[00:00:00] Speaker 04:
in its Love v. Grasshorn, number 231397.

[00:00:12] Speaker 01:
Good afternoon, Your Honors.

[00:00:13] Speaker 01:
May it please the Court?

[00:00:14] Speaker 01:
My name is Jonathan Eddy, here on behalf of City of Loveland police officer, defendant Matthew Grasshorn, with me today as well as co-counsel, Jonathan Abramson.

[00:00:24] Speaker 01:
Your Honors, I'd like to start by first addressing the issue of jurisdiction.

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before moving into the dispositive matter of qualified immunity.

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This court has jurisdiction to decide the ultimate issues in this case.

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First, whether defendant Grasshorn's conduct was objectively reasonable under the undisputed facts in this case, and two, whether the law was clearly established.

[00:00:46] Speaker 01:
Contrary to plaintiff's argument, there are no material disputed facts in this case.

[00:00:52] Speaker 01:
The entirety of this

[00:00:53] Speaker 01:
Rapidly unfolding, an admittedly tragic event is captured on video.

[00:00:57] Speaker 03:
So sorry to interrupt you so quick, but I had understood, maybe wrongly, that under Lewis v. Tripp, on a review on an interlocutory appeal of the denial of qualified immunity,

[00:01:13] Speaker 03:
that we look at the universe of facts that the district court found that a reasonable fact finder could infer, unless it falls within one of those exceptions, like the blatantly contradicted exception.

[00:01:28] Speaker 03:
The district court, well, am I wrong about that?

[00:01:31] Speaker 01:
No, that's correct, Your Honor.

[00:01:32] Speaker 03:
OK, so in the district court here, laid out a number of things that the district court thought that a reasonable fact finder could find, that Herkerberg was not at large, that the dog was unleashed, the owners were there and had already called the first bubba off.

[00:01:51] Speaker 03:
that grassed Warren Park several yards away.

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And so all of those are the universal facts that we need to evaluate this abstract question of law, whether it violates a clearly established right, correct?

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We don't independently look at the video and say, what do we think a fact finder could find?

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Because the district court's already done it.

[00:02:18] Speaker 01:
So yes, the district court does lay out

[00:02:21] Speaker 01:
in the first two pages of its order, the undisputed facts based on what the judge viewed in light of the video.

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You watch the video and he laid out the facts in the first two pages of his order.

[00:02:32] Speaker 01:
Where it becomes a little less clear is when the court gets into the objective reasonableness analysis, and that's where I think the district court

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in error, conflated issues of law with questions of fact.

[00:02:45] Speaker 03:
Well, for example, is it a historical fact when the District Court says that there was a finding that a fact finder could conclude that Officer Grasshorn was not in immediate danger?

[00:02:58] Speaker 03:
Isn't that a question of historical fact?

[00:03:00] Speaker 01:
No, Your Honor.

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That's a pure question of law under the precedent.

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Plumhoff v. Picard, the United States Supreme Court case, is clear on this issue.

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The ultimate question of objective reasonableness is a pure question of law for the appellate.

[00:03:13] Speaker 03:
But I didn't read the question of it.

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I agree with you.

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Nobody would dispute that.

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Objective reasonableness is the sine qua don of the Fourth Amendment violation and certainly would be a violation here.

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But that's not what the district court said.

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The district court said that Grasshorn was not in immediate danger.

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Does Plumhoff say that it's a question of law whether somebody's in danger or not?

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Well, because it's so intertwined with the objective reasonableness analysis, it necessarily would require the court to either A, look at the first list of facts that the district court laid out, the objective facts viewed from the video.

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And then additionally, the court can then look at the video itself to make that determination because it is a pure question of law.

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And so I think the distinction is, this distinction is addressed in the Walton versus Powell case.

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That's a 10th Circuit case where the court kind of goes through this distinction of what

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the Supreme Court meant by its Jones versus Johnson interpretation of what are questions of fact, what are questions of law.

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There, the key distinction was, in Johnson versus Jones, for instance, the key distinction was the court found that the officers were not entitled to qualified immunity on summary judgment because the officer's argument was that they didn't shoot the plaintiff in the first place.

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Their argument was not that their conduct was objectively reasonable.

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And so the factual dispute was necessarily

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What particular conduct occurred for purpose of the announcement?

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So what about when the district court said that she found that Officer Grasshorn had enough time to respond differently?

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A reasonable officer could have used non-lethal means to avoid whatever danger was posed by Herkimer.

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Is that a question of law or a question of historical fact?

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The defense views those as questions of law, Your Honor.

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Really?

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Because the ultimate question is, how much time did he have in this situation?

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And it's undisputed, both by what the court found in the first two pages of its order and by the video of itself, that within less than 10 seconds of Officer Grasshorn exiting his vehicle, two large dogs were running towards him, and that Plaintiff's pit bull, Hurkmer, did not respond to Plaintiff's verbal commands.

[00:05:24] Speaker 01:
It's also not disputed that

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Herkmer had advanced to within less than six feet of Officer Grasshorn and that less than three seconds had passed between the time Herkmer had left from plaintiff's vehicle to the time Officer Grasshorn opened fire.

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So the key factual issue here is how much time did Officer Grasshorn actually have based on the undisputed facts of this case as evidenced by the video and frankly by the district court's initial findings of fact within its first two pages of that order.

[00:05:55] Speaker 02:
Council beyond the timing element which doesn't seem to me to be the pivot point here, but It's really my understanding of how this fact pattern plays out is pretty commonplace Whether it be a postal worker or Amazon delivery or door-dash I mean or just Walking your dog in your neighborhood like dogs who are clearly you know pets of someone oftentimes unleashed will run up upon people and

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What doesn't seem to happen more commonly is those dogs are shot to death.

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So when we're looking at the reasonableness, why can't we take Mayfield, clearly established law principles, and then look to this fact pattern and say, you can apply Mayfield with obvious clarity that doesn't allow officers just to shoot dogs to death that run up on them.

[00:06:41] Speaker 02:
Why is that an erroneous statement?

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OK, so I guess there are two points to that question.

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So the first point would be that,

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You have to look at it in the context of an officer doing his job.

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This officer was called to a trespassing call, so he was there.

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Which is a real minor infraction at most, right?

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Agreed, Your Honor.

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Potentially an illegal dumping on a commercial site.

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Agreed, Your Honor.

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He was there for a purpose of a criminal investigation.

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The ultimate issue here is whether you're weighing the plaintiff's property interests and their dog, which they certainly had, against the government's interests.

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officer Grasshorn's interest in conducting a criminal investigation.

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This dog was unleashed on someone else's property.

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It's undisputed that the plaintiffs in this case were trespassing.

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So that's kind of the first distinction between the examples you gave of someone just out walking their dog and an officer who's involved in a criminal investigation.

[00:07:37] Speaker 01:
With respect to the Mayfield case particularly, Mayfield 1, the 2016 case Mayfield, that was a denial of qualified immunity on Rule 12b6, where it was not refuted or where plaintiffs' allegations were that the dogs never advanced towards the officer or made any aggressive motions towards the officer.

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And in fact, the dogs had been retreating from the officers when the officers chased them down and shot the dogs.

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That's a material distinction to what's shown on the video in this case, Your Honor.

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Officer Grassworm, again, had less than three seconds to make a decision on whether to open fire when a pit bull was coming at him.

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And that's the key distinction.

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And so that goes right into the heart of the qualified immunity issue in this case.

[00:08:21] Speaker 02:
I'm sorry to talk about, you keep saying pit bull.

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That was my understanding that Herkimer was not a pit bull.

[00:08:26] Speaker 01:
Well, I guess for purposes of facts that can be taken as true, the district court judge here found that it was, in fact, a pit bull.

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Resembling a pit bull.

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Resembling a pit bull.

[00:08:36] Speaker 01:
OK, fair enough.

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So it would be based on the video and based on what the district court judge found here, it would have been entirely reasonable for Officer Grasshorn to perceive Herkmer coming at him to be a pit bull and therefore potentially an aggressive breed of dog and to pose a heightened threat to him.

[00:08:52] Speaker 02:
But why does he have his, you know, instantly draws a gun?

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Well, you know, if we're looking again at reasonableness, you know, why reach for your firearm so quickly?

[00:09:04] Speaker 01:
Well, ultimately, Your Honor,

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The key point of this case is that we're dealing with a seizure of property, frankly.

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And so the fact that he draws his gun initially really has no bearing on whether the ultimate seizure of Hercmer was reasonable.

[00:09:17] Speaker 02:
Well, it seems to have some bearing, because the seizure is accomplished by the use of the firearm, right?

[00:09:22] Speaker 01:
Correct.

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So I understand your question.

[00:09:25] Speaker 01:
Is the question really, why didn't Officer Gratzhorm employ alternative means?

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Why did he resort immediately?

[00:09:30] Speaker 02:
Exactly.

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Why is he reaching for his gun so quickly?

[00:09:33] Speaker 01:
I see.

[00:09:35] Speaker 01:
One particular issue here that's common knowledge among law enforcement, and particularly with Officer Grassroom who testified to this, is his alternate means in this case would have been the use of a taser.

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Tasers are historically very difficult to hit a moving target, especially one the size of Hirkmer, who is 70 to 75 pounds.

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His alternative means to that would have been his plastic baton, which he believed would not have been effective in this situation, particularly when there were initially two dogs running at him.

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And so his understanding was that

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You know, if worst case scenario, if any of these other alternative means fail, I'm going to get potentially seriously injured by this pit bull.

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And so his decision was to pull his gun.

[00:10:16] Speaker 02:
So one more question on alternative means and then I'll stop.

[00:10:18] Speaker 02:
But how does the Colorado, I think it's statute, the Dog Protection Act fit into our analysis of clearly established law?

[00:10:26] Speaker 02:
Because my understanding is Colorado requires training law enforcement officers about use of alternative means.

[00:10:31] Speaker 01:
Correct.

[00:10:32] Speaker 01:
Our position is that it would have no bearing on the ultimate question of clearly established law.

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It's been long held under qualified immunity.

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The case law, it needs to be binding case law from either the 10th Circuit, the United States Supreme Court, or potentially a robust... But also the obvious clarity, which...

[00:10:50] Speaker 02:
You know, it doesn't require a case on all fours, so does it factor at all into potentially that component of what is clearly established?

[00:10:58] Speaker 01:
Well, what would factor the most into obvious clarity would be what is shown on the video, would be my argument, Your Honor.

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And the video, again, shows an officer with three seconds to make this decision on whether to use deadly force against Herkmer or not to use deadly force against Herkmer.

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And he chose the former, and that's where we are.

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We agree this is a tragic incident.

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He regrets his actions.

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But again, at the same time, you have to put the officer's safety in the moment against the plaintiff's, in this sense, somewhat compromised property interests in their dog, because they were, in fact, trespassing.

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Their dog was unleashed on someone else's property.

[00:11:37] Speaker 04:
Council, I'd just like to jump in on a passage.

[00:11:44] Speaker 04:
I'd like to read a passage.

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from the district court's order that's been giving me some trouble.

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And I think it goes back to some questions that Judge Bacharach was asking.

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Anyway, court says, although a reasonable jury could decide that Herkimer posed a danger to defendant, demonstrating the type of tense, rapidly evolving situation where allowance is given for the police to make split-second decisions, it could also decide

[00:12:11] Speaker 04:
that he did not pose an immediate danger.

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Now, we're talking about disputed and undisputed facts, but can't there be undisputed facts, sort of undisputed underlying facts leading to what is really almost an ultimate fact here, which is posed a danger.

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And the court's saying that, well, a reasonable jury could find posed a danger.

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in a reasonable jury could find not posed a danger.

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That seems to me to be a disputed issue of fact then because the court doesn't resolve it and that's what is going to go to the jury.

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But given that a jury could find no imminent danger, that gets the plaintiff past prong one.

[00:13:04] Speaker 04:
Now what's wrong with looking at it that way?

[00:13:07] Speaker 01:
Well, it goes against what the Supreme Court has held in Plumhoff v. Ricard, where it was that type of situation where the facts themselves were not in dispute.

[00:13:16] Speaker 01:
Again, the conduct, what did and did not occur is not in dispute.

[00:13:19] Speaker 04:
But you're saying danger is an issue of law.

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Whether in this instance the dog poses danger, whether in other instances a suspect poses a danger.

[00:13:33] Speaker 04:
That's one thing.

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That doesn't strike me as a pure legal issue.

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That's whether there's dangers.

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There are dangers.

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There are not dangers.

[00:13:45] Speaker 01:
So I would argue that that is a question of law based on

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the defense's interpretation of Plumhoff.

[00:13:53] Speaker 04:
OK.

[00:13:54] Speaker 04:
I understand your argument.

[00:13:55] Speaker 04:
I don't want to make you repeat it over and over, unless you want to.

[00:13:58] Speaker 01:
Well, I was just going to add to that.

[00:13:59] Speaker 01:
I was going to say, setting aside that point, this case can simply be resolved on the second prong of qualifying.

[00:14:05] Speaker 04:
That's where I was going.

[00:14:06] Speaker 04:
OK.

[00:14:06] Speaker 04:
Very good.

[00:14:07] Speaker 04:
So what's your best case?

[00:14:09] Speaker 01:
Well, so I guess to answer that directly, Your Honor, the burden is not ours.

[00:14:14] Speaker 04:
I know.

[00:14:14] Speaker 04:
But what's the best case for you?

[00:14:17] Speaker 01:
OK.

[00:14:19] Speaker 01:
I'll grant you that there are no binding cases out of the 10th Circuit saying one thing or the other with respect to shooting dogs.

[00:14:26] Speaker 01:
The case that does the most analysis on this is frankly a district court case of Ranson.

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However, there are two very persuasive cases from this court, both preceding the events of the case at hand by no more than three months.

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And in both of those cases being Mayfield 2 and also the decision in Kendall, I see my time is up.

[00:14:46] Speaker 01:
I may just finish this.

[00:14:47] Speaker 01:
Please finish up.

[00:14:48] Speaker 01:
Both of those cases came out in favor of the officer on the basis that in both of those situations, the dogs were in fact running towards the officer.

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In one situation, it was undisputed that the dog may have been barking, but the courts conceded that the court didn't say one way or the other whether the dog was acting per se aggressively or growling or showing teeth, and that's the Kendall case.

[00:15:12] Speaker 01:
The only undisputed fact that the decision turned on in that case was the fact that the dog had barked at the officer.

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and then had run at the officer and had also not responded to the commands.

[00:15:22] Speaker 01:
The second case, Mayfield 2, it was undisputed that the dogs were acting aggressively and then charged towards the officer.

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In both of those cases, the court held that the officers were entitled to qualified immunity under both prongs of the analysis.

[00:15:34] Speaker 04:
We'll look at those cases.

[00:15:35] Speaker 04:
Thank you, counsel.

[00:15:36] Speaker 01:
Thank you, Your Honor.

[00:15:47] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:15:50] Speaker 00:
My name is Sarah Schelke.

[00:15:51] Speaker 00:
I'm counsel for the plaintiffs, Wendy Love and Jay Ham.

[00:15:55] Speaker 00:
I want to dive right into, I think, the Court issue that is underlying a lot of the Court's questions, and I think which has been fundamentally skipped in all the arguments that have been raised by the appellate or by the appellant.

[00:16:15] Speaker 00:
how this case really represents a critical floor in terms of how we evaluate both what the clearly established law is, the qualified immunity prongs, but additionally, what is required for a summary judgment ruling in favor of defendants as a matter of law.

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The defendants are saying as a matter of law,

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due to time, for example, three seconds.

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They want to overemphasize this factor and pull it out.

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That should be, as a matter of law, reasonable.

[00:16:52] Speaker 00:
That's incorrect.

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If we look at every dog shooting case, not just in the circuit, but across the whole entire country, there is a unifying feature.

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There is a unifying precondition.

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And that is that the dog has to have represented an imminent threat.

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The officer needs to have believed that,

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reasonably and what the court will see looking at every single dog shooting case is that there is in any case where summary judgment was granted to a defendant officer some indications of aggressiveness prior to the officer shooting the dog.

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There is a bark, there is growling, there is hackles, there is a shooting like a missile, there is a tail that is straight back, there

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is other circumstances making it extremely risky to the officer.

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All of those conditions are conspicuously absent in this case.

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What the appellants are asking the court to do in requesting that on these facts, as a matter of law, it rule that qualified immunity should apply, is they're asking the court to essentially

[00:18:09] Speaker 00:
say that any unleashed dog that resembles a pit bull can be shot by an officer who encounters it.

[00:18:18] Speaker 00:
That's essentially the position that we're in by nature of the interlocutory appeal, the standard that they're on, and the fact that they have to argue to get around the jurisdictional problem that as a matter of law, no rational jury could find that there was no threat.

[00:18:34] Speaker 03:
You know, let me ask you a question about that.

[00:18:38] Speaker 03:
So, you know, one of the aspects, I think, of our presidents, like Cox, like Lewis versus Tripp, is

[00:18:47] Speaker 03:
that if a district court doesn't necessarily specify what facts he or she is relying on, then we can look, not for a full record review, but we can look at the record to determine what facts that the district court reasonably relied on.

[00:19:05] Speaker 03:
And here Judge Moore specifically said that he was relying on the video.

[00:19:10] Speaker 03:
And you can see Herkimer running toward the officer.

[00:19:16] Speaker 01:
Sure.

[00:19:18] Speaker 03:
So maybe the tail wasn't wagging.

[00:19:21] Speaker 03:
Maybe, I mean, it's not audible at that point.

[00:19:24] Speaker 03:
So we don't really know if, I don't think, if Huerkeberg was barking.

[00:19:28] Speaker 03:
But you can certainly see on the video.

[00:19:30] Speaker 03:
And so can't we reasonably assume that one of the facts that Judge Moore was drawing on was the fact that Huerkeberg was running toward the officer, toward Officer Grasshorn?

[00:19:44] Speaker 00:
Your Honor, I think that when

[00:19:46] Speaker 00:
Judge Moore mentioned that a jury might be able to find in the defendant's favor.

[00:19:51] Speaker 00:
That might have been something he was thinking of.

[00:19:54] Speaker 00:
However, I think when he was ruling that summary judgment was not appropriate, he was taking into consideration the nucleus of facts that includes it being undisputed and or

[00:20:13] Speaker 00:
if it's in dispute, he's giving the inference to the plaintiffs that Herkimer appeared to be a friendly dog.

[00:20:22] Speaker 03:
Right.

[00:20:22] Speaker 03:
But I guess I'm just really trying to home in on whether Herkimer was running to the officer.

[00:20:28] Speaker 03:
Do you deny that he was running toward Officer Grasshorn?

[00:20:33] Speaker 03:
I mean, on the video, it looks pretty clear that he is.

[00:20:36] Speaker 00:
Your Honor, I would agree with that to an extent.

[00:20:39] Speaker 00:
There's an important factual distinction which the defendants

[00:20:44] Speaker 00:
omit, but if you rewatch the video, and admittedly, having to rewatch the video is terrible.

[00:20:50] Speaker 00:
I'm happy to have done some of the work for everyone to not do it.

[00:20:53] Speaker 00:
But what you can see and what Officer Grassburn testified to in his deposition is that Herkimer was slowing as he was reaching the officer, and he was peeling off to his right to turn around, which are two very important facts when we're considering is this dog

[00:21:14] Speaker 00:
an imminent danger.

[00:21:19] Speaker 00:
Grasshorn is trained and common sense and life experience tells us that a dog who's going to attack is going to behave differently than that.

[00:21:25] Speaker 00:
It's going to be moving very quickly.

[00:21:26] Speaker 00:
Its body language is going to be different.

[00:21:29] Speaker 00:
And it's certainly not going to be peeling off to the side.

[00:21:33] Speaker 00:
Those are important facts.

[00:21:34] Speaker 00:
And if you look as well at the fact that Officer Grasshorn, he actually has to turn to a 45 degree angle to

[00:21:43] Speaker 00:
I think it's fair to say, given that the court relied on the video, that even that alone could cause a jury to say this was an unreasonable shooting.

[00:21:57] Speaker 00:
He's having to turn to the side to shoot him.

[00:22:00] Speaker 00:
And another fact, and again, this is yet to be addressed by the appellants at all, is the second bullet.

[00:22:07] Speaker 00:
Why did he shoot twice?

[00:22:09] Speaker 00:
When Officer Grasshorn was asked about this in his deposition, he said,

[00:22:13] Speaker 00:
I'm not going to wait to see if the first shot was effective.

[00:22:16] Speaker 00:
Well, that kind of statement is unreasonable as a matter of law.

[00:22:22] Speaker 00:
In the undisputed facts number 20 that were submitted with the motion for summary judgment, the appellants themselves conceded that when the second bullet was fired, Herkimer was rolling onto his side, onto his stomach, apparently disabled.

[00:22:42] Speaker 00:
There are a lot of cases, Velo out of the Seventh Circuit,

[00:22:47] Speaker 02:
I'm sorry to interrupt you.

[00:22:50] Speaker 02:
Can I ask you about the clearly established prong of qualified immunity?

[00:22:54] Speaker 02:
And I read your response brief to say that Mayfield provides clearly established law.

[00:23:00] Speaker 02:
I'm wondering how much work Mayfield does in this context, because Mayfield holds, of course, that dogs, pets are property that can be subject to seizure and Fourth Amendment requirements.

[00:23:13] Speaker 02:
But there's always this tension between generalities and specifics.

[00:23:18] Speaker 02:
How much was Officer Grashhorn on notice about

[00:23:22] Speaker 02:
what he could or could not do in the context of when someone's property in here, it's a living thing, a dog, is running up towards him.

[00:23:29] Speaker 02:
Because Mayfield, to me, doesn't really give Officer Grashhorn any notice.

[00:23:34] Speaker 02:
So are you about what he lawfully can do and can't do in that situation?

[00:23:39] Speaker 02:
So are you relying only on Mayfield?

[00:23:41] Speaker 02:
But I thought I heard you say earlier maybe you're saying, well, if you look at the universe of cases, the overwhelming controlling way of authority kind of provides what is clearly established law.

[00:23:50] Speaker 02:
Can you just help me understand your argument?

[00:23:53] Speaker 00:
Yes, Your Honor, it's both.

[00:23:56] Speaker 00:
There's a lot of consistency, both in this circuit and out on this subject.

[00:24:02] Speaker 00:
And I would contend that Mayfield actually does provide a lot of guidance, particularly Mayfield 2, which I know Judge Bacharach was on the panel in that case.

[00:24:12] Speaker 00:
And what is discussed at length in saying, listen, we're granting summary judgment because of qualified immunity.

[00:24:23] Speaker 00:
is they're listing indications of aggressiveness.

[00:24:26] Speaker 00:
The dog that was shot in Mayfield 2.

[00:24:30] Speaker 00:
And you know, I will just note for procedural posture, I don't think it's supremely impactful.

[00:24:36] Speaker 00:
But the plaintiffs were pro se in that case.

[00:24:39] Speaker 00:
And they did, it sounds like, struggle so much to get to record references to create the material fact disputes.

[00:24:47] Speaker 00:
And so largely, the defendant's version of facts was adopted.

[00:24:52] Speaker 00:
Regardless, the law that was given is very clear.

[00:24:54] Speaker 00:
It's saying that there is blood on this white husky.

[00:24:58] Speaker 00:
Livestock had just been attacked.

[00:25:00] Speaker 00:
The police had just been called on account of the livestock being attacked.

[00:25:03] Speaker 00:
There was nearby additional livestock that they were worried about being attacked.

[00:25:07] Speaker 00:
Kansas law is referenced because Kansas law states that officers may kill a dog that has attacked livestock recently.

[00:25:16] Speaker 00:
All that goes into the reasonableness analysis, and all of it is under the umbrella of

[00:25:22] Speaker 00:
assessing imminent danger.

[00:25:24] Speaker 00:
That is, we are looking for any kind of indications that the dog has exhibited any history of aggressiveness, any aggressive traits.

[00:25:34] Speaker 00:
And I believe too, and may fail, that the neighbors were roaming the area with firearms intending to shoot those dogs themselves.

[00:25:43] Speaker 00:
So it was additionally like a very tense and potentially violent situation where

[00:25:51] Speaker 00:
it becomes more reasonable in that case.

[00:25:54] Speaker 00:
Turning to what kind of guidance a case like that gives Officer Grasshorn, it's again, it's funny that this morning in the Esteta Harmon case, Judge Federico, you had asked the question, I believe.

[00:26:11] Speaker 00:
You had said, doesn't there need to be some demonstration of hostile intent to justify the resort to lethal force in the case involving just a knife nearby?

[00:26:21] Speaker 00:
And that thematically has always been at the core of how we do the Fourth Amendment, which is just the mere presence of a knife, the mere presence of teeth on a dog.

[00:26:32] Speaker 00:
That's not enough to just say you can gun down the dog.

[00:26:36] Speaker 00:
What the Fourth Amendment requires is reasonableness.

[00:26:39] Speaker 00:
Reasonableness means necessity.

[00:26:41] Speaker 00:
Necessity involves two things.

[00:26:44] Speaker 00:
One, indications of aggression, and two, imminency.

[00:26:49] Speaker 00:
All of those are absent in this case, conspicuously so.

[00:26:53] Speaker 03:
Doesn't the sort of analogy with Harmon sort of crystallize the dilemma for your side on Prong 2?

[00:27:05] Speaker 03:
Because unlike a suspect evading the police, a dog can't speak.

[00:27:10] Speaker 03:
A dog, you know, we have an officer, anyone, would have to infer a dog's next move based on speculation.

[00:27:20] Speaker 03:
And so what do you do with the defendant, you know, pointed to Kendall?

[00:27:28] Speaker 03:
And when the court concluded that there was not a violation, not just a, not a clearly established violation, but not a constitutional violation,

[00:27:39] Speaker 03:
to shoot that dog.

[00:27:41] Speaker 03:
Now, there the dog was barking.

[00:27:43] Speaker 03:
We don't know whether the dog was barking, I don't think, because the recording doesn't show it.

[00:27:48] Speaker 03:
But how would an officer, for the prong to, be able, in the moments that the officer has to decide,

[00:27:59] Speaker 03:
OK, the dog barked in Kendall, but I don't hear the barking now.

[00:28:05] Speaker 03:
That dog was 90 pounds.

[00:28:07] Speaker 03:
This dog, I can't weigh the herkimer, but probably, I don't know, 35 pounds.

[00:28:14] Speaker 03:
Doesn't the ambiguity of a dog's intent crystallize why an officer should be given considerable latitude at prong two?

[00:28:28] Speaker 00:
I don't think it does, Your Honor, and here's what I'll say to this.

[00:28:35] Speaker 00:
I can imagine a case where what Your Honor is referring to might be an issue, where there's a single bark maybe, something like that, being a grayer area.

[00:28:47] Speaker 00:
In this case, it's so straightforward, and it is the floor kind of like we're talking about, because not only do we have a dog that has complete absence of any aggressive indications,

[00:28:58] Speaker 00:
but a dog that's in fact demonstrating friendly and affiliative behavior.

[00:29:03] Speaker 00:
In that scenario, we are just so far on the other side of the spectrum that it's very easy to deal with both of those prongs.

[00:29:13] Speaker 00:
I am the last person on earth who would want to suggest anything to expand qualified immunity.

[00:29:19] Speaker 00:
However, the reality is if you look across the country,

[00:29:25] Speaker 00:
A lot of officers can get qualified immunity here and do just based on growling and hackles up, you know, very small indications because they're at least getting to danger and in some circuits that's enough.

[00:29:39] Speaker 00:
In Colorado, with the Dog Protection Act stating that you must utilize nonlethal alternatives, we're feasible, we must permit owners to get the dog under control, where you have an officer saying,

[00:29:52] Speaker 00:
I'm not going to do that because that would let people get away with stuff.

[00:29:55] Speaker 00:
Where you have an officer who has testified that Herkimer did not bark or growl.

[00:30:00] Speaker 00:
An officer who listed what he believes to be indications of aggressive behavior, which is hackles up, growling, running like a missile, tail straight back.

[00:30:09] Speaker 00:
He listed them all and then says, and none of those were present in Herkimer.

[00:30:13] Speaker 00:
In that type of a case, we are so safe in the green

[00:30:19] Speaker 00:
on prong two, and if I may just finish my thought.

[00:30:25] Speaker 00:
We don't have to get into that gray area.

[00:30:27] Speaker 00:
On these facts, we are really at the baseline, which is that the appellant is saying, as a matter of law, focus on the time and ignore the fact that there is no danger.

[00:30:40] Speaker 00:
That's now what we're doing on an interlocutory appeal with a motion for summary judgment.

[00:30:45] Speaker 00:
No rational jury is

[00:30:48] Speaker 00:
The standard is no rational jury could find that that was reasonable.

[00:30:51] Speaker 00:
We know we've got the guidance on imminent danger from Mayfield.

[00:30:56] Speaker 00:
And we have, in this case, a video and grassroots himself admitting no indications of aggressiveness.

[00:31:02] Speaker 00:
That should foreclose qualified immunity in this case.

[00:31:05] Speaker 03:
I think I misspoke, by the way.

[00:31:07] Speaker 03:
I think I was misremembering, because on the video, you actually can't hear the audio at that point, right?

[00:31:14] Speaker 00:
The first 30 seconds, there is no audio.

[00:31:16] Speaker 00:
But at the point of the shooting.

[00:31:18] Speaker 00:
You cannot hear it.

[00:31:19] Speaker 00:
Okay.

[00:31:20] Speaker 02:
Yeah.

[00:31:20] Speaker 02:
Counsel, can I have one more before you sit down?

[00:31:23] Speaker 02:
Is the reasonableness concern here the use of lethal force?

[00:31:28] Speaker 02:
In other words, had Officer Grashhorn effectuated a seizure by alternative means, baton, taser, something to subdue hercimer short of lethal force, if that were to happen, if that would have happened, would he be entitled to qualified immunity?

[00:31:43] Speaker 00:
I think that he would certainly be on much square footing to ask for it, Your Honor.

[00:31:48] Speaker 00:
The case law has cleared that where officers attempt non-lethal alternatives and they're unsuccessful first, that you're going to get closer to getting qualified immunity at a summary judgment stage.

[00:32:02] Speaker 00:
And the issue, again, in this case is that he stated, both in his deposition and on scene,

[00:32:10] Speaker 00:
that he doesn't consider non-lethal alternatives because they don't always work.

[00:32:14] Speaker 00:
Shooting the dog is what always works.

[00:32:17] Speaker 00:
There is a whole bunch of both expert testimony and just common sense inferences that can be drawn from this, like that he can just get back in his car, that he can just use his baton.

[00:32:29] Speaker 00:
And again, it's always been Appelli's position that he could have correctly perceived a friendly dog to be a friendly dog and done nothing

[00:32:38] Speaker 00:
And the fact that he said, because friendly dogs can bite, I'm not going to risk it, is the fundamental problem in this case.

[00:32:46] Speaker 00:
And what makes this case really represent such a grave risk, if the appellants' view were to be adopted, in terms of just giving- Thank you.

[00:32:55] Speaker 04:
Thank you, Your Honor.

[00:32:59] Speaker 04:
Thanks to both of you for your arguments this morning.

[00:33:01] Speaker 04:
The case will be submitted.

[00:33:03] Speaker 04:
Council are excused.