Sara Lowry v. City of San Diego , 858 F.3d 1248 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARA LOWRY, No. 13-56141
Plaintiff-Appellant,
D.C. No.
v. 3:11-cv-00946-MMA-WMC
CITY OF SAN DIEGO,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted En Banc January 18, 2017
San Francisco, California
Filed June 6, 2017
Before: Sidney R. Thomas, Chief Judge, and Alex
Kozinski, Diarmuid F. O’Scannlain, Richard C. Tallman,
Johnnie B. Rawlinson, Richard R. Clifton, Carlos T. Bea,
Jacqueline H. Nguyen, Paul J. Watford, Andrew D.
Hurwitz and John B. Owens, Circuit Judges.
Opinion by Judge Clifton;
Dissent by Chief Judge Thomas
2 LOWRY V. CITY OF SAN DIEGO
SUMMARY*
Civil Rights
The en banc court affirmed the district court’s summary
judgment in favor of the City of San Diego in an action
brought pursuant to 42 U.S.C. § 1983 alleging that the City’s
policy of training its police dogs to “bite and hold”
individuals resulted in a violation of plaintiff’s Fourth
Amendment rights.
Plaintiff alleged that during the execution of a search by
police officers, a police canine attacked plaintiff in her office
where she was sleeping, and bit her upper lip.
The en banc court held that there were no genuine
disputes of material fact regarding plaintiff’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 en banc court concluded that the force used was not
excessive and did not violate the Fourth Amendment.
Because the officers’ actions were constitutional, the City
could not be held liable under Monell v. Department of Social
Services of New York, 436 U.S. 658, 694 (1978).
Dissenting, Chief Judge Thomas noted that plaintiff 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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LOWRY V. CITY OF SAN DIEGO 3
person it encountered. He stated that a reasonable jury could
find that the City of San Diego’s use of a police dog was
unreasonable under the circumstances presented.
COUNSEL
Nathan A. Shaman (argued) and Jeffrey A. Lake, Jeffrey A.
Lake A.P.C., San Diego, California, for Plaintiff-Appellant.
Stacy J. Plotkin-Wolff (argued), Deputy City Attorney;
Daniel F. Bamberg, Assistant City Attorney; Jan I.
Goldsmith, City Attorney; Office of the City Attorney San
Diego, California; for Defendant-Appellee.
Denise L. Rocawich (argued) and Martin J. Mayer, Law
Offices of Jones & Mayer, Fullerton, California, for Amici
Curiae California Police Chiefs’ Association, California State
Sheriffs’ Association, and California Peace Officers’
Association.
Donald W. Cook (argued), Los Angeles, California, for
Amicus Curiae National Police Accountability Project.
Vincent P. Hurley, Law Offices of Vincent P. Hurley, Aptos,
California, for Amicus Curiae League of California Cities.
Nicole M. Threlkel-Hoffman and Steven J. Renick, Manning
& Kass Ellrod Ramirez Trester LLP, Los Angeles, California,
for Amicus Curiae United States Police Canine Association
and International Municipal Lawyers Association.
4 LOWRY V. CITY OF SAN DIEGO
OPINION
CLIFTON, Circuit Judge:
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 he entered one of the rooms, the officer noticed a person
laying down on a couch. Bak leapt onto the couch. Within
seconds, the officer called Bak off, and the dog returned to
the officer’s side. The person on the couch was Plaintiff Sara
Lowry. She had returned to the office after a night out
drinking with her friends, and had accidentally triggered the
alarm before falling asleep on the couch. During their
encounter, Bak bit Lowry’s lip.
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,
LOWRY V. CITY OF SAN DIEGO 5
436 U.S. 658, 694 (1978). We agree that the use of the police
dog under these circumstances did not violate Lowry’s rights
under the Fourth Amendment and thus affirm the summary
judgment in favor of the City.
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 San Diego
Police Department (SDPD) officers, Sergeant Bill Nulton and
Officers Mike Fish and David Zelenka, along with Nulton’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.1
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!”2 No one responded. He waited
1
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.
2
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.
6 LOWRY V. CITY OF SAN DIEGO
between 30 and 60 seconds and repeated the same warnings.
Again, there was no response.
Faced with an open door to a darkened3 office suite,
knowing that the burglar alarm had been triggered and that
they had received no response to their warnings, the
officers—who had arrived at the scene within minutes—
suspected that a burglary might be in progress and that the
intruder could be lying in wait. Nulton released Bak into the
suite to start searching the offices. Nulton followed closely
behind Bak and swept the area with his flashlight. When Bak
and Nulton entered the last office to be searched, Nulton
noticed a purse on the floor and, shining his flashlight against
the office wall, spotted a person under a blanket on the couch.
At about that moment, Bak jumped onto the couch and bit the
person on the lip. Nulton immediately called Bak off, and
Bak responded, returning to Nulton’s side.
The person on the couch was Sara Lowry. 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
3
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.
LOWRY V. CITY OF SAN DIEGO 7
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.”4 When
practical, handlers are expected to issue warnings before
releasing a police service dog.
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, 818 F.3d 840 (9th Cir. 2016). We granted the City’s
petition for rehearing en banc. Lowry v. City of San Diego,
837 F.3d 1014 (9th Cir. 2016) (order).
4
These factors are derived from Graham v. Connor, 490 U.S. 386,
396 (1989).
8 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, 648 F.3d 1119, 1123 (9th
Cir. 2011). We must determine whether “taking the evidence
and all reasonable inferences drawn therefrom in the light
most favorable to the non-moving party, there are no genuine
issues of material fact.” Id. In the absence of material factual
disputes, the objective reasonableness of a police officer’s
conduct is “a pure question of law.” Id. (quoting Scott v.
Harris, 550 U.S. 372, 381 n.8 (2007)).
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 should be analyzed
under the Fourth Amendment’s “reasonableness” standard.
Graham v. Connor, 490 U.S. 386, 395 (1989).
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, 436 U.S. 658 (1978). To prevail on her Monell
claim, Lowry must establish that (1) SDPD’s use of Bak
amounted to an unconstitutional application of excessive
force, and (2) the City’s policy caused the constitutional
wrong. Chew v. Gates, 27 F.3d 1432, 1439 (9th Cir. 1994)
(citing Monell, 436 U.S. at 690–94).
Lowry contends that summary judgment should not have
been granted to the City because there were genuine disputes
LOWRY V. CITY OF SAN DIEGO 9
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.,
477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Ariz.
v. Cities of Serv. Co., 391 U.S. 253 (1968)).
Lowry points to several purported factual disputes,
notably whether the door to 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
10 LOWRY V. CITY OF SAN DIEGO
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 contradicting the
officers’ account of the lighting 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 lights 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
testimony to that effect did not create a genuine dispute as to
whether a warning had in fact been given. The district court
observed that she “lack[ed] proper foundation to testify to this
fact because she was sleeping at the time” the warning was
given. She was not, as a result, in a position to know whether
a warning had been given.
“Evidentiary rulings made in the context of summary
judgment motions are reviewed for abuse of discretion and
‘can only be reversed if . . . both manifestly erroneous and
prejudicial.’” Bias v. Moynihan, 508 F.3d 1212, 1224 (9th
Cir. 2007) (internal quotation marks omitted) (quoting Ballen
v. City of Redmond, 466 F.3d 736, 745 (9th Cir. 2006)).
“Generally, a witness must have ‘personal knowledge of the
matter’ to which she testifies.” Bemis v. Edwards, 45 F.3d
LOWRY V. CITY OF SAN DIEGO 11
1369, 1373 (9th Cir. 1995) (quoting Fed. R. Evid. 602). It
was not manifestly erroneous for the district court to conclude
that Lowry lacked personal knowledge of events that she did
not in fact witness or was not in a position to perceive on the
night in question. We uphold the district court’s conclusion
that there was not a genuine dispute as to whether the door
was open, the suite was dark, and the warnings had been
given.
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, 550 U.S. at 381 n.8.5
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, 673 F.3d 864,
871 (9th Cir. 2011) (internal quotation marks and citations
omitted).
5
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.
12 LOWRY V. CITY OF SAN DIEGO
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, 490 U.S. at 396. An officer’s
use of force cannot be deemed excessive based on facts that
he reasonably would not have known or anticipated.
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., 598 F.3d
528, 537 (9th Cir. 2010) (quoting Miller v. Clark County,
340 F.3d 959, 964 (9th Cir. 2003)). We must undertake a
case-by-case analysis. See Torres, 648 F.3d at 1124 (holding
that an excessive force inquiry is a “highly fact-intensive task
for which there are no per se rules”).
Our precedent 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,
394 F.3d 689, 701–02 (9th Cir. 2005) (en banc), we held that
the use of a police dog constituted excessive force where the
officers sicced the dog on the plaintiff three times, including
once after he had already been pinned down, and then pepper
sprayed his open wounds. Similarly, in Chew, we concluded
that “the force used to arrest [the plaintiff] was severe”
because the dog bit the plaintiff three times, dragged him
between four and ten feet, and “nearly severed” his arm.
27 F.3d at 1441. On the other hand, in Miller v. Clark
County, we held that the use of force, although considerable
and serious, was nonetheless reasonable and did not rise to
the level of “deadly force,” even though the dog apprehended
a fleeing suspect with a bite that lasted between forty-five and
LOWRY V. CITY OF SAN DIEGO 13
sixty seconds, “shredded” the plaintiff’s muscles, and reached
the bone. 340 F.3d at 961–66.
Here, the district court properly concluded that the use of
force was “moderate.” Unlike in Chew, 27 F.3d at 1441,
where the police dog was “beyond the reach of a
countermanding order” when the dog found the plaintiff,
dragged him up to ten feet, and “nearly severed” his arm, in
this case, Sergeant Nulton closely followed Bak and called
her off very quickly after the initial contact with Lowry. In
part because of Nulton’s close proximity to Bak, the
encounter between Lowry and Bak was so brief that Nulton
did not even know if contact had occurred. Thus, the risk of
harm posed by this particular use of force, and the actual
harm caused, was moderate. The district court properly
determined that the use of force in this instance was not
severe.
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, 673 F.3d at 871. That interest is
assessed by considering three primary factors: “(1) the
severity of the crime at issue, (2) whether the suspect posed
an immediate threat to the safety of the officers or others, and
(3) whether the suspect was actively resisting arrest or
attempting to evade arrest by flight.” Miller, 340 F.3d at 964.
These factors, set forth in Graham v. Connor, 490 U.S. 386,
396 (1989), are not exclusive, however, and we examine the
totality of the circumstances, considering other factors when
appropriate. Glenn, 673 F.3d at 872.
14 LOWRY V. CITY OF SAN DIEGO
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,6 and no one responded to Sergeant
Nulton’s warnings, the officers reasonably concluded that a
burglary might be in progress.7 “[B]urglary and attempted
burglary are considered to carry an inherent risk of violence.”
Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154,
1163 (9th Cir. 2014). The Supreme Court has stated that
“[b]urglary is dangerous because it can end in confrontation
leading to violence.” Sykes v. United States, 564 U.S. 1, 9
(2011), overruled on other grounds by Johnson v. United
States, 135 S. Ct. 2551 (2015). Thus, the seriousness of the
suspected crime weighs in favor of the City.
The second Graham factor, “whether the suspect pose[d]
an immediate threat to the safety of the officers or others,” is
6
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 whether 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.
7
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 as
the open door, suggesting a burglary was in progress.
LOWRY V. CITY OF SAN DIEGO 15
“the most important single element of the three specified
factors.” Chew, 27 F.3d at 1441. When viewing the facts
from the perspective of the officers, it is apparent that a
reasonable officer could have concluded that if there was
someone committing a burglary in the building, that person
might be armed and could pose an immediate threat to the
safety of the officers. The officers knew that they had been
dispatched to respond to a burglar alarm, that they arrived
quickly to find a dark commercial building and an open door,
and that no one responded to their warnings. In Miller, we
concluded that the officer was entitled to assume that the
suspect posed an immediate threat because he was hiding, the
officer did not know whether he was armed, and he had
ignored the officer’s warning that a police dog would be
released. 340 F.3d at 965. Similarly “objectively menacing
circumstances” existed here. See id.Moreover, when confronted with signs of a burglary,
investigating officers are entitled to protect their own safety.
See Sandoval, 756 F.3d at 1163. We have previously
observed that “when officers suspect a burglary in progress,
they have no idea who might be inside and may reasonably
assume that the suspects will, if confronted, flee or offer
armed resistance.” Frunz v. City of Tacoma, 468 F.3d 1141,
1145 (9th Cir. 2006). Thus, “[s]o long as the officers have
established probable cause for a burglary, ‘in such exigent
circumstances, the police are entitled to enter immediately
using all appropriate force.’” Sandoval, 756 F.3d at 1163
(quoting Frunz, 468 F.3d at 1145; alterations incorporated).
This factor weighs in favor of the City in this case.
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
16 LOWRY V. CITY OF SAN DIEGO
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, 630 F.3d 805, 830 (9th Cir. 2010). Our cases
suggest that where the suspect passively resists arrest, a lesser
degree of force is justified compared to situations in which
the suspect actively resists arrest. See. e.g., Glenn, 673 F.3d
at 875; Smith, 394 F.3d at 703. In the end, this factor does
not weigh either way in this case.
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, 673 F.3d at 872.
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, 685 F.3d 867, 882 (9th
Cir. 2012). All three officers testified that Sergeant Nulton
issued a warning and repeated it before entering the suite with
Bak. Although Lowry did not hear the warnings, the officers
did not know and had no reason to know that someone would
be in a nonresidential building late at night and sleeping so
LOWRY V. CITY OF SAN DIEGO 17
deeply that she would be unable to hear a warning or to be
awakened by the officers’ calls. The circumstances were not
at all like those in Nelson, where we held that the officers had
failed to give sufficient warning despite their attempts to do
so because they were 45 to 150 feet from the group, in a party
of 1,000 people, and it was “undisputed that they lacked any
means with which to amplify their voices so that they could
be heard over the din of the crowd.” 685 F.3d at 882. Here,
the officers’ issuance of warnings outside the door of the suite
weighs in favor of the City.
We also consider “whether there were less intrusive
means of force that might have been used before officers
resorted” to releasing Bak. Glenn, 673 F.3d at 876. In
assessing alternatives, however, we must not forget that
“officers ‘are not required to use the least intrusive degree of
force possible.’” Nelson, 685 F.3d at 882 (quoting Forrester
v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994)). As
Graham cautioned, courts must allow “for the fact that police
officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a
particular situation.” 490 U.S. at 397.8
8
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 respond 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
18 LOWRY V. CITY OF SAN DIEGO
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.9 If that approach had been followed, Sergeant
Nulton would have been required to expose himself to what
the officers reasonably suspected was a burglar, lurking in the
dark office, possibly armed. See Miller, 340 F.3d at 968(concluding that the use of an off-leash police dog was
reasonable and rejecting the alternative proposal of keeping
the dog on-leash, because it could have led the officer into an
ambush or pulled him “into a dangerous situation with no
opportunity to react safely”). The conceivable alternatives to
SDPD’s policy do not weigh against the City’s interest in the
use of force under these particular circumstances.
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.
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.
9
In one sentence 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.
LOWRY V. CITY OF SAN DIEGO 19
Glenn, 673 F.3d at 871. Here, the force used was not severe,
and the officers had a compelling interest in protecting
themselves against foreseeable danger in an uncertain
situation, which they reasonably suspected to be an ongoing
burglary. We conclude that the use of Bak under these
circumstances did not violate Lowry’s rights under the Fourth
Amendment.
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, 475 U.S. 796,
799 (1986). As a result, we do not reach the issue of whether
the district court properly granted summary judgment on the
alternative ground that Lowry failed to satisfy the additional
requirements for municipal liability under Monell.
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.
20 LOWRY V. CITY OF SAN DIEGO
THOMAS, Chief Judge, 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.” 490 U.S. 386, 396 (1989)
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). As the
majority notes, the analysis of the government’s interest in
the use of force “requires careful attention to the facts and
circumstances of each particular case, including [1] the
severity of the crime at issue, [2] whether the suspect poses
an immediate threat to the safety of the officers or others, and
[3] whether he [or she] is actively resisting arrest or
attempting to evade arrest by flight.” Id. (citing Garner,
471 U.S. at 8–9); Majority Op. 11, 13.
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,
392 U.S. 1, 20–22 (1968)), on summary judgment a court
LOWRY V. CITY OF SAN DIEGO 21
must construe any disputed facts and draw all reasonable
inferences in favor of the non-moving party, Oswalt v.
Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011).
Here, construing the facts and drawing reasonable inferences
in Lowry’s favor, a jury could find that the force used was
severe, that the government’s interest in the use of that force
was not especially strong, and, therefore, that the use of a
police dog was unreasonable.1
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,” 490 U.S. at 396(quoting Garner, 471 U.S. at 8), and the Supreme Court has
more recently explained that this prong of the analysis
1
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, 550 U.S. 372, 381 n.8 (2007); Majority Op. 11 & n.5.
However, “[w]here the objective reasonableness of an officer’s conduct
turns on disputed issues of material fact, it is ‘a question of fact best
resolved by a jury.’” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th
Cir. 2011) (quoting Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th
Cir. 2003)). Because Lowry has succeeded in raising material disputes of
fact, as detailed below, it is the task of the jury to resolve those fact
disputes and draw any relevant inferences from them.
22 LOWRY V. CITY OF SAN DIEGO
requires a court to “consider the risk of bodily harm that [the
officer]’s actions posed to [the plaintiff],” Scott v. Harris,
550 U.S. 372, 383 (2007). Similarly, we have held that this
inquiry requires “evaluating the type and amount of force
inflicted.” Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir.
2003) (emphasis added) (citing Chew v. Gates, 27 F.3d 1432,
1440 (9th Cir. 1994)). Thus, the risk of harm posed by a
particular use of force — not just the amount of harm actually
caused in hindsight — is properly considered as part of the
first Graham step.
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 659, 661 (9th Cir. 1997), overruled on other
grounds by Smith v. City of Hemet, 394 F.3d 689 (9th Cir.
2005).
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.,
340 F.3d 959, 961, 964 (9th Cir. 2003), while another
sustained multiple bites that “nearly severed” his arm, Chew,
27 F.3d at 1441; Majority Op. 12–13. Though the officers in
the present case took steps to reduce the risk of harm by
following the dog closely and calling him off quickly, these
other cases nonetheless illustrate the risk of severe harm that
a bite-and-hold police dog may inflict when deployed off-
LOWRY V. CITY OF SAN DIEGO 23
leash as occurred here. Therefore, in assessing the
reasonableness of the force at the moment when the officers
made the decision to use an off-leash police dog — rather
than in hindsight, based on Lowry’s actual injuries — a
reasonable jury could find that the use of force was moderate
or severe.
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).2 Lowry
presented admissible evidence that raised a genuine dispute
of material fact as to whether the door was open; this fact
must therefore be construed in her favor at the summary
judgment stage.
In reviewing a district court’s evidentiary ruling at the
summary judgment stage, as the majority notes, we will
2
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.
24 LOWRY V. CITY OF SAN DIEGO
reverse a ruling that is “manifestly erroneous and
prejudicial.” Bias v. Moynihan, 508 F.3d 1212, 1224 (9th
Cir. 2007) (quoting Ballen v. City of Redmond, 466 F.3d 736,
745 (9th Cir. 2006)); Majority Op. 10. The district court’s
exclusion of Lowry’s testimony about the door was both.
Although we generally “refuse[] to find a ‘genuine issue’
where the only evidence presented is ‘uncorroborated and
self-serving’ testimony,” Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Kennedy v.
Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)), we have
also “acknowledged that declarations are often self-serving,”
Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir.
2015) (citing S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir.
2007)). We have therefore cautioned that “the district court
may not disregard a piece of evidence at the summary
judgment stage solely based on its self-serving nature.” Id.(citing Phan, 500 F.3d at 909). Thus, even “uncorroborated
and self-serving” testimony may be sufficient to establish a
genuine dispute of fact where it is “based on personal
knowledge, legally relevant, and internally consistent.” Id. at
498.
Here, Lowry testified that the door to Suite 201 was shut
when the officers arrived because it had automatically closed
behind her after she came back in from the bathroom. At her
deposition, Lowry gave the following testimony:
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?
LOWRY V. CITY OF SAN DIEGO 25
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 first-hand 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
evidence presented.” Schlup v. Delo, 513 U.S. 298, 332
(1995) (quoting Agosto v. INS, 436 U.S. 748, 756 (1978)). As
the Supreme Court has further observed, “[c]redibility
determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury
functions.” Hunt v. Cromartie, 526 U.S. 541, 552 (1999)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). Thus, it was error for the district court to assess
Lowry’s credibility and to exclude her testimony.
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
26 LOWRY V. CITY OF SAN DIEGO
party.” Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir.
1999) (quoting T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626 (9th Cir. 1987)). Under this
standard, Lowry’s testimony raised a genuine dispute of fact
as to whether the door was open, and the district court erred
in concluding otherwise.
2
Construing this fact and the other circumstances
surrounding the incident in the light most favorable to Lowry,
and drawing all 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, 27 F.3d at 1441 (quoting
Graham, 490 U.S. at 396). Assuming that the door to
Lowry’s office suite was closed, as we must at this stage, the
officers arriving on the scene saw that the only way to arrive
at the second-floor suites was via a locked gate or by scaling
a tall wall, and they saw no open doors nor any signs of
forced entry.3 A jury could find that, from the officers’
perspective, these circumstances increased the likelihood that
the burglar alarm was a false alarm and “materially
3
While the majority suggests that the door was unlocked even if it
was not open, Majority Op. 14 n.6, an unlocked door of the suite next to
the one where the alarm was triggered does not lead to the inevitable
conclusion that a burglary is likely occurring.
LOWRY V. CITY OF SAN DIEGO 27
diminished the risk of violent confrontation.” See Frunz v.
City of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006).
Despite the majority’s assertion that officers are entitled
to presume a burglary suspect poses an immediate threat,
Majority Op. 14–15, our caselaw does not compel that
conclusion. Rather, in Miller v. Clark County, 340 F.3d 959(9th Cir. 2003), the officers “knew that Miller had possessed
a large knife moments earlier, a fact that suggest[ed] Miller
had a propensity to carry a weapon.” Id. at 965. Here, by
contrast, the officers had no specific reason to believe that
any person assumed to be inside the office suite was armed.
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.”
468 F.3d at 1145. Ultimately, therefore, Frunz stands only
for the proposition that officers must consider all known facts
in determining whether a burglary suspect is likely to offer
armed resistance.4 Id.Applying Frunz’s admonition to the current case, the
circumstances known to the officers gave little indication that
4
Similarly, Sandoval v. Las Vegas Metropolitan Police Department,
756 F.3d 1154 (9th Cir. 2014), on which the majority relies, merely
repeated Frunz’s statement that officers may enter using “all appropriate
force” if the totality of the circumstances leads them to believe that an
active burglary is occurring. Id. at 1163 (citing Frunz, 468 F.3d at 1145));
Majority Op. 15.
28 LOWRY V. CITY OF SAN DIEGO
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 Lowry’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, 490 U.S. at 396. Thus, on summary judgment, this
factor weighs in favor of Lowry.
The next Graham factor asks us to consider “the severity
of the crime at issue.” 490 U.S. at 396. The parties dispute
whether burglary is considered a serious crime, but the
answer to that question does not end the inquiry. Even if the
officers were entitled to presume that burglary is a serious
crime,5 the real dispute centers on whether a reasonable
5
The majority relies on Sykes v. United States, 564 U.S. 1 (2011),
overruled on other grounds by Johnson v. United States, 135 S. Ct. 2551(2015), and Sandoval, 756 F.3d 1154, to support its contention that
officers are entitled to presume that burglary is both serious and
dangerous. Majority Op. 14–15. In addition to the fact that this approach
conflates the first and second Graham factors, neither of these cases
involved a Graham analysis.
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, 564 U.S. at 9. Sandoval concerned the
propriety of a warrantless entry, not the reasonableness of a particular use
of force. See 756 F.3d at 1163. Moreover, as explained above, Sandoval
merely condoned the use of appropriate force after the officers have
established exigent circumstances based on the totality of the information
available to them. Id. at 1163 (citing Frunz, 468 F.3d at 1145).
LOWRY V. CITY OF SAN DIEGO 29
officer on the scene would have concluded that a burglary
was in fact taking place, or would have considered the
possibility that the burglar alarm was a false alarm, and then
acted accordingly.
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.” 490 U.S. at
396. The City contends that Lowry’s failure to heed Sergeant
Nulton’s warnings led the officers to believe that the suspect
inside the suite was resisting arrest. Yet even if Lowry failed
to raise a genuine dispute as to whether the warnings were
given, and even if a reasonable officer at the scene would
have believed that a person inside the suite heard them,
Lowry’s simple failure to respond to the warnings does not
constitute actively resisting arrest. She was not moving at all.
“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, 630 F.3d 805, 830 (9th Cir. 2010) (citing
Forrester v. City of San Diego, 25 F.3d 804, 805 (9th Cir.
1994)); Majority Op. 16. When a suspect’s only resistance is
30 LOWRY V. CITY OF SAN DIEGO
failure to comply with a police order, and when that
resistance is “not particularly bellicose,” it is considered
passive and does not weigh heavily in the government’s
favor. Id.; see also City of Hemet, 394 F.3d at 703. Under
this precedent, a reasonable jury could find that Lowry’s mere
failure to respond to the warnings did not constitute active
resistance. Thus, on summary judgment, this factor weighs
in favor of Lowry.
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,
685 F.3d 867, 882 (9th Cir. 2012) (quoting Deorle v.
Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001)), I do not
disagree with the majority’s conclusion that this factor
weighs in favor of the City because the officers had no reason
to know that the person inside the building was sleeping and
did not hear their warnings. Cf. Blanford v. Sacramento
County, 406 F.3d 1110, 1116 (9th Cir. 2005) (holding that the
presence of warnings weighed in favor of the officers where
they had no reason to know the suspect was wearing
headphones and did not hear the warnings); see Majority Op.
16–17.
Finally, our precedent also allows a court to consider
whether less intrusive tactics were available to the officers
effecting a seizure. See Bryan, 630 F.3d at 831; City of
Hemet, 394 F.3d at 703. Here, Lowry argues that instead of
using off-leash dogs trained to bite and hold the first person
they come across, the City could and should train its dogs to
“find and bark,” an alternative approach in which the dog is
trained to bark upon locating a suspect and only bite if the
suspect tries to flee. Lowry also suggests that the dog should
have been kept on-leash to minimize the risk of harm to any
LOWRY V. CITY OF SAN DIEGO 31
bystanders. The parties dispute the benefits of the “find and
bark” method as well as the relative risks and benefits of
keeping dogs on-leash during searches like the one in this
case. The record is not well developed on this issue; thus the
existence of these alternative methods does not weigh heavily
in the excessive force analysis here. However, Lowry has
sufficiently raised the issue such that this theory would
remain available if we were to remand for further
proceedings.
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
Amendment 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, 343 F.3d
1052, 1057 (9th Cir. 2003) (quoting Deorle, 272 F.3d at 1280
32 LOWRY V. CITY OF SAN DIEGO
(emphasis in original)). I would therefore hold that the
district court erred in concluding, as a matter of law, that the
use of a police dog did not constitute excessive force.
II
I respectfully suggest that the district court also erred in
concluding that the City could not be liable even if excessive
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, 489 U.S. 378, 385 (1989) (alteration in original)
(quoting Springfield v. Kibbe, 480 U.S. 257, 267 (1987)
(O’Connor, J., dissenting)); see also Monell v. Dep’t of Soc.
Servs. of City of N.Y., 436 U.S. 658, 694 (1978). “[I]n this
circuit a policy itself need only cause a constitutional
violation; it need not be unconstitutional per se.” Jackson v.
Gates, 975 F.2d 648, 654 (9th Cir. 1992) (emphasis added)
(citing McKinley v. City of Eloy, 705 F.2d 1110, 1117 (9th
Cir. 1983)). We have explained that “[c]ity policy ‘causes’
an injury where it is ‘the moving force’ behind the
constitutional violation.” Chew, 27 F.3d at 1444 (quoting
Monell, 436 U.S. at 694).
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 considered the “moving
force” behind Lowry’s injury because the dog lunged at her
and immediately bit her, according to his bite-and-hold
training. See Chew, 27 F.3d at 1444. Moreover, the City
LOWRY V. CITY OF SAN DIEGO 33
admitted in its answer that “Sergeant Nulton deployed a
police services dog in conformity with the official policies
and procedures adopted by the San Diego Police
Department.” Accordingly, “[t]here is little doubt that a trier
of fact could find that [Lowry]’s injury was caused by city
policy.” See Chew, 27 F.3d at 1444.
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, 145 F.3d 1087, 1093 (9th Cir. 1998) (citing
Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994)). In
such a case, a municipality could be liable if its bite-and-hold
policy is the “moving force” behind an officer’s
unconstitutional action, even if the policy is not facially
unconstitutional. Here, given the City’s concession that
Sergeant Nulton acted pursuant to its official policy, a jury
could find that the policy caused Lowry’s constitutional
injury and thus that the City is subject to Monell liability.
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
34 LOWRY V. CITY OF SAN DIEGO
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,
954 F.2d 1470, 1477 (9th Cir. 1992) (describing the
requirements necessary for “impos[ing] liability on a local
governmental entity for failing to act to preserve
constitutional rights” (emphasis added) (quoting City of
Canton, 489 U.S. at 389)); see also Gant v. Cty. of L.A.,
772 F.3d 608, 618 (9th Cir. 2014) (requiring a plaintiff to
show that the government’s “omission amounts to deliberate
indifference”); Mortimer v. Baca, 594 F.3d 714, 716 (9th Cir.
2010) (imposing liability when a local government “has a
policy of inaction and such inaction amounts to a failure to
protect constitutional rights” (quoting Oviatt, 954 F.2d at
1474)); Chew, 27 F.3d at 1445 (distinguishing between the
different theories of Monell liability for officially sanctioned
affirmative acts and for failure to train).
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.
III
By allowing government entities to be held liable when
they violate citizens’ constitutional rights, § 1983 helps effect
LOWRY V. CITY OF SAN DIEGO 35
the guarantees of the Fourth Amendment. When, as here, a
citizen has succeeded in raising disputes of fact as to whether
her Fourth Amendment rights were violated, it is for a jury to
decide whether a violation occurred and whether the
government is liable for that violation.
For these reasons, I respectfully dissent.