reasonably in shooting the dog and there's a number of inconsistency in the argument from the apple eason and taking the light most favorable to the plaintiff we believe that a reasonable could determine that the that the officer acted under reasonably there are a number of inconsistency and with officer business so he's not really paying attention he pulls up he sees the dogs on the porch he testifies there on the porch so they're not running at large like in the opening case where each running at large these dogs are on the porch under the control plaintiff and molly his girlfriend are on the porch the dogs are they are they pull up he says oh that's father too and it says this must be five hundred he sees him on the porch and officer chief marshal or captain marshall ask him in the video he says you know where you he says where they run loose with a running loose nooses no they won't force their paws were down there sitting downstairs in the yard on the porch under the control so in the force of memory of course says people were right and to secure of our effects against unreasonable seizures shall not be violated altman expounded that law tremendously and you know there were people they get off for ok well he pulls up an officer lying gets out and it's like twenty seconds or something nothing have the dogs barking next door so the very well when they pulled up as dogs are likely do they will run towards vehicles or people coming in they were being friendly approaching the car they're approaching the car mouthing each others one of the one of our witnesses is there mouthing and playing and approaching a car that we come to think that you know summer comes up in the yard a dog will approach as they do their family pets with a long history porch and then when he comes out there's boom boom boom in the dog is shot then running around the yard and lee comes out so what i'm saying is that an objective reasonable officer is more like officer lyons who has many years experience  exactly correct that's exactly judgments and i'm but i'm just saying even if this is normal situ a would you be texting and talking about your because maybe you would maybe that's reasonable i think what i'm trying to say is that on the facts in this case your honour's is at some point prisms no it's not unreasonable for someone to be frightened or scared i'm scared right now so i mean not for my safety but i think you get that you are sure so but i you know facts that as laid out in my brief i mean there's just i mean come on i mean there's the sky pulls up the dogs are on the porch they run towards the car and first thing he does is well i'm away i mean can't he the door so i can get back in the car while when he pulls up he can say y that reasonable for an officer to come out there's dogs everywhere they get no training so to subdue the officer has to carry a gun he he just to carry a gun so he can use it in just at will as i'm frightened so i could use my gun on this family pet not running  large not under control the owner was there wanting to take control those are distinguishing in the brown case that you cite in the open case i mean there's just there's a lot of i think it's a jury question whether the reasonableness if it's reasonable and also credibility of the there under which they have to be quick they have to make a split second decisions happening quick you know we're not asking you to jump in his shoes and decide you know make that determination i know they'll determine differently that in the case i mean i think that in this situation without these other factors it's not a search warrant it's not exigent circumstances there's nothing as friendly dogs as i mean at what point is it too much to have a labrador can they pull up and matlab runs up and they just startled and shoots him i mean you know the dogs in the your they're under the control of the owners they pull up there in the grass because you know they're on the shows or on the road well they're sitting on the porch with downers and an officer good live says that they're the poles are down and they're on the porch and so to me that's under their control and when they run up to the car just sitting there i don't control i think it's a jury question i think they're on their property and the owners want to take control of  not jump on people that i think she basically i don't have she told the police that they run up and jump on people it's a degree people yeah i think i think that's what she said oh you owners you know the record yes but then the record business which he said i think was right there with the dogs i wasn't there i don't the video doesn't show that you know you weren't there but you keep referring to it's a fact you don't want to tell us about you're not here but what does the video help the video shows that it's pointing forward it's not i don't want to tell you i'm happy to show that he almost missed her because she's right there with the dog i mean she's probably not as quick as the ball you know running right i mean i'm just saying your honors i mean i chris says the dogs never left their yard they're saying left their yard and there's a lot of inconsistency in credibility is not for this court to determine at all i mean i respectfully would say that i would like a jury to hear the east and hear the march the videos jury twelve maybe we'll come back after that but i'm just saying let a jury of twelve look at this evidence and the one thing about officer claque when he says in his deposition he says on the video thirty nine at one the district court properly analyzed the issue and in fact the report recommendation goes to the evidence in great detail as to the evidence in the light most favorable to the plaintiff what is significant about this case this is the classic case of  where the supreme court's decision and scottie harris comes into play where you have tape evidence and the videotape evidence obviously doesn't lie doesn't forget it clearly shows exactly what happened on that particular day and you have three different dash cam it is that together when you look at those spell out exactly what happened there the only absences you obviously do not see the shooting itself of the dogs and the dogs running from the home but there is absolutely no dispute by the parties that the following events essentially happened and this is based upon what the plaintiff knows and of course you kind of recall that the plaintiff is the one person who actually summoned the police to his home some of the police to his home he certainly should have been aware that they were arriving this is not a situation where their arrival was unexpected or they were serving a warrant or anything along those lines that going to put the dogs away  and obviously the dogs were on the front porch as the officers drove by and then immediately chased after the vehicle and there's no dispute about that at that point however mr levy had gone in the house to get his paper work to be able to talk to the police about so he didn't observe any of this occurring he came back outside after the shooting had already occurred now the video from officer lines vehicle matched the vehicle that officer ganglia was was traveling and as a passenger shows a number of things number one it shows that the vehicle did pass the plaintiff's yard and parked probably about seventy five to one hundred feet beyond us driveway in front of the neighbor's yard that's where the car stopped  officers had had problems actually in that but your particular period of time which was about six months earlier when they arrested the plaintiff they had problems securing his residence and getting the dogs into the resins so that's absolutely a key point  traction but another point and another point that actually judge tracks were made earlier and his comments i think is exactly right because you can hear on the lines video what happens after the officer stops and you can distinctly hear and you got remember the microphone is being worn by officer lines and you can distinctly hear car door open car door close it's definitely a more distinctive louder car door close and then a short period of time passes  before you hear any type of shots fired you hear a nother car door close and that's obviously the passenger or that officer giggly oh god outta i believe absolutely if you listen to audio carefully you hear that then you hear another a few moments pass and then you hear dogs barking and then you hear the three shots in succession and then you actually do see officer guo come into the video as he's moving back around the back of the vehicle and it's all consistent with the testimony from both officers and indicated that the dogs were running at officer he didn't he in fact describes the incident later on the exact same video when he says particularly talking to the point of girlfriend that he felt trapped that he was the dogs were coming out and he was trapped you know there's a there's an issue that the playing of claims is an issue of fact in this viewed as to distance the dogs were from the time he he fired and from quite frankly it's very consistent officer gave said about fifteen to twenty feet x the witness that the plaintiff wants to rely on which is christopher potts that handwritten affidavit so even questionable to me whether that is qualifies as an affidavit but he said twenty feet and mr potts was actually in the work van that was driving down the road towards this home and he doesn't say that in his affidavit you actually have to have to piece that together from the point that mr lee made even though mr lee didn't actually see that  by my estimation at least a good two houses away you know so how good was his ability to see where the property line is where the dogs were exactly but again the main point he makes is that it was about mean these are not while was there's a beezer big dogs moving quickly it's been conceded by the plaintiff that they are friendly dogs they will run apt visitors i think what is also significant of them a lot of the comments by his girlfriend on the video tape when that you can hear afterwards number one she describes this happens all the time that the dogs do chase after people she also indicated the mailman is scared of and these are big dogs you actually if you look at officer marshall a captain marshall actually arrived on scene afterwards and he parked a little farther down the street and if you look at his video you can actually see both of the dogs they both are in the street and including the dog that was shots you can see the size of the dogs we also put into the record that records that shows the dog in question that was shot is described in the that mary records as a as a boxer pit bull mix so i mean these are what the law generally recognizes the all case generally recognizes and albums not alone in fact the magistrate judge went through a number of cases from all over the country identifying that pit bulls are the type of animals that are  inherently dangerous or can be viewed as dangers so you've got an officer who has a split second to react it's a classic case of lying the rules from graham versus conner i mean that you can apply hindsight and find the actions were unreasonable  officer had to respond immediately quickly to a situation where he not necessary thought his life was in danger but he was in danger of serious bodily injury these were big dogs that could inflict harm and he fired a shot missed one of the dogs stopped the other dog kept charging and so he fired in succession and unfortunately hit one of the dogs but that was what he had to do to protect himself i believe the balancing test again as the district court clearly goes through show does that in this particular case officer safety clearly outweigh the rights of the property owner to the to the livelihood of the dog it's an unfortunate situation obviously but it's unfortunately a situation that that does occur so in our estimation the and we would submit to this court that the analysis is absolutely correct by the district court the district court took the facts unlike most variable  plaintiff that it's clear because the facts can be largely gathered from the videotapes themselves as far as the and let me touch on one other question before i move to the other other issue this whole idea that the dogs were under control is absolutely not correct they were not least there was not a fence as i indicated the plaintiff knew that the officers were coming and took no means to actually secure them he actually it was his he you know testifies that he had great control of the dogs he's the one who went on inside so at the time these events occurred he was inside getting its paperwork he left his girlfriend and his girlfriend indicated that she could not control the dogs and there's no indication the answer judge motss question from earlier no indication that the girlfriend actually chased after the dogs or took any action to try to stop them there's no indication on the video or in any of the testimony is applied many many times that the actions of officer eagle you know where you are absolutely reason on that there was no fourth minute seizure as far as the second issue dealing with the arrest itself the key facts of that arrest are all contained on video first of all within about five minutes after the end and occurring you see on at that point in time two other officers hold up everyone was running their dash cam so the record contains not just officer lines dash cam but also the captain's video as well as the the other codefendant which is royce clack who also came am up to the scene everybody was running their video as you can piece things together by looking at those and so what the evidence shows is about five minutes after that the events and of course you can you hear during the events you don't see initially you don't see mr lee but you can hear him and he is just cursing absolutely acting hysterical and irrational and of course it is dog had just been shot and still clearly that was his state of mind at that point yeah i mean i think i think  faced fort mill as yonkers are probably aware is a suburb or charlotte this was six thirty on a monday evening middle of rush hour you can tell one from the videos is a good bit of traffic not mess around jackson street but once they get all white street the main roads and so the officers were concerned immediately actually happened anderson makes that decision that we better stop him because he was driving a rakli right in their presence as they were leaving being is obviously again the police officers that they have probable cause to to make the stop certainly i mean even when you look at as i was indicating squealing as tires drive into the neighbor's yard by the time i caught up to him you can actually see on the video doing illegal  turn and now illegal u turn was you know to avoid the police officer police officer lights turned on you turn the blue lights were turned on as he was leaving the residence you can see that on the video he does not turn on the siren until he goes he wanted to stop him from driving what they viewed as as reckless and the evidence certainly i would submit supports that and then ultimately the evidence built and built and built before we stop because as i indicated we got on a white street you could see and it's on the video as well you can see the illegal u turn that was made in heavy traffic and you can see the officer got back behind him he had blue lights on obviously at that point and siren the officer in the plane of was not stopping used this microphone you can hear it on the video to instruct the driver to stop i don't know the distance that they went on but it was clearly quite a few seconds i would say i didn't i didn't actually time and but i would say more certainly more in thirty seconds and certainly was easily looked at  from the video before the plaintiff actually stopped and during that period of time he never went completely right to center but his wheels were definitely going right of center as well as he was driving and you know obviously we know and that's why i go back to that  i'm not saying it was not inappropriate for him to be upset but he was clearly very irrational very upset and not necessarily somebody you want behind the wheel driving i mean that's why we have ian it's i know there's no him as for  animals but of course going back to the judge just judge gregor your analogy is if this was a family member i mean obviously e m s deals with those situations all the time and they can't drive it radically in dangerously so  it was a balancing situation that they had that they had but there was certainly probably cause or reason especially might stop probable cause ultimately make the arrest it was probable cause for reckless driving which ultimately was not charged even though that was the initial reason for the stop and then i would think and then there there was obviously he pled guilty to two offenses for destruction of town property is  cause that supports officer clacks decision making a difference if these were to well it certainly could because a number of the factors that come into play is the size of the dog whether they're dangerous what their action distinguishable from this case as well because there you're dealing with animal control officers you're dealing with you're not dealing with the immediacy that officer gig leo was facing so so you know the part of the part of the analysis it's the size of the threat and whether or not i mean i suppose and an officer could describe the threat of a chihuahua as being significant i think that would be potentially not objective really reasonable given the type of breed and unless there was some distinct action taken by a smaller dog to actually threaten the officer but here you had and again you can see the dogs you can see both of them on the marshal they there's no disputing that they were running at officer gagliano that you know that there's the suggesting that they were mouthing but mouthing of course as the magistrate judge explains in a report recommendation provides definition shows the dogs are opening their mouth i mean obviously could be interpreted as some sort of baring their teeth or threatening even if that was the case and of course that came only from mr potts who was some distance away  with his observations and was still and moving in his vehicle that point but the bottom line is stance your honor's question you know i think the type of breed is a factor and certainly an open and this court indicated that it is a factor and  magistrate judge in this case cited cases from other jurisdictions where they looked at the breed of the dog as i sacked her but here we clearly have a pit bull mix which is recognised as a dangerous breed and certainly you can see the size of the dogs and charging at him again we would submit that his actions were reasonable in providing for officer safety over the over the pet itself i see my time as it's coming to a the cars ten five or ten feet past drivers not one hundred feet as a driveway and then they turn the video on prior problems record thank god the video was on thank god the videos it's case thank god and then so the dogs were not running loose they weren't roaming the streets they want to tackle anyone significant that's significant and we don't apply the hindsight molly says no in video thirty eight thirteen minutes precisely she says no  on the video judge the judge ship captain marshall says it on video gate at nine forty he says he's not going to act like that kind of be rude to the officers as he was and rot in other people's  don't think they act a lot they glod they've misrepresented to the court that misrepresented that they weren't running loose he wasn't in fear for his life he just didn't want to get that they had zero training there weren't roaming the streets they were chasing after constitutional it's not subjective i think that a jury could find that a reasonable juror would find that i think their decision was in current