court no clearly established law instructed officer monte but despite the lawfulness of using a cane on for the initial seizure of the knife carrying athletic violent dangerous desperately fled at night monti was then prohibited from allowing the canine to continue holding us kabar during the following twenty to thirty seconds it took for the other officers to handcuff him  be taken to his own mother his wife reportedly got a knife it's undisputed he had a knife and it's understood that he dropped it and it remained within reach while this struggle was going on with the dog and the officers and i'd like to point out that since the time of the district court's ruling in march of last year there have been a number of significant qualified immunity rulings that reemphasize how you analyze clearly established law starting with with wesley versus district of columbia i submitted a letter brief online and wesley makes it clear that the law must prohibit the officers conduct just last month judge clement issued two rulings in cases involving qualified immunity the link in the scott case at eighty seven f third one ninety and romero vs city of grapevine which is so new it's only a west law case but it's case number seventeen one hundred eighty three you can find it at twenty eighteen west la one eighty eight five five four five the westby case the lincoln case the romero case and then earlier this year this court's vann case at all made it clear that clearly established law requires careful attention to the facts and that the facts must be so close that they squarely govern the circumstance and the law must approach it what the officer did the only cases that have been cited at the district court level by the district or or by my opponent or cited here do not involve the congress circumstances that were confronting officer monte we have a violent suspect he's asked let it enough that he's reportedly climbed in going roof in this neighborhood at night he's trespassed by climbing over multiple fences he's a large man he's six two which is my high is younger and stronger he's two hundred pounds and he beat the tar out of his wife you can listen to and watch and read the police dispatch report the car where the beating took place is reported by an officer at the scene when they find it is having blood and hand prints on it so in this case judge freshwater is a very long experience just going to the bench over three years and it is a very careful  by the dog was lawful because of the circumstances known to the officer that also did not have to give a prior warning and he could use the dog to go see these this suspect where judge fitzwater went wrong is he determined that because the suspect now claims that he was trying to surrender that officer monte should have known this and should have called off the dog sooner we don't know when he should have called them off but sooner and when you're looking at qualified immunity as the courts have made it quite clear in the last few months the law must quote him that what the officer did or failed to do so we have this event that lasts a minute or lasts and the officer is supposed to perceive that this man has shown every indication except surrender is genuinely surrendering and i'd eyesight to this court into the lower court with eleventh circuit scrimshaw case and i think krynn shaw is important because judge smith in your cooper versus brown case you look to the eleventh circuit and in the eleventh circuit you pointed to this factually similar priester case and the eleventh circuits priester case involved a misdemeanor often wonder who's not suspected of a violent crime or dangerous crime was not suspected of having committed any act of violence of having a weapon or being a danger to the officers and increased or as in your cooper case the dogs were used to hold and seize the suspect for an extended period of time while crane shot distinguishes priester and explains that the reason create an eleventh circuit crenshaw case because in crenshaw you have a violent suspected violent suspect who's suspected of armed robbery who also flee as he tries to get away that suspect actually announces to the police here i am over here because he knows are coming after him with the dog the officers use the dog anyway to seize and hold  surrendering the officer according to eleventh circuit in quite shocked did not have to risk his life to find out if it was a genuine effort to surrender and here even if you credit excuse me mr  that he was surrendering he's he's this dangerous athletic man who's been climbing cross routes and yards is known to have a knife is valid to be killed instead taken alive it's undisputed the knife remained within his reach even after he says he dropped it and the helicopter pilot who is actually the only one who has eyes on him before the seizure says he's hiding under the awning leaning against the glass door the advisors the officers of that and he cautions the officers not to spook him because he might push through the door and get into the house where there could be innocent occupants the officers then try to make contact with the occupants of the house they're unsuccessful excuse me and they're there but the helicopter pilot confers with them again suggesting use the dog because he also has a plan at that point was to go in guns drawn so they were showing restraint and this suspect who's done all of these things evidencing everything but an attempt to surrender is somebody that the dog se him until the officer ordered him to be released and it's undisputed that as soon as a command for release was given the dog released it's also undisputed during the entire time the dog was holding him after the initial seizure that the officers and you can see parts of it on the video that officers are struggling to get him handcuffed and so there is no case that's been cited and i don't think there can be where a court has prohibited using a dog to seize and hold the suspect until the suspect is handcuffed and secured and that's what we have to look at under qualified immunity and here even if you apply the graham factors and note that the it's also recognized that under sociate the cats if an officer makes a mistake as to his thought that the suspect might fight back it's still not an unreasonable or excessive force as long as it was a reasonable but mistaken belief the suspect might fight back have you got to think that's where jets were sort of one either right or wrong for a lot of home and terms of finding a fact question that's really cannot be resolved at that juncture  twenty to thirty second period of time and the officer and i would submit it's perfectly reasonable when you view both the fourth amendment objective reasonableness and the qualified immunity reasonable presumed reasonable officer at the scene perspective i think that the law is clear and i use crenshaw as support for this that the officer reasonably could perceive that this is not a genuine surrender a facts to the plaintiff that the judge judge fitzwater stated and what i point out about the importance in these dog bite cases of looking to the particular facts and the keeper versus brown are city again that was a dog was a dog bite and a beating case alleges beating and in a footnote footnote three of the bird case another panel of this court looked at the differences in the priest or the current shaw case and within the eleventh circuit and noted that because of those differences you had different outcomes and then there is also a reference to i think it might circuit case in that footnote and so pleas court i'm just family on behalf of israel escobar we have two issues before the court one is obviously his appeal and the other one is obviously our cross appeal with respect to the facts and that israel escobar remained in a fetal position you can go back listen to the radio of the audio he has a very distinctive almost sort of a john wayne voice narrating for you talking about how he's position communicating with lance monti and all of the officers in the field there are two in the back and then monti has bullet and then another four officers with him and then there are other officers  the area so they had what is a veritable platoon out at the scene most of the cases that you read about with respect to the canines are frequently one officer cases where one officer  shoot him yes you're right and in those instances there would have been a a distinct threat and then but but in this case as we know they knew precisely where true i think it was i think it was and i don't know that they understood it to be a pocket knife in the man's arm he had a bladed instrument and at that point in time i think your your your honour's correct in the sense that they didn't know where it was whether it was in his hand on his pocket in his in his sock and when but when they round the corner and this is where i think our points kind of converge and there are a number of places where both sides are kind of agree on some of the core facts and in some respects we even agree on sort of the difficulty that the decision that judge fitzwater may obviously  into smaller areas they can bark areas they're commonly where houses forests like in crenshaw really thickly wooded areas largely because they have a decision to to let to let slip the dog comes about it isn't one that cannot be lightly make and that's why there are several circuits i would say that's not a suggestion that's a question of it's just an account come out so the choice only weapon under water was the fire say yes but the reason that the very thing that's very different about a dog it's the same thing that's very different about something that well the courts are going to be confronting with greater frequency in the any response and well certainly and i thought you part of your i would be that the dog it's very responsive in the police officer didn't turn him off but but but before of a robot is deployed like what was used in dallas to about to take out the individual who shot all the police officers a verbal warning is given and that is what that was what was missing in this case and that's what several circuits require because we so that we don't have this discussion about well you know at least he didn't this dog will come and bike and pretty persuasive i mean whether bullet was a mountain wall or a shepherd i think we got a little confused at one point and i don't know which way to do it but i'm out of it was a little very very similar to a shepherd i and people relax and i'm confident that israel escobar at least that's what the affidavit indicates that when he knew the dog was coming he stretched out like a parachute man and and that the affidavit further indicates that despite knowing that officer monti didn't do anything about that and that he continued to let bullet devalue officer montes leg requiring to either well here's what's interesting in the pleadings itself as we pled in paragraphs fifteen through ninety when officer monta comes around the corner he says get on the ground  ground well that's obviously what he wanted to do and it's a very common police command white good on the ground where we can control you better and sometimes you'll hear people say show your hands show your hands particularly if you're in an automobile but commonly were  outside get on the ground get on the ground is the most likely statement will number one he's already on the ground he is complying and this is where we believe that the district court made an error because we were we were focused so heavily  everything else and it's easy to see how judge fitzwater would have missed it and it wasn't something that was as emphasized to us because we probably believed it before and will look into the fetal position of laying down  facto manifestations of surrender but there were more than that in our pleadings and they were more than that in the facts which is he was doing so before after and in response to a direct command to get on the ground and some some application of force might have been the necessary but what weight to do where should we give to the warning from the mother i think it obviously has some weight but i think the the real thing that matters the most in this cases is is as your decision in cooper relying on edwards versus shanley these situations are not static they're dynamic and that statement that the mother had made regarding him having a knife and you had to take me a lot or they you know they're i'm not to let them take me i understand sounds like an ultimatum sounds up inflammatory but it was so many cases that we've reviewed there's only like one or two where a warning was not even given even in crenshaw what was absolutely distinguishable from our families and this is probably one of the reasons why counsel has as mentioned it is in crank shah the defendant slammed into a patrol car during a chase and so and then and then you know used his own vehicles a battering ram against an officer so he actually committed an aggravated assault against a pursuing officer he then fled into a heavily wooded area which the officers literally had to crawl through and this suggestion of the body of thirty one bites if you read further into the case he had thirty one puncture wounds dogs have lots of teeth one could easily imagine that he didn't take nearly thirty one mastication zuck his jaw bones but that he literally had thirty one puncture wounds well if you look at the photographs of israel escobar he had come to or analyze is that this premise that things have to be just so conclusively established that you know where you have to have a case exactly as indicated that's not the law that is this court has actually already ruled and it wasn't something that completely appreciated intel even a couple of days ago and that was in affirming malone the case written by judge means in fort worth and him alone judge green signs to the four circuit and says look generally a warning is required in these certain circumstances and and upon review this court found nowhere now i don't know if there was how much discussion there was about you know putting forth the idea of abandoning that notion but the fact is is here it would seem that we have a number of circuits of said look a warning is required because dogs are unproductive dogs in the sense of i agree with the premise that yes they do respond but they house i have to be can train completely and repeatedly because if you read campbell out of the six arc it there was one dog that they were not letting get certified sort of cation lapsed and he stopped you know operating and responding so quickly in the devoured a couple of people but beyond that it is the fact that when somebody gets bitten by a dog and we all love dogs i've got a chocolate lab who like you know you could not pry that thing from my hands  bites you you're going to wiggle you're going to squirm you want to do a large number of things that are very unpredictable and so there was no evidence and we absolutely said willing to take this there was no evidence of resistance  that they've offered there was no evidence of any finding any direct threats made to any of these officers and we have appreciated your time on this day thank you mr anyway mr jeffery you save time for  thank you i'll start with mr henley left off when a dog bites you yes you're going to squirm you're going to do something you're going to react and he stated that your action is unpredictable in the malone case judge that was issued by the district court would require that officers under these circumstances knowing all they knew about mr if mr escobar are going to be forced to assume that he is both legitimately s while the dog is holding him he's not going to try to reach for the knife the indisputable you within his reach and the law doesn't require that the law has never required an officer to risk their lives to find out exactly what the suspects required is feasible and my opponent's bracing sights and states blackletter that the fourth circuit always requires a warrant and that's simply not true the fourth circuit itself in the rogers vs smith case which i cite in my briefing recognizes that a warning is only required before using a dog as a general rule but that if the  suspect could gain an advantage from the warning the officer doesn't have to give a warning and in that case the suspect was believed to have kidnapped his girlfriend it gunpoint and when the officers were closing in on him with a dog one of the officers yelled gun as an indication that they thought they saw a gun and so the dog was released without warning these and hold the suspect until he was secured so even in the use of deadly force a warning is not always required no circuit has held that a warning is always required before using a d  in fact the helicopter pilot even checks to make sure that the officers on the ground had heard about the mine and had heard about what mom said and with that information even though the helicopter pilot is the only one who can see mr escobar and the helicopter pilot is the one who describes his position as sort of a fetal position and a thermal imaging i would call the fetal position but i don't know what you call it it's as good a description as any but he's against a glass door to a house that could be occupied has two vehicles parked in the driveway in the helicopter officers describing the vehicles to make sure the officers and confront and this and during that dialogue is when officer monti and he also is on the ground decide they're not going to go in guns first they're going to use the dog