Sara Lowry v. City of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARA LOWRY, No. 13-56141

Plaintiff-Appellant,

D.C. No.

v. 3:11-cv-00946-MMA-WMC

CITY OF SAN DIEGO,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Argued and Submitted En Banc January 18, 2017

San Francisco, California

Filed June 6, 2017

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.

Opinion by Judge Clifton;

Dissent by Chief Judge Thomas

2 LOWRY V. CITY OF SAN DIEGO

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

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LOWRY V. CITY OF SAN DIEGO 3

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.

COUNSEL

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.

4 LOWRY V. CITY OF SAN DIEGO

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,

LOWRY V. CITY OF SAN DIEGO 5

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

1

Lowry argues that there is a genuine dispute of material fact as to

whether the door leading to Suite 201 was in fact open. As will be

discussed below, we conclude that the district court did not abuse its

discretion in ruling that Lowry had not presented admissible evidence to

dispute the officers’ testimony that the door was open when they arrived.

2

Lowry contends there is a genuine dispute of material fact regarding

whether Sergeant Nulton gave these warnings. As discussed below, we

hold that the district court did not abuse its discretion in finding that

Lowry had provided no admissible evidence to the contrary.

6 LOWRY V. CITY OF SAN DIEGO

between 30 and 60 seconds and repeated the same warnings.

Again, there was no response.

Faced with an open door to a darkened3 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

3

Lowry argues that there is a genuine issue of fact regarding whether

the office was dark. The district court concluded that Lowry did not

submit admissible evidence sufficient to raise a genuine dispute of

material fact regarding the degree of illumination inside Suite 201. We

hold that the district court did not abuse its discretion, as discussed below.

LOWRY V. CITY OF SAN DIEGO 7

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).

4

These factors are derived from Graham v. Connor, 490 U.S. 386,

396 (1989).

8 LOWRY V. CITY OF SAN DIEGO

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

LOWRY V. CITY OF SAN DIEGO 9

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

10 LOWRY V. CITY OF SAN DIEGO

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

LOWRY V. CITY OF SAN DIEGO 11

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 of the Force Used

Because there are no genuine issues of material fact and

“the relevant set of facts” has been determined, the

reasonableness of the use of force is “a pure question of law.”

Scott, 550 U.S. at 381 n.8.5

Although Lowry has not sued the individual police

officers, her Monell claim against the City first requires her

to establish that the force used against her was

unconstitutionally excessive. In assessing the objective

reasonableness of a particular use of force, we 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.” Glenn v. Washington County, 673 F.3d 864,

871 (9th Cir. 2011) (internal quotation marks and citations

omitted).

5

The dissent discusses the question posed by this case in terms of

what a jury might decide, but once the facts have been established, this

case presents a question of law to be decided by the court.

12 LOWRY V. CITY OF SAN DIEGO

This inquiry must be viewed “from the perspective of a

reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Graham, 490 U.S. at 396. An officer’s

use of force cannot be deemed excessive based on facts that

he reasonably would not have known or anticipated.

1. The Type and Amount of Force

The first step of the excessive force inquiry requires us to

“assess the severity of the intrusion on the individual’s Fourth

Amendment rights by evaluating ‘the type and amount of

force inflicted.’” Espinosa v. City & County of S.F., 598 F.3d

528, 537 (9th Cir. 2010) (quoting Miller v. Clark County,

340 F.3d 959, 964 (9th Cir. 2003)). We must undertake a

case-by-case analysis. See Torres, 648 F.3d at 1124 (holding

that an excessive force inquiry is a “highly fact-intensive task

for which there are no per se rules”).

Our precedent establishes that characterizing the quantum

of force with regard to the use of a police dog depends on the

specific factual circumstances. In Smith v. City of Hemet,

394 F.3d 689, 701–02 (9th Cir. 2005) (en banc), we held that

the use of a police dog constituted excessive force where the

officers sicced the dog on the plaintiff three times, including

once after he had already been pinned down, and then pepper

sprayed his open wounds. Similarly, in Chew, we concluded

that “the force used to arrest [the plaintiff] was severe”

because the dog bit the plaintiff three times, dragged him

between four and ten feet, and “nearly severed” his arm.

27 F.3d at 1441. On the other hand, in Miller v. Clark

County, we held that the use of force, although considerable

and serious, was nonetheless reasonable and did not rise to

the level of “deadly force,” even though the dog apprehended

a fleeing suspect with a bite that lasted between forty-five and

LOWRY V. CITY OF SAN DIEGO 13

sixty seconds, “shredded” the plaintiff’s muscles, and reached

the bone. 340 F.3d at 961–66.

Here, the district court properly concluded that the use of

force was “moderate.” Unlike in Chew, 27 F.3d at 1441,

where the police dog was “beyond the reach of a

countermanding order” when the dog found the plaintiff,

dragged him up to ten feet, and “nearly severed” his arm, in

this case, Sergeant Nulton closely followed Bak and called

her off very quickly after the initial contact with Lowry. In

part because of Nulton’s close proximity to Bak, the

encounter between Lowry and Bak was so brief that Nulton

did not even know if contact had occurred. Thus, the risk of

harm posed by this particular use of force, and the actual

harm caused, was moderate. The district court properly

determined that the use of force in this instance was not

severe.

2. The City’s Interest in the Use of Force

The second step of the excessive force analysis under the

Fourth Amendment is to “evaluate the government’s interest

in the use of force.” Glenn, 673 F.3d at 871. That interest is

assessed by considering three primary factors: “(1) the

severity of the crime at issue, (2) whether the suspect posed

an immediate threat to the safety of the officers or others, and

(3) whether the suspect was actively resisting arrest or

attempting to evade arrest by flight.” Miller, 340 F.3d at 964.

These factors, set forth in Graham v. Connor, 490 U.S. 386,

396 (1989), are not exclusive, however, and we examine the

totality of the circumstances, considering other factors when

appropriate. Glenn, 673 F.3d at 872.

14 LOWRY V. CITY OF SAN DIEGO

The first Graham factor, the severity of the crime at issue,

weighs in the City’s favor. Because the building’s burglar

alarm had been triggered late at night, the door to the office

suite had been left ajar,6 and no one responded to Sergeant

Nulton’s warnings, the officers reasonably concluded that a

burglary might be in progress.7 “[B]urglary and attempted

burglary are considered to carry an inherent risk of violence.”

Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154,

1163 (9th Cir. 2014). The Supreme Court has stated that

“[b]urglary is dangerous because it can end in confrontation

leading to violence.” Sykes v. United States, 564 U.S. 1, 9

(2011), overruled on other grounds by Johnson v. United

States, 135 S. Ct. 2551 (2015). Thus, the seriousness of the

suspected crime weighs in favor of the City.

The second Graham factor, “whether the suspect pose[d]

an immediate threat to the safety of the officers or others,” is

6

The dissent may exaggerate the significance of the door being

propped open. Even if it had been closed, it could be argued that it might

not have been unreasonable for officers responding to a burglar alarm at

a dark commercial building late at night to check doorknobs to see

whether they were locked. The door in question was obviously unlocked,

if it was not open, because the officers entered the office on their own.

Because the admitted evidence supported the finding that the door was

open, though, we need not decide whether that finding or any other factual

finding made in this case by the district court was essential to the

summary judgment in this case. Each set of circumstances must be

evaluated on a case-by-case basis.

7

The dissent argues that a reasonable officer would have considered

the possibility that the burglar alarm was a false alarm, and therefore

would not have concluded that a burglary was in progress. Although the

burglar alarm was the reason the police arrived on the scene, once the

officers approached the building, they made other observations, such as

the open door, suggesting a burglary was in progress.

LOWRY V. CITY OF SAN DIEGO 15

“the most important single element of the three specified

factors.” Chew, 27 F.3d at 1441. When viewing the facts

from the perspective of the officers, it is apparent 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 officers knew that they had been

dispatched to respond to a burglar alarm, that they arrived

quickly to find a dark commercial building and an open door,

and that no one responded to their warnings. In Miller, we

concluded that the officer was entitled to assume that the

suspect posed an immediate threat because he was hiding, the

officer did not know whether he was armed, and he had

ignored the officer’s warning that a police dog would be

released. 340 F.3d at 965. Similarly “objectively menacing

circumstances” existed here. See id.

Moreover, when confronted with signs of a burglary,

investigating officers are entitled to protect their own safety.

See Sandoval, 756 F.3d at 1163. We have previously

observed that “when officers suspect a burglary in progress,

they have no idea who might be inside and may reasonably

assume that the suspects will, if confronted, flee or offer

armed resistance.” Frunz v. City of Tacoma, 468 F.3d 1141,

1145 (9th Cir. 2006). Thus, “[s]o long as the officers have

established probable cause for a burglary, ‘in such exigent

circumstances, the police are entitled to enter immediately

using all appropriate force.’” Sandoval, 756 F.3d at 1163

(quoting Frunz, 468 F.3d at 1145; alterations incorporated).

This factor weighs in favor of the City in this case.

The third factor, whether Lowry was resisting or

attempting to evade arrest, does not weigh substantially either

way here. That factor can be important when an officer is

16 LOWRY V. CITY OF SAN DIEGO

facing a suspect and can observe whether that suspect is

complying or resisting. In this case, though, nobody

responded to the warnings shouted by Sergeant Nulton, so the

officers did not know anything specific about whomever

might have been inside the building. The district court

concluded that because Lowry did not respond to Nulton’s

commands, “the officers could [have] reasonably believe[d]

that the suspect was ignoring their commands, thereby

evading arrest.” Although we have acknowledged that

“[e]ven purely passive resistance can support the use of some

force,” we have explained that “the level of force an

individual’s resistance will support is dependent on the

factual circumstances underlying that resistance.” Bryan v.

MacPherson, 630 F.3d 805, 830 (9th Cir. 2010). Our cases

suggest that where the suspect passively resists arrest, a lesser

degree of force is justified compared to situations in which

the suspect actively resists arrest. See. e.g., Glenn, 673 F.3d

at 875; Smith, 394 F.3d at 703. In the end, this factor does

not weigh either way in this case.

In assessing the City’s interest in the use of force, other

relevant factors we have identified include “whether proper

warnings were given” and “the availability of less intrusive

alternatives to the force employed.” Glenn, 673 F.3d at 872.

We have held that an important consideration in

evaluating the City’s interest in the use of force is “whether

officers gave a warning before employing the force.” Id. at

876; see also Nelson v. City of Davis, 685 F.3d 867, 882 (9th

Cir. 2012). All three officers testified that Sergeant Nulton

issued a warning and repeated it before entering the suite with

Bak. Although Lowry did not hear the warnings, the officers

did not know and had no reason to know that someone would

be in a nonresidential building late at night and sleeping so

LOWRY V. CITY OF SAN DIEGO 17

deeply that she would be unable to hear a warning or to be

awakened by the officers’ calls. The circumstances were not

at all like those in Nelson, where we held that the officers had

failed to give sufficient warning despite their attempts to do

so because they were 45 to 150 feet from the group, in a party

of 1,000 people, and it was “undisputed that they lacked any

means with which to amplify their voices so that they could

be heard over the din of the crowd.” 685 F.3d at 882. Here,

the officers’ issuance of warnings outside the door of the suite

weighs in favor of the City.

We also consider “whether there were less intrusive

means of force that might have been used before officers

resorted” to releasing Bak. Glenn, 673 F.3d at 876. In

assessing alternatives, however, we must not forget that

“officers ‘are not required to use the least intrusive degree of

force possible.’” Nelson, 685 F.3d at 882 (quoting Forrester

v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994)). As

Graham cautioned, courts must allow “for the fact that police

officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a

particular situation.” 490 U.S. at 397.8

8

The dissent relies upon the possibility that the alarm might have

been false. Many alarms are false, and likely the officers knew that was

a possibility here. The chance the alarm was false did not give the officers

reason simply to disregard it, however. They had been dispatched to

investigate this alarm. We reasonably expect police officers to respond to

alarms, not to ignore them because they might be false.

The real question was whether the officers proceeded unreasonably

in their inspection of the building because of the possibility that the alarm

was false. The answer to that question was no. If the alarm had gone off

by itself and there was nobody in the building, then there would have been

18 LOWRY V. CITY OF SAN DIEGO

The practice of allowing dogs to inspect areas off-lead is

in place to protect officers’ safety. Lowry suggests that the

police dog could have been kept on her leash, albeit without

any evidence in support of the effectiveness of that alternative

technique.9 If that approach had been followed, Sergeant

Nulton would have been required to expose himself to what

the officers reasonably suspected was a burglar, lurking in the

dark office, possibly armed. See Miller, 340 F.3d at 968

(concluding that the use of an off-leash police dog was

reasonable and rejecting the alternative proposal of keeping

the dog on-leash, because it could have led the officer into an

ambush or pulled him “into a dangerous situation with no

opportunity to react safely”). The conceivable alternatives to

SDPD’s policy do not weigh against the City’s interest in the

use of force under these particular circumstances.

3. The Balance of Interests

The final step of the excessive force inquiry requires us to

balance the gravity of the intrusion on Lowry’s Fourth

Amendment rights against the City’s need for that intrusion.

nobody at risk of harm. The only alternative that weighed against

releasing Bak was the possibility that there was an innocent person in the

building. That turned out to be the case, but that could not have seemed

like a likely possibility to the officers at the time. They were at a dark

commercial building, late at night, where an alarm had been sounded, and

a door was found open. The officers called more than one warning in a

loud voice at close range with no response. It was not unreasonable for

the officers to infer that the risk of harm to an innocent bystander was

small.

9

In one sentence in her motion opposing summary judgment and on

appeal, Lowry presented the “guard and bark” technique as an alternative

policy the SDPD should have employed. This was not further developed

before the district court.

LOWRY V. CITY OF SAN DIEGO 19

Glenn, 673 F.3d at 871. Here, the force used was not severe,

and 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. We conclude that the use of Bak under these

circumstances did not violate Lowry’s rights under the Fourth

Amendment.

C. The City’s “Bite and Hold” Policy

Because we conclude that Lowry did not suffer a

constitutional injury, she cannot establish liability on the part

of the City. See City of Los Angeles v. Heller, 475 U.S. 796,

799 (1986). As a result, we do not reach the issue of whether

the district court properly granted summary judgment on the

alternative ground that Lowry failed to satisfy the additional

requirements for municipal liability under Monell.

III. Conclusion

We affirm the summary judgment entered by the district

court in favor of the City. There were no genuine disputes of

material fact regarding Lowry’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 force used was not excessive and did not violate the

Fourth Amendment. Because the officers’ actions were

constitutional, the City cannot be held liable under Monell.

AFFIRMED.

20 LOWRY V. CITY OF SAN DIEGO

THOMAS, Chief Judge, dissenting:

Sara Lowry 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 encounters. Because a

reasonable jury could find that the City of San Diego’s use of

a police dog was unreasonable under the circumstances

presented here, I must respectfully dissent.

I

In my view, the district court erred in concluding that no

reasonable jury could find that an excessive force

constitutional violation had occurred. Under the Graham v.

Connor framework, “[d]etermining whether the force used to

effect a particular seizure is ‘reasonable’ under the Fourth

Amendment requires a careful balancing of ‘the nature and

quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing

governmental interests at stake.” 490 U.S. 386, 396 (1989)

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). As the

majority notes, the analysis of the government’s interest in

the use of force “requires careful attention to the facts and

circumstances of each particular case, including [1] the

severity of the crime at issue, [2] whether the suspect poses

an immediate threat to the safety of the officers or others, and

[3] whether he [or she] is actively resisting arrest or

attempting to evade arrest by flight.” Id. (citing Garner,

471 U.S. at 8–9); Majority Op. 11, 13.

While recognizing that “[t]he ‘reasonableness’ of a

particular use of force must be judged from the perspective of

a reasonable officer on the scene,” id. (citing Terry v. Ohio,

392 U.S. 1, 20–22 (1968)), on summary judgment a court

LOWRY V. CITY OF SAN DIEGO 21

must construe any disputed facts and draw all reasonable

inferences in favor of the non-moving party, Oswalt v.

Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011).

Here, construing the facts and drawing reasonable inferences

in Lowry’s favor, a jury could find that the force used was

severe, that the government’s interest in the use of that force

was not especially strong, and, therefore, that the use of a

police dog was unreasonable.1

A

At the first step of the Graham inquiry, a reasonable jury

could find that the intrusion on Lowry’s Fourth Amendment

interests was moderate or even severe because of the dog bite

Lowry suffered, coupled with the risk of greater harm she

faced from an off-leash police dog trained to bite and hold the

first person it found.

Both Supreme Court precedent and our case law require

consideration of the risk of harm that may be inflicted by a

particular use of force. Graham itself requires analyzing both

the “nature and quality of the intrusion,” 490 U.S. at 396

(quoting Garner, 471 U.S. at 8), and the Supreme Court has

more recently explained that this prong of the analysis

1

The majority emphasizes that the reasonableness of a particular use

of force is a “pure question of law” once the facts are established. See

Scott v. Harris, 550 U.S. 372, 381 n.8 (2007); Majority Op. 11 & n.5.

However, “[w]here the objective reasonableness of an officer’s conduct

turns on disputed issues of material fact, it is ‘a question of fact best

resolved by a jury.’” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th

Cir. 2011) (quoting Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th

Cir. 2003)). Because Lowry has succeeded in raising material disputes of

fact, as detailed below, it is the task of the jury to resolve those fact

disputes and draw any relevant inferences from them.

22 LOWRY V. CITY OF SAN DIEGO

requires a court to “consider the risk of bodily harm that [the

officer]’s actions posed to [the plaintiff],” Scott v. Harris,

550 U.S. 372, 383 (2007). Similarly, we have held that this

inquiry requires “evaluating the type and amount of force

inflicted.” Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir.

2003) (emphasis added) (citing Chew v. Gates, 27 F.3d 1432,

1440 (9th Cir. 1994)). Thus, the risk of harm posed by a

particular use of force — not just the amount of harm actually

caused in hindsight — is properly considered as part of the

first Graham step.

In the current case, Lowry testified that Sergeant Nulton

remarked that the dog could have “ripped [Lowry’s] face off”

and that she was “very lucky” to have gotten only a relatively

small bite. In short, there is no dispute that Lowry faced a

significant risk of harm when the dog was released into the

suite where she was sleeping. Our prior decisions have

similarly recognized that “police dogs can — and often do —

cause serious harm.” Vera Cruz v. City of Escondido,

139 F.3d 659, 661 (9th Cir. 1997), overruled on other

grounds by Smith v. City of Hemet, 394 F.3d 689 (9th Cir.

2005).

In other cases where we have addressed the use of bite-

and-hold police dogs, as the majority explains, one plaintiff

had suffered a dog bite that “went as deep as the bone” and

“shredded” the muscles in his arm, Miller v. Clark Cty.,

340 F.3d 959, 961, 964 (9th Cir. 2003), while another

sustained multiple bites that “nearly severed” his arm, Chew,

27 F.3d at 1441; Majority Op. 12–13. Though the officers in

the present case took steps to reduce the risk of harm by

following the dog closely and calling him off quickly, these

other cases nonetheless illustrate the risk of severe harm that

a bite-and-hold police dog may inflict when deployed off-

LOWRY V. CITY OF SAN DIEGO 23

leash as occurred here. Therefore, in assessing the

reasonableness of the force at the moment when the officers

made the decision to use an off-leash police dog — rather

than in hindsight, based on Lowry’s actual injuries — a

reasonable jury could find that the use of force was moderate

or severe.

B

On the other side of the Graham scale, a reasonable jury

could find that the government did not have a strong interest

in using an off-leash bite-and-hold police dog under these

circumstances.

1

To evaluate the totality of the circumstances as they relate

to this step of the Graham analysis, we must assess the fact

disputes raised by Lowry, particularly the dispute as to

whether the door to Lowry’s office suite was open (as the

officers contend) or closed (as Lowry contends).2 Lowry

presented admissible evidence that raised a genuine dispute

of material fact as to whether the door was open; this fact

must therefore be construed in her favor at the summary

judgment stage.

In reviewing a district court’s evidentiary ruling at the

summary judgment stage, as the majority notes, we will

2

As discussed further below, a jury could find that an open door

would have given the officers reason to believe a suspect was still in the

building, while arriving at a building with no open doors and no signs of

forced entry might give the officers less reason to believe that a burglary

was actively occurring.

24 LOWRY V. CITY OF SAN DIEGO

reverse a ruling that is “manifestly erroneous and

prejudicial.” Bias v. Moynihan, 508 F.3d 1212, 1224 (9th

Cir. 2007) (quoting Ballen v. City of Redmond, 466 F.3d 736,

745 (9th Cir. 2006)); Majority Op. 10. The district court’s

exclusion of Lowry’s testimony about the door was both.

Although we generally “refuse[] to find a ‘genuine issue’

where the only evidence presented is ‘uncorroborated and

self-serving’ testimony,” Villiarimo v. Aloha Island Air, Inc.,

281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Kennedy v.

Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)), we have

also “acknowledged that declarations are often self-serving,”

Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir.

2015) (citing S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir.

2007)). We have therefore cautioned that “the district court

may not disregard a piece of evidence at the summary

judgment stage solely based on its self-serving nature.” Id.

(citing Phan, 500 F.3d at 909). Thus, even “uncorroborated

and self-serving” testimony may be sufficient to establish a

genuine dispute of fact where it is “based on personal

knowledge, legally relevant, and internally consistent.” Id. at

498.

Here, Lowry testified that the door to Suite 201 was shut

when the officers arrived because it had automatically closed

behind her after she came back in from the bathroom. At her

deposition, Lowry gave the following testimony:

Q. Do you know if the door closed all the way

or was it propped open?

A. No. It was not propped. It was closed all

the way behind me.

Q. Okay. And how do you know that?

LOWRY V. CITY OF SAN DIEGO 25

A. Because it closes automatically. I would

have had to prop it open myself.

Q. And do you recall doing that?

A. No.

The district court considered this testimony to be

speculation rather than first-hand testimony and determined

that the testimony was insufficient to create a dispute of fact.

But Lowry’s testimony is based on her first-hand knowledge

of the door in question and her personal recollection that she

did not prop it open on the night in question. Her testimony

is also specific, “legally relevant, and internally consistent.”

Id. at 498. “[A] district court generally cannot grant summary

judgment based on its assessment of the credibility of the

evidence presented.” Schlup v. Delo, 513 U.S. 298, 332

(1995) (quoting Agosto v. INS, 436 U.S. 748, 756 (1978)). As

the Supreme Court has further observed, “[c]redibility

determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury

functions.” Hunt v. Cromartie, 526 U.S. 541, 552 (1999)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)). Thus, it was error for the district court to assess

Lowry’s credibility and to exclude her testimony.

The exclusion of this testimony, in turn, prejudiced Lowry

by denying her an opportunity to show a dispute of fact as to

whether the door to the suite was open. Although Lowry’s

testimony conflicts with the officers’ testimony that the door

was open when they arrived, at the summary judgment stage

the court may not weigh the moving party’s evidence against

the nonmoving party’s evidence. Rather, “the judge must

assume the truth of the evidence set forth by the nonmoving

26 LOWRY V. CITY OF SAN DIEGO

party.” Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir.

1999) (quoting T.W. Elec. Serv., Inc. v. Pac. Elec.

Contractors Ass’n, 809 F.2d 626 (9th Cir. 1987)). Under this

standard, Lowry’s testimony raised a genuine dispute of fact

as to whether the door was open, and the district court erred

in concluding otherwise.

2

Construing this fact and the other circumstances

surrounding the incident in the light most favorable to Lowry,

and drawing all reasonable inferences in her favor, a

reasonable jury could conclude that the government did not

have a strong interest in using an off-leash, bite-and-hold-

trained police dog here.

First, under “the most important single element” of

Graham’s government-interest analysis, a reasonable jury

could find that the officers on the scene had little reason to

believe Lowry “pose[d] an immediate threat to the safety of

the officers or others.” Chew, 27 F.3d at 1441 (quoting

Graham, 490 U.S. at 396). Assuming that the door to

Lowry’s office suite was closed, as we must at this stage, the

officers arriving on the scene saw that the only way to arrive

at the second-floor suites was via a locked gate or by scaling

a tall wall, and they saw no open doors nor any signs of

forced entry.3 A jury could find that, from the officers’

perspective, these circumstances increased the likelihood that

the burglar alarm was a false alarm and “materially

3

While the majority suggests that the door was unlocked even if it

was not open, Majority Op. 14 n.6, an unlocked door of the suite next to

the one where the alarm was triggered does not lead to the inevitable

conclusion that a burglary is likely occurring.

LOWRY V. CITY OF SAN DIEGO 27

diminished the risk of violent confrontation.” See Frunz v.

City of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006).

Despite the majority’s assertion that officers are entitled

to presume a burglary suspect poses an immediate threat,

Majority Op. 14–15, our caselaw does not compel that

conclusion. Rather, in Miller v. Clark County, 340 F.3d 959

(9th Cir. 2003), the officers “knew that Miller had possessed

a large knife moments earlier, a fact that suggest[ed] Miller

had a propensity to carry a weapon.” Id. at 965. Here, by

contrast, the officers had no specific reason to believe that

any person assumed to be inside the office suite was armed.

The City’s reliance on Frunz to argue that burglars may

be presumed armed is similarly misplaced. Frunz merely

stated in dicta that burglars can sometimes be presumed

dangerous, to highlight the contrast with the situation in that

case, where the officers knew of certain facts that “made it far

less likely that what was going on was a burglary and

materially diminished the risk of violent confrontation.”

468 F.3d at 1145. Ultimately, therefore, Frunz stands only

for the proposition that officers must consider all known facts

in determining whether a burglary suspect is likely to offer

armed resistance.4 Id.

Applying Frunz’s admonition to the current case, the

circumstances known to the officers gave little indication that

4

Similarly, Sandoval v. Las Vegas Metropolitan Police Department,

756 F.3d 1154 (9th Cir. 2014), on which the majority relies, merely

repeated Frunz’s statement that officers may enter using “all appropriate

force” if the totality of the circumstances leads them to believe that an

active burglary is occurring. Id. at 1163 (citing Frunz, 468 F.3d at 1145));

Majority Op. 15.

28 LOWRY V. CITY OF SAN DIEGO

there was an armed suspect inside Suite 201. At the summary

judgment stage, critically, the relevant question is not

whether the officers could possibly have believed a burglary

was occurring but, rather, whether a jury could potentially

find that the officers’ beliefs were unreasonable under the

circumstances. Construing the facts in Lowry’s favor, a

reasonable jury could find that the officers had little reason to

believe that any suspect inside the building “pose[d] an

immediate threat to the safety of the officers or others.”

Graham, 490 U.S. at 396. Thus, on summary judgment, this

factor weighs in favor of Lowry.

The next Graham factor asks us to consider “the severity

of the crime at issue.” 490 U.S. at 396. The parties dispute

whether burglary is considered a serious crime, but the

answer to that question does not end the inquiry. Even if the

officers were entitled to presume that burglary is a serious

crime,5 the real dispute centers on whether a reasonable

5

The majority relies on Sykes v. United States, 564 U.S. 1 (2011),

overruled on other grounds by Johnson v. United States, 135 S. Ct. 2551

(2015), and Sandoval, 756 F.3d 1154, to support its contention that

officers are entitled to presume that burglary is both serious and

dangerous. Majority Op. 14–15. In addition to the fact that this approach

conflates the first and second Graham factors, neither of these cases

involved a Graham analysis.

In Sykes, where the issue presented was an enhanced sentence under

the Armed Career Criminal Act, the Court merely noted in passing that

burglary “can end in confrontation,” by way of comparison to other

possibly violent crimes. Sykes, 564 U.S. at 9. Sandoval concerned the

propriety of a warrantless entry, not the reasonableness of a particular use

of force. See 756 F.3d at 1163. Moreover, as explained above, Sandoval

merely condoned the use of appropriate force after the officers have

established exigent circumstances based on the totality of the information

available to them. Id. at 1163 (citing Frunz, 468 F.3d at 1145).

LOWRY V. CITY OF SAN DIEGO 29

officer on the scene would have concluded that a burglary

was in fact taking place, or would have considered the

possibility that the burglar alarm was a false alarm, and then

acted accordingly.

The fact dispute as to whether the door was open is

significant again here: with the door of an office suite ajar at

night, the scene looks more like an active burglary; with a

closed door and no signs of forced entry, it becomes more

likely that the alarm was a false alarm. Construing this fact

and drawing all reasonable inferences in Lowry’s favor, a

jury could find that the officers had reason to doubt an actual

burglary was taking place. Because a reasonable officer

might not believe a severe crime was taking place, this factor

weighs in favor of Lowry at the summary judgment stage.

The final Graham factor asks whether the officers

reasonably believed that the suspect was “actively resisting

arrest or attempting to evade arrest by flight.” 490 U.S. at

396. The City contends that Lowry’s failure to heed Sergeant

Nulton’s warnings led the officers to believe that the suspect

inside the suite was resisting arrest. Yet even if Lowry failed

to raise a genuine dispute as to whether the warnings were

given, and even if a reasonable officer at the scene would

have believed that a person inside the suite heard them,

Lowry’s simple failure to respond to the warnings does not

constitute actively resisting arrest. She was not moving at all.

“Following the Supreme Court’s instruction in Graham,

we have drawn a distinction between passive and active

resistance,” as the majority acknowledges. Bryan v.

MacPherson, 630 F.3d 805, 830 (9th Cir. 2010) (citing

Forrester v. City of San Diego, 25 F.3d 804, 805 (9th Cir.

1994)); Majority Op. 16. When a suspect’s only resistance is

30 LOWRY V. CITY OF SAN DIEGO

failure to comply with a police order, and when that

resistance is “not particularly bellicose,” it is considered

passive and does not weigh heavily in the government’s

favor. Id.; see also City of Hemet, 394 F.3d at 703. Under

this precedent, a reasonable jury could find that Lowry’s mere

failure to respond to the warnings did not constitute active

resistance. Thus, on summary judgment, this factor weighs

in favor of Lowry.

To the extent that “the giving of a warning or the failure

to do so” is sometimes also considered as an independent

factor in the Graham balancing test, Nelson v. City of Davis,

685 F.3d 867, 882 (9th Cir. 2012) (quoting Deorle v.

Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001)), I do not

disagree with the majority’s conclusion that this factor

weighs in favor of the City because the officers had no reason

to know that the person inside the building was sleeping and

did not hear their warnings. Cf. Blanford v. Sacramento

County, 406 F.3d 1110, 1116 (9th Cir. 2005) (holding that the

presence of warnings weighed in favor of the officers where

they had no reason to know the suspect was wearing

headphones and did not hear the warnings); see Majority Op.

16–17.

Finally, our precedent also allows a court to consider

whether less intrusive tactics were available to the officers

effecting a seizure. See Bryan, 630 F.3d at 831; City of

Hemet, 394 F.3d at 703. Here, Lowry argues that instead of

using off-leash dogs trained to bite and hold the first person

they come across, the City could and should train its dogs to

“find and bark,” an alternative approach in which the dog is

trained to bark upon locating a suspect and only bite if the

suspect tries to flee. Lowry also suggests that the dog should

have been kept on-leash to minimize the risk of harm to any

LOWRY V. CITY OF SAN DIEGO 31

bystanders. The parties dispute the benefits of the “find and

bark” method as well as the relative risks and benefits of

keeping dogs on-leash during searches like the one in this

case. The record is not well developed on this issue; thus the

existence of these alternative methods does not weigh heavily

in the excessive force analysis here. However, Lowry has

sufficiently raised the issue such that this theory would

remain available if we were to remand for further

proceedings.

C

Balancing the severity of the intrusion against the

government’s interest, at the third step of the Graham

analysis, a reasonable jury could conclude that the City’s

interest in the use of force did not justify the level of force

used here. Construing the facts in the light most favorable to

Lowry, a jury could find that the intrusion on Lowry’s Fourth

Amendment interests was moderate or severe. On the other

side of the scale, the Graham government-interest factors —

whether Lowry posed a threat, the severity of the crime, and

whether Lowry was resisting arrest — all weigh in favor of

Lowry if the facts are construed in her favor, as they must be

at this stage. The only factor weighing in favor of the City is

the presence of verbal warnings before the dog was released

into Lowry’s suite.

Thus, balancing the intrusion caused by an off-leash, bite-

and-hold-trained police dog against the government’s interest

in the use of canine force under these circumstances, a

reasonable jury could find that “a strong government interest”

did not “compel[] the employment of such force.”

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d

1052, 1057 (9th Cir. 2003) (quoting Deorle, 272 F.3d at 1280

32 LOWRY V. CITY OF SAN DIEGO

(emphasis in original)). I would therefore hold that the

district court erred in concluding, as a matter of law, that the

use of a police dog did not constitute excessive force.

II

I respectfully suggest that the district court also erred in

concluding that the City could not be liable even if excessive

force had been established. A municipality may be liable

under 42 U.S.C. § 1983 for constitutional violations inflicted

by its employees “when the execution of the government’s

policy or custom . . . inflicts the injury.” City of Canton v.

Harris, 489 U.S. 378, 385 (1989) (alteration in original)

(quoting Springfield v. Kibbe, 480 U.S. 257, 267 (1987)

(O’Connor, J., dissenting)); see also Monell v. Dep’t of Soc.

Servs. of City of N.Y., 436 U.S. 658, 694 (1978). “[I]n this

circuit a policy itself need only cause a constitutional

violation; it need not be unconstitutional per se.” Jackson v.

Gates, 975 F.2d 648, 654 (9th Cir. 1992) (emphasis added)

(citing McKinley v. City of Eloy, 705 F.2d 1110, 1117 (9th

Cir. 1983)). We have explained that “[c]ity policy ‘causes’

an injury where it is ‘the moving force’ behind the

constitutional violation.” Chew, 27 F.3d at 1444 (quoting

Monell, 436 U.S. at 694).

In this case, Lowry alleged in her complaint that the City

had an official policy that caused her constitutional violation.

Before the district court and on appeal, Lowry has

specifically argued that the City’s policy of training its dogs

to bite and hold a suspect was the direct cause of her injury.

The bite-and-hold policy is properly considered the “moving

force” behind Lowry’s injury because the dog lunged at her

and immediately bit her, according to his bite-and-hold

training. See Chew, 27 F.3d at 1444. Moreover, the City

LOWRY V. CITY OF SAN DIEGO 33

admitted in its answer that “Sergeant Nulton deployed a

police services dog in conformity with the official policies

and procedures adopted by the San Diego Police

Department.” Accordingly, “[t]here is little doubt that a trier

of fact could find that [Lowry]’s injury was caused by city

policy.” See Chew, 27 F.3d at 1444.

The district court erroneously relied on precedent from

the qualified immunity context to conclude that the City’s

bite-and-hold policy was constitutional as a matter of law,

and thus that the City could not be liable even if Lowry’s

constitutional rights had been violated in this particular

instance. But our cases analyzing whether the

constitutionality of a bite-and-hold policy was clearly

established for purposes of qualified immunity did not hold

that all applications of a bite-and-hold policy are

constitutional. Indeed, we have recognized that the manner

in which bite-and-hold force is employed could be

unconstitutional in a particular case. Watkins v. City of

Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (citing

Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994)). In

such a case, a municipality could be liable if its bite-and-hold

policy is the “moving force” behind an officer’s

unconstitutional action, even if the policy is not facially

unconstitutional. Here, given the City’s concession that

Sergeant Nulton acted pursuant to its official policy, a jury

could find that the policy caused Lowry’s constitutional

injury and thus that the City is subject to Monell liability.

Finally, contrary to the majority’s suggestion, a Monell

plaintiff need not show that the government acted with

deliberate indifference to her constitutional rights if she can

show that the government’s officers acted affirmatively,

pursuant to an official policy. Our cases requiring a showing

34 LOWRY V. CITY OF SAN DIEGO

of deliberate indifference have dealt with a government’s

failure to take action or failure to properly train its

employees. See Oviatt By & Through Waugh v. Pearce,

954 F.2d 1470, 1477 (9th Cir. 1992) (describing the

requirements necessary for “impos[ing] liability on a local

governmental entity for failing to act to preserve

constitutional rights” (emphasis added) (quoting City of

Canton, 489 U.S. at 389)); see also Gant v. Cty. of L.A.,

772 F.3d 608, 618 (9th Cir. 2014) (requiring a plaintiff to

show that the government’s “omission amounts to deliberate

indifference”); Mortimer v. Baca, 594 F.3d 714, 716 (9th Cir.

2010) (imposing liability when a local government “has a

policy of inaction and such inaction amounts to a failure to

protect constitutional rights” (quoting Oviatt, 954 F.2d at

1474)); Chew, 27 F.3d at 1445 (distinguishing between the

different theories of Monell liability for officially sanctioned

affirmative acts and for failure to train).

Because she did not allege a failure to act and instead

alleged that the City’s affirmative bite-and-hold policy was

the cause of her constitutional injury, Lowry need not

demonstrate deliberate indifference. Instead, the City’s

admission that Sergeant Nulton acted pursuant to official

policy adequately demonstrates that the City’s policy was the

“moving force” behind Lowry’s constitutional violation,

thereby satisfying this step of the Monell analysis on

summary judgment. Accordingly, I would hold that the

district court erred in granting summary judgment on this

alternate ground.

III

By allowing government entities to be held liable when

they violate citizens’ constitutional rights, § 1983 helps effect

LOWRY V. CITY OF SAN DIEGO 35

the guarantees of the Fourth Amendment. When, as here, a

citizen has succeeded in raising disputes of fact as to whether

her Fourth Amendment rights were violated, it is for a jury to

decide whether a violation occurred and whether the

government is liable for that violation.

For these reasons, I respectfully dissent.