On April 1, 2016, the Ninth Circuit U. S. Court of Appeals, in a 2 – 1 decision, held that summary judgment for the City was improper when “a reasonable jury could find that police officers responding to [a burglar alarm in an office building] used excessive force when they deliberately unleashed a police dog that they knew might well ‘rip [the] face off’ any individual who might be present in the office.”

Summary judgment is granted when there are no material facts in dispute and the only issue is the application of the law.


In early 2010, Lowry was employed at the Tenzing

Corporation in San Diego.  On February 11, 2010 she went out with friends after work and consumed five drinks over four and a half hours.  Rather than go home after she stopped at her office, she decided to stay, falling asleep on the couch.  During the night she went to the restroom and triggered the silent alarm.  At around 11:00 p.m., the San Diego Police Department (SDPD) was alerted to a burglar alarm being activated at the office building.  They responded, saw no signs of forced entry, saw an open door, but did not know if anyone was inside.

Before entering they shouted warnings that they were the San Diego Police and would release a K-9, which might bite, if no one came forward.  Ultimately, hearing no response, Sergeant Nulton released Bak, followed the dog into the office, gave no further warnings, and did not keep track of the dog’s location once she was let off the lead.

Eventually, Sergeant Nulton made his way into the office where Lowry was sleeping.  The Sergeant “spotted a person under a blanket on the couch.  At that moment, Bak jumped on top of Lowry.  The two struggled momentarily before Sergeant Nulton called Bak off.  Bak responded immediately, returning to Sergeant Nulton’s side.”

“Lowry emerged from her skirmish with Bak with a large gash on her lip that was bleeding profusely.  As hospital staff would later inform Lowry, Bak had almost completely bitten through her lip.  Shortly after the incident, Sergeant Nulton told Lowry, ‘I just can’t believe that’s the only damage.  You’re very lucky.  She could have ripped your face off.’”

“The SDPD trains its police dogs to enter a building, find a person, bite them, and hold that bite until a police officer arrives and removes the dog.  Moreover, as Sergeant Nulton stated in his deposition, police dogs are not trained to differentiate between ‘a young child asleep or . . . a burglar standing in the kitchen with a butcher knife,’ and will simply bite the first person they find.”

“Generally, the decision of whether to conduct a canine search on or off lead is left to the officer’s discretion.  However, the SDPD’s Canine Unit Operations Manual provides that residential searches ‘should normally be conducted on-lead unless the handler can reasonably determine there are no residents or animals in the home.’”

Lowry filed suit against the City under 42 U.S.C. Section 1983, alleging a violation of her fourth amendment rights and the District Court granted summary judgment for the City and Lowry appealed.  “In the absence of material factual disputes, the objective reasonableness of a police officer’s conduct is ‘a pure question of law.’  Where the objective reasonableness of an officer’s conduct turns on disputed issues of material fact, however, it is ‘a question of fact best resolved by a jury.’”

Lowry asserts a single cause of action against the City, seeking to hold the municipality liable for her injuries under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978).  Specifically, Lowry alleges that the City’s ‘bite and hold’ policy caused the police to use excessive force against her.  In order to prevail on a Monell claim, Lowry ‘must demonstrate first that h[er] seizure by [Bak] was unconstitutional and second that the City was responsible for that constitutional wrong.’”

Court’s Decision

The Court analyzed Lowry’s Monell claim by reviewing the use of force to determine whether or not it was “objectively reasonable” or “excessive” under the circumstances.  “In deciding whether or not a particular use of force is reasonable, we employ the familiar test set forth by the Supreme Court in Graham v. Connor.  Under Graham, we balance ‘the nature and quality of the intrusion on the individual’s fourth amendment interests against the countervailing governmental interests at stake.’”

“First, we must assess the severity of the intrusion on the individual’s fourth amendment rights by evaluating the type and amount of force inflicted.  Second, we evaluate the government’s interest in the use of force.  Finally, we balance the gravity of the intrusion on the individual against the government’s need for that intrusion.”

We have repeatedly held that deploying a police dog to effectuate an arrest is a ‘severe’ use of force.  See Smith v. City of Hemet, 394 F.3d 689, 701–02 (9th Cir. 2005) (en banc) (noting that use of a police dog is ‘the most severe force authorized short of deadly force’).

The Court then notes that, “Notwithstanding our precedents, the District Court found the force used against Lowry to be ‘moderate,’ because Bak’s encounter with Lowry was ‘very quick’ and because Lowry’s injuries were ‘slight.’”

However, “the District Court failed to consider the type of force employed.  Our precedents, as well as the Supreme Court’s, make clear that, in evaluating the severity of the intrusion on a plaintiff’s fourth amendment rights, we must assess not only the amount of force used (and the severity of the resulting injury), but also type of force used and the potential harm it may cause.”

The Court notes that “in this case we must not rely on the plaintiff’s ‘luck’ that she only ended up bleeding profusely from a cut lip rather than having her whole face ‘ripped off’ to excuse the conduct that the officer himself recognized could well have resulted in a far more egregious injury.”

The Court stated that the City’s countervailing interests are determined by three factors: “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.”

In addition, “we must examine the totality of the circumstances and consider whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.”

The Court concluded that “a reasonable jury could find that Lowry did not pose a threat to their safety or to others, she was asleep on the couch and did not engage in any threatening behavior.”  Furthermore, “(i)t is undisputed that Lowry did not physically resist arrest, ‘did not attack the officers’ or anyone else, and did not attempt to flee from the officers.”

Finally, “(t)urning to the final Graham factor, we conclude that the severity of the crime at issue – burglary – weighs only slightly in the City’s favor.  Burglary is not an inherently dangerous crime.  Although burglaries can be dangerous . . . the Supreme Court has explicitly held that ‘the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean [s]he is physically dangerous.’”

In fact, the Court points out, “under California law, burglary of uninhabited premises – like an office building – is second degree burglary, a crime that may be punished either as a felony or as a misdemeanor.”

“(I)n order to prevail on a §1983 claim against a City, a plaintiff must prove that the constitutional injury was inflicted pursuant to City policy, regulation, custom, or usage.  City policy ‘causes’ an injury where it is ‘the moving force’ behind the constitutional violation, or where ‘the City itself is the wrongdoer.’”

The Court held that in this case, “there is no dispute that the City’s bite-and-hold policy was the ‘moving force’ behind Lowry’s constitutional injury. The City admitted as much in its Amended Answer to Lowry’s First Amended Complaint . . . . “


The Court of Appeal held that summary judgment was not justified under these circumstances and that a jury needed to hear the case to determine the facts in dispute.

The Court did not hold that the use of the K-9 was always excessive force, but it did hold that the use of the K-9 is “severe force.”  The Court also concluded that, under the circumstances of this case, a reasonable jury could interpret the facts and circumstances as not justifying the use of that level of force.

The Court stated that a reasonable juror could reach the conclusion that “the officers, responding to a routine alarm and not faced with a burglar who already had engaged in threatening behavior, or who had attempted to evade arrest, or who had committed an inherently dangerous crime, unleashed a police dog that the officers believed was likely to rip a person’s face off, even if she were an innocent employee of a business who had fallen asleep in her office late at night.  It is the jury’s role to decide which of these or other inferences should be drawn from the facts in the record.”

It is also not inconceivable that a jury could find the circumstances justified such force, however, summary judgment should not have been granted.  The issue confronting individual agencies is whether or not they will be able to articulate facts which justify such significant use of force.

It is imperative to receive advice and guidance from your agency’s legal counsel when applying new law or interpreting a case decision.

As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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