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Lowry v. City of San Diego

United States Court of Appeals, Ninth Circuit

June 6, 2017

Sara Lowry, Plaintiff-Appellant,
v.
City of San Diego, Defendant-Appellee.

          Argued and Submitted En Banc January 18, 2017 San Francisco, California

         Appeal 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

          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.

          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.

         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 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.

          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, 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 between 30 and 60 seconds and repeated the same warnings. Again, there was no response.

         Faced with an open door to a darkened[3] 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 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).

         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 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 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 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 ...


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