Lead Opinion
Dissent by Chief Judge THOMAS
OPINION
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
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. Department of Social Services of New York, 436’ U.S. 658, 694,
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 Sаn Diego Police Department (SDPD) officers, Sergeant Bill Nulton and Officers Mike Fish and David Zelenka, along with Nul-ton’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.
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!”
Faced with an open door to a darkened
The person on the couch was Sara Low-ry. 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.”
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,
II. Discussion
We review a district court’s grant of summary judgment de novo. Torres v. City of Madera,
Lowry alleges that the City’s policy of training its police dogs to “bite and hold” resulted in a violation of her constitutional right against being subjected to excessive force. The use of excessive force by a law enforcement officer may constitute a violation of the Fourth Amendment’s prohibition against unreasonable seizures of the person. Such a claim can be brought under 42 U.S.C. § 1983 and
Lowry has not sued the police officers but only the City, asserting a single cause of action seeking to establish the City’s liability under Monell v. Department of Social Services of New York,
Lowry contends that summary judgment should not have been granted to the City because there were genuine disputes of material fact and because the district court abused its discretion in excluding evidence that could have established a genuine dispute of fact. She argues that the force used against her was unreasonable and excessive, in violation of the Fourth Amendment. She further asserts that the City’s policy regarding the use of police dogs was itself unconstitutional and that it caused her injury. We disagree.
A. Evidentiary Issues
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Lowry argues that the district court erred in granting summary judgment because there were genuine disputes of material fact. In determining whether the district court properly found that Lowry failed to raise genuine factual issues, we ask whether she “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
Lowry points to several purported factual disputes, notably whether the door tо Suite 201 was ajar, whether the office within the suite was dark, and whether Sergeant Nulton provided a warning before he released Bak. The district court concluded that these were not genuine issues of fact because Lowry presented no admissible evidence to counter the three officers’ testimony.
The officers testified that the door to the office suite was open. The only evidence offered by Lowry to the contrary was her own testimony, but, as the district court observed, she did not “testify that she actually closed the door, but speculates that it did close because she knew it to be an automatically closing door.” The court rejected that evidence as insufficient, finding that “she fail[ed] to offer admissible firsthand testimony” to contradict the officers’ testimony.
■ The district court also concluded that Lowry’s testimony as to the level of illumination in the suite was “entirely speculative.” She offered no evidence cоntradicting the officers’ account of the fighting within the interior of Suite 201 on the night of the incident. Indeed, Lowry testified in her deposition that it was “dark” in the suite when she went to sleep, and that there were no fights or computer screens illuminating the room.
As for whether the officers gave a verbal warning that the police dog would be deployed, all three officers testified to that effect. In response, Lowry testified that she did not hear such a warning. The district court concluded that Lowry’s testi
“Evidentiary rulings made in the context of summary judgment motions are reviewed for abuse of discretion and ‘can only be reversed if ... both manifеstly erroneous and prejudicial.’ ” Bias v. Moynihan,
B. Reasonableness of the Force Used
Because there are no genuine issues of material fact and “the relevant set of facts” has been determined, the reasonableness of the use of force is “a pure question of law.” Scott,
Although Lowry has not sued the individual police officers, her Monell claim against the City first requires her to establish that the force used against her was unconstitutionally excessive. In assessing the objective reasonableness of a particular use of force, we consider: (1) “the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted,” (2) “the government’s interest in the use of force,” and (3) the balance between “the gravity of the intrusion on the individual” and “the government’s need for that intrusion.” Glenn v. Washington County,
This inquiry must be viewed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham,
1. The Type and Amount of Force
The first step of the excessive force inquiry requires us to “assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating ‘the type and amount of force inflicted.’ ” Espinosa v. City & County of S.F.,
Our preсedent establishes that characterizing the quantum of force with regard to the use of a police dog depends on the specific factual circumstances. In Smith v. City of Hemet,
Here, the district court properly concluded that the use of force was “moderate.” Unlike in Chew,
2. The City’s Interest in the Use of Force
The second step of the excessive force analysis under the Fourth Amendment is to “evaluate the government’s interest in the use of force.” Glenn,
The first Graham factor, the severity of the crime at issue, weighs in the City’s favor. Because the building’s burglar alarm had been triggered late at night, the door to the office suite had been left ajar,
The second Graham factor, “whether the suspect pose[d] an immediate threat to the safety of the officers or others,” is “the most important single element of the three specified factors.” Chew,
Moreover, when confronted with signs of a burglary, investigating officers are entitled to protect their own safety. See Sandoval,
The third factor, whether Lowry was resisting or attempting to evade arrest, does not weigh substantially either way here. That factor can be important when an officer is facing a suspect and can observe whether that suspect is complying or resisting. In this case, though, nobody responded to the warnings shouted by Sergeant Nulton, so the officers did not know anything specific about whomever might have been inside the building. The district court concluded that because Lowry did not respond to Nulton’s commands, “the officers could [have] reasonably believe[d] that the suspect was ignoring their commands, thereby evading arrest.” Although we have acknowledged that “[e]ven purely passive resistance can support the use of some force,” we have explained that “the level of force an individual’s resistance will support is dependent on the factual circumstances underlying that resistance.” Bryan v. MacPherson,
In assessing the City’s interest in the use of force, other relevant factors we have identified include “whether proper warnings were given” and “the availability of less intrusive alternatives to the force employed.” Glenn,
We have held that an important consideration in evaluating the City’s interest in the use of force is “whether officers gave a warning before employing the force.” Id. at- 876; see also Nelson v. City of Davis,
We also consider “whether there were less intrusive means of force that might have been used before officers resorted” to releasing Bak. Glenn,
The practice of allowing dogs to inspect areas off-lead is in place to protect officers’ safety. Lowry suggests that the police dog could have been kept on her leash, albeit without any evidence in support of the effectiveness of that alternative technique.
3. The Balance of Interests
The final step of the excessive force inquiry requires us to balance the gravity of the intrusion on Lowry’s Fourth Amendment rights against the City’s need for that intrusion. Glenn,
C. The City’s “Bite and Hold” Policy
' Because we conclude that Lowry did not suffer a constitutional injury, she cannot establish liability on the part of the City. See City of Los Angeles v. Heller,
III. Conclusion
We affirm the summary judgment entered by the district court in favor of the City. There were no genuine disputes of material fact regarding Lowry’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 force 'used was not excessive and did not violate the Fourth Amendment. Because the officers’ actions were constitutional, the City cannot be held liable under Monell.
AFFIRMED.
Notes
. Lowry argues that there is a genuine dispute of material fact as to whether the door leading to Suite 201 was in fact open. As will be discussed below, we conclude that the district court did not abuse its discretion in ruling that Lowry had not presented admissible evidence to dispute the officers’ testimony that the door was open when they arrived.
. Lowry contends there is a genuine dispute of material fact regarding whether Sergeant Nulton gave these warnings. As discussed below, we hold that the district court did not abuse its discretion in finding that Lowry had provided no admissible evidence to the contrary.
.Lowry argues that there is a genuine issue of fact regarding whether the office was dark. The district court concluded that Lowry did not submit admissible evidence sufficient to raise a genuine dispute of material fact regarding the degree of illumination inside Suite 201. We hold that the district court did not abuse its discretion, as discussed below.
. These factors are derived from Graham v. Connor,
. The dissent discusses the question posed by this case in terms of what a jury might decide, but once the facts have been established, this case presents a question of law to be decided by the court.
. The dissent may exaggerate the significance of the door being propped open. Even if it had been closed, it could be argued that it might not have been unreasonable for officers responding to a burglar alarm at a dark commercial building late at night to check doorknobs to see whether they were locked. The door in question was obviously unlocked, if it was not open, because the officers entered the office on their own. Because the admitted evidence supported the finding that the door was open, though, we need not decide whethеr that finding or any other factual finding made in this case by the district court was essential to the summary judgment in this case. Each set of circumstances must be evaluated on a case-by-case basis.
. The dissent argues that a reasonable officer would have considered the possibility that the burglar alarm was a false alarm, and therefore would not have concluded that a burglary was in progress. Although the burglar alarm was the reason the police arrived on the scene, once the officers approached the building, they made other observations, such
. The dissent relies upon the possibility that the alarm might have been false. Many alarms are false, and likely the officers knew that was a possibility here. The chance the alarm was false did not give the officers reason simply to disregard it, however. They had been dispatched to investigate this alarm. We reasonably expect police officers to resрond to alarms, not to ignore them because they might be false.
The real question was whether the officers proceeded unreasonably in their inspection of the building because of the possibility that the alarm was false. The answer to that question was no. If the alarm had gone off by itself and there was nobody in the building, then there would have been nobody at risk of harm. The only alternative that weighed against releasing Bak was the possibility that there was an innocent person in the building. That turned out to be the case, but that could not have seemed like a likely possibility to the officers at the time. They were at a dark commercial building, late at night, where an alarm had been sounded, and a door was found open. The officers called more than one warning in a loud voice at close range with no response. It was not unreasonable for the officers to infer that the risk of harm to an innocent bystander was small.
. In one sentеnce in her motion opposing summary judgment and on appeal, Lowry presented the “guard and bark” technique as an alternative policy the SDPD should have employed. This was not further developed before the district court.
Dissenting Opinion
dissenting:
Sara Lowry 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 encounters. Because a reasonable jury could find that the City of San Diego’s use of a police dog was unreasonable under the circumstances presented here, I must respectfully dissent.
I
In my view, the district court erred in concluding that no reasonable jury could find that an excessive force constitutional violation had occurred. Under the Graham v. Connor framework, “[d]etermining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.”
While recognizing that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene,” id. (citing Terry v. Ohio,
A
At the first step of the Graham inquiry, a reasonable jury could find that the intrusion on Lowry’s Fourth Amendment interests was moderate or even severe because of the dog bite Lowry suffered, coupled with the risk of greater harm she faced from an off-leash police dog trained to bite and hold the first person it found.
Both Supreme Court precedent and our case law require consideration of the risk of harm that may be inflicted by a particular use of force. Graham itself requires analyzing both the “nature and quality of the intrusion,”
In the current case, Lowry testified that Sergeant Nulton remarked that the dog could have “ripped [Lowry’s] face off’ and that she was “very lucky” to have gotten only a relatively small bite. In short, there is no dispute that Lowry faced a significant risk of harm when the dog was released into the suite where she was sleeping. Our prior decisions have similarly recognized that “police dogs can—and often do—cause serious harm.” Vera Cruz v. City of Escondido, 139 F.3d
In other cases where we have addressed the use of bite-and-hold police dogs, as the majority explains, one plaintiff had suffered a dog bite that “went as deep as the bone” and “shredded” the muscles in his arm, Miller v. Clark Cty.,
B
On the other side of the Graham scale, a reasonable jury could find that the government did not have a strong interest in using an off-leash bite-and-hold police dog under these circumstances.
1
To evaluate the totality of the circumstances as they relate to this step of the Graham analysis, we must assess the fact disputes raised by Lowry, particularly the dispute as to whether the door to Lowry’s office suite was open (as the officers contend) or closed (as Lowry contends).
In reviewing a district court’s evidentiary ruling at the summary judgment stage, as the majority notes, we will reverse a ruling that is “manifestly erroneous and prejudicial.” Bias v. Moynihan,
Here, Lowry testified that the door to Suite 201 was shut when the officers arrived because it had automatically closed
Q. Do you know if the door closed all the way or was it propped open?
A. No. It was not propped. It was closed all the way behind me.
Q. Okay. And how do you know that?
A. Because it closes automatically. I would have had to prop it open myself.
Q. And do you recall doing that?
A. No.
The district court considered this testimony to be speculation rather than firsthand testimony and determined that the testimony was insufficient to create a dispute of fact. But Lowry’s testimony is based on her first-hand knowledge of the door in question and her personal recollection that she did not prop it open on the night in question. Her testimony is also specific, “legally relevant, and internally consistent.” Id. at 498. “[A] district court generally cannot grant summary judgment based on its assessment of the credibility of the evidencе presented.” Schlup v. Delo,
The exclusion of this testimony, in turn, prejudiced Lowry by denying her an opportunity to show a dispute of fact as to whether the door to the suite was open. Although Lowry’s testimony conflicts with the officers’ testimony that the door was open when they arrived, at the summary judgment stage the court may not weigh the moving party’s evidence against the nonmoving party’s evidence. Rather, “the judge must assume the truth of the evidence set forth by the nonmoving party.” Leslie v. Grupo ICA,
2
Construing this fact and the other circumstances surrounding the incident in the light most favorable to Lowry, and drawing аll reasonable inferences in her favor, a reasonable jury could conclude that the government did not have a strong interest in using an off-leash, bite-and-hold-trained police dog here.
First, under “the most important single element” of Graham’s government-interest analysis, a reasonable jury could find that the officers on the scene had little reason to believe Lowry “pose[d] an immediate threat to the safety of the officers or others.” Chew,
Despite the majority’s assertion that officers are entitled tо presume a burglary suspect poses an immediate threat, Majority Op. 1257-58, our caselaw does not compel that conclusion. Rather, in Miller v. Clark County,
The City’s reliance on Frunz to argue that burglars may be presumed armed is similarly misplaced. Frunz merely stated in dicta that burglars can sometimes be presumed dangerous, to highlight the contrast with the situation in that case, where the officers knew of certain facts that “made it far less likely that what was going on was a burglary and materially diminished the risk of violent confrontation.”
Applying Frunz’s admonition to the current case, the circumstances known to the officers gave little' indication that there was an armed suspect inside Suite 201. At the summary judgment stage, critically, the relevant question is not whether the officers could possibly have believed a burglary was occurring but, rather, whether a jury could potentially find that the officers’ beliefs were unreasonable under the circumstances. Construing the facts in Low-ry’s favor, a reasonable jury could find that the officers had little reason to believe that any suspect inside the building “pose[d] an immediate threat to the safety of the officers or others.” Graham,
The next Graham factor asks us to consider “the severity of the crime at issue.”
The fact dispute as to whether the door was open is significant again here: with the door of an office suite ajar at night, the scene looks more like an active burglary; with a closed door and no signs of forced entry, it becomes more likely that the alarm was a false alarm. Construing this fact and drawing all reasonable inferences in Lowry’s favor, a jury could find that the officers had reason to doubt an actual burglary was taking place. Because a reasonable officer might not believe a severe crime was taking place, this factor weighs in favor of Lowry at the summary judgment stage.
The final Graham factor asks whether the officers reasonably believed that the suspect was “actively resisting arrest or attempting to evade arrest by flight.”
“Following the Supreme Court’s instruction in Graham, we have drawn a distinction between passive and active resistance,” as the majority acknowledges. Bryan v. MacPherson,
To the extent that “the giving of a warning or the failure to do so” is sometimes also considered as an independent factor in the Graham balancing test, Nelson v. City of Davis,
Finally, our precedent also allows a court to consider whether less intrusive tactics were available to the officers effecting a seizure. See Bryan,
C
Balancing the severity of the intrusion against the government’s interest, at the third step of the Graham analysis, a reasonable jury could conclude that the City’s interest in the use of force did not justify the level of force used here. Construing the facts in the light most favorable to Lowry, a jury could find that the intrusion on Lowry’s Fourth Amеndment interests was moderate or severe. On the other side of the scale, the Graham government-interest factors—whether Lowry posed a threat, the severity of the crime, and whether Lowry was resisting arrest—all weigh in favor of Lowry if the facts are construed in her favor, as they must be at this stage. The only factor weighing in favor of the City is the presence of verbal warnings before the dog was released into Lowry’s suite.
Thus, balancing the intrusion caused by an off-leash, bite-and-hold-trained police dog against the government’s interest in the use of canine force under these circumstances, a reasonable jury could find that “a strong government interest” did not “compel[ ] the employment of such force.” Drummond ex rel. Drummond v. City of Anaheim,
II
I respectfully suggest that the district court also erred in concluding that the City could not be liable even if excessivе force had been established. A municipality may be liable under 42 U.S.C. § 1983 for constitutional violations inflicted by its employees “when the execution of the government’s policy or custom ... inflicts the injury.” City of Canton v. Harris,
In this case, Lowry alleged in her complaint that the City had an official policy that caused her constitutional violation. Before the district court and on appeal, Lowry has specifically argued that the City’s policy of training its dogs to bite and hold a suspect was the direct cause of her injury. The bite-and-hold policy is properly
The district court erroneously relied on precedent from the qualified immunity context to conclude that the City’s bite- and-hold policy was constitutional as a matter of law, and thus that the City could not be liable even if Lowry’s constitutional rights had been violated in this particular instance. But our cases analyzing whether the constitutionality of a bite-and-hold policy was clearly established for purposes of qualified immunity did not hold that all applications of a bite-and-hold policy are constitutional. Indeed, we have recognized that the manner in which bite-and-hold force is employed could be unconstitutional in a particular case. Watkins v. City of Oakland,
Finally, contrary to the majority’s suggestion, a Monell plaintiff need not show that the government acted with deliberate indifference to her constitutional rights if she can show that the government’s officers acted affirmatively, pursuant to an official policy. Our cases requiring a showing of deliberate indifference have dealt with a government’s failure to take action or failure to properly train its employees. See Oviatt By & Through Waugh v. Pearce,
Because she did not allege a failure to act and instead alleged that the City’s affirmative bite-and-hold policy was the cause of her constitutional injury, Lowry need not demonstrate deliberate indifference. Instead, the City’s admission that Sergeant Nulton acted pursuant to official policy adequately demonstrates that the City’s policy was the “moving force” behind Lowry’s constitutional violation, thereby satisfying this step of the Monell analysis on summary judgment. Accordingly, I would hold that the district court erred in granting summary judgment on this alternate ground.
Ill
By allowing government entities to be held liable when they violate citizens’ con
For these reasons, I respectfully dissent.
. The majority emphasizes that the reasonableness of a particular use of force is a "pure question of law” once the facts are established. See Scott v. Harris,
. As discussed further below, a jury could find that an open door would have given the officers reason to believe a suspect was still in the building, while arriving at a building with no open doors and no signs of forced entry might give the officers less reason to believe that a burglary was actively occurring.
. While the majority suggests that the door was unlocked even if it was not open, Majority Oр. 1257 n.6, an unlocked door of the suite next to the one where the alarm was triggered
. Similarly, Sandoval v. Las Vegas Metropolitan Police Department,
. The majority relies on Sykes v. United States,
In Sykes, where the issue presented was an enhanced sentence under the Armed Career Criminal Act, the Court merely noted in passing that burglary "can end in confrontation,” by way of comparison to other possibly violent crimes. Sykes,