PASADENA, Calif. (CN) — A woman whose lip was torn open at work by a San Diego police dog will go before the full Ninth Circuit after the federal appeals court agreed to rehear her case en banc.
The order comes five months after a three-judge panel revived Sara Lowry’s case.
Lowry is bringing excessive-force claims in connection to San Diego’s policy of training police dogs to “bite and hold.”
That policy had painful consequences for Lowry on Feb. 11, 2010, after she left the office in Pacific Beach but stayed in the bar-friendly neighborhood to have a few drinks.
Though Lowry was on her way home at about 9:30, the memory of leftover lunch in the office lured her back to her company’s suite.
A quick nosh turned into a nap on the office couch, and things came to a head when Lowry woke up to use the bathroom and accidentally triggered a neighboring business’s alarm.
Several San Diego Police Department officers responded, along with a police service dog named Bak. The officers searched the area and gave several warnings before releasing Bak, who found Lowry and pounced on her, tearing open her upper lip.
The responding sergeant, Sgt. Bill Nulton, told Lowry after the attack that she was “very lucky” because Bak “could have ripped [her] face off.”
A federal judge had granted the city summary judgment on Lowry’s Fourth Amendment suit, but the Ninth Circuit reversed 2-1 in April.
Though the lower court had relied solely on the amount of force involved, the appellate majority cited Supreme Court precedent Friday that says the type of force and the potential harm the force may cause carry weight as well.
“In this case we must not rely on the plaintiff’s ‘luck’ that she only ended up bleeding profusely from a cut lip rather than having her whole face ‘ripped off’ to excuse the conduct that the officer himself recognized could well have resulted in a far more egregious injury,” Judge Wallace Tashima wrote for the majority.
Considering both the type and the amount of force used against Lowry, “we have little trouble concluding that the intrusion on Lowry’s Fourth Amendment rights was severe,” the 45-page opinion states.
Tashima noted that Lowry did not pose an immediate threat to police officers and did not resist arrest, nor is “burglary … an inherently dangerous crime.”
Indeed the Bureau of Justice Statistics concluded that only about 7 percent of burglaries nationwide “involved incidents of violence,” the ruling states.
Judge Richard Clifton disagreed with this point in his dissent, writing that burglary does carry an inherent risk of violence.
“The fact that not all burglaries involve violence does not mean that there is no risk of violence, or that police have any way of telling before it is too late which burglars are violate and which are not,” Clifton said.
“The majority trumpets that only seven percent of burglaries nationwide involved incidents of violence, but that means that approximately one in every 14 burglaries involved violence, a significant number for police officers who respond to burglary calls regularly,” the 15-page opinion continues.
Tashima meanwhile noted that Sgt. Nulton had the option to keep Bak on her leash, “a tactic that would have allowed him to exercise greater control over Bak.”
Clifton disagreed on this point as well.
“Unless the leash was especially short – which would have minimized the utility of having a dog at all – a leash may not have kept Bak any closer to Nulton than she already was,” Clifton said.
Clifton highlighted the perspective of the responding police officers.
Since Lowry did not respond to the officers’ warnings, “there is no obvious reason why someone who was not actively trying to hide from the police would fail to respond to a command to exit a building,” the dissent states.
“In other words, the totality of the circumstances strongly suggested that if there was someone in the building, that person was likely a burglar, and possibly armed,” Clifton added.
For Clifton, today’s holding will discourage officers from protecting themselves and instead “risk their lives by exposing themselves to any burglar who might be armed and lying in wait.”
Published by Courthouse News Service.