[00:00:00] Speaker 03:
Number 24, 1257, Luther G. B. Kyle.

[00:00:06] Speaker 00:
Mr. Steers, you may proceed.

[00:00:10] Speaker 00:
Thank you, Your Honor.

[00:00:11] Speaker 00:
Andrew Steers on behalf of deputies Travis Kyle and Scott Kelly.

[00:00:16] Speaker 00:
May it please the court?

[00:00:18] Speaker 00:
Your Honor, the need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent in an exigency or emergency.

[00:00:28] Speaker 00:
That's from Brigham City v. Stewart, 547 U.S., 389, and a couple other Supreme Court cases.

[00:00:34] Speaker 00:
And in that, they are citing Wayne v. United States, 318, F. Second, 205, a D.C.

[00:00:41] Speaker 00:
Circuit case from 1963, which goes on to state that the business of policemen and firemen is to act, not to speculate or mediate on whether the report is correct.

[00:00:52] Speaker 00:
That's the situation we're presented with here, is we are arguing that the

[00:00:57] Speaker 00:
District Court erroneously concluded that our deputies are not subject to qualified immunity in this case.

[00:01:05] Speaker 00:
The relevant facts are incredibly important here.

[00:01:08] Speaker 00:
On February 11, 2022, at 6.40 p.m., a person called 911, a passerby, and he reported seeing a person break a window.

[00:01:17] Speaker 00:
He then made three contradictory reports about what that person did.

[00:01:22] Speaker 00:
He first stated that it may be an occupant who forgot his keys and was breaking the window to get in.

[00:01:30] Speaker 00:
He then stated that that person may have run away or that that person may be inside.

[00:01:35] Speaker 00:
He repeated the statement about it could be an occupant who lost their keys a couple of times, regardless.

[00:01:40] Speaker 03:
Counsel, was any of that in the complaint?

[00:01:45] Speaker 03:
What was in the complaint was that... Was any of that in the complaint that you just articulated?

[00:01:51] Speaker 03:
Where?

[00:01:52] Speaker 00:
What was in the complaint was that the person ran away and that he may be an occupant who forgot his keys.

[00:01:58] Speaker 03:
Where was that in the complaint, that it may be an occupant that lost his keys?

[00:02:03] Speaker 03:
That was in the 911 call, but was it in the complaint?

[00:02:06] Speaker 03:
We're on a motion to dismiss counsel.

[00:02:09] Speaker 00:
Great point, Judge.

[00:02:11] Speaker 00:
I think you're correct.

[00:02:12] Speaker 00:
I think the complaint simply states that it was someone who ran away.

[00:02:16] Speaker 00:
So I am relying partially here on the 9-1-1 call because the district court didn't do that.

[00:02:21] Speaker 03:
The 9-1-1 call was only mentioned once in the complaint.

[00:02:28] Speaker 00:
I'm arguing, I'm discussing the facts in the 9-1-1 call because the district court did as well.

[00:02:32] Speaker 03:
We're on the noble review of a motion to dismiss a complaint and you're articulating facts from a 9-1-1 call that are not in the complaint.

[00:02:44] Speaker 00:
That's true, Judge, and I'm articulating those facts because the court relied on them.

[00:02:47] Speaker 00:
I'm happy to move on.

[00:02:48] Speaker 03:
But we are reviewing this, Benobo, and we have to apply the correct standard to a rule 12b6 motion.

[00:02:56] Speaker 03:
So why should we be able to consider facts that aren't in the complaint?

[00:03:01] Speaker 03:
If you want to do a summary judgment motion, that's fine, but you didn't do that in district court.

[00:03:06] Speaker 00:
True.

[00:03:08] Speaker 00:
Then I will move on and not discuss facts that are not found in the complaint, Your Honor.

[00:03:12] Speaker 00:
And what is in the complaint is the plaintiff in this case alleges that deputies then arrived on scene shortly thereafter.

[00:03:21] Speaker 00:
They broke out the window.

[00:03:23] Speaker 00:
They removed the screen.

[00:03:25] Speaker 00:
The complaint alleges both that

[00:03:28] Speaker 00:
Deputies did not hear voices inside and the complaint also alleges in paragraph 76 that the deputies did report that they heard voices inside.

[00:03:37] Speaker 00:
We believe that is a crucial fact in this analysis because that corroborates their reasonable belief at the scene.

[00:03:45] Speaker 00:
Which we believe gives rise to the exigency that there were people inside and that they have to act in order to secure the scene and act as if there was somebody inside who was a threat an imminent threat to the lives or to the lives and physical Sorry, my brain's failing me that they were of serious bodily injury of the occupants inside and now that they hear those voices.

[00:04:11] Speaker 00:
Yes judge.

[00:04:12] Speaker ?:
I

[00:04:14] Speaker 00:
I'm sorry.

[00:04:15] Speaker 01:
Well, I have a question.

[00:04:17] Speaker 00:
Yes, ma'am.

[00:04:18] Speaker 01:
The standard for exigent circumstances in this circuit is a two part test.

[00:04:24] Speaker 01:
There first has to be objectively reasonable basis to believe there is an immediate need to protect the lives or safeties of themselves or others.

[00:04:34] Speaker 01:
And secondly, the manner and scope of the search has to be reasonable.

[00:04:40] Speaker 01:
In your brief, you don't really even engage on the second prong.

[00:04:45] Speaker 01:
So why doesn't that mean that you lose on this argument?

[00:04:52] Speaker 00:
We believe that the intrusion was reasonable.

[00:04:56] Speaker 01:
But you don't argue that in your brief.

[00:04:59] Speaker 01:
I mean, I think you have one sentence.

[00:05:02] Speaker 00:
Yes, and I think the brief could have gone a little bit farther on that.

[00:05:06] Speaker 00:
But I do think that

[00:05:08] Speaker 00:
the intrusion was reasonable in the sense that what officers are doing is releasing a canine inside to locate the person and to neutralize them as quickly as possible.

[00:05:20] Speaker 01:
To locate what person?

[00:05:21] Speaker 01:
I mean, the canine was sent inside to bite the first person it found.

[00:05:27] Speaker 01:
Yes.

[00:05:27] Speaker 01:
Right?

[00:05:28] Speaker 01:
So it could have been the homeowner, could have been a child of the homeowner, could have been the homeowner's grandmother.

[00:05:34] Speaker 01:
I mean, how is that reasonable?

[00:05:38] Speaker 01:
to send the dog in to bite anybody?

[00:05:43] Speaker 00:
It's reasonable to send the dog in because when the dog engages with someone and bites someone, that will then immediately direct the deputies to where that person is and they have the ability to arrive there quickly.

[00:05:55] Speaker 00:
Otherwise, they're poking their way through a house without knowledge if it was there.

[00:06:02] Speaker 01:
Under the same circumstances, could they have shot into the house?

[00:06:06] Speaker 00:
No, I don't believe that would be reasonable because I believe a dog is usually less than lethal force.

[00:06:12] Speaker 00:
The dogs are trained to bite and hold.

[00:06:14] Speaker 00:
They're not trained to kill.

[00:06:17] Speaker 01:
Well, in this case, there were serious injuries.

[00:06:20] Speaker 00:
In this case, there were injuries.

[00:06:23] Speaker 01:
And so it's OK.

[00:06:24] Speaker 01:
You send the dog in and it might have.

[00:06:28] Speaker 01:
The person it bit might have been the five year old child of the homeowner.

[00:06:33] Speaker 00:
That could have been the case.

[00:06:35] Speaker 00:
It also could have been the case that there was somebody being held at gunpoint and they bit a person who was holding them at gunpoint.

[00:06:40] Speaker 00:
There are multiple factual situations, I think, that we can look at here.

[00:06:45] Speaker 00:
But yes, certainly, we would have to deal with that if that were the factual situation that a child had been bitten.

[00:06:49] Speaker 00:
In this case though, who was bitten was the occupant of the home, something the deputies didn't know, which is alleged in the complaint, until they had him outside on the journey.

[00:06:59] Speaker 00:
So our argument is certainly under the first of the Graham factors that at the point where they released the dog inside, they had arguable probable cause that a felony burglary was being committed, a home invasion burglary of a residence at night.

[00:07:13] Speaker 00:
which gives them a heightened level of concern because homes are most often occupied by their occupants at night when they're home.

[00:07:20] Speaker 00:
So we believe under those circumstances sending in a dog was the fastest way to resolve the situation and was a reasonable amount of force under the situation.

[00:07:30] Speaker 04:
I'm still not sure what your answer is on the five-year-old child.

[00:07:34] Speaker 04:
If the dog goes in and does the same thing to a five-year-old child, you're saying well that would be different and that's not our case.

[00:07:41] Speaker 04:
But behind that, what I'm hearing you say is that would be OK, too.

[00:07:45] Speaker 04:
That would be reasonable.

[00:07:46] Speaker 04:
Is that right or not?

[00:07:48] Speaker 00:
I think there are circumstances where that might be reasonable, Judge.

[00:07:50] Speaker 00:
With a five-year-old?

[00:07:53] Speaker 00:
With a five-year-old, I think.

[00:07:54] Speaker 04:
Well, circumstances where it might and circumstances where it might not.

[00:07:59] Speaker 04:
What are you talking about?

[00:08:00] Speaker 04:
What are the circumstances where it wouldn't be OK then?

[00:08:04] Speaker 00:
Circumstances where it wouldn't be okay, or I would argue where they have less probable cause to at the point where they send the dog in to believe that there's a burglary, or when they know that there's a child inside.

[00:08:14] Speaker 00:
I think the circumstance where they're unsure who's inside, they hear voices inside, they have evidence of a violent break into the house, which breaking the window we would argue is a violent action.

[00:08:24] Speaker 00:
And then they send the dog in that that is the fastest way to resolve the situation and is a reasonable amount of force because the dog is trying to bite.

[00:08:34] Speaker 00:
And even though it can cause serious injuries, they're trained to go after the arm or the leg.

[00:08:39] Speaker 00:
So those are situations.

[00:08:41] Speaker 04:
Well, the complaint says that he was in bed sleeping.

[00:08:45] Speaker 04:
Yes.

[00:08:46] Speaker 04:
And he's the only occupant.

[00:08:47] Speaker 04:
So what do we do with this voices being heard thing?

[00:08:51] Speaker 04:
Obviously that's wrong.

[00:08:53] Speaker 04:
Can't the court infer that in fact there were not voices being heard based on the complaint?

[00:09:00] Speaker 00:
Based on the complaint, I think because the complainant does allege that officers said they heard voices, I think the plaintiff had put that fact at issue.

[00:09:09] Speaker 00:
And the plaintiff does not allege that officers knew that he was the only occupant or knew that he was asleep at the time.

[00:09:15] Speaker 00:
So he does allege that they heard voices.

[00:09:19] Speaker 00:
I mean, that's a fact which the plaintiff alleges, given that allegation.

[00:09:23] Speaker 03:
The paragraph 76,

[00:09:26] Speaker 03:
that you're referring to.

[00:09:27] Speaker 00:
And I'm sorry, I misspoke.

[00:09:28] Speaker 00:
It was 75.

[00:09:29] Speaker 00:
I apologize, Judge.

[00:09:31] Speaker 03:
Well, OK, that's not a problem.

[00:09:35] Speaker 03:
Sorry.

[00:09:35] Speaker 03:
But it says, defendants claim to have heard something of someone speaking from inside the house.

[00:09:42] Speaker 00:
Yes.

[00:09:43] Speaker 03:
It doesn't seem to me that they're alleging that someone was speaking from inside the house.

[00:09:48] Speaker 03:
They're just saying that's what the defendants claim.

[00:09:51] Speaker 00:
Yes, but the test in this matter, and certainly if we look at

[00:09:55] Speaker 00:
Graham, what Graham also talks about is the test is what is a reasonable officer, an objectively reasonable officer in the place of the officers that night.

[00:10:04] Speaker 00:
And with the officers claiming they heard voices, that puts them in a situation where they believe there's someone who is at least speaking inside the house with a broken window in indicia of a burglary.

[00:10:16] Speaker 00:
So it's reasonable for them at that point to believe that it is necessary to use this amount of force and to effect an entry at that point.

[00:10:26] Speaker 01:
What about the other grand factor?

[00:10:29] Speaker 01:
Were the officers in danger at the moment that they sent the dog into the house?

[00:10:35] Speaker 00:
I think officers entering a residence where they don't know who's in there are always in danger.

[00:10:40] Speaker 01:
They were outside the residence and they actually had officers all the way around the house.

[00:10:45] Speaker 01:
So they weren't in any immediate danger when they sent that dog in.

[00:10:49] Speaker 00:
No, and I apologize, Judge.

[00:10:53] Speaker 01:
The second question does not weigh in favor of the officers here.

[00:10:58] Speaker 01:
And what about the third one?

[00:11:00] Speaker 01:
How can Mr. Luther have been resisting arrest when he was asleep in his bed and didn't have a clue that any of this was going on?

[00:11:11] Speaker 00:
And I think the third Graham factor is the weakest Graham factor.

[00:11:14] Speaker 00:
Of course, there's the argument that the officers believed he was hiding.

[00:11:18] Speaker 00:
But I think that's pretty weak when you just look at the complaint and it's obviously alleged that he was sleeping.

[00:11:23] Speaker 00:
So I would agree that was against us.

[00:11:25] Speaker 00:
However, the second Graham factor is not only the officers, but others.

[00:11:28] Speaker 00:
And that is what we're arguing is that the officers, when they're looking at a residence at night and they have to believe that it is occupied, especially since they heard a voice that they're seeking to protect the others, not themselves.

[00:11:39] Speaker 01:
But the complaint alleges that they didn't hear any signs of violence or pleas for help.

[00:11:44] Speaker 01:
I mean, to me, that makes it very different from Brigham City, where they could look in the house and see a juvenile being punched, right?

[00:11:53] Speaker 00:
Yes, I do think Brigham City would be distinguishable.

[00:11:56] Speaker 01:
So are you saying any time officers see a broken window and they hear voices in the house, they can send in a police dog to bite the first person they see?

[00:12:07] Speaker 00:
No, I'm not saying that.

[00:12:09] Speaker 00:
I think anytime that officers have indicia of a home burglary, and I also think it's not just a home, it's a home at night, so that increases the officer's belief that there are other residents in the house, and then you have the voices inside.

[00:12:22] Speaker 00:
So I think on the face of the complaint, they certainly have a reasonable belief that there's an exigency at that point.

[00:12:27] Speaker 00:
And I'm not asking the court to make a blanket statement at all that any residents, any broken window, they can simply send someone inside.

[00:12:36] Speaker 00:
I think on these facts, and I'm adding in the broken window, or I'm adding in the fact that they say they heard voices inside as an added fact.

[00:12:46] Speaker 00:
I think that that increases the reasonable belief that there are people inside and that the fastest way to resolve the situation is to send the dog in.

[00:12:55] Speaker 03:
This is a complaint by counsel.

[00:12:57] Speaker 03:
The allegation in the complaint is that they claim to hear someone.

[00:13:01] Speaker 03:
So not voices, but maybe one voice.

[00:13:07] Speaker 03:
But apart from that, I'd like to ask you about something different.

[00:13:11] Speaker 03:
Why wasn't the search of the house after Mr. Lucci left for the hospital an unconstitutional warrantless search?

[00:13:20] Speaker 03:
I mean, by that point, they had a driver's license,

[00:13:26] Speaker 03:
He was the occupant, but they still went in and searched the house.

[00:13:30] Speaker 03:
I mean, there's no exigency at that point.

[00:13:32] Speaker 03:
So what's the justification for that?

[00:13:36] Speaker 00:
justification for that is even though he has said there's no one home under the facts of the complaint he was asleep and we have a broken window so what police are doing is just simply a protective sweep to make sure there's no one else in the home they do still have a broken window and they have the ability and what they're doing at that point we would argue is simply screening to make sure there's no one else injured in the home or hiding in the home.

[00:13:57] Speaker 01:
That's not what the complaint alleges it was a full-on search not a sweep.

[00:14:03] Speaker 00:
Yes that is what the complaint alleges.

[00:14:05] Speaker 01:
So, assuming we take that allegation as true, is there any argument that that search is not unconstitutional?

[00:14:13] Speaker 00:
I would argue that that search is reasonable to the degree that it is simply a search for other people, to the degree that it would be a full-on search.

[00:14:20] Speaker 00:
I think it would be hard to argue that was also unconstitutional.

[00:14:23] Speaker 04:
Well, it's the plaintiff's house.

[00:14:24] Speaker 04:
Why don't you have to get the plaintiff's consent to search for

[00:14:29] Speaker 04:
burglars in his house.

[00:14:30] Speaker 04:
If the plaintiff doesn't want cops in there to search for people in his house, seems like he can say, say so.

[00:14:39] Speaker 00:
That's true.

[00:14:40] Speaker 00:
He could have your honor.

[00:14:40] Speaker 00:
And I don't really have an argument on that point.

[00:14:43] Speaker 04:
So you concede that he had to consent to that second search?

[00:14:47] Speaker 00:
I concede that there is that one way this could have been a legal search would be for him to consent.

[00:14:52] Speaker 00:
I think that doing a quick protective sweep, which is what I would argue this is, obviously understanding that we're at the motion to dismiss stage and we have to take the inferences in favor of the plaintiff.

[00:15:01] Speaker 00:
But I would argue that a quick protective sweep is allowed under the Constitution.

[00:15:11] Speaker 00:
And I think I'm out of time.

[00:15:13] Speaker 00:
Thank you very much.

[00:15:14] Speaker 03:
Thank you, Council.

[00:15:17] Speaker 03:
Mr. Schiffler.

[00:15:22] Speaker 03:
You have to unmute your mic.

[00:15:26] Speaker 02:
My apologies.

[00:15:28] Speaker 02:
Good morning, Your Honors.

[00:15:29] Speaker 02:
My name is Zach Schiffler, attorney for Plaintiff of Pellee.

[00:15:32] Speaker 02:
May it please the court.

[00:15:34] Speaker 02:
Respectfully, this is an easy case, especially at the motion to dismiss stage.

[00:15:38] Speaker 02:
It's not even close.

[00:15:40] Speaker 02:
The linchpin to defendants' entire argument is that an exigency existed, which did not exist here.

[00:15:46] Speaker 02:
Defendants improperly attempt to shift the burden to plaintiffs to establish the absence of an exigency, which essentially means that courts would begin their analysis by assuming an exigency and then requiring plaintiffs to disprove that assumption.

[00:16:00] Speaker 02:
That mode of analysis would contravene well-established law.

[00:16:04] Speaker 02:
which requires police officers to justify their conduct when they invade the sanctity of a person's home.

[00:16:11] Speaker 02:
And of course, we all know Fourth Amendment protections are the greatest when a person is inside their home, their castle.

[00:16:17] Speaker 02:
Without an exigency, defendants could not enter plaintiff's home.

[00:16:20] Speaker 02:
They can't enter the home.

[00:16:21] Speaker 02:
The dog doesn't go in.

[00:16:23] Speaker 02:
The dog doesn't go in.

[00:16:24] Speaker 02:
Plaintiff is bitten and arrested.

[00:16:26] Speaker 02:
Without an exigency, none of what happened here is justified.

[00:16:30] Speaker 02:
And without an exigency, plaintiff was not even required to leave his house, even if the officers were outside yelling and demanding that he exit.

[00:16:38] Speaker 02:
Story v. Taylor clearly establishes this point.

[00:16:43] Speaker 02:
And so as you've seen in the briefing and you hear from my friend across the aisle, defendants are making the assertion that they reasonably suspected a burglary and believe someone was being held hostage inside the home.

[00:16:56] Speaker 02:
On the first prong of exigency, defendants did not have reasonably trustworthy information of a burglary, much less a hostage situation.

[00:17:05] Speaker 02:
It was a mere hunch, and they used significant force based on this mere hunch.

[00:17:10] Speaker 03:
Well, it wasn't more than a hunch.

[00:17:15] Speaker 03:
They did have information that someone had broken the window at night at a home.

[00:17:22] Speaker 03:
Why wouldn't that at least rise to the level of

[00:17:25] Speaker 03:
reasonable suspicion of a home burglar.

[00:17:29] Speaker 02:
Because, as the court has already pointed out, the complaint merely alleges that someone broke the window and ran away.

[00:17:35] Speaker 02:
Running away after breaking a window does not satisfy the element of an unlawful entry.

[00:17:42] Speaker 03:
So just based on the... Council, did the district court err in relying on the 911 call and the other audio

[00:17:53] Speaker 03:
files that were submitted in the defendant's motion?

[00:18:00] Speaker 02:
Yes, for two reasons.

[00:18:02] Speaker 02:
One, I mean, really, because it's under inclusive and over inclusive.

[00:18:06] Speaker 02:
Because it doesn't include all communications with the officers prior to sending the dog through the window.

[00:18:11] Speaker 02:
The dispatcher told the 911 caller that officers would call him, but that conversation is obviously not part of that recording.

[00:18:19] Speaker 02:
It's over-inclusive because it was not limited to the 911 call from the neighbor, which is the only portion of the recording mentioned in the complaint.

[00:18:27] Speaker 02:
Nonetheless, because the 911 caller does make vague and equivocal, and as counsel said, contradictory statements, we think the net effect of that 911 call actually favors plaintiff on this appeal particularly.

[00:18:40] Speaker 02:
So although I do believe the district court aired and considered it, I think ultimately it favors plaintiff.

[00:18:50] Speaker 02:
And so going back to the evidence that they did not have supporting a burglary, because again, the complaint alleges that the person ran away, which is not consistent with an unlawful entry.

[00:19:02] Speaker 02:
And even if the court were to consider the 901 call, the 911 caller said multiple times that the person may have just broken their keys or forgot their keys and broken the window to get in on a freezing cold night, which again is not evidence of a burglary.

[00:19:17] Speaker 02:
So I maintain my position that they had

[00:19:20] Speaker 02:
zero information, nothing rising beyond a hunch of a burglary, much less a hostage situation because nobody recorded multiple voices or any signs of violence coming from inside the house.

[00:19:34] Speaker 02:
And as Judge McHugh, you pointed out, there are two prongs and quite frankly, defendants lose on both prongs here.

[00:19:40] Speaker 02:
Even if the court were to find an exigency, which it should not, the scope and manner of the response to the alleged exigency was reckless and objectively unreasonable for the reasons the court has already pointed out.

[00:19:53] Speaker 02:
The dog is going to go inside to find and bite whomever it finds.

[00:19:57] Speaker 02:
This isn't a situation where the police had specific information about a person inside that wasn't allowed to be.

[00:20:04] Speaker 02:
It's not like they can give the dog a scent or a trail to follow and say, hey, only go find and bite this person with this smell.

[00:20:11] Speaker 02:
They didn't have any of that information.

[00:20:13] Speaker 02:
And again, as the court has pointed out, if there was a hostage inside, if there was a victim, I mean, the victim's probably likely trying to get away from its captor.

[00:20:20] Speaker 02:
These dogs are trained to bite resisting people.

[00:20:23] Speaker 02:
The dog is going to misconstrue that and then bite the victim, making all of this just even worse than it already is.

[00:20:28] Speaker 04:
What would have been a reasonable response?

[00:20:31] Speaker 02:
That's very simple.

[00:20:32] Speaker 02:
They walk up, they knock on the door.

[00:20:35] Speaker 02:
They lean their head over to the broken window.

[00:20:37] Speaker 02:
They shout out, Douglas County Sheriff's Department, police are here.

[00:20:41] Speaker 02:
We see there's a broken window.

[00:20:43] Speaker 02:
Is everyone inside okay?

[00:20:45] Speaker 02:
They listen with their ears.

[00:20:46] Speaker 02:
They look with their eyes.

[00:20:48] Speaker 02:
They use their senses to get any corroborating evidence or use their senses to dispel any suspicion they had of a burglary, a hostage situation, anything like that.

[00:20:58] Speaker 04:
Then he's asleep, doesn't respond, then what?

[00:21:02] Speaker 02:
then they use their senses to see if there's anything violent, if there's any.

[00:21:14] Speaker 03:
Council, I think we've lost the feed.

[00:21:18] Speaker 03:
Let me ask the clerk.

[00:21:21] Speaker 03:
Perimeter.

[00:21:25] Speaker 03:
To see if we can get back on track, I think.

[00:21:29] Speaker 03:
Mr. Schiffler, can you hear me?

[00:21:31] Speaker 02:
I hear you now, it got a little choppy for a second.

[00:21:34] Speaker 03:
Okay, I think you kind of froze up and then we lost you, but maybe why don't you dial back maybe 30 seconds and go from there.

[00:21:44] Speaker 02:
Okay, let's rewind where we'll say.

[00:21:48] Speaker 02:
So what do they do?

[00:21:48] Speaker 02:
They walk up to the door, they knock on the door, they make announcements through the window.

[00:21:53] Speaker 02:
Douglas County Sheriff's Department, Judge Phillips, I think you asked, you know, if there's no response, what do they do?

[00:21:59] Speaker 02:
Well, they continue to observe.

[00:22:01] Speaker 02:
They listen.

[00:22:01] Speaker 02:
They're more than welcome to hang outside and listen and see if any lights come on, hear of any sounds, see if there's anything supporting this wild allegation that there's a hostage being held captive inside.

[00:22:14] Speaker 02:
If they don't get any corroborating evidence, they can hang out there as long as they want, or they can go back and do some police work on a different task.

[00:22:23] Speaker 01:
What do you make of the fact that the screen was replaced in the broken window?

[00:22:29] Speaker 01:
Isn't that what's alleged?

[00:22:31] Speaker 01:
Is that the screen had been put back?

[00:22:37] Speaker 02:
Are you talking about after the incident?

[00:22:39] Speaker 01:
No.

[00:22:40] Speaker 02:
After they went through?

[00:22:40] Speaker 01:
And they came and they saw the broken window.

[00:22:43] Speaker 01:
I think the record says that the screen was in place and they had to remove the screen and break out the rest of the glass to put the dog in.

[00:22:53] Speaker 04:
It's paragraph 20 of your complaint.

[00:22:56] Speaker 01:
Thank you.

[00:23:02] Speaker 01:
To me, that seemed like an odd thing for a burglar to do.

[00:23:07] Speaker 02:
Sure.

[00:23:08] Speaker 02:
So let me clarify, and perhaps that could have been elaborated more specifically.

[00:23:12] Speaker 02:
The way that that paragraph is intended to read is that the screen was

[00:23:19] Speaker 02:
broken, it allowed entry, but it needed to be removed in order to make it easier to put the dog through safely.

[00:23:25] Speaker 02:
So it's not like it was a fully intact screen.

[00:23:28] Speaker 02:
There was a hole cut through it.

[00:23:29] Speaker 02:
That's how the person entered the house.

[00:23:31] Speaker 02:
That's how plaintiff entered the house after breaking the window.

[00:23:33] Speaker 02:
He just didn't entirely remove the screen.

[00:23:35] Speaker 02:
So the structure of the screen was there, but there was a hole in it.

[00:23:39] Speaker 01:
All right.

[00:23:39] Speaker 01:
I misunderstood the allegation.

[00:23:41] Speaker 04:
It could have been.

[00:23:42] Speaker 04:
You read it literally and isn't that what we're supposed to do in a motion to dismiss all this other talk of

[00:23:47] Speaker 04:
cut screens.

[00:23:49] Speaker 04:
Do we consider that?

[00:23:50] Speaker 02:
So the screen was in place and I think a reasonable inference since we know that the plaintiff was inside, he broke the window.

[00:23:58] Speaker 02:
The reasonable inference is since he broke the window to get inside, he also had to cut the screen in order to get inside.

[00:24:08] Speaker 03:
Yeah, so you referred to clearly established law a few minutes ago.

[00:24:14] Speaker 03:
What's your best case to show that sending the dog in the house to bite was a violation of clearly established Fourth Amendment law?

[00:24:25] Speaker 02:
Well, at the Supreme Court, the court sets out very clear, bright line rules in Brigham City.

[00:24:31] Speaker 02:
In the 10th Circuit, I would say McNerney, I believe is how you pronounce it, Story v. Taylor,

[00:24:37] Speaker 02:
And then I would also mention this court's recent decision in Cuervo v. Sorensen, which is particularly instructive on the second prong of exigency.

[00:24:45] Speaker 02:
I know Judge McHugh, you're on that panel, and Cuervo officers were serving a search warrant relating to a stolen snowcat.

[00:24:55] Speaker 02:
When the SWAT team arrived, there was no attempt to contact anyone inside and the officers chose to fire tear gas into the house.

[00:25:02] Speaker 02:
As the court stated in oral argument, serving a search warrant doesn't automatically mean officers get to use significant force.

[00:25:09] Speaker 02:
I think that's especially important here because the officers didn't even have a warrant.

[00:25:13] Speaker 02:
They didn't have an order from a neutral third party, a judge saying there was probable cause of a crime or that there's probable cause that evidence of a crime would be found at this location.

[00:25:22] Speaker 02:
Instead, here, the defendants acted on the vague and equivocal call of a neighbor whose reported dispatch clearly indicated that there may not have been any crime at all.

[00:25:33] Speaker 02:
And echoing comments that have been made here during oral argument for Cuervo, Judge Carson asked the counsel for defendants, if officers are serving a search warrant at my grandmother's house and she doesn't open the door, are they allowed to just tear gas her?

[00:25:49] Speaker 02:
Judge McHugh, I believe it was you that echoed that

[00:25:52] Speaker 02:
rhetorical question by stating that not opening the door is not enough to justify an armed assault according to Supreme Court law.

[00:26:00] Speaker 02:
There's nobody dangerous inside.

[00:26:02] Speaker 02:
There's no evidence of anyone being dangerous inside.

[00:26:05] Speaker 02:
And this level of force is excessive per se.

[00:26:08] Speaker 02:
The same results should apply here.

[00:26:10] Speaker 02:
So Judge Matheson, I say McNerney, Story V. Taylor, and Cuervo for its persuasive value.

[00:26:18] Speaker 01:
Do we have?

[00:26:19] Speaker 01:
Oh, sorry.

[00:26:20] Speaker 01:
And looking at your excessive force claim, do we have to break it out into pre-restraint and post-restraint force?

[00:26:31] Speaker 01:
Our cases tend to look at those separately, don't they?

[00:26:34] Speaker 02:
I would have agreed with that up until VET.

[00:26:41] Speaker 02:
And as we point out in our briefing,

[00:26:44] Speaker 02:
That says that you don't get to use significant force without a legitimate justification, such as when a person is subdued or poses no threat.

[00:26:55] Speaker 02:
Here, we fall in the latter part of that disjunction, as the court has already pointed out during the first part of oral argument.

[00:27:00] Speaker 02:
There was no indicia of violence going on.

[00:27:04] Speaker 02:
There was no indicia of an ongoing active threat on the inside of the house.

[00:27:08] Speaker 02:
And so while many of this court's cases do involve a subdued, already apprehended subject, I don't believe the case law restricts it to someone who's subdued or apprehended.

[00:27:21] Speaker 02:
And the moreover being subdued and apprehended is up to interpretation.

[00:27:25] Speaker 02:
For example, the vet opinion that you offer, Judge McHugh, doesn't have the word handcuff, handcuffs or handcuffing anywhere in it.

[00:27:32] Speaker 02:
So although the court acknowledged that the plaintiff in that case was apprehended or subdued,

[00:27:38] Speaker 02:
it did not describe the way in which he was apprehended or subdued.

[00:27:43] Speaker 01:
I don't know.

[00:27:43] Speaker 01:
Does it really matter if he's subdued?

[00:27:48] Speaker 02:
Oh, well, I mean, that just makes it even stronger.

[00:27:50] Speaker 02:
Of course, if a dog is biting a person in handcuffs or a person that's under control of an officer, I think that just makes the case even stronger.

[00:27:59] Speaker 02:
Where I'm arguing is that it's not limited to being subdued or pre-restrained.

[00:28:06] Speaker 02:
salient question as whether the person poses an immediate threat at the time the officers use force.

[00:28:17] Speaker 02:
And so, finishing up on the

[00:28:20] Speaker 02:
Unlawful entry claim.

[00:28:22] Speaker 02:
I mean, based on the allegations on the complaint, no reasonable officer would have reasonably believed that a person needed emergency aid, nor would a reasonable officer have believed that blindly sending a canine into the home was a reasonable response to this type of agency under these circumstances.

[00:28:39] Speaker 02:
As I said, defendants lose on both prongs of exigency.

[00:28:42] Speaker 02:
The legal contours of a warrantless entry into the home are truly beyond debate.

[00:28:48] Speaker 02:
and qualified immunity should be denied on that claim.

[00:28:52] Speaker 02:
I would like to move on.

[00:28:53] Speaker 03:
Could I just ask you on the second, well, I've been calling it the second search, but it's the search of the home after he's taken to the hospital.

[00:29:05] Speaker 03:
I don't see a lot of discussion of that search in the briefs or the district court opinion.

[00:29:15] Speaker 03:
There's a little bit, but are you even

[00:29:17] Speaker 03:
relying on that second search at this point for your claim?

[00:29:22] Speaker 02:
Yes, Your Honor, we are.

[00:29:23] Speaker 02:
And the reason that wasn't the focus of a lot of discussion, at least from our part, is because that's not where the damages actually flowed from.

[00:29:29] Speaker 02:
Now, I agree there are damages, just from someone passing the threshold without a legal justification, that violation of the sanctity of a home, there are damages, but that's not quite the same as being awoken in your bed by a dog that you don't own, that's not supposed to be in your house, jumping onto your bed, biting your abdomen, your hand, your forearm, and your upper arm.

[00:29:51] Speaker 02:
So while that is a constitutional search because they did not have a warrant, they did not have consent, and they had already dispelled any

[00:29:58] Speaker 02:
unreasonable belief of an exigency, there was no reason to go in for that second search.

[00:30:03] Speaker 02:
So I do maintain that as a second unconstitutional search, but I also acknowledge that it wasn't a heavy part of our briefing because it wasn't the focus of where the damages came from.

[00:30:15] Speaker 02:
Moving on to the excessive force, starting with the first factor, as I've already indicated, defendants did not have a reasonable belief of burglary.

[00:30:25] Speaker 01:
That's not what they're arguing.

[00:30:26] Speaker 01:
They're arguing criminal mischief.

[00:30:30] Speaker 02:
Well, actually, I believe counsel just indicated a moment ago that they argued that they had arguable probable cause for burglary, but I do acknowledge that that was not in their briefing.

[00:30:40] Speaker 02:
Even for criminal mischief, such a low-level nonviolent misdemeanor would not justify this level of significant force, particularly when you're dealing with a non-fleeing person.

[00:30:49] Speaker 02:
KCV City of Federal Heights clearly established that bright line principle.

[00:30:54] Speaker 02:
It applies with obvious clarity here.

[00:30:56] Speaker 02:
Third, as the court has already pointed out,

[00:30:59] Speaker 02:
Uh, it's basically impossible for plaintiff to have resisted or fled police under these circumstances.

[00:31:05] Speaker 02:
So because Graham applies with obvious clarity along with this court's decisions in Casey, Morris v. No, and vet, the defendants were on clear notice that their use of significant force without an immediate threat violates the fourth amendment.

[00:31:19] Speaker 02:
I see I am over time, but if there are any other questions, I would be happy to answer them.

[00:31:27] Speaker 03:
Thank you, counsel.

[00:31:27] Speaker 03:
I think you're just right because we interrupted you, but I think he's both had equal time and we don't have time for rebuttal.

[00:31:37] Speaker 03:
So we will, unless there aren't any other questions, I don't think they're on.

[00:31:43] Speaker 03:
We will take the case as submitted.

[00:31:47] Speaker 03:
We appreciate your appearing before us via Zoom this morning.

[00:31:52] Speaker 03:
Counsel are excused and the court will stand in recess.