858 F.3d 1248 (9th Cir. 2017), 13-56141, Lowry v. City of San Diego

Docket Nº:13-56141
Citation:858 F.3d 1248
Opinion Judge:CLIFTON, Circuit Judge:
Party Name:SARA LOWRY, Plaintiff-Appellant, v. CITY OF SAN DIEGO, Defendant-Appellee
Attorney:Nathan A. Shaman (argued) and Jeffrey A. Lake, Jeffrey A. Lake A.P.C., San Diego, California, for Plaintiff-Appellant. Stacy J. Plotkin-Wolff (argued), Deputy City Attorney; Daniel F. Bamberg, Assistant City Attorney; Jan I. Goldsmith, City Attorney; Office of the City Attorney San Diego, Califor...
Judge Panel:Before: Sidney R. Thomas, Chief Judge, and AlexKozinski, Diarmuid F. O'Scannlain, Richard C. Tallman, Johnnie B. Rawlinson, Richard R. Clifton, Carlos T. Bea, Jacqueline H. Nguyen, Paul J. Watford, Andrew D. Hurwitz and John B. Owens, Circuit Judges. Dissent by Chief Judge Thomas. THOMAS, Chief J...
Case Date:June 06, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1248

858 F.3d 1248 (9th Cir. 2017)

SARA LOWRY, Plaintiff-Appellant,

v.

CITY OF SAN DIEGO, Defendant-Appellee

No. 13-56141

United States Court of Appeals, Ninth Circuit

June 6, 2017

Argued and Submitted En Banc, San Francisco, California January 18, 2017.

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D.C. No. 3:11-cv-00946-MMA-WMC. Appeal from the United States District Court for the Southern District of California. Michael M. Anello, District Judge, Presiding.

SUMMARY[*]

Civil Rights

The en banc court affirmed the district court's summary judgment in favor of the City of San Diego in an action brought pursuant to 42 U.S.C. § 1983 alleging that the City's policy of training its police dogs to " bite and hold" individuals resulted in a violation of plaintiff's Fourth Amendment rights.

Plaintiff alleged that during the execution of a search by police officers, a police canine attacked plaintiff in her office where she was sleeping, and bit her upper lip.

The en banc court held that there were no genuine disputes of material fact regarding plaintiff's claim. From the perspective of a reasonable officer on the scene, the type and amount of force inflicted was moderate, the City had a strong interest in using the force, and the degree of force used was commensurate with the City's interest in the use of that force. The en banc court concluded that the force used was not excessive and did not violate the Fourth Amendment. Because the officers' actions were constitutional, the City could not be held liable under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Dissenting, Chief Judge Thomas noted that plaintiff was sleeping in the privacy of her office, when she was attacked and injured by a police dog trained to inflict harm on the first person it encountered. He stated that a reasonable jury could find that the City of San Diego's use of a police dog was unreasonable under the circumstances presented.

Nathan A. Shaman (argued) and Jeffrey A. Lake, Jeffrey A. Lake A.P.C., San Diego, California, for Plaintiff-Appellant.

Stacy J. Plotkin-Wolff (argued), Deputy City Attorney; Daniel F. Bamberg, Assistant City Attorney; Jan I. Goldsmith, City Attorney; Office of the City Attorney San Diego, California; for Defendant-Appellee.

Denise L. Rocawich (argued) and Martin J. Mayer, Law Offices of Jones & Mayer, Fullerton, California, for Amici Curiae California Police Chiefs' Association, California State Sheriffs' Association, and California Peace Officers' Association.

Donald W. Cook (argued), Los Angeles, California, for Amicus Curiae National Police Accountability Project.

Vincent P. Hurley, Law Offices of Vincent P. Hurley, Aptos, California, for Amicus Curiae League of California Cities.

Nicole M. Threlkel-Hoffman and Steven J. Renick, Manning & Kass Ellrod Ramirez Trester LLP, Los Angeles, California, for Amicus Curiae United States Police Canine Association and International Municipal Lawyers Association.

Before: Sidney R. Thomas, Chief Judge, and AlexKozinski, Diarmuid F. O'Scannlain, Richard C. Tallman, Johnnie B. Rawlinson, Richard R. Clifton, Carlos T. Bea, Jacqueline H. Nguyen, Paul J. Watford, Andrew D. Hurwitz and John B. Owens, Circuit Judges. Dissent by Chief Judge Thomas.

OPINION

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CLIFTON, Circuit Judge:

When a burglar alarm in a commercial building was triggered shortly before 11:00 p.m. on a Thursday night, San Diego Police Department officers responded. Accompanied by a police service dog, Bak, the officers inspected the building and found a door to a darkened office suite propped open. Unable to see inside the suite, one of the police officers warned: " This is the San Diego Police Department! Come out now or I'm sending in a police dog! You may be bitten!" No one responded. The officers suspected that a burglary might be in progress and that the perpetrator was still inside the suite. After he repeated the warning and again received no response, one of the officers released Bak from her leash and followed closely behind her as they scanned each room. As

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he entered one of the rooms, the officer noticed a person laying down on a couch. Bak leapt onto the couch. Within seconds, the officer called Bak off, and the dog returned to the officer's side. The person on the couch was Plaintiff Sara Lowry. She had returned to the office after a night out drinking with her friends, and had accidentally triggered the alarm before falling asleep on the couch. During their encounter, Bak bit Lowry's lip.

Based on these facts, Lowry filed suit against the City of San Diego under 42 U.S.C. § 1983, alleging that its policy of training its police dogs to " bite and hold" individuals resulted in a violation of her Fourth Amendment rights. The district court granted the City's motion for summary judgment, concluding that Lowry had not suffered constitutional harm and that, even if she had, the City was not liable for her injury under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We agree that the use of the police dog under these circumstances did not violate Lowry's rights under the Fourth Amendment and thus affirm the summary judgment in favor of the City.

I. Background

A burglar alarm was triggered in a two-story office building in San Diego at approximately 10:40 p.m. on the night of Thursday, February 11, 2010. Three San Diego Police Department (SDPD) officers, Sergeant Bill Nulton and Officers Mike Fish and David Zelenka, along with Nulton's police service dog, Bak, arrived at the scene within minutes of receiving the call to investigate a burglar alarm. Approaching the building, the officers did not see anyone leaving the building or surrounding area. On the second-story balcony of the building, they saw an open door.[1]

After scaling the ground-floor gate, the officers determined that the open door led to Suite 201. Outside the suite, Sergeant Nulton yelled loudly, " This is the San Diego Police Department! Come out now or I'm sending in a police dog! You may be bitten!" 2 No one responded. He waited between 30 and 60 seconds and repeated the same warnings. Again, there was no response.

Faced with an open door to a darkened3 office suite, knowing that the burglar alarm had been triggered and that they had received no response to their warnings, the officers--who had arrived at the scene within minutes-- suspected that a burglary might be in progress and that the intruder could be lying in wait. Nulton released Bak into the suite to start searching the offices. Nulton followed closely behind Bak and swept the area with his flashlight. When Bak and Nulton entered the last office to be searched, Nulton noticed a purse on the floor and, shining his

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flashlight against the office wall, spotted a person under a blanket on the couch. At about that moment, Bak jumped onto the couch and bit the person on the lip. Nulton immediately called Bak off, and Bak responded, returning to Nulton's side.

The person on the couch was Sara Lowry. Although the officers were previously unaware of her presence, Lowry had been asleep on a couch in an office within Suite 201, where she worked. She had visited a few bars in the area with friends that evening and consumed five vodka drinks. Around 9:30 p.m., she returned to her office and fell asleep on the couch. She woke up to use the bathroom, instinctively heading towards the bathroom she typically used during business hours, which was in a neighboring suite occupied by a separate company. In the process of entering the neighboring suite, she triggered the burglar alarm. She returned to her office and fell back asleep on the couch, where she was still located when Nulton and Bak entered the room. In their encounter, Bak bit Lowry's upper lip, causing it to bleed. Officer Fish took Lowry to the hospital, where she received three stitches.

In this 42 U.S.C. § 1983 action, Lowry alleges that the City's policy and practice of training police service dogs to " bite and hold" individuals resulted in a violation of her Fourth Amendment rights. It is undisputed that SDPD trains police service dogs to " locate and control persons on command" by finding a person, biting them, and holding that bite until a police officer handler commands the dog to release the bite. Police dogs may be left on the bite " until the suspect can be handcuffed by the handler and be safely taken into custody." Prior to using a police service dog to search for a suspect, the City's policy requires a handler to consider: " (1) the severity of the crime; (2) the immediacy of the threat; and, (3) if the subject is actively resisting arrest." 4 When practical, handlers are expected to issue warnings before releasing a police service dog.

The district court granted the City's motion for summary judgment. Lowry timely appealed. A divided three-judge panel of this court reversed the summary judgment and remanded for further proceedings. Lowry v. City of San Diego, 818 F.3d 840 (9th Cir. 2016). We granted the City's petition for rehearing en banc. Lowry v. City of San Diego, 837 F.3d 1014 (9th Cir. 2016) (order).

II. Discussion

We review a district court's grant of summary judgment de novo. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). We must determine whether " taking the evidence and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party, there are no genuine issues of material fact." Id. In the absence of material factual disputes, the objective reasonableness of a police officer's conduct is " a pure question of law." Id. (quoting Scott v. Harris, 550 U.S....

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