three minutes that would be fine thank you it please the court brian can be half of the plaintiffs appellants mark and cheryl brown and i'd like to think your honour's first hearing this case today it's a case of feel very strongly about i am honored to be standing before you here today in this matter th trial court incorrectly granted qualified immunity to the defendant officers involved in this case given that number one under the totality of the circumstances a reasonable jury could ultimately determine that the seven shots fired at these two pet dogs baby girl and isis were ultimately resulting in their doubts about so before we give in but i'm concerned about whether the officers actions but later clearly establish law all right your honor and i like this because you tell me which supreme court cases or six circuit right is clearly a stable sample when a plaintiff is able to say controlling authority in his or her circuit or a consensus of personal use of authorities to that extent and what we have in this case is that ultimately eight circuits in this country have examined this very issue in all have come to the determination that a dog is in effect or property they can be appropriately seized under the fourth amendment so we think that we at the very least have a consensus of authorities on this issue and in fact this issue was addressed by i know this isn't a controlling authority but this was addressed by the eastern district of michigan in a case that name bateman if you drag it and then that case the court ultimately came to the same conclusion that despite the fact that the sixth circuit hasn't examine this issue directly that this is a clearly established right they can be violated so just just to follow who is question the cases that you referred to were those cases just referring to dogs as property in the other context or were any of these cases involving a police raid city of high point which is a fourth circuit case where you had an animal control officer that shot dogs in the execution of his duties as an officer an animal control officer but i can say for the court the brown decision which is a decision of the third circuit from two thousand and one we have the grant the city of houston case which is a similar scenario a search warrant execution dog shot in the execution of that search warrant that was a decision of the fifth circuit we have the decision  another situation where we have a raid ongoing and dog is shot in the execution of it you didn't come across any cases that went the other way they went the other way of the dog that they that it was property that was protected under the fourth amendment ok so i just want to be clear are you saying that are there any cases that have said or any kind not a clearly established right there isn't a single case that i have come across in a circuit court case that have said that this is not a clearly established right  i'm not sure what right we're talking about is one thing that is clearly is the dog is properly something perhaps the fourth amendment is another thing to say that it's clearly established that you can't shoot a dog in the course of a raid do we have in do any of those cases say there was clearly established that you can't shoot a dog in the course of a rape which is different from simply saying that the dog is pro the questions in the cases aren't is it simply that it's clearly established that you cannot shoot a dog in the execution of the raid the question in those cases is in the execution of a raid can it be is in fact a clearly or that is clearly established fourth amendment right because these cases have on the one hand held a dog isn't a fact it is property and on the same hand we have the fourth amendment right against unreasonable searches and seizures of the facts and so if a dog is considered a fact if we can if the plaintiff is able to establish or a reasonable jury can come to the conclusion that they were unreasonable and seizing that dog an obviously seizure would include meaningful interference with the property rights of those dogs which would of course include killing and destroying that dog in fact one of the cases that we have the dog was an even killed the dog was merely shot and never the less the court felt that that was sufficient to constitute meaningful interference with possessory rights of the end of it let's get to the heart of it in this case the officers say they had to shoot the dogs because the dogs were acting aggressively d so why why do we not have to grant qualified or approve the grant of qualified immunity to the officers under these circumstances well first off starting with the end i also want to note that ultimately we do have seven shots here so starting off with what you've stated is the first shot so the initial shot there was fired by defending kline in the case what we have is the testimony of defendant kline and he stated in his testimony that he was the first i would say that the relevance of the seven shots is that each shot each use of excessive force is entitled to its own determination as to whether the use of excessive force is reasonable force not use of force was was excessive here but what i'm saying is that look of the circumstances of the offices in or quickly though at least that's what they think it is you've got two big  so looking at the totality of the circumstances here what did the officers do that was wrong the cases clearly that have been determined in these other circuits have looked at was the officer in imminent threat of harm not whether the dogs are merely an impediment to the search that that's going on here and they're watching that that would be unreasonable to feel that they were in imminent through the they don't  the thing with seemingly the need to do something very quickly i was starting off i could with with the first shot at baby go because we believe that there are material fact questions as to that shot as to the reasonableness of it and what we have is the testimony of klein who stated that i shot the dog at the threshold a door before i entered that residence and i shot it when it when i believe that it was lunging at me that's his testimony the problem is that the pla e building and number three the physical evidence that was present at the scene showed no blood in the on the carpeting of that living room and why that is significant is because the officers have testified they saw the dogs in the window now the barking question here is a contested issue of fact defend a plaintiff said that the dogs were barking so you have to accept it is true now what we have here is the dogs if if the testimony is true that multiple people went in there before the shot was fired that there was no blood on the carpet in only blood found was in the kitchen that means that baby girl had to be have been moving away from the officers at the time the first shot was fired not towards the officers and certainly not at the threshold which is what defendant client testimony testified in this deposition in and is what the defendants rely on for the rationale in firing their first shot but taking that aside both of the dogs are entitled to determination as to whether or not it was reasonable to kill them and i would submit there is no rational submitted here to the shooting of the second dog isis whose only thing that was alleged against her was that she was standing there barking now even facing at the officer but merely facing sideways ok this was in the basement that's correct i says it's uncanny uncontested here that isis fled from the officers from the moment that home was breached until her and her alternate shooting in that basement and you agree that there's unrebutted testimony that isis was barking i would agree but the no case decided yet has said that simply a dog barking is sufficient here for a jury to come to the conclusion that the police officer is entitled to qualify me i know it was their testimony that isis had teeth showing in any a dog even after they happened talking about the ultimate killing of baby girl after firing three rounds at the first dog the second dog turning pausing at which as it was moving across the basement it stopped and turned and was barking case this is a case about whether or not officers who are executing a lawful warrant issued by a neutral magistrate for a search of a house where there is probable cause to believe that there is evidence of narcotics distribution along with weapons that are gang related and evidence that someone is living there who's just been released from prison and who has continuously used that address as his residence before going to prison and then now as it appeared coming out of prison whether those officers conduct a protective sweep of that house during the course of which they eliminate whatever threats are in front of them in the reasonable manner that they see fit to do that they have to protect their safety what they do is they shoot the dogs crow if we start out saying yes of course the officers can do a protective sweep to grant you that and i don't know whether my colleagues would but you know let's assume that we say that why can they shoot the dogs can they shoot any dog that is there because any dog can bite you know even a little yorkie can bite somebody or is it or is more required to allow officers doing a proper protective swee to shoot and kill animals so for the moment will take is an assumption that dogs are effects under the the fourth amendment no court has that they're not right that's true no court said that they're not effects now in the open courts analysis it provides an originalist with a basis to say that they're not of facts but that open court engaged in the most mature analysis i think of the fourth amendment issue and ultimately concluded that they are facts under its more thorough analysis and and i wouldn't quibble with that i would say that per judge clay's question there's not a single decision out there that i've seen has applied the fourth amendment in the context of a protective suite and there are cases out there that say the right wasn't clearly established including open itself but then to judge more your point in particular in that context but answer is this it depends on whether or not that dog under the reasonable set of circumstances is impeding the protective sweep like any other property now what's reasonable in terms of a living being is different from what's reasonable in terms of of something that's inanimate i'll grant that but this is an item of personal property it's not an excessive force case it's not a case that involves searches after the fact like the unpublished fifth circuit opinion in grant versus houston that's a search after the fact and every other case the plaintiff has cited every other case we've talked about that i know of involves dogs in the open fields not in the confined circumstances of a protective sweep so if you have a  you're particularly nasty and jumps on the officer and won't get off and for some reason the officers around you know can't simply grab the dog and put it in the bathroom well in those circumstances lethal force might be necessary i can't see right now how that would be reasonable for a small dog because usually you can just by your wish that and we have dog lovers and we have dog owners dog owners on the swat team i can't forsee a circumstance in which we would put a yorkie down but one hundred pound pit bull lunging indisputably plain of can see that on the transcript to the trial court that there was no evidence to contradict sergeant klein's testimony that the ninety five ninety seven pound pit bull at the front door lun him no evidence to contradict that now in reply brief there appears to be a retraction that position i find that troubling but that's what the transcript says in the trial court what your opponent argued in front of us was that there was no blood on the carpet there and a variety of other things so how do you address those points if there is a how could there how could the shot have occurred there if there's no first of well two parts to that answer whatever happened with the dogs throughout the house the testimony of the officers is from top to bottom they clean the house so that when the mother came home she would see pools of blood laying everywhere so there was cleaning of whatever had happened now in terms of shooting one hundred pump it where there's no bullet recovered up in the living room either the bullet apparently was lodged in the pit bull and so the fact that when it runs in a very small living room over to the kitchen and then down the basement stairs that you don't have a blood trail isn't particularly surprising if that pit bull was hit from the top of the side and then the bullet stayed within the pit bull as opposed to having some big leaky exit wound or something which the dog didn't apparently have so so so the other thing that you know this sort of emphasized by your opponent is that there's a fact question because of the testimony of mr brown in terms of the timing as to when the shooting occurred and where the dog was and so forth and mr brown is obviously outside whereas the opposite is are inside so that might go to the weight of the testimony but is there not a fact question no there is not a genuine fact question i mean we have speculative issues all over the place but courts don't treat testimony by someone speculating outside who admittedly was wailing was incredibly emotionally distraught crying about their kids may not hear half the things are going on frankly is not paying attention to or focused on what's happening at the door can't see through the seventy eight officers of the swat team who are entering that house whether or not he heard the initial shot and frankly we don't have to credit his self interested testimony everybody's testimony is self interest why are you picking on him is being self interest aren't the officers self interested here well i'd say the answer is that the testimony is self serving in that he's the only the only person who can possibly offer that testimony from from the curb but the over the short answer  that's serving to i just don't understand how we can say that anyone with this is self serving when everybody who's testifying is involved in this it's a fair question your honor and i there's some degree to which any witness can be characterized as self serving sure especially since the officers here face an individual like the little that said it's undisputed that there are seventy eight swat officers going through the front door these officers are armed they're in full gear it's a small house a small door it's not even credible that mark brown skinned see the dogs or see through that door and mark brown admittedly said he couldn't remember basically anything from that time or he had memory trouble during his deposition remembering back that far whereas our officers don't have that issue with the officers hypothetically shoot any pit bull that they saw in the house because it's hypothetically it's common knowledge that pit bulls are par ticularly dangerous and hyper active breed well different courts would reach different opinions on that and frankly i think that's why you wear the robe the the answer could be yes i would not argue that far i would say that you know we need to that the line between protected animals and non protected animals depends on how the court defines domestic and then once someone is inside the house in the course of protective sweep we should analyze that particularly if it's a domestic animal that particular animal using the same kinds of tests that we would use for any protective suite so if the pit bull is presenting aggressively if the pit bull is behaving unpredictably i don't think it needs to be charging i don't think it needs to be lunging if it's behaving in a way that's creating a risk and a danger that can't be controlled if it's mature fully grown these things matter if it's a baby pit bull have managed put in a put in a bathroom that's been pre cleared then that's not a problem and that it is in the big snakes because there are people who keep snakes as pets people have both constrictors or other such things with officers who don't know how to deal with constrictors be able to come in i think it's an excellent question and one that i actually hope this quarter addresses because in a more thorough analysis then what even was presented to the open court i think that is an open question for this court and the question is when do kinds of animals become domesticated and when are they still feral once upon a time in this country dogs were largely feral and they weren't protected by the fourth amendment now they're domestic animals and they are in my view although i leave that to the court i probably should concede that but but i would say that's the line and so for boa constrictors i personally would still view them as more fearful than domesticated and if our officers don't know how to deal with them and i mean i can't have officers who are going to get killed by gang members or get killed by the snake just because they're busy trying to clear a place in the the boa constrictors  you know falls over it's about the fact that mr brown and correct me if i'm wrong mr brown said there was nobody in there and here's my key so you don't have to bash down the door they have taken him at his invitation key and if he said there was nobody there and they knew that there was there were dogs there because they'd seen him go out for a walk and come back with this one dog they did not know that no one was there there was simply no information on that and this is yet round saying there were still in their right that are not so mr brown is not a gang member let me make that clear but any gang member detained outside a gang drug house can say the same thing hey there's nobody in there don't worry about it here i'll get to the key and let me give you five wrong keys while i'm interrupting your entry or while i'm setting you up for something worse so the answer is no it is not reasonable when you already have circumstances justifying a swat entry in the nature of this kind of warrant under the totality of circumstances of the reasonableness test as applied here no it is not reasonable to put what we will assume to be an innocent civilian in between you and your guns and the warrant that you have to serve and whatever mystery might exist behind that door let's go on to another subject is should the city help it absolutely shouldn't be according to plaintiff's own expert there isn't a single law enforcement agency in this country that has the policy that they fault us for not having and took quote the transcript  page id twelve thirty one plaintiff had conceded quote i don't think there's anything in the law that's on point that says a city should have a policy dealing with dogs or animals in the execution of a search warrant i don't understand why we're not still relying on that honor i think you may be referring to in two thousand and fifteen the international association of chiefs of police came out with a potential and suggested model policy which comes into play two years after this incident in the first place and that's a model policy that is being worked through by some chiefs of police or by an association of chiefs of police that expressly does not reflect the current state of the law and certainly didn't even exist at the time that our officers executed this raid and i would note also that policy in terms of dealing with dogs will deal with dogs during the course of a wide variety of searches it's not focused on protective sweeps it's not focused on swat raids so to get back to your question and judge moore's question little bit earlier touches on both by the time we are executing for example a warrant that doesn't involve a swat team where we're trying to seize papers related to some white collar crime or something along those lines well there may be situations in which we can take a cue from somebody to enter a house without having to to break down the door perhaps you know in other situations where we're further along in the search where we've already swept the house and swept the area that we're about to search well it may be that there are any number of steps that we can take with the dog that doesn't require putting the dog down for example if the back yard is fenced in and we're not searching the backyard put the dogs out back you know and let them be there to close the door but that's not the situation we faced here we had to clear the entire house including the basement which is where the owners lived and which is where the dogs naturally as guard dogs tried to protect and we appreciate that they were doing their job as guard dogs that's what they were there to do unfortunately that put them between the officers in the proper services of this search warrant honor we rely largely on our briefs so in in this time i wanted basically to address a couple things have been proud up in the reply briefs we've already addressed the transcript citation to twelve thirty one it note that plaintiff's concession that the larger pit bull had lunged at sergeant klein or that there was no evidence to contradict it that was at page id twelve twenty one and the page id twelve twenty two again on the hearing transcript below plaintiff agreed with chief judge younker that nobody said anything again to contradict that the dog was lunging so it's twelve twenty one to twelve twenty two there's also no dispute in this case that there was no one on plaintiff's behalf inside the house during the search of the basement at the end of the day all of the testimony here is consistent we've had exhaustive discovery and at this point there is no genuine issue picking up on one point that the court was discussing with plaintiffs i just notice we do have four defendants each is entitle to their own review the court conducted a review in the in the trial court that provided appropriate reasons why each had not only acted in a way that was neither incompetent nor knowingly violating the law but also in a way which he said it seems reasonable now i would know for this court that not only is it not clearly established not only do we have qualified immunity because there's no court in this country that has yet addressed to my knowledge the application of the reasonable standard this is the reasonable the standard as applied to dogs in the course of a protective sweep not only has that issue not clearly established here for our officers but i also note and ask the court to in its de novo review find that on this lengthy and exhaustive body of evidence in the record our officers acted reasonably and i'd ask you to reach that decision and reach that issue because officers out there need to know what they can rely on and if officers can't pay attention first to the potential gang members in the corner who are armed or the potential folks who are destroying evidence then we're going to have real problems on these raids officers need to have some guidance on what's address a few things that were stated by the defendant to my brother counsel here the important thing to note here is that before this raid began there was no way that these dogs were to survive and that's just not my characterization of how the raid was conducted that is the characterization of the commanding officer at the scene searching case who stated that knowing what he knew before he went into that we've heard that house was raided those dogs were grand i that is his testimony on this point well if the dogs situation where these dogs survived here and he said that knowing what i knew before there really began there was no way that these dogs were going to come out of there alive but to your point both of these dogs ran into a basement ok and we have testimony of another surgeon of the battle creek police department who was a member of the merges the response team who stated that in him and his actual involvement with the year there were situations where dogs would go into a room not cleared they would simply shut the door clear the remainder of the home then bring in the owner and allow the owner to move that dog to an area that had already be cleared and then go into the room that area and clear that area that could have been done here there were multiple alternatives that existed that did not include killing these dogs and that is certainly a contested issue of fact that there was evidence in the form of testimony by officers that was just filled with stuff and that they need to look around and if you think about rooms that are filled with people could be hiding behind boxes well certainly they have alleged that we were concerned that there might be this person there might be that person but the question for this court is what evidence did they have at the time they made that decision to come to that conclusion and i asked the officers this very question their deposition what evidence did you have before entering the home having the only dangerous subject that they were aware of him police custody before the raid began testimony in this case but the testimony in this case is that the officers in counted and counted dogs in search warrant raids often so they should bring darts that they can shoot you know there are there are multiple means  been provided by our expert in even battle creek police department officers they have said they were effective in the field even the in the execution of a merge and see response team search warrant executions all clear legally required were what could be be characterized as being legally require both the legal requirement is reasonable ness if this is an occurrence that occurs often then it is reasonable for them to prepare for that occurrence that often a curse that is the plaintiff's argument here but more importantly what we have argued here is there is a number of different alternatives available to the officer and that argument goes to the cities  policy that would be the way of dealing with dogs that argument you just made pertains to the matter of whether the city should have a promises that it goes to both and actually if we look at the san jose prepare for that eventuality and not only that there is a but where dogs and the from the home there was an investigation done the night before and somehow they didn't simply look at the front of the home to see it but where would you rely on to say that they have a duty to bring lethal means well i would rely on the hells angels case of a that assertion that's correct your honor and i know that my time is there any other questions i'd be happy to answer those thank you very much thank your honor so your argument the case would be for this with a clear call the next