immunity on the basis that the force used to arrest mr chapman was not excessive and was de minimus the question before the court is whether the testimony of mr chapman regarding how long he was bin laden lee contradicted by the objective record leg ok there's nothing conclusive it looks like that in itself i could draw inferences that support his twenty minutes i mean this is this at least ten different bikes all up and down i  had your honor it's one it's one part of the thigh and it's it's not good but it is a canine but it doesn't it doesn't refute at all his claim it was fifteen minutes the testimony by mr chapman is that he was been in for thirteen minutes almost killing him first in the complaint then in the second man to complain fifteen to twenty minutes tearing at his ankle then viciously attack twenty minutes on the left hip knee and and scratches surrounding their correct yes your honor tell me why the plaintiff's testimony can be discounted here on the theory that it was contrary to the laws of nature because if you've got a hard burden to discount the testimony of the plaintive you've got to show that it was either blatantly contradicted by the record or that it was contrary to the laws of nature yes your honor and mr chapman is testimony that he was eaten and chewed the district court should have been persuaded by the eleven circuit two thousand and fourteen case edwards the shanley in which judge hall and judge marcus and on on that a canine bit a suspect for even five to seven minutes the suspect would have had no chance of survival and would be dismembered dr mezzo state i've seen a one minute police dog bite and it was horrific i saw an individual and i was considerably worse dr testified that in edwards shanley very severe very extensive complex wound some of the muscles were severely damaged edwards tissues were just basically chewed up by the dog bites in that case edwards was hospitalized for six days and that two surgeries on his leg including the skin graph in our case we need to look to the objective record evidence which is the pictures taken at them urgency room and i hear what your comments are regarding the pictures but if we also look to the emergency room medical records the your records indicate chapman arrived at one twelve am and discharge was ordered at one thirty six am on the same day the records indicate care dogbite located on left leg was clean with normal sailing dress with non b jones it which is this controlling supreme court precedent but there are some subsequent cases is that we have to defer to that kind of a finding of the district court unless there is something that is subjective and blatantly contradicts that i'm talking about the law right now yes or on the press a basis based on this on the position of the case at this point is that in order for you to win this appeal you've got to show something analogous to a videotape and you are you really have it in these in these pictures i'm not i'm not sure i partake of the doubt show shown by my colleagues looks like that this picture contradicts the idea that he was chewed for fifteen minutes right i'm with you on that i understand that but i'm wondering about the if if you didn't have these pictures they just didn't exist and we're just talking about him in take  records and what people said and what people disagreed a jury could disagree as to that and if the does and if the district judge said there was enough to get to a jury under johnson b johnson we have to accept that because we don't have anything which blatantly contradicts it like these pictures are you with me yes your honor it ok if that's true i'm i'm not attributing that to you i'm just saying that's where i'm thinking at this moment harry with a strong what about the ankle there's no pictures of the ankle and there's testimony that his ankle was chewed that example right you know if we have to have objective evidence which is blatantly contradicts what is alleged where is that with respect to the ankle the testimony by deputy wang or was that the pictures taken in the mergence room are the pictures of all of his injuries and there would have to accept that as well yes your honor ok and when we look at when we asked the question as to well how does the court need to view the objective record evidence when you have plaintiff's testimony of fifteen to as much as fifty five minutes abiding by a german shepherd so at the low point it's fifteen but he does say up to fifty five in a of under under the law of love and certainly has been more into the right that is correct your honor although and that that's an important point is because at no time is his testimony two minutes and no time is his testimony even sixty seconds like in edwards be shanley they talked about sixty to ninety seconds so if we're only looking at but if you have a witness who says i was chewed for fifteen minutes a jury could find that it was he was chewed for two couldn't it i mean can the jury find the somebody exaggerated but still there was some basis to it that's a kind of thing a jury can find and that would be correct your honor however at the summary judgment stays the court said that the corporal of that if it was ten seconds then that was that was reasonable and the court though relied on fifteen to fifty five minutes so our whole argument your honor is that if the court is basing its reason for denying qualified immunity and finding excessive force on pla testimony of being bit in fifteen to fifty five minutes there is no case out there that we've located that would suggest that fifteen to fifty five minutes is reasonable to be without any  dismemberment without any tendon showing without any muscles with four to five puncture wounds with the bites that you see in those pictures those pictures don't compare to what we've had in priest crenshaw but specifically edwards  which the district court should have been persuaded by because in that case where it talked about that those bytes that took edwards to the hospital for six days in two surgeries and skin grafts that was less than a minute of a bite according to meza was the only one that quantified it so in our case when you look at the records the objective medical records same day discharge no surgery not even any stitches the medical records combined with the pictures are the objective evidence that mr chapman never disputed and in the face of the objective evidence the district court should have concluded the no reasonable jury would believe plaintiff's testimony of fifty five minutes of tearing and chewing by a german shepherd or even fifteen minutes there aren't any credibility determinations to be made this is all about what a reasonable jury would believe in all of the cases that discuss whether it's anderson the liberty lobby feliciano if they all talk about what would a reasonable jury believe so this is not just opposing viewpoints are dueling accounts it's unbelievable testimony in the face of the objective evidence we asked the court to determine what a reasonable jury would believe in to be the gate keeper because no reasonable jury would accept plaintiff's testimony as true in the face of the ject of evidence the district court should not have considered that and if the district court did not consider the amount of time he was bidden when considered deputy wingard motion for summary judgment and based on the record evidence should have been afforded qualified immunity if when the cases don't just all also don't just rely on on video evidence although there are cases the talk about video evidence we also had chemical corby alan which was the fist circa one nine hundred fifty five case but in that one it was a motor vehicle at acton accident where the plane of crashed into the back of a sixteen wheeler the court was faced with physical facts and photographs which were contrary to the plaintiff's testimony and that case the court held courts are not required to believe testimony which is inherently incredible or which is contrary to laws of nature and of human experience or which they judicially know to be unbelievable so in this case when you look at those pictures as as bad as judge old described them they don't describe fifteen to fifty five minutes of biting and based on other case just want to tell you that you dipped into your rebuttal time if you want to do that may please the court michael sloan of cotton fields jordan burt on behalf of the apple e reginald chapman at its base this is a case about conflicting eyewitness testimony at summary judgment there is a lot that's been said about the laws of nature about what pictures show about video tapes and all that but the basic issue here is that the pictures don't answer the question of what happened at the time of the events in question the situation presented in the scott case was a video tape showing someone driving and showing them driving in a manner that was much different in the manner that they testified there is nothing close to that in the present case we do not have videotape we do not have an autopsy that shows something to be impossible we have a picture only of the aftermath of what happened at the time of the events in question you agree that's a picture of your plaintiff's injuries after the after the events in question i do agree that it's a picture of the injuries to just comes down to this isn't it do they or do they not play these pictures do they are do they not blatantly contradict the the possibility that this person was chewed by a german shepherd for fifteen minutes they d guess this minimal minimal some people say maximal looks like some puncture wounds and scratches of a german shepherd for over ten minutes could result in this amount of visible injury is that what you're saying and that's i mean the video in scottie harris could have been somehow misinterpreted by the by the judges but they use their common sense and looked at the video and said this didn't happen wouldn't why wouldn't i want to ask it as a question why wouldn't a a if a reasonable observer told that somebody was chewed by a dog for fifteen minutes and then look at this picture and say that's clearly false that's my question i think that people can have questions about what the picture shows i'm talking about that's clearly false but i don't want i don't think that as a logical matter as a matter of deduction that you can deduce from that picture anything about the length of the attack ok i think and i think but we have to accept that statement that you just made in order to rule for you i'm accident the sentence that you just made that nobody could look at that and come to the conclusion that that he was not chewed for fifteen minutes i don't we would have to agree with that in order to rule for you i don't think that that's true i there is a very important part of the argument that the buy and hold method that is dog diesel was trained in doesn't necessarily show this isn't a wolf who is going out to eat who is trying to tear someone to pieces is a trained police dog who is sitting there is taught to bite and hold suspect subdue them so it as a matter of possibility as a matter of the laws of nature or you know blatant contradiction you could have a situation where someone only had what you would concede would you not that if this dog was biting and shoeing for fifteen to twenty minutes you couldn't have them look anything like these  argument has to be he could have simply been biting and holding for fifteen minutes and that would account for four puncture wounds and scratches i think that you're right as a matter of explaining the picture the argument goes along those lines that because of the nature of the training of this dog and the manner that they are trained to bite that there's nothing that you can really draw from the fact that the picture looks the way that it does a dog could could latch on to somebody and immediately let go they're going to have one said it's marks the dog could by bite someone style and hold it for a minute or two or five and you're still going to the same one set of teeth marks so i don't think that there's anything how do we know that is there any record evidence in the book or anything in the record on that there is any expert testimony from anyone to the effect that a german shepherd like this dog could buy and hold without chewing on it and it would yield pictures that look like this that is to say punctures and some scratches there is no expert testimony in the record below because the expert report that was submitted by deputy wonder was stricken by the district court and that was an issue that was not appealed to this court so basically what we have here is a situation where an expert report was stricken there is no expert evidence below and now on appeal the palin is trying to tie in facts and expert opinions from other decisions in order to set aside no i think his argument is a little more nuanced than that i think his argument is if in fact this dog was biting and chewing for fifteen or twenty minutes you could not conceivably have marks that look anything like this the natures of the nature of the injury would have had to be profoundly greater and our common sense could yield that conclusion we don't need an expert to tell us that i  think that my response that would be that the standard for disregarding sworn testimony and summary judgment is not commonsense common sense is something that a jury can consider they can consider their experience they can consider the credibility of it not to be blatantly contradicted by the record or it's got to be so powerful that it's contrary to the laws of nature that's our law on this issue yes and i would say i would s this picture and the testimony of mr chapman are neither contrary to the laws of nature or or impossible but i make one thing clear just just might help cannot make an argument that there are ones that are not in these pictures mr chapman below as i'm sure everyone is aware testified that his ankle was bitten by a police dog there are no pictures of his took these pictures at the hospital deputy wenger the appellant these pictures at the hospital so we can fairly accept on this record that what we have in the nature of injuries is what we see in the pictures as opposed to something else that wasn't photographed on the ankle i'm not sure that i understand we can't you're not arguing that there were more powerful injuries that were evident from the ankle even though it wasn't like that that's correct i'm not arguing that but i think that the important issue to consider here is that while mr chapman testified as he testified about the length of the attack that's not what's necessary in the eleventh circuit to prevail or reach a jury on a claim of excessive force we don't need five minutes we don't need ten minutes  that the priester case discusses two minutes as reasonable at the time and there is further evidence in the record here that supports the two minute determination that supports a determination that the dog attack lasted for two minutes because we have a hold the air call that occurred at twelve thirty one and thirty five seconds to school dear me all the air is what debbie wenger testified that he does he  calls into his communication device and says hold the air when he's about to encounter a suspect so that there are not any what i mean it means that no one should talk on their walkie talkies so we have a whole the air call at twelve thirty one and thirty five seconds we have a a call that mr chapman is in custody at twelve thirty four and forty five seconds so that's three minutes and ten seconds we ha testifying in his deposition in his own words not relying on anything else but that he gave two warnings to mr chapman he had to hold their call twelve thirty one he gave two warnings after the first warning he waited thirty seconds after the second warning he waited thirty seconds and then released and so on to mr chapman we then have at twelve thirty four and thirty and forty five seconds the apprehension placing mr chapman into custody and calling out over the radio that he's in custody so even under the set of facts that deputy wenger has asserted in his own sworn testimony we have an unexplained two minutes and ten seconds here and i think that's an important important thing for the court to consider but i would also like to address something beyond the the length of the attack  we have testimony on two separate occasions in mr chapman's deposition and in his sworn statement to the state attorney that he surrendered he cried out help me help me please get the dog off me i'm sorry i surrender i won't run to which deputy wenger responded i bet you won't run next time i bet you won't run next time and that is not the proper role of a law enforcement officer deputy wenger is empowered to control the situation and secure the suspect he is not empowered to punish that is the role for the courts and mr chapman is serving his his punishment for the events in question that night as we speak even if he had said that and the injuries would de minimus he would lose wouldn't you that if he was where the demand would is and sadistic but you didn't sustain any real injuries you would lose well i think that i have that wrong the issue of whether if if it was de minimus then you are correct we would lose but i don't even if he were sadistic and he made that comment if the dog in the hole held for a very very short period of time and whatever injuries he sustained were modest scratch marks you could not sustain qualified immunity i her hocking the horn by her account drags are out of the car cops are and then smashes her head against the the the trunk of the car on multiple occasions a little bit different than what you have here i think the important part of that decision is the following at the court in that case decided the fact that lee didn't suffer greater injury doesn't alone render the force used to minimize the court went on to no objective lee on reasonable force does not become right judge marcus but that's not what we have here but i'm asking you a simple question if the guy surrendered and the dog bit does not come down to what the injuries does not soley come down to what the end what is the minimum is injury mean  de minimus injury would be something that they did not rise to the level of constituting excessive force it's not something that is based on what somebody looks soley based on what somebody looks like after but i think that the nature of the injury then is not relevant to the inquiry i think that it is relevant i think that it's not dispositive i think that the issue that the court resolved in levy ferraro which involves someone being slammed up against a car having their heads and neither is this one and i do think that anyone who is claiming that an attack by a police dog is the minimus when we have the pictures that we have in this case is not someone who's ever been attacked by a the the issues in this case are clear this is the type of case where we have disputed issues of eyewitness testimony among witnesses and we would submit that this court should affirm the district court and allow this case to go to a jury thank you thank you thank you in counselors calm and counsel wants us to look at this is conflicting eyewitness testimony and ignore the actual testimony itself counselor stated that you cannot d amount of time from the pictures but then wants to ignore what the pictures show and specifically in the last conversation regarding the minimus injuries than wants to ignore the met objective medical records which show that there were no injuries have dog like this might hold the plane of for an extended period of time more than ten seconds without chewing at the leg is not possible that defines the laws of nature for a fifty for a german shepherd to be right because that you are not shepherd and he may have been wrong maybe it was five minutes not fifteen if you're being bit by a german shepherd you can easily misapprehen the time but i'm asking a more general question could this dog have bit and held the thought i for an extended period by which i mean something more than ten seconds two minutes four minutes five minutes without causing more injury than would be evident from the picture is that the on the law of nature it is possible that eight dog any dog just bite and hold as opposed to bite and shoo it may be possible in a general with a general question however in this case mr chapman specifically testified that he tried to pull the canine office leg which caused the canine to release and grab a second location it's in his sworn statement testimony so we have a situation and there are other cases in our circuit that say that injuries are actually are worsened when a when  a suspect tries to push a dog off and they release and grab again so if you're seeing multiple puncture wounds you actually are likely seeing where the dog grab unhealed dog was pushed off and grab and held again that's where you see the possibly the four or five puncture wounds because it's two separate holds and that is the testimony so you actually have that in addition to plaintiff's testimony as to the length of time this is not just a simply simple grab faced with the testimony of fifteen minutes to fifty five minutes if you were faced with the testimony of two minutes which would have been something that you may have heard in crunch our priest or in other cases that may not have been so unreasonable and so against the laws of nature or so incredible but because the testimony is fifteen minutes to fifty five minutes that's what you're faced with so even though the comments regarding the cad the communication  are twelve eighty three eleven circa two thousand and nine case which even says that a officer does not need to rely on the announcement of surrender there is no testimony that mr chapman put his hands up or mr chapman actually did anything that showed that he was surrender so even if you take his words as as as true that he did say that he was wishing to surrender he was still hiding in a bush and made no obvious indication that he that he wanted to surrender and in crenshaw the court said even assuming as we must the current the crenshaw was legitimately attempting to surrender it was object objectively reasonable for lister to quint question the sincerity of crenshaw's attempt to do so and use the canine to apprehend him in this case felon who had committed a battery leo who had not been never been searched we don't know if there's any weapons on and searching been ongoing officers other officers have been in the area no attempt to surrender prior to the canine actually going in and apprehending the and as judge marcus questioned common sense does need to be taken into account so it's not only whether or not you believe that the fifteen minutes to fifty five is against the laws of nature but it is incredible it is against the weight of any other canine case that we have seen that even makes the allegation and you can say and you must say that as a reasonable jury would would not believe fifteen to fifty five minutes a reasonable jury would not look at the medical record evidence and a reasonable jury would not look at the pictures and believe that canine diesel was chewing and eating him for fifteen of fifty five minutes and for those reasons we asked that this court reversed the district court find that there was de minimus injuries there was no excessive force and that deputy wanger was entitle to qualified immunity thank you very much and you go to the third and last