‘Bite and Hold’ Excessive Force?

Just what counts as excessive force by a police dog will be resolved by an 11-judge appeals panel in the case of a San Diego woman asleep in her office when her lip was torn open by a police dog after a suspected burglar.

The 9th U.S. Circuit Court of Appeals voted to reconsider the case of Sara Lowry, who sued police for excessive force after she left a Pacific Beach bar and went to her office to sleep it off but accidently set off the burglar alarm in a neighboring business while making a trip to the bathroom.

Lowry had fallen asleep on a couch in the office and when the police responded, along with a police service dog named Bak, to the alarm. San Diego police have a training policy that teaches dogs to “bite and hold.”

As a result, in 2010, Lowry was attacked by Bak after officers searched the area and gave several warnings before releasing Bak. He pounced on Lowry and tor open her upper lip.

She sued claiming excessive force. The trial judge dismissed the case but a three-judge panel of the 9th Circuit revived her claim earlier this year.

On Friday, the full 9th Circuit voted to reconsider with an 11-judge3 panel.

In the three-judge ruling, Judge Wallace Tashima said, “We have little trouble concluding that the intrusion on Lowry’s fourth Amendment rights was severe.”

He said she did not pose an immediate threat to police officers and did not resist arrest, nor is burglary an inherently dangerous crime.

In dissent, Judge Richard Clifton focused on the perspective of the officers, noting that when Lowry did not respond to the officers’ warnings the totality of the circumstances strongly suggested that if there was a burglar in the building they were very possibly armed.

Now an 11-judge panel will weigh in on the appropriateness of releasing a dog trained to “bite and hold,” on a slumbering and inebriated person in an office building late at night.

Case: Lowry v. City of San Diego, No. 13-56141

 

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