A bite by a San Diego police dog could be a severe use of force, appeals court rules

A police dog that bit through a woman's lip as she slept in her office after hours could be viewed as a severe use of force, a federal appeals court ruled Friday, and that question and whether it was appropriate force should be considered by a jury.

A U.S. district judge had found in favor of San Diego police in a 2013 ruling, but Friday's opinion by the 9th U.S. Circuit Court of Appeals reverses that decision and sends the case back to the lower court — and potentially to trial.

If the case goes to trial, a jury would be asked not only to consider the specific incident that sent Sara Lowry to a hospital, but also to examine whether the San Diego Police Department as a whole should be held liable for its policies regarding the deployment and training of police dogs.

Lowry had gone out for drinks with co-workers the evening of Feb. 11, 2010, and after five vodka drinks at two bars, returned to her office in Pacific Beach to retrieve her lunch leftovers, according to court records. She decided to stay the night and fell asleep on the couch of her office.

She awoke shortly after and used the restroom, unknowingly triggering the building's burglar alarm, and went back to sleep.

Police were called to investigate the alarm. Sgt. Bill Nulton and his police dog, Bak, along with two other officers, found the door to Lowry's office suite open and it was mostly dark inside.

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Nulton said he shouted inside, "This is the San Diego Police Department! Come out now or I'm sending in a police dog! You may be bitten!" He said he waited up to a minute more and, getting no response, yelled the warning once or twice more. He then let the dog off the leash to investigate and followed closely behind him.

With a flashlight, Nulton said he spotted what looked like a person under a blanket. The dog pounced and bit Lowry nearly entirely through her lip. Nulton quickly removed the dog. Lowry required three stitches.

Shortly after the incident, Nulton told Lowry, "I just can't believe that's the only damage. You're very lucky. She could have ripped your face off," according to court records.

San Diego police testified that the officers followed the department's policy on deploying dogs. The department trains its dogs to enter a building, find a person, bite and hold that bite until an officer removes the dog, according to court records.

Nulton testified in a deposition that 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 typically bite the first person they find. He said it is usually up to the officer to decide when it is appropriate to allow the dog off its leash.

The district court, approving the city's request for summary judgment, found that the officers reacted "reasonably and objectively" to the situation, seeing an office door ajar and not knowing whether there was a burglar, possibly armed, waiting for them in the dark.

In a 2-1 decision, the 9th Circuit disagreed, finding that a reasonable jury could find the department's "bite and hold" policy to be a severe use of force.

"In this case we must not rely on the plaintiff's 'luck' that she only ended up bleeding profusely from a cut lip rather than having her whole face 'ripped off' to excuse the conduct that the officer himself recognized could well have resulted in a far more egregious injury," judges wrote in their ruling.

"When we consider both the type and the amount of force used against Lowry and draw all inferences in her favor, we have little trouble concluding that the intrusion on Lowry's 4th Amendment rights was severe," the ruling says.

The three-judge panel weighed several factors about whether the force was excessive, including whether burglary is considered a serious crime, whether Lowry resisted officers and whether the officers had a reasonable fear of danger in the situation.

In a dissenting opinion, Judge Richard Clifton said the ruling could have serious consequences on officer safety.

"Thanks to the majority opinion, officers will be discouraged from protecting themselves and encouraged to risk their lives by exposing themselves to any burglar who might be armed and lying in wait, either because they cannot use a dog at all or must remain so closely tethered to the dog that they necessarily have to expose themselves to the potentially armed burglar," he wrote.

Gerry Braun, spokesman for the city attorney's office, said the office is reviewing the opinion and will determine the next course of action.

"We are mindful that this decision could impact the future use of police dogs in the city of San Diego and other communities," Braun said.

kristina.davis@sduniontribune.com

Twitter: @kristinadavis

Davis writes for the San Diego Union-Tribune.

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A version of this article appeared in print on April 02, 2016, in the News section of the Los Angeles Times with the headline "Police dog's bite is called severe force - 9th Circuit's ruling sends San Diego case back to lower court, potentially to trial." — Today's paperToday's paper | Subscribe
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