Sara Lowry v. City of San Diego, 2017 U.S. App. LEXIS 10016

Background

Late-night burglar alarm at a two-story commercial office building; officers arrived within minutes and found a second-story suite door ajar.
Sergeant Nulton announced, warned that a police dog would be sent in, waited with no response, and then released an off-leash police service dog (Bak) to sweep the suite while he followed closely.
The dog located and leapt onto a couch where Sara Lowry was asleep after drinking; Bak bit Lowry on the lip; she required three stitches and sued under 42 U.S.C. § 1983 claiming excessive force and Monell municipal liability.
SDPD trains dogs to "bite-and-hold" and requires handlers to consider crime severity, immediacy of threat, and subject resistance; warnings are given when practical.
District court granted summary judgment for the City; a Ninth Circuit panel reversed but the en banc court affirmed summary judgment concluding no Fourth Amendment violation and thus no Monell liability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the use of an off‑leash bite‑and‑hold police dog constituted excessive force under the Fourth Amendment	Lowry: deployment of a bite‑and‑hold dog into a dark suite where an innocent sleeping person could be present was unreasonable and posed a significant risk of serious harm	City: officers reasonably suspected an ongoing burglary, issued warnings, followed procedure, and had a strong interest in officer safety—force was moderate and reasonable	Held: Use of the dog was reasonable under the Fourth Amendment; force was moderate and justified by circumstances
Whether genuine disputes of material fact precluded summary judgment (door open, suite dark, warnings given)	Lowry: contested facts (door closed, suite dark, no warning heard) raise triable issues	City: officers’ testimony was admissible and uncontroverted; Lowry’s testimony lacked firsthand foundation	Held: No genuine disputes; district court did not abuse discretion excluding Lowry’s contrary evidence
Whether the City’s bite‑and‑hold policy was facially unconstitutional or caused a constitutional violation (Monell)	Lowry: policy caused the injury and can support municipal liability even if policy is not per se unconstitutional	City: because there was no constitutional violation, Monell claim fails; policy is lawful under precedent	Held: Court did not reach detailed Monell analysis because there was no underlying constitutional violation; thus Monell claim fails
Whether alternative, less‑intrusive tactics (on‑leash or “find‑and‑bark”) were required	Lowry: less harmful alternatives existed and were feasible, making the dog deployment unreasonable	City: officers need not use the least intrusive force; alternatives could increase officer risk and were not shown to be effective	Held: Availability of alternatives did not render the chosen tactic unreasonable in these circumstances

Key Cases Cited

Graham v. Connor, 490 U.S. 386 (establishes objective‑reasonableness standard for excessive force under the Fourth Amendment)
Monell v. Department of Social Services, 436 U.S. 658 (municipal liability requires that a policy caused a constitutional violation)
Scott v. Harris, 550 U.S. 372 (reasonableness can be a pure question of law when facts are undisputed)
Smith v. City of Hemet, 394 F.3d 689 (9th Cir. en banc) (bite‑and‑hold dog deployments can constitute excessive force in some circumstances)
Chew v. Gates, 27 F.3d 1432 (use of police dog that inflicted severe injury was excessive force)
Miller v. Clark County, 340 F.3d 959 (bite that caused serious injury nonetheless found reasonable under specific facts)
Glenn v. Washington County, 673 F.3d 864 (articulates Graham factors and other considerations in canine‑force cases)
Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154 (discusses exigent circumstances and officer safety in burglary investigations)
City of Los Angeles v. Heller, 475 U.S. 796 (if there is no constitutional violation, municipal liability cannot be established)