and Submitted En Banc January 18, 2017 San Francisco,
from the United States District Court for the Southern
District of California, No. 3:11-cv-00946-MMA-WMC Michael M.
Anello, District Judge, Presiding
A. Shaman (argued) and Jeffrey A. Lake, Jeffrey A. Lake
A.P.C., San Diego, California, for Plaintiff-Appellant.
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;
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'
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.
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.
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,
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.
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.
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).
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 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.
CLIFTON, Circuit Judge
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.
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 (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.
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.
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.
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!" No one responded. He waited between 30
and 60 seconds and repeated the same warnings. Again, there
was no response.
with an open door to a darkened 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.
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 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.
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." When practical, handlers are expected to
issue warnings before releasing a police service dog.
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).
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)).
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).
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).
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.
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)).
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 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
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.
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.
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 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