it please the court my name is john from its came an attorney from forsyth county north carolina and i'm happy to represent the petitioner in this matter mr christopher maney this incident arises out of the horrible set of injuries that my client sustained as a result of an altercation with the police canine despite the fact that my client at no point committed any crime or suspected of any wrongdoing and i want to focus on three factors in the decision below that are most important the articulation on appeal the first being the error that we articulate that we argue the court committed in excluding certain elements of the plaintiff's affidavit for alleged lack of personal knowledge the second and probably bulk of my time which i intend to spend on the qualified immunity analysis and the question of whether or not the circumstance here met a clearly defined constitutional right based on preexisting authority and then finally with the remainder of my time i intend to address and so much shorter amount of the battery question and i'd like to first focus on the portions of the affidavit that work scooted yawners the court below excluded a number of different statements on the alleged lack of personal knowledge but the one i want to focus on the most first is the repeated statements by my client in his affidavit that he knew the officer could see him at the time the dog lunged the four feet from him and bit the top of his head you are with the facts most favorable to the nonmoving party being the plaintiff these are the facts mr we could the court could still in far from what was left in that office or could see mr mania because the district court didn't strike that the bush was devoid of leaves or that the area was illuminated by a street light that the pallium self testify that he scanned the area jason to the stairs with his gun light and eventually the appealing him self admitted at least at some point that he could see that this was a completely agree o feet away making eye contact but that's not within the realm of personal knowledge here well i think that the testimony was that he could see that he could see him he recognized him the cane on lunch three and a half feet i suppose you're correct on and i would have to be an inference from the facts but again i would be a question of fact for the jury not improperly sense and you could see him before the lone drafter my client would testify that he was visible the entire time now there is some dispute based on the officer statement as to whether he could see and remember the officer statement is completely different as to whether he jumped in the bushes by simple argument is viewed in the light most favorable my client those inferences should be taken as true as to his statements your honor i don't intend to overburden this court with this portion of the argument i think the most important argument clearly here is the second portion which the dispositive which is the qualified immunity analysis in this case your honor the standard the district court puts on a qualified immunity analysis in this case is virtually impossible for a plaintiff to meet and your honor what the court specifically stated was the jury in the coffee wing case the jury may conclude that forcing to show hands while being bit could be excessive force but didn't say definitively as a matter of law that that was excessive force that would require in order for a public official or for a qualified immunity to not apply for summary judgment to affirmatively granted for the plaintiffs and say as a matter of law every time an officer asks someone to show his hands and allows a dog to continue biting the individual it's excessive force well clearly your honor that is not the intent of the public of the qualified immunity analysis in our jurisprudence and your honor there are two or three separate problems by which this is a clearly established constitutional right and the first i want to look at is the cop case in that case an individual who in contrast to my client was a suspect in a crime and had been fighting officers was asked to show his hands while police dog continued to bite him for a lengthy period of time in denying the qualified immunity analysis the court articulated that it's unreasonable to assume that an individual who is defending himself from serious dog bites should be required to immediately comply with verbal orders and show hands in order to avoid further harm contrast that with this case when after the initial bite at least it is undisputed that the apple e g officer knew my client could not have been the suspect in this or any crime it was  your honor if a canine is attacking an individual to the arm to the hand to the face or in this case a fifteen and a hatch gash in the head and the arm and a leg but what was my question your question was whether matters to the part of the body and i think the answer is no i don't give an answer so they used by the amount  where he's being i don't disagree that would be important to a jury but if you question of qualified immunity i hesitate to draw the line by parts of the body and say unless you have a similar situation in the case law that had someone bitten a similar area qualified immunity applies because it's not clearly established that the officer can't do that well it sounds to me like you're wanting us to adopt a rule that any dog biting a person no matter where in the body it is it would be unreasonable for a lobster to request for i think that the room actually asking you to articulate is that in an instance where there is no expressed concern of a reasonable articulable suspicion of a weapon or danger to the officer yes an officer should and is required to stop a dog from biting before asking to see the hands and that is not a new determination your honor in cop that was the rule as well as the fact that in the vatican case the court ruled that the officer must give a warning before believing it police dog that was not limited to a certain circumstance when there were three people present or five people present or this type of situation the court felt confident in being able to articulate a bright line rule because it's a requirement of safety to avoid unnecessary extra harm and your honor i'm not asking a broad rule that every time an officer would have to stop the dog and show the hands if for example there was an argument there was an articulation over the radio that the person was armed or it matched the suspect description or the person is reaching for their pocket but the fact is your honor not one of those facts is the pluggable here and the secondary argument is the officers are never allowed to seize an individual beyond the scope necessary to why was the officer allowed to seize your client at all puts you inside the dog but as you as you've just said is not the suspect even the suspect was unarmed there is no indication that the suspect has an accomplice so what i hear you  seconds which it sounds really cold in a transcript but ten seconds being bitten by a canine is a long time so i would contend there was a justified means to seize them now can they do an interrogatory stop to ask him who he is and why he was next to the the right they could have stopped i think they could have stopped him using it without using force and using simple directions if you think that it was justified to stop and why i'm not sure it would be honestly still justifiable to stop them other than in of a wellness check i said i struggle with any justification for stopping him and i don't mean to put the burden on you but i realize so but ok so for purposes of your argument go ahead and assume that he seizure was justified and the only question is whether fact that after the initial bite and the second bite and the third bite after the ten seconds after they finally are able to determine not only that he's not the suspect but that he's an armed they still proceed to handcuff him with no articulation or explanation walk him out to the street in seconds is pretty fast and he he didn't realize it wasn't the suspect for the entire ten seconds right i guess i would a little bit contest that your honor i would contest that i believe the officer statement was as soon as i was able to see him which he says is a media pundit dog making contact that i was able to articulate that this was not the suspect that the moment he saw it was an african american gentleman reported versus a caucasian individual so we know that even if you give the officer three or four seconds which is a long time to not see him six seconds although it sounds like a very quick evolving situation is a very long time for a dog to continue biting an individual and then the prolonged period of hand fing all the individuals bleeding with the continued injuries but the other are to the problem i have here your honor is that it is clear under the case law that for example if this was just a car stop and you determine the person has a correct identification and that's what you're stopping them for you cannot detain the individual beyond the period necessary to do that to wait for a canine or someone else to come and search the car for drugs or other weapons that would be clearly violative of the fourth amendment in this case any seizure after he recognized it was not his suspect is unlawful and then to include force with that is further unlawful additionally your honor in the determination the court makes as to why there was excessive force a lot of these concerns are addressed and articulated and i would caution and ask this court to look at the owens the baltimore city state attorney's office because it kind of addresses the district court's argument here that the fact that a jury could find excessive force doesn't mean that excessive force is a matter of law in that case this court clearly said it's not an established right only if it's successfully enforced through a successful ninety three action that almost never would occur because many cases settle and those that don't are tried to jury and a jury's determination does not set what the legal precedent is it sets the determination of a set of facts as applied to those rules so the district court had to really move mountains to clarify this case from the cop case because frankly it's similar and the where it's dissimilar every bit of it as articulated by the district court is in favor of the plaintive all of the different facts are better here in that case the up the suspect was fighting in that case the suspect was the suspect in that case they never knew he wasn't the person articulated the crime or who allegedly committed the crime so that is the elements are the issues that i have with it and in fact as far back as one nine hundred ninety five if the officer recognized at some point that he wasn't the suspect he has to give either a warning or a means for mr maynard to comply in order to allow the seizure to stop it is unreasonable objectively by cop an event in vast the can to expect someone who is being put on the head the arm and the leg for ten seconds to comply with an order to show his hands while he is attempting to defend the dog despite that there is no evidence that he hit the dog or attacked the officer went for a weapon there is no means for him to comply except to go like this as a dog continues to maul him and that simply can't be the law that an officer knows that that's ok and the fact that there is not i don't know how there could be a closer case than cop for thought that they can without having identical set of facts and what i would caution this quarter asked this court not to do is not to increase the bar for quality and qualified immunity so high that the only way it doesn't apply is if your exact set of facts has happened before because that is not the purpose of the qualified immunity analysis that's not the purpose of the protection now your honor briefly or your honour's briefly the question of battery was also submitted to the court and there's some dispute about the nature of battery is an intentional tort there's no question in north carolina law the lin v burnett case is very clear that the intent required as an intentional tort of battery which can permit punitive damages which requires intentional action is simply an offensive and willful touching there is no question that beyond the point of the initial bite at least if not earlier this was an intentional touching by the officer via the canine the question of whether allowing the canine to remain biting him for seven or eight seconds or however long it is the jury determines after the initial contact could be found to be a question of wanting this wantonness in north carolina as a reckless disregard of the right or safety of others a jury should be permitted to conclude or not conclude whether or not that extensive amount of time both allowing it to be bid and then allowing him and handcuffing him affirmatively for several minutes constitutes want conduct which would make the public official immunity claim which they claim barred battery improper in fact a very similar result was found in a companion case that i handled including involving mr smith that was in the record a subsequently decided authority the order of judge  eagles within the record itself and she concluded the exact same thing that battery was not barred from public official immunity because of the fact that it is an intentional tort and it could be found that there is some want or intentional conduct those are determination for the jury it's improper for the court to determine the state of mind as a matter of law your honor i'm i'm very close to my time for mine if it was brief speech but if you have any questions  please the court my name is patrick kane and i represent apollyon officer terence garrison with the city of high point police department and your honors i'd like to begin with one fact that is not disputed anywhere in this case and that is that at all times relevant to this incident the dog was on a leash why does that matter it matters because of what this court said in two thousand and ten in malware versus green and i will read to you what this court said there is a vast difference between an officer releasing a dog off a leash knowing with a good degree of certainty that it will find and bite its target and an officer exercising substantial control over a least animal with the expectation of being able to prevent any injury and this is the important part with respect to qualified immunity this court stated cases addressing the former or the dogs on the where the dog has been deployed simply do not provide sufficient guidance to officers in the situation where the dog is on a leash and that mel gur the green wasn't the dog the lead here for all may be a misunderstanding the dog was deployed when the officers you know in his own testimony i knew it wasn't my suspect and his dog was attacking him and i made a decision not to pull the dog off that's not that doesn't count as sort of a deployment maybe on a leash but he's he is deployed in attacking the guy in the officer says i made a decision not pulling him back till i see him as this court noted in mel there there's a substantially significant difference between deployment which is a term of art in the canine world right where you release the dog this throat out here so it's different but why from the perspective of i mean i can't even articulate the question i guess i'm just not getting it from the perspective of the person the officer makes the knowing and conscious decision to let the dog attack someone and are precedent about use of dogs doesn't matter the qualified immunity is looked at from the perspective of reasonable option on the scene i understand what your honor is saying about when the dogs biting an individual does it matter to that individual that the dog is or is not on a leash no probably not although in mel gur the plaintiffs did make an argument that the fact that the handler tried to pull the dog back immediately caused more injury and was not the appropriate way to handle the situation my point simply is your honor that from a qualified immunity perspective this is the is the only case that discusses an instance where there is a seizure with out in actual deployment or releasing of the dog here like the dog reasonably be expected it's absolutely your honor and i believe that the district court could have found based on the undisputed facts that this was reasonable as a matter of law and i'd like to distinguish very importantly something that makes this case exponentially different than cop and why coffee is not applicable here well this court  kaufman did say it is on reasonable or did not say was on reasonable said a jury could find that it was on reasonable to ask a suspect who is being in the scrotum by a canine to show his hands before releasing the canine in that case there was never actually an issue as to whether that individual that was being seized was armed in fact the facts of that case show precisely the opposite that when the officers came on to the scene they knew that that individual was not armed they sent the dog in anyway what they and there was never any instruction to show your hands the reference to showing hands that this court made was a figure of speech with respect to it is a jury could find that it's and reasonable to expect him to show his hands and calmly surrender while this is happening not the suspect because of skin color but course he doesn't know what the situation is they don't know who it is aside and they're not but the dog bites the guy on the arm is a reasonable to say to that person show me your hands while the dog circumstances that confronted officer garrison in this case you explain to me because i mean there's no gun anywhere in this picture right it's an unarmed robbery there's no report that he has an accomplice this isn't the guy anyway he's allowed to just sort of set a dog on anyone he runs into to see if you might be dangerous i don't understand where the reasonable suspicion is that this is theirs and there's no indication that he set the dog on him just me it sort of follows from your argument that he's entitled to use a dog until he can be assured of the fact that anyone he encounters sort of one in the vicinity of where the dog took him is not armed yes you because because of hard to do that because of the factual sort of i've been standing if i had been like standing on the other side of the house and i was saw the dog coming and i didn't want to make any sudden movements i'm just going to stand very quietly that dog can jump on me until the officer knows i don't have a gun even though the officer knows you're not a suspect yet and there's no gun anyway even the suspect doesn't have a gun one it's the keep in mind that it's dark there is officer testified that he had no idea that the individual was there but i'm just trying to figure out the breath of your position which seems to be that if an officer there is no gun in the picture there's no accomplice in the picture there's no reason to think there's anything scary about this particular house i mean it's not like he's it's not like he's executing a warrant it's kind of a drug where you just assume anyone in the vicinity is probably up to no good there's no gun there's no accomplice there's no reason to think this person has a gun and nevertheless he's allowed to use a dog until he can be assured this person is on arms that's your position i think the position is slightly different ironic that once the dog unintentionally ok individual if if he had said so this is actually really important to me so your position is not that if he had known it wasn't the suspect he could have then allowed the dog if he had first known it wasn't the suspect then at least he would have had to say first show me your hands before he used the dog i think that if he had known it wasn't the suspect and had been i think the canine man you know would say that if there's somebody if there's somebody in the vicinity you are to give them the opportunity to what you think the constitution says i believe that the constitution would likely say that really want to read that it was not that it would not be reasonable i would agree with your honor that that if if he was walking up and then six the dog and this individual who he had who we knew affirmatively was not suspect i think of the decision not to pull him off is different yes and i'll go back is that because it was an unintentional seizure giving you that but so did he testifies but i decided i'm not pulling him back until i see the hands and so why is that different from the decision about whether to use the dog in the first place because once the dog has seized the individual that the officer had no idea was there he has a responsibility to himself and his surrounding officers to ensure his safety but but he didn't have the responsibility before i don't understand why it's different if you're conceding that the officer could not knowing he's not the suspect he could not have allowed the dog to attack but knowing he's not the suspect he doesn't have to see all of this he doesn't have to stop the dog from attacking i don't understand why those are two different inquiries allowing the attack and stopping it because in the first instanc your honor the officer knows that the individual is there in the second instance which is the case we have here it was a sudden unexpected seizure of an individual hiding in the bush  first asked second at a location where they had trapped act and he took a minimal amount of time to ensure the safety of his fellow officers in an unexpected rapidly evolving tense situation of all this he's lost saying we parse this stuff to the second he says like watermen like force that might have been justified for the first two seconds once it's not justified anymore it has to stop we don't give you sort of forward momentum in our case we've said this over and over again we will parse this stuff down to the seconds so i'm still not hearing and i'm genuinely mystified saw it whether the standard would be if we can agree that once he knows he's a suspect he could not start a dog attack i don't understand why it doesn't follow that once he knows he's the suspect he doesn't have to not the suspect doesn't have to stop i think because the nature of the situation would be entirely different had he come onto the scene and seen an individual who he knew was not the suspect keep in mind your honor that officer garrison was as surprised as anyone he was the most sure prize infallibly that the that the dog went into the bushes about he knew it was pretty good then he then had to make a judgement call in a split second as to what he was going to do with respect to this unexpected bystander and his testimony is and he did make that decision and his decision was until i see is hands on not pulling the dog off and i don't and that's ok so he made the question can you just the same question i asked your colleague if you can just back this up for me a little bit so your view would be that the seizure putting to one side the use of force just talking about the seizure and all the seizure did when he intentionally went when do you think the seizure started in this case i think it's i think that's an open question your honor i'm not entirely sure if there even was a seizure i think there is case law that suggests and unintentionally bites an individual whether it be the target or not if a seizure occurs and so i think that if there was a seizure the seizure begins to occur in this instance only after the officer sees that the suspect that the individual in the bushes is not the suspects ok and then why at that point is the seizure justified at all just so i know w the instrument of the seizure which he does after ensuring his safety right but why is he entitled to tease me need to ensure his safety i don't is this a terry analysis i should be doing because he had reasonable suspicion that he was armed i don't know he had he had reasonable suspicion that there were suspicious circumstance because you do not expect when you are tracking a suspect to wayne abandoned location in the middle of the night that suddenly there is going to be somebody else hiding in the bushes at that location that you are completely unaware of right so i understand that you would have reasonably been surprised and maybe even concerned for his safety but you have to have more than that  conduct your revenge as regular friends right i believe he had enough suspicion based on the location of the suspect or of this not to suspect that college as because it was not the suspect the location of the plaintiff's hiding in the bushes at the abandoned residence to where the officers had tracked the actual suspect did end as and as and as officer garrison testified the reason he acted way he did your honor is because it is not normal bystander behavior to be hiding in the bushes at a location where you have tracked a suspect of a crime  before you run out of time while with even after he was injured was that reasonable i honestly can't speak to that your honor the officer who handcuffed him is not the defendant in this case and that's officer riley had words that's in the record his affidavit says clear that he's the one who handcuffed him i think all of the officers on the scene testified that it was a very as as is the sort of seminal language from these cases it was a tense rapidly evolving night time event i don't know why he was handcuffed i can't answer that question i suppose only officer edwards who actually handcuff answer the question that doesn't appear to be what the excessive force claim that's at issue before this court and that was at issue before the district court is about in fact i have not heard until today plaintiff's counsel argue that that was somehow part of the excessive force so what we are focused on i believe and what the district court was focused on is in fact the dog and the dog biting what happened here did the dog picked up the scent but went to the wrong place officer gary believes that the suspect was actually looking at the location hiding or he testified that he believed that he was hiding under the porch and  now we don't know that in the ensuing chaos after mr mania was hit and officer garrisons first priority at that point was to make sure mr maynard got medical treatment and he testified as such at some point when they later cleared the area they were not able to find the suspect so they think the suspect might have been there all along but got away while they were got away at some point during the commotion that was caused when mr man so your honour's i come back to the idea of what qualified immunity is all about and whether it is clearly established that under these circumstances it was on reasonable for officer garrisoned to ask mr may need to show his hands before physically removing the dog and he doesn't remove the dog by pulling on the least for the precise reason that was reference gar which is if you pull the dog back it might bite again it might injure the point if you injure the individual more and the bottom line your honour's is that as the district court correctly found it is not clearly established there is no law that clearly establishes that this was on reasonable and in fact the district court itself judge beatty said in looking at this i can't decide whether it is reasonable as a matter of law that he asked him to show his hands before he removed the da and so and there's no case that says it is unreasonable as a matter of laws and in fact even cough which counsel contends is precisely on point i contend melhor says it's not precisely on point in fact melhor says that that's the can and cough do not inform what an officer responsibilities are when the dog is still on the lead as opposed to having been deployed but the bottom line is there is no constitutional guidance that is clearly established that would inform officer garrison that his actions that night confronted with those circumstances violated clearly established law is his behavior is so blatantly reasonable know couple your honors there's a couple points i'd like to address in the first one is this question of deployment and i want to make something clear in the facts this was a ten foot lead that the officer originally had the canine on it's undisputed he shortened the lead to about three feet walking up the steps you in the light most favorable to my client as your honor correctly stated you could infer from the facts that he saw my client based on those facts so the surprise element itself is only if you read this in the light most three feet where he's holding the dog next to him on the steps to five feet or so when he lets the dog go to the bush area and bite mr meaney and doesn't retract it in fact he testified he could have let initially he let the dog go to  mr meany and the dog went out but i guess i don't want to belabor this point even if we choose to take the officer's versions of events and the dog as three or four feet further out he testified he could have immediately stopped the dog by a command and recalled the dog and what is fatal to him in terms of notice is if you look at page two hundred eighty two of the joint appendix to the deposition testimony of the officer i asked him aren't you trained that if you see an individual who does not fit the suspect description it's just a bystander individual on the street aren't you trained to tell the dog to immediately let go answer correct in the officers own words he states that he was trained and knew that once he knew it wasn't a suspect he was told to immediately make the dog let go and then he said chose not to because i felt my safety was at risk well that gets into my second point your honour's if you analyze this under terry it would fail on every ground there was no reasonable articula e suspicion that a weapon was on the premises of even the suspect much less an individual who is not the suspect read according to the defendant's position of the apple e's position any individual who sees police coming in a dark area with flashlights with guns with dogs and doesn't know what is happening is permitted to be seized violently and search for a weapon if they crouch and hide rather than announcing themselves mr maney stated the reason he didn't announce himself is he was afraid of either being shot because of suddenly surprising the officers or having the dog released towards him so he's between a rock and a hard place if mr maney had revealed himself they would be arguing well suddenly they were surprised they saw an individual could immediately recognize it was the suspect so they were justified in deploying the canine if he stays where is and stays quiet and doesn't cause trouble because he doesn't know if there's anyone else nearby that they're chasing and he's also entitled to b c that would mean that the officer safety is made paramount to the constitutional rights of an individual be free from unlawful search and seizure and that is not the law every officer doesn't have the right to violently search an individual because there was some crime and he's around the area where the crime occurred that is simply not enough additionally your honor the element or the question of surprise goes away in the light of a ten second seizure even if you let's say it's four seconds instead of the one or two one two three four five six that's a long time to be bit by a canine and try and show your hands now judge tracks that correctly stated yes you got bit in the arm it's hard to show your hands your bit in the arm and a bit in the leg of course you can react please don't forget that the initial bite caused a fifteen and a half centimeter gash that was removed from his scalp that was bleeding on the top of his head before he's reacting to the second and third it is much more objective than reasonable to require that person who you know is not the suspect to show their hands when there's not even a justification to seize him and the fact that as joe's traxler said the general principles of our criminal law state you cannot use more force than is necessary to effectuate a seizure under the circumstances there is no question that the only way the government could when any part of the seizure being lawful is the initial bite and even then inferred that the officer is correct and it was a lunge and that there was no ability to control but that is simply not the facts here and all we are asking for your honors is our day in court for a jury to decide the facts rather than this be taken from them