for the meeting his role in ninety three claims dealing with law enforcement i wish to start point out a couple of things that i think control and require reversal of the district court the st is that the use of police dogs there's nothing novel there's nothing unique there's nothing new about about them this is not present in a situation where officers are dealing with different situations they haven't before things they weren't trained on policies and  long since and that it and i know that a lot of times when we look at the cases dealing with qualified immunity it comes it seems that it's the eternal search for what we all into law school of the case that's all for us that tells a police officer what to do  but that's not the law it can't be the law because eventually that will simply swallow the entire area and the be no redress for individuals who have their rights violated so the use of a police dog is no different than a baton it's no different than any of the other tools that police officers have traditionally had for years now the other factor that i suggest requires reversal is that this was not a fast moving situation wasn't a chase when the when the officers encounter mister hernandez and  he stops in his garage there's no chase going on there's no quick situation that the officers have to protect other people from or protect themselves he has stopped in his car it is agreed that his car's off many poses no threat to anyone is effectively acting as a petulant child refusing to exit his car holding onto the steering wheel the officers at mit throughout the record that there is no use of force by mister hernandez no attempt to fight them no attempt to do anything other then simply sit there and passively reserve so mr severance is your argument that it seems in the briefing that your argument was that the officers violated your client's constitutional rights by allowing the dog to continue biting mister hernandez after he surrendered now it seems if you're suggesting that it was a violation of his right to use a dog at all if he wasn't resisting violently i surrender the officer said that he pulled on the dog rather than giving him the command to release the bite a deposition and accept it if exerted exempt the record the officer said well he never had not the dog  never not a obey the command to stop biting so the use of force which is the severe use of force it is a misdemeanor stop it if somebody is clearly intoxicated and not you know acting in a manner that is clearly thinking but not are i can't i can't point to the case on all fours if i could it would it would be in my brief that but but the but which you just expressed respectfully is if the factual determination we're talking about eight minutes we're not talking about a and you believe contrary testimony i mean we can watch the video which we all did and watch this go on for over eight minutes i understand i don't i don't disagree with that but deciding that eight minutes in and of itself becomes ok that's long enough now we can go to a severe level use of force that in certain certain circumstances can approach deadly force is a factual determination of itself and your your argument on the use of the dogs seems to go to the th amendment question and i thought you were here on the qualified immunity question that there could be a violation of the th amendment but it's not obvious to the officers they're going to get qualified immunity anyway so are you here on both questions or just the qualified immunity question ok i'm hearing this pa well st off to answer your nd question st if the panel is inclined to find qualified i mean i do ask that you establish the law because i think all too often what happens in these cases is that the nd question gets answered and the law never get to violation so when i go back to to the gate and the case and mendoza and i got was that those cases have broad pronouncements that the laws clearly established and tell if you're going to get up and say well that's years before the supreme court told us to look more detail but when we look at you to gauge it talks about a policy violation and the l a p d had a policy in place here what we know is that this officer was found to have violated the policies of the city of gilbert but then policy may not the policy may not be conjunction with that with the th amendment looking to the standards of the grampy the grandstanders before out there and we start going through each one of those standards it's apparent that this that this is a case where the use of force was excessive not every case requires one for there are cases that talk about obviously so mister zucker when i when i asked you about where the line was your response to me which i wrote down was well the cases tend to be generalized not the case and that might be a bright line i'm not sure that works in your case but that might be a bright line i don't need or want my line you're asking for ok that by law doesn't apply to this case it applies to the least of the st part of this case it does apply to the nd part when they continue the b after he said that's enough i'll get out but when we look at there we look at the use of force here there's you have to tell point decide that it's so obvious you have a misdemeanor stop someone  surrender when the dog was was brought into the car and even after they removed the dog he still refused to come out and he was still holding on to the headdress and refusing the officers orders to get out so how can you characterize the evidence as saying he had surrendered when video shows that is not true well any question in my mind that he had not surrendered or basically agreed to the arrest to the contrary he was continuing to insist that the officers had no right to arrest him or even be untied is garage right i understand that and obviously that's not the his actions were not here to say that they're justified in terms of you don't right to be in my garage you know i just get to close my garage and go home i'm not i'm not suggesting that but when  but if that the officers had probable cause to arrest and he was not a ceding to be arrested doesn't the officer have the right to use reasonable force to affect bureau and to overcome what you call asked to resist the absolutely reasonable force but this is not this is on the continuum of force we talk about the crimes he was fac all the factors this is not reasonable this is a severe amount of force that could cause to be or injury that's not proportional to the situation that was presented to these officers well the danger we're running out of options i mean they tried to pull him out and that didn't  they you know they tried control hold on him those didn't were they tried in compliance that didn't work and then they introduce the dog and even the dog didn't work at that point i'm not quite sure what is left again we're talking about a relatively short period of time a man who's intoxicated they know he's not thinking straight obviously and they don't they can take the time to talk him out they're not presented with a situation that there's a danger to them or other members of the public the evidence that the officers concluded that he didn't present a danger to me they had followed him in his car he went into the garage door from closing one officer was standing by did driver side of the door speaking with him trying to encourage him to come  now another officer was trying to get his dog who was running around barking but i didn't see anything i suggested that they had been able to patted down or search to research the vehicle or that they had any way of knowing whether he was armed or had a weapon  know i mean they know they've got an intoxicated person a pretty big guy who's not cooperating and at any time then because they haven't been else has found that he wasn't a threat or that he wasn't interested he could have reached somewhere and retreat a weapon so what you're it is they were what is that they did that violated his rights but the officers can simply assume that he's armed because they can afford nearly one hundred percent pinned down that he isn't armed then the use of force is any use of force is justified at that point these officers have made the conclusion that he was unarmed didn't pose a danger and that's evident by their behavior of going up next to him go try to run in a part of his car if they followed the danger they would have stepped back to protect themselves you know either behind their own cruise you're ready thank you your honor good afternoon your honor is robert ross so i represent officer steve gilmer and the town of gilmer and to be clear about that there is no mo no claim in this particular case it's only a claim against officer officer under similar circumstances has violated the th amendment and sometimes you'll see in the opinions that sentences is read sometimes quickly but it's important that there's two pieces to it if you have to have a case where there are similar circumstances and the case has found that the officer violated the th amendment the courts have found in the supreme court has admonished that only in that circumstance can it be said that the law is clearly established such that it would an officer would know the conduct was prohibited in this particular case your honors the plaintive mister hernandez offered three case mendoza vs block although it's factually dissimilar and we can go through all of that in the easy answer with mendoza is the court found that the conduct was objectively reasonable so no officer an officer gilbert position is going to look at that opinion and because there is no th amendment violation so mendoza vs a law can be put to the side the next case they rely upon is walk ins vs the city of oakland again as the district court properly pointed out in its opinion the facts are now it's dissimilar it's a dog searching in locating a hiding suspect but this is what's important in that case the court time did the th circuit find a th amendment violation and that's required you have to have a case remember as the supreme court said with similar circumstances or facts were afforded the amendment violation was found there was no review was limited to whether it violated clearly established law so there was no expressed finding in this opinion by the th circuit that the use of a canine in that case violated  have just records denial of qualified immunity correct your honor but but there was no expressed finding that is that there was a th amendment violation only that but i think that they did that because there because there was a great conflict in the of in the evidence these cases sitting in his back pocket had the time and luxury to actually review them that night the question is would this issue be beyond debate and when you look at the this court's holding it watkins the most that you get from it is that the extent that the quote is improper encourage men and continuation of the attack could constitute a violation of the th amendment rights but there is no express that that white kid whose version of the facts is correct and if one can which the jury is going to have to find because the officers dispute it if watkins is correct and the jury agrees with them then there is a violation of  the th amendment that is obvious and what we see officer is not a time to qualified immunity your honor i think what i'm trying to say is that in this particular circumstance the th circuit's crown spent on that issue setting aside the dissimilar facts of the case was only that if this extended generation of the bite and the continuation of the attack which isn't defined by the night circuit could constitute an excessive force violation and i believe the upon a couple of years after this incident but it's just merely analyzing that same president or those same issues and what you can only glean from that is in certain circumstances i think there was a clear example of if a suspect is handcuffed completely helpless completely surrendered that in that circumstance that would be a clear pronouncement an officer should know that that's not the facts of this particular case when you're dealing with a suspect who has dried up he's completely intoxicated he's driving fleeing from the police the police try literally i think there's no doubt less than three dozen orders to get out of the car they tried every version of a control that you can possibly think they try pepper spray nothing worked i mean and then finally they you know after warning him that the dog was going to come in they send the dog and even then the dogs not working he's still fighting i whether somebody is surrendering you can't keep having a gun i don't your honor no i do believe in that and that's not the basis from which are we requested summary judgment were granted summary judgment from the district court that was one perfectly clear is the case law in this area did not there's no case with similar circumstances or a th amendment violation was found and for that that's the sole reason we moved for summary judgment and that's why we focused on the nd prong and this is significant as well your honor mister is well injured i want this to be clear on the record so there's no confusion this issue about the gilbert found a policy violation this is very important and i'm going to  gilbert did something wrong it's quite to the contrary what the gilbert police department found was that it may need to revisit its policy i'm canine use of force based on an existing precedent and just updating the policy but the pages reference expressly state that the officer cannot be held accountable for the lack of specificity in the canine policy and that it talks about the canine policy and i'm page fifty of that excerpt of record talks about how the policy that for the canine program says that the officer can use the canine for the protection of a handler other officers and citizens when reasonably necessary for  accomplishment of law enforcement goals and that's why they did find an officer gilbert did something wrong to be clear there's no now claim here so that to the extent mister while injure is trying to make some sort of policy violation facts because you're dealing with a non compliant intoxicated subject who fought with the officers and during the internal investigation if that's in the record your honour's ex urbs of record j at pages one hundred and and two officer immediately after this happened when he was submitting to the internal investigations he told them that he was relying upon the precedent set forth in strickland vs shots because the more closely matched the circumstances this officer was confronted with so when you step back here the real question is this in the district court framed it absolutely correctly at the beginning the question here did officer gilbert from using canine murphy as he did in this particular case and based on the existing precedent if obvious or gilbert had all these cases in front of him mendoza versus block which finds it objectively reasonable to use the dog in that in a different circumstance but but circumstances where the officers feel they are in danger the guy's clean officer gilbert could certainly rely on that case to find his conduct was appropriate if you look at the watkins case it does not clearly tell officer gilbert he couldn't it didn't because the factual circumstances are just different than when you look at strickland versus shots which is almost identical from a factual standpoint because the guy's intoxicated struggling fighting with the officers and they use the dog to subdue him incidentally in that case from the th circuit the gentle ben they went straight to the dog they didn't do what these officers did which i think is meaningful and we've been trying to flush that out a little bit this is not like the officers just showed up with a dog that day to attack mister hernandez that that's our hostages these officers were in tight quarters in a very small garage they had immediately told him to get out of the car he clearly was not going to follow their orders there were three dozen orders to get out of the car and they exhausted all kinds of different physical force and he actively resisted call this passive resistance is is not fair he encouraged himself in the car the car had been searched he had been searched and what was going through the mind of these officers ok if this guy's just drinking and driving and weaving in traffic why doesn't he just get out of the car so to a reasonable police officer that needs to go home that night and worry about his safety what is it about this guy where he won't simply just step out of the car and not them and then even after we have the dog deployed and he gets bit by the dog we still can't get him to get out of the car it takes two grown officers to pry him away without question in this these are pretty unique factual circumstances this man presented significant safety risk to these officers the district court found that in conjunction with denying the plaintiff's motion for summary judgment on the th amendment issue i think the district court got that exactly right but the district court quickly went to the qualified circumstances i think it can you're on her and i think they did give some clear examples and i think the th circuit did as well i think there are examples where say a suspect is is hand come completely helpless after he's completely surrendered if somebody decides to to release the canine at that point to use force on that person when they don't present a danger to anyone and they're under control and they're in handcuffs that it's clear and i think the case law can also of all i  don't agree that case law can't account for certain circumstances and evolve based on how we know levels of force escalation and things like that work there's been plenty of cases in the th circuit with different uses of force with with firearms with batons that cover all of those canines are really no different than that that there are tool that are used by law enforcement when it's necessary to exe use force and when the evil force does not want to be used like in a case such as th really will be very quick i just want to make a couple of quick points response to mister bob so st off i do agree there is no no no no claim here there was a state law a claim for failure to train and those types of claims that's been remanded down disappeared court so that's not good for you that's that's where that point is he just pointed out that there is something different about a dog to be agree there this is a time this is a very well established tool and simply because there is not a case for at some point the use of force in this have a situation is so obvious that there doesn't need to be a case  force but finally and i guess i do think it's important that even if this court finds that the law is not clearly established that the law be developed to the extent that that would have to go to the district court i think that this court can do that because the parties work together to stipulate to the facts you've been provided the video so at a minimum what the circumstance of these officers were presented i would ask that you establish the law so that in two situations officers are not permitted to use severe amount of force on a misdemeanor sto in a situation when other tactics including waiting for time may be more appropriate so you want to declare that the dog should not have been deployed at all in greece no you are not under any circumstances but in these circumstances when we go through each of the gr factors in particular the type of crime and the threat that he posed sitting in his garage with his car off and without access to anything and without any evidence but it seems to me that the officers did go through sort of an escalating  level of compliance techniques none of which were words of fact and the only two things i can think of that they didn't do is that they didn't use a baton and physically strike him particular time line i would also suggest that they had an opportunity consent consult with superiors and figure out what their options are maybe were talking to him maybe were doing things of those nature but simply go to ok we we try to try levels now let a dog out or dealing with someone in a misdemeanor me violates a point but he still in the car with the car keys and the garage door is open right so i don't know if the car was running at this point or at have been turned off it was off i mean he could have restarted the car backed out of the garage i suppose when they were conferring about what to do the cruisers were blocking and so he could to you know back out and to mister thank you for the additional time the officers have done i mean you said they should consult with the period that doesn't feel like a very satisfactory