eighteen twelve seventy eight alonzo bowman the city of detroit michigan at all arguments that exceed fifteen minutes per side let's say mistaken for matthew brady and nico heard in the morning runner may please the court my name is linda three reasons and just highlight them first of all the courtier and finding that there wasn't a reasonable suspicion for stop of the vehicle and there probable cause existed to search the car secondly opposition is reversible error exists because there was no clearly established right that a police officer in the wonder drug raid a face with two pit bull dogs biting and barking he had noticed that that  they that they are shooting on this dog amounted to a seizure in violation of the fourth a minute for the to be both and thirdly opposition is again those closely related is that there it at the time of this  a property interests that warrant protection under the fourth amendment addressing the first issue because that the district court here in this case determining that reasonable suspicion did not exist in this particular case a judge the district court judge has ruled that there was only a hunch of a fear of ambush this was doing this stuff occurred when the drug raid there when the drug raid they had they were bringing out evidence twenty six marijuana plants they had a search warrant when they had me term and that the confidential informant had determined that he observed that a transaction he tried to do a transaction he saw a transaction he saw marijuana in bags the officers also had already survey this is our two transactions so looking at the context of this you see boardman driving around this house four times four times talking on a create reasonable suspicion the cases we've cited just like slowing down and driving less then the particular speed limit is stopping everyone could be a reasonable inference that in a particular area where there's drugs or worse some drug activity is going on i generally use cancer that's just the first half of the test right are campbell case from two thousand and eight teaches that there has to be a particular loss an objective basis for the stop yes but then the question becomes whether the detention which was part of the stop was recent really related in scope to the circumstances of the scope of the st approach the vehicle they smelled of marijuana are they we don't know if they smelled marijuana mr boone and that there was any marijuana and they didn't and marijuana so it is quite possible that the officers did not in fact spell marijuana but that was merely something in order to justify their car where you're in this case just because they didn't find it isn't said he smelled the fresh burnt far we know that he could have finished the mayor one i doubt we're not the district court did not articulate this why but ap think the fundamental problem in this case is several on record that will disputes that preclude bad things qualified immunity at this point in time on at least a couple of the issues and this is the first and it man that creates a fact dispute about whether they did smell marijuana or whether that was merely a convenient thing to say to justify their acts and even though it was particular case and then in the that if he was in it he had a mistake in judgment we believe that he has still been tired to qualified immunity under this particular case there's no reason these are this was a narcotics officer who knows the smell of marijuana and he said it was there were marijuana plants supposedly outside in front of the home correct because that's what they brought out every bringing out yes it's true and so but they're saying i smell marijuana near your car and there are marijuana plants in the front yard of the house and in the records so that speculative if it is in the record that they were taking  was they brought the marijuana plant out of the house and that they were in front of the home when the man drove by so we know that there was marijuana out in front of the house isn't that correct and officers that he smelled it coming from the car your honor i would like to go to the second issue please the second issue is here is that the trial court here that the parties are entirely and should be ver law that told officer brady their owners of unlicensed pit bull or had a constitutionally cars on a boat property interests in their dollar why first of all your honor they ply wood fourteen four feet the officers were there to secure the hope printers they don't know where the evidence is being destroyed they don't know if anybody else is there they have a right to secure and take control over the premises here that included a right heat that no i did not see and there's never been the officers position that you can just shoot a dog well license isn't there here's another contestant that the dogs conduct prior to the time they were shot if the dogs were there tastefully as there is testimony in the record then the officer would have been justified in just  looking from the qualified immunity from the eyes of a reasonably so officer first of all these were pit bull or are they were also for these purposes taking everything in that the facts  taking that even taking them to the facts may remove your honor first of all pit bulls are split in these houses where drugs are is guard dogs they are chosen for their particular person was because of their viciousness and while we did not stuff these days in the pit bull rehabilitation they want to tell us that's what they are i mean there's a lot of propaganda like that out there just like there's stuff out there about the viciousness  probably see your concession because they're pit bulls the officer can kill you know that your honor we're i'm just part of this is part of the facts so what kind of dog it was our position is not that you can just randomly shoot any dog  or i know there are a number of pet lovers of dogs and we're not trying this story here what we're talking about is whether a reasonable officer in this particular case faced in a drug raid and opposition is this is that there was no clearly established law that the owners of a license had a constitutional property right let me let me ask you about yes michigan law ok section two eighty seven to sixty two of the michigan dog  w it says that the state may kill an unlicensed dog but not unless they have issued a summons to the dog owner to show cause why the dog should not be killed upon a sworn complaint that the dog committed certain acts how can it be that the michigan law says we may kill an unlicensed dogs after you have been noticed and after you have appeared before the court doesn't that entails the obviousness of a property interest in that dog but is it a process under which that the over could be depravity of his property your honor what else could that law main but you have a property interest and here's how we're going to take it away from you and that's michigan  indicates that you can't kill an unlicensed dog with the out due process that indicates that there is an ownership and a property interest in dogs in light of michigan law you can't kill an unlicensed dog because there is a property interest in that dog with that we recognize that you can't kill that animal without recognizing that property enters that michigan law so how could that shoot the dog on the basis that i can kill any unlicensed dog because there's no property interest in it your honor that's our position here and we take the vigorously sent and the key to smith of the judge here the still wasn't clear in michigan but i don't think we have to address that issue the issue here is whether or not there was qualified immunity that in this particular case whether the police recently believed here that they were an im of being bit in danger and opposition is the police officer testified that the dogs were barking they were jumping they kept trying to jump over he could not clear the rooms to go to check and secure the premises here and i think on totality of the circumstances looking from a reason please officer and i think people in the recent police officer would disagree they're entitled to qualified immunity here because even even brown establishes that if they believe there's a and the one of the dogs never barked since i've had them now the court could have got hung up on that but they realize that that was a now a really material issue a fact that that was a factual thing he's trying to say his dogs didn't do well what the police officer said that they did in that particular case but the court looked at the situation from the police officers position in this particular drug case of their they didn't it didn't get lost on this point just because of one percent no my or three questions and i'd like to hear because i'm trying to figure out what we have to decide if we agree with you that the that the officers get qualified immunity based on the threat of the dogs then we don't have to get into the whole business of a property interest right all right let's assume that we disagree with you just so i can talk about the other issue all right assume that we disagree with you that that there's an issue of fact as to how much of a danger these dogs posed to the officers ok then we get into the question of what you can do with an unlicense dog regardless of whether they're trying to attack you and i write so for their opposition i'm asking you whether i'm right so far ok them then we go to this other issue and the other issue according according to this smith case i recognize that's an unpublished opinion says that there's this they say they say even if you reject their argument about the ability to  shoot a dog that's not threatening you but who is unlicensed right that you can the result would be the same they say because under supreme court precedent the smith panel found that a warrantless each or seizure of contraband may still be unreasonable if it was not immediately apparent to an officer that the item was contraband  agree with that that you got you can't rely on this contraband basis for saying you can seize the dog if the person who's acting isn't what is it yes no answer before you go to the it's your honor it is correct that if you accept the key dismissed argument in that case  that you need to know that it is contraband in this wicked case but as judge that's what the court said all that's week or say but the strongest signal is that they didn't have anything so they didn't have collar so they could reasonably assume that they didn't have lice and next question but i want to get to that question ok but i can't get to it now as he go along the steps with me right right you're saying it is true that it has to be immediately apparent there is countrymen but it's contraband all right so if it's not immediately apparent that it's contraband then you would agree that that's not an alternative basis for qualified immunity if you lose on the first issue which is what we're assuming for the moment all right that's true right and i don't and let me say why so now i'm belief is and i know people don't like the argument about calling it contraband nevertheless you know you have to get to the issue because  came out is the weather we have to get to that issue and you just want to go to the issue but i'm a judge up here i get to see whether i have to go to that issue or not right if they if you require two things are required in order to shoot him one he's unlicensed and two you had a reasonable basis for knowing that he was unlicensed if one of them doesn't exist i have to go and ask the other question that's just legal analysis right i'm that doesn't have anything do with the substance of it i'm just saying we don't need to reach that issue if the other issue there's nothing in the record that supports that he knew and he has to know i thought you were saying yeah he does have to know we're actually the standard i would agree it is nothing in the record to say as he did know where he did not your honor i have to admit and that that me if that's true then why shouldn't we just say we don't need to get into all this business about whether he whether you have a license or not is clearly established a basis for seizing the dog when legally they can't exercise that that authority if it's not immediately apparent and as you say there's nothing in the record which indicates that it's immediately apparent that he was not nice to most people presumably about comply with the law and if they have a dog in their house it's license unless you have some basis for knowing that it's unlicensed it just seems to me that's an easy way it's doesn't result in succeeding  your case but you all you always have this other issue about whether there was truly a danger and how thick the plywood is and so forth but assuming you get past that i don't see how you can argue that there's a right to shoot a dog because it's later determined that he was unlicensed you're not arguing that are you is that there was no clearly established right now there was no president here first of all going to about the specific question of whether your argument that being on license means you can shoot him regardless of whether he's a threat isn't qualified by the requirement that you have some knowledge that  position is you just can't you just today that's my position or not it's not my position before you go on where we are badly over your time and you need to help us out here by listening very specifically to what drives this and answering only that question and then he can move on to his next question and maybe we will get to the other lawyers who may have planes t knew that it was contraband why doesn't does that mean that there's that you can't use that as a basis for saying that you can seize the contr didn't know that it was contraband it doesn't make sense and that's certainly what the majority in smith said i think is that you've got to have a it's got to be immediately apparent to you immediately apparent not later apparent  case it's myth is clearly established law of the circuit in one opposing counsel references that there was no crew established law for the officers to follow in this case i'd like to draw the court's attention to the fact that the shooting in smith happened nearly two weeks before the shooting in this case in jury twenty sixth you know why didn't we look at the time of the decision of the court saying that because that's what gives notice insisted smith also said in that particular case that it was clearly established so smith holds to the proposition that in january twenty sixth seen specifically january fourteenth i was i interrupted you pretty early when you were you were smith is holding and i want to make this clear title smith this is a case from october twenty ninth that's absolutely true but smith says that it was clearly established as of january fourteen going ok so in that regard that counters with opposing counsel said it was clearly established are jerry twenty seventh two thousand and sixteen which is the date of the shooting and the killing of the dogs in this case that police and the michigan dog worked of one nine hundred nineteen he looked at the definition of ownership it says the person has a right i'm quoting a right of property in the dog it's right there in both statutes the detroit city code essentially incorporates the same definition oh is it necessary for us to use the phrase a licensed dog and right in this opinion i would say that what i would suggest the panel do my humble opinion is address the issue hold exactly like smith and then dismiss the rest the case like jurisdiction every other issue in this case we did this in our letter brief every other issue in this case whether it's the reasonable detention the transport or whether it's judge is a part to say that we as except the position of the district court as to whether there's a genuine issue which i didn't do i don't know because the city of detroit cannot or the transcript of the hearing that happened so i don't know we can't necessarily go by jury that the officers were being untruthful and there's a line a person from this court but the idea that we lack jurisdiction is based on the idea that we can figure out what the district court how the district court must reason i think i think it is clear from the district it's got to be immediately apparent that's right yes so if we agree with you with we don't we don't need to get in all this business about whether it's it's the what the michigan statute intended i that we don't need to get into if you're right on that is that correct or not i would describe i think appropriate announces here would be dumb sorry i'm saying do we have to i think you did why i don't understand because they if they did if it wasn't immediately apparent you can't rely on the reach the first argument but you're saying we do i don't understand you you could you could adopt the position that assuming we don't have to reach this issue but the bottom kind of stuff all the time but then usually it makes a usually it's understand that but you know our imperative is is not to go around making a law but at the side cases that's true you can decide a case on an open and shut issue from our perspective i don't know that we need to get into something that's that's more controversial harder to decide and probably ought to be decided in a case where it has to be decided the probably not be very many because you would think if they if these police people don't even know that it's unlicensed they're going to be if you go with the contraband argument the court has the discretion to follow any any any any path that it chooses but i think if you have to basis for doing something to use the less controversial one not to say all we need to provide law so we're going to resolve the more controversial ones so people know i will be there to the courts discretion let me go back when i get back with whether we use the  the founding goes in favor of the plaintiffs i mean i think this is helpful to you if it's sanding he is might be could be is a factual matter that there was no basis for shooting the do doesn't i mean i guess the unlicensed nature of the dogs becomes an argument for the officer to say you know i can choose to die even if there's no justification for doing so and i'm not sure that's exactly the city's argument that does run around shooting unlicensed dogs that are posing no arm to me if that's not the city's argument there was a basis to hew to die based on the dogs i hear then why would we analyze as the argument that the city unless it is an extreme argument which i don't really understand it although maybe is that we can go around shooting down that around license even if the exactly our position is that this entire case revolves around genuine issues of material fact the only legal question in this case is really two questions one is the legitimate property interest in the one on licensed dog and then judge rogers old alternative position or however you know prime or second to everyone phrase it whether it was immediately apparent that the dog was contraband that's the only legal question in this appeal and actually there's not really a legal question here either because there's absolutely no evidence that act that the officer knew dogs on license so that is and i mean that's to the discretion of the i have a question i have understood from the record this officer testified that he can kill any dog he wants to that is absolute correct at the end of his deposition that is pretty much exactly said both officers officer bray and officer heard he was asked a question worded what if the dog was just standing in the middle of the kitchen doing nothing and by the way this was on a question posed by detroit corp council at the deposition and he said is based at my discretion so his position his position is as a matter of law i have a right to kill that animal period you're right apparently so and apparently some of his partners believe the same way acted if he didn't even have that basis doesn't mean it doesn't have the qualified immunity that's i think it did i think it does come into play to drug use and i'll tell you why because then it speaks to his ability to ascertain whether there's an imminent threat in the context i know the standard is a reasonable officer but when you have accounts to burgeon years to what the dogs were actually doing coupled with the fact that you have an officer who believes that he may just series you don't have what you just said makes sense but you brief but this is page eighty twenty in the simi c f page regardless of whether the two big bills in the kitchen were attempting to breach the plywood barrier or were merely standing in the kitchen given the circumstances that presented itself both dogs had to be put down for the safety defense that sounds like the position is this that is found a page twenty the seamy c f page twenty of the city of detroit brief that's all there is i would say that doesn't reflect what you describe as their position because it says you look at the circumstances and the argument they make in the bout the circumstances that the dogs could jump over the order of just standing there or were merely standing in the kitchen they can shoot the dogs that's their position in the area of their position anyway but i see what you're saying it's they they are making their position just quickly with respect to the the because my time is running out with respect to the i frankly don't understand where the reasonable suspicion was for the stop the city of detroit state's cases involving stops occurring at three o'clock in the morning four o'clock in the morning where there was some form of violent criminal activity that was ongoing in the area that's not what we have here and with respect to the probable cause determination i would reference the court to take a look again at the bolt versus resumes key miller v santa lack and throckmorton where in those cases although they were doing the officers were doing with the wise the courts in every single one of those panel said that although we look at the facts from the viewpoint of the officer at the time for purposes of summary judgment after court evidence does come into play in all of those cases there was no evidence that the drivers were under the influence and the panel's in those cases both said that that evidence can be considered by the district court and  clear we have an absolute right to shoot unlicensed animals period i don't think that is so you know i think well that's an ad then we just have a disagreement about what the words of that officer w in his deposition because i think it's very clear romney to our unlicensed dogs could be there content without saying they can just shoot put the facts be guardians of how dangerous they are right they've got it as i understand it they've got your your contention is a you can shoot them if they're threatening you whether they're licensed or not yes and b if they're not this is what i went through at the beginning when i asked you what the issues are right if they're not threatening you but they're on license then you can also shoot them i mean that's got to be your point otherwise it doesn't make any sense for you to be arguing about whether they're licensed or not you are the reason why an idea is that they is that they don't have an interest that the fourth which we term because the michigan law act does say that having a license dog is a misdemeanor so therefore we believe that it is contraband because as unlawful to hit for them to be that