shooting at a dog but missing the dog and striking the bystander cost to the seizure under the fourth amendment and i think the best place to start for me is at least in the district court's order and  starting with this statement which when we're looking at qualified immunity i think this is a helpful statement at least from my perspective and in that the district court noted that no eleventh circuit case directly addresses how to handle the case where an officer shoots someone he was not aiming to hit and when i read that statement i thought things would go well in the in the remainder of the order and for the most part they did but i've disagreement with the district court with it she went on in her opinion then she decided our opinion unspayed versus gregg's for the proposition that an accidental discharge of a firearm resulting in an unintentional shooting of course on a morass may constitute excessive force under the fourth amendment right and then with the with regard to the to the spy case that that judge would relied upon and by to leaven this court had a later opportunity to address what was done in that case that was a northern district of georgia opinion circuit there is no clearly established right to be free from the accidental application of force during arrest even if that force is deadly and so that later went on to say so the outcome of this case turned itself because that is the court noted at oral argument in the district court specifically asking plaintiffs counsel what case for me the supreme court the eleventh circuit or the georgia supreme court would put the  and fair notice that by firing that dog he was clearly violating the constitutional rights of the plaintiffs plenty of counsel noted that i think that's difficult i think there may not be that particular case out there and so  upon by the district court was revisited by this court also in her opinion cites are two thousand and three decision and on vs cox and those facts are materially different your honor if you have another comment about i've been i'll be glad to address how it's different from this case in that in spin valon the the passenger in the car there was actually the object of capture the there was an intent to  actually put it aside and recognize the passenger as the suspect that had been described with regard to the theft and suddenly the the overarching i think they said the overarching intent was to stop that vehicle to to be able to bring it to a stop and the calls the passenger even though the shooting was directed at the vehicle and possibly at the driver because the suspect and the kid in our case was not a suspect  was the object of the seizure or the intended acquisition of physical control therefore it was a fourth amendment seizure in that circumstance we don't have that here this and this is one of those cases enough seen it in a few district court opinions in which maybe the plaintiffs and ashley was not plaintiff counsel who drafted the complaint but maybe they pled too much in that noting that the intent was to i would say that this is one of those cases and i haven't seen a lot of loneliness but the twamley acknowledge description of what is conceivable vs what is plausible not only was a theory not argued i don't think that based on the allegations of that are in the complaint that it true that it's plausible to conclude that there was a need to to shoot a dog to obtain compliance of an already compliant child out this was not the child was not the object of the seizure there was there was someone out there who was evading capture who was the subject of this it's not in the record but we don't know all of that because we there hadn't been any discovery in and you filed your motion at the pleading stage and normally we decide qualified immunity issues at the summary judgment stage so you're getting in the facts that we don't really you don't really know it seems like it would be premature for us to to the bank robber was attempting to basically carjacked their car and they were shot in the crossfire from from the lawn for fortunate officers with the jacksonville sheriff's department and in that case this co noted and even referenced the von opinion said this court is clearly acknowledge the difference between the events in vonn and the exact situation in this case when an innocent bystander or hostage is accidentally shot by police officers chasing therefore preexisting case law does not clearly establish that apple leaves were seized when off for blacks bullet accidentally struck them during the confrontation with the armed bank robber that case was decided on a motion to dismiss in fact it's only a motion to dismiss standard this court determined that the law was not clearly established in those circumstances and that the case was distinguishable from blood and the burden with regard to qualified immunity is o that the law was truly clearly established and let me tell you how i think this case ought to be analyzed in frankly neither one of you knew the need to brief analyze it this way it seems to me that this child was already seized this this child was on the ground at the command of the offs at gunpoint there's no indication in fact the complaint is pretty clear that this person that has already been satisfied and now we are at the second prong of the fourth ma'am lation namely whether the full was used was on reasonable which seems to be an object of test that does not require an intent with respect to this particular person and and and i understand i've got the benefit of actually having looked at all the evidence in the g b i fallen and all that and understand what the issues down the road might be if that's necessary but that i'm not sure that i agree that that the child was necessarily sees this was more of a situation of bringing a temporary guest detention for safety reasons both of the officer and the judge children because of the intent to occurred only when bullet hit the child bone case and certainly to the extent we find persuasive the spite and cooper case is main that there was no intent to see that child and they have no by lation at all back to mind even if even if even if the child were already seized and this is really directed to the party because i'm not sure and even if the test before us is objectively and under graham i'm not sure that the law is clearly established because there has not been any case that i am aware of where there has was unreasonable in shooting the dog because it was not necessary objective really but they has been no case when where that graham objective test has been applied in a situation where the force was exerted not against that person seized but against even another person but certainly not a doll or  an inanimate object like a hypothetical suppose suppose the offices have arrested two people and put them in the back seat of the patrol car handcuffed so they are seized the officers been trying to catch these people for a long time and and they celebrate and they shoot up in a hour and a bullet hits a traffic light ricochets back  hits one of these people i doubt that that is clearly established even though it was unreasonable to do what they did on the other hand it's a whole lot pretty close and we probably got cases certainly in the way it was transferred intent but al case i think is closer to the traffic light than comment i do have a brief moment i don't think there is a lot of law on that which which would beg for qualified immunity the only cases i found with regard to animals and dogs were a couple of district court cases  from the seventh one was years ago or saddam case both are cited in the brief and the other one is the brandon case but neither of those found that there was a seizure under  with regard to the animal but i'm not sure that the object of the acquisition was under control in those i understand what you're saying and i agree it would be a tougher case if we assume seizure and then have to step to reasonable doubts but i still  don't agree with what i think i hear you saying that there's still not enough to clearly establish you don't let brawl and as any good defense lawyer today it doesn't matter to me if you reverse the district court's decision on my theory or your theory i'll take it either through the facts of the allegations in the case so that the court can use those during then ounces of both the seizure and then the objective reasonableness components of the analysis  as a porter's away or this entire investigation stemmed from a criminal suspect christopher barnett who had been located in the douglas georgia coffee county area specifically he had been seen wandering shot it's undisputed that the plaintiffs miss corbett and then the previous plaintiffs the children and their parents did not know the suspect there's absolutely no indication there was any relation he just happened to be in the  area outside of the mobile home there were a number of people primarily children ranging from the age of eighteen months to eighteen years and there were also adults depute vickers who was a member of the coffee county sheriff's department as well as  ultimately deputy vickers and two agents decided to approach the property and they approached the exterior of the mobile home where the children were mr barnett was also present  the vicar's and the other officers instructed everyone including the children at the scene to get down on the ground and drew pistols to effectuate this order according to the allegations in the complaint several of the children actually had barrels to their backs it was a matter that the complaint does not suggest which officers drew pistols or put the guns on the children for purposes of this particular issue before the court i don't believe so because really what we're looking at is the discharge of the firearm that ultimately struck s t c so the court has already determined those other plaintiffs those other miners whether their claims could survive the motion to dismiss and the court ultimately determined not because there was not enough specificity to determine which officers had the guns in which minors backs as well some other issues but for purposes of this i don't believe so because i think what we're looking at time while the children are on the ground the family dog bruce and the record is not clear about the type of dog it is but the dog apparently comes out from underneath the mobile home and begins to make its way towards the owners we're not sure at this point from the pleadings who the owners are whether it's the children i believe the allegations indicate that the mother was in the actual him so likely the children he was the older one almost eighteen or at least the time the lawsuit was filed eighteen but the ten year old was approximately eighteen inches from deputy vickers and he was the subject of the plaintiff's complaint and so a s bruce's making his way to the owners deputy vickers discharges them with bruises the dog bruces the dog he intentionally discharges the weapon and i think that's a very critical point to make for the court's analysis because the way that this just charges being characterized by the defense is that it was an accidental discharge and the court the trial court went to great lengths to address this and the plaintiff takes the position that the discharge was intentional and that's important because when you look at it in the in the context of the von d cox case what you look at is when a an office are intentionally discharges the weapon or uses some instr mentality intentionally but does not anticipate or does not intend the resulting damage that's really of no consequence for the court's analysis what you look at is did he intend to discharge the weapon and if he set that instrumentality in motion intentionally and he does so and it causes a restriction on the plaintiffs movement then that would be a seizure because that was one of the issues that was before the court and which has been discussed today but that is a seizure and so we have to look at it also in the context of the objective reasonableness test for the core that the good you go so you're arguing today that the the child was seized when the child was struck by the bullet actually i'm arguing that he was seized when he was ordered on the ground because it was because clear where it was a continuation once there was a discharge  firearm and he was struck but the seizure began when he was instructed to get onto the ground and complied with the order of all accounts allegations in the complaint and under mende mendelson the supreme court case basically the test is if the person believes that they are not free to move in this can also include the brandishing of weapons and the threat of force and the threat of the use of the weapons and so obviously with dealing with a child i would think that that test we've passed with flying colors when you have somebody that's not even of the age of majority you've got a essentially a ten year old and bought all accounts was compliant but in any event so the seizure from from our perspective would have occurred at the time that the the gun was drawn plaintiff was forced onto the ground and continued on in through the discharge of the firearm until the time that he was struck but in terms of the defense relies on the site be grigs case that is an accidental discharge case i don't think that has any relationship to what actually happened here  i believe so i'm not certain your honor but the problem with that case is that this was a minor who had fled the scene after the officer had conducted a business based on something tha happened and the miner just happened to be there i believe they had stolen the car when the officer went to go ask them some questions the miner then retreated to the woods and the evidence was at the office holstered his weapon to be able to use the light on his weapon so that he could see into the woods not because he had any sort of interests a patient of harm or intended to use that it was only and he actually despite his training  instructing him not to do that places finger on the actual trigger and then when he went to go i believe tackled the minor after the minor said that he gave up the weapon discharged and it was very clear in that case that  was an accidental unintentional discharge here what we know is that the officer intended to fire at bruce he missed the first time the dog then went underneath him he retreated and then came back out non aggressive banner not to attempt to come towards officer but again to go back to the owners and so when you look at that and what the officer was faced with city making case and in that case it is evident that it's clearly established when there is excessive it when there is any force that is used when there is no threat of harm when there is somebody who is not even a suspect and where there is no one second your own i'm  sorry i'm sorry clearly stabs at the use of excessive force and hearing our arrest constitutes a violation of the fourth amendment in this case there was an arrest there was a seizure within the meaning of the fourth amendment but that case is also important because where one is not suspected of committing a crime there is no threat posed and in individuals not resisting any force is considered excessive in this would be intentional or accidental because it would be a use of force and so regardless of how e because the bullet one intended to stop the child like it was involved the bullet was intended to to stop valon however the bullet was intended to mean control over the situation it was intended to stop the dog and sensibly so that the dog would not cause s t c in the other children and to become distracted that that was the district codes theory but i don't think that's clearly established is it i mean we don't i don't know being a case where that already characterizes excessive i think that this court can use that as guidance for what's clearly established i mean if it's clearly established that using excessive force in carrying out an arrest constitutes a violation of the fourth amendment in that same case says where somebody is not a suspect you know there's no threat posed no resisting any force is excessive i think that that is fair warning for the officer i think that also if you look at that i know it's  unpublished but this might be groups case says you know we've long held that it's a violation of the fourth amendment for a police officer to intentionally use gratuitous and excessive force against a suspect who is under control not resisting in a ban g commands these children were not even suspect said they were a bank commands and force there was an application of force that was used against and this child was the subject of a bullet to the unpublished opinion constitute clearly not i'm not your honor but i think if you read that just to give context to the thorton case and then the vaughn case which says when you intentionally cause an instrumentality to be set in motion that causes this the rather for cases correctly determined that at this stage at the motion to dismiss stage that it could not be held that deputy vickers actions were objective only reasonable that clearly he had warning to know that what he was doing clearly violated an established constitutional right what was that warning that he was violating a clearly established constituted of the voluntary case that he s instrumentality in motion he did it intentionally it was an intentional discharge and that that he would but it was necessarily follow that that would be unreasonable the intentional discharge correct well so in looking at the face of the complaint so he's intentionally discharging his weapon toward a dog so we know the dog from the complaint we know there is a dog we know the dog's name is bruce we know the dog whether the dog we don't know whether the dog is completely  d but we know the dog has movement correct and is able to go under the house and then come out to at least approach the owners per the complaint correct right ok so we've also pointed to i think it's paragraph forty four of your complaint where that bruce posed no threat but that's a legal conclusion we're not bound by that that's correct i think you also look at what we indicated in the complaint which was at no time to deputy vickers asked at the animal be restrained ask anybody that required to said when you have a dog it has movement i think it i don't think it's required but i think again it's additional indication from the allegations about  he perceive well and again we're in the motion to dismiss stage so i'm trying to stick with the with the complaint itself but if you also say that so we take it in your complaint non lethal measures and equipment were readily available that will will take that's in the complaint but that they could have been that they could have been deployed prior to the decision but that's a legal conclusion too as to whether there was sufficient time for an officer to deploy such countermeasures correct i believe so there might be some also factual components of that as well which is they were available to be used but not necessarily the propriety of of actually using them and when i think it was just a statement that there were other safe will safer alternative means available available but but certainly no indication and we're not entitled to take this from the complaint is true that they could have been deployed as a more reasonable alternative because we don't know were not their complaint doesn't talk about whether the dog was charging whether there was sufficient time so that's more of a legal conclusion correct correct such as an appropriate alternative means to subdue bruce i believe that you know the statement in there is that is some at least some level of subduing of the would be authorized by the reading of that paragraph when you read the complaint in its entirety i would also go into judge wilson's question whether an unpublished disposition can  sh clearly established law i do not believe that that is the case and i think the case law that mentions the supreme court and this coordinate and spring court of georgia refers to think again i think it uses the term published decisions of those bodies so i don't think it can however i don't think the converse is true i think that unpublished opinions can illustrate the lack of clarity of the law and we're talking about fair notice to low unfor expect reasonable police officers to know more than reasonable judges about the law and when there's this level of disagreement and that's why i think the cooper vs rather furred opinion is important because it does the court and we said in the work that as the district court found sometimes no factually particularized preexisting case law is necessary or it would be very obvious to every object the reasonable officer facing the defendant's situation that this conduct violated the constitutional rights to be free from excessive force we have to take that into consideration as well though you know you get exact facts i understand that but i also know that there is much there's other authority from this court cautioning an expansion of the obvious clarity doctrine and i don't believe this is a case that you would walk into and say that there's obvious clarity based only allegations in the complaint and based upon these other cases dealing with dealing with whether it was a seizure and and to borrow judge anderson's analogy i mean i don't think that you can say this is an obvious clarity case on the reasonable on this issue even if you assume that we see that is just not this is not one of those cases i'm surprised anderson that the issue or maybe it was you judge wasn't that it was cloudy on the particular issue of reason one is that again support qualified immunity it can't be cloudy it's got to be crystal clear and this is simply not a case as unfortunate as it is it's undisputed at will and we're not undisputed but it's in the complaint that the intent was to shoot the dog that there were at least some measures that could have been used to subdue it but the measures we used were criticized on those circumstances there is no clearly established law that would have put officer vickers on notice that what he did was was unlawful was unreasonable and unlawful and we would ask that you