Lowry v. City of San Diego

Incident Summary & Facts

At about 10:40 p.m. on Thursday, February 11, 2010, a burglar alarm went off in a two-story San Diego office building. Within minutes, Sergeant Bill Nulton, Officers Mike Fish and David Zelenka, and Nulton’s police service dog, Bak, arrived. They saw no one leaving. After scaling the ground-floor gate, they found an open door on the second-floor balcony leading to a darkened office, Suite 201. Nulton yelled, “This is the San Diego Police Department! Come out now or I’m sending in a police dog! You may be bitten!” He waited 30 to 60 seconds and repeated the warning. No one answered. Suspecting a burglar might be lying in wait, Nulton released Bak off-leash and followed closely, sweeping the rooms with his flashlight.

In the last office, Nulton saw a purse and then a person under a blanket on a couch. At about that moment, Bak jumped onto the couch and bit the person’s upper lip. Nulton immediately called Bak off, and the dog returned. The person was Sara Lowry, who worked in the suite. After drinking five vodka drinks with friends, she had returned to the office, fallen asleep, and accidentally set off the alarm while going to a bathroom in a neighboring suite. She received three stitches. San Diego trains its dogs to “bite and hold” until the handler orders a release.

Procedural posture: Lowry sued only the City, under § 1983 and Monell, claiming the bite-and-hold policy caused an excessive-force violation. The district court granted summary judgment to the City. A divided three-judge panel reversed, and the Ninth Circuit reheard the case en banc.

Core Legal Issue

Was the off-leash deployment of a bite-and-hold police dog into a dark office during a suspected burglary, which resulted in a brief bite, an unreasonable seizure under the Fourth Amendment that could support municipal liability under Monell?

The Holding

The en banc court held that the force was moderate, the City’s interest was strong, and the force was not excessive. With no constitutional violation, the City could not be liable under Monell. Summary judgment for the City was affirmed.

The Court’s Analysis:

• No genuine factual disputes: Lowry lacked personal knowledge to dispute that the door was open, the suite was dark, or the warnings were given, because she was asleep. That made reasonableness “a pure question of law.”
• Type and amount of force: moderate. Unlike Chew v. Gates, where the dog was “beyond the reach of a countermanding order” and “nearly severed” an arm, Nulton followed closely and called Bak off almost at once.
• Graham factors: Suspected burglary carries “an inherent risk of violence.” On threat, “the most important single element,” a reasonable officer could think a hidden burglar might be armed. “Objectively menacing circumstances” existed, as in Miller v. Clark County. Resistance weighed neither way, because the officers knew nothing specific about anyone inside.
• Warnings and alternatives: The repeated loud warnings favored the City. Officers had no reason to expect someone sleeping too deeply to hear them. Officers “are not required to use the least intrusive degree of force possible.” Keeping the dog on-leash would have exposed the handler to a possible ambush.
• Monell: Without a constitutional injury, the City cannot be liable (City of Los Angeles v. Heller). The court did not reach the other Monell requirements.
• Dissent (Thomas, C.J.): Viewed in Lowry’s favor, with the door closed, a jury could find the risk of harm severe and the government’s interest weak, given the chance of a false alarm and no sign anyone was armed. He would also have held that the City’s affirmative bite-and-hold policy could be the “moving force” without proof of deliberate indifference.