a cohort of danny griffith i'm here defending officer lynn brown and there are a p bunch aspects of this case that we could talk about in different directions but the record is actually fairly small  i want to hit with here is when most of the bite in home term technique terminate and then i want to talk about some things in the record that were dealt with in a subjective way  the lower court in summary judgment particularly what's in the record in terms of policy and training and what's in the record in terms of time injury and this character discussion first you have to understand a little bit about unlike len brown is a canine officer with horn like he's been there for a very long time his c v is in the record gentleman he has been on three diplomates training military officers in handling of canines  he helped develop their policy their policy in training is extensively developed in the record and now the comments particular to policy here highlight the case and i'm going to start at the back and go into the front but i've got a reason for doing it it's because first and foremost an individual capacity climb whether or not there's a policy violation really shouldn't be anything we're talking about but it demonstrates how the evidence is mis misapplied here  when asked in his deposition about the particular policy and that's where the that's where the policy discussion comes from in the case it comes from the excerpts of deposition of lim brown and the actual policy he explained was is that i've been there the longest in the standard operating procedure is that if i'm out i'm the one on kong and that what happened in this situation is that there is criticism in terms of policy it's that it's clearly subjective and it jumps past evidence and jumps past evidence that if you look at just dennis when i want to prepare for a argument i go looking at the panel and there was a dissent that your honor and judge graves did on the totem versus cotton case and the fact argument about that is exactly part of my point here about policy and time in character evidence and that is that the court ignored evidence around explain that he's the one to go and would you want to have your most experienced on first or to be the one on call the second one about policy evidence your honor is an approach that's taken in here that basically says the policy requires in advance an announcement that's not true that's not what the policy requires the policy would require an announcement if you were doing an apprehension go go sees this person the policy would require an announcement if you were in a building this is the horn like police department we're fixing to come in here with a dog on the policy does not require an announcement if you go in and you're going to  with a dog now why not talk about policy when it's irrelevant because it shows that this is a subjective analysis by the court and it's not objective in terms of time there are discussions in here but he did lay in this summary judgment opinion about he let that don't hang on him for a minute he let that don't hang on him for a minute that's not true the testimony comes in three points there's deposition testimony from mr cooper the first round say that it was one or two minutes going he specifically said more than thirty seconds but less than a minute or two there are three bits of evidence on time the first being when mr cooper says more than thirty seconds and then when he comes back when his attorney ask him he says way more than thirty seconds at least a minute and then mr brown the officer says more than thirty seconds but but shorter than a minute or to the key there though is that the court pounds on this minute and that's just not there if we were looking at that same poll and versus cotton analysis like you just said about three times well it's a range and it is certainly not anything de need to have that dog locked in a leg ideogram while he put on the hand count because he wasn't resisting and that's a concern your honor and that's the parts of the record before then frankly were passed on by the district court so that's the issue at the moment of the threat this young man has a canine who is engaged in a biden home and the canine is holding on to the young man's leg and thousand and six compilation that shows from the time he got out of his vehicle to the time he called in apprehension it was a minute and forty nine seconds own expert normal procedure well in terms of where the dog bite is it would be discretionary with the officer let me explain these animals these canines are highly trained this unit here they've got four units with the city and they may once a month for a complete shift they talk over past deployments and tactics and one of the things that they would cover would be making sure that the animals are trained to bite in non lethal areas lynn brown in his testimony which is in the record and like i said it's just a few pages of both depositions but in his testimony he describes an incident where he first remove the dog before handcuffing the reason he did in that case was because it was injury sensitive and that case an older dog bit a suspect in the neck and head area in a vital area will not just consider use of a canine deadly force but if you bit someone in the neck it certainly could be  severe one thing but they were your own reconstructive surgery and some other thing they were your honor and they're in the picture is what it is and the thing about the injuries you're on that testimony the sole testimony about the cause  injuries again comes from lynn brown they're asking him ok so your dogs trained to bite and non vital areas and how do you explain this injury he said well injury comes from two things where the animal bites and the resistance in opposition to the animal bought a suspect now i realize the district court's take on this is that it's difficult to show your hands when you have a kaina attached to your leg understand every bit of that but be that as it may he ended the threat and as soon i think he didn't delay any longer than handcuffing as soon as it was over he stepped back someone else searched him someone else was immediately there to provide medical attention that was the safest period of time in terms of case law that there's not a fifth circuit case that disapproves a buy and hold technique there's not a fifth circuit case that  that says you cannot use a buy and hold technique there's not a fist case that says you cannot use what's called a drag technique which in this case it's dark the suspect has ran he's had an outside house in a residential neighborhood that canines spots him before the officer the canine reacts the officer has to shine his light on to the young man to see him and his first sight is the dog's on his leg and the young man is got his hands on the dog that takes a bit of time to get him down on the ground he said minutes he's cuffed the officer removes him so now in terms of case law the reason why the top so much about handcuffing in the briefing is that it's a clear point in time i believe in these cases we should try to focus on officer perception if we go back to the original graham versus conner nobody ever talks about the cop the facts of graham in graham it was a diabetic he was starving for orange juice because the anybody with a diabetic in their family knows you've got to get a little bit orange juice when your blood sugar gets love he runs into a convenience store he gets a friend to take him up there he dashes in the he's not doing anything wrong but he's shaken and he needs his own chicks and if you've ever been around anybody you'd understand an officer sees this man bashing in and out of the stove or in fall is it the officers perception is that sometimes funny here he's going in and out of here what's going on before the lines of communication cross between this officer in this gentleman mr graham he has been forcibly taken into custody now where we get from that we get that all of these wonderful quotes but hindsight's twenty twentieth's cetera et cetera but we get the importance of officer perception and an objective standard in this situation the testimony in the record before you from a cli is that he has previously had a situation and knows of others where he pulled a canine off too early now a canine is a tool like anything else it became you can be used properly or misuse in a situation where you pull the canine off too early you can run into a situation of a reengagement and i'll argue in the brief hopefully not too often artfully but how many times are you entitled to run before early in terms of time front you have to back up there is some period of time between the young man and he comes out into the like he's only ground let's say he's on the ground ok lay out spread eagle on the ground let me get your hands and you you're only talking about a few minutes the worst thing that could have happened the man could young man could run again the officer in the young man could end up rolling around on the ground other officers showing up in a  the momentary difference in time is completely authorized under under the officer's discretion from his perception the thing to do and what they are told is to come in first get him in cuffs and back off first i mean from from what you've told me i prefer you directly answered my question but it just doesn't seem to me that there's anything from what you said you knew cage that anything would have happened that would have thing at what point your eyes is not suspected a person but weapon or some someone who's committed some kind of of a robbery or is in any other way dangerous so doesn't doesn't all that play into that the length of the how well it does and that's one is soon as he was in clubs without even searching in the office or backs away posts up and somebody else comes in search because there's an orderly time to do it and the injury the sole testimony as to the injuries being asked or baited is from lin brown and it's in the record and it says it's based on where the dog bites and the degree of resistance both of which are not the duration of this whatever that may be but that's the sole testimony that a jury could infer from now in terms of case law on qualified immunity i don't want to be remiss in not discuss this at some length there just in the case your honor and i'm running quick there's no case alone that compels releasing this young man before handcuffing the ellington versus carroll case has now been cited over and applied in this is not such a case if you had a situation but what you argument i mean you've got a lot of time talking about really most of your argument here so what is it you're saying is so dog off of him as quickly as possible but i make sure he secure first then there's no risk of him getting up and running there's no risk of reengagement this is handled and it was all handled little time sheet in their exhibits jaded a summary judgment that covers th is which let's just say but has it please the court my name is brandon clutches and i'm appreciate the opportunity to be here today to present a case for jacob cooper to start i would like to address some of mr griffith earlier points first of all the time sheets made by mr or officer brown's previous attorney which is on page two sixty four of the record is it is wrong it is absolutely wrong in its assertion and if you would if the court would like me to prove that it is wrong i can supplement the video of the court it says that the canine apprehension was at twenty two fifty six fifty three actually  apprehension was not announced until twenty two fifty seven twenty two twenty nine seconds later twenty nine seconds later doesn't sound that long standing here between and seconds is a significant amount of time when you have a belgian melon while biting your leg and tearing your calf out so the encounter was not one minute in forty one seconds it was at least two minutes and eight hundred seconds and we don't know if when officer brown actually announced cain an apprehension whether the dog was still on him but you didn't remind remind s and obviously only from the record that the extent of the injuries at page one sixty five of the record if you look at it about half of his calf muscles to significant tissue  the officers actually tested the officers went back three or four of them and were searching for the missing piece of his leg and they couldn't find it which only leaves one conclusion that is that the dog ate it so that is the type of injury you're dealing with it was an open wound for two years required several skin grafts surgeries over one hundred thousand dollars in medical expenses it was significant to say the least suggestion leave no argument that this could be admitted this injury but what does the record say if it does deposition of jake cooper mr lynn brown's attorney did lynne brown's attorney tried to get mr cooper to say at page one thirty three of the record that the dog was only realistically about thirty seconds and my client was adamant no it was a minute at least and then goes into a big description of the horrific detail of it while he was laying on his stomach begging to have the dog taken off the he led brown's testimony is clear i took that deposition i said how long was the dog on it kind of silent is it about thirty seconds a even gave him an elbow he chuckled and said no it was longer than thirty seconds but longer than a minute or two so mr griffi characterization of the record just in those brief spots underscores the district courts warning that summary judgment is appropriate in this case to not allow a skilled attorney to alter the record to alter the testimony to allow some degree of recanting in front of a jury since now they know that the record is not in their favor it's quite unusual at least in my experience to see in a case like this a summary judgment granted for the plaintiff obviously we see a lot of appeals from denial of summary judgment on qualified immunity i have a question you've you've said that there's no jurisdictional problem that's what your brief said but of course parties can't concede jurisdiction i question whether there is  the summary judgment that was granted for the plaintiff but assuming there isn't assuming that we can we can look at that how how how would this be the unusual case in which instead of the matter  being remanded for for trial that actually depicted the plight of would be granted summary judgment the district court ruled that summary judgment was appropriate for jacob cooper and in ruling found as a matter of wall that lynn brown's actions were objective leon reasonable under clearly established law this court has jurisdiction  appeal is it is or is is very limited and very specific and i think some of our case law says that it's just unusual for us to have and when i couldn't find any cases that really deal with  this that that that show that we have the ability to to answer any question other than just the denali of qualified immunity your honor i got to be honest with you this is the first time i've ever had a case so clear that i felt that i could thout a motion for s judgment judgment as a plaintiff i haven't found a case directly on point on the jurisdictional issue i can tell you that it is a pure question of law and my understanding of the jurisdiction of this court is that on questions of law this court has other than that i don't know that i can really answer and point to a case that says that other than to say that this is i mean this is the first time as a plaintiff have been able to file for summary judgment and have it granted  cooper's version of the events and it seems that everybody lynn brown of course me and all the parties involved and when to look up the defense's expert all agree that under jacob cooper's version of the events  could decide that there's no specific case like this on the books so that the officer kind of gets one free chance that is to say the first time that we haven't decided it then the officers grant qualified immunity and henceforth officers in the circuit would know whatever it is that we that we rule in your honor i would say that that would be an injustice and i would say the same for this re you work you understand i do understand that your honor but in human versus guidry which is a an opinion which you authored seventy three f third seven fifty seven addressing the clearly established problem you stated that the central concept is fair warning the law can clearly can be clearly established despite notable thankful distinctions between the presidents relied on in the cases the innocent before the court so did lynn brown have fair notice th he could not leave a dog attacking a surrendered compliant nonviolent misdemeanor suspect the seventh circuit addressed a very similar question in becker vs in that case they recognized whom scuse me that no specific case stating an officer cannot leave a dog on a non resisting or at the most passively resisting suspect existed in the seventh circuit however they also noted that the seventh circuit had previously held that using impact weapons under those same circumstances was objective leon reasonable the case went on to hold that a case directly on point is not required for a right to be clearly established officers can still be on notice that their conduct violated establish even in novel factual circumstances very similarly this very circuit has held that using a taser or striking a not resisting suspect without regard for whether he's handcuffed without regard for in it for what limber who play excessive an unreasonable force merely because their means of applying it or not will furthermore in an obvious case which we would contend this is an obvious case that graham excessive force factors themselves can establish the answer even without a body of relevant case law  on obviously unconstitutional conduct simply because his or her particular federal appellate court has not addressed that specific fact pattern as the district court said if this exception did not exist defendants might feel at liberty to engage in a wide variety of obviously unconstitutional conduct which has not yet been declared on lava by a robust consensus of federal appellate authority it also seems clear that there be some mechanism for plaintiffs to break through the general requirement of prior precedent lest law end up essentially frozen in place with little potential for development based on a novel that back patterns or evolving law enforcement practices as a refreshing practical district court also stated that cases involving fact patterns as egregious as this one generally settle before reaching the federal appellate stage the entire argument about when brown that handcuffing is the only clear line without regard for a need for force prior to handcuffing flies in the face of the basic and long standing principles in this circuit with regard to excessive force in ramirez versus knowlton the court make clear that you must balance the amount of force used against the need for that force so the basic question is was the force necessary unnecessary force resulting in injury is by definition excessive force it is very important to note that there has never been any need shown for officer brown to have his dog biting mr cooper at all now under mr cooper's version of the events everyone agrees it would've been excessive because the dog would not have been put on until after mr cooper already wrote his stomach and complied and th ordered the dog to go on everyone agree that would be excessive under brown's version of the events the initial bite was accidental and therefore brown had obviously assessed no need for the dog bite mr cooper at all so without any justification for the the only resistance we were to if we were to determine that we have jurisdiction over the grant of summary judgment and if we were to affirm that grant i'm not suggesting we will or we won't but if we anyway right but again i would pay heed to the district courts warning that evidence can be altered if if a skilled attorney is given the opportunity to do so and at that think that you we've already heard through the altering of testimony in front of this court that that is exactly what they mean to do the only resistance noted by officer brown is at most excuse me cooper's passive resistance  standing up and putting his hands up while he was being attacked by brown's dog were as the district court aptly put it the feats of willpower which officer brown appears to regard as necessary for suspects to perform in order to obtain his mercy but even if hooper had performed the speed of willpower there's no evidence that officer brown would have removed the dog from him he's adamant that he can leave the delavan through handcuffing no matter what despite compliance so the only justification we get from officer brown is well i know of other situations where suspects of have done things after the dog was taken off or whether there was resistance after the dog was removed with a grant factors don't include  analysis of whether there was a threat to safety or a threat of resistance somewhere in the realm of possibilities the graham factors call for an analysis of whether there is an immediate threat to safety or if the person is actively resisting or actively attempting to evade arrest puff light which jacob cooper was not so recognizing that we can't look back in twenty twenty hindsight and second guess an officer who found himself in a tense and rapidly evolving situation to be fair we also cannot do the opposite which is to ex post facto justifying an officer's actions by adding in what ifs and possibly s and he could have said and elements and inferences of danger they were not actually present at the time that's particularly the case where as here an officer violated so many of his own department's policies resulting in this situation brown violated king and policy and horn lake in almost every conceivable way no supervisor approved the deployment at the on seem officer michael press group did not request a canine unit brown deployed without a backup officer and brown failed to make an announcement to give cooper notice that a dog was being used and that there was potential for being bitten and brown conceded that announcement was required he just said he didn't get it so any argument that it wasn't required of the circumstances is simply not true of course the deployment of the dog itself is not a constitutional violation and given more time i could expand on that's actually it would be appropriate if we were saying that was the constitutional violation and appropriate application of  that's a it's a hard question to answer but here that's not the constitutional violation but it certainly plays into the totality of the circumstances so what were the circumstances that night according to the police officers who were there michael press group the underlying charge is a misdemeanor dui or isn't it also fair to in for a though that because they thought he was intoxicated that his behavior might become or be erratic could infer that it might become but it never did so you have to look at whether he posed an immediate threat and i think you're i guess i guess what i'm saying is not knowing that a suspect or a person is intoxicated would lead to a greater expectation would it not that that person would engage him in an erratic possibly violent behavior of some sort be seen a greater change well it all i can speak to  this point is what officer press group said which is he never perceived a threat from cooper at all and he was with him for several minutes now lin brown himself testified cooper would have heard him had he announced mr cooper and never resistor fail to comply with an order other than the order to come out while the dog was already biting him so anything about pulling away causing the injury anything like that he testified there was no resistance there was no pulling away he did not hit the dog he did not push away from the dog he did not kick the dog  i did read that case and i wrote it so i'm come particular interest on what i think what you do it i think one of the points you made and is that he was still in the car so if duis can be viewed as a threat to public safety and the whole point of the excessive force there was they were getting him out of the car they were removing him from the threat so jacob cooper was no longer a threat as far as a dui suspect it was because he was no longer behind the wheel of a car they had his car so in that case i don't believe it was analyzed that he was intoxicated and therefore was a threat it was and he was intoxicated and still behind the wheel of a car and the officers were getting him out of the car and that's that's why he could be perceived as a threat if i remember that case correctly everyone read it once and it was you know not yesterday so with the time running out i would just say that please look at plays the court i wouldn't mind the pilate the evidence but you choose to have a larger stack of copies of depositions in there for it was up to me i won't try this case if i get a chance the question on qualified immunity is pretty clear if you look at for instance the pool case which predates this they put a man with a dislocated elbow into handcuffs if you look at the ellington case there are thirty five days or deployments and multiple strikes before the man's in handcuffs to kicks after which in the two kicks don't get qualified immunity if you look at luna that this circuit went off of their b n time to deliberate time to explore other alternatives and u s supreme court said qualified immunity hadn't been articulated here like that before were to require an immediate risk and no circuit it still enjoys universal application across the country the drag technique which when you pull somebody out into the life of the officer safety there's multiple cases that we've cited that officers are entitled for their own safety to get the situation secured our suggestion to the court is following what we've seen the court do which is to stress a point in time when the person really is secure or not in the context of the un office elaborated on yes he didn't perceive a threat from mr cooper a turned his back on and many ran off you know you don't get it you shouldn't get a second chance to run they've got a burden the evidence there is construed in favor of the officer the time testimony is what it is it's documented and it's a  testimony the policy testimony is the policy the training and the testimony of the officer yet the drum corps is referring to this as though there were a right to an announcement the injury testimony  legal issues that i struggle with the most is one that also a judge dennis and judge graves noticed in the in the dissent and that was how do you square how do you skip question of qualified immunity is there a law a robust consensus of the circuit that compels this officer to disengage before he gets them in handcuffs now if he keeps a dog on a minute after handcuffs i've got a problem with it if he six the da known him and he surrendered i've got a problem with it if you look at the testimony lynn brown does too that's not what happened what happened here is that he took the dog off of him in the stood back and he posted a if he was going to drag it out he would be given you excuses like i had to pat him down before i removed the dog and all that that's not what you had that was a case that you had oral argument on last last fall judge dennis tillman case of mary vs tim and it was a no jurisdiction case because the facts were hotly disputed there's a video that shows a great deal of force in the canine own this young man a long time after what after he's in handcuffs the clear line of demarcation at least for qualified immunity purposes should be and cuffing statement from the court emphasizing that passes down through training when whitney suspect years prostrate on the ground and not resisting washing the dog be pulled back at that point because that delays things your honor he could get up he could run you can have a struggle with the officer he has not been searched he was not searched at the scene oh your own expert testified that was what he usually did but i'd love it if you had the whole expert report i'd love it if his whole deposition was in there and it's not and in terms of what a reasonable officer can perceive in what's been the law in this circuit emphasizing and concern for the amount of damage you do under somebody you know with a dog oh yes or absolutely absolutely but on somebody and leave him alone until you can caffeine not if the man is not resisting well the testimony in the record from lynn brown is that there was never a true surrender in this what's in the only selected pages out of all the depositions in the reports in the record it's a lot of record i've ever run across well ok i'm done i'm just trying to figure out because you're the appellant and you designate the record so i mean did you just designate portions or have them only allowed your honor to designate what was before judge mills and the summary judgment record is completely and in the record but the summary judgment record doesn't contain i'm not making up facts and i'm not get grandstanding and dealing with the case that i was given to try in the case that i was going to try didn't have my client hold a position in the record i wish you could see that well count all right but but if there's a motion for summary judgment and you're defending against that you have the opportunity to present  anything into the summary judgment record and in the district court do you not want why why did you not present those additional portions of the deposition or the hold it was issued it not i was not case i came alone two months before trial so i'm not trying to manipulate the record or enter into any gamesmanship i'm dealing with the record that i have and the record that i have if you look at it from what the statements that are really in there