Sara Lowry v. City of San Diego, 818 F.3d 840

Late on Feb. 11, 2010 SDPD responded to a commercial burglar alarm at a dark office building; officers found Suite 201 propped open and received no response to shouted warnings.
Sergeant Nulton released his police dog Bak off-lead into Suite 201 and followed; Bak located Sara Lowry asleep on a couch and bit her, causing a laceration requiring three stitches.
SDPD trains dogs to "bite and hold" the first person they find and to maintain the bite until ordered off; handlers have discretion to search on- or off-lead though the manual advises on-lead for residences unless handler reasonably determines no occupants.
Lowry sued the City under 42 U.S.C. § 1983 alleging the dog deployment was excessive force and that the City’s bite-and-hold policy caused the violation (Monell theory).
The district court granted summary judgment for the City, finding no constitutional violation and, alternatively, no municipal liability; the Ninth Circuit reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether deploying a police dog off-lead into a dark office where officers had received no response was an excessive use of force under the Fourth Amendment	Lowry: releasing a dog trained to "bite and hold" posed a high risk of severe harm to any occupant and was disproportionate given she posed no threat, didn’t resist, and burglary risk was limited	City: officers reasonably feared a burglary in progress, could not know who or whether armed occupants were inside; warnings were given and dog deployment was within policy	Reversed: a reasonable jury could find the force "objectively unreasonable" — intrusion was severe and government interests (including the key factor of immediate threat) did not clearly justify bite-and-hold off-lead deployment
Whether the City is liable under Monell for the constitutional injury	Lowry: SDPD’s bite-and-hold policy was the moving force behind the injury; City admitted the dog was deployed in conformity with policy	City: Monell requires more (argues isolated incident, or that policy not clearly unconstitutional; invokes qualified immunity or deliberate indifference arguments)	Reversed: City conceded policy conformity; municipal liability may attach because the policy was the moving force (Monell does not require the policy be unconstitutional per se)

Graham v. Connor, 490 U.S. 386 (1989) (governs objective-reasonableness excessive-force analysis)
Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978) (municipal liability requires an official policy or custom that is the moving force of the constitutional violation)
Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) (police-dog deployment can be a "severe" use of force and policy-based liability where department authorizes bite-and-hold)
Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (police-dog use analyzed as significant/intermediate force; context-specific inquiry)
Miller v. Clark Cnty., 340 F.3d 959 (9th Cir. 2003) (use of canine force assessed by type and duration; factual context can justify or condemn use)
Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001) (warnings and other circumstances are relevant to Graham balancing)
Glenn v. Washington Cnty., 673 F.3d 864 (9th Cir. 2011) (Graham factors and consideration of less-intrusive alternatives)
Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011) (summary judgment rarely appropriate in disputed excessive-force factual contexts)
Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012) (weight of warnings depends on whether warnings could be heard)