News Details

Ninth Circuit En Banc Court Rules In Favor of Police

Lowry v. City of San Diego


On June 6, 2017, the Ninth Circuit Court of Appeals – in a rare En Banc Decision – issued a published opinion holding that the officers’ release of a canine in response to commercial burglary alarm did not constitute excessive force and did not violate the plaintiff’s Fourth Amendment rights. This will greatly impact all of law enforcement in the western states as well as those agencies using police canines. Manning & Kass authored an Amicus Curiae brief on behalf of the International Municipal Lawyers Association and the United States Police Canine Association. 

In this case, the plaintiff unwittingly set off an alarm in a commercial office building just prior to falling asleep on the couch in her office suite.  Officers with a police canine were dispatched in response to the burglary alarm. After noticing the door leading into plaintiff’s suite ajar, officers yelled into the suite multiple times for any occupants to announce themselves, that they were sending in a police dog, and that there was risk of being bitten. Hearing no response, the canine was released off lead followed closely by her handler. Upon entering the suite the canine pounced on plaintiff and within seconds was called off by her handler. In the brief encounter plaintiff suffered a wound to the lip that required three stitches.

The District Court granted summary judgment in favor of the City of San Diego, and the Ninth Circuit reversed. Concerned with this dangerous decision by the Ninth Circuit, the City of San Diego and various police and public entity organizations swiftly petitioned to have the matter heard En Banc. In an excellent result this morning, the Ninth Circuit issued its En Banc opinion reversing the decision of the three-judge panel and reinstating the District Court’s grant of summary judgment in favor of the City.  

The questions and issues presented were first whether the officers’ release of the canine constituted excessive force in violation of the plaintiff’s Fourth Amendment rights, and if so, whether the City’s “bite and hold” policy caused the constitutional wrong. Agreeing with the District Court, the En Banc court held that the force used was not excessive and did not violate the Fourth Amendment where the officers’ actions were constitutional under Monell v. Department of Social Services of New York, (1978) 436 U.S. 658, 694. The constitutionality of the officers’ actions is dependent upon the reasonableness of a particular use of force when viewed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  Reasonableness involves the weighing of factors including 1) the type and amount of force used, 2) the City’s interest in the use of force, and 3) the balance between the gravity of the intrusion upon the plaintiff’s Fourth Amendment rights against the City’s need for the intrusion. The En Banc Court found 1) that under the circumstances the use of a police canine constituted a moderate use of force because the risk of harm posed and the actual harm caused was moderate, and therefore not severe; 2) that the City had a strong interest in the use of force based on the balancing of the Graham factors set forth in Graham v. Connor (1989) 490 U.S. 386, 396; and 3) that the officers has a compelling interest in protecting themselves against foreseeable danger in an uncertain situation -the ongoing burglary-such that the balance between the gravity of the intrusion upon the plaintiff’s Fourth Amendment rights against the City’s need for the intrusion weighed in favor of the City. Having found no constitutional wrong with the officers’ release of the canine, the Court found no need to reach the question of whether the City’s “bite and hold” policy caused a constitution wrong. The opinion can be found here.

This case represents the most recent decisions out of the United States Supreme Court and Ninth Circuit Court of Appeals which have been very favorable to law enforcement. Based on these cases, several of the federal courts are revisiting decisions which were previously reached. If you have a case which you believe should be re-visited based on this or any other prior case, please do not hesitate to contact us. We are here to help.



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