Law enforcement agencies’ policies, in accordance with U.S. Supreme Court precedent, uniformly require that force used by officers be objectively reasonable under the circumstances. When considering disciplining an officer for violating a use of force policy, it is therefore critical to understand what the courts consider unreasonable. This is a nuanced and fact-intensive analysis. The 9th Circuit Court of Appeals’ April 1, 2016 decision in Lowry v. City of San Diego (although it did not arise in a disciplinary context) helps to clarify this inquiry.

Sara Lowry returned to her office after an evening drinking in nearby bars and decided to sleep on an office couch. During the night, she got up to use a restroom, accidentally set off a security system, and returned to sleep. Responding to the security alarm, a San Diego Police Department officer arrived at the office and saw a door propped open. He announced, “This is the San Diego Police Department! Come out now or I’m sending in a police dog! You may be bitten!” Lowry was asleep and did not hear. After making this announcement two or three times without receiving a response, the officer released the dog into the office, off-leash.

SDPD dogs are trained to enter a building, find a person, bite that person, and not release the bite until a police officer arrives and removes the dog. Such a bite has the potential to be fatal.

Fortunately, the SDPD dog’s bite of Lowry was not fatal. When the officer found Lowry, the dog jumped on her and bit her lip, causing it to bleed profusely. The officer told Lowry, “I can’t believe that’s the only damage. You’re very lucky. She could have ripped your face off.”

Lowry sued the City, alleging a violation of her Fourth Amendment rights. The trial court granted the City’s motion for summary judgment, determining basically that the facts were not sufficient for a jury to find in Lowry’s favor. Lowry appealed, and the U.S. Court of Appeals for the Ninth Circuit reversed the trial court.

Level of Force Depends on What Could Have Happened, Not Just What Did Happen

The Ninth Circuit disagreed with the trial court’s finding that releasing the police dog off-leash was a “moderate” use of force. Previous Ninth Circuit cases had held that use of a police dog was a “severe” level of force. The trial court had found that those cases were different, and therefore did not follow them, because the dog’s encounter with Lowry was “very quick” and Lowry’s injuries were “slight,” noting that in one of the other cases, the police dog had bitten the plaintiff several times, dragged him between four and ten feet, and nearly severed his arm.

The Ninth Circuit stressed that by focusing solely on the amount of force that was applied to Lowry (a relatively short bite to the lip), the trial court had failed to properly consider the type of force the SDPD had used (an off-leash dog that was trained to bite and hold) and the potential harm that it may cause. Citing a prior decision, the Court noted, “if a police officer fires a gun at a fleeing misdemeanor suspect but the bullet only grazes the suspect’s leg, we would not dismiss the force as non-severe because the bullet did not do the damage that it foreseeably could have done.” Therefore, the Court held, a reasonable jury could find that releasing the dog into the office off-leash was a “severe” use of force.

The Ninth Circuit then weighed the use of “severe” force against the circumstances facing the officers on the scene, and held that a reasonable jury could find that a use of “severe” force was unreasonable under the circumstances.

A Reasonable Jury Could Find Circumstances did not Justify Severe Force

The Ninth Circuit considered the following in deciding that “severe” force might not have been justified. First, it found that a reasonable jury could find that Lowry did not pose an immediate threat to the safety of the officers or others. The trial court had found that the officers reasonably and objectively feared for their own safety and that of any possible hostage because the officers responded to a burglary alarm, the door to the office suite was ajar but no lights were on, and they did not know whether or not the suspect was armed. In stating its disagreement, the Ninth Circuit wrote, “The district court’s reasoning assumes that any person inside an office building where a security alarm has been tripped at night necessarily poses an immediate threat to their safety or that of others. We find this assumption unwarranted.”

Second, the Ninth Circuit rejected the trial court’s finding that Lowry’s failure to respond to the officer’s commands to leave the suite could be construed as an attempt to evade arrest. The Court of Appeals held that a reasonable jury would not be compelled to make that inference and noted, “The mere failure to respond to an officer’s orders, without more, generally does not support the use of serious force – especially if the [subject] has not heard the commands.”

Third, the Ninth Circuit held that the factor of the severity of the suspected crime – burglary – weighed only slightly in favor of a finding of reasonableness. The Court clarified that even where the suspected crime is a felony and not a misdemeanor, the analysis of the reasonableness of the use of force depends on the level of danger the suspected crime poses. Citing Supreme Court authority and a Bureau of Justice Statistics study, the Ninth Circuit held that, although it can be dangerous, “Burglary is not an inherently dangerous crime.”

Fourth, the Court held that the fact that the officer gave warnings before releasing the dog weighed only slightly in favor of reasonableness, because Lowry did not hear.

Finally, the Court held that a reasonable jury could find that the officer should have considered the alternative tactic of keeping the dog on-leash, allowing him to exercise greater control.

Law enforcement agencies should consider the Lowry decision’s analysis when making disciplinary decisions involving possible policy violations for the use of police dogs or other potentially serious levels of force.