not clearly established to be unreasonable at the time of the incident occurred back in december of two thousand and sixteen nassar case the court began its opinion by stating the case boiled down to a matter of perspective from the perspective it was an unprovoked attack on a cooperating suspect and from the officers perspective it was the best way to gain control the situation if perming summary judgment in favor of the officers this court confirmed to the proper nouns is a for these types of cases once the officers perspective in court in this court explicitly stated we must consider what was reasonable from the officers perspective not the suspects  catholic i certainly understand your point and and i understand it as it applies to when the officers encounter you know st encounter the plaintiffs and and not really you know when he retreated to the room and not knowing what his intentions are and so forth i guess you know just to to cut right to it the concern i have about your position is after he's handcuffed you know as as obviously it we have to take him the plaintiff's versions of the facts and his version is he's on his stomach there's a point when he is handcuffed and then after that point he hears two foreign language type commands after which the dog bites him in two different places and then one of the deputies says the dog you know is not doing anything but holding you and so my question is why was it reasonable on these facts for the  officers to order the dog to bite the plaintiff twice after he's handcuffed on the stomach yes your honor i think i sits respectfully disagree that there was ever an order to white mr hammond while he was honest tomic leading up to that there had been resistance and durham and even admitted that he was keeping his hands on his chest to cover his wound rather than giving his hands as order to be hank up but to your point when he was handcuffed he admitted he was kicking his legs and the in my opinion the undisputed testimony is that bitten until after he was handcuffed so i think we have to take that and then he says that he wasn't that he was resisting i think it's phase i v six hundred and thirty seven dollars he was resisting the dog which suggests to me that the dog was biting him and then he starts to kick the dog so why we have to take all of that is true don't we are in the light most favorable to him with respect is testimony about when he was bit yeah i would i would agree that you have to take it from his perspective or or as if it is true but the main point with regard to those bites and what i think the district court here is what there is no evidence that those bites were intentional and in order to have a th amendment violation you had to have an intentional act and the only testimony but regarding the man that were given by the canine handler were that it was the initial command to find and bite which was before use and up obviously and  that initial altercation in the takedown occurred to you so those accounts of the said rodgers are are you saying that the district court erred in determining what what there was a genuine issue  jurisdiction or it's not appropriate for us to evaluate that issue but instead we have to take what the judge says there was a genuine issue of fact to know i think this is jurisdiction is proper in this court because as set  forth in my reply brief if you look at if you look at plaintiff's testimony alone his testimony alone provides for summary judgment in this case because again what i was referring to earlier that the testimony is that there were two as described by the district court to be the facts that we deal with to the extent that they are supported by the record well that's a that's not what the law is the law we have to take them regardless of whether they're supported records for purposes of this interlocutory appeal counsel we would review the point about whether there's a gender actually a genuine issue in a later appeal after trial so you're stuck with the district court's view of what there was a genuine issue of fact as to and if i understand it that that law is out there but again i keep going back the fact that even using not just up there it's the law but even with the district courts recitation of the record i still believe that if we look just and i can tell you i can't speak for my colleagues but i'm just going to look at what the district court said there were sufficient facts to show and the court very nicely sometimes they don't do it the court very nicely laid out what facts those were ok says hammond a nice kicking his legs denies actively resisting prior to being bitten on the leg he said he could hear is bounce mapping in his head while a canine continued to his legs you kind of have to accept those facts if you accept those facts then there was no constitutional violation against you again in part yes but i think what i think you also have to consider is that there are multiple uses force and this court has laid out the proper framework for uing excessive forces segment approach and the district court in usenet approach whatsoever so it was just a conglomerate overview of the force that was used without any any breakdown of when the force was used what had happened before that and so when i think you look  as to the facts regarding what they did or did not do there's no there's no reference or mention to those defendants in the district court's opinion other than the conclusion really a conclusion i guess  any evidence that one day had acted or they had an opportunity to prevent any of the force that was being used there's no that the record is there absent of any evidence to support those claims going for don't do what do we do with the there is deposition testimony from your client that he was resisting the dog is that is that right and i the district court says hammond says that he never resisted but that's not actually correct is it meanwhile his own testimony is that i don't think that you can call it resisting when you're being bitten by a dog that's biting strong enough to break your bones that you're trying to get away from of course any normal human reaction would be to try and get away from that dog that's biting you so i don't think that's would be considered resisting in the sense that he's trying to get away he was never trying to get away he didn't try to flee even trying to run away he's in this tiny little house that's five hundred square feet with three officers on top of him and two officers outside there was no attempt by him do to try and get away or flee or resist he testified that he didn't resist d if you're does he does use the word resistance i mean he says he was resisting the dog i mean that maybe it may be that he was justified although we have this segment we have to segment everything that happened right under our jurisprudence there's a takedown there's the biting there's the failure to intervene they're all different we have to analyze them all s right yes tell me a little bit about i'm curious about the initial takedown and whether  in the ashford case we have some language that suggests that when everything occurs really quickly you know if within a matter of seconds and not minutes that we're not going to we're not go really draw these fine lines and i'm wondering if you have a response to whether that's something that that happened in this case no i don't think that is what happened in this case i think this case is completely distinguish because primarily because in ashford they had videos which showed the undisputed evidence despite what the plaintiff was claiming in that case they had undisputed video in that case that they were able to observe to see exactly what happened we don't have that here they don't have anything to contest what mr hammond says happened except for their own claims of what happened but we can't use those claims here in the lower court nor here's to determine what happened we have to look at what mr hammond says happened bottom line is that he opens the doors were unlocked the door the officers had been attempting there was blood gushing out of his chest his main concern at that point was stopping the bleeding he went to take care of that bleeding and i have to say if you look at the pictures of the house it's a little teeny tiny house you walk in the front door you can see everything in that house there's not even a door between the living room and the bedroom so when they say you know he was hiding behind the doing whatever they claim is not true and he came out he came out commands these foreign language commands were commands the right well we know that the command from their training and the testimony of the officers of officer to dot that the command that they give is find and bite that is their command it's not located you can hold it their command based on their training is fine and but but they also have a command to heal or stop  it's told to do is one of its st outings about recall this was its st outing in an actual bite situation outside of training and that also goes to the lack of training and we know from the testimony of officer kit dot that during its training this dog liked to bite thing regardless of the fact that the handler would call him off in fact when i asked the officer at the deposition why does he do that and he said because that's what this dog likes to do and so you know regardless of the fact that he whether he said bite him or he'll we don't know he's using foreign languages so we have no idea exactly what the officer is telling him we do know that the dog bit that it bit him on the side and then it released his side then when there was a nd commanded bit on his leg and foot for him but he distinguishes the other two officers what rather what is there to show that the other officers exerted excessive force well st of all i think that the there was no need in any point to have three officers in a dog pouncing on my client secondly i think that all i would need is different from excessive force but i think there's also a failure to intervene these we don't really argue that with regard to the other two mr hammond testified about the dog biting i could hear my bones crackling in my head i felt the vibrations in my head and hearing literally my bones snapping in my head i knew in my heart of the dog listens to cut up the right right but then he kept screaming get him off of me get him off of me get him off of me they wouldn't get him off of me they stood by and let the dog do what he wanted to do they didn't do anything to remove the dog from me they stood and watched like they was enjoying it and quote and that is on page seventy two dollars mr hammond's deposition welch also testified that three don't get involved when there's a large because they don't want to get that and it's not their job you know this dog had circuit on failing to intervene in this kind of situation where you're not the dog and later but you're there i mean if we if we held anything like that i'm not sure that there's a specific having to do with a dog but it's think it's pretty fairly clear that they haven't a duty to intervene when there's excessive force being used and whether it's a dog or whether the dog is considered a police officer and that is conceded by the defendants the dog is a police officer so if the dog is a police officer then they haven't a duty to intervene just like they do if it was another officer committing the excessive force so the dog biting his back biting his side biting his leg biting his foot breaking bones in his body is certainly excessive force given that he was just one little guy against these three gigantic officers who were on top of him and had him handcuffed when well it sounds like there isn't any clear any authority that would make clear to an officer who isn't the dog handler that the non dog handler officer has a duty to take control of that dog situation my mistake and somehow in that i don't think you're mistaken on that but i do as i just that believe that they have the same obligation with the dog that they have with another officer it's the street ok the dog is the quipped with the handle the dog was unleashed by the way in case it forgot that the dog was completely unleashed this dog was just on its own but had a handle on its collar that could not did use at the end to pull the dog off because it was not released despite whatever  giving or attempting to give to the dog to use that handle it was just as available to the other officers to pull that dog off as it was t that i don't know if wants me to get into the municipal claims i've got a couple minutes left sure so as far as concerned it's our position that the policies of the county were deficient that the the ability to failure to trainee handler and the failure to train its dogs  is a result of the poor policies that the county had in effect at that time they had to use a forest policy that it not mention anything about the use dogs in the course of an arrest that he used they had a canine policy that did not mention anything about wars in its policy taken together the two policies completely left it to the discretion of the handler as to how to handle a dog situation when the guard was used in an arrest they did not give any direction in any way to the you or on how to handle the dog and the failure of this seeing how we have jurisdiction at this point over that kind of a nation well i know that there's this inner twyman doctrine but it doesn't seem to apply when the whole argument or almost all of it as you just expressed it has to do with the content least with respect to one of these then there may not and perhaps mr clarke you can address that last point because it seems like it may be a question for you in terms of whether we should even look at them and now question if they claim against mr just doesn't have jurisdiction at this stage to rule on that but i do want to clarify one of my prior answers specifically to judge rogers questions about dot kind of piggybacking off of your question judge a regarding force and i do think this court can decide in reverse that occurred before that specifically the takedown i don't think i think even with the undisputed facts and the facts as support by plaintiff that initial takedown was reasonable you had plenty of open of the front door retreats to an area where the option had no idea what was going on in that bedroom and that initial takedown right when he came out of the bedroom was reasonable if it was a reasonable there's no case law that says you couldn't do it so there should be entitled to qualify miti on that and so along similar lines during that takedown is when the under spirited evidence  initial bite a mr hand is back occurred and so i think it was an ink jet let me ask you about that because i don't think that's true i think he says that he testifies pretty clearly that he was bitten only after he was handcuffed and so i take it under x for if that dog if he had been bitten while they were taking him down and let's say struggling with him after ashford then you know the whole thirty seconds or whatever it is would all be kind of the same a van and it might be ok under ashford but this case seems slightly different because i don't think there's i think the plaintiffs clearly testifies doesn't he i was i was bitten after i was handcuffed so that's after the takedown isn't it that's on no that's on his leg and foot the back was what he said he jumped up and bit me as i was being taken down where does he say single reference to those arguments or claims and my priest my position is that the case law is clear those get those claims have been abandoned any claim addressed for the st time today should not be considered because they weren't thoroughly  properly briefed and even if they were there is no case law that says an officer that has no training whatsoever in canine handling when to pull off a dog when to deploy a dog anything like that  should should pull off a dog the feels like a dog in his opinion is acting improperly and so therefore i think those two claims are subject called is the apple is the apple we have the same obligation to raise appellant does mean he prevailed below on the failure to intervene and you raise the argument in your brief that maybe they just didn't carry the day and it wasn't orthe you know spending i'm not sure the apple has the same obligation does he i believe that i believe he does have a obligation to address it in his brief failure to address any argument constitutes is a waiver  and if you don't have any response then i do think that you have satisfied your burden for that reason i think it has been abandoned again even if it has i still think i win on that after issue for sailors and wel