Sara Lowry v. City of San Diego
2017 U.S. App. LEXIS 10016, 2017 WL 2434715, 858 F.3d 1248 (2017)
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Rule of Law:
The use of a police dog trained to 'bite and hold' to search a dark commercial building does not constitute an unreasonable seizure under the Fourth Amendment when officers are responding to a burglar alarm, issue clear warnings that receive no response, and the dog is called off immediately after engaging a person.
Facts:
- Sara Lowry, after consuming several alcoholic drinks, returned to her office late one evening to sleep on a couch.
- Around 10:40 p.m., Lowry woke to use the restroom and inadvertently triggered a burglar alarm while entering a neighboring office suite.
- After triggering the alarm, Lowry returned to her office and fell back asleep on the couch.
- San Diego Police Department officers, including Sergeant Nulton and his police dog, Bak, responded to the alarm call.
- Upon arrival, the officers discovered an open door to a darkened office suite on the second floor of the commercial building.
- Sergeant Nulton loudly issued two warnings, stating he would send in a police dog that might bite if anyone inside did not come out, but he received no response.
- Nulton released Bak off-leash into the suite to search for a potential burglar.
- Bak found Lowry on the couch, jumped on her, and bit her lip, after which Nulton immediately commanded the dog to release.
Procedural Posture:
- Sara Lowry filed a lawsuit against the City of San Diego in the United States District Court, alleging a violation of her Fourth Amendment rights under 42 U.S.C. § 1983.
- The City of San Diego filed a motion for summary judgment.
- The district court granted summary judgment in favor of the City, concluding no constitutional violation had occurred.
- Lowry, as the appellant, appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit.
- A three-judge panel of the Ninth Circuit reversed the summary judgment.
- The City of San Diego, as the appellee, petitioned for and was granted a rehearing en banc by the full Ninth Circuit.
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Issue:
Does the use of a police dog, trained to 'bite and hold,' to search a dark commercial building in response to a burglar alarm constitute an unreasonable seizure in violation of the Fourth Amendment when officers issue warnings that go unanswered and the dog bites an innocent, sleeping civilian?
Opinions:
Majority - Clifton, Circuit Judge
No, the use of the police dog under these circumstances did not violate Lowry's Fourth Amendment rights. The court applied the three-factor reasonableness test from Graham v. Connor and found the force used was objectively reasonable from the perspective of an officer on the scene. First, the intrusion was moderate, as the dog was under the officer's close supervision and called off immediately, resulting in a minor injury. Second, the government's interest in using force was strong because burglary is a serious crime with an inherent risk of violence, and the circumstances (a late-night alarm, an open door, and no response to warnings) created a reasonable belief that an armed suspect posed an immediate threat to officer safety. Third, balancing these interests, the moderate force was justified by the compelling need to ensure officer safety in a tense and uncertain situation. Because there was no underlying constitutional violation, the City of San Diego cannot be held liable under Monell.
Dissenting - Thomas, Chief Judge
Yes, a reasonable jury could find the use of force was unconstitutional, and therefore summary judgment was improper. The majority failed to construe disputed facts in Lowry's favor, such as her testimony that the office door was closed, which would have weakened the officers' suspicion of a burglary. A jury could find the force severe, considering not just the actual injury but the significant risk of grave harm posed by a 'bite and hold' dog. Furthermore, a jury could conclude the government's interest was weak, as the officers had little specific reason to believe a suspect was armed and dangerous, and Lowry's failure to respond while sleeping constituted, at most, passive resistance. When balancing the interests with the facts viewed in Lowry's favor, a jury could find the use of an off-leash police dog was unreasonable.
Analysis:
This decision solidifies the principle that officer safety is a paramount concern in Fourth Amendment reasonableness analysis, granting significant deference to police judgments in potentially dangerous situations like clearing a building after a burglar alarm. It establishes that using a 'bite and hold' police dog is a justifiable, moderate level of force under such circumstances, provided officers issue warnings and maintain control over the animal. The ruling may make it more difficult for individuals inadvertently injured during police searches to succeed on excessive force claims, as it prioritizes the officers' reasonable perceptions of threat over the actual innocence of the person seized.
