Ninth Circuit, En Banc, Holds No Fourth Amendment Violation For A K9 Use Of Force During Commercial Burglary Investigation

Courtesy of James R. Touchstone, Esq. and Denise L. Rocawich, Esq. of Jones & Mayer

On June 6, 2017, the Ninth Circuit Court of Appeal, sitting en banc, issued and published an opinion in Lowry v. City of San Diego wherein plaintiff alleged that the City of San Diego’s policy of training its police K9s to bite and hold individuals resulted in a violation of plaintiff’s Fourth Amendment rights. During a search conducted during an investigation of a commercial burglary, plaintiff was bitten on her upper lip by a police K9 while she was sleeping.

The en banc court held that, 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 Court concluded that the force used was not excessive and did not violate the Fourth Amendment.  Because the officer’s actions were constitutional, the City could not be held liable under Monell v. Department of Social Services New York, 436 U.S. 658 (1978).  In short, the City’s bite and hold K9 policy was neither per se unconstitutional, nor was it unconstitutional as applied in the circumstances of this particular encounter.

Facts and Background

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 K9, 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, Bak’s handler released her from her lead and followed closely behind the dog as they scanned each room.  As the officer entered one of the rooms, he noticed a person lying down on a couch under a blanket.  Bak quickly pounced on the figure under the blanket and bit down.  Within seconds, the officer called Bak off, and the dog returned to the officer’s side.

The person under the blanket was plaintiff Lowry, an employee who worked in the office suite.  Lowry had returned to the office after a night out drinking with her friends, and had accidentally triggered the alarm before falling asleep on the breakroom couch. During their encounter, Bak bit through Lowry’s lip.

Lowry filed suit against the City under 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 her Fourth Amendment rights.  The district court granted the City’s motion for summary judgment, concluding both that Lowry did not suffer constitutional harm and that, even if she did, the City was not liable for her injuries. Lowry appealed to the Ninth Circuit.

In a 2-1 decision, a sharply divided three-judge panel of the Ninth Circuit reversed the district court’s decision and found that a reasonable jury could find the use of force to be in violation of the Fourth Amendment, and that a reasonable jury could find that the violation was caused by the City’s bite and hold policy.

The panel’s decision was alarming for law enforcement in a number of respects.  First, the decision held that K9 uses of force necessarily constitute “severe” uses of force, regardless of whether the actual injury sustained in particular was, in fact, severe. Second, the panel’s decision provided that officers are not entitled to presume that a burglary suspect is a threat and held that burglary is not an inherently dangerous crime.  Third, the panel’s decision stated that officers may not reasonably believe a suspect is evading arrest when the suspect fails to respond to verbal warnings and commands. Finally, the panel held that officers must use less intrusive tactics when available including, specific to this case, keeping a K9 on lead rather than permitting off lead searches as occurred with Bak.  The City then filed a Petition for Rehearing En Banc which was granted.

Ninth Circuit En Banc Decision

The en banc Court affirmed the decision of the district court, thereby rejecting the three-judge panel’s decision.  The Court held that the use of force against Lowry was not unconstitutionally excessive.  In so holding, the en banc Court noted that, in assessing the objective reasonableness of a particular use of force, a court must 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.

In analyzing the first issue, the en banc Court disagreed with the three-judge panel and held that K9 uses of force do not necessarily constitute “severe” force.  Rather, characterizing the quantum of force with regard to the use of a police dog depends on the specific factual circumstances of a particular case. The Court then found that the district court had properly concluded that the risk of harm to Lowry and the use of force against her were “moderate.”  In so concluding, the Court noted that the K9 handler closely followed Bak, that the handler called Bak off very quickly after the initial contact with Lowry, and that the actual harm caused to Lowry was moderate.

As to the City’s interest in the use of force, the en banc Court stated that the interest must be examined in light of the totality of the circumstances facing the officers on scene using the three factors establish in Graham v. Connor, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of officers or others and whether the suspect was actively resisting arrest or attempting to evade arrest by flight.  The Court also noted that other relevant facts include whether warnings were given and the availability of less intrusive alternatives to the force used.

Contrary to what the three-judge panel had found, the en banc Court found that the first factor of the severity of the crime at issue weighed in the City’s favor finding that “burglary and attempted burglary are considered to carry an inherent risk of violence,” and that “burglary is dangerous because it can end in confrontation leading to violence.”

In addressing the second Graham factor of whether the suspect posed an immediate threat to the safety of the officers or others, the Court found 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 Court then addressed the third Graham factor of whether Lowry was resisting or attempting to evade arrest, finding that the factor did not weigh substantially either way in this particular case as that factor is important when, unlike here, an officer is facing a suspect and can observe whether that suspect is complying or resisting.

In addressing “other important considerations” of whether a warning was given and the availability of less intrusive alternatives to the force used, the Court again squarely disagreed with the three-judge panel.  Specifically, the Court found that the issuance of warnings outside the door of the suite weighed in favor of the City because, although Lowry did not hear the warnings, “the officers did not know and had no reason to know that someone would be in a non-residential building late at night and sleeping so deeply that she would be unable to hear a warning or to be awakened by the officer’s calls.”

The Court also declined to find that an “on lead” search was a reasonable less intrusive alternative to the “off-lead” search that was conducted, stating: “The practice of allowing dogs to inspect areas off-lead is in place to protect officers’ safety” and that an on lead search in these circumstances would have required the handler “to expose himself to what the officers reasonably suspected was a burglar, lurking in the dark office, possibly armed.”

Finally, in balancing the gravity of the intrusion on Lowry’s Fourth Amendment rights against the City’s need for that intrusion, the Court found that the force used was not severe and that 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.  The Court then concluded that under the circumstances of the case, the use of Bak did not violate Lowry’s rights under the Fourth Amendment. Thus, because the officer’s actions were constitutional, the City could not be held liable under Monell.

HOW THIS AFFECTS YOUR AGENCY

Prior to this decision, there had been a disturbing trend in the Ninth Circuit decisions evaluating K9 uses of force under a different and heightened standard.  This decision stems from that tide and reinforces that K9 uses of force must be evaluated under the Graham factors. This case constitutes a significant victory for law enforcement statewide.  It is important to note, however, that this ruling does not provide that all off-lead searches are constitutionally valid or that all bite and hold policies are valid.  Rather, each K9 use of force must be evaluated under the facts and circumstances of the particular case.

As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at jrt@jones-mayer.com [for James Touchstone] or dlr@jones-mayer.com [for Denise Rocawich].

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.





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