the black hoodie with a hood up, blue jeans, black backpack. Okay, air three. I got one jumping fences now. And let's make sure everybody has their spinners and their spots on so we can get this guy. Yeah. 2609 no longer have visual of them. Yeah. So, we got some pretty uh tasty new hotspots inside our garbage can. Dogs located the garbage can. Shut your hands. Shut your hands. Welcome back to the Lackluster channel. According to a lawsuit against the city of San Jose and multiple officers, on February 7th of 2020, Mr. Anthony Poretta's girlfriend had stolen two bottles of tequila, and on her way out of the store, an employee attempted to grab and detain her. Anthony saw the incident from the parking lot, ran to her aid, and the two fled the scene on foot. The shop employee called 911, and it just so happens that a police helicopter was flying nearby and responded to the scene. 61 Mary 4 I copy your head towards that 1066 66 Mary one to fill 66 Mary one code for copy that we got the code for we'll head to the 1066 control what's it 20 male is hiding in the bushes white male 30 to 35 56150 with a black hoodie with a hood up blue jeans black backpack suspect said he was looking for his girlfriend which location is he at and eventually found Anthony running through a neighborhood we just need the guy street side just to put his lights on street side just to keep this guy hunkered if he's still in the bushes. And just a heads up, there's a male and female walking eastbound on Aloney on the uh south sidewalk. That patrol car will be right up to your left right there. There's two of them. Now realizing that he was being followed, he began hopping fences. Okay, air three. I got one jumping fences now. Heading uh southbound now. He's heading back to the corner. Anthony then hid underneath a large tree in the backyard of a private residence. Air three, copies. I'll keep a guy an eye on the guy who's jumping the fences. The department established a perimeter as the helicopter urged Anthony to surrender through its loudspeaker. Control air. I'm going to give you four more addresses that we're going to use to split this perimeter to cut it cut it up. When you're clear, let me know. Air 3, let's get K949. Considering this is a 211 2K9 49. So guys in that court, just spread out your spotlights a little bit. Hopefully we can keep this guy pinned down in this corner. And let's make sure everybody has their spinners and their spots on so we can get this guy. The chopper circled the area and kept an eye on his location for nearly an hour and a half. And during that time, the helicopter even had to leave once to refuel. As soon as air support leaves, this guy's probably going to stop moving. We're going to try to hot fuel and then hop back up again. And we're just going to hold in wait for you guys to come back. Okay, killer. Just just know that the dude's probably going to move as soon as the road blades disappear. Backyard will be a splinter. So when you get a second body, we'll have you grab that backyard as well. Copy. We're getting six units. Code three for Willington. suspect on foot. I'm not worried about cars right now. Okay, copy. Upon returning, the helicopter found that Anthony was still underneath the tree. And from air 3, the suspect still hasn't moved. He saw the fence line uh underneath the tree. Suspect has not moved. And now, an hour and a half later, he leaves the shelter of the trees canopy. All right, from 3, looks like subject's walking out to the court. He's walking along the uh D-David's side. All right. Now, he's standing by the uh David Charles corner of the residence in the backyard. I'm going to continue with announcements since it does look like he's trying to surrender. So, actually, there he goes. Now, he's walking to the uh gate on the uh David side. Anthony now finds another place to hide. Looks like he's trying to hunker down along the D. David side of 2609. Yeah, he's sitting down by a uh bunch of detritus and garbage cans. The helicopter continues to observe from above as they pass over the yard, but on one pass, the helicopter loses sight of Anthony. Yeah, 2609 no longer have visual of him. He's still in that general area, though. We would have seen him pop out. May have jumped into a garbage can. It continues to use its forwardlooking infrared camera, commonly referred to as Fleer. This camera is a thermographic device that creates an image using heat from infrared radiation instead of visible light. This fleer camera is so sensitive that it picks up the radiant heat that Anony's body left on the air conditioning unit he was leaning against moments ago. And it only took 30 seconds for the trash can Anthony had crawled into to start showing heat signatures from Anony's body. Yeah. So, we got some pretty uh tasty new hot spots inside our garbage can. With each new pass, the heat signatures get brighter, indicating he was inside the trash can. Basically, he's at the same location, just inside a large like the green bin. Uh the recycling garbage, the big ones. The helicopter announces with its speakers that officers were preparing to use a K-9 unit. We're going to be making our entry into that yard, but we'll be going in on the C4 side of that yard. And eventually, the officers enter the property to extract Anthony. And there could be two cuz the X-ray is unknown where she's at. [Music] [Music] Let's go. Push forward. Just so you guys know, there's only five of us. Search. Search. Search. Watch your shade. Search. Search. Search. No. [Music] I'm going to keep it down here. All right, let's keep pushing forward. Someone pick up here. The right to the left here. Yeah, just hold. Just a few moments later, the dog finds its target. Someone needs to look up to the left. Dogs located the garbage can. Alert alert. Good boy. Abah. Be careful. Hey, hats and poles right there. Great. According to the lawsuit, the officers never announced themselves or attempted to give Anthony a chance to come out of the trash can or surrender. Instead, they tipp the can over. Standby. That's moving. [Music] I don't think you're going to get leverage on your shade. I don't think yep. Watch. Shut your hands. Shut your hands. Hands. Hands. Do not fight the dog. I'm going to go to your right. The dog. Do not fight the dog. I got the head. Let go of the dog. Anthony can be heard trying to surrender and the dog bites the only part of his exposed body. First his face and then his neck, crushing his throat. Jesus, stop biting. Stop biting. Stop biting. The force behind a German Shepherd's bite is 1,200 lb per square inch. Their teeth curve inward, preventing its prey from escape. Because of this, K-9 officers are trained to remove a bite in several different ways, but never to pull back against the curvature of the canine's teeth. Officer Jeffrey received that training and elected instead to pull on his canine as it remained latched around Anony's neck, pulling with enough force to lift the dog and Anony's torso off the ground. His arms hung limp behind him as the dog continued its deadly attack, shaking its head violently from left to right. It took a full 60 seconds for the dog to release. Code three. Have him come straight to the scene. Breathing. How's the neck? A394. As a result, Anthony suffered multiple puncture wounds and deep lacerations to his neck. His hyoid bone and thyroid cartilage were broken and one vertebrae was partially crushed. There three. He's 10:15. So make sure you tell fire that it's clear for fire so they don't stage. Have them roll directly to the scene. His larynx suffered such profound trauma that once a talented singer had now lost the ability to sing at all. The lawsuit supported by body cam claims that no officer present made any attempt to rescue Anthony from the attack, though each had the duty and ability to do so, suggesting that had the dog been attacking an officer in a similar manner, it would have been tased or shot. Instead, officer Nails stood by inches from Anthony, holding a pair of handcuffs, doing nothing to intervene. She handcuffed Anthony as he lay on the ground with his throat torn open. Sergeant Hustmbler, a canine sergeant with superior knowledge and training, held Anony's arm and stepped on his face, giving the dog free access to continue its attack, while Officer Alaman, stepped on Anony's shoulder and held a gun to his face. It should be noted that the San Jose Police Department has more use of force with dogs than any other city in the San Francisco Bay area. Outside of that, it is well known that canines are often inaccurate in detecting narcotics and explosive ordinance. They can also be trained relatively easily to false hit, allowing officers a simple yet effective tool to bypass our Fourth Amendment rights. KTVU further found out that there are no statewide standards on their use of force in California and how often police deploy K9 units varies wildly between departments. Anthony pleaded guilty to being an accessory in the tequila incident and was sentenced to 2 years in jail. There is nothing unique about using a dog to attack someone as far as a use force is concerned that can't be replicated by using another weapon. Officer Michael Jeffrey was investigated for a second dog bite incident in 2021 that resulted in the mauling of a man's leg. Internal affairs found no wrongdoing, but his chain of command reversed the findings, kicking officer Jeffrey off the K9 unit, a 10-hour loss of pay, and forcing the dog to retire. Finally, on March 25th, the San Jose City Council unanimously approved a $ 1.6 $6 million settlement to Anthony after refusing to fight the case. Sergeant Hadenbowler found his name attached to a federal lawsuit stemming from another dog bite incident from the year prior. Though the sergeant was not the dog handler at the time, the district court refused to dismiss him from the lawsuit and stripped all of the officers involved of their qualified immunity. They quickly appealed to the 9inth circuit. My name is Kendra McGee. I'm an attorney for the city of San Jose and I represent the appellent uh individual officers in this case. Your honors, this case turns on the second prong of the qualified immunity analysis. 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 uh in the circumstances that he faced on the evening of his encounter with the plaintiff can I ask a threshold question before we get there I did not see an argument by the city that these officers should be treated differently meaning perhaps officer um Dunn, there's a different analysis because he was he was the officer in charge of of the the dog, right? That is correct, your honor. And 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. Right. But 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. Well, your honor, the other uh we we there is a footnote, I believe, in our brief that uh the other officers are only in this case based on failure to intervene. So in order for them to be held liable in this case, officer Dunn would first have to be held liable for the I understand that. But if we find officer Dunn liable, I think you have foreclosed any argument that we could find the other officers non-lible. I think you've presented this I'm giving you an opportunity to rebut this, but I think you've presented this case as they either all get it or they or none of them get it. Well, I I think your honor, um if if officer 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. Um but that's not really the crux of the appeal here. The crux of the appeal here is focused on the actions of officer Dunn. And I submit to this court that uh there is no case from this circuit or otherwise, frankly. What about the Miller case? the Miller case. The Miller case actually that is a case. It is a case and it uh benefits um the defendants's arguments here. If anything, the Miller case is important and actually probably the most similar I meant Watkins. I mean Miller Miller, you're probably right on Miller. I meant Watkins. I think Watkins is the more applicable case. Sure. Um let let's shift to Watkins. uh Watkins is substantially dissimilar from the facts that are presented in this case. It is certainly not similar enough to warrant uh the dismissal or um denial of qualified immunity. 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. That is not this case. 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. Okay. So, you you pointed out some factual differences which is fair. We can look at those. But the holding in Watkins, which the officers are presumed 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, you you cannot continue the bite. And so I don't understand how there's not a factual dispute here if we look to that statement of law because he did surren surrendered even before the dog bite happened and then at that point he's down on the ground. I mean how far did you how far did they need to go to where they said he was under control? Sure your honor. Well, I I I think those are key differences in in the sense that Watkins would not have advised officer Dunn that what he did, let me back up. It would not have advised officer Dunn that he needed to remove that dog any sooner than he did. And the the element that's missing here and the standard that has come out of all these cases from Mendoza all the way through 2021 in Hernandez is exactly what your honor has just articulated 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. So that so is it right to say that the city's position is that um this individual was not surrendered and under control until he was handcuffed. Well, the district court has pointed out a question of disputed fact. I understand that. I'm just asking for your position, your client's position on when that standard was met here. That is in fact our our position. But even more pointedly, our position just so that so that they have to be handcuffed is the is the point at which a a dog bite can be released. That's the city's position. No, your honor, I don't think that a a suspect has to be handcuffed in order to be under complete control. I mean, I would agree because Watkins, you know, I So, the Watkins panel rejected the the officer's argument there that because he had not shown his hands, he was not sufficiently under control. uh and and the panel sent it back and said those are tribal questions. You know, there's it. So, I would agree with you that handcuffing a suspect is not the standard by which we determine the duration of the dog bite. Here you have circumstances that at at best are are triable. He's laying prone on on his belly. Uh the video shows that the dog has, you know, stretched out his arms. There are there are officers with guns, you know, pointed at the suspect and he contends from there on there's another 20 seconds or more in which the dog continued to bite. Why isn't that enough to at least let a jury decide whether he had surrendered and was under officer control? Well, there are two issues there that are wrong and and unsupported by the evidence. Um, one is this idea that the other officers, the first two officers up the stairs were simply idally standing by, having their guns pointed at him while the dog was engaged. I I don't think it's idle. I think they had taken charge of the situation. They see that he's unarmed. He's laying prone on his belly. I I don't think it's idle, right? They're they're they're serving a function in in in making sure that the the dangerous situation or any risk has been mitigated. But why where what is the case law that you would rely on for the supposition that something more needs to happen as a matter of law uh in order to entitle the officers to qualified immunity? Well, I think if we go back to Miller, um in that case, this court specifically held that it was reasonable for the officer to keep the K-9 on the bite even after the suspect in that case had come out of the bushes and showed his hands. 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 can ensure that that person is not armed and cannot reach for a weapon. My understanding Miller was the one the case in the woods. Is that it was? 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 to arrive there and within moments of seeing or seconds within seeing that he was unarmed, the dog was released. So you know again person was not arrested or you know handcuffed at that point but seeing that he was um unarmed was sufficient for the officers to release the dog uh from the bite. Whereas here the contention is the 20 or more seconds of continuing to bite while the officers were around the suspect. Sure. But we have to remember in those 20 seconds what's happening? Officer Dunn, who is the only person, by the way, uh in in this group of people that is qualified to remove this dog, is still on that narrow staircase. All of the officers, in fact, are trying to get up into what ultimately wound up being a very narrow hallway uh surrounded by dark rooms. I'm sorry to interrupt, but not not the 20 seconds that I think are the key to this to this case. the 22nds 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. That that is that is not what the evidence here shows. It's not what the video shows and it's in fact undisputed by the plaintiffs that officer Dunn when his video um you can first see the suspect on his video. That's about 20 seconds. He's still on that staircase and you can hear him saying to the other officers, "I've got to get in the room. I've got to get in the room." Okay. 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. And this is important because it's where the element of control, which the district court in our view ignored, comes into play. The court there said it was reasonable to maintain the dog on the bike 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 ambulance. How was that harm present here? He was prone on the ground. They knew he I I mean your position is they didn't yet know he was unarmed at that point. That is our position, your honor. the upstairs of that home had not been searched before their encounter. But that the my question was not was there a gun somewhere else. My question was was he himself armed at that point? That was also unknown. However, the fact of the matter was I mean he he hadn't been searched at that point, right? In addition to the fact that after what if they what if they had taken, you know, just another minute to get up the stairs and just, you know, lolly gagged up the stairs. Would would that have been a problem? That you'd still be making the same argument. Well, we didn't know. So the the the you know 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 was under control or not. 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 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. Mr. McGee, it's it seems to me that what you're arguing are ways to look at the evidence, you know, triable questions and and you may be right there. There, you know, 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 than was present. But in our interlocuatory review and and one thing I wanted to mention about Miller is Miller was review from judgment in favor of of the defendants here we don't weigh the evidence. We are just trying to determine if there are tribal questions and if and if this issue is placed as a matter of law beyond beyond debate. And what seems to me is what you're describing are things that different factfinders can weigh differently as to what was reasonable or not. I I I disagree respectfully, your honor, and I I'm sorry I did not tell the court, but I would like to reserve a few minutes um for rebuttal uh if if possible. Um I appreciate what what you're saying, but I respectfully disagree because where is the case telling officer Dunn here that she should have released that dog any sooner than he did? Watkins, this is but Watkins is is substantially different. In Watkins, the officer was already in the re room room, had a view of the plaintiff, went handson with him, and again had other officers just standing around. Those are not the facts of this case. They are substantially dissimilar and certainly would not warrant the denial of qualified immunity under the Supreme Court standard. Okay. Do you want to reserve? I would like to reserve. Thank you, your honor. Good morning, your honors. And may it please the court fullio kina for appelli. U Mr. Rosenbomb we want to address start off by addressing uh the Watkins case which we do believe has put all officers in the ninth circuit on notice that an excessive a bite of an excessive duration. Uh is it true in Watkins and I just don't recall he was not handcuffed before they released the dog. Is that correct? Absolutely your honor. He was not handcuffed. But we and the reason why that's important to me is Mendoza does suggest that you know it was okay I in Mendoza we held that it was okay to keep the bite until he was handcuffed until the defendant was handcuffed and uh or I guess plaintiff depending on which case you're looking at. And um so Watkins seems to backtrack from that and say, "Well, I mean, if if Mendoza was just out there, I think they probably would be entitled to qualified immunity." Would you agree with that? I would agree with that. The Mendoza case, your honor, came out in 1994, there almost as in dicta. Uh the court said, "Well, if someone were to be handcuffed and on the ground, you obviously wouldn't be able to sick a dog on them." Watkins actually addresses the point more clearly. And in there it's the Watkins court said, you know, if someone is helpless and surrounded by officers with guns drawn where the suspect has surrendered and is under control, then you can't continue a dog bite. So they they remove the element of needing to have handcuffs. So what what about the what do we do with the factual differences between Watkins and this case? Because the city makes a good argument that um it it is it was different. There was more of a sense of control. I think it's fair to say in Watkins than there was here. May may you may disagree with me 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 Dunn actually there to see it and observe him. How long did the bite last? All right. First, first off, I'd like to say that we believe our case is much stronger than Watkins. 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. Here in excerpt of record 26, which is the video that is on officer Don's body, they could see it from the beginning. You can see his hands throughout. His hands were never ever hidden from the officers. Uh with respect to uh you know whether can I just quickly follow up on one point? Is there any question whether the officers knew that um that Mr. Rosenbomb was unarmed or armed when by the time they were up there nearby him? Yes, your honor. 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 fiance actually informed you that Mr. Rosenbomb's uh firearms had burned in the Santa Rosa fires and he agreed that that had been relayed to him. So with respect at least to firearms. Oh, I'm not I'm not really referring so much to that as that did is there any indication that the officers thought when once they're up there near him physically that he might still be unarmed. If I recall from the video he was wearing something that would suggest that there, you know, clothing wouldn't obscure whether he had a firearm with him. He had a tank top on, right? He had a tank top on and to to go back to the video to ER26. Officer Dunn deploys a K9 at 10:36 on the video. Uh 10 minutes and 36 seconds. He he issues the command which I won't say here, but and the and the dog goes up the video. Officer Dunn again just relying on the body cam. And remember the body cam is set lower than Officer Dunn's eyes. So he's going upstairs. Presumably he can see before the body cam can see. 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? Uh, no, your honor. The fact of the matter is at his deposition, he testified that yes, the body cam is chest worn. So, when he arrived to the landing at 10:51, we can see on the body cam, and presumably officer Dunn can see as well, that Mr. Rosenbomb is is in a seated position on the ground with the dog latched onto his arm. Immediately thereafter, Mr. Rosenbomb goes onto his belly, arms outstretched, and from 10:51 through 11:119, nearly 30 seconds, the bite continues. At 11:19 is when Officer Dunn issues the order for release. The entire time officer uh Mr. Rosenbomb's arms are outstretched and in front of him, and he's in a prone position. Does he ever try to stand up? No, your honor. He never tries to stand up. And we have to remember unlike in in in um Watkins, I guess. U not only is Mr. Rosenbomb completely surrounded by officers up there and and again this notion that uh officer Dunn is on the staircase is belied by the body camera. The body camera shows that officer Dunn is on the second floor when he releases the dog. And Mr. Mr. Rosenbomb is surrounded by officers. The house is surrounded by officers. There's a chopper in the sky surrounding the house. I mean, he couldn't have been more controlled. And unlike Oh, well, I that only goes so far. I mean, if if there was a weapon there, the fact that they, you know, he there was no escape didn't mean that the officers themselves wouldn't have faced some harm. So, I I mean, I don't think the chopper indicates control. I think I think your argument for control or certainly a at least a a factual dispute on control is the fact that he was prone on the ground and the dog was biting him. And that's why I'm asked I don't I don't mean to shift gears so much, but do you you agree I I guess based on how the city's argu I'm I don't understand honestly how the other officers can even be held liable here. Seems to me that if you have one officer who's in charge of the dog, you cannot rely on another officer 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? Can we can we grant can we deny qualified immunity to officer Dunn but grant qualified immunity to the others? We we that argument is not before the court. Our position is that it's been waved. We didn't even brief it because it wasn't in the opponent's moving paper. I think that's right. And I'm I'm sort of shocked that it hasn't been briefed. It seems like a huge miss for these other officers. So, in any event, keep going. Yes. And then um 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. There is a timing factor there, right? So that can that can happen on second five and then there's got to be some sort of period of time for an officer to recognize those are the circumstances I need to call out the dog. Is that something that timing um you know I guess twofold 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? No, there there's no such facts that there was a perception problem. 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. In that case, and it's procedurally the posture is different from our case, but in that case, the court found that there was no unlawful acts by the officers because they released the dog immediately. Here, nearly 30 seconds go by. That's an eternity while you have a dog causing the kind of damage. 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. Yes. Well, but you you say 30 seconds, but I don't think it's 30 seconds from when he was under control. I I mean that that's the I guess that's a question we have to grapple with. and and maybe we only need to grapple with it so far as to say it's a factual dispute that you know at what point he became under control. But at what point after after officer Dunn got to the top of the stairs, how much longer did the dog bite go? Or do we know or that's a factual dispute? Our position is that from the 1051 mark through 11:19, that's the time that Mr. Rosenbomb is prone to. Do you think there's 27 seconds where he was prone on the ground? Officer Dunn could observe him prone on the ground. Yes. And this is from the body camera. I was going to say to me I think that the important point here is about our interlocatory 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. And as I understand your complaint or the plaintiff's complaint, um pliff alleges that he had 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 before and and that is enough. Just passing that 20 second threshold was enough to be excessive force. So whether it ends up being 25 seconds, 20 seconds, 30 seconds, whatever you uh whatever a trial would establish that that's enough to establish a constitutional violation and the video doesn't contradict it. Yes, that that that's our position and and our further position is that that the district court got it right. At the very least, this is a trial issue of fact for the jury to determine at this point. But as to the purely legal question of were the officers on notice, we think Watkins puts them squarely on notice. No further questions that we submit, your honors. Okay. Thank you. Thank you. Thank you, your honors. I want to go back uh to the issue or the standard here of having the suspect fully surrendered and fully under control and what this appeal is actually about which is is there a case that would have informed officer Dunn that Mr. Rosenbomb was fully surrendered and under control in this scenario and the answer is no. The court has never defined what that means in this context and for that reason officer Dunn is entitled to qualified immunity. Watkins is not that case. The the facts of Watkins are substantially different. At most, what we can take from Watkins is that an officer cannot stand idally by with their guns drawn giving commands that the plaintiff cannot comply with. because that was another important factor in Watkins. Those are not the facts of this case. And so for that reason, officer Dunn is entitled to qualified immunity and the other officers are as well if he is found not to be liable here. Thank you, your honor. Submitted. Thank you. The Ninth Circuit affirmed and the case was sent back to district court. That case is still ongoing. Let me know what you think about either incident in the comments down below. And as always, if you like this episode, be sure to check out another one linked on screen. [Music]