[00:00:00] Speaker 04:
Good morning.

[00:00:01] Speaker 04:
Good morning, and may it please the court.

[00:00:03] Speaker 04:
My name is Jim Jellison, and I represent Officer Mike Miller, Sergeant Ryan McCarthy, and Officers Cummings, Preston, Torres, and White.

[00:00:13] Speaker 04:
This case arises out of a deployment of a canine on October, I believe, 19th, or excuse me, 2019.

[00:00:22] Speaker 00:
Mr. Jellison, before you get too far into your argument, I wanted to ask you if you have seen a case that just

[00:00:30] Speaker 00:
came out from our court, I think it was probably posted for publication today, and it's Zachary Rosenbaum versus City of San Jose, which is a case that is interestingly very similar in its facts to this case.

[00:00:45] Speaker 00:
Have you seen this case?

[00:00:47] Speaker 04:
Well, to prepare for an oral argument, I typically do two things.

[00:00:51] Speaker 04:
I typically do update to see if there's any new cases, and I typically look and see how the three of you have decided qualified immunity cases.

[00:01:01] Speaker 04:
I have not seen that one.

[00:01:03] Speaker 04:
So if it came out today, it missed me.

[00:01:05] Speaker 00:
OK.

[00:01:06] Speaker 00:
No, I'm asking because I have some questions that I intend to ask, but I won't ask you questions about this case if you haven't read it because that seems unfair.

[00:01:14] Speaker 00:
Proceed, sorry about that.

[00:01:16] Speaker 04:
My comments would be errant if I have not read it, and I appreciate that.

[00:01:23] Speaker 04:
Is it a district court case?

[00:01:24] Speaker 00:
No, it's a case from our court.

[00:01:26] Speaker 00:
From the Ninth Circuit?

[00:01:27] Speaker 00:
Yes, and it's a published decision relating to qualified immunity for an officer that deployed a dog that then a canine that bit the plaintiff in a 1983 action.

[00:01:40] Speaker 00:
So very similar facts.

[00:01:43] Speaker 04:
And so I will proceed as I intended.

[00:01:48] Speaker 04:
I do plan on taking some extra time, and I'll try to do that when I see it on the clock.

[00:01:53] Speaker 01:
How much time would you like to reserve?

[00:01:55] Speaker 04:
Three to four minutes.

[00:01:56] Speaker 04:
OK.

[00:01:57] Speaker 04:
Thank you, Your Honor.

[00:02:01] Speaker 04:
What police officers do, as I reflect on it, is very unique.

[00:02:05] Speaker 04:
It's like nothing that any of us do.

[00:02:08] Speaker 04:
They get a call for service.

[00:02:10] Speaker 04:
The community expects them to respond to that call.

[00:02:13] Speaker 04:
And then they insert themselves in a situation that they have little understanding of.

[00:02:18] Speaker 04:
And so they have to assess that situation based on what they've heard about it.

[00:02:23] Speaker 04:
and what they've observed about it.

[00:02:26] Speaker 04:
And the Ninth Circuit has recognized that when it comes to the utilization of canines in law enforcement.

[00:02:31] Speaker 04:
First of all, as a broad proposition, the courts, including the Ninth Circuit, encourage the use of canines in law enforcement.

[00:02:39] Speaker 04:
And the reason is simple, because utilization of canines serve to protect the lives of human officers under the right circumstances.

[00:02:50] Speaker 04:
Additionally,

[00:02:54] Speaker 04:
The courts recognize, and I'll refer to the Miller case in particular, I'll refer to the Lowry case in particular, that officers are confronted with a situation that might not at the end of the day turn out to be what is perceived.

[00:03:08] Speaker 04:
So in the Lowry situation, you had a...

[00:03:11] Speaker 04:
somebody working in an office who was sleeping off a night of drinking and triggered an alarm.

[00:03:17] Speaker 04:
But the Ninth Circuit recognized that this looks like a burglary.

[00:03:21] Speaker 04:
This looks like a dangerous situation.

[00:03:23] Speaker 04:
We're going to deploy a canine because this could be somebody who's waiting for us to do us harm.

[00:03:29] Speaker 00:
Is your challenge to the, with respect to Officer Miller, are you challenging both the initial deployment of Toby into the shed

[00:03:41] Speaker 00:
or the command to bite Mr. Rock after Toby entered the shed?

[00:03:49] Speaker 04:
Neither.

[00:03:50] Speaker 04:
The district court granted qualified immunity to Officer Miller regarding the deployment of Toby with the purpose of locating, biting, and retrieving Mr. Rock.

[00:04:03] Speaker 04:
who was presumably but not known for sure to be inside the shed and even the submittals by plaintiffs council make clear that

[00:04:15] Speaker 04:
there is no judgment on that grant of qualified immunity from which to appeal.

[00:04:21] Speaker 04:
So that part of the case is off the table.

[00:04:24] Speaker 04:
The only question with Miller is whether or not the duration of the by violated constitutional parameters.

[00:04:33] Speaker 04:
And in the Ninth Circuit,

[00:04:35] Speaker 04:
Uh, case law is pretty clear that there's really two categories that apply.

[00:04:40] Speaker 04:
The first one comes out of Mendoza versus Block.

[00:04:43] Speaker 04:
Really wasn't even part of the facts, but it makes sense if you have somebody handcuffed.

[00:04:49] Speaker 04:
if you have them controlled and they are no longer fighting, you can't stick your canine on them.

[00:04:56] Speaker 04:
And of course, that's not a very remarkable proposition because if somebody's handcuffed and controlled and they're not fighting back, then you shouldn't be doing any gratuitous use of force.

[00:05:07] Speaker 04:
There was a morphing of that concept.

[00:05:09] Speaker 00:
Mr. Jellison, not to make this a spoiler for you, but the Rosenbaum case that I was referring to earlier, that case essentially

[00:05:17] Speaker 00:
takes the position that you're arguing right now, which is that it is both constitutes excessive force and is, it was clearly established that having a canine continue to bite a suspect after they are not presenting any further threat or have surrendered, I think very, very similarly sort of makes the point that you're making.

[00:05:43] Speaker 00:
So I'm wondering if maybe you want to turn to

[00:05:46] Speaker 00:
your arguments with respect to, I don't want you to run out of time, but I'm particularly interested in hearing your arguments with respect to the failure to intervene and the participation, the integral participation of the passive officers.

[00:06:02] Speaker 04:
Very well, Your Honor.

[00:06:04] Speaker 04:
I know it's my time.

[00:06:05] Speaker 04:
I'd like to take just at least a couple seconds to talk about Miller, because I don't know the case that you're referring to.

[00:06:13] Speaker 04:
But one thing that I will point out is that whatever case came out today did not exist in October of 2019 and would not have guided Officer Miller's decision making.

[00:06:23] Speaker 04:
So what would have guided the decision making would be the Mendoza proposition I talked about before and the morphing.

[00:06:31] Speaker 04:
And that is if somebody has, and this is the words of the Ninth Circuit, fully surrendered and are under the control of police officers,

[00:06:39] Speaker 03:
I mean, just to interrupt on that.

[00:06:41] Speaker 03:
So the focus here is a 50-page district court opinion.

[00:06:44] Speaker 03:
It's very detailed, and most of it you're accepting.

[00:06:47] Speaker 03:
But when you get to the Watkins claim, why is the district at wrong saying that there are issues of fact as to whether or not Dillon Rock, when he grabs the leash, was either resisting or just trying to protect himself, one.

[00:07:02] Speaker 03:
And then the district court points out that Toby is still engaged and biting, even though

[00:07:09] Speaker 03:
Dylan has then been flipped over, surrounded by officers.

[00:07:13] Speaker 03:
One of them has a taser aimed at him.

[00:07:15] Speaker 03:
So it does look like there are fact questions as to whether there's an effect of surrender.

[00:07:20] Speaker 03:
Isn't that the logic of the Watkins claim here?

[00:07:23] Speaker 04:
Well, the Watkins case, I believe, is pre-Scott versus Harris.

[00:07:27] Speaker 04:
But I don't know that the Watkins.

[00:07:28] Speaker 03:
Right.

[00:07:28] Speaker 03:
But even looking at the video here, we know he did grab the leash.

[00:07:33] Speaker 03:
And that could be interpreted one of two ways.

[00:07:35] Speaker 03:
Isn't that what the district court said?

[00:07:37] Speaker 04:
Well, the district court said that, but that's incorrect.

[00:07:43] Speaker 04:
The reason I'm saying it's incorrect and the answer to your question is a couple of things.

[00:07:46] Speaker 04:
First of all, there's no fact dispute because under Scott versus Harris, we can look at this video from every angle, slowed down, enhanced, and we can tell what happened, the timeline, and what Dillon Rock was doing during that time.

[00:08:01] Speaker 04:
Even the plaintiff's counsel in their briefs

[00:08:05] Speaker 04:
mentioned that the three officers, White, Cummings, and Preston, were hands-on with Rock the entire time before they got him into handcuffs.

[00:08:16] Speaker 04:
And the next part of that is, okay, so what is Dylan Rock thinking?

[00:08:21] Speaker 04:
The officers don't know what Dylan Rock is saying.

[00:08:23] Speaker 03:
No, it's not thinking.

[00:08:24] Speaker 03:
I think the district court is very careful to say, let's accept the video.

[00:08:28] Speaker 03:
You have an arrestee that is face down, hands visible, surrounded by officers.

[00:08:35] Speaker 03:
Is your rule that, no, he actually has to be cuffed, but until he's physically cuffed, the dog can stay a bit engaged?

[00:08:44] Speaker 03:
Is that your position?

[00:08:45] Speaker 04:
Well, I've got to accept.

[00:08:47] Speaker 04:
the other cases that talk about him fully surrendering, again the language of the Ninth Circuit, and being under control.

[00:08:54] Speaker 04:
And what we see in the videos is not somebody who is either fully surrendered verbally or by their actions or is under control.

[00:09:03] Speaker 01:
And we were, just to be clear though, we were talking about a biting situation that was happening for 40 seconds, correct?

[00:09:10] Speaker 04:
Actually, I disagree with that.

[00:09:12] Speaker 04:
I think when we look at the video, the bite, we hear Dylan in the shed yell.

[00:09:17] Speaker 01:
Well, that was a finding of the court, correct?

[00:09:19] Speaker 01:
I don't recall if that was the finding of the court.

[00:09:21] Speaker 01:
Let's assume that that was a finding of the court.

[00:09:23] Speaker 01:
Was the court wrong about that?

[00:09:25] Speaker 04:
If the court didn't count the seconds in the video correctly, then the court would be wrong.

[00:09:29] Speaker 04:
But I think that what's more important than the time

[00:09:33] Speaker 04:
is what's happening in that time.

[00:09:36] Speaker 04:
And in that time, Dillon Rock has got his right hand under him.

[00:09:39] Speaker 04:
He's reaching over from under him.

[00:09:42] Speaker 04:
He's grabbing Toby's leash.

[00:09:44] Speaker 04:
He's commanded at least five times to let go of that leash, and he doesn't do it.

[00:09:48] Speaker 01:
So how long was it?

[00:09:49] Speaker 01:
How long was it?

[00:09:50] Speaker 01:
I guess I take your statements to mean that it was less than that time?

[00:09:55] Speaker 04:
Yes, if you look at the video, Your Honor, from the time that it appears that Toby goes on bite in the shed.

[00:10:01] Speaker 01:
Counsel, I've looked at that video many times.

[00:10:03] Speaker 04:
To the time that Mike Miller orders the bite, Toby to be released from the bite is 30 seconds, maybe 31 seconds.

[00:10:13] Speaker 04:
And so if we're talking about Officer Miller's actions, that's what we have to look at.

[00:10:17] Speaker 04:
And so I look at cases like Hernandez, Lowry, and Miller.

[00:10:24] Speaker 04:
We don't have to show the clearly established law, but I think cases like that

[00:10:33] Speaker 04:
would put every reasonable police officer in this situation on notice that what happened in this case was not constitutionally proscribed.

[00:10:44] Speaker 04:
And that's the standard now.

[00:10:46] Speaker 04:
And that's why the Watkins case isn't as good as, I think, the district court thought it to be or as plaintiff's counsel believes it to be.

[00:10:56] Speaker 04:
Because in that case, there was no finding, there was no holding that the Fourth Amendment had been violated.

[00:11:03] Speaker 04:
merely that a jury could come to that conclusion.

[00:11:06] Speaker 04:
And Casella, US Supreme Court, tells us that we don't, in this modern era, deny qualified immunity just because a jury might find that something is reasonable or unreasonable during a trial.

[00:11:25] Speaker 04:
qualified immunity is morphed so that we have to rely for clearly established law in cases that have actually held that conduct that is very, very similar to what we're seeing here has been declared unconstitutional or in violation of the Fourth Amendment.

[00:11:43] Speaker 04:
We don't have that.

[00:11:44] Speaker 04:
Dillon Rock is not fully surrendering.

[00:11:46] Speaker 04:
You can clearly see that on the video.

[00:11:48] Speaker 01:
I guess you're saying that, but so then we are to reject the district court's finding

[00:11:53] Speaker 01:
that, quote, he was screaming and recoiling from pain?

[00:11:59] Speaker 04:
Well, he was screaming, recoiling.

[00:12:02] Speaker 04:
I think we can hear that on the video.

[00:12:05] Speaker 04:
He's also grabbing the leash.

[00:12:06] Speaker 04:
We can see that on the video.

[00:12:08] Speaker 04:
But he's not fully surrendering.

[00:12:10] Speaker 04:
And the officers don't have control of him.

[00:12:12] Speaker 04:
In fact, they're fighting to get control of his right arm so that they can apply handcuffs.

[00:12:18] Speaker 04:
And only when

[00:12:19] Speaker 04:
At the point where it's clear that Toby has the left arm and the officers who are struggling with rock have the right arm and you can see that it's out to the side.

[00:12:31] Speaker 04:
Miller then calls off the bite.

[00:12:33] Speaker 04:
Miller calls off the bite at that point in time.

[00:12:35] Speaker 04:
Two seconds later, Toby is off bite.

[00:12:38] Speaker 01:
Council, I see that you have two and a half minutes.

[00:12:40] Speaker 01:
You want to reserve the rest of your time?

[00:12:42] Speaker 01:
I'm going to reserve that.

[00:12:43] Speaker 01:
Thank you, Your Honor.

[00:12:43] Speaker 04:
Sure.

[00:13:00] Speaker 02:
Good morning, if it pleases the court, Charles Tony Picuto on behalf of appellee and cross-appellant Dillon Rock.

[00:13:07] Speaker 02:
So I know you addressed Rosenbaum.

[00:13:09] Speaker 02:
I'm familiar with it.

[00:13:10] Speaker 02:
I watched the oral argument.

[00:13:12] Speaker 02:
I just looked up the opinion.

[00:13:14] Speaker 02:
It looks like it affirmed.

[00:13:16] Speaker 02:
And I think that pretty much is conclusive with respect to what this court should do on the claim against Miller with respect to duration encouragement.

[00:13:25] Speaker 02:
I can just address a couple briefs.

[00:13:27] Speaker 02:
With respect to what?

[00:13:29] Speaker 02:
Duration encouragement.

[00:13:30] Speaker 03:
Oh, duration.

[00:13:31] Speaker ?:
Yeah.

[00:13:31] Speaker 02:
I'll just address a few things on that, because I don't think it's as complex.

[00:13:35] Speaker 03:
Was Miller both the commanding officer and the canine handler?

[00:13:39] Speaker 02:
See, it's interesting in that department, Miller is the canine handler, and the rule is they don't have to have any permission to use a dog from any supervising officer.

[00:13:49] Speaker 02:
But the two higher ranking officers at the scene were Corporal Cummings and Sergeant McCarthy.

[00:13:54] Speaker 02:
And I'm just going to address a couple of things to differentiate Watkins just so the court has it if they want to include it in the opinion.

[00:14:00] Speaker 02:
What makes Watkins distinguishable is that in Watkins, the officer's statement as to why he didn't call the dog off the bite is because he didn't know if he was armed because he couldn't see his hands.

[00:14:10] Speaker 02:
In this particular case, Miller said he could see his hands as soon as he came out of the shed.

[00:14:14] Speaker 02:
That's a big distinction.

[00:14:16] Speaker 02:
Another distinction.

[00:14:16] Speaker 00:
The district court actually, on page 19 of its order, says that three seconds

[00:14:22] Speaker 00:
into, after Toby's entered the shed, within three seconds they can determine, the officers can determine that Mr. Rock's hands don't have a weapon in them.

[00:14:31] Speaker 00:
So isn't it even earlier than what you're saying?

[00:14:34] Speaker 02:
Well I know Cummings, both Cummings, Cummings was at a better vantage point, but as soon as the dog drags Miller out of the, excuse me, Rock out of the shed, Miller concedes that he can see he has nothing in his hands.

[00:14:47] Speaker 02:
And I want to just clarify one thing.

[00:14:49] Speaker 02:
In our underlying response to the motion for summary judgment, we cited it to exhibit eight, but it was actually exhibit seven, which is Miller's body worn camera.

[00:14:59] Speaker 03:
Because we do add the video, when in the video would you say that it's indisputable that the police had complete control over?

[00:15:08] Speaker 02:
I would say immediately.

[00:15:10] Speaker 03:
Well, but you have a point in terms of those 40 seconds.

[00:15:13] Speaker 02:
three or four seconds into the bite once, because both Cummings and Miller concede that when Toby was on the bite, they had, Toby had complete control of Dillon Rock.

[00:15:23] Speaker 02:
And I mean, the video is pretty compelling.

[00:15:25] Speaker 02:
You can see he's not resisting.

[00:15:27] Speaker 02:
He's screaming for his life.

[00:15:28] Speaker 02:
He's agonizing in pain.

[00:15:29] Speaker 02:
And what also makes us different from Watkins is you have multiple officers hands on applying force.

[00:15:35] Speaker 02:
And what also makes us different from Watkins is the dog bite in this particular case was on his left arm, controlling more of his upper body, where in Watkins it was on his ankle.

[00:15:44] Speaker 02:
And so the reason why in Watkins he couldn't show his hands would be more, I guess, suspect, if you could say, as opposed to a dog that's attacking your upper body.

[00:15:52] Speaker 02:
And if you really break down the video and watch it closely, you'll see at one point the reason why he

[00:15:56] Speaker 02:
can't give his right hand is because Preston, Officer Preston is actually grabbing it from underneath him and trying to secure it that way because Cummings is failing to do anything other than pull out his taser and stick it into Dillon Rock's back.

[00:16:10] Speaker 02:
So now we have two officers hands on, a third one right there also hands on with a taser in his back, a dog for an extended duration, multiple cover officers.

[00:16:19] Speaker 03:
So you accept just that the rule is, the Watkins rule is once surrendered or functionally captured,

[00:16:27] Speaker 02:
I would say that the rule for Watkins, if someone's not resisting, essentially, you need to release the dog.

[00:16:36] Speaker 03:
But of course, I mean, in part, the argument against you is that we do see resistance in terms of him grabbing the leash.

[00:16:44] Speaker 02:
That's not resistance.

[00:16:45] Speaker 02:
It's a reaction to recoiling, just like they

[00:16:49] Speaker 03:
So, but imagine no dog imagine a police circumstance if an arrestee is grabbing at one of the officers that would still qualifies resistance correct show so with respect to the grab of the lead, if you want to break it down that way as you can even give any.

[00:17:04] Speaker 02:
Credence that argument.

[00:17:05] Speaker 02:
Yes, it was maybe four or five seconds.

[00:17:08] Speaker 02:
And then he's off the leash.

[00:17:10] Speaker 02:
They have his arm.

[00:17:11] Speaker 02:
They're yelling at him about the right arm until he is still latched off, still latched on.

[00:17:15] Speaker 02:
So that's the distinctions in the duration encouragement context.

[00:17:21] Speaker 02:
I don't think I had anything else I want to add on that.

[00:17:24] Speaker 02:
But I really want to address the two more complicated issues in this opinion, which is the integral participation and failure to intervene context.

[00:17:31] Speaker 00:
And also, can I just ask you, are you challenging the initial deployment of Toby into the shed without warning or the command to bite after determining that he was?

[00:17:41] Speaker 02:
For efficiency, we wanted to bring it up on appeal.

[00:17:43] Speaker 02:
We tried to get it certified and have judgment entered as to it, but the district court didn't do it.

[00:17:50] Speaker 03:
So what's your answer?

[00:17:52] Speaker 02:
We did.

[00:17:52] Speaker 02:
We absolutely did.

[00:17:53] Speaker 03:
Are appealing whether or not the initial deployment of the dog was excessive?

[00:17:58] Speaker 02:
It's not before the court now, but we plan to when final judgment is entered.

[00:18:01] Speaker 02:
I thought it was before the court.

[00:18:03] Speaker 02:
No, it's not.

[00:18:04] Speaker 02:
So we tried to get it here, but we were unable to.

[00:18:08] Speaker 02:
So with respect to integral participation, now the flaw in the district court's opinion is that there was no individualized analysis into each officer's conduct.

[00:18:16] Speaker 02:
And that is per this court's previous order in Sims versus Brown and also Dembe versus Engstrom.

[00:18:22] Speaker 02:
In Sims versus Brown, this court elected to undertake that analysis to

[00:18:27] Speaker 02:
the court to do it on remand.

[00:18:32] Speaker 02:
Uh, here.

[00:18:33] Speaker 02:
The district court completely

[00:18:36] Speaker 02:
uh, circumvented that entire process.

[00:18:38] Speaker 02:
They didn't do any analysis into what each individual officer did to be integral participants in the constitutional violation for the duration and encouragement.

[00:18:47] Speaker 02:
And we think that's a flaw.

[00:18:49] Speaker 02:
And we did that analysis.

[00:18:50] Speaker 02:
It's not like we by happenstance just filed pleadings.

[00:18:53] Speaker 02:
We actually looked at it, considered it, and we did not oppose their motion for summary judgment with

[00:18:59] Speaker 02:
respect to Sergeant McCarthy.

[00:19:01] Speaker 01:
What is your authority, the best authority that you have that the lies clearly established that this is somehow caused them not to have qualified immunity?

[00:19:13] Speaker 02:
Well, I guess the test is crystallized in Peck versus Montoya.

[00:19:20] Speaker 02:
I believe that's the case.

[00:19:22] Speaker 02:
And it says the two ways you can have integral participation is one, you can acquiesce in the underlying unconstitutional misconduct, and you also can send to a series of events that causes it.

[00:19:34] Speaker 02:
But the two cases that are most similar for the proposition that

[00:19:39] Speaker 02:
this would constitute it would be Blankenhorn versus City of Orange and Martinez versus City of Pittsburgh.

[00:19:45] Speaker 03:
But none.

[00:19:45] Speaker 03:
There's no nicer case in the context of a dog seizure.

[00:19:49] Speaker 03:
That's correct that we could.

[00:19:51] Speaker 03:
How would these officers be on notice that they had to intervene?

[00:19:54] Speaker 02:
Well, they were.

[00:19:55] Speaker 02:
This isn't with intervening.

[00:19:57] Speaker 02:
This is within integral participation.

[00:19:59] Speaker 03:
Well, the distinction between being a bystander, being an active participant.

[00:20:03] Speaker 02:
They were active participants, they integrally participated in the constitutional violation of the duration encouragement.

[00:20:10] Speaker 01:
Some officers more than others.

[00:20:11] Speaker 01:
Is that what those cases say though?

[00:20:14] Speaker 02:
Well, what those cases say is there doesn't need to be an overt plan that we're going to go in and allow this dog to bite his arm for 30 or 40 seconds.

[00:20:24] Speaker 02:
That's what those cases say.

[00:20:26] Speaker 03:
Do you read and study the case cited by Mr. Miller, Hughes versus Rodriguez?

[00:20:33] Speaker 02:
I haven't studied that case, Your Honor.

[00:20:36] Speaker 03:
That's a 2022 case that looks very similar, specifically says that it's not clearly established law in the Ninth Circuit in the, quote, chaos of a dog arrest, particularly when you have one officer who is a canine handler, the concept that other officers would sort of intervene as to the dog that he's got on his leash.

[00:20:55] Speaker 02:
Well, I would say that in this particular case, which makes it fascinating, is one of the officers, White, who was there, was a canine handler.

[00:21:02] Speaker 02:
He's the one who removed the dog from the bite.

[00:21:04] Speaker 02:
The other officers were all trained to... But he did on Miller's instruction.

[00:21:07] Speaker 03:
Correct.

[00:21:08] Speaker 03:
So that's sort of the logic that I read into this decision that cited, but not for this proposition, but it seems to explore the fact that

[00:21:17] Speaker 03:
When you have a canine seizure, that is a unique moment where a canine handler has specific control of the leash, as Miller did, and then he releases the dog.

[00:21:28] Speaker 03:
The proposition you're asking us to say is that other officers that are not in command of the leash have to somehow intervene.

[00:21:34] Speaker 03:
That's exactly what I'm saying.

[00:21:36] Speaker 03:
And what's your Ninth Circuit case law that says they're on notice that they've got to intervene?

[00:21:40] Speaker 02:
But then we're going to switch towards the favor to intervene theory, which I'm happy to do.

[00:21:45] Speaker 02:
But I was trying to address the integral participant theory, because the integral participant theory looks at each officer's individual conduct.

[00:21:51] Speaker 02:
And they're all applying force when the duration, encouragement, and the bite is going.

[00:21:55] Speaker 02:
If you want to go and shift it there, I'm happy to.

[00:21:57] Speaker 03:
Let's not shift quickly.

[00:21:58] Speaker 03:
Give me a case that involves a dog seizure in the integral participant.

[00:22:02] Speaker 03:
That doctrine emerged from the Fifth Circuit.

[00:22:05] Speaker 03:
I'm aware, and I'm aware you're visiting from there today.

[00:22:07] Speaker 03:
So I'm glad you're on the panel.

[00:22:09] Speaker 03:
Can you think of any circuit that has applied that doctrine in the context of a dog seizure?

[00:22:14] Speaker 03:
I'm not aware of a case that does that.

[00:22:15] Speaker 03:
So it would seem to me, but push back, that these officers wouldn't be on notice.

[00:22:20] Speaker 02:
So then we're making a carve out with respect to dog bite cases and really complicating a body of law is what we'd be doing.

[00:22:26] Speaker 02:
And I don't really agree that an officer doesn't know enough to not be an integral participant in that situation.

[00:22:33] Speaker 02:
And what muddies it a little bit is because when they're actively participating, they're not failing to intervene and it kind of marries the two issues.

[00:22:41] Speaker 02:
But here, they're all applying force.

[00:22:43] Speaker 02:
A lot of the officers there are applying force.

[00:22:45] Speaker 02:
They're agreeing in the duration encouragement.

[00:22:47] Speaker 02:
They're not trying to stop it.

[00:22:48] Speaker 02:
But again, that's a separate issue.

[00:22:50] Speaker 02:
We're looking at each officer's individual involvement.

[00:22:53] Speaker 02:
And if we're holding Miller responsible for this long duration encouragement, this excessive bite, and all these other officers are there contributing to it and exhibiting force,

[00:23:05] Speaker 02:
then they should be held as integral participants.

[00:23:07] Speaker 02:
These aren't cases where they're mere bystanders, cover officers, like the PEC versus the PEC case.

[00:23:12] Speaker 02:
That was a sudden exchange of gunfire.

[00:23:17] Speaker 02:
There's very little they can do in that circumstance.

[00:23:19] Speaker 02:
And they're just standing guard.

[00:23:21] Speaker 02:
Here, they're actually participating in the use of force with the dog.

[00:23:25] Speaker 02:
That's the distinction.

[00:23:26] Speaker 02:
And let's switch to the failure to intervene, because I don't have much time, and it's super important.

[00:23:31] Speaker 02:
Number one, it needs to be cleaned up because Penaloza created a lot of confusion.

[00:23:35] Speaker 02:
That's an unpublished opinion from this court.

[00:23:40] Speaker 02:
And what it essentially said is that there's no case telling an officer when they need to intercede.

[00:23:46] Speaker 02:
And I'm not addressing that case, particularly for this case, because Penaloza was post incident.

[00:23:54] Speaker 02:
Penaloza was a 2020

[00:23:56] Speaker 02:
opinion.

[00:23:57] Speaker 02:
This was in 2019.

[00:23:58] Speaker 02:
So if they want to argue that Penalosa somehow muddy the waters and made it confusing as to when someone need to intervene, that's not the case.

[00:24:06] Speaker 02:
In 2019, the law was Cunningham versus Gates, and it was at the first realistic opportunity on officer needs to intervene unconstitutional conduct or an excessive use of force.

[00:24:16] Speaker 02:
Okay, so, but Penaloza, what it did is now confuse all these district courts.

[00:24:20] Speaker 02:
So much so that in the district court's underlying opinion here, they said if they didn't follow Penaloza, it would be a reversible error.

[00:24:29] Speaker 02:
And if you look at the case we cited out of Oregon, it also confused a magistrate judge, in that case of Segura versus Miller, it confused the magistrate judge to actually

[00:24:40] Speaker 02:
enter findings or recommendations about the failure to intervene.

[00:24:45] Speaker 02:
And the district court judge didn't embrace those findings.

[00:24:48] Speaker 02:
They didn't accept them.

[00:24:49] Speaker 02:
They said, no, Penaloza is not the law.

[00:24:52] Speaker 02:
The law has been well established for a long time in the Ninth Circuit.

[00:24:55] Speaker 02:
And that is Cunningham versus Gates.

[00:24:56] Speaker 02:
It's the first realistic opportunity.

[00:24:58] Speaker 02:
Now, we're not citing Segura versus Miller as presidential authority.

[00:25:02] Speaker 02:
We know it's not.

[00:25:03] Speaker 02:
But the analysis is spot on.

[00:25:06] Speaker 02:
It looks at Penaloza.

[00:25:08] Speaker 02:
It looks at Cunningham versus Gates.

[00:25:09] Speaker 02:
It looks at the cases that have discussed failure to intervene.

[00:25:13] Speaker 02:
And it said the law has always been at the first realistic opportunity.

[00:25:19] Speaker 02:
And if you think about it, it makes perfect sense because

[00:25:22] Speaker 02:
If officers are intervening when they can at the first realistic opportunity, maybe this case isn't here, at least not in the duration encouragement theory.

[00:25:30] Speaker 02:
If any of those officers intervened in the first couple seconds, told Miller, hey, call the dog off, he's unarmed, anything, we're not here.

[00:25:38] Speaker 02:
It protects suspects.

[00:25:39] Speaker 02:
It protects citizens.

[00:25:40] Speaker 02:
It protects the police.

[00:25:42] Speaker 02:
It protects government entities from litigation.

[00:25:45] Speaker 02:
It protects the court system from having claims go up.

[00:25:48] Speaker 02:
So the failure to intervene doctrine is so important.

[00:25:50] Speaker 02:
We need to clarify Penaloza.

[00:25:52] Speaker 02:
This court should issue an opinion that reinforces what they want to do with respect to the failure to intervene doctrine.

[00:25:58] Speaker 02:
It will be precedential if it's published, unlike Penaloza.

[00:26:02] Speaker 02:
It will actually clean up what's confusing the district courts now.

[00:26:06] Speaker 02:
Happy to answer more questions if the court would like.

[00:26:10] Speaker 01:
Any additional questions?

[00:26:12] Speaker 01:
Thank you.

[00:26:12] Speaker 01:
All right.

[00:26:12] Speaker 01:
Thank you.

[00:26:23] Speaker 04:
Well, I'll start with failure to intervene or integral participation.

[00:26:30] Speaker 04:
And I sort of harken back to the Boyd case.

[00:26:34] Speaker 04:
The Boyd case was a case where flashbangs were going to be deployed, but the group actually met and talked about it.

[00:26:40] Speaker 04:
before the search warrant was being executed.

[00:26:44] Speaker 04:
And the point in Boyd is we all knew that they were going to introduce flashbangs into a house and they didn't know that whether or not there were innocent people there and somebody should have said something during the briefing.

[00:26:54] Speaker 04:
Hey, maybe that's a bad idea.

[00:26:56] Speaker 04:
This isn't that case.

[00:26:58] Speaker 04:
And Judge Higginson, you pointed out the obvious.

[00:27:02] Speaker 04:
And that is, this is now a fast-moving situation.

[00:27:06] Speaker 04:
Is there any case law that would instruct a reasonable officer that now, hey, I've got to intervene and I've got to stop this operation?

[00:27:13] Speaker 04:
And that's a dangerous proposition.

[00:27:16] Speaker 04:
because in a law enforcement action, can you imagine one other law enforcement officer saying to another, you know what, I just think this is too much, I'm not going to help you anymore, or I'm even going to stop you.

[00:27:29] Speaker 04:
If they're wrong about it,

[00:27:31] Speaker 04:
their careers on the line.

[00:27:32] Speaker 04:
Now, there may be some things that are quite obvious.

[00:27:35] Speaker 04:
My example before, you don't hit somebody who's already handcuffed, controlled, and they're not fighting back.

[00:27:41] Speaker 04:
But this isn't that situation.

[00:27:43] Speaker 03:
Could you respond just quickly, factually, because when I'm asking opposing counsel, the moment at which release would have been appropriate to order, the answer was three to four seconds after the end of the shed.

[00:27:56] Speaker 03:
What, to your recollection, was happening three to four seconds after the end of the shed?

[00:28:00] Speaker 04:
Three to four seconds after they entered the shed, he was pulled out and Dylan Rock was brought out the door and he's grabbing the leash and he's not giving up his right hand and the three officers are trying to get that right hand so they can handcuff him.

[00:28:16] Speaker 04:
When they finally get access to that right hand,

[00:28:19] Speaker 04:
then the dog is called off before there's even handcuffing.

[00:28:22] Speaker 04:
And where we've already determined that clearly established laws not violated by ordering the deployment to bite, hold, and locate, how do we say that a 32-second

[00:28:35] Speaker 04:
event like this violates clearly established law and show me that clearly established law under facts like this, because I don't see it.

[00:28:47] Speaker 04:
I believe Penalosa does apply and I believe we have Miller here, but as to the other officers, if there's not clearly established law telling them they have to intervene, then they are entitled to qualified immunity and the district court was correct.

[00:29:05] Speaker 01:
Let's see, any additional questions?

[00:29:08] Speaker 01:
All right, thank you, Council.

[00:29:10] Speaker 01:
Thank you both for your arguments.

[00:29:12] Speaker 01:
Today this matter will be submitted.