portion of his way at the same time he repeatedly struck mr mccain in the head of the con so forcefully that he needed several staples to close his wound and for good measure they paced him up he was on the ground the district handcuffed to nd hand and removed him from the cell importantly mr mckinney denies ever hearing canine and he also denied hearing any warning that he would be bitten by a dog moreover in addition to the fact there was no warning under was not trained for use in excel attraction and it was clearly established at the time of this incident two thousand and eleven that improperly trained dog exactly did have a ball and plus it was improperly used in this circumstance hundreds of patrol dogs not a cell attraction dog but i'm sorry but you're saying that the reason why hunter was not trained to because he was dog is not being used to drag him out of the sale and move him somewhere else it's being used to subdue him so that they could put him to something right the dog is just being used to subdue i think there's a dispute there's a dispute of fact that's what the purpose of using hunter was in the cell so yes on the one hand they argue that he was being used to being subdued but on the other hand mr mckinney argued that he had already been subdued at the point that is something that is force and up covered but well if you know that that's a different issue from the question of whether but dog was or was not trained to do something that never really occur moreover certain codes is we would use the sergeant for the statewide connecticut canine training program said that dogs are not trained for use in cell extracts and and there's clearly established law at the time of that incident general oh yes but i just i just said you a little bit ago i said but at the time that they used the police there was already a struggle underway that he had lunch with a baton and was struggling with the other officer and so i said well why would you need to have a word with me so this they're already engaged in a fight and you said welder hadn't even been an initial warning at the beginning so i wasn't your warning about the dog relying on there not being an initial warning at the beginning warning is critical to the court analysis and isn't just to clarify that so your argument is that even though they were struggling over the baton the officers were required to issue a separate warning that they were going to utilize the dog that's correct and also there's a dispute as to whether or not i mean at what point hunter was used and whether or not there was any still any acti representing the defendant as your honour's no summary judgment is decided based on the undisputed fact and for at least the past twenty years in our district in connecticut we have a procedure in place that defines what those undisputed facts are so the district court can properly decide the motion the defendant files a fifty six dollars day one local rule identifying all of the claims undisputed facts with support from the record and the immunity issue there are no disputing the fact we have a we have a nucleus of salient facts under our crops and the plaintiff has admitted d all the facts necessary to go to award qualified immunity we went through this process did you said you didn't remember and all sorts of things but if you look at the facts as they were things like the different police officers that's what created the dispute different police they were reasonable in trying to get into it so they were reasonable d in trying to subdue him when he was trying to question is whether they were still doing something that he was he was resisting and had a hold of a police officers that time at the time the dog was directed to was lower leg not to extract him but the biting hold and cause pain compliance that undisputed undisputed by mr mckinney and too but she seemed to suggest that it was disputed as to whether the dog was put on him after he had been subdued but i thought that just the relevant dispute or the existing dispute was it was disputed as to whether he ha stopped resisting and they did not immediately remove the dog but that it's clear that the dog was put on him while he was still actively resisting is that your understanding is there are there any  dog was ordered to bite him he had a hole he was fighting with the bolt on the baton and that is what the that's what incrementally raise the force to use the dog to bite and hold his right leg to get him down the issue the party seemed to think that his resistance was passionate after they applied the teaser and he went to the ground but my understanding and i'd like you to confirm this is that it was disputed that the dog was put on him before the teenager was applied and so the question is whether it is excessive force to continue to use a dog after he had been actively resisting but at the moment is the only  or whether it's required to remove the dog immediately but is there anything in the record or any facts that would suggest that they initiated use of the dogs after he had already been put on the ground in africa already thinking no and in fact it's if you have one hand in handcuffs and they did get his left hand and hand cut from the taser you're saying you're not safe until you have the right hand in hand because of his left hand break three he has a weapon that he can swing in to persons where and they are not once again not an extract right or so you're so you're arguing that even if he was captured after being tasered until he was fully into it would have been legitimate to continue to use the dog resisting that before you use a drug user to give the warning well in two thousand and ten that was not the bob but we did give warning all right i don't thirty that's a question for you it was me says i'm sorry he says d there are no warning and we have a case called bronco which says that when somebody says i didn't hear when they would have heard a warning was given that now we spotting with your baton and potentially as a deadly weapon and it's you and you you don't issue a warning when feasible so that someone can then perform their conduct but this man is an active combat and he's not you know so you know so i would during the process that mr mckinney admitted occurred the st there was an attempt to brace him against the wall he then struggled with the baton and once he had the potential to have a deadly weapon in its hand then that's when hunter was directed to his command to try to get someone to listen to your verbal command if he put your put on a watch mode the dog barks and to listen to a german shepherd market scares a lot of people and they're like ok i'm not going to fight i'm going to let you handcuff me and so doesn't mean now and the dog is on his own he's not being commanded by the police and he's and he's just going to do crazy dog things wired up just means he's on watch mode and he was supposed to conform mr mckinney to what they wanted to do but he didn't it didn't work out but he was clearly directed that is in our undisputed record i was it was directed by putting hairs on that but the point is judge no matter how much how many ways to look at the tiny little differences and no one sees that the same accident from the four corners of the intersection exactly the same way but it's under your there was a man out of hand  to force and clearly defined my response to that your honor is there is no dispute the facts on the important sequence that leads to qualified immunity the initial command to hand i hear you when th told to stop resisting and he didn't when he did that's where handcuffing happened the dog was not sent in to extract him there was no issue about that he was not you know he didn't he didn't grab the baton to stop the beating he was being pushed up against a wall with a baton he wasn't being beaten that's nowhere except the plaintiff the pellet brief that he wanted and was charged with charged and hit someone in the head no one says that so you might be able to find a little bit if you want to put th thousand power microscope on all these police reports that someone says this and someone said a little different but on all the salient facts that lead you down the path of a concrete nucleus and what's to decide you get to the point where that four months before where there was a noncompliance suspect who was hit over the head with a flashlight several times jumped on by the officer forcibly moved from the ground even though it was in pain and he couldn't move and then all of that was  deemed not clearly established you couldn't do that a qualified immunity applied so this is four months before our event in middletown this comes from the court of appeals and the one thing that the advice or was something that wasn't protected and that was pepper spray inches from then there's a dispute as to whether he can do to actually resist or it was only passably resisting and so the argument is if he was only passively resisting at that point was it excessive that they continue to allow the dog thing my deposition didn't contain it admission but i now in this statement admitting to this version of events that not the most straightforward way to read it i don't think that's the most reported way to read it  correct your honor and even during that deposition he also says make similar comments and they say that that's what they saw you know they said he can't dispute it but if you look at his deposition he does he may not have a have a basis because he is took the money from other parties who were present who wouldn't would normally say in response to what was it meant disputed the sexual allegation is disputed and the basis