ant sergeant keith sanders i would like to reserve three minutes of my time for rebuttal this appeal the feel is about the district court's wrong application of the wrong legal standard on summary judgment when let me let me break in and ask you a great question if we could accept the idea that the plaintiffs verified complaint in summary judgment well let's just leave it up verified complaint the burb five complaint was properly considered by the district court what what do you have left your your honor the verified complaint even if it was you're not really answering just carson's question because in this circuit we treat of their fide complaint as if it were a declaration and a declaration is considered evidence that goes beyond the bare allegations of the complaint so repeating his quest if we think the district court properly considered the allegations of the verified fide complaint as evidence meaning testimony from from the plaintiff then what he have left declaration that says i was in custody no threat to anyone the officer came turn a large dog loose on me and bit me and the officer punched me and hit me with the chain and then we have on the other side there is testimony saying that those things didn't happen so don't that's a fact question for the jury is not i mean you're you want to argue about the weight maybe maybe he's not believable maybe your parade of witnesses will will will bury him in a trial but at this stage we don't get to weigh the credibility of the witnesses your honor what the district court did and what your question kind of conjecture is here is skipping the st part of the summary judgment burden analysis there is a step one which is on the plaintiff and a step to the district courts jumps right custody i was just sitting there i wasn't a threat to anyone and then all the sudden this office or comes up and he turned the dog loose on me and the dog bit me and then the officer hit me in the o a qualified immunity in cases like this if a plaintive can overcome qualified immunity simply by having allegations and a verified complaint with nothing further in the record then qualified immunity doesn't stand for anything but this case does this circuit's case law is clear and it's well established that the question of whether these are legal questions and that the plaintiff is required to go be on the record and  demonstrate early and we can't go beyond the record you're saying he's got to go beyond the complaint excuse me go beyond the complaint yes let's let's just let's let's explore this one more i guess tell me your tell me your best case for saying that if the plaintiff lays out exactly what happens and i think you have to concede that this is basically considered as a declaration you agree with that you can see that is verified complaint under our law is considered to be the same as an affidavit or a declaration given under oath yes your honor in substance it is there is a declaration statement on this form ok so he i mean if he says that under oath that summary judgment i mean what else does he have to do i mean does he have to bring in another witness to corroborate affidavit at the top and notarized at the bottom but it still wouldn't get to responding to the particular lie particularized consistent and credible evidence demonstrated by sergeant cinders in this case and then i also want to point out that complete form that on which mr betts allegations are stated is the one thousand nine hundred and eighty three prisoner complaint form provided in the u s district court for the district of colorado that under local rule every se prisoner is required to sign and file but not every processed prisoner declares under oath facts that would support a claim but in this instance he did  says that after i was subdued they released the dog on me and hit me in the face with a chain and punched me and jordan versus the federal bureau of prisons by the way says i quote a verified complaint stating facts admissible in trial based on personal knowledge has the same force and effect of them at the david for the purposes of responding in a motion for summary judgment so i'm not seeing how that's very helpful to you and it's on published  but anyway you can the fact that they use a form that gives him help by verifying his complaint so that it can be treated by declaration doesn't change the fact that it isn't fact treated as if it were a declaration so what we have these admissible evidence his sworn declaration saying these things happen to me why isn't that enough your hon fancy new was a lot of words way of saying that you want us to review the factual determinations of district court no your honor it is a nuance but that is not what i'm asking you to do i'm asking you to review the legal determination by the district court that the allegations in the verify complaint prisoner complaint are enough to constitute a universe of facts to demonstrate a constitutional violation capable of overcoming and unity the district court did not conduct that analysis in other words you're are you are you conceding that if we answer that question in the negative that that is the case and you're not asking us to look beyond that purely legal determination what the facts what the district court found your honor that because if because if you if you present if you are appealing for the purpose of asking that pure question then it seems to me that we just answer that question for you and i because i'm not fair is let me ask questions literally as i can if we rule against you on the purely legal question that you have just told  that the end of the kates for you at this level our because i was concerned just so i can tell you my thinking that what you are really doing is asking those to review the district court's factual determination and that was our job here in addition to answer your legal question your honor whether there are enough facts in order to demonstrate a violation of a clearly established constitutional right are it's a two prong legal question and so you know that will involve looking at facts necessarily but there is a legal question and the did we look at it but we look at the facts as by owned by the district court not sit round years in a there at the time that said he was sitting down and wasn't fighting back doctor came up let the dog loose the dog attacked him and then the officer hit him in the face with a chain and punched him would that be enough to defeat qualified a meanie it might your honor it might not what how could it possibly not i mean you have a rd party at the david so you've got some evidence that's not coming from the victim and you have a subdued prisoner who is being attacked by a dog and hit with a chain are you telling me that's not clearly established that you ca ok so the only issue here is whether we can have that in the record which means the only issue here is is whether we look at the verified complaint and treat it as a declaration your honor i would put a nuance on that the only issue here is whether we look at the verified complaint with nothing further and consider that sufficient overcome qualified immunity while my hypothetical there was nothing further that was just the declaration of a witness to set i saw it happen nothing your honor but that's not what we're looking at here today we have a witness you just don't like the witness your honor that witness is the plaintiff himself in the case law is clear that he has to go beyond the record and beyond his obligations and again if we were to treat this verified prisoner complaint with the allegations that mr brett put in this case it would undermine it completely under would be impossible for any person or any defendant to assert qualified immunity and and succeed at the summary judgment stage it would be impossible i suppose it depends on what the allegations are if he said i was fighting the officer and they released the dog and then subdued me during the scuffle that hit me in the face we'd look at it and say you're titled qualified immunity your honor i see my time is nearly expired here for this section i would just like to conclude by saying the court should reverse the district court and grant summary judgment for sergeant sanders on the basis of kwok i did unity because mr bat has not demonstrated the violation of a clearly established constitutional right wit or can't say a prisoner can say any full thing they want in a complaint and it becomes on a manning only evidence doesn't that sort of defeats the purpose of qualified immunity it's a good question and i but i'm glad you got a raise because i think those concerns are vastly overblown for a number of reasons st i think existing rules already screen up with prisoner litigation in a number of ways including through the pale right and other procedural bars but beyond that i think it's important to look at the unique context of the record that we have here some unscented didn't move on a record like the record that existed in jordan which involve deposition testimony for documents and us witnesses hundreds hundreds move for summary judgment based just on his own test think they argue i'm sorry sergeant sanders also argues that the photographs are contrary that they that if you look at the photograph it can't be as he described because when you look at the one where you can see have to say that he doesn't look like he's been hit in the face with a chain and that the damage to his shoulder is not consistent with what he describes of the dog  photographs that may exist of this bruising beyond that i think the photographs of the shoulder injuries don't clearly contradict either account and in fact if you look at the for certain centers on page eight hundred and fifty six of the record which is supplemental narrative states that while the the fact that we're having this conversation is precisely why it's nice to go to fact finding because those photographs i think are subject to reasonable to a jury could look at them and say those two croons seen with their teeth at her oath might be a jar i think it's just it's not the kind of record that there could be a situation where just omonia one counts were so one sided that a pro se verified complaints could could be held to be not enough because it's blatantly contradicted by the record yeah i think that's that is a question that said that the surrogate has never extended the plane the conception to is there a universe where that could happen potentially but i think it would be a contradiction but i still think at the end of the day your honor where the ultimate resolution of the case is going to turn on credibility determination is made it's likely inappropriate for a court ruled on that but and i think that's why this conference is has exception is such a high burden and require something is now is there a case where you know if you have ten thousand one hundred disinterested parties providing affidavits on one side and the plaintiff alone on the other side that may be the case but that's not this case we just have really one and one and i think there are reasons here that was a case involving a cross a prisoner who filed a verified complaint and then over the course of discovery when he sat for his own deposition ended up contradicting several its own elevations and then the defendant officers were able to introduce documents showing that  jurisdiction and the if the paralegal question of whether there by the complaint is properly treated as admissible evidence at this stage i think the answer is fairly rare yes as it seems like we all agree and i'm happy to talk about the merits of the qualified case involving the specific type of unconstitutional or seems so long as the force takes place after the moment of apprehension that's all that's needed to establish the violation of law and that's sufficiently specific under this court's precedents so the fact that certain senders points out the absence of tensor case grassing the context of dog bites i think is immaterial to this calculus well those cases deal with using a dog to chase somebody down who's fleeing not somebody has already subdued her act that's correct and i think the cases that have allowed or are denied or are granted some are doesn't officers are going to qualified immunity to officers where dogs have been used have involved suspects or actively resist interactive we've seen which if mr betts account is credited here which a jury could do was just not the case but i'd also put one for their fashion on that that even if this court does look for actually analogous situations involving an shing hitting and using a canine on an already apprehended subject i think there's really just no argument that as of december st twenty seven in a reasonable officer could have believed that the constitution permitted them to do all this and that's i think the dixon vs richard case called up versus jones are just two of how most examples of this court's precedents finding do think it makes it very easy for a petitioner plaintiffs to just put whatever they want in their pro se form to defeat qualified i mean write i understand the concern and qualified immunity and will continue to operate as a shield but i think it's important to remember the purpose of qualified immunity is to shield officers in unsettled legal landscapes now where the facts of an international dispute if that were true you so for those reasons i think i must try to separate questions we'd submit that is supposed to be dismissed for lack of jurisdiction because really every question boils back to you for ceding the remainder of your time we find ourselves most unusual situation defendant actually seating times normally the government does thank you council reprints you don't believe there's any time remaining busy in your corner misrule and so the case is submitted counselor excused