Lowry v. City of San Diego, No. 13–56141.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtTASHIMA, Circuit Judge
Citation818 F.3d 840
Parties Sara LOWRY, Plaintiff–Appellant, v. CITY OF SAN DIEGO, Defendant–Appellee.
Docket NumberNo. 13–56141.
Decision Date01 April 2016

818 F.3d 840

Sara LOWRY, Plaintiff–Appellant,
v.
CITY OF SAN DIEGO, Defendant–Appellee.

No. 13–56141.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 2015.
Filed April 1, 2016.


818 F.3d 844

Jeffrey A. Lake (argued), Nathan A. Shaman (argued), Jeffrey A. Lake, A.P.C., San Diego, CA, for Plaintiff–Appellant.

Jan I. Goldsmith, City Attorney of San Diego, Daniel F. Bamberg, Assistant City Attorney, Stacy J. Plotkin–Wolff, Deputy City Attorney (argued), San Diego, CA, for Defendant–Appellee.

Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and RICHARD R. CLIFTON, Circuit Judges.

Opinion by Judge TASHIMA ; Dissent by Judge CLIFTON.

OPINION

TASHIMA, Circuit Judge:

After a night of drinking with her friends, Sara Lowry returned to her workplace and fell asleep on her office couch. She awoke a short while later and went to the bathroom, before returning to her couch and going back to sleep. Unfortunately for Lowry, during her trip to the bathroom, she accidentally triggered the building's burglar alarm. Several officers from the San Diego Police Department ("SDPD") responded, accompanied by a police service dog named Bak. After searching the area and giving several warnings, the officers released Bak into Lowry's office. Bak found Lowry and pounced on her, tearing open her upper lip.

Lowry filed suit against the City of San Diego (the "City") under 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 her Fourth Amendment rights. The district court granted the City's motion for summary judgment, concluding both that Lowry did not suffer constitutional harm and that, even if she did, the City was not liable for her injuries.

We have jurisdiction under 28 U.S.C. § 1291. The question on this appeal is whether a reasonable jury could find that the police officers responding to the alarm 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. Because a reasonable jury could find that the force used was excessive and because the City concedes that the use of the force involved was in conformance with its policy, we reverse and remand the case for further proceedings.

I.

In early 2010, Lowry was working at Tenzing Corporation, located at 4603 Mission Boulevard, Suite 201, in San Diego, California. On the night of February 11, 2010, Lowry went out with a few friends after work. Over the course of about four and a half hours, Lowry visited two bars and consumed five vodka drinks. Lowry decided to call it a night at around 9:30 p.m., but, instead of heading home, made a pit stop at work to pick up some food she had left over from lunch. Once there,

818 F.3d 845

Lowry decided to stay in the office, and fell asleep on the couch.

Shortly thereafter, Lowry woke up and went to use the bathroom. Acting on instinct, Lowry headed towards the bathroom in the neighboring suite (owned by a separate company, Drew George & Partners or "DGP"), the bathroom she typically used during business hours. After opening the door to DGP, Lowry decided against using their bathroom, concluding that "it wouldn't be right for [her] to use that restroom at night." She closed the door, went to a bathroom outside both suites that was open to the public and then returned to her office and fell back asleep on the couch.

Around 11:00 p.m., the SDPD received a call from ADT Security Services that a burglar alarm had been activated at 4603 Mission Boulevard, Suite 200. Minutes later, Officers Mike Fish and David Zelenka and Sergeant Bill Nulton arrived at the scene, accompanied by Sergeant Nulton's police service dog, Bak. The officers inspected the north, south, and west sides of the building and saw no entry points. However, each officer saw that the door leading to Suite 201 was propped open.1 There were no signs of forced entry at Suite 201, which was dark, except for some ambient light shining through the open door from the parking lot.2 The officers could not see inside the suite, and therefore did not know whether anyone was inside.

Before entering Suite 201, 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!" Sergeant Nulton waited between 30 and 60 seconds, but received no response. He repeated the same warning once or twice more; again, there was no response.3 Lowry did not hear these

818 F.3d 846

warnings. Sergeant Nulton then released Bak "off lead" (that is, off of her leash) into the suite, and followed Bak in. Sergeant Nulton did not keep track of Bak's precise location once he let her off lead, and gave no further warnings after entering the suite.

Eventually, Sergeant Nulton made his way into the office where Lowry was sleeping. Once there, he saw a purse whose contents had been spilled across the floor. He then shone his flashlight against the office wall and 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." After confirming that Lowry worked at Tenzing, Officer Fish drove her to the hospital, where she was given a tetanus shot and received three stitches.

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. § 1983, alleging a violation of her Fourth Amendment rights. The City moved for summary judgment, which the district court granted. Lowry timely appealed.

II.

We review a district court's grant of summary judgment de novo. Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1156 (9th Cir.2013). "We must determine, viewing the evidence in the light most favorable to [Lowry], the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004). In the absence of material factual disputes, the objective reasonableness of a police officer's conduct is "a pure question of law." Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.2011) (quoting Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ). "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.’ " Id. at 1123 (quoting Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir.2003) ).

III.

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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Specifically, Lowry alleges that the City's "bite and hold" policy caused the police to use

818 F.3d 847

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." Chew v. Gates, 27 F.3d 1432, 1439 (9th Cir.1994).

A. Excessive Force

We begin our analysis of Lowry's Monell claim by assessing whether Bak's seizure of Lowry was unconstitutional. Objectively unreasonable uses of force violate the Fourth Amendment's guarantee against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394–95, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). 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. 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." Id. at 396, 109 S.Ct. 1865 (citations omitted). This inquiry is a...

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16 practice notes
  • Mendiola-Martinez v. Arpaio, No. 14–15189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Septiembre 2016
    ...Intelligence & Coordination Unit , 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) ; see also Lowry v. City of San Diego , 818 F.3d 840, 855 (9th Cir. 2016) (“[Q]ualified immunity analysis is irrelevant to the issue of Monell liability.”) (citing Brandon v. Holt , 469 U.S. 464......
  • Lowry v. City of San Diego, No. 13-56141
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 6 Junio 2017
    ...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).I......
  • Dundon v. Kirchmeier, Civil No. 1:16-cv-406
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • 29 Diciembre 2021
    ...that someone would be asleep in a nonresidential building late at night and therefore unable to hear a warning.Lowry v. City of San Diego, 818 F.3d 840, 857 (9th Cir. 2016), on reh'g en banc, 858 F.3d 1248 (9th Cir. 2017).9 Because all federal claims have been dismissed, the Court likewise ......
  • McFarland v. City of Clovis, CASE NO. 1:15-CV-1530 AWI SMS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 10 Abril 2017
    ...moving force' behind the constitutional violation, or where 'the [municipality] itself is the wrongdoer." Lowry v. City of San Diego, 818 F.3d 840, 854 (9th Cir. 2016) (quoting Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994)). Here, the City contends that it has submitted the relevan......
  • Request a trial to view additional results
15 cases
  • Mendiola-Martinez v. Arpaio, No. 14–15189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Septiembre 2016
    ...Intelligence & Coordination Unit , 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) ; see also Lowry v. City of San Diego , 818 F.3d 840, 855 (9th Cir. 2016) (“[Q]ualified immunity analysis is irrelevant to the issue of Monell liability.”) (citing Brandon v. Holt , 469 U.S. 464, 47......
  • Lowry v. City of San Diego, No. 13-56141
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 6 Junio 2017
    ...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).I......
  • McFarland v. City of Clovis, CASE NO. 1:15-CV-1530 AWI SMS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 10 Abril 2017
    ...'the moving force' behind the constitutional violation, or where 'the [municipality] itself is the wrongdoer." Lowry v. City of San Diego, 818 F.3d 840, 854 (9th Cir. 2016) (quoting Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994)). Here, the City contends that it has submitted the relevan......
  • Estate of Adkins , by and through Adkins v. County of San Diego, Case No.: 18-cv-00371-H-MDD
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 7 Junio 2019
    ...unreasonable uses of force violate the Fourth Amendment's guarantee against unreasonable seizures." Lowry v. City of San Diego, 818 F.3d 840, 847 (9th Cir. 2016). The reasonableness of a use of force is determined based on whether the defendant's actions were "objectively reasonable" in lig......
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