i'm going to try to touch on all three the question of the entry into the foyer area the question of the shooting of the pip pool and the state tort claims with respect to the entry into the  on the outside to show that this is number one joe for the record there certainly was a number to address it now was the record it's very clear that in this area of jackson there are many large homes that have been converted into apartments regularly the number on the outside doesn't correspond with the design of the multi unit the inside so certainly whether one concludes certainly officers believe in ensuring what appeared to be a multi unit were of an apartment building was reasonable as a matter of other side of the building this is not a situation where you've got a door and you've got you know five thousand and seventy five and five hundred and thirteen you know placards at that one door not and it turns out it's not a normal building but the building is multiple units even though they were in separate gas meters or separate numbers on the outside that's in record page i d seven  dzhokhar peters testified rep on it and he rapped on the wall as he stepped through into an area and if i think that photographs are very helpful in this because you en it doesn't look like you're in someone's home it looks like you're in an entryway of four your way to a building there is still don't see the living area and richard's testimony is also helpful richard says people were disagree many many times when it was a larger home has been converted into a multi unit home you are entering when you enter in this area all you see is  stairway and you don't see any living area and both perez and richards testified you don't insure their living area until you go up the steps turn go up the steps and then you're in the living area so for the officer who is arriving and who's knocking and announcing himself to try to find out whether this person that they are looking for to take into protective custody under the mental health code steps through thinking it's a multi unit building knox announces himself it's very clear in the audio  doesn't go into the living area and me under the th amendment certainly under the qualified immunity test that would be at at worst a reasonable mainstay which should have been reasonable it seems to me it certainly is a closer case if you conclude the entrance was reasonable i would firmly and strongly disagree with actually inclusion but i don't believe that that would also the outcome with respect to the shooting even the cases that were cited by plaintiffs about shooting dogs it's very clear st of all the question of whether a dog is constitutionally cognizant of property under the th amendment was not there's no robust consensus of cases no case from the th circuit at the time of this incident in fact this court's i think the cases that talk about officers knocking in announcing make very clear that they can do so and i would look for the case i believe in one of the cases the officers were on shooting of the dogs because there was no robust consensus of cases no case from the u s supreme court no case until after this incident from this court and no rob see from all the circuits a ballot or a case that would support your position that we could evaluate the circumstances of the shooting without reference to whether the inference into the building was a legal one right i will look and try to give you the case that i think you know vandar about all cuz it's not coming to my mind but i think it's just for one second and my correct that in the brown decision which was two thousand and sixteen the court recognize look but my understanding is that brown said it was a matter of st impression that there would be constitutional weight and brown came out after this incident we thing about that is there anything in the record about the size of the size of this dog the weight of the dog what is an off the ball but they come in lots of different ranges only ground pit bull and i think what's important about the reasonableness and the shooting as well is it's absolutely undisputed that the dog was right there right there the dog was crowding the dive was barking in fact is himself says he shot the dog quote he harris says that the dog this is a direct quote was right there right there by him ready to bite him and that's what harris and here i also says he shot my dark cloak because he thought my dog was going to bite him given that testimony by harris it seems to me that qualified immunity for a reasonable harris says but my god he was well trained he wouldn't have shot him well the officer doesn't know that it's a pit bull a notoriously dangerous you know that mean that may or may not be a match for the record reflects so let's say it was i don't know cocker spaniel coming down the steps for speedy exhibiting what is absolutely normal canine behavior for some stranger who has entered the change your heifer i'd like to use my hypothetical if he was going to use a ship to a little lapdog you might have a closer question maybe it would even be a question of fact but it seems to me when you have what's described as a full grown pit bull groundling barking and where the owner harris says he was right there right there ready to fire right he shot my died because he thought the dog was going to bite  strong governmental interest in hand protecting our officers allowing officers to protect themselves even those cases that have recognized from other circuits constitutional significance to a dog which this court has only recently done have said if there's an imminent threat shooting the dying is permissible and and it would in my view be i'm reasonable to expect an officer with a pit bull coming at him where where the plaintiff concedes he was right there right there ready to bite him the officer shot the dog because he thought the dog was to bite him the officer doesn't have to wait i mean the thing about a pit bull actually reported is the pit bull has a very strong jaw and there they are they have a kind of strength it's we're not talking about of a little nip of a lap dog here so basically you're the rule of law you would have a i mean there's a pit bull if you're saying it's an inherently dangerous animal fully grown which could be thirty pounds if you some other dog that might be thirty pounds i would dog it was twenty five pounds and poop he would come down the steps barking as well he would have bitten anybody but but anyway it's just sort of this is the pit bull is what you're well what i'm saying i think it's a dangerous course for the courts to basically carte blanche allow the shooting of a pit bull any time that it's involving a pit bull and as i was sitting at council table i was thinking of princess pickles my my beagle dog who is soon as there's a rabbit outside barks and growls and posit the door and things like that i don't think i've seen any case that would  necessarily intimate or rule that a beagle dog is inherently dangerous but boy she shop she sounds bad and i'd be scared if i was here is that allegedly the pit bull attacking was or was a growing am i am approaching the officer well the district court did a very good job of analyzing that and cited michigan case it talks about rolling barking are natural responses of any dog and i find it interesting in this case when all the grown pit bull was  be on top of each of that because there's just no space and well we're getting to the point with whether or not the officer should have been there in the st place and legally there's absolutely no reason for him to step through the threshold of that door and in fact and what the minute we have to consider if we can have a rule can we were an officer can defend themselves if he's on the police illegally or do you have in the case law that would address that well i think i think judge clay i think it's important one of the cases that you said on the panel for the case of brain a versus shark tal talked panel wrote that the th circuit has said that the th amendment draws a firm line and that the or none of this would have happened if if the officer were them run past the front line of the door that's i mean that's going back decades of law and but if you're going to use that case you have to the movies explain the factual circumstances well and that in that case there was the officers arrived  scene there was some pushing and shoving at the door and ultimately the perpetrator who was there didn't want talking more to the police shut the door and then they tried to jarrad open and that's when the rest ensued so again i think it's very clear enact a state principle is the the th amendment mine is that that front door of the home and then go and it was an apartment building and it just a corridor there officer could legally step and sat right i don't know that one because we don't have that situation in this case that iron officer thought that was what it was is at a factor it's a factual question that i think the district court had it right on the nail on the head that has to be determined by the fact finder not the court that the pictures that are in the record as as your honour's noted very clearly early on and sister counsel's argument it's very clear five thirteen separate doorbell separate mailbox separate entrance separate porch steps five hundred and thirteen separate doorbell separate mailbox separate doorstep separate little landing  smaller than the remainder of the building that maybe it was an ad but that's since one building but clearly distinct entrances clearly distinct markings as separate addresses and separate dwelling places  so when you when you consider that then you have to have the fact finder say is his belief reasonable and that's exactly what the district court said and that's what the case illing with qualified immunity own i don't think that's the argument here in this case i'm asking you of that's the that's your i'm at least that's what your argument implies well i don't know because that's not really the issue in this case i think well if we might decide that this this is so you should address the question i think st of all he was not being attacked and i think that the sense that has kind of as the underlying purported inference that he was being attacked there is no evidence he was attacked in fact he was growling and barking that is not in the common sense of the word especially in the common sense of the word that a jury is going to have to assess a being attacked i find it interesting that in the in the audio no video in this case but in the audio in the case the officer knowing that all there is audio and probably not knowing that the case would ever go further that says the dog is biting but that there's a lot now that he comes to the realization that well i didn't go to the doctor i didn't fill out an injury report i didn't show anybody a puncture wound i didn't show no one took pictures he was not attack classic issue for the jury to decide whether or not i mean the argument from the other side it shouldn't have to an officer should not have to wait until he or she is actually b dogs but it's up to a jury to decide a situation like this whether it was reasonable objectively reasonable for the officer to take the action he took  decision that that's a question for the fact finder and again going back to what i said a few moments ago and when you look at the qualified immunity under tolling versus cotton it's fragile he says when there's material questions of fact that are going to dog and again that comes to the classic jury question how much is that worth i mean it would be improper for me to say what that's worth but that's not improper for the jury and kind of going back to judge cole your your question success two thousand and sixteen decision but this is what the court said in that case quote the supreme court and the circuit have yet to decide this issue nevertheless given the fact that every sr circuit has confronted this issue has concluded that an individual has a property right in their dog and that district court within this circuit has concluded to say we hold that this right was clearly established in two thousand and thirteen when the conduct in this action occurred notably that the case which i believe they were firm to is the southern district of ohio case going back to two thousand the new sim vs irwin case one know not being something you should ordinarily you know feel worthwhile but the brown case cuss against you because the shooting of the dog was approved by the court in that case but i think but it's going against what they say it wasn't clearly established and that in two thousand and thirteen you have a court clearly saying pets were property and that's the point whether whether or not they had a right to shoot it or not there was discussion about sr council's argument that he saw the shooting i don't think the record reflects that on page thirty nine of mr harris's deposition the questions asked did you ever hear the officer say get your dog response no ma'am never heard that never heard that and then the officer shot the dog his response i don't know how i'm going to be able to put this to you i heard the door open the screen door open i heard the footsteps at the doorway by that time my dog runs downstairs and grouting at this time i'm going to get my dog by that time i'm looking at the stairway my dogs dead so it doesn't it doesn't appear that he sa i actual shooting the other thing that i think it's clear is that that you know one of the things that you know judge clay you've mentioned a couple times about this spatial arena that we're dealing with in the the fact that it's the fact that it's a small area certainly gave defendant peters more than ample opportunity and means and time to get on the other side of that door and he did in fact the record says oh i think there's a huge question and we were adding these words lunging and things i mean i think the records clear that there is growing and barking and again if he's if he's biting him more he's attacking him as as defendant makes two to a ledger a serve again you would think there'd be a rip in the pants or or a tear mark on the  mean you know sister council said how strong these jobs are the people we have nothing even on the clothing of this officer to indicate that that dog ever even touched his clothes you know but again it goes to the  fact so i don't know how this cuts both ways and may be further evidence that maybe this case should go to true but there was testimony from mr peters he was quote sure at some so a few points in rebuttal what i'd like to focus on is the color fight immunity aspect because i think of words a lot of the more difficult issues that the court has been questioning me about and let's talk about the qualified immunity with respect to the entry there is not a factual dispute here what there is undisputed facts that peters believed he was entering the unit apartment both he and officer garcia testified without dispute that many many homes in this area in the city of jackson have multiple units often without separate addresses gas meters other visible things wiking looking through the open door and seeing not a living area the st floor but merely a stairway a clear impression that this is part of an entryway to a multiple unit apartment i think anybody who's ever been in those kinds of buildings know is that there often is just stairs up to the upper levels and that was what officer peters believe agree that that belief has to be reasonable yes i think it is reasonable here and it's a reasonable mistake of fact for him to be have made and there's no factual dispute about any of those points so based on that it seems to me he's entitled to qualified immunity then looking at the shooting of the dog st of all there is no real authority that i'm aware of that says the officer has to wait until he's actually bitten or the officer isn't entitled to defend himself against a pit bull who is coming at him biting after him which is what his testimony was and where the harris himself said he thought he shot the dog because he thought the dog was going to bite him so there's no dispute about his reasonable belief that it biting at that just it's just want to go don't we have to very clearly that peters thought he was about to be bit so so so based on those facts it seems to me that qualified immunity applies there isn't this isn't a jury question in this court in the supreme court have said well over and over and over again that qualified immunity is intended to be brought in in fact reversed appellate courts time and time again when the appellate courts have issued decisions with a cramped reading of that protection because the whole purpose of qualified immunity is to and i found a case i was thinking of but certainly hardesty township versus him berg and a number of other cases make the point and this is part of this whole curtilage discussion which i think is kind of a red herring because the curtilage discussion what the kernel it's doctrine says is if you're searching in the kernel it's the courts have often held that to be an permissible but they also said when you're going to knock and announce which this officer clearly was doing which is why you hear the knocking why you hear him say police why he doesn't go any further in that circumstance you can enter the curtilage and in fact the courts have said you can even go in the back yard go to the side porch if you think people are there that haven't heard you and that was certainly the case here he thinks he's in the four year of a multi unit building he knocks he says police he announces himself all of that isn't disputed he didn't have a war he did not have a war just looking for this man that had he had an alert or from the probate court and was told that this man correct the brown court does say as of two hundred and thirteen the right was always right was clearly established but it also in the paragraph before that now was what i was focused on and says we decide this is a matter