a you have to have an injury you have to have that injury was caused by the use of force that was excessive and that the use of force was objective leave reasonable now from defendant to start from plaintiff's standpoint we differ from the opinion of the district court dog and came out an injured therefore plaintiffs have never even put of evidence of injury before this court and i have to disagree with that your honour's this man after he was underneath the house fighting with his dog admittedly fighting with this dog own came out of the house and as a result he was hit scratches lacerations bites his jaw was broken his lower mandible was crushed into his mouth in addition to being court improperly surgically divides two instances in this case they the district court wants to have a under the house incident and then a shooting a struggle with the police officer incident i don't think that there's a surgical break in the chain of causation that would require that type of analysis i think that of we take the position if the court does not believe that mr shumpert was injured by th he's still injured not to lead you to track is it typically can happen these cases will emerge so deeply into the facts that you know sort of some of the predicate thresholds we don't get to difficult then the qualified immunity analysis on the individual officer of the city takes these are the plaintiffs take the position that the city did have on their face proper policies regarding the use of canines and the use of force however these policies are attacked by the plaintiffs in two ways that number one mr cooke the officer did not have the adequate training to even be a canine officer not just that adequate training but training that would have up rise to the level of deliberate indifference on behalf of the city as well as the city totally embraces the actions of officer could that through their ability which is still amazing to me by the policymaker chief or of where it might be pronouncing the wrong guy  anything in this society then they have to be applied to the actual officers and so if you want to take the training and experience part of the city a tuple of policy and apply it to canine officer specifically officer could he had not been a police officer long enough for the city of tupelo and he was while he did have canine training and certification per is years of working with the dog it f he did not have the requisite experience under the city of tupelo policy and he had been chosen admittedly over other more experienced canine officers for that position so what would his in the record that would show that there's any connection between that and what happened you have a man who has room from the police hiding in the  crows certainly no policeman would go in there under those circumstances he's got a dog leash and and as you showed there are two different things one is the dog the other is shooting but left out the middle part we only have one witness because your client is just three and that the witness said that when after shining in the dog that  deceit came out and started beating him and he was about to lose conscious about leading up to the shooting so the action important next time between the two the dog and the under oath taken versus brown which came out of the same northern district of from fifty miles away from michael came up prior to this actual incident it holds for the proposition that we should make a credibility determination at the summary judgment stage and the district court goes on to make credibility determinations in my opinion as to what happened in the lower court totally disregards of several important being the order fought the dog and then you said he then comes out at night on a single police officer as it so that's very different than cooper cooper so even if the intervening cooper decision could be said to have clearly a stab really just simply mirrored clearly established law cooper stands for the very different proposition that when a suspect has been completely subdued the door can't be commanded to keep attacking but here you're kind beats off the dog and emerges at night at which point there are the four shots and it on up take issue with that baxter or number one there's no evidence that he ever beat off the dog you said at the to expect that that a man who is actively being attacked by a police dog has the wherewithal to stop and be able to hold his hands and say i surrender or something like that you know i mean when you're being actively attack dog it's not unreasonable for the individual to respond in self defense and so when you particularly in this case where he's not out the opening is in a crawl space where person hiding into the house refuses to go what's your best case for that we should have ever said adult what's your best case that a police officer can't i thought the circuits were in consensus that if you leave any traffic violation and run into the woods i don't know of a circuit that doesn't say you can't use a canine because otherwise the police going to find the person could get him which you can't this circuit says that hooper yes sir but hooper is the person has already surrendered and he's not as well as the bill vs more can too law enforcement officers have a duty to negotiate in these cases have a question of how much is that time for you know is it a few seconds is thirty seconds to admit it and there's no evidence in this case as he never had a chance i should rant i think that but he never had a chance to give himself up the flow of time was just continues there was no break where he could say i give up because  the point is well taken that in this scenario you don't have a surviving witness to you know rebut the officers testimony that's the nature of fact the question is as you said you know we're dealing with qualified immunity so given the scenario that's existence articulate for me the violation of the clearly established right and you know what the supreme court says about that so that the facts i mean you know i got that but i just want to hear you before you go to say you know this is an area of what is the articulation that the officer was violation of that clearly established they've told us time and again we don't look at our long to tell us time and again we don't look at circuit law cases a balanced every term in which you know one is say the law is not to be established to a generality right i  best answer the best way you can yes or it's it's clearly established that as a police officer you can't right raise the level of use of force when you have a stagnant situation i have to keep going back to that is clearly established that once you have officers in the perimeter as you're trained to have are your policy if your policy is going to be worth anything you have officers in the immediate area that were there within seconds and you have a suspect identified you don't go in and buy you don't go in and escalate you see his hands you have no reasonably their violent you have no reason play their danger to anybody else and you stop and so that's that's the fair warning that officers such as mr cooke should have had whether they've been educated by their department on recent mississippi case president or federal case president not you know you're supposed to stop you have fair warning that you're supposed to but instead and we can't people certainly agree with that we believe under the circumstances there's nothing to base that claim oh no but begun there the facts and well established that officer koch was a well trying officer there rule of law is as to releasing a dog with a command to bite is it is it your view that the law allows a police officer any time there's a traffic violation so here there was no turn signal and then the driver of the passenger runs is it too close policy that it's in the discretion of the officer whether to release a dog with a command to bite just from that no so what is what is either the policy or the law and when a dog can be sent in to bite because i thought the grand factor stressed the severity of the crime that the person is said to have committed a question about that but in that incident is really no different than using a second weapon for an officer just as if he had been a regular patrol officer his second weapon would have been a taser so had a patrol officer been at that ed with and what officer cook was confronted with here is that an individual fled from a routine traffic stop that doesn't happen unless there is an underlying reason for think you have to assume that he probably is on because this officer was all that narcotics surveillance thing and so the question has to of why did he want he didn't want because he didn't turn signal he wanted because at least there's a legitimate subjective conclusion he wants because he has something to hide he had done something he has in the process or has committed a felony and so the reasonable belief that he could be or that it's not a clock on a saturday night that there could be resident in that house and likely or people in that  is trapped and you have other officers all around you better practices to wait to the situation secure there's no real direction in that regard there's no specific direction in the  what i would say to that con it is sure there were all the officers in the area and officers arrived within a couple of minutes after the shots were fired but those officers also said they didn't know  street it's pitched or he's in the crawl space well again you don't know what is on he's told to come out in so all of the things that the plaintiffs say well he should have done this he should have done that well yes he is a fluid situation and he had to make split second decisions and he made those but that decision based on the information available to him there's nothing to and so you know we can all sit here and say well of the cook might have done something different to mine but but what he did was reasonable under the circumstances again in the sole survivor cases it you would agree that it would it that that the sole survivors testimony in this case officer cooks has to be completely consistent at least with self in order for us to assess the grand factors being attacked then beaten and shot in self defense yes or the going to the fact that seemed to be possibly in dispute as to whether that narrative is true is what i was working at officer cook statements at one point he said the dog bit and didn't release until i pulled the dog that's then then the story changes completely to the dog bit but then mr shipper fought him off and the dog only had a shirt at which point shrimper charges me if there is testimony in the record from officer cook that in fact somewhere between the moment in the house and the shooting off officer cook had the time to take the dog's mouth off super that would be completely consistent with his story of a steady attack and shooting itself the fence you agree with if that said to exist ok so if the fact exists there officer cook did say in the various statements that there is a moment where the dog had to be pulled off by him that wouldn't be there's no way we could harmonize that with his story of being beaten to the ground and shooting think that that statement i am familiar with with his deposition he was asked questions man no injuries on if it's accepted by the government there were no injuries how was he pulling the dog off the me and give me there i would have to have had an injury inflicted if it mci enough to be pulled off the  scrupulous that at least the government's theory of serious risk of harm has no internal consistency but now i think i understand you agree that officer cook did it some point say he pulled the dog off and i thought that would have been impossible with a similar story being the dog had been beaten off and then the me and charged him but it was this was a second reengagement and he pulls him off afterwards all the more after he has fired his shots the medical testimony did indicate that the fourth shot to the thigh d was not close range was distance and so posing counsel said consistent with an off chance of shooting rather than on the ground being beaten shot cha cha cha i thought there was one shot where the government's autopsy confirmed that it was a distant shot it did do you remember that testimony i mean they're not i do not your honor  we would continue there's certainly admissibility issues with the medical expert report but aside from that even taking that it can be the officer happened there is no that states that it is objective laon reasonable for an officer to fire to go and simply because he happens to be on top of the suspect in this particular instance confrontation with the suspect has been hidden here any is at or near point of own consciousness and in that case the suspect me fifteen feet away literally moving away from him that those shots use of deadly force was determined not to be objectively and reasonable following up on i'm glad my recollection is that the testimonies said all fo shots came in quick succession there was no time gap apart from physical location between the third and fourth shot is that correct that is correct  distant and again i'm not we're just you know as opposed to powder burns on the body with the first three if it's if the gun is a foot away it may not leave theory that the fact that there are four rapid succession shots and one for is classified as remote  that doesn't mean it's not consistent that is correct obviously it's a physical confrontation there's going on also cook is attempting to defend himself during this as well as to try and fight back he he is mean of course beat in face and head as he nears a point of unconsciousness he begins to fi d shots the testimony of the of all witnesses including mr foster one of the plaintiffs was that the shots were in succession bam bam bam bam the officer cook as this court is called remote shot came it could have been the first or second or third or fourth that is correct out of there were there was no there was none but and and and i would say that in addition to that  football player he tackled him to the ground he attempted to try and physically defend himself and it was only when he was unable to do so that he ultimately determine the decided to use and we know what's in the briefing mean but is there a scenario i mean there are plenty of them with the different fleeing etc etc it's fair this got to where you got factual disputes but where it is what is where does this you make two facts that are consistent with a government that therefore so you say almost i thought the testimony was even after he was shot four times he resisted having hankers put on so he's been shot four times i thought the testimony still resisting broken i know but didn't wasn't the undisputed testimony that even then he would not allow them to handcuff he resisted back up so when you say almost handcuffed hence equivalent to cooper subdued that's not correct with the facts here to ok and then the second thing you did just agree with him that the dog reengage that would make sense because in your grief you never did perceive the inconsistency that i thought might exist but so you agree with them  a supplemental brief from the state you know just pushing back on it so why are you at the podium to ask about it but we've got the full briefing i mean it's obviously a very complex series case well a lot of briefing in a lot of depositions and we've already looked at a lot of and we'll get some more of it poured through it but your answers to our questions are helpful for us to get a grass own you know what the issues or so in due course the case is submitted and we'll give it our best shot to to get decided thank you thank you counsel on both sides for your full brief in an argument all right we call the next case