good morning minute please the court my name is cliff greenberg i represent the san jose defendants we have a sharing time because of the consolidation but obviously we have much different issues are issues involved shooting  dogs are issues involved similar to the county defendants qualified immunity but in a much different context in this case in this situation to the shooting of a dog in other words you may not shoot a dog with no legitimate governmental purpose we know that but that's all we know about the law of dealing with a dog in the context of respect to this particular circumstance in fact it doesn't come anywhere near this particularly you would agree you can't destroy the necessarily destroy property personal effects which directly and under the law that's pretty clear and that is clear and that's the key word what where you do need to move instantly because evidence of some serial killer or the killer himself or whatever is so necessary to deal with right now and you know you're coming up to a dog situation no one i don't think would say evidence that that has ever happened in a circumstance anywhere near this kind of circumstance the question was simply can you get a control officer and the answer was yes but it wasn't specific to this situation the fence they certainly could have asked whether there was some way to shoot them or something i want to tell them your honour's i believe that you as this court with the ninth circuit in this situation will indeed explain to the world what should and shouldn't happen in terms of what the police officers it should do when confronting a dog situation that does not answer  after the fact of this case that they should have considered that factor but what's important in the qualified immunity analysis is that no one has ever said anything close to that before no your honor but in this situation just like in many many qualified immunity situations the court says here's what the rule is and you're going to apply that rule in the future but an officer would not or wrong aren't we barred from considering whether there is any evidence or not under the case of johnston vs jones which under the appeals twelve ninety one collateral orders the determination of a trial judge as to whether there is an issue of fact which bars some reject relief absolutely that point is correct but at this situation there is no disputed issue of fact that we're dealing with well there is because you're saying that in real life all of these things the judge  really don't help under the situation you can't use tranquillisers pepper sprays muzzles or play on how to stop the dogs not use not focal as do the plaintiffs made a conclusion based on no  at all so you're saying judge fogel didn't have any facts upon which to comes the conclusion that there was a spiritual effect and that's precisely the situation johnson versus jones saying as a matter of court administrator we're not going to consider parade and the person was arrested because he had a backpack they wouldn't show to the officer and the officer said well i thought the because of the situation because of the  what was going on here that i have probable cause this court said no on reflection you do not have you did not have probable cause but this officer was intitled to qualified these kinds of incendiary circumstances you should give this much weight in consideration of all the normal fourth amendment probable cause issues and that is exactly what we're dealing with in this case there is no case that talks about how affidavit said they just had a warrant that said evidence of murder was part of what they were looking for was a videotape of the actual murder they didn't know whether it existed or not they didn't know whether george fogle was going to later rule that that was not a proper search warrant and they were allowed to say that's part of what we're looking for and so this court will be able to say what you can and what you can consider and how much weight you to give it but the police officers at that time had absolutely no guidance on that and i think that informs the qualified america thank you thank you unreasonable searches and seizures the district court reviewed the evidence consisting almost entirely of the defendant's records and the descendant deposition testimony and determined that the san jose officer who shot my client dogs and sergeant lenderman who was responsible for the future and retention of truckloads of property had violated plainest constitutional rights just a court further found that night circuit prohibiting unnecessarily reasonably enlightened police officer would know you don't have to read it but i mean you know police officers were not executing a warrant they were investigating a matter they walked by the yard according to the officers the dog lunged at them according to the homeowners the owners of the pet the dog  standpoint now with regard to the more general principle and the supreme court has repeatedly held and indeed held in hope that the fact that something is general of principle is general not mean that it's inherently incapable of giving notice and in that regard the best case i've found for opposition is actually one sided fact taller the problem  few and i think if you if you combine the groups you'll find about ten but there's a strong distinction made between dogs who are running loose and who are posing a public threat and dogs who are sent and  called man's best friend that people have emotional relationships with their dogs and that's certainly clear from the record here my clients love their dogs they weren't temporarily deprived of them they were permanently deprived of them so you have a serious intrusion on the one hand on the other hand you have well in looking at law enforcement countervailing position that touchstone testimony according to the officers they could have called in animal control but it but according to one officer despite having a week to plan and they didn't think of calling animal control until after the dogs were animal control at least being an option if it wouldn't have worked that was their burden to prove it at that juncture and at this point it's something that should be addressed in the lower court they also brought up that they frequently used pepper spray they had it with them that day why didn't they use that they haven't told us it was remuneration of purpose we would do anything would get the dogs matter that there was no further evidence i'm basically telling you what what came out what  ordinarily when they encounter dogs dogs and executing warrants are conducting investigations the first thing they do is give the owner the opportunity to control the dog before considering the use of force why didn't they do that in this case because they wanted to preserve the element of surprise and your honors that doesn't make sense a reasonable officer would have expected the dog to bark when ten men tried to get into its yard a reasonable officer would have anticipated that if the only way to deal with the dogs was with a shotgun and the element of surprise was certain to be lost well the officers were still outside the gate and now let's look at the plan they did come up with because this is clearly relevant to the reasonable inquiry to hope that the dogs wouldn't show up to hope that they could bear these dogs away by poking them through the fence with the butt of their rifle to corral the dogs having no plan as to how or where by leaving themselves no realistic option but to the dogs the officers were certain to alert the occupants to their presence while they were no closer to the dwelling and then they would have been had they alerted the residents in the first place by identifying themselves while still outside the gate neither the interests anything about that during their deposition testimony i don't think they did i mean from what we know they didn't so in terms of government the governmental interest to wait against my client the intrusion on my client's fourth demonstrate that any of that wouldn't work well that's true and what judge total found was the fact that they didn't even consider it was unreasonable and that's essentially where we are at this point because the whole point of not identifying themselves in the first place and giving the owners the opportunity to control the dogs was the element of surprise then yes it was unreasonable but i guess the state of the proceedings you could also draw an i as the standard of clearly established and civil rights cases and perhaps because i practiced criminal law that helped me in getting a grip on whether the law would clearly established here of the math of evidence they ended up with they never found time to review them so they didn't return any of those items and still a year and a half after after my client had hired lawyers and found most ins the definitions talk about full well you'll notice that the definition of the objects to be taken part in the plural it isn't any painting  thought if it overbroad because in that reading clearly the warrant would be overbroad when you look at what they were trying to prove with this evidence which was simply that they held angels motorcycle club is an ongoing organization perhaps you thought that they would just have their their leather vest in their homes or or a ring or something like that and that by taking all of it he would be acting reasonably but when he got into the homes and in the people on this were instructed to page him if they had any questions and they did so repeatedly because when they got into the homes they found out that virtually everything my clients own could qualify whether the officer's conduct was reasonable or not that would be where we would be and so summary judgment would be an appropriate summary judgment is only appropriate for the officers if they convince you you are you thinking about