[00:00:02] Speaker 03:
Ms.

[00:00:02] Speaker 03:
McGee.

[00:00:03] Speaker 00:
Good morning, Your Honors.

[00:00:04] Speaker 00:
My name is Kendra McGee.

[00:00:05] Speaker 00:
I'm an attorney for the City of San Jose, and I represent the appellant individual officers in this case.

[00:00:13] Speaker 00:
Your Honors, this case turns on the second prong of the qualified immunity analysis.

[00:00:19] Speaker 00:
That is, whether the right at issue was clearly established such that an officer, a reasonable officer, would know that his conduct violated the Constitution, the Fourth Amendment in particular,

[00:00:30] Speaker 00:
in the circumstances that he faced on the evening of his encounter with the plaintiff.

[00:00:36] Speaker 03:
Can I ask a threshold question before we get there?

[00:00:39] Speaker 03:
I did not see an argument by the city that these officers should be treated differently, meaning perhaps Officer Don, there's a different analysis because he was the officer in charge of the dog, right?

[00:00:58] Speaker 00:
That is correct, Your Honor.

[00:00:59] Speaker 00:
And this entire case turns on the actions of Officer Dunn because the excessive force in this case, as a reminder, is the duration of the dog bite.

[00:01:09] Speaker 03:
Right, but I didn't see the city arguing that the other officers should be entitled to qualified immunity simply because they couldn't have participated because they didn't have any control over the dog.

[00:01:23] Speaker 00:
Well, Your Honor, there is a footnote, I believe, in our brief that the other officers are only in this case based on failure to intervene.

[00:01:34] Speaker 00:
So in order for them to be held liable in this case, Officer Dunn would first have to be held liable for the excessive force.

[00:01:40] Speaker 00:
Well, I understand that.

[00:01:41] Speaker 03:
But if we find Officer Dunn liable, I think you have foreclosed any argument that we could

[00:01:48] Speaker 03:
find the other officers non-liable.

[00:01:49] Speaker 03:
I think you've presented this.

[00:01:51] Speaker 03:
I'm giving you an opportunity to rebut this, but I think you presented this case as they either all get it or none of them get it.

[00:01:58] Speaker 00:
Well, I think, Your Honor, if Officer Dunn is found liable, then the case probably could proceed on the intervention claim against the other officers based on the district court's current ruling.

[00:02:11] Speaker 00:
But that's not really the crux of the appeal here.

[00:02:14] Speaker 00:
The crux of the appeal here

[00:02:16] Speaker 00:
is focused on the actions of Officer Dunn.

[00:02:19] Speaker 00:
And I submit to this court that there is no case from this circuit or otherwise, frankly.

[00:02:26] Speaker 03:
What about the Miller case?

[00:02:27] Speaker 00:
The Miller case.

[00:02:29] Speaker 00:
The Miller case actually.

[00:02:30] Speaker 03:
That is a case.

[00:02:31] Speaker 00:
It is a case.

[00:02:32] Speaker 00:
And it benefits the defendant's arguments here.

[00:02:37] Speaker 00:
If anything, the Miller case is important and actually probably the most similarly.

[00:02:43] Speaker 00:
I'm sorry.

[00:02:43] Speaker 03:
I meant Watkins.

[00:02:44] Speaker 03:
I mean, Miller.

[00:02:45] Speaker 03:
Miller, you're probably right on Miller.

[00:02:47] Speaker 03:
I meant Watkins.

[00:02:47] Speaker 03:
I think Watkins is the more applicable case.

[00:02:50] Speaker 00:
Sure.

[00:02:51] Speaker 00:
Let's shift to Watkins.

[00:02:54] Speaker 00:
Watkins is substantially dissimilar from the facts

[00:02:58] Speaker 00:
that are presented in this case.

[00:03:01] Speaker 00:
It is certainly not similar enough to warrant the dismissal or denial of qualified immunity.

[00:03:10] Speaker 00:
In Watkins, you had a situation where the canine handler had view of the plaintiff, pulled him physically out of the vehicle that he was hiding in while the dog was still engaged, and while other officers were surrounding him with their guns pointing, standing idly by, according to that case, doing nothing more than pointing their guns.

[00:03:33] Speaker 00:
That is not this case.

[00:03:35] Speaker 00:
In this case, Officer Dunn had to navigate a narrow staircase in the dark up to the top second level of this property that had not been searched in addition to the fact that the plaintiff had not been searched.

[00:03:49] Speaker 03:
Okay, so you pointed out some factual differences, which is fair.

[00:03:52] Speaker 03:
We can look at those.

[00:03:54] Speaker 03:
But the holding in Watkins, which the officers are presumed

[00:03:59] Speaker 03:
to have read and understand and guide their future behavior is that once the defendant or once the individual who's being arrested has surrendered and is under control,

[00:04:16] Speaker 03:
you cannot continue the bite.

[00:04:18] Speaker 03:
And so I don't understand how there's not a factual dispute here if we look to that statement of law, because he surrendered even before the dog bite happened.

[00:04:33] Speaker 03:
And then at that point, he's down on the ground.

[00:04:36] Speaker 03:
I mean, how far did they need to go to where they said he was under control?

[00:04:43] Speaker 00:
Sure, Your Honor.

[00:04:43] Speaker 00:
Well, I think those are key differences in the sense that Watkins would not have advised Officer Dunn that what he did, let me back up.

[00:04:54] Speaker 00:
It would not have advised Officer Dunn that he needed to remove that dog any sooner than he did.

[00:05:00] Speaker 00:
And the element that's missing here and the standard that has come out of all these cases from Mendoza all the way through 2021 and Hernandez is exactly what Your Honor has just articulated.

[00:05:12] Speaker 00:
that you cannot keep a dog on an attack as long as the suspect is fully surrendered and, and the word and here is very important, under complete control.

[00:05:23] Speaker 01:
Is it right to say that the city's position is that this individual was not surrendered and under control until he was handcuffed?

[00:05:35] Speaker 00:
Well, the district court has pointed out a question of disputed fact.

[00:05:38] Speaker 01:
I understand that.

[00:05:39] Speaker 01:
I'm just asking for your position, your client's position on when that standard was met here.

[00:05:43] Speaker 00:
That is, in fact, our position.

[00:05:46] Speaker 00:
But even more pointedly, our position.

[00:05:48] Speaker 04:
So that they have to be handcuffed is the point at which a dog bite can be released.

[00:05:53] Speaker 04:
That's the city's position.

[00:05:55] Speaker 00:
No, Your Honor.

[00:05:55] Speaker 00:
I don't think that a suspect has to be handcuffed in order to be under complete control.

[00:06:00] Speaker 04:
I would agree because Watkins, you know, so the Watkins panel rejected the officer's argument there that because he had not shown his hands, he was not sufficiently under control.

[00:06:13] Speaker 04:
and the panel sent it back and said, those are triable questions.

[00:06:18] Speaker 04:
So I would agree with you that handcuffing a suspect is not the standard by which we determine the duration of the dog bite.

[00:06:26] Speaker 04:
Here you have circumstances that at best are triable.

[00:06:31] Speaker 04:
He's laying prone on his belly.

[00:06:33] Speaker 04:
The video shows that the dog has stretched out his arms.

[00:06:38] Speaker 04:
There are officers with guns pointed at the suspect, and he contends from there on there's another 20 seconds or more in which the dog continued to bite.

[00:06:49] Speaker 04:
Why isn't that enough to at least let a jury decide whether he had surrendered and was under officer control?

[00:06:55] Speaker 00:
Well, there are two issues there that are wrong and unsupported by the evidence.

[00:07:01] Speaker 00:
One is this idea that the other officers, the first two officers up the stairs, were simply idly standing by having their guns pointed at him while the dog was engaged.

[00:07:11] Speaker 04:
I don't think it's idle.

[00:07:12] Speaker 04:
I think they had taken charge of the situation.

[00:07:14] Speaker 04:
They see that he's unarmed.

[00:07:16] Speaker 04:
He's laying prone on his belly.

[00:07:18] Speaker 04:
I don't think it's idle.

[00:07:20] Speaker 04:
Right.

[00:07:20] Speaker 04:
They're serving a function in making sure that the dangerous situation or any risk has been mitigated.

[00:07:28] Speaker 04:
But what is the case law that you would rely on for the supposition that something more needs to happen as a matter of law in order to entitle the officers to qualified immunity?

[00:07:41] Speaker 00:
Well, I think if we go back to Miller,

[00:07:44] Speaker 00:
In that case, this court specifically held that it was reasonable for the officer to keep the canine on the bite even after the suspect in that case had come out of the bushes and showed his hands.

[00:07:56] Speaker 00:
And the rationale there was that the threat that had initially presented itself, that is that this could be an armed suspect or a suspect that could arm himself in this dark, hidden location, was still present until the canine handler

[00:08:11] Speaker 00:
can ensure that that person is not armed and cannot reach for a weapon.

[00:08:16] Speaker 04:
Miller was the case in the woods?

[00:08:19] Speaker 00:
It was.

[00:08:20] Speaker 04:
So my understanding was that the dog was released in Miller, found the suspect, and it took 45 to 60 seconds for the officers to arrive there.

[00:08:30] Speaker 04:
and within moments of seeing or seconds within seeing that he was unarmed, the dog was released.

[00:08:37] Speaker 04:
So, you know, again, a person was not arrested or, you know, handcuffed at that point, but seeing that he was unarmed was sufficient for the officers to release the dog from the bite, whereas here, the contention is the 20 or more seconds of continuing to bite while the officers were around the suspect.

[00:08:58] Speaker 00:
Sure, but we have to remember in those 20 seconds what's happening.

[00:09:02] Speaker 00:
Officer Dunn, who is the only person by the way in this group of people that is qualified to remove this dog, is still on that narrow staircase.

[00:09:12] Speaker 00:
All of the officers, in fact, are trying to get up into

[00:09:15] Speaker 00:
what ultimately wound up being a very narrow hallway surrounded by dark rooms.

[00:09:20] Speaker 04:
I'm sorry to interrupt, but not the 20 seconds that I think are the key to this case.

[00:09:26] Speaker 04:
The 20 seconds when he's lying flat on his belly, they have all gone up to the top, to the second floor, and they're around him at that point.

[00:09:33] Speaker 00:
That is not what the evidence here shows.

[00:09:37] Speaker 00:
It's not what the video shows, and it's in fact undisputed by the plaintiffs that Officer Dunn, when his video, you can first see the suspect on his video, that's about 20 seconds.

[00:09:47] Speaker 00:
He's still on that staircase, and you can hear him saying to the other officers, I've got to get in the room.

[00:09:53] Speaker 00:
I've got to get in the room.

[00:09:55] Speaker 00:
Okay.

[00:09:55] Speaker 00:
And the import of Miller, I want to go back to Miller because the import of Miller is that this court stated, the same argument was made there, that the dog should have come off the bite earlier because the plaintiff had shown his hands.

[00:10:07] Speaker 00:
And this is important because it's where the element of control, which the district court in our view ignored, comes into play.

[00:10:14] Speaker 00:
The court there said it was reasonable to maintain the dog on the bite because a premature release of the dog could have resulted in the suspect arming himself, harm to the officer, harm to the dog, or a potential ambush.

[00:10:27] Speaker 03:
How is that harm present here?

[00:10:30] Speaker 03:
He was prone on the ground.

[00:10:33] Speaker 03:
I mean, your position is they didn't yet know he was unarmed at that point?

[00:10:38] Speaker 00:
That is our position, Your Honor.

[00:10:39] Speaker 00:
The upstairs of that home had not been searched before their encounter.

[00:10:45] Speaker 03:
My question was not, was there a gun somewhere else?

[00:10:48] Speaker 03:
My question was, was he himself armed at that point?

[00:10:52] Speaker 00:
That was also unknown.

[00:10:54] Speaker 00:
However, the fact of the matter was, I mean, he hadn't been searched at that point, right?

[00:10:59] Speaker 03:
In addition to the fact that after... What if they had taken just another minute to get up the stairs and just lollygagged up the stairs?

[00:11:11] Speaker 03:
Would that have been a problem that you'd still be making the same argument?

[00:11:15] Speaker 03:
Well, we didn't know.

[00:11:15] Speaker 03:
So the 45 seconds, I mean, at some point it seems like once he's down on the ground, at least there's a disputed fact about whether he was under control or not.

[00:11:29] Speaker 00:
But that threat that the officers initially faced, worried that they were potentially facing a suspect who was armed or could have armed himself, was not mitigated by the sheer fact that the dog was on his one arm when his left arm was still free to reach potentially for a weapon in an area that he was familiar with and the officers were not familiar with.

[00:11:51] Speaker 04:
Mr. McGee, it seems to me that what you're arguing are ways to look at the evidence, you know, triable questions.

[00:11:59] Speaker 04:
And you may be right, a jury might look at this and say, it was reasonable to continue holding the bite because there needed to be something more to control the situation than was present.

[00:12:12] Speaker 04:
But in our interlocutory review, and one thing I wanted to mention about Miller is Miller was review from judgment in favor of the defendants.

[00:12:22] Speaker 04:
Here, we don't weigh the evidence.

[00:12:24] Speaker 04:
We are just trying to determine if there are tribal questions and if this issue is placed as a matter of law beyond debate.

[00:12:33] Speaker 04:
And what seems to me is what you're describing are things that different fact-finders can weigh differently as to what was reasonable or not.

[00:12:42] Speaker 00:
I disagree respectfully, Your Honor, and I'm sorry I did not tell the court, but I would like to reserve a few minutes for rebuttal if possible.

[00:12:53] Speaker 00:
I appreciate what you're saying, but I respectfully disagree because where is the case telling Officer Dunn here that she he should have released that dog

[00:13:02] Speaker 00:
any sooner than he did.

[00:13:04] Speaker 00:
Watkins.

[00:13:05] Speaker 00:
But Watkins is substantially different.

[00:13:07] Speaker 00:
In Watkins, the officer was already in the room, had a view of the plaintiff, went hands-on with him, and again, had other officers just standing around.

[00:13:17] Speaker 00:
Those are not the facts of this case.

[00:13:19] Speaker 00:
They are substantially dissimilar and certainly would not warrant the denial of qualified immunity under the Supreme Court standard.

[00:13:28] Speaker 03:
Okay.

[00:13:28] Speaker 03:
Do you want to reserve?

[00:13:29] Speaker 00:
I would like to reserve.

[00:13:30] Speaker 00:
Thank you, Your Honor.

[00:13:46] Speaker 02:
Good morning, Your Honors, and may it please the court, Fulvio Cahina for appellee Mr. Rosenbaum.

[00:13:53] Speaker 02:
We want to address, start off by addressing the Watkins case, which we do believe has put

[00:13:59] Speaker 02:
all officers in the Ninth Circuit on notice that an excessive, a bite of an excessive duration.

[00:14:05] Speaker 03:
Is it true in Watkins, and I just don't recall, he was not handcuffed before they released the dog, is that correct?

[00:14:13] Speaker 03:
Absolutely, Your Honor.

[00:14:14] Speaker 03:
He was not handcuffed.

[00:14:16] Speaker 03:
The reason why that's important to me is Mendoza does suggest that in Mendoza we held that it was okay to keep the bite until he was handcuffed, until the defendant was handcuffed, or I guess plaintiff, depending on which case you're looking at.

[00:14:38] Speaker 03:
So Watkins seems to backtrack from that and say, well, I mean, if Mendoza was just out there, I think they probably would be entitled to qualified immunity.

[00:14:47] Speaker 03:
Would you agree with that?

[00:14:48] Speaker 02:
I would agree with that.

[00:14:49] Speaker 02:
The Mendoza case, Your Honor, came out in 1994.

[00:14:52] Speaker 02:
There, almost as in dicta, the court said, well, if someone were to be handcuffed and on the ground,

[00:15:00] Speaker 02:
you obviously wouldn't be able to stick a dog on them.

[00:15:03] Speaker 02:
Watkins actually addresses the point more clearly, and there, the Watkins court said, if someone is helpless and surrounded by officers with guns drawn, where the suspect has surrendered and is under control,

[00:15:15] Speaker 02:
then you can't continue a dog bite.

[00:15:18] Speaker 02:
So they remove the element of needing to have handcuffs.

[00:15:22] Speaker 03:
So what about the, what do we do with the factual differences between Watkins in this case?

[00:15:27] Speaker 03:
Because the city makes a good argument that it was different.

[00:15:33] Speaker 03:
There was more of a sense of control, I think it's fair to say, in Watkins than there was here.

[00:15:40] Speaker 03:
You may disagree with me.

[00:15:42] Speaker 03:
or you know at least more of a sense to observe it and I guess part of that maybe you can explain to me exactly what your position is on how much time because it is true there was 20 seconds between when he was on the ground but at what point was officer done actually there to see it and observe him how long did the bite last

[00:16:01] Speaker 02:
All right, first off, I'd like to say that we believe our case is much stronger than Watkins.

[00:16:06] Speaker 02:
In Watkins, the court held that the dog bite was unconstitutional in a situation where the officers alleged that they couldn't see the suspect's hands.

[00:16:18] Speaker 02:
Here, in our excerpt of record 26, which is the video that is on Officer Don's body camera.

[00:16:23] Speaker 02:
He could see it from the beginning.

[00:16:25] Speaker 02:
You can see his hands throughout.

[00:16:27] Speaker 02:
His hands were never, ever hidden from the officers.

[00:16:32] Speaker 02:
With respect to, you know, whether... Can I just quickly follow up on one point?

[00:16:37] Speaker 04:
Is there any question whether the officers knew that Mr. Rosenbaum was unarmed or armed by the time they were up there nearby him?

[00:16:46] Speaker 02:
Yes, Your Honor.

[00:16:47] Speaker 02:
As a matter of fact, in excerpt of record 41, which is my deposition of Officer Dunn, I asked him, isn't it true that the fiancé actually informed you that Mr. Rosenbaum's firearms had burned in the Santa Rosa fires?

[00:17:02] Speaker 02:
And he agreed that that had been relayed to him.

[00:17:04] Speaker 02:
So with respect, at least, to firearms.

[00:17:06] Speaker 04:
Oh, I'm not really referring so much to that.

[00:17:08] Speaker 04:
Is there any indication that the officers thought, once they're up there near him physically, that he might still be unarmed?

[00:17:18] Speaker 04:
If I recall from the video, he was wearing something that would suggest that clothing wouldn't obscure whether he had a firearm with him or not.

[00:17:25] Speaker 02:
He had a tank top on.

[00:17:26] Speaker 02:
He had a tank top on.

[00:17:27] Speaker 02:
And to go back to the video to ER-26,

[00:17:31] Speaker 02:
Officer Dunn deploys a canine at 1036 on the video, 10 minutes and 36 seconds.

[00:17:37] Speaker 02:
He issues the command, which I won't say here, and the dog goes up the video.

[00:17:43] Speaker 02:
Officer Dunn, again, just relying on the body cam.

[00:17:47] Speaker 02:
And remember, the body cam is set lower than Officer Dunn's eyes.

[00:17:51] Speaker 02:
So he's going upstairs.

[00:17:52] Speaker 02:
Presumably, he can see before the body cam can see.

[00:17:54] Speaker 01:
I was going to ask just factually, is there anything in the record to indicate that the officer had a different view than the body cam he was wearing?

[00:18:00] Speaker 02:
No, Your Honor.

[00:18:03] Speaker 02:
The fact of the matter is, at his deposition, he testified that, yes, the body cam is chest-worn.

[00:18:09] Speaker 02:
So when he arrived to the landing at 1051, we can see on the body cam, and presumably Officer Dunn can see as well, that Mr. Rosenbaum is in a seated position on the ground with the dog,

[00:18:23] Speaker 02:
latched onto his arm.

[00:18:25] Speaker 02:
Immediately thereafter, Mr. Rosenbaum goes onto his belly, arms outstretched.

[00:18:30] Speaker 02:
And from 1051 through 1119, nearly 30 seconds, the bite continues.

[00:18:35] Speaker 02:
At 1119 is when Officer Dunn issues the order for release.

[00:18:39] Speaker 02:
the entire time Mr. Rosenbaum's arms are outstretched and in front of him and he's in a prone position.

[00:18:45] Speaker 04:
Does he ever try to stand up?

[00:18:47] Speaker 02:
No, Your Honor.

[00:18:48] Speaker 02:
He never tries to stand up.

[00:18:50] Speaker 02:
And we have to remember, unlike in Watkins, I guess, not only is Mr. Rosenbaum completely surrounded by officers

[00:19:03] Speaker 02:
up there.

[00:19:04] Speaker 02:
And again, this notion that Officer Dunn is on the staircase is belied by the body camera.

[00:19:10] Speaker 02:
The body camera shows that Officer Dunn is on the second floor when he releases the dog.

[00:19:16] Speaker 02:
Mr. Rosenbaum is surrounded by officers.

[00:19:19] Speaker 02:
The house is surrounded by officers.

[00:19:21] Speaker 02:
There's a chopper in the sky surrounding the house.

[00:19:24] Speaker 02:
I mean, he couldn't have been more controlled.

[00:19:28] Speaker 03:
Well, that only goes so far.

[00:19:30] Speaker 03:
I mean, if there was a weapon there, the fact that there was no escape didn't mean that the officers themselves wouldn't have faced some harm.

[00:19:40] Speaker 03:
So I mean, I don't think the chopper indicates control.

[00:19:44] Speaker 03:
I think your argument for control or certainly at least a factual dispute on control is the fact that he was prone on the ground and the dog was biting him.

[00:19:53] Speaker 03:
I don't mean to shift gears so much, but do you agree, I guess based on how the cities argue, I don't understand honestly how the other officers can even be held liable here.

[00:20:07] Speaker 03:
It seems to me that if you have one officer who's in charge of the dog, you cannot rely on another officer

[00:20:14] Speaker 03:
to release the dog, and if they didn't have any opportunity to release the dog, now I know the district court held differently, is that on appeal to us at all?

[00:20:24] Speaker 03:
Can we grant, can we deny qualified immunity to Officer Dunn, but grant qualified immunity to the others?

[00:20:31] Speaker 02:
That argument's not before the court.

[00:20:34] Speaker 02:
Our position is that it's been waived.

[00:20:36] Speaker 02:
We didn't even brief it because it wasn't in the appellant's movie.

[00:20:39] Speaker 03:
I think that's right, and I'm sort of shocked that it hasn't been briefed.

[00:20:43] Speaker 03:
It seems like a huge miss for these other officers.

[00:20:47] Speaker 03:
So in any event, keep going.

[00:20:49] Speaker 02:
Yes, and then

[00:20:54] Speaker 01:
I guess I have one question that I'm sort of trying to puzzle through, and that is the rule is that once somebody has surrendered and is under control, then you've got to let the dog go.

[00:21:04] Speaker 01:
There is a timing factor there, right?

[00:21:08] Speaker 01:
So that can happen on second five, and then there's got to be some sort of period of time for an officer to recognize.

[00:21:15] Speaker 01:
Those are the circumstances.

[00:21:16] Speaker 01:
I need to call off the dog.

[00:21:18] Speaker 01:
Is that something that timing, I guess, twofold?

[00:21:23] Speaker 01:
Is there any evidence to indicate that we should be thinking about that in that case, in this case, that the officer somehow didn't understand those were the circumstances or that he was having a perception problem?

[00:21:36] Speaker 02:
No, there's no such facts that there was a perception problem.

[00:21:39] Speaker 02:
But going to the timing, again, I wanted to follow up on what Judge Sanchez said about the Miller case, the Miller v. Clark County.

[00:21:47] Speaker 02:
In that case, and procedurally, the posture is different from our case.

[00:21:52] Speaker 02:
But in that case, the court found that there was no unlawful acts by the officers because they released the dog immediately.

[00:22:01] Speaker 02:
Here, nearly 30 seconds go by.

[00:22:03] Speaker 02:
That's an eternity while you have a dog causing the kind of damage that you see.

[00:22:07] Speaker 01:
So that's your position is that because of the time frame here, we don't really even need to wrestle with that because it's just too long.

[00:22:12] Speaker 03:
Yes.

[00:22:14] Speaker 03:
Well, but you say 30 seconds, but I don't think it's 30 seconds from when he was under control.

[00:22:22] Speaker 03:
I mean, I guess that's a question we have to grapple with.

[00:22:26] Speaker 03:
And maybe we only need to grapple with it so far as to say it's a factual dispute that at what point he became under control.

[00:22:33] Speaker 03:
But at what point after Officer Dunn got to the top of the stairs, how much longer did the dog bite go?

[00:22:42] Speaker 03:
Or do we know?

[00:22:43] Speaker 03:
Or that's a factual dispute?

[00:22:44] Speaker 02:
Our position is that from the 1051 mark through 1119, that's the time that

[00:22:50] Speaker 02:
Mr. Rosenbaum is prone, arms outstretched.

[00:22:53] Speaker 03:
So you think there's 27 seconds where he was prone on the ground, Officer Dunn could observe him prone on the ground?

[00:23:01] Speaker 03:
Yes.

[00:23:01] Speaker 02:
And this is from the body camera.

[00:23:02] Speaker 04:
I was going to say, to me, I think that the important point here is about our interlocutory review, is because we have to credit plaintiff's allegations as true unless they are plainly contradicted by the video evidence under Scott versus Harris.

[00:23:18] Speaker 04:
And as I understand your complaint, or the plaintiff's complaint, plaintiff alleges that he had fully surrendered and hands were outstretched while surrounded with all the defendants with their firearms, but the dog was allowed to continue biting him for over 20 seconds.

[00:23:34] Speaker 04:
And that is enough, just passing that 20 second threshold was enough to be excessive force.

[00:23:41] Speaker 04:
So whether it ends up being 25 seconds, 20 seconds, 30 seconds, whatever a trial would establish, that that's enough to establish a constitutional violation and the video doesn't contradict it.

[00:23:56] Speaker 02:
Yes, that's our position.

[00:23:58] Speaker 02:
And our further position is that the district court got it right.

[00:24:02] Speaker 02:
At the very least, this is a tribal issue of fact for the jury to determine at this point.

[00:24:06] Speaker 02:
But as to the purely legal question of were the officers on notice, we think Watkins puts them squarely on notice.

[00:24:18] Speaker 02:
No further questions that we submit, Your Honor.

[00:24:20] Speaker 02:
OK, thank you.

[00:24:21] Speaker 02:
Thank you.

[00:24:28] Speaker 00:
Thank you, Your Honors.

[00:24:29] Speaker 00:
I want to go back to the issue or the standard here of having the suspect fully surrendered and fully under control.

[00:24:39] Speaker 00:
And what this appeal is actually about, which is, is there a case that would have informed Officer Dunn that Mr. Rosenbaum was fully surrendered and under control in this scenario?

[00:24:51] Speaker 00:
And the answer is no.

[00:24:53] Speaker 00:
the court has never defined what that means in this context.

[00:24:58] Speaker 00:
And for that reason, Officer Dunn is entitled to qualified immunity.

[00:25:02] Speaker 00:
Watkins is not that case.

[00:25:05] Speaker 00:
The facts of Watkins are substantially different.

[00:25:09] Speaker 00:
At most, what we can take from Watkins is that an officer cannot stand idly by with their guns drawn giving commands

[00:25:20] Speaker 00:
that the plaintiff cannot comply with, because that was another important factor in Watkins.

[00:25:26] Speaker 00:
Those are not the facts of this case.

[00:25:30] Speaker 00:
And so for that reason, Officer Dunn is entitled to qualified immunity.

[00:25:34] Speaker 00:
And the other officers are as well, if he is found not to be liable here.

[00:25:39] Speaker 00:
Thank you, Your Honor.

[00:25:40] Speaker 00:
Submitted.

[00:25:40] Speaker 03:
Thank you.

[00:25:41] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:25:43] Speaker 03:
And the case is now submitted.

[00:25:45] Speaker 03:
The court will take a brief five minute recess.

[00:25:47] Speaker 03:
Thank you.