doctrine.
Mr. Quintana’s mother moved to dismiss the appeal, arguing that we
lack jurisdiction. The mother acknowledges that she waited too long to file
the motion to dismiss. Our rules state that motions to dismiss should be
filed within fourteen days, and Mr. Quintana’s mother waited three months
to file her motion to dismiss. See 10th Cir. R. 27.3(A)(3)(a). But even if
we were to disregard the motion to dismiss, we would need to make sure
that we have jurisdiction. Tennille v. W. Union Co., 774 F.3d 1249, 1253
n.2 (10th Cir. 2014).
We do have jurisdiction. For appellate jurisdiction, we ordinarily
require a final order. 28 U.S.C. § 1291; Plumhoff v. Rickard, 572 U.S. 765,
771 (2014). But the two police officers invoke the collateral-order
doctrine. This doctrine allows appellate courts to consider some orders as
4
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final even though the action itself is ongoing. Tucker v. Faith Bible Chapel
Int’l, 36 F.4th 1021, 1033–34 (10th Cir. 2022).
We’ve held that the collateral-order doctrine allows defendants to
appeal the denial of immunity under a state law providing governmental
immunity. Sawyers v. Norton, 962 F.3d 1270, 1287 (10th Cir. 2020); Aspen
Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d
832, 837 (10th Cir. 2003). 2 Under these holdings, the two officers could
appeal the denial of immunity under Colorado’s law on governmental
immunity.
Mr. Quintana’s mother points out that we disallowed an interlocutory
appeal in Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019).
There the district court denied immunity under the Colorado Governmental
Immunity Act, and the defendant tried to appeal before the case was over.
We reasoned that the defendant had needed to show a basis for appellate
jurisdiction. Ceballos, 919 F.3d at 1223 (citing EEOC v. PJ Utah, LLC,
2
Sawyers and Aspen addressed motions for dismissal rather than
summary judgment. Sawyers, 962 F.3d at 1287; Aspen, 353 F.3d at 837.
But these opinions relied on the Colorado Governmental Immunity Act’s
function in providing “immunity from suit.” Aspen, 353 F.3d at 837;
Sawyers, 962 F.3d at 1287 (quoting Aspen, 353 F.3d at 837). The denial of
summary judgment subjects a defendant to suit, triggering the collateral-
order doctrine—just as the denial of a motion to dismiss would—by
“finally and conclusively determin[ing] the defendant’s claim of right not
to stand trial on the plaintiff’s allegations.” Mitchell v. Forsyth, 472 U.S.
511, 527 (1985) (emphasis in original).
5
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822 F.3d 536, 542 n.7 (10th Cir. 2016)). But the defendant hadn’t invoked
the collateral-order doctrine. As a result, we concluded that the defendant
hadn’t shown a basis for appellate jurisdiction. Id. (stating that the
defendant “offers no basis grounded in federal law that permits us to
consider this portion of his interlocutory appeal”); see also Raley v.
Hyundai Motor Co., Ltd., 642 F.3d 1271, 1275 (10th Cir. 2011) (“It is the
appellant’s burden, not ours, to conjure up possible theories to invoke our
legal authority to hear her appeal.”). So we dismissed the defendant’s
appellate argument involving immunity under Colorado law. Ceballos, 919
F.3d at 1223.
Our case is different because the two police officers have invoked
the collateral-order doctrine, satisfying their burden to show the basis of
appellate jurisdiction. Unlike the defendant in Estate of Ceballos, the
defendants in our case haven’t waived reliance on the collateral-order
doctrine.
But even when the collateral-order doctrine applies, our jurisdiction
is limited. We can consider abstract questions of law, but not the
sufficiency of the evidence to survive summary judgment. Johnson v.
Jones, 515 U.S. 304, 307, 313–14 (1995). So we must determine whether
the police officers are raising abstract questions of law or challenging the
sufficiency of the evidence to survive summary judgment.
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Here the district court relied on historical facts that had been
undisputed. These facts include the police officers’ launch of a fourth tear-
gas canister, knowing that it was flammable but not expecting a fire. The
question is purely legal: Do the defendants’ actions, with an awareness of
the risk, constitute willful and wanton conduct under the exception in
Colorado’s law on governmental immunity? This abstract legal question
creates appellate jurisdiction under the collateral-order doctrine. So we
deny the mother’s motion to dismiss this appeal. 3
4. The officers enjoyed immunity under Colorado law because their
actions were not willful and wanton.
The district court concluded that the evidence created a dispute of
material fact on whether the officers’ conduct had been willful and wanton.
So the court rejected the officers’ argument for summary judgment based
on sovereign immunity. But based on the undisputed historical facts
underlying the district court’s decision, the officers’ actions had not been
willful and wanton. So we reverse.
3
When assessing a qualified immunity defense at summary judgment,
the district court must identify the facts that a reasonable jury could infer
from the evidence. Lewis v. Tripp, 604 F.3d 1221, 1226 (10th Cir. 2010).
In identifying these facts, the district court should provide “the who, what,
when, where, and why.” Id. If a district court does not say what a
reasonable jury could find at summary judgment, we may need to undertake
a “cumbersome review of the record” to determine those facts. Johnson v.
Jones, 515 U.S. 304, 319 (1995). But the district court stated the facts
underlying the denial of summary judgment. Appellants’ App’x at 265–66.
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A. We conduct de novo review of the district court’s denial of
summary judgment.
We conduct de novo review on questions of immunity under the
Colorado Governmental Immunity Act. Sawyers v. Norton, 962 F.3d 1270,
1288 (10th Cir. 2020); see also Sac & Fox Nation v. Hanson, 47 F.3d 1061,
1063 (10th Cir. 1995) (“We review de novo the legal question of when a
party can assert sovereign immunity.”). We use the same standard applied
by the district court. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461
(10th Cir. 2013). Under this standard, we view the evidence favorably to
the nonmovant (Mr. Quintana’s mother), and draw all reasonable
inferences in her favor. Id.
B. Conduct is willful and wanton when the officer is aware that
the alleged harm would result.
Under the Colorado Governmental Immunity Act, public employees
generally can’t incur liability for injuries arising from conduct in the
course of employment. Colo. Rev. Stat. Ann. § 24-10-118. But an
exception exists when the conduct was willful and wanton. Id.
Conduct is willful and wanton when the defendant consciously
disregards the danger. Estate of George v. City of Rifle, Colo., 85 F.4th
1300, 1322 (10th Cir. 2023). But what level of awareness is required for
conscious disregard of the danger? We answered this question in McDonald
v. Wise, holding that conduct is considered willful and wanton under
Colorado’s Governmental Immunity Act only when
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the conduct had been specifically calculated to cause the
alleged harm or
the defendant had been aware that the conduct would cause the
harm.
769 F.3d 1202, 1218 (10th Cir. 2014); see also Wilson v. Meyer, 126 P.3d
276, 282–83 (Colo. App. 2005) (reasoning that the complaint had failed to
allege willful and wanton conduct, for purposes of immunity, because the
plaintiff hadn’t alleged facts showing that the defendant calculated her
conduct to cause the harm or was aware that the conduct would cause the
harm).
We are bound by the McDonald panel’s interpretation of state law
unless the state’s highest court later resolved the issue. Wankier v. Crown
Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003); see also Koch v. Koch
Indus., Inc., 203 F.3d 1202, 1231 (10th Cir. 2000) (“Following the doctrine
of stare decisis, one panel of this court must follow a prior panel’s
interpretation of state law, absent a supervening declaration to the contrary
by that state’s courts or an intervening change in the state’s law.”). 4
4
The police officers don’t cite McDonald or argue that willful and
wanton conduct requires an awareness that the harm will occur. Instead,
the police officers argue that willful and wanton conduct requires proof
that they “purposefully pursued an activity that they considered, more
likely than not, would result in the alleged wrong.” Appellants’ Opening
Br. at 24. But “once an argument is before us, it is our job to get the
relevant case law right.” Flyers Rights Educ. Fund, Inc. v. FAA, 864 F.3d
738, 748 n.6 (D.C. Cir. 2017). So we must use our “full knowledge of [our]
own and other relevant precedents.” Elder v. Holloway, 510 U.S. 510, 516
9
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Since our opinion in McDonald, the Colorado Supreme Court has not
said anything inconsistent with our articulation of the test for willful and
wanton conduct. For example, in Martinez v. Estate of Bleck, the Colorado
Supreme Court declined to choose from a single definition of willful and
wanton conduct. 379 P.3d 315, 323 (Colo. 2016). The court instead noted
that all of the definitions share a requirement that the defendant
consciously disregarded the danger. Id. 5
Because the Colorado Supreme Court has not cast doubt on our
articulation of the test in McDonald, we consider whether a reasonable jury
could find that the police officers had been aware that a fire would result
from the fourth canister of tear gas.
(1994) (quoting Davis v. Scherer, 468 U.S. 183, 192 n.9 (1984)) (cleaned
up).
5
In McDonald, we cited City of Lakewood v. Brace, 919 P.2d 231,
245–46 (Colo. 1996) for the proposition that a determination of willful and
wanton conduct involves a fact issue that must await a trial on the merits.
McDonald, 769 F.3d at 1218. The Colorado Supreme Court later overruled
the portion of Brace that we had cited in McDonald. Martinez v. Estate of
Bleck, 379 P.3d at 321–22.
But in McDonald, we didn’t rely on Brace for our conclusion that
willful and wanton conduct exists only when defendants are aware that
their conduct would cause the harm. 769 F.3d at 1218. For that conclusion,
we relied on Wilson v. Meyer, 126 P.3d 276, 282 (Colo. App. 2005). The
Colorado appellate courts haven’t questioned the continued viability of
Meyer, and the Colorado Supreme Court has not abrogated our conclusion
in McDonald that conduct is willful and wanton only if the actor is aware
that the harm will result. 769 F.3d at 1218.
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C. No reasonable jury could find that the officers had been
aware that the fourth canister of tear gas would cause a fire.
The historical facts are largely undisputed. Mr. Quintana refused to
leave the house, the police officers tried to force him out, and the police
officers threw four canisters of tear gas inside the house with awareness
that a fire might result. But there’s no evidence that the police officers
expected a fire from the tear gas.
The district court concluded that a genuine dispute of fact existed,
pointing to three pieces of evidence regarding the officers’ awareness of a
risk:
1. The manufacturer of the tear-gas canisters had warned against
using them on “rooftops, in crawl spaces, or indoors due to
[their] fire-producing capability.”
2. The two officers had known that the tear-gas canisters could
cause a fire.
3. One of these officers had thrown the fourth canister inside a
window without looking to see where the canister landed.
Appellants’ App’x at 265–66 (alteration in original).
The district court correctly concluded that the police officers were
aware that the tear gas could cause a fire. Id. at 262. But that conclusion
wouldn’t satisfy the McDonald standard for willful and wanton conduct.
Under that standard, Mr. Quintana’s mother needed to show that the police
officers were aware that a fire would result. The mother didn’t present any
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evidence that the police officers knew that the fourth canister of tear gas
would cause a fire.
The two police officers stated under oath that they
regarded the risk of a fire as “highly unlikely based on [their]
extensive experience with burn boxes,”
had seen the deployment of several tear-gas canisters inside
metal boxes without igniting, and
didn’t know of any other instances where a fire had resulted
from the deployment of a canister of tear-gas inside a metal
box.
Id. at 188–89. Mr. Quintana’s mother didn’t present any contrary evidence,
and the district court didn’t identify any facts suggesting that the police
officers had known that a fire would result from the fourth canister of tear
gas.
Granted, the factfinder could infer that the police officers had not
adequately considered the extent of the risk. For example, Mr. Quintana’s
mother points to evidence that the police officers had recognized the
possibility of a fire when someone puts tear gas inside a metal box. And
the officers admitted they had failed to
consider the types and dimensions of the metal boxes or
practice or experiment with the use of tear-gas canisters inside
metal boxes.
But negligence doesn’t imply willful and wanton conduct. See Martinez v.
Estate of Bleck, 379 P.3d 315, 318 (Colo. 2016) (stating that willful and
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wanton conduct requires more than a failure to reasonably recognize the
danger). So the police officers’ alleged lapses couldn’t support an
awareness that the fourth canister of tear gas would cause a fire.
Because the plaintiff lacked evidence that the officers had recognized
that the fourth tear-gas canister would cause a fire, no reasonable jury
could have regarded the conduct as willful and wanton. So the police
officers should have obtained summary judgment based on their immunity
under the Colorado Governmental Immunity Act. We thus reverse the
denial of their summary-judgment motion and remand with instructions to
grant the police officers’ motion. 6
Entered for the Court
Robert E. Bacharach
Circuit Judge
6
In the alternative, the police officers ask us to remand for an
evidentiary hearing. We need not address this request because we’re
reversing on the police officers’ primary argument involving the denial of
their motion for summary judgment.
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23-1113, Quintana v. Dodge
TYMKOVICH, Circuit Judge, concurring.
I join the opinion in full. I write separately because I conclude the district court
also erred by treating the § 24-10-118 immunity determination as a question for the jury
to resolve.1
I. Colo. Rev. Stat. § 24-10-118
The Colorado Governmental Immunity Act (CGIA) provides the following limited
sovereign immunity to public employees:
A public employee shall be immune from liability in any
claim for injury . . . which lies in tort or could lie in tort . . .
and which arises out of an act or omission of such employee
occurring during the performance of his duties and within the
scope of his employment unless the act or omission causing
such injury was willful and wanton[.]
Colo. Rev. Stat. § 24-10-118(2)(a) (emphasis added).
While § (2)(a) characterizes an employee’s immunity as being “from liability,” §
24-10-118(2.5) refers to this immunity as “sovereign immunity.” The Colorado Supreme
Court subsequently clarified that § 24-10-118 immunity is in fact “sovereign immunity”
from “suit.” Martinez v. Estate of Bleck, 379 P.3d 315, 317, 320 (Colo. 2016) (Eid, J.).
Section 24-10-118(2.5) further provides:
If a public employee raises the issue of sovereign immunity
prior to or after the commencement of discovery, the court
shall suspend discovery; except that any discovery necessary
to decide the issue of sovereign immunity shall be allowed to
1
While the opinion focuses on Colo. Rev. Stat. Ann. § 24-10-105(1), the district court
discussed the immunity determination in the context of Colo. Rev. Stat. Ann. § 24-10-
118. In any case, the CGIA analysis remains the same here.
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proceed, and the court shall decide such issue on motion. The
court’s decision on such motion shall be a final judgment and
shall be subject to interlocutory appeal.
Colo. Rev. Stat. Ann. § 24-10-118(2.5) (emphasis added).
As I understand this language and the cases interpreting it, Colorado trial courts
must determine “all issues pertaining to sovereign immunity prior to trial, including
factual issues . . . .” Martinez, 379 P.3d at 322 (emphasis added); see also L.J. v.
Carricato, 413 P.3d 1280, 1288 (Colo. App. 2018) (“The district court must determine
whether the conduct was in fact willful and wanton.”) (citing Martinez, 379 P.3d at 317–
18, 322) (emphasis added). In considering whether a public employee’s conduct was
willful and wanton, “the trial court should determine whether [the employee’s] conduct
exhibited a conscious disregard for the danger.” Martinez, 379 P.3d at 323.
In Martinez, the Colorado Supreme Court held, among other things, that pretrial
determination of § 24-10-118 immunity is subject to certain procedures. 379 P.3d at 322
(“[T]he determination regarding a public employee’s claim to sovereign immunity is
subject to all of [Colorado’s] procedures applicable to sovereign immunity
determinations.”). The question for our purposes, however, is whether the pretrial
immunity determination is itself procedural. This is significant: since state procedural
law ordinarily does not govern proceedings in federal court, if the pretrial immunity
determination is procedural, then it does not apply to federal courts. See, e.g., Racher v.
Westlake Nursing Home Ltd. P’ship, 871 F.3d 1152, 1162 (10th Cir. 2017) (“[T]he Erie
doctrine instructs that federal courts must apply state substantive law and federal
procedural law.”).
2
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Because I conclude the determination itself is not procedural, I would hold that
federal courts must determine whether § 24-10-118 immunity applies before trial.
II. Our Prior Cases Interpreting § 24-10-118
State procedural law ordinarily does not govern proceedings in federal court. See,
e.g., Racher, 871 F.3d at 1162. We have cited this principle in two nonprecedential
opinions to generally conclude that § 24-10-118 does not apply in federal court. But
neither case definitively answers the question posed above.
In the first such case, Scott v. Cary, we wrote:
Defendants cite [Martinez] for the proposition that Colorado
requires courts to decide the issue of sovereign immunity on
motion before trial. But state procedural law ordinarily does
not govern proceedings in federal court; and in any event
there are adequate federal procedures for disposing of
immunity issues before trial without reliance on Rule
12(b)(1). We therefore agree with the district court that the
proper framework for addressing Defendants’ motion was
under Federal Rule of Civil Procedure 12(b)(6).
829 F. App’x 334, 336–37 (10th Cir. 2020) (unpublished) (emphasis added).
Notably, Scott reasoned that the immunity determination need not be made
immediately when raised “upon motion” (there a Rule 12(b)(1) motion)—unlike in
Colorado—because “adequate federal procedures” existed for making the determination
“before trial.” Id. at 337. In so reasoning, Scott explicitly acknowledged that the
immunity determination should be made “before trial”—just not by the procedural
mechanisms outlined in § 24-10-118 and Martinez.2
2
Scott also concerned the Plaintiff’s compliance with the CGIA’s notice provisions—a
jurisdictional defect directly addressed by the federal rules and so inapplicable in federal
3
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Shortly thereafter a panel of this court relied on that same reasoning in a second
case, explaining “we recently rejected an argument that Colorado’s procedural rules
governing the [CGIA] apply in federal court.” Schmitz v. Colo. State Patrol, 841 F.
App’x 45, 50 (10th Cir. 2020) (unpublished). Schmitz, like Scott, came to us before
summary judgment—this time on the district court’s denial of a Rule 12(b)(6) motion.
Also, like Scott, Schmitz turned on a procedural element of the CGIA in direct conflict
with a federal rule—the heightened pleading requirements. Id. at 49.
In Schmitz, moreover, we conceded to only conducting an “abbreviated review” of
the CGIA’s procedural applicability to federal courts because the parties failed to
adequately brief the issue:
At the outset, we emphasize that, in crafting their arguments,
the parties merely assume the state procedures apply without
so much as a passing reference to the governing caselaw for
assessing whether a state procedural law applies in federal
court, namely Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L.Ed. 1188 (1938) and Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins., 559 U.S. 393, 130 S. Ct. 1431,
176 L.Ed.2d 311 (2010) . . . our abbreviated review suggests
that Colorado’s procedural law doesn’t apply here.
Id. at 50.
Appellants here did not make the same mistake. Aplt. Br. 25–30. As I explain
next, § 24-10-118 is substantive for Erie purposes because it immunizes public
employees from suit prior to trial. Federal law provides no comparable procedure or
protection. Accordingly, applying Erie and Shady Grove, federal courts are required to
court. Id. at 336; Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins., 559 U.S. 393
(2010).
4
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make the immunity determination before trial, but the procedures for doing so outlined in
§§ 24-10-118, 108, and Martinez are otherwise inapplicable.
III. Analysis
A. Colorado Created a Right to Sovereign Immunity for Public Employees
Absent Willful and Wanton Conduct.
As detailed above, § 24-10-118(1) immunizes public employees from tort trials
“unless the act or omission causing such injury was willful and wanton.” Martinez, 379
P.3d at 319. Thus, public employees in Colorado enjoy a right to be free from trial when
their underlying conduct was not willful or wanton. Id.; Schmitz, 841 F. App’x at 49
(“[T]he plaintiff bears the burden to prove that a public employee has waived the right to
sovereign immunity.”) (citations omitted and emphasis added); see also Decker v. IHC
Hosps., Inc., 982 F.2d 433, 437 (10th Cir. 1992) (“immunity from suit rather than a mere
defense to liability” is a “right to be free from trial”).
But realizing this right—and avoiding trial—presupposes that the immunity’s
applicability will be determined before trial. Id. at 435 (citing Mitchell v. Forsyth, 472
U.S. 511, 526 (1985)) (immunity “is effectively lost if a case is erroneously permitted to
go to trial.”). The question for us is whether the antecedent pretrial determination is
substantive, such that it applies in federal court, or procedural, such that it does not.
B. Pretrial Determination of the Immunity’s Applicability Is So Bound Up in
the Right that it Defines the Scope of that Right.
The “Erie doctrine instructs that federal courts must apply state substantive law
and federal procedural law” in diversity cases and when exercising pendent jurisdiction
5
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over state law claims. See, e.g., Racher, 871 F.3d at 1162; Felder v. Casey, 487 U.S.
131, 151 (1988).
If a federal rule “answers the question in dispute” it “governs—[State] law
notwithstanding . . . .’” Shady Grove, 559 U.S. at 398. The question in dispute here is
whether a federal district court must make the § 24-10-118 immunity determination
before trial. While the federal rules provide adequate procedures for making that
determination—Rule 12(b)(6) and Rule 56, for example—no rule controls precisely how
or when immunity determinations are to be made.
But concluding that no federal rule controls pretrial immunity determinations does
not answer the question of whether the § 24-10-118 immunity determination is
procedural or substantive. “To decide whether a state law is substantive and therefore
applicable in federal courts, courts must decide whether applying the law will
significantly affect the outcome of the litigation.” Racher, 871 F.3d at 1164. In practice,
a state law is substantive when it “bears on a State-created right vitally and not merely
formally or negligibly.” Guaranty Trust Co. v. York, 326 U.S. 99, 110 (1945). “[T]he
outcome of the litigation in the federal court should be substantially the same, so far as
legal rules determine the outcome of a litigation, as it would be if tried in a State court.”
Id. at 109.
Determining immunity before trial significantly affects the outcome of the
litigation. See Racher, 871 F.3d at 1162. If the immunity applies, there is no trial on the
plaintiff’s state tort claims. If it does not, the public employee faces a trial and liability
for those claims. Here, the district court left the resolution of the immunity determination
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to the jury. Consequently, barring our intervention, Appellants “effectively lost” the
immunity right because their “case [was] erroneously permitted to go to trial.” Decker,
982 F.2d at 435 (citing Mitchell, 472 U.S. at 526).
Colorado created a right for public employees to be free from trial provided their
underlying putatively tortious conduct was not willful and wanton. Pretrial determination
of willful and wantonness “bears on [that right] vitally” because it is a precondition for
realizing that right. Guaranty Trust, 326 U.S. at 110. Put another way, pretrial
determination is inextricably bound to the right to be free from trial because it is a
prerequisite to determining whether the immunity applies. See Racher, 871 F.3d at 1164
(“[a] state procedural rule, though undeniably ‘procedural’ in the ordinary sense of the
term, may exist to influence substantive outcomes, and may in some instances become so
bound up with the state-created right or remedy that it defines the scope of that
substantive right or remedy.”) (citing Shady Grove, 559 U.S. at 419 (Stevens, J.,
concurring)).
Thus, the issue is one to be resolved by the district court prior to trial.
In Most Circumstances District Courts Should Make the Immunity Determination by
Summary Judgment.
Precisely when and how the § 24-10-118 immunity determination is made will
depend on the circumstances of the case and is at the district court’s discretion, subject to
the federal rules. But what the court must do is make a final immunity determination
before trial—it cannot leave the resolution of that determination to the jury.
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Generally, this determination will have been made by the summary judgment
stage. By then, record evidence of whether the employee’s “conduct exhibited a
conscious disregard of the danger” either will, or will not, exist. Martinez, 379 P.3d at
323. And after summary judgment, few—if any—“adequate federal procedures” exist
for “disposing of immunity issues.”3 Scott, 829 F. App’x at 337.
As the majority explained, Appellee failed to identify evidence proving the
immunity’s inapplicability, entitling the officers to judgment as a matter of law regarding
sovereign immunity. Schmitz, 841 F. App’x at 49 (“[T]he plaintiff bears the burden to
prove that a public employee has waived the right to sovereign immunity.”) (citing Gray
v. Univ. of Colo. Hosp. Auth., 284 P.3d 191, 195 (Colo. App. 2019)). But the district
3
It is possible that, in a narrow band of circumstances, the question of whether a state
employee’s “conduct exhibited a conscious disregard of the danger,” Martinez, 379 P.3d
at 323, “cannot be resolved without observation of the demeanor of a witness in order to
evaluate their credibility.” See Advisory Committee Notes to 1936 amendment of Fed.
R. Civ. P. 56. But “[o]n summary judgment, a district court may not weigh the
credibility of the witnesses.” Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008).
In those rare cases where the court decides immunity at summary judgment, and the
applicability of immunity turns on a material dispute regarding a witness’s credibility, the
rules do not permit courts to grant summary judgment based on its own credibility
determinations. So, the proper course is to deny the motion on that basis and conduct a
supplemental pretrial hearing—pursuant to Fed. R. Evid. 104(c) or another applicable
federal rule—to resolve the credibility issue and determine the immunity’s applicability.
See, e.g., Martinez, 379 P.3d at 322 (“trial courts must resolve all issues pertaining to
sovereign immunity prior to trial, including factual issues . . . [t]his may require the trial
court to hold an evidentiary, or ‘Trinity,’ hearing in order to determine whether immunity
applies”). Of course, a federal court may also hold a hearing analogous to a Trinity
hearing earlier if it would be helpful to the court in making the requisite pretrial
immunity determination.
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court should not have left the willful and wantonness determination—and thus the
immunity determination—for the jury to resolve.
IV. Conclusion
For the foregoing reasons, I concur with the majority but separately conclude
federal courts may not leave the § 24-10-118 immunity determination for the jury to
resolve, and instead must make the determination before trial.
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