[00:00:00] Speaker 03:
And we will move on to the second case set for argument today, which is Ellis versus County of Pierce.

[00:00:07] Speaker 03:
That's case number 24-1361.

[00:00:43] Speaker 00:
Good morning, your honors.

[00:00:44] Speaker 00:
May it please the court, I'm Jana Hartman.

[00:00:46] Speaker 00:
I represent the appellants in this matter.

[00:00:49] Speaker 00:
I would like to reserve three minutes for rebuttal, please.

[00:00:53] Speaker 00:
This court always has jurisdiction over questions of qualified immunity when there are no material disputed facts.

[00:01:00] Speaker 00:
In this case, the court has jurisdiction over this interlocutory appeal regarding qualified immunity because at the time of seizure, there is no disputed fact that Deputy Redding had probable cause to arrest Ms.

[00:01:14] Speaker 00:
Ellis for domestic violence assault.

[00:01:17] Speaker 00:
And in addition, the nature, or I'm sorry, the duration.

[00:01:20] Speaker 03:
Wait, wait, wait, wait.

[00:01:21] Speaker 03:
There's no probable cause that they could have arrested her?

[00:01:25] Speaker 03:
There's no dispute.

[00:01:26] Speaker 00:
There's no dispute that there was probable cause.

[00:01:29] Speaker 00:
The deputy writing had probable cause to arrest Ms.

[00:01:34] Speaker 00:
Ellis.

[00:01:34] Speaker 00:
Good.

[00:01:35] Speaker 03:
I thought we were going off on a different tangent.

[00:01:37] Speaker 03:
I misheard you.

[00:01:39] Speaker 02:
And counsel, just to jump to the chase, because I know you're going to give us the law correctly.

[00:01:46] Speaker 02:
your very own brief and its headings talks about no factual dispute about things that, as I read it, the district court said there was a factual dispute.

[00:01:56] Speaker 02:
Your headings are no factual dispute that Ellis was evading the police.

[00:02:02] Speaker 02:
There's no factual dispute over the canine searches

[00:02:05] Speaker 02:
reasonableness, and then you sort of go on and say, well, there's factual support for this.

[00:02:10] Speaker 02:
I mean, aren't those the crucial items here?

[00:02:14] Speaker 02:
We can go into them specifically, but just in a general way, isn't a lot of your argument not really taking the facts as the district court has said are reasonably in dispute?

[00:02:27] Speaker 00:
I think there are three phases to this case.

[00:02:30] Speaker 00:
There is the pre-seizure search, then there is the seizure, and then there is the duration of the seizure.

[00:02:39] Speaker 00:
The headings that Your Honor just brought up relate to disputed facts in the pre-seizure search phase.

[00:02:46] Speaker 01:
But I didn't understand that was really the focus here.

[00:02:49] Speaker 01:
I thought it was there would be probable cause to arrest, there was probable cause to do a search.

[00:02:57] Speaker 01:
you get to the seizure and the duration of the seizure.

[00:03:00] Speaker 01:
So that's, to me, where the focus of the case is.

[00:03:03] Speaker 00:
And I agree completely.

[00:03:04] Speaker 01:
It's our position that... And there are disputed facts galore.

[00:03:11] Speaker 00:
regarding the seizure and the duration of the seizure?

[00:03:13] Speaker 00:
Right.

[00:03:14] Speaker 00:
And I disagree.

[00:03:16] Speaker 00:
OK.

[00:03:16] Speaker 00:
The seizure occurred at the point in time that Deputy Redding saw K9 Zep in contact with Ms.

[00:03:22] Speaker 00:
Ellis underneath the boat trailer.

[00:03:24] Speaker 00:
That's the point in time.

[00:03:25] Speaker 00:
Well, even that's a factual dispute right there.

[00:03:29] Speaker 02:
I mean, she may have been drunk and she may be lying, but she made a declaration.

[00:03:34] Speaker 02:
that she was walking across the yard, and out of nowhere, the dog attacks her.

[00:03:39] Speaker 02:
So the part about being under the boat, as a matter of fact, the officers may be completely correct.

[00:03:46] Speaker 02:
But isn't that wholly disputed?

[00:03:50] Speaker 00:
It is not, because the court has the ability to determine the objective reasonableness of facts asserted.

[00:03:55] Speaker 02:
And for example, when you look at- If this were the other side, if it were the other side, but the district court

[00:04:04] Speaker 02:
made statements, findings that these things are reasonably in dispute.

[00:04:11] Speaker 02:
That's the only reason he would say that this sort of trilogy of immediate threats, severity of crime, risk of flight, that each of those he found were in dispute.

[00:04:24] Speaker 00:
Well, and those gram factors don't actually come into play until there's a seizure.

[00:04:28] Speaker 00:
The gram factors don't apply during the search phase.

[00:04:32] Speaker 00:
And when we look at the facts that our position in our brief points out that some of the what quote unquote were disputed facts in the district court's order are not actually supported in the record.

[00:04:45] Speaker 02:
And again, the court- Well, but that's an attack on the fact that isn't that exactly the sort of thing that Johnson v. Jones

[00:04:51] Speaker 02:
doesn't let you do, at least absent the video.

[00:04:55] Speaker 02:
I don't know if you're trying to rely on Scott v. Harris here, but generally absent things that are, as they said in Scott, beyond dispute through a video.

[00:05:09] Speaker 02:
You have to take what the district court said.

[00:05:12] Speaker 00:
And unfortunately, we don't have body cam video.

[00:05:14] Speaker 00:
In this case, we have the CAD records that are probably most reliable regarding the timing of this.

[00:05:23] Speaker 00:
But you can also look at the reasonableness of Ms.

[00:05:25] Speaker 00:
Ellis' statements.

[00:05:26] Speaker 01:
Well, let me go back.

[00:05:29] Speaker 01:
going down the line of thought that you had about the boat.

[00:05:32] Speaker 01:
I was pretty curious about that, so I went back and tracked all the boat issues.

[00:05:36] Speaker 01:
They looked under the boat.

[00:05:38] Speaker 01:
At first, I imagined there was a boat, and she was hiding under a boat, right?

[00:05:42] Speaker 01:
But then you see it's a trailer, and it's open, and they'd been there a couple times before.

[00:05:48] Speaker 01:
And she says, no, I wasn't under that boat.

[00:05:53] Speaker 01:
Why isn't that a factual issue?

[00:05:56] Speaker 00:
Because if you read Miss Ellis's deposition testimony, her statements are inherently unreasonable.

[00:06:02] Speaker 00:
And the court does not have to take facts that are clearly.

[00:06:05] Speaker 01:
OK.

[00:06:06] Speaker 01:
Why are they inherently unreasonable?

[00:06:08] Speaker 01:
I mean, she tells a story of, you know, yeah, she was drinking.

[00:06:13] Speaker 01:
She says she didn't even have a bottle with her.

[00:06:15] Speaker 01:
There's a dispute right there.

[00:06:16] Speaker 01:
She goes out.

[00:06:18] Speaker 01:
She's walking around in the rain in her PJs and her slippers.

[00:06:22] Speaker 01:
Then she's walking back to the house because then she's feeling like, well, where's she going to go?

[00:06:26] Speaker 01:
I don't know how we can judge her statements as being unreasonable when, you know, counterposed with the officers, other than to say they're basically in collision here on their statements.

[00:06:41] Speaker 00:
One example I have of just how unreasonable her statements are is that she says that the dog drug her around the yard for four minutes.

[00:06:48] Speaker 00:
That's objectively unreasonable given the other testimony provided in the case and the CAD records.

[00:06:54] Speaker 00:
Right, but that would be exactly what you would do at trial.

[00:06:57] Speaker 01:
You would cross-examine her.

[00:06:58] Speaker 01:
That doesn't necessarily say that her other statements

[00:07:04] Speaker 01:
are exaggerated or unreasonable.

[00:07:06] Speaker 01:
I mean, that's the whole point of a trial.

[00:07:10] Speaker 01:
You know, I wanted to ask you about the cases cited.

[00:07:14] Speaker 01:
The district court looked fairly heavily at Watkins, which in my mind was pretty close on point, but then you appointed to Mendoza.

[00:07:25] Speaker 01:
But if you go to the specific language in Mendoza, the court basically says you don't have, every time there's a novel factual situation or something different, that doesn't pop it out of the absence of qualified immunity.

[00:07:42] Speaker 01:
So it uses language much like Watkins.

[00:07:46] Speaker 01:
Why do you think that the Mendoza gets you home in terms of qualified immunity?

[00:07:52] Speaker 00:
Because in Mendoza, it involved a canine who was being removed from a hiding place, unlike Ann Martinez.

[00:07:59] Speaker 00:
That's a distinguishable fact.

[00:08:01] Speaker 00:
And the use of the canine was, the duration of the use of the canine was found to be appropriate in that case until they were able to secure the suspect.

[00:08:10] Speaker 00:
And that's similar to what Deputy Redding said was his reason for leaving canines up in contact with Ms.

[00:08:17] Speaker 00:
Ellis for that approximate 25 to 30 seconds.

[00:08:20] Speaker 00:
In Watkins, we were dealing with a circumstance where the officer had not been informed that there was a potential that the suspect was armed, unlike in this case.

[00:08:31] Speaker 01:
Wait, wait.

[00:08:33] Speaker 01:
The boyfriend said she's not a threat to anybody.

[00:08:38] Speaker 00:
Well, he changed his testimony on that fact.

[00:08:41] Speaker 00:
Oh, well, there we go.

[00:08:43] Speaker 00:
But again, it's not material to this court's determination of qualified immunity, because what we need to look at is whether what Deputy Redding's conduct was objectively reasonable.

[00:08:55] Speaker 02:
Then let me ask you, because I really wasn't focusing on this.

[00:08:59] Speaker 02:
It seems to me you're trying to distinguish really hard the search phase from the seizure.

[00:09:06] Speaker 02:
So let's take her walking around the yard.

[00:09:10] Speaker 02:
Is it your position that even if we agree that she was just walking around the yard, it was still not unreasonable for the dog to attack her?

[00:09:20] Speaker 00:
Yes, that's my position.

[00:09:21] Speaker 02:
Okay.

[00:09:21] Speaker 02:
And is it then further your position that there's no dispute that the officer only told the dog to search, not to bite and hold?

[00:09:33] Speaker 00:
I agree with that, yes.

[00:09:34] Speaker 02:
Well, even though the officer himself says, well, you know, why did he bite?

[00:09:41] Speaker 02:
He says that's what he's trained to do.

[00:09:43] Speaker 02:
And that's what the expert says that he's trained to do.

[00:09:47] Speaker 02:
And Redding himself says, oh, she's supposed to search and then release.

[00:09:53] Speaker 02:
But how can he release if he wasn't biting?

[00:09:57] Speaker 00:
There is always a risk, and Deputy Redding acknowledged this in his deposition, that a bite could occur as a result of a search with a canine.

[00:10:06] Speaker 00:
That's why they provide warnings at the beginning.

[00:10:08] Speaker 00:
It gives a suspect an opportunity and knowledge that that is a potential outcome here.

[00:10:15] Speaker 00:
In this particular case, what occurred was as soon as Deputy Redding saw canines up in contact with Ms.

[00:10:23] Speaker 00:
Ellis, at that point in time is when we need to analyze whether the conduct of Deputy Redding violated Ms.

[00:10:31] Speaker 00:
Ellis's constitutional rights.

[00:10:32] Speaker 01:
Could you clarify when the warning was given?

[00:10:36] Speaker 00:
It was given approximately, I think the record said around six minutes after Deputy Redding's arrival on the scene.

[00:10:43] Speaker 00:
He had consulted with fellow officers, determined that there was probable cause.

[00:10:49] Speaker 00:
He had provided the warnings before he removed K-9 ZEP from the vehicle.

[00:10:53] Speaker 01:
But then the time frame from the warning to the

[00:10:58] Speaker 01:
Apprehension and bite was how long?

[00:11:00] Speaker 01:
16 minutes.

[00:11:02] Speaker 01:
Right.

[00:11:02] Speaker 02:
Oh, wait a minute.

[00:11:03] Speaker 02:
There are two quote warnings, aren't there?

[00:11:06] Speaker 02:
One is at the beginning of the search, then the dog is recalled.

[00:11:11] Speaker 02:
He gives them a new search command and some kind of warnings.

[00:11:17] Speaker 02:
That's the way I read it, that this happens twice.

[00:11:21] Speaker 02:
I thought that was one of the arguments, although I would say,

[00:11:25] Speaker 02:
given the circumstances of it being pouring rain in the middle of the night.

[00:11:29] Speaker 02:
This is sort of like King Lear on the Heath, you know.

[00:11:33] Speaker 02:
There are such things as I know not what, and there's a dog here, but whether anybody's going to hear it.

[00:11:38] Speaker 02:
I mean, I've been on these cases where somebody is in a confined area hiding under a car, and he's going to hear you.

[00:11:45] Speaker 02:
Or the Chu case, where he's hiding in the junkyard, and you know he's going to hear.

[00:11:50] Speaker 02:
But I'm not faulting him, but to say that the

[00:11:55] Speaker 02:
person that Ms.

[00:11:56] Speaker 02:
Ellis is liable in a sense because she didn't heed the warnings.

[00:12:02] Speaker 02:
Shouldn't you have at least some evidence that she heard them?

[00:12:05] Speaker 01:
Could I just interject?

[00:12:07] Speaker 01:
Maybe you can help us.

[00:12:08] Speaker 01:
I only

[00:12:09] Speaker 01:
Recall we're in the record to have one warning, but maybe you can clear that up for us.

[00:12:13] Speaker 00:
Deputy writing testified that he gave the warnings a few times.

[00:12:17] Speaker 00:
That's at ER 570, 751 to 52, and 754 to 55.

[00:12:23] Speaker 00:
And in addition, I would point out that there is no legal authority, at least in this circuit, that requires repeat warnings, especially when a canine is on a lead.

[00:12:32] Speaker 00:
And that is Beecher v Tacoma, which is cited in our brief.

[00:12:35] Speaker 03:
isn't the point that she was a bit i mean there's at least some evidence that she was evading the police right correct and so doesn't our case law say i i thought this was the qualified immunity argument here so help me out i thought our case last said that and with if you're beating the police until you surrender uh... use of it uh... dog

[00:13:03] Speaker 03:
bring the suspect into a surrender mode is OK.

[00:13:07] Speaker 01:
I would agree with that.

[00:13:09] Speaker 01:
I thought there was a factual dispute, though, about whether she knew that the boyfriend was on the phone with 911.

[00:13:16] Speaker 01:
And so then that kind of brings into play this whole, was she fleeing law force, or was she just out there wandering around in some stupor and drunken state?

[00:13:29] Speaker 00:
But again, when we're looking at a qualified immunity analysis, we need to look at whether the conduct of Deputy Redding was objectively reasonable.

[00:13:38] Speaker 00:
Did he essentially have noticed that what he was doing, either action or inaction, violated clearly established law?

[00:13:45] Speaker 00:
And at least in this jurisdiction, there is no case law that says the deployment to search

[00:13:51] Speaker 00:
and an unattended seizure is unlawful, or that a continued duration of bite for approximately 25 to 30 seconds constitutes excessive force.

[00:14:02] Speaker 02:
Do you want to reserve?

[00:14:03] Speaker 00:
I would, please.

[00:14:03] Speaker 00:
Thank you.

[00:14:04] Speaker 02:
OK.

[00:14:04] Speaker 02:
Thank you.

[00:14:04] Speaker 02:
And just let me say that I was wrong as to, given his second warning, he gave the dog a second search command, and I was confused on that.

[00:14:35] Speaker 04:
Good morning.

[00:14:37] Speaker 04:
My name's Tom West.

[00:14:38] Speaker 04:
I represent Jenny Ellis in this matter.

[00:14:40] Speaker 04:
The judge stole my opening line.

[00:14:50] Speaker 04:
There were disputed facts galore in the case.

[00:14:53] Speaker 03:
I'm not sure you're going to get a lot of pushback on that issue.

[00:14:59] Speaker 03:
I'm interested in

[00:15:02] Speaker 03:
the qualified immunity, because, I mean, you still have to show that it was clearly established that this was a violation.

[00:15:09] Speaker 03:
And as I read our case law, until a suspect has been detained and surrendered, it's okay to use a K9 in the process.

[00:15:23] Speaker 03:
And I take it you, number one, disagree with my articulation of our

[00:15:28] Speaker 03:
of our clearly established case law.

[00:15:30] Speaker 03:
But number two, if that were true, why would there still be no qualified immunity here?

[00:15:34] Speaker 04:
Well, using a K-line is kind of a general statement.

[00:15:38] Speaker 04:
What do you use a K-line K-9 for?

[00:15:41] Speaker 04:
Are you going to use it to search?

[00:15:44] Speaker 04:
Are you going to use it to bite?

[00:15:46] Speaker 04:
Or do you have control of the K-9?

[00:15:49] Speaker 03:
But even biting seems to be OK.

[00:15:52] Speaker 03:
I think I read our case law to say even a bite from a K-9 is OK.

[00:15:57] Speaker 03:
as long as, until, it doesn't seem to be until there's a, the threat is minimized, it seems to be until there's a surrender.

[00:16:07] Speaker 03:
And I, whatever else you say about the disputes here, there was not a surrender.

[00:16:13] Speaker 03:
She may not have heard, she may not have known, she may have been wandering, all of those factual disputes may be accurate.

[00:16:22] Speaker 03:
But there was not a surrender until the canine had taken hold of her.

[00:16:29] Speaker 04:
Well, I mean, even if you assume that, when the canine took hold of her, she had surrendered.

[00:16:37] Speaker 03:
But I don't think she had.

[00:16:38] Speaker 03:
The officer then said, put your hands up.

[00:16:42] Speaker 03:
And she didn't do that.

[00:16:44] Speaker 03:
And then he came over and.

[00:16:46] Speaker 04:
Well, of course she couldn't because the dog had

[00:16:51] Speaker 04:
ripped her arm off practically, and she had her other hand on it.

[00:16:54] Speaker 03:
What was the damage here?

[00:16:56] Speaker 03:
Pardon me?

[00:16:56] Speaker 03:
What was the damage here?

[00:16:57] Speaker 04:
It was a left arm, and you may have seen the photos in the judges.

[00:17:04] Speaker 03:
Is there permanent damage?

[00:17:05] Speaker 04:
Yes.

[00:17:06] Speaker 04:
Oh, yes.

[00:17:07] Speaker 04:
Nerve damage and muscle damage.

[00:17:09] Speaker 02:
But at a minimum, she couldn't raise the hand that the dog had.

[00:17:13] Speaker 04:
Yeah, she could.

[00:17:14] Speaker 04:
Well, in a way, the dog prevented her from surrendering if you're going to use this

[00:17:18] Speaker 04:
hands up as being a surrender.

[00:17:21] Speaker 04:
So she was prevented from doing that.

[00:17:26] Speaker 04:
So I don't really understand.

[00:17:28] Speaker 04:
I mean, this is something I did, and I just wanted to mention, there are three volumes of this.

[00:17:34] Speaker 04:
This is something new.

[00:17:35] Speaker 04:
I looked at it.

[00:17:37] Speaker 04:
It's Civil Rights and Civil Liberties Litigation by NAMOD, N-A-H-M-O-D, there's a volume too, talks about

[00:17:44] Speaker 04:
qualified immunity in a search situation.

[00:17:55] Speaker 04:
I'm sorry I even looked at it.

[00:17:56] Speaker 04:
I it is They're all over the place the districts the the Supreme Court You know and the Supreme Court is almost saying unless we say It's not qualified immunity.

[00:18:12] Speaker 04:
It is qualified immunity until we've ruled on it, which is wrong of course and would take all the authority from

[00:18:19] Speaker 04:
you people in determining what factually would result in finding that there is no qualified immunity.

[00:18:29] Speaker 04:
But here, in this particular case, we have a situation where the facts are disputed, obviously, and the judge even found bad faith

[00:18:41] Speaker 04:
Evidence of bad faith on the part of the officer.

[00:18:45] Speaker 03:
So can we let's talk about that because that basically goes to this state State law immunity question, right?

[00:18:53] Speaker 04:
Well, it does, of course.

[00:18:57] Speaker 03:
But I think that's... You think it goes to qualified immunity as well?

[00:19:01] Speaker 03:
Well, I think so.

[00:19:02] Speaker 03:
If there... But what's the case?

[00:19:04] Speaker 03:
Tell me the cases.

[00:19:06] Speaker 03:
Watkins seems to be what you rely on, right?

[00:19:08] Speaker 03:
Right.

[00:19:08] Speaker 03:
Do you rely on any other cases for the clearly established law?

[00:19:12] Speaker 03:
Well, first of all, if there are disputed facts... Right, but the disputed facts have to go to... If there's a disputed fact, it has to be...

[00:19:23] Speaker 03:
given to your client.

[00:19:25] Speaker 03:
I give you that.

[00:19:27] Speaker 03:
Under those facts, what is our clearly established law that you're relying on?

[00:19:30] Speaker 03:
It seems to be Watkins.

[00:19:32] Speaker 04:
Well, basically, what I have right here in front of me is, and I'll just quote it, and this is from Johnson.

[00:19:47] Speaker 04:
The Supreme Court explained that any portion

[00:19:50] Speaker 04:
of a district court summary judgment order that, though entered in a qualified immunity case, determines only a question of evidence sufficiency, which facts a party may or may not be able to... Let me just stop you.

[00:20:04] Speaker 03:
You're not answering my question.

[00:20:07] Speaker 03:
My question is, what is the clearly established law that's being violated here?

[00:20:17] Speaker 03:
the use of excessive force under these particular... What is the case that makes clear that in this particular case, the use of force was excessive?

[00:20:26] Speaker 04:
Well, we cited that in our brief, I know.

[00:20:29] Speaker 03:
Cited Watkins.

[00:20:30] Speaker 03:
Explain to me why Watkins clearly establishes that the force here was excessive.

[00:20:38] Speaker 04:
Well, I can just use the facts of the case.

[00:20:40] Speaker 04:
There was no basis for the dog being allowed to attack this woman who was even unaware that the police were involved.

[00:20:53] Speaker 03:
You're not answering my question.

[00:20:55] Speaker 03:
And I think that's where I'm having a problem with the clearly established is you haven't really articulated it.

[00:21:02] Speaker 03:
You didn't do that in your brief, and that's why we're here.

[00:21:06] Speaker 03:
You may have a constitutional violation, but you still have to get past the clearly established prong.

[00:21:14] Speaker 03:
You didn't do it in your brief, and you're not doing it now.

[00:21:17] Speaker 03:
And I want to know why Watkins clearly establishes that the use here was wrong.

[00:21:22] Speaker 03:
go through the facts of Watkins, tell me how it's here.

[00:21:25] Speaker 03:
Because I read our case law to say, until she's surrendered, they can do this, that the officer can do this.

[00:21:33] Speaker 03:
And you haven't really disabused me of that notion.

[00:21:36] Speaker 04:
OK.

[00:21:36] Speaker 04:
Well, all I can say is, under the circumstances, and you're asking me to cite the law, you've got to stop.

[00:21:44] Speaker 03:
I'm asking you to cite the law because that's what you need to do.

[00:21:47] Speaker 03:
You're up here arguing a factual dispute.

[00:21:49] Speaker 03:
I give you that.

[00:21:51] Speaker 03:
I want to know the law and why it's clearly established.

[00:21:54] Speaker 03:
And I've asked you five times, and you can't answer the question.

[00:21:57] Speaker 04:
All right.

[00:21:57] Speaker 04:
And you've already indicated it's not in our brief.

[00:22:00] Speaker 04:
It's not.

[00:22:01] Speaker 03:
You cite to Watkins, but you don't explain Watkins.

[00:22:05] Speaker 03:
You don't walk through it.

[00:22:06] Speaker 03:
So I want to hear from you why this is clearly established.

[00:22:11] Speaker 04:
Well, if I could, I would, and I should.

[00:22:16] Speaker 04:
But at the moment, I'm at a loss, to be honest with you.

[00:22:19] Speaker 03:
But doesn't that sink your case?

[00:22:21] Speaker 04:
No.

[00:22:22] Speaker 03:
Well, you haven't explained why this is clearly established.

[00:22:25] Speaker 03:
What is the clearly established law?

[00:22:27] Speaker 03:
If you can't show clearly established law, you're done.

[00:22:30] Speaker 03:
They get qualified immunity.

[00:22:32] Speaker 03:
End of story.

[00:22:33] Speaker 03:
And you're telling me you can't give me a reason for why this is clearly established.

[00:22:40] Speaker 02:
Is it enough that the dog continued to bite for arguably 40 plus seconds?

[00:22:46] Speaker 02:
That's a dispute also.

[00:22:49] Speaker 04:
The officer did not call off the dog But I and I was going to talk about the facts that the judge wanted me to give him the law But I was what I was saying and about to say is the dog continue to bite Isn't that the best law for you from Watkins?

[00:23:06] Speaker 02:
Isn't that where you need to get under?

[00:23:08] Speaker 04:
Well, if the if the if the dog continued to bite and was allowed to bite after what point?

[00:23:17] Speaker 04:
Well, after she was restrained.

[00:23:19] Speaker 04:
Now, if you're saying that she had to surrender first, but was unable to surrender because she couldn't lift her hands to indicate she was surrendering.

[00:23:29] Speaker 03:
Well, he wasn't biting both hands.

[00:23:31] Speaker 03:
What is the indication that she actually, if the dog was released, that she wouldn't have tried to escape?

[00:23:37] Speaker 03:
The officers were not there on the scene.

[00:23:39] Speaker 03:
Does Watt can stand for the proposition that the officer needs to release the dog until he gets there to actually detain her?

[00:23:48] Speaker 04:
There was no evidence that she was trying to escape anything.

[00:23:52] Speaker 03:
In fact, the evidence was... Well, there's clearly evidence that she was trying to escape.

[00:23:54] Speaker 03:
It's disputed.

[00:23:55] Speaker 03:
Pardon me?

[00:23:55] Speaker 01:
Well, that's disputed.

[00:23:56] Speaker 01:
It's disputed.

[00:23:57] Speaker 01:
Well, yeah.

[00:23:58] Speaker 01:
I think you seem to be at a loss for the cases cited in your brief, but what I think the county did well is they laid out some of the factors, which is,

[00:24:09] Speaker 01:
Basically, is there an immediate threat to the officers?

[00:24:14] Speaker 01:
What's the severity of the crime?

[00:24:17] Speaker 01:
Whether she, in this case, is actively resisting arrest, and that's what, of course, Judge Nelson is asking about.

[00:24:24] Speaker 04:
And none of those things existed from a factual standpoint, based on whether the decision- Tell me why resisting arrest doesn't exist.

[00:24:31] Speaker 04:
How would she resist arrest?

[00:24:35] Speaker 04:
She wasn't resisting arrest.

[00:24:37] Speaker 04:
She actually was walking around and was surprised that someone had called the police, but here she was wet and dripping and drunk, and decided to go back to her home, which is a place of safety for her,

[00:24:53] Speaker 04:
And then she's immediately attacked by the dog.

[00:24:58] Speaker 04:
There is no indication that she was trying to evade the police because she didn't know the police were there.

[00:25:05] Speaker 03:
Is your argument that they never should have used a dog in the first place?

[00:25:10] Speaker 03:
Or is your argument that they allowed the bite to last too long?

[00:25:14] Speaker 04:
Well, I would say that they probably didn't need to use the dog, but if they did, they should have controlled the dog and they should have given her warnings.

[00:25:23] Speaker 04:
The only warning they gave her was when she wasn't even there to hear it.

[00:25:29] Speaker 03:
But isn't that viewed as to the objective officer?

[00:25:35] Speaker 03:
I mean, why would the officer assume that they thought she was trying to evade them?

[00:25:40] Speaker 03:
I know there's a factual dispute on whether she was or not.

[00:25:43] Speaker 03:
they give a warning, what more did they need to do?

[00:25:46] Speaker 03:
Did they need to go get a blow horn and give the warning?

[00:25:49] Speaker 03:
Did they need to get consent from her and say, please tell us you've heard the warning?

[00:25:54] Speaker 04:
No, no, I'm not saying that at all.

[00:25:55] Speaker 04:
I'm saying he properly did a warning initially saying, come on out, if he thought that she was in a particular location, but she wasn't there.

[00:26:06] Speaker 04:
She was a block away.

[00:26:07] Speaker 03:
But doesn't that go to the point that maybe they needed to use a dog then?

[00:26:13] Speaker 03:
because they couldn't find her.

[00:26:16] Speaker 04:
Well, they didn't really look.

[00:26:18] Speaker 04:
I mean, they just stayed there at the home and eventually she was called and she talked to a friend and she talked to her son, I think, and then she walked back.

[00:26:31] Speaker 04:
So that's hardly evidence of evading the police.

[00:26:36] Speaker 04:
So I don't understand.

[00:26:38] Speaker 03:
How long, in your view,

[00:26:41] Speaker 03:
We have this dispute about how long the dog bite was.

[00:26:44] Speaker 03:
We don't have the video camera.

[00:26:46] Speaker 03:
How long was the excessive force?

[00:26:48] Speaker 03:
Was it all 41 seconds?

[00:26:50] Speaker 03:
Was it 20 seconds?

[00:26:52] Speaker 03:
How long was the excessive force?

[00:26:55] Speaker 04:
Well, as soon as he bit her,

[00:26:59] Speaker 03:
Then he should have called it off at that time.

[00:27:00] Speaker 04:
Oh, sure.

[00:27:01] Speaker 04:
There was no reason to have her bite.

[00:27:04] Speaker 04:
She wasn't threatening anyone.

[00:27:06] Speaker 04:
The officer had been told she wasn't a threat.

[00:27:10] Speaker 03:
I guess this is my point.

[00:27:13] Speaker 03:
As I read the cases, until the officer was objectively convinced that she had surrendered, and I know you're saying she couldn't have raised her hand.

[00:27:21] Speaker 03:
whatever, so say that couldn't happen, but doesn't the officer have to have an assurance that she has objectively surrendered at that point before the dog is released?

[00:27:34] Speaker 03:
If that's the law, do you still win here because there's no qualified immunity?

[00:27:40] Speaker 03:
Did the officer keep the dog on the bite?

[00:27:46] Speaker 03:
after it was objectively reasonable to assume that she had... I don't think there's any question about it.

[00:27:53] Speaker 03:
Why?

[00:27:54] Speaker 03:
Tell me why.

[00:27:55] Speaker 04:
Because she couldn't do anything.

[00:27:57] Speaker 04:
She was under the control of the dog.

[00:28:00] Speaker 03:
How long was the dog on the bite after the officer actually was there present with her?

[00:28:06] Speaker 04:
Well, I'm sure for her, it seemed like hours.

[00:28:09] Speaker 02:
It was arguably just, I mean, as I read the record, and perhaps the council can help us,

[00:28:14] Speaker 02:
The officer comes around the trees very quickly, just a few seconds was what I saw, that he sees the dog and then he gets into the agitation.

[00:28:27] Speaker 02:
But of course he, taking the evidence on that side, he uses a dog who is trained to bite people no matter what.

[00:28:36] Speaker 04:
Right.

[00:28:37] Speaker 04:
And at that point in time, why is he doing that?

[00:28:41] Speaker 04:
All he's doing, remember, he started out as a search, and then all of a sudden it becomes a biting situation.

[00:28:50] Speaker 01:
Do you think it matters how long the dog was biting your client?

[00:28:56] Speaker 04:
Not really.

[00:28:58] Speaker 04:
I think the fact that the dog is biting my client under those circumstances certainly deprives her of her rights or constitutional rights not to be attacked like that under those circumstances because the circumstances that existed don't support that type of police activity.

[00:29:19] Speaker 04:
It's a disputed fact whether she's a threat to anyone.

[00:29:22] Speaker 03:
But where's the case law that says that?

[00:29:24] Speaker 03:
Again, that may be correct for the constitutional analysis, but where's the case law that clearly establishes that?

[00:29:34] Speaker 03:
Well, if we made reference... Because Watkins doesn't establish, I don't think, at least the position you just said, which is they shouldn't have used the dog at all.

[00:29:44] Speaker 03:
Right, there was no reason to.

[00:29:46] Speaker 03:
But Watkins doesn't establish that.

[00:29:48] Speaker 04:
Well, Watkins may not, but this is a different case.

[00:29:52] Speaker 04:
And all these cases that I saw in this book are all fact-specific.

[00:29:59] Speaker 04:
They're all related to particular facts that relate to this claim of qualified immunity.

[00:30:06] Speaker 04:
And you have to determine whether under these facts and circumstances, qualified immunity would apply.

[00:30:12] Speaker 03:
Can I just ask you one more question on the claims?

[00:30:15] Speaker 03:
So you, you, you sort of alluded to bad faith here.

[00:30:19] Speaker 03:
I thought the bad faith was largely predicated on an officer's comment that we will show.

[00:30:25] Speaker 03:
We will teach her a lesson, right?

[00:30:28] Speaker 04:
Yes, that was part of it.

[00:30:29] Speaker 03:
That was not the canine handlers comment, correct?

[00:30:33] Speaker 03:
No, they said we will teach her a lesson.

[00:30:36] Speaker 03:
I know, but the canine officer was not there at that time.

[00:30:39] Speaker 03:
Did not hear that.

[00:30:40] Speaker 04:
Well, you can't assume that they didn't communicate about what the situation was.

[00:30:44] Speaker 03:
Is there facts to suggest that the canine handler was trying to, quote, teach her a lesson or was aware that that had even been said?

[00:30:54] Speaker 04:
Well, it certainly was in the mind of the judge who decided that the

[00:31:02] Speaker 04:
testimony of that officer was not credible and you know he wasn't being truthful and when you have things like that that occur in a trial or pre-trial then you've got to wonder what his really his intent was and whether he was acting in bad faith and and

[00:31:26] Speaker 04:
releasing the dog, which is what he did, either through his incompetence or what, I don't know, because if you recall, the dog senses were heightened when she was in the area.

[00:31:45] Speaker 04:
You recall that.

[00:31:47] Speaker 04:
So what does he do?

[00:31:48] Speaker 04:
Does he control the dog?

[00:31:49] Speaker 04:
Does he say, come on out or the dog will bite?

[00:31:52] Speaker 04:
No, the dog takes off.

[00:31:55] Speaker 04:
It's all slack.

[00:31:57] Speaker 04:
It's a 30-foot leash.

[00:31:59] Speaker 04:
And then by the time he comes around to find the dog, it's latched onto my client's arm.

[00:32:05] Speaker 04:
He didn't control the dog like he should have.

[00:32:08] Speaker 04:
And then after that, I mean, that's one thing, you know, the dog bit.

[00:32:14] Speaker 04:
But then he allowed the dog to continue to bite.

[00:32:19] Speaker 04:
And to say, and this is where I think the credibility of the officer is questioned by the district court judge, he said, well, she didn't surrender.

[00:32:30] Speaker 04:
She didn't raise her hands up and indicate she was surrendering, so he continued to bite.

[00:32:36] Speaker 04:
That borders on absurdity, and frankly- And how long was that period?

[00:32:41] Speaker 04:
Well, um, how long does it take a dog to rip up somebody's arm?

[00:32:45] Speaker 04:
40 seconds, 30 seconds.

[00:32:47] Speaker 03:
That's not my question.

[00:32:48] Speaker 03:
That's not my question.

[00:32:49] Speaker 03:
Council.

[00:32:50] Speaker 03:
My question is how long after the officer said, you know, surrender was, did the bite and the last now judge box, I think has suggested that it might've been still, I guess, 2015 to 20 seconds.

[00:33:06] Speaker 03:
Is that accurate?

[00:33:08] Speaker 04:
Well, first of all, I don't know that anyone knows the exact, they weren't counting the seconds while the... If we look at the dispatch stuff, that's where we get the 40-some seconds from at the high end.

[00:33:21] Speaker 02:
I think the 15 to 20 is one of the...

[00:33:24] Speaker 02:
is from one of the witnesses, but it's, you know, you're right, you can tear your arm off in five seconds, but we've got a range in this area, you know, if that is, if that's what important.

[00:33:36] Speaker 04:
Well, I think it was long enough, excuse me for interrupting, but to get to your point, I think it's certainly long enough for him to pull the dog off and not allow the dog to bite her anymore.

[00:33:45] Speaker 02:
He clearly decided not to do that because he gives his reasons.

[00:33:49] Speaker 02:
That is, he says that I told her to raise her

[00:33:53] Speaker 02:
and she didn't, then we can decide whether that's a reasonable statement or not.

[00:33:57] Speaker 02:
But that's where it starts, isn't it?

[00:34:00] Speaker 04:
Yeah, and we don't even know if he did say that.

[00:34:03] Speaker 04:
But his testimony is questionable throughout, and him saying surrender or something like that, we're not sure that was even said.

[00:34:13] Speaker 02:
So does she say that she heard that?

[00:34:16] Speaker 04:
No.

[00:34:18] Speaker 04:
She didn't hear anything.

[00:34:19] Speaker 04:
She's busy fighting off a dog.

[00:34:21] Speaker 04:
She just doesn't want to get injured any more than she already is.

[00:34:27] Speaker 04:
And then, of course, the officer pulls her out from under the boat with the dog.

[00:34:32] Speaker 02:
Well, he only does if you take their facts.

[00:34:34] Speaker 02:
I thought your facts are she wasn't under the boat.

[00:34:37] Speaker 04:
Well, what happened was she was in the yard when she was attacked.

[00:34:43] Speaker 04:
It's reasonable to assume that she's trying to get away from the dog.

[00:34:47] Speaker 04:
And where she ended up might have been under the boat.

[00:34:51] Speaker 04:
We don't know.

[00:34:52] Speaker 04:
At this point, we're all speculating.

[00:34:56] Speaker 02:
It is speculation at this point.

[00:34:58] Speaker 02:
One of the other officers says he sees them out in the yard on the grass.

[00:35:03] Speaker 02:
So the whole boat, I mean, it's sort of going both ways.

[00:35:06] Speaker 01:
Sort of a bogus boat issue here.

[00:35:09] Speaker 04:
Yes.

[00:35:09] Speaker 03:
In a way, you're right.

[00:35:10] Speaker 03:
You're right.

[00:35:11] Speaker 03:
All right.

[00:35:11] Speaker 03:
Well, look, we've taken you well over.

[00:35:15] Speaker 04:
And I apologize for not being able to say something specific about the law, but these things are so fact-specific as they relate to qualified immunity.

[00:35:28] Speaker 03:
We'll go back and take a look at it.

[00:35:29] Speaker 03:
We have your argument.

[00:35:30] Speaker 03:
So thank you, counsel.

[00:35:31] Speaker 04:
Thank you.

[00:35:32] Speaker 03:
We'll give you rebuttal time.

[00:35:44] Speaker 01:
Council have a question with regard to the state law claim on immunity under the statute.

[00:35:52] Speaker 01:
Do you think it's possible to have qualified immunity

[00:36:00] Speaker 01:
but also for the officer to not have qualified immunity, excuse me, but for the officer to have immunity under the state statute, or do they rise and fall together?

[00:36:11] Speaker 00:
I do not think they rise and fall together.

[00:36:13] Speaker 00:
I think the standard is different between the two of them.

[00:36:17] Speaker 00:
I would like to take all of these facts that have kind of come out today in the light, of course, most favorable to Ms.

[00:36:23] Speaker 00:
Ellis as the court is required to do.

[00:36:25] Speaker 00:
Let's assume that the contact occurred in the yard and lasted for 41 seconds.

[00:36:30] Speaker 00:
We still need to evaluate the qualified immunity analysis under whether Deputy Redding's conduct at that point in time was objectively reasonable.

[00:36:41] Speaker 00:
And the case law, the controlling precedent in this jurisdiction, says that what he encountered

[00:36:46] Speaker 00:
at that time that he saw contact was objectively reasonable.

[00:36:52] Speaker 00:
We cited numerous cases in our brief.

[00:36:55] Speaker 00:
The Miller case, where a bite of a duration of 45 to 60 seconds, where a suspect had been ignoring officer warnings and hiding in the woods.

[00:37:04] Speaker 00:
The Hernandez case, a bide of almost one minute, did not violate clearly established law.

[00:37:10] Speaker 00:
The Judge case, a bide of over two and a half minutes until this- Those had other circumstances.

[00:37:17] Speaker 00:
They did.

[00:37:17] Speaker 01:
And that's why I think both Mendoza and Watkins tell us to go through this litany of issues.

[00:37:25] Speaker 01:
and why you're not going to have to have a case exactly like this with some lady near or not near a boat who got bit by a dog.

[00:37:33] Speaker 01:
Neither the Supreme Court nor the Ninth Circuit demands that kind of specificity, right?

[00:37:39] Speaker 00:
They do not.

[00:37:40] Speaker 00:
I agree with the court on that fact.

[00:37:42] Speaker 00:
But we do need to look, ultimately, when we're talking about the seizure and the duration of the seizure, at the Graham factors, which we really have hardly even discussed here today.

[00:37:51] Speaker 00:
And I heard some comments that,

[00:37:54] Speaker 03:
But let's look at the grand factor, because I think the only grand factor that really is in your camp here, and it may or may not be enough for qualified immunity, is the lack of surrender.

[00:38:07] Speaker 03:
I mean, because I'm not so sure about the risk of harm.

[00:38:13] Speaker 03:
Do you think that that supports you?

[00:38:16] Speaker 00:
I think it's a significant factor.

[00:38:19] Speaker 00:
Why?

[00:38:19] Speaker 03:
I mean, they were told

[00:38:22] Speaker 03:
that she didn't have a gun.

[00:38:24] Speaker 03:
She had a bottle of alcohol, apparently.

[00:38:27] Speaker 00:
They were told, and she disputes this, that she left the house with a bottle of alcohol.

[00:38:32] Speaker 00:
We acknowledge that that is a disputed fact, whether she did or not.

[00:38:35] Speaker 00:
But the question for the court is what did Deputy Redding know at the time he made the decisions that he did or did not?

[00:38:42] Speaker 00:
And he testified about DV calls being inherently dangerous.

[00:38:46] Speaker 00:
DV calls are to be considered in an excessive force case.

[00:38:49] Speaker 00:
They're included in the pattern jury instructions, for example, as a factor that the jury is to consider when evaluating whether the force used is excessive or not.

[00:39:00] Speaker 00:
So to discount the fact that this was a domestic violence case.

[00:39:03] Speaker 03:
Okay, that's fair.

[00:39:04] Speaker 03:
To look at what had happened.

[00:39:07] Speaker 03:
But I mean, I guess maybe I'm myopically focusing on the surrender issue.

[00:39:12] Speaker 03:
I mean, is that a fair?

[00:39:14] Speaker 03:
I mean, tell me what your view is on the surrender issue.

[00:39:17] Speaker 00:
At the time that the surrender occurred, surrender or seizure, I don't know if the court sees those as.

[00:39:23] Speaker 03:
I actually view them as differently.

[00:39:26] Speaker 03:
OK.

[00:39:26] Speaker 03:
I guess I need to look at the case a little more clearly.

[00:39:28] Speaker 00:
Well, and I can't cite.

[00:39:30] Speaker 00:
I don't know of cases that talk about, well,

[00:39:34] Speaker 00:
What I can say is that I think at this point in time they're the same point in time because it's when I think it's when Deputy Redding sees canines up in contact with miss Ellis that is when the analysis occurs Regarding whether there was clearly what's the bet?

[00:39:51] Speaker 03:
What is your position on what that time frame is?

[00:39:54] Speaker ?:
I

[00:39:54] Speaker 00:
Well, my position is that it was 25 to 30 seconds in the record, but taking... When he saw it, from when he saw the dog... Until removal.

[00:40:03] Speaker 03:
Until removal.

[00:40:03] Speaker 00:
But let's assume it's 41 seconds.

[00:40:05] Speaker 03:
Could he have released it earlier?

[00:40:07] Speaker 03:
I guess he could have.

[00:40:08] Speaker 03:
If he had given the command, the dog would have released.

[00:40:10] Speaker 00:
He could have, and as soon as he gave the command, the dog released.

[00:40:13] Speaker 01:
He testified, and it is not... Right, but he went through some mental process to not do it before that.

[00:40:20] Speaker 01:
He did, and he explained- And that process seems to be at odds, seems to be materially disputed facts that underlie that.

[00:40:29] Speaker 01:
I mean, I know why he said what he said.

[00:40:31] Speaker 01:
Judge didn't give much credence given the whole history of his testimony, but we'll give him credit for what he said, but you've got to give her credit for what she said.

[00:40:40] Speaker 00:
But what she says about that period of time is that she doesn't have a recollection, but specifically at ER- Talking about the timeframe.

[00:40:48] Speaker 00:
She said it could be... Right.

[00:40:51] Speaker 00:
Four minutes.

[00:40:51] Speaker 00:
Sure, I understand that there's a dispute, but again, I want to direct the court back to what the qualified immunity analysis is.

[00:40:57] Speaker 00:
And it is a determination of whether the conduct, the action or inaction by Deputy Redding was violating Ms.

[00:41:06] Speaker 00:
Ellis's constitutional right and whether there was clearly established precedent that would give him as an objectively reasonable officer on the scene.

[00:41:14] Speaker 00:
to know that his conduct was unconstitutional.

[00:41:18] Speaker 02:
I guess the way I would put it to you, and I'd be happy to get your answer, that on the view of the facts, he's using a dog that is trained to bite anybody that he finds in a circumstance where

[00:41:34] Speaker 02:
on her view of the facts, she is not fleeing, she is not a threat, and has a crime that is no severity, whereas in Hernandez, you have an actual flight, he's fleeing DUI, they know that that's a problem, and so they say under those circumstances, it's okay, or he has qualified immunity, whereas here, if you take all of the other circumstances,

[00:42:04] Speaker 02:
Together, you have this drunk woman wandering around and reading, using a dog that will bite anybody that finds them that the dog finds.

[00:42:14] Speaker 02:
That's what happens.

[00:42:16] Speaker 00:
And I may get myself in trouble here going out on a limb.

[00:42:20] Speaker 00:
I asked the court whether there's a bit of implicit bias in that analysis, because what if this was a Mr. Ellis who had assaulted a Mrs. Van Kirk and her 15-year-old daughter and left into the dark rain with a bottle incredibly intoxicated?

[00:42:37] Speaker 00:
Would the court, would we be here today?

[00:42:40] Speaker 02:
Is that what a jury might well find?

[00:42:45] Speaker 02:
I mean, assuming that you have to go to trial, if you did, you may very well win this case.

[00:42:52] Speaker 02:
But on the other hand, when people see Ms.

[00:42:56] Speaker 02:
Ellis on the stand and see Deputy Redding on the stand, they might view the things that the district judge, who had all the facts, thought were reasonable, were in fact reasonable.

[00:43:08] Speaker 02:
On the other hand, they may find that they're not.

[00:43:11] Speaker 00:
And just to summarize, it's my position that the court does have jurisdiction to establish whether qualified immunity exists because the relevant and material disputed facts to the qualified immunity analysis are not actually in dispute that period of time from seizure through release.

[00:43:29] Speaker 00:
So thank you.

[00:43:30] Speaker 03:
Okay, thank you.

[00:43:31] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:43:33] Speaker 03:
The case is now submitted and that concludes our arguments for that this morning.