In Lowry v. City of San Diego, the Ninth Circuit clarified some of the standards for
determining the reasonableness of the force used. In a 2-1 decision, the Ninth
Circuit held a reasonable jury could find the San Diego Police Department’s
(“SFPD”) K9 “bite and hold” policy was a severe use of force.
After a night of drinking with her friends, the plaintiff,
Sara Lowry, returned to her workplace and fell asleep on her office couch.
Lowry unknowingly triggered the building’s burglar alarm when she got up to use
the restroom.
SFPD were called to investigate. Sgt. Bill Nulton and his
police dog, Bak, along with two other officers, found the door to Lowry’s
office suite open. Sgt. Nulton yelled, “This is the San Diego Police
Department! Come out now or I’m sending in a police dog! You may be bitten!”
Nulton waited 30-60 seconds, but received no response. He repeated the
warnings, but eventually released Bak “off lead” (without a leash). Bak made
her way to Lowry’s office and bit Lowry’s lip. Nulton immediately commanded the
dog to release her hold.
Lowry brought a § 1983 action against the City, alleging the
City’s policy of training its police dogs to bite and hold resulted in a
violation of her Forth Amendment rights.
According to the Ninth Circuit, a court must consider both the type of
force used and the potential harm it may cause. The district court erred in
only considering Lowry’s actual harm rather than the potential harm the K9
could inflict. As Sgt. Nulton told Lowry after the incident, “I just can’t
believe that’s the only damage. You’re very lucky. She could have ripped your
face off.”
The Ninth Circuit also considered whether other tactics
would be appropriate in the circumstances. The court believed Sgt. Nulton could
have kept Bak on lead to maintain control. While the court did find Nulton’s
multiple warnings were helpful in showing the force was reasonable, it was only
minimally so because Lowry did not hear the commands.
