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
July 9, 2015—Pasadena, California

Filed April 1, 2016

Before: Stephen Reinhardt, A. Wallace Tashima,
and Richard R. Clifton, Circuit Judges.

Opinion by Judge Tashima;
Dissent by Judge Clifton
2 LOWRY V. CITY OF SAN DIEGO

SUMMARY*

Civil Rights

The panel reversed the district court’s summary judgment
and remanded in an action brought pursuant to 42 U.S.C.
§ 1983 alleging that the City of San Diego’s policy of training
its police dogs to “bite and hold” individuals resulted in a
violation of plaintiff’s Fourth Amendment rights.

The panel held that a reasonable jury could find that
police officers responding to an office building’s burglar
alarm used excessive force when they deliberately unleashed
a police dog that they knew might well “rip[] [the] face off”
any individual who might be present in the office. Because
a reasonable jury could find that the force used was excessive
and because the City conceded that the use of the force
involved was in conformance with its policy, the panel
reversed the district court’s summary judgment in favor of the
City and remanded for further proceedings.

Dissenting, Judge Clifton stated that given the facts
available to the reviewing court, it was clear that the type and
amount of force inflicted was moderate, that the City had a
strong interest in using force, and that the degree of force
used was commensurate with the City’s interest in the use of
force. Judge Clifton stated that the officers’ actions were
constitutional, and there could be no liability under Monell v.
Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978).

*
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

COUNSEL

Jeffrey A. Lake (argued), Nathan A. Shaman (argued), Jeffrey
A. Lake, A.P.C., San Diego, California, for Plaintiff-
Appellant.

Jan I. Goldsmith, City Attorney of San Diego, Daniel F.
Bamberg, Assistant City Attorney, Stacy J. Plotkin-Wolff,
Deputy City Attorney (argued), San Diego, California, for
Defendant-Appellee.

OPINION

TASHIMA, Circuit Judge:

After a night of drinking with her friends, Sara Lowry
returned to her workplace and fell asleep on her office couch.
She awoke a short while later and went to the bathroom,
before returning to her couch and going back to sleep.
Unfortunately for Lowry, during her trip to the bathroom, she
accidentally triggered the building’s burglar alarm. Several
officers from the San Diego Police Department (“SDPD”)
responded, accompanied by a police service dog named Bak.
After searching the area and giving several warnings, the
officers released Bak into Lowry’s office. Bak found Lowry
and pounced on her, tearing open her upper lip.

Lowry filed suit against the City of San Diego (the
“City”) under 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 her Fourth Amendment
rights. The district court granted the City’s motion for
summary judgment, concluding both that Lowry did not
4 LOWRY V. CITY OF SAN DIEGO

suffer constitutional harm and that, even if she did, the City
was not liable for her injuries.

We have jurisdiction under 28 U.S.C. § 1291. The
question on this appeal is whether a reasonable jury could
find that the police officers responding to the alarm used
excessive force when they deliberately unleashed a police dog
that they knew might well “rip[] [the] face off” any individual
who might be present in the office. Because a reasonable jury
could find that the force used was excessive and because the
City concedes that the use of the force involved was in
conformance with its policy, we reverse and remand the case
for further proceedings.

I.

In early 2010, Lowry was working at Tenzing
Corporation, located at 4603 Mission Boulevard, Suite 201,
in San Diego, California. On the night of February 11, 2010,
Lowry went out with a few friends after work. Over the
course of about four and a half hours, Lowry visited two bars
and consumed five vodka drinks. Lowry decided to call it a
night at around 9:30 p.m., but, instead of heading home, made
a pit stop at work to pick up some food she had left over from
lunch. Once there, Lowry decided to stay in the office, and
fell asleep on the couch.

Shortly thereafter, Lowry woke up and went to use the
bathroom. Acting on instinct, Lowry headed towards the
bathroom in the neighboring suite (owned by a separate
company, Drew George & Partners or “DGP”), the bathroom
she typically used during business hours. After opening the
door to DGP, Lowry decided against using their bathroom,
concluding that “it wouldn’t be right for [her] to use that
 LOWRY V. CITY OF SAN DIEGO 5

restroom at night.” She closed the door, went to a bathroom
outside both suites that was open to the public and then
returned to her office and fell back asleep on the couch.

Around 11:00 p.m., the SDPD received a call from ADT
Security Services that a burglar alarm had been activated at
4603 Mission Boulevard, Suite 200. Minutes later, Officers
Mike Fish and David Zelenka and Sergeant Bill Nulton
arrived at the scene, accompanied by Sergeant Nulton’s
police service dog, Bak. The officers inspected the north,
south, and west sides of the building and saw no entry points.
However, each officer saw that the door leading to Suite 201
was propped open.1 There were no signs of forced entry at
Suite 201, which was dark, except for some ambient light
shining through the open door from the parking lot.2 The

1
Lowry contends that a genuine issue of material fact exists as to
whether the door leading to Suite 201 was open. Specifically, she argues
that the officers’ assertion that the door was open is contradicted by her
deposition testimony that the door “automatically closes.” The district
court ruled Lowry’s testimony inadmissible, finding that Lowry failed to
offer “firsthand testimony.” Accordingly, the district court ruled that there
was no dispute that the door was open.

We reverse evidentiary rulings made in the context of summary
judgments only if they are “both manifestly erroneous and prejudicial.”
Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007) (citations omitted).
As explained below, even assuming that the door to Suite 201 was open,
a reasonable jury could find that deploying Bak was not an objectively
reasonable use of force. Accordingly, because the district court’s ruling
was not prejudicial, we need not rule on it.
2
Lowry contends that there is a material issue of fact regarding the level
of illumination inside Suite 201 at the time the officers entered.
Specifically, she relies on the testimony of Drew George (the CEO of
DGP), who testified that the balcony is typically “pretty light.” However,
George offered no testimony as to how well-lit the interior of Suite 201
6 LOWRY V. CITY OF SAN DIEGO

officers could not see inside the suite, and therefore did not
know whether anyone was inside.

Before entering Suite 201, 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!” Sergeant
Nulton waited between 30 and 60 seconds, but received no
response. He repeated the same warning once or twice more;
again, there was no response.3 Lowry did not hear these
warnings. Sergeant Nulton then released Bak “off lead” (that
is, off of her leash) into the suite, and followed Bak in.
Sergeant Nulton did not keep track of Bak’s precise location
once he let her off lead, and gave no further warnings after
entering the suite.

Eventually, Sergeant Nulton made his way into the office
where Lowry was sleeping. Once there, he saw a purse

was on the night of the incident, and Lowry herself testified that, on that
night, Suite 201 was dark. Accordingly, we conclude that Lowry has not
raised a genuine issue of material fact regarding the degree of illumination
inside Suite 201.
3
Lowry contends that there is an issue of material fact as to whether
Sergeant Nulton gave these warnings. Specifically, she argues that the
officers’ testimony is contradicted by her own testimony that she did not
hear Sergeant Nulton’s warnings. The district court ruled Lowry’s
testimony on this point inadmissible, finding that she lacked foundation
to testify as to whether Sergeant Nulton gave warnings because she was
sleeping. Therefore, the district court ruled that it was undisputed that
Sergeant Nulton gave these warnings.

As explained below, even assuming that Sergeant Nulton shouted
warnings that he was about to release a police dog, a reasonable jury could
find that deploying Bak was not an objectively reasonable use of force.
Accordingly, because the district court’s ruling was not prejudicial, we
need not rule on it. See Bias, 508 F.3d at 1224.
 LOWRY V. CITY OF SAN DIEGO 7

whose contents had been spilled across the floor. He then
shone his flashlight against the office wall and spotted a
person under a blanket on the couch. At that moment, Bak
jumped on top of Lowry. The two struggled momentarily
before Sergeant Nulton called Bak off. Bak responded
immediately, returning to Sergeant Nulton’s side.

Lowry emerged from her skirmish with Bak with a large
gash on her lip that was bleeding profusely. As hospital staff
would later inform Lowry, Bak had almost completely bitten
through her lip. Shortly after the incident, Sergeant Nulton
told Lowry, “I just can’t believe that’s the only damage.
You’re very lucky. She could have ripped your face off.”
After confirming that Lowry worked at Tenzing, Officer Fish
drove her to the hospital, where she was given a tetanus shot
and received three stitches.

The SDPD trains its police dogs to enter a building, find
a person, bite them, and hold that bite until a police officer
arrives and removes the dog. Moreover, as Sergeant Nulton
stated in his deposition, police dogs are not trained to
differentiate between “a young child asleep or . . . a burglar
standing in the kitchen with a butcher knife,” and will simply
bite the first person they find. Generally, the decision of
whether to conduct a canine search on or off lead is left to the
officer’s discretion. However, the SDPD’s Canine Unit
Operations Manual provides that residential searches “should
normally be conducted on-lead unless the handler can
reasonably determine there are no residents or animals in the
home.”

Lowry filed suit against the City under 42 U.S.C. § 1983,
alleging a violation of her Fourth Amendment rights. The
8 LOWRY V. CITY OF SAN DIEGO

City moved for summary judgment, which the district court
granted. Lowry timely appealed.

II.

We review a district court’s grant of summary judgment
de novo. Pac. Shore Props., LLC v. City of Newport Beach,
730 F.3d 1142, 1156 (9th Cir. 2013). “We must determine,
viewing the evidence in the light most favorable to [Lowry],
the non-moving party, whether there are any genuine issues
of material fact and whether the district court correctly
applied the substantive law.” Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004). In the absence of
material factual disputes, the objective reasonableness of a
police officer’s conduct is “a pure question of law.” Torres
v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011)
(quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)).
“Where the objective reasonableness of an officer’s conduct
turns on disputed issues of material fact,” however, “it is ‘a
question of fact best resolved by a jury.’” Id. at 1123 (quoting
Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir.
2003)).

III.

Lowry asserts a single cause of action against the City,
seeking to hold the municipality liable for her injuries under
Monell v. Department of Social Services of the City of New
York, 436 U.S. 658 (1978). Specifically, Lowry alleges that
the City’s “bite and hold” policy caused the police to use
excessive force against her. In order to prevail on a Monell
claim, Lowry “must demonstrate first that h[er] seizure by
[Bak] was unconstitutional and second that the city was
 LOWRY V. CITY OF SAN DIEGO 9

responsible for that constitutional wrong.” Chew v. Gates,
27 F.3d 1432, 1439 (9th Cir. 1994).

A. Excessive Force

We begin our analysis of Lowry’s Monell claim by
assessing whether Bak’s seizure of Lowry was
unconstitutional. Objectively unreasonable uses of force
violate the Fourth Amendment’s guarantee against
unreasonable seizures. Graham v. Connor, 490 U.S. 386,
394–95, 397 (1989). In deciding whether or not a particular
use of force is reasonable, we employ the familiar test set
forth by the Supreme Court in Graham. Under Graham, we
balance “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Id. at 396
(citations omitted). This inquiry is a “highly fact-intensive
task for which there are no per se rules.” Torres, 648 F.3d at
1124 (citing Scott, 550 U.S. at 383). However, we must
evaluate the reasonableness of the force used “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. “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the
Fourth Amendment.” Id. (citation omitted).

Our excessive force analysis under Graham involves
three steps. “First, we must assess the severity of the
intrusion on the individual’s Fourth Amendment rights by
evaluating the type and amount of force inflicted.” Glenn v.
Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011) (citation
omitted). “Second, we evaluate the government’s interest in
the use of force.” Id. “Finally, we balance the gravity of the
10 LOWRY V. CITY OF SAN DIEGO

intrusion on the individual against the government’s need for
that intrusion.” Id. (citation omitted).

1. The Nature and Quality of the Intrusion

In evaluating the severity of the intrusion on the
plaintiff’s Fourth Amendment rights, we evaluate both “the
type and amount of force inflicted.” Miller v. Clark Cty.,
340 F.3d 959, 964 (9th Cir. 2003); see also Headwaters
Forest Def. v. Cty. of Humboldt, 240 F.3d 1185, 1198 (9th
Cir. 2000), vacated and remanded on other grounds sub nom.
Cty. of Humboldt v. Headwaters Forest Def., 534 U.S. 801
(2001) (“[T]he fact finder [must] evaluate ‘the type and
amount of force inflicted.’” (quoting Chew, 27 F.3d at 1440)).
We have repeatedly held that deploying a police dog to
effectuate an arrest is a “severe” use of force. See Smith v.
City of Hemet, 394 F.3d 689, 701–02 (9th Cir. 2005) (en
banc) (noting that use of a police dog is “the most severe
force authorized short of deadly force”); Chew, 27 F.3d at
1441 (holding that the use of a police dog was a “severe” use
of force); see also Miller, 340 F.3d at 964 (concluding that
use of a police dog was a “serious” intrusion on the plaintiff’s
Fourth Amendment interests).

Notwithstanding our precedents, the district court found
the force used against Lowry to be “moderate,” because
Bak’s encounter with Lowry was “very quick” and because
Lowry’s injuries were “slight.” In coming to its conclusion,
the district court distinguished our decision in Chew,
emphasizing that, in that case, the police dog bit the plaintiff
several times, dragged him between four and ten feet, and
nearly severed his arm. Chew, 27 F.3d at 1435, 1441. By
contrast, the district court noted, Lowry’s struggle with Bak
 LOWRY V. CITY OF SAN DIEGO 11

was of “limited duration” and her injuries were relatively
minor.

By focusing solely on the amount of force used against
Lowry, the district court overlooked a critical component of
our inquiry under Graham’s first step. Namely, the district
court failed to consider the type of force employed. Our
precedents, as well as the Supreme Court’s, make clear that,
in evaluating the severity of the intrusion on a plaintiff’s
Fourth Amendment rights, we must assess not only the
amount of force used (and the severity of the resulting
injury), but also type of force used and the potential harm it
may cause. See Miller, 340 F.3d at 964 (“[W]e assess the
gravity of the particular intrusion on Fourth Amendment
interests by evaluating the type and the amount of force
inflicted.” (emphasis added)); see also Scott, 550 U.S. at 383
(“[I]n judging whether [Deputy] Scott’s actions were
reasonable, we must consider the risk of bodily harm that
Scott’s actions posed to respondent in light of the threat to the
public that Scott was trying to eliminate.” (emphasis added));
Glenn, 673 F.3d at 871–72 (holding that the use of a beanbag
shotgun is “permissible only when a strong governmental
interest compels the employment of such force” in “light of
this weapon’s dangerous capabilities” (citation omitted)
(emphasis added)); Chew, 27 F.3d at 1441 (concluding that
the force used was severe both because of the nature of
injuries sustained and because the dog was trained to
repeatedly bite a suspect if he or she resisted and because of
the undisputed testimony that the dog’s bites “could be fatal”
(emphasis added)).

To put it differently, looking solely to the actual
consequences of the force used rather than the risk inherent
in the use of that type of force accommodates one of the two
12 LOWRY V. CITY OF SAN DIEGO

purposes of § 1983 but wholly ignores the other. Those two
purposes are compensation and deterrence. Chaudhry v. City
of L.A., 751 F.3d 1096, 1103 (9th Cir. 2014) (citing
Robertson v. Wegmann, 436 U.S. 584, 599 (1978)). For
example, 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. See Robinson v. Solano Cnty., 278 F.3d 1007, 1014
(9th Cir. 2002) (holding that police officers’ pointing their
guns at close range at a suspect was excessive force even
though they did not fire the gun). Likewise, 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. Indeed, the officer conducting the search
stated that he “just can’t believe [that] the only damage” was
Lowry’s gash on her lip; as he put it, she was “very lucky.”
Whether or not the plaintiff in the case ended up being lucky,
a fundamental purpose of § 1983 is to deter the use of
unreasonable force in the future in order to avoid what could
be much more serious harm to the next person.

When we consider both the type and the amount of force
used against Lowry and draw all inferences in her favor, we
have little trouble concluding that the intrusion on Lowry’s
Fourth Amendment rights was severe. Indeed, this case
mirrors Chew in several material respects: just as the
defendants in Chew admitted that the dog’s bites “could be
fatal,” 27 F.3d at 1441, here, Sergeant Nulton stated that Bak
“could have ripped [Lowry’s] face off.” And, just like the
dog in Chew, Bak was trained to bite the first person she saw
and maintain the bite until ordered by an officer to release.
 LOWRY V. CITY OF SAN DIEGO 13

Moreover, the particular facts of this case magnified the
threat that Bak posed to Lowry: as Sergeant Nulton admitted,
Bak was not trained to differentiate between “a young child
asleep or . . . a burglar standing in the kitchen with a butcher
knife,” and would simply bite the first person she found.
Furthermore, a reasonable juror could find that by allowing
Bak to enter Suite 201 before him off lead, and by failing to
keep track of Bak’s precise location while searching the suite,
Sergeant Nulton increased the likelihood that Bak would bite
and seriously injure Lowry before being called off.

Under these circumstances, a reasonable juror could
conclude that releasing Bak into the suite posed a high risk of
severe harm to any individual present. Accordingly, for
purposes of summary judgment, this factor weighs in favor of
a finding that Lowry’s constitutional rights were violated.

2. The City’s Countervailing Interests

Graham’s second step requires us to examine the
importance and legitimacy of the City’s countervailing
interests. Miller, 340 F.3d at 964. This determination is
guided by three 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.” Id. (citing Graham, 490 U.S. at 396). These
factors are not exclusive; instead, we must “examine the
totality of the circumstances and consider whatever specific
factors may be appropriate in a particular case, whether or not
listed in Graham.” Glenn, 673 F.3d at 872 (citations
omitted).
14 LOWRY V. CITY OF SAN DIEGO

a. Lowry Did Not Pose a Threat to the Officers or
Others

We begin our evaluation of the City’s interest in
deploying Bak off lead by analyzing the “most important
single element of the three specified factors: whether the
suspect pose[d] an immediate threat to the safety of the
officers or others.” Smith, 394 F.3d at 702 (quoting Chew,
27 F.3d at 1441). “A simple statement by an officer that he
fears for his safety or the safety of others is not enough; there
must be objective factors to justify such a concern.” Deorle
v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001). A
reasonable jury could find that any belief on the officers’ part
that they faced an immediate threat when they released Bak
was unjustified. See Torres, 648 F.3d at 1126 (holding that
there was a genuine dispute of material fact whether an
officer correctly evaluated the dangerousness of the situation
when deciding to use force). Thus, viewing the evidence in
the light most favorable to Lowry, the City has failed to show
that there are no questions of fact precluding summary
judgment in its favor.

Our case law helps guide this determination. In Chew, we
held that “a rational jury could easily find that Chew posed no
immediate safety threat to anyone.” 27 F.3d at 1442
(emphasis omitted). Chew had been stopped for a traffic
violation and then fled on foot and hid in a scrapyard. Id. at
1436. However, there was no evidence that Chew had
“engaged in any threatening behavior during this time, or that
he did anything other than hide quietly.” Id. at 1441.
Accordingly, we concluded that the “record d[id] not reveal
an articulable basis for believing that Chew was armed or that
he posed an immediate threat to anyone’s safety.” Id.
 LOWRY V. CITY OF SAN DIEGO 15

By contrast, in Miller, we held that the plaintiff “posed an
immediate threat to [the] officers’ safety.” Miller, 340 F.3d
at 965–66. There, the officer was chasing a felony suspect
who (1) was wanted for fleeing from the police by driving a
car with “a wanton or willful disregard for the lives . . . of
others,” (2) had possessed a large knife only moments earlier,
(3) might have had mental health problems, (4) had ignored
an officer’s warning that he was about to release a dog, and
(5) was familiar with the woods where he was hiding in the
dark and might have been planning an ambush. Id. at 965
(citation omitted). Under these circumstances, we concluded
that the officer was “entitled to assume that Miller posed an
immediate threat” to their safety. Id.

Applying these precedents, we conclude that a reasonable
jury could find that the officers would not have been justified
in believing that Lowry posed a threat to their safety or to
others’. Throughout the entire encounter, until she was bitten
by Bak, Lowry remained fast asleep on the couch. Much like
the plaintiff in Chew, Lowry did not “engage[] in any
threatening behavior,” nor do “anything other than [lie]
quietly.” 27 F.3d at 1441. And, unlike the plaintiff in Miller,
the officers in this case had no reason to believe that Lowry
was armed, dangerous, or intent on inflicting harm. 340 F.3d
at 965. In short, “[t]he record does not reveal an articulable
basis for believing that [Lowry] was armed or that [s]he
posed an immediate threat to anyone’s safety.” Chew,
27 F.3d at 1441.4

4
The City attempts to distinguish Chew by arguing that, unlike Sergeant
Nulton, the officer in Chew made physical contact with Chew before
releasing the police dog. According to the City, the officer’s contact with
Chew gave him an opportunity to eliminate the possibility that Chew was
armed – a luxury not afforded to Sergeant Nulton.
16 LOWRY V. CITY OF SAN DIEGO

The district court found otherwise, reasoning that the
“officers reasonably and objectively feared for their own
safety and any possible hostage’s safety,” because they were
searching for a “burglary suspect . . . at night,” because they
“did not know whether the suspect was armed,” and because
the door to DGP’s suite was “ajar, but no lights were on
inside.”5

A reasonable jury could easily disagree with this
portrayal. 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.6 These facts, standing alone, do not provide an

Not so. In Chew, we specifically noted that “[t]he officer [did] not
search[] [Chew] for weapons” before he fled. 27 F.3d at 1436. More to
the point, our conclusion that Chew did not pose a threat to the safety of
the officers or others was grounded in our determination that the record as
a whole “did not reveal an articulable basis for believing that Chew”
presented such a threat. Id. at 1441. Likewise, as explained above,
nothing in the record here provides an articulable basis for believing that
Lowry posed a threat to the safety of the officers or others.
5
Similarly, the City argues that, under our decision in Frunz v. City of
Tacoma, officers responding to a “burglary in process” are entitled to
“assume that the suspects will, if confronted, flee or offer armed
resistance.” 468 F.3d 1141, 1145 (9th Cir. 2006) However, Frunz did not
address whether the officers’ use of force was reasonable. Id. at 1144.
Instead, that case considered only whether the officers’ warrantless entry
into a home was justified. Id. at 1144. Accordingly, Frunz has little
relevance to our current inquiry.
6
Indeed, this assumption is particularly suspect in light of the fact
that the vast majority of burglar alarm calls are false. See San Diego
County Grand Jury, No ‘Cost’ For Alarm? 1 (June 1, 2011),
http://www.sandiegocounty.gov/content/dam/sdc/grandjury/reports/2010-
 LOWRY V. CITY OF SAN DIEGO 17

“articulable basis for believing that” the occupant is “armed
or that [she or] he posed an immediate threat to anyone’s
safety.” Chew, 27 F.3d at 1441.

In sum, we conclude that taking the facts in the light most
favorable Lowry, a reasonable juror could conclude that the
“objective factors” did not suggest that Lowry posed a threat
to the safety of the officers or others. Deorle, 272 F.3d at
1281. Accordingly, for the purposes of summary judgment,
this factor weighs against a finding that the City’s interest
rendered its use of force objectively reasonable.

b. Lowry Did Not Resist or Attempt to Evade
Arrest

Similarly, the third Graham factor – whether Lowry
“actively resist[ed] arrest or attempt[ed] to evade arrest by
flight,” Graham, 490 U.S. at 396 – weighs against finding
that the City’s use of force was objectively reasonable. It is
undisputed that Lowry did not physically resist arrest, “did
not attack the officers” or anyone else, and did not attempt to
flee from the officers. Smith, 394 F.3d at 703. Nonetheless,
the district court found that this factor weighed slightly in the
City’s favor, reasoning that the officers could have construed
Lowry’s failure to respond to Sergeant Nulton’s commands
to exit the suite as an attempt to evade arrest.

But a reasonable jury would not necessarily be compelled
to draw such an inference. The mere failure to respond to an
officer’s orders, without more, generally does not support the
use of serious force – especially if the plaintiff has not heard

2011/AlarmsFinalReport.pdf (concluding that “95% or more of all police
alarm calls” received by the SDPD are false).
18 LOWRY V. CITY OF SAN DIEGO

the commands. We concluded as much in Glenn, where we
found that the plaintiff’s failure to follow an officer’s
instructions to drop a pocketknife did not warrant the
officers’ use of a beanbag shotgun, because it was “not clear
[that the suspect] heard or understood those orders.”
673 F.3d at 875. Indeed, even in cases where a plaintiff
hears, and ignores, police warnings, we have found serious
uses of force unjustified. As we described in Glenn,

In Deorle, the plaintiff “brandish[ed] a
hatchet” and a crossbow and was verbally
abusive to officers, threatening to “kick [their]
ass.” He also continually roamed about his
property despite officers’ orders. Nonetheless,
we did not consider this sufficient active
resistance to warrant use of the beanbag
shotgun . . . . Similarly, in Smith, we held that
the plaintiff’s refusal to obey officers’
commands to remove his hands from his
pockets to show police whether he was armed,
as well as his entry into his home despite
officers’ orders and his brief physical
resistance were “not . . . particularly
bellicose.”

Id. (alterations in original) (citations omitted); see also Bryan
v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010) (“The only
resistance Officer MacPherson testified to was a failure to
comply with his order that Bryan remain in his car . . . . As
in Smith, Bryan’s ‘resistance’ was not ‘particularly
bellicose.’”). In short, where, as here, the “crux of the
resistance [is] the refusal to follow officer’s commands,
rather than actively attacking or threatening officers or
 LOWRY V. CITY OF SAN DIEGO 19

others,” the government has little interest in using serious
force. Glenn, 673 F.3d at 875.

Accordingly, for the purposes of summary judgment, we
conclude that this factor weighs against a finding that the
City’s interest rendered its use of force objectively
reasonable.

c. The Severity of the Crime at Issue

Turning to the final Graham factor, we conclude that the
severity of the crime at issue – burglary – weighs only
slightly in the City’s favor. Burglary is not an inherently
dangerous crime.7 Although burglaries can be dangerous, see
Sykes v. United States, 131 S. Ct. 2267, 2273 (2011),
overruled on other grounds by Johnson v. United States,
135 S. Ct. 2551 (2015), the Supreme Court has explicitly held
that “the fact that an unarmed suspect has broken into a
dwelling at night does not automatically mean [s]he is
physically dangerous.” Tennessee v. Garner, 471 U.S. 1, 21
(1985). Indeed, as the Supreme Court noted in Garner, the
FBI classifies burglary as a “property” rather than a “violent”
crime,8 id., and a recent study by the Bureau of Justice

7
The City takes issue with this conclusion, arguing that all burglaries are
dangerous. In support of its contention, the City relies, once again, on our
statement in Frunz that officers may assume that “normal[]” burglary
suspects will, “if confronted, flee or offer armed resistance.” 468 F.3d at
1145. However, as explained above, see supra note 5, Frunz did not
address whether the officers’ use of force in that case was reasonable. Id.
at 1144. Accordingly, it has little bearing on the instant case.
8
Although Garner was decided in 1985, the FBI continues to classify
burglary as a “property” rather than a “violent” crime. See Federal
Bureau of Investigation, Uniform Crime Reports, Crime in the
20 LOWRY V. CITY OF SAN DIEGO

Statistics concluded that only about seven percent of
burglaries nationwide involved incidents of violence. Bureau
of Justice Statistics, National Crime Victimization Survey:
Victimization During Household Burglaries 1 (September
2010), http://www.bjs.gov/content/pub/pdf/vdhb.pdf.

Once again, the district court came to the opposite
conclusion, holding that, under United States v. Alcala-
Sanchez, 666 F.3d 571, 573 (9th Cir. 2012), burglary is an
“aggravated felony.” Because the officers were investigating
a felony, the district court reasoned, this factor “weighs
solidly in favor of the government.”

We disagree with this conclusion for two reasons. First,
it misstates the law. In Alcala-Sanchez, we held that burglary
under California Penal Code § 459 is an “aggravated felony”
as that term is defined under the U.S. Sentencing Guidelines.
See 666 F.3d at 573. However, under California law,
burglary of uninhabited premises – like an office building –
is second degree burglary, a crime that may be punished
either as a felony or as a misdemeanor. See Cal. Penal Code
§§ 460, 461; People v. Williams, 233 P.3d 1000, 1042 n.6
(Cal. 2010). Accordingly, the government’s interest in
investigating a burglary of an office building is not as strong
as the district court’s reasoning suggests. See Bryan,
630 F.3d at 829 (“[T]here was no substantial government
interest in using significant force to effect [plaintiff’s] arrest
for . . . misdemeanor violations.”).

United States 2013, https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-
u.s/2013/crime-in-the-u.s.-2013/property-crime/property-crime-topic-
page/propertycrimemain_final.
 LOWRY V. CITY OF SAN DIEGO 21

Second, even if the officers were investigating a felony,
this label is not dispositive. Although the government’s
interest in apprehending criminal suspects is certainly
stronger when the suspect is suspected of having committed
a felony, see Miller, 340 F.3d at 964, we have noted that “[a]
wide variety of crimes, many of them nonviolent, are
classified as felonies,” Chew, 27 F.3d at 1442. As the
Supreme Court has recognized,

[W]hile in earlier times the gulf between the
felonies and the minor offences was broad and
deep, today the distinction is minor and often
arbitrary. Many crimes classified as
misdemeanors, or nonexistent, at common law
are now felonies . . . . [T]he assumption that
a ‘felon’ is more dangerous than a
misdemeanant [is therefore] untenable.

Garner, 471 U.S. at 14 (citations omitted). As set forth
above, a non-residential burglary is not an inherently
dangerous crime, and “the fact that an unarmed suspect has
broken into a dwelling at night does not automatically mean
[s]he is physically dangerous.” Id. at 21.

Accordingly, we conclude that this factor weighs only
slightly in favor of finding that the City’s countervailing
interest rendered its use of force objectively reasonable.

d. Other Factors

As noted above, the foregoing Graham factors are not
exclusive, and, in evaluating the importance and legitimacy
of the City’s interest in using force, we must “examine the
totality of the circumstances and consider whatever specific
22 LOWRY V. CITY OF SAN DIEGO

factors may be appropriate in a particular case, whether or not
listed in Graham.” Glenn, 673 F.3d at 872 (citation omitted).

One such additional factor is whether or not a warning
was given before force was used. See Nelson v. City of
Davis, 685 F.3d 867, 882 (9th Cir. 2012) (“[W]e have held
that ‘the giving of a warning or the failure to do so is a factor
to be considered in applying the Graham balancing test.’”
(quoting Deorle, 272 F.3d at 1284)). Here, we agree with the
district court’s conclusion that Sergeant Nulton’s warnings
prior to releasing Bak weighs in favor of finding that the
government’s use of force was reasonable. See Forrester v.
City of San Diego, 25 F.3d 804, 808 (9th Cir. 1994) (holding
that use of force was not unreasonable, in part because
protesters were given warning and instructions on how to
comply before force was applied).

However, the fact that Lowry did not hear these warnings
has some bearing on the weight we accord this factor. For
example, in Nelson, we held that, even though the officers
gave warnings before shooting pepperball guns, the fact that
the orders could not be heard over the din of the crowd
weighed against a finding that the use of force was
reasonable. 685 F.3d at 882–83. Accordingly, even though
we conclude that this factor weighs in favor of the
government, we find that it does so only slightly.

Another factor pertinent to this case is the availability of
other tactics to effect the search.9 See Bryan, 630 F.3d at 831

9
Although most of the case law in this area has been developed in the
context of an arrest, i.e., a constitutional “seizure,” that law applies
equally in the search context. If anything, the justification for using force
in a search is even less than in making an arrest.
 LOWRY V. CITY OF SAN DIEGO 23

(noting that, in evaluating whether a use of force was
reasonable, “we have held that police are required to consider
what other tactics if any were available to effect the arrest”)
(citations and brackets omitted); see also Smith, 394 F.3d at
701 (explaining that police must consider less intrusive
alternatives). While officers “are not required to use the least
intrusive degree of force possible,” Forrester, 25 F.3d at 807,
the availability of “clear, reasonable and less intrusive
alternatives” to the force employed “militate[s] against
finding [the] use of force reasonable,” Bryan, 630 F.3d at
831. Here, taking the evidence in the light most favorable to
Lowry, a reasonable jury could find that Sergeant Nulton had
at least one alternative available: namely, he could have kept
Bak on lead, a tactic that would have allowed him to exercise
greater control over Bak. Indeed, the SDPD’s Operation
Manual for its Canine Unit requires officers to keep police
dogs on lead during residential searches, “unless the handler
can reasonably determine there are no residents or animals in
the home.” For the purposes of summary judgment, the
availability of this alternative tactic weighs slightly against a
finding that the City’s use of force was objectively
reasonable.10

3. Weighing the Conflicting Interests

Whether deploying Bak in this case was “objectively
reasonable” turns on “whether the degree of force used was
necessary, in other words, whether the degree of force used
was warranted by the governmental interests at stake.”
Deorle, 272 F.3d at 1282 (citing Graham, 490 U.S. at 396).

10
Although not developed in this record, it may also be that the officers
could have visually scanned the suite with night-vision goggles before
sending in the police dog off lead.
24 LOWRY V. CITY OF SAN DIEGO

“To put it in terms of the test we apply: the degree of force
used by [the police] is permissible only when a strong
government interest compels 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
(alterations and emphasis in original)).

Here, when responding to an alarm at an office building
at night, police officers encountered an open door to an
office, announced their presence, and received no reply. The
question on appeal is whether a reasonable jury could find
that under these circumstances the officers used excessive
force when they deliberately unleashed a police dog that they
knew might well “rip[] [the] face off” any individual who
might be present in the office. As the preceding discussion
makes plain, a reasonable jury could find that the City’s use
of force in this case was not an objectively reasonable one.
The intrusion on Lowry’s liberty interests was severe. By
contrast, taking the evidence in the light most favorable to
Lowry, a reasonable jury could find that the City had little
interest in deploying such a serious use of force: three of the
five factors used to assess the City’s interests – including the
most important factor, the absence of any immediate threat to
the safety of the officers or any other person – weigh against
a finding that its use of force was objectively reasonable,
while the other two weigh only slightly in the City’s favor.
Accordingly, a reasonable jury could find that the deployment
of Bak was not an objectively reasonable use of force. See
Torres, 648 F.3d at 1126. Because the City has failed to
show that there are no questions of fact as to whether the use
of force was reasonable, see Espinosa v. City & Cty. of S.F.,
598 F.3d 528, 538 (9th Cir. 2010), summary judgment for the
City was not warranted.
 LOWRY V. CITY OF SAN DIEGO 25

B. The City’s Liability

We now turn to the second prong of the Monell inquiry:
whether the City can be held responsible for Lowry’s
constitutional injury. Chew, 27 F.3d at 1439. Municipalities
may not be held vicariously liable for the unconstitutional
acts of their employees under the theory of respondeat
superior. See Monell, 436 U.S. at 690–91. Rather, in order
to prevail on a § 1983 claim against a city, a plaintiff must
prove that the constitutional injury was inflicted pursuant to
city policy, regulation, custom, or usage. Id.; see also Chew,
27 F.3d at 1444. “City policy ‘causes’ an injury where it is
‘the moving force’ behind the constitutional violation, or
where ‘the city itself is the wrongdoer.’” Id. at 1444 (quoting
Monell, 436 U.S. at 694, Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 122 (1992)). However, “City policy need
only cause the constitutional violation; it need not be
unconstitutional per se.” Chew, 27 F.3d at 1444 (citation and
brackets omitted).

Here, there is no dispute that the City’s bite-and-hold
policy was the “moving force” behind Lowry’s constitutional
injury. The City admitted as much in its Amended Answer to
Lowry’s First Amended Complaint, stating that:

at approximately 11:00 p.m. on February 11,
2010 Lowry was lawfully sleeping on the
couch in her unlocked office suite located at
4603 Mission Blvd., Suite 200, San Diego,
California when Sergeant Bill Nulton
deployed a police services dog in conformity
with the official policies and procedures
adopted by the San Diego Police Department
26 LOWRY V. CITY OF SAN DIEGO

and Plaintiff was bitten or scratched on her
upper lip.

Because the City concedes that Sergeant Nulton released Bak
in conformity with the SDPD’s official policies and
procedures, we conclude that the City’s policy was the
“moving force” behind Lowry’s injury. See Chew, 27 F.3d at
1444–45 (“There is little doubt that a trier of fact could find
that Chew’s injury was caused by city policy . . . [because]
[i]n the district court, the city conceded . . . that departmental
policy authorized seizure of all concealed suspects – resistant
or nonresistant, armed or unarmed, violent or nonviolent – by
dogs trained to bite hard and hold.” (emphasis omitted)).

The City raises several unavailing arguments as to why it
is entitled to summary judgment on the issue of municipal
liability. First, it argues that Lowry’s single incident provides
an insufficient basis for her Monell claim, citing to our
decision in Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.
1996). Trevino, however, is inapposite. There, we held that
“[l]iability for improper custom may not be predicated on
isolated or sporadic incidents.” Id. (emphasis added). Here,
Lowry’s claim is predicated not on custom, but on an official
municipal policy.

Second, the City argues that, in order to prevail on a
Monell claim, Lowry must prove that the City’s policy
amounts to deliberate indifference of her constitutional right,
relying on our decision in Oviatt ex rel. Waugh v. Pearce,
954 F.2d 1470, 1477–78 (9th Cir. 1992). Once again, the
City relies on an inapplicable part of our Monell
jurisprudence: the “deliberate indifference” requirement
applies only to claims involving allegations of constitutional
deprivations resulting from governmental inaction or
 LOWRY V. CITY OF SAN DIEGO 27

omission, such as a failure to adequately train. See id. at 1474
(“[A] local governmental body may be liable if it has a policy
of inaction and such inaction amounts to a failure to protect
constitutional rights.”). Because Lowry claims her
constitutional deprivation resulted from a City policy and
affirmative government conduct – training Bak to “bite and
hold” and releasing Bak off-lead into Suite 201 – the
“deliberate indifference” analysis does not apply.

Finally, the City argues that because there is no case law
indicating that a bite-and-hold policy is unconstitutional, it
cannot be held liable for Lowry’s injuries. The City appears
to argue that it is entitled to qualified immunity because there
was no “clearly established” law holding its bite-and-hold
policy unconstitutional.

The City is mistaken for two reasons. First, qualified
immunity analysis is irrelevant to the issue of Monell
liability. See Brandon v. Holt, 469 U.S. 464, 471 (1985)
(“[A] municipality is not entitled to the shield of qualified
immunity from liability under § 1983.”). Second,
establishing municipal liability does not require Lowry to
demonstrate that the City’s policy is “unconstitutional per
se;” rather, she need only demonstrate that the policy was the
“moving force” behind her constitutional injury. Chew,
27 F.3d at 1444.

Because the City conceded before the district court that
Lowry’s injuries were incurred “in conformity with the
official policies and procedures adopted by the San Diego
Police Department,” we conclude that the district court erred
in granting summary judgment in the City’s favor on the issue
of municipal liability.
28 LOWRY V. CITY OF SAN DIEGO

IV.

As noted above, the Supreme Court has said that the
objective reasonableness of an officer’s actions in the
excessive force context is a “pure question of law” only once
“the relevant set of facts” has been determined. See Scott,
550 U.S. at 381 n.8; see also id. at 386 (“The car chase that
respondent initiated . . . posed a substantial and immediate
risk of serious physical injury to others; no reasonable jury
could conclude otherwise.”). Our case law following Scott
has noted that “[b]ecause the reasonableness standard ‘nearly
always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom, we have held
on many occasions that summary judgment . . . in excessive
force cases should be granted sparingly.’” Torres, 648 F.3d
at 1125 (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir.
2002)). In Torres, for example, the question was whether a
police officer’s mistake of pulling out and firing her gun
rather than her taser was “objectively unreasonable under the
totality of the circumstances,” including the exigencies of the
situation and her past training on where each weapon was
holstered. Id. at 1124. In that case, the district court
discounted the officer’s previous training and found that her
accidental shooting was the result of an action that she was
forced to take in a tense situation. Id. at 1225. We reversed,
holding that a reasonable jury “could weigh the significance
of [the officer’s] risk awareness and daily practice differently
from the way in which the district court weighed those
factors” and could find that, rather than a tense situation
forcing the officer to act, the officer’s “poor judgment and
lack of preparedness caused her to act with undue haste.” Id.
at 1225–26. In other words, we reversed because a
reasonable juror could have made different factual inferences
than the district court.
 LOWRY V. CITY OF SAN DIEGO 29

Similarly, the district court here gave one interpretation
regarding how to weigh the different factors at issue. It found
that the officers faced a tense situation, unsure of who was
behind an open office door in a dark office building, and that
they cautiously used a police dog to apprehend a potential
burglar and then quickly called back the dog when they
realized Lowry was not a threat. Lowry v. City of San Diego,
2013 WL 2396062, at *5–*6 (S.D. Cal. May 31, 2013). As
in Torres, however, a reasonable juror could make wholly
different factual inferences: the officers, responding to a
routine alarm and not faced with a burglar who already had
engaged in threatening behavior, or who had attempted to
evade arrest, or who had committed an inherently dangerous
crime, unleashed a police dog that the officers believed was
likely to rip a person’s face off, even if she were an innocent
employee of a business who had fallen asleep in her office
late at night. It is the jury’s role to decide which of these or
other inferences should be drawn from the facts in the record.
The City has thus failed to show that there are no questions of
fact as to whether its use of force was reasonable. See
Espinosa, 598 F.3d at 538. Given that there is no dispute that
the City’s “bite and hold policy” was the moving force behind
Lowry’s constitutional injuries, the City was not entitled to
summary judgment. We reverse and remand this case for
further proceedings.

REVERSED and REMANDED.
30 LOWRY V. CITY OF SAN DIEGO

CLIFTON, Circuit Judge, dissenting:

Put yourself in the shoes of Sergeant Bill Nulton of the
San Diego Police Department. Late one Thursday night in
February, around 11:00 pm, you are dispatched to respond to
a burglar alarm that has gone off at a two-story commercial
building. You arrive at the scene within two or three minutes
of getting the call, together with your police service dog, Bak,
and two other officers. Approaching the building, you do not
see anyone leaving the building or the parking lot. You
inspect the building and see that two doors on the second
floor are open. You go to the second floor and determine that
one open door leads to a bathroom, which is empty. Another
door is closed and locked. The remaining door leads to Suite
201. It is propped open. The building is dark. You cannot
see inside and do not know whether anyone is there. You yell
loudly, “This is the San Diego Police Department! Come out
now or I’m sending in a police dog! You may be bitten!”
There is no response. You wait between 30 and 60 seconds,
but still no response. You repeat the same warning one or
two more times. Again, no response. Because nobody has
responded to the warnings, you are concerned that if there is
someone inside the building who triggered the alarm, that
person may be a burglar lying in wait. You have no way of
knowing whether that person is armed. What would you do?

Unfortunately for Sgt. Nulton and for all law enforcement
officers within the Ninth Circuit, if you release your trained
service dog and follow him with a flashlight to search for a
suspect, you might wind up in trial. Thanks to the majority
opinion, officers will be discouraged from protecting
themselves and encouraged to risk their lives by exposing
themselves to any burglar who might be armed and lying in
wait, either because they cannot use a dog at all or must
 LOWRY V. CITY OF SAN DIEGO 31

remain so closely tethered to the dog that they necessarily
have to expose themselves to the potentially armed burglar.1

I respectfully dissent.

The majority opinion dutifully and accurately recites, at
9, that we are supposed to evaluate the reasonableness of the
force used “from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.”
Graham v. Connor, 490 U.S. 386, 396 (1989). That is the
law, but that is not what the majority actually does.

Consider the attention given in the majority opinion to the
testimony of Sara Lowry that she did not hear the warnings
yelled loudly and more than once by Sgt. Nulton. See
majority op. at 17–19 & 22. I accept that to have been true;
she was asleep on the couch after consuming five vodka
drinks earlier in the evening. But that’s not something that
the officer could have known. The majority explicitly states,
at 22, that the fact that Lowry did not hear the warnings
diminishes the weight it is willing to give to the fact that the
officer gave warnings. That is not an evaluation based on the
perspective of a reasonable officer on the scene.

Similarly, the majority opinion emphasizes, at 14, that
“Lowry did not pose a threat to the officers or others.” See
also majority op. at 15–17. But the officers did not know and
could not have known that Lowry would be the one and only

1
Alternatively, the majority opinion appears to invite you to walk away
and disregard the burglar alarm and the propped door, because most
alarms are false, anyway. See majority opinion, at 16–17 n.6. I wonder
whether the majority opinion intends that police should simply not bother
with responding to any alarms. I doubt that’s what citizens expect.
32 LOWRY V. CITY OF SAN DIEGO

person they would encounter inside the building. The
majority opinion rests on “the 20/20 vision of hindsight.”
That is error.

When viewed from the appropriate perspective, there is
no interpretation of the facts that could lead a jury to
conclude that the use of a police dog under the circumstances
was excessive force. The summary judgment entered by the
district court in favor of the City should be affirmed.

I. Facts

The facts, from the perspective of the officers, were as
follows. At approximately 10:40 pm on the night of
Thursday, February 11, 2010, a burglar alarm went off in a
two-story office building in San Diego. Three police officers
arrived within minutes of dispatch to find a darkened building
and, on the second-story balcony, two open doors, including
one that was propped open.2 After scaling the ground-floor
gate, the officers looked around the second story for any other
indication that the building was occupied by someone who
belonged there, finding none. The officers determined that
one of the open doors led to an empty bathroom. They
announced themselves loudly, more than once, at the door
that was propped open.3 No one responded.

2
Lowry contests that the door was, in fact, ajar. The district court
excluded Lowry’s testimony about the door, however, meaning that she
has provided no admissible evidence to support her contention, as
discussed in more detail below, at 43–44.
3
Lowry disputes this fact as well, but the district court also excluded the
evidence she offered on that subject, as discussed below.
 LOWRY V. CITY OF SAN DIEGO 33

At this point, the officers were forced to make a decision,
aided only by the information above and a handful of
common-sense assumptions. Doors do not generally open of
their own accord, particularly in an empty office building.
Nor do people often come to an office for a legitimate
purpose at nearly 11 o’clock at night without turning on the
lights. Those who do are unlikely to fail to notice if they set
off a burglar alarm, especially as it was loud enough to be
heard from the parking lot. And 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.
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.

II. The use of force was reasonable

The question in an excessive force analysis is “whether
the officers’ actions are ‘objectively reasonable’ in light of
the facts and circumstances confronting them.” Graham,
490 U.S. at 397. We assess reasonableness by looking at
three factors: (1) “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 Cty., 673 F.3d 864, 871 (9th Cir. 2011)
(internal citations omitted). The majority ignores Graham’s
admonition that courts must consider reasonableness from the
perspective of the officers under the circumstances and
instead veers between viewing the facts from Lowry’s
perspective, to the exclusion of the officers’, and speculating
on what could have happened under different circumstances.
Viewed from the appropriate perspective, all three factors of
the analysis under Graham weigh in favor of the officers.
34 LOWRY V. CITY OF SAN DIEGO

A. The type and amount of force inflicted was not severe

The majority begins its analysis by reading into our case
law a blanket rule that has never existed before. We have
never held that the use of a police dog is categorically
“severe,” as the majority opinion suggests, at 10. Rather, the
cases the majority cites all involved an individual analysis of
the use of force under particularized circumstances.

In Smith v. City of Hemet, it was the Hemet Police
Department itself that categorized the use of a police service
dog as “intermediate” force, which by its description was “the
most severe force authorized short of deadly force.” 394 F.3d
689, 701–02 (9th Cir. 2005) (en banc). That usage suggests
only that intermediate force was the name used by that
department for the level of force between light and deadly.
It is not a holding that requires us to consider the use of a
police dog severe in every case. To the contrary, our opinion
in Smith went on to consider the facts in that case—facts very
different from those here. The officers in that case sicced a
police dog on Smith three times, including once after he had
already been pinned down, and then pepper sprayed his open
wounds. Id. at 702. Similarly, in Chew v. Gates, the court
held that “the force used to arrest Chew was severe” because
the dog bit Chew three times, dragged him between four and
ten feet, and “nearly severed” his arm. 27 F.3d 1432, 1441
(9th Cir. 1994). Meanwhile, in Miller v. Clark County, this
circuit found the use of force reasonable when a fleeing
suspect suffered a dog bite that lasted between forty-five and
sixty seconds, “shredded” his muscles, and went down to the
bone. 340 F.3d 959, 961 (9th Cir. 2003).

Applying the case-by-case analysis employed in our
previous police dog cases, the district court here properly
 LOWRY V. CITY OF SAN DIEGO 35

concluded that the force used against Lowry was “moderate.”
In sharp contrast to the grisly injuries in the cases cited by the
majority, Lowry required only three stitches in her upper lip,
and experienced no visible scarring. The contact was so brief
that Sgt Nulton did not even know if contact had occurred.
Even Lowry described it as “very quick.” Moreover,
although you might not realize it from the description in the
majority opinion, Nulton did not simply let Bak go but rather
followed closely behind her as she cleared the small office
suite. The district court took this into consideration, noting
that “Sergeant Nulton was present and immediately called the
dog off upon seeing Plaintiff on the couch.”

The facts of this case undermine the majority’s
conclusion, at 12–13, that the type of force used against
Lowry was comparable to that in Chew. In that case, the
police dog was “beyond the reach of a countermanding order”
when it found the plaintiff, and dragged him at least four feet
and possibly as many as ten feet before releasing him. Chew,
27 F.3d at 1441. “[T]he longer a dog is permitted to bite a
suspect, the greater the likelihood the suspect will be injured
severely.” Miller, 340 F.3d at 963. Here, the district court
properly recognized that the risk inherent in the officers’ use
of force was significantly lessened by Sergeant Nulton’s close
proximity to Bak and his ability to call her off within mere
moments of contact. These circumstances cannot support a
conclusion that either the type or the amount of force used
was comparable to the “severe” force used in cases like Chew
and Smith.

B. The city’s interest in the use of force was strong

On the second step of the Graham analysis, which asks
the court to consider the City’s interest in the use of force, the
36 LOWRY V. CITY OF SAN DIEGO

majority errs by viewing the circumstances from Lowry’s
perspective. Generally, this step requires the court to assess
“(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,” considered in
the totality of the circumstances. Miller, 340 F.3d at 964.
When viewed from the appropriate perspective, all of these
considerations weigh in favor of the City.

1. The officers reasonably anticipated a potential threat

I begin, as does the majority, with an analysis of whether
Lowry presented an immediate threat to the safety of the
officers. It is irrelevant to this inquiry that Lowry “remained
fast asleep on the couch” during the officers’ search of the
building. See majority op. at 15. Rather, the facts must be
viewed from the perspective of the officers, who knew only
that they had been called to a building showing signs of a
break-in,4 that the building was dark and that as a result any
entry would be blind, and that it was nevertheless their job to
enter and investigate.

4
The majority’s focus on the rate of false alarms is misplaced, as well
as foolish. See majority op. at 16–17 n.6 and above at 31 n.1. The alarm
may have been the reason the police arrived on the scene, but once the
officers approached the building, several other factors, notably the open
door and the darkened suite, suggested that something was amiss. For the
same reason, the majority’s attempt, at 16, to characterize the district
court’s finding for the officers as suggesting 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” is
simply inaccurate.
 LOWRY V. CITY OF SAN DIEGO 37

Our precedents make it clear that, when confronted with
signs of a burglary, investigating officers are entitled to
protect their own safety. “[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). “Normally, 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). “So long as
the officers have established probable cause for a burglary,
‘[i]n 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). While it
is true, as the majority observes, that the legal issue in Frunz
concerned a Fourth Amendment claim of warrantless entry
rather than a claim of excessive force, that distinction does
not contradict the factual truth of our observation in Frunz.
Neither does it affect the analysis as to the City’s interest in
the use of force, where the concern is not with the nature of
the force used but rather whether the suspect posed a threat to
the officers. The factual reality of this threat is not dependent
on the point of law at issue.

Here, the officers reasonably suspected that a burglary
had taken or was taking place. They made this informed
judgment not simply because a burglar alarm had been
tripped, but in the totality of the circumstances, and they took
reasonable steps to protect themselves. As the district court
found, this factor of the analysis weighs in favor of the City.
38 LOWRY V. CITY OF SAN DIEGO

2. Lowry did not resist or attempt to evade arrest

The second factor of the analysis, whether Lowry was
resisting or attempting to evade arrest, weighs heavily in her
favor in the majority opinion, at 17–19. It is undisputed that
she “took no threatening actions (other than non-compliance
with shouted orders)” towards the police. Glenn, 673 F.3d at
875. But the majority fails again to consider the perspective
of the police officers. They did not know that she was there,
for she hadn’t responded to their warning calls. Neither did
they know that she was the only other person in the building.

Unlike the cases relied upon by the majority opinion, the
officers here did not have the benefit of being able to see the
suspect and make a reasoned judgment as to whether that
person was resisting or evading arrest. Instead, they had only
the information that whoever was in the building had failed
to respond to their warnings. They could not know whether
the unknown occupant would resist. On the facts of this case,
from the perspective of the officers, this factor does not point
either way.

3. Burglary carries an inherent risk of violence

The final factor in assessing the use of force is the
severity of the crime at issue. As noted above, we have found
burglary to “carry an inherent risk of violence,” as recently as
2014. Sandoval, 756 F.3d at 1163. 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 violent and which are not.

While the majority minimizes the risks of police work,
during the year in which the events of this case occurred eight
 LOWRY V. CITY OF SAN DIEGO 39

police officers were killed and 5,074 were assaulted while
investigating suspicious people or circumstances, in addition
to the three killed and 899 assaulted during a burglary in
progress. Criminal Justice Services Division, Law
Enforcement Officers Killed & Assaulted 2010, Tables 19 and
73, FBI, https://www.fbi.gov/about-us/cjis/ucr/leoka/2010.
The majority trumpets that only seven percent of burglaries
nationwide involved incidents of violence, at 19–20, but that
means that approximately one in every 14 burglaries involved
violence, a significant number for police officers who
respond to burglary calls regularly.5 The majority’s
unmerited jump from the fact that not all burglaries involve
violence to the conclusion that police should not protect
themselves against the possibility that violence may occur
minimizes the real danger that police officers face regularly
in an inherently risky job. As the district court properly
concluded, this factor weighs in favor of the City.

4. Other relevant considerations weigh in favor of the
City

The majority opinion errs again in weighing other
relevant considerations: (1) whether a warning was given
before force was used, and (2) whether there were alternative
tactics the officers could have used. And, it entirely
disregards another factor that merits consideration: the

5
In 2011, San Diego police handled a total of 5,840 burglaries. See
Automated Regional Justice Information System, Crime Statistics,
http://crimestats.arjis.org/. As of 2014, there were 1,651 SDPD officers on
full duty. Melissa Mecija, San Diego Police Department staffing levels at
lowest in over a decade, ABC 10 NEWS, (Aug. 12, 2014),
http://www.10news.com/news/san-diego-police-department-staffing-
levels-at-lowest-in-over-a-decade-08122014.
40 LOWRY V. CITY OF SAN DIEGO

physical setting and the likelihood of encountering an
innocent bystander.

As to the first of these considerations, all three officers
stated that a warning was given. This factor weighs strongly
in favor of the City. See 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) (“‘[T]he giving of a
warning or the failure to do so is a factor to be considered in
applying the Graham balancing test.’”). As noted above, the
majority’s observation that Lowry did not hear the warning
is irrelevant from the perspective of a reasonable officer on
the scene. The officers had no way to anticipate the unlikely
circumstance that someone would be asleep in a non-
residential building late at night and therefore unable to hear
a warning.

The majority opinion goes wrong regarding the warning
in a second way. It cites, at 22, our decision in Nelson to
support its conclusion to weigh this factor only “slightly” in
the officers’ favor, but that authority actually provides it no
support. The reason that we concluded in Nelson that the
warning should not be given much weight was because the
officers issued the warning without amplification into a
crowd of some 1,000 partygoers at a distance of 45 to 150
feet. Nelson, 685 F.3d at 872, 874. The officers on the scene
were obviously aware of the setting and should have known
that they could not expect people to hear a warning shouted
at a distance into a rowdy crowd. That was not the setting
here. A warning called into a silent three-room office suite
late at night should be more than sufficient to place any
occupants on alert. The officers here had no reason to expect
otherwise.
 LOWRY V. CITY OF SAN DIEGO 41

The majority opinion similarly overreaches in speculating
about the alternative means that the officers could have used
to investigate Lowry’s office suite. It asserts that Sgt. Nulton
could have kept Bak on the lead so that he could have
exercised greater control. See majority op. at 23. But the
policy of allowing dogs off-lead is in place to protect
officers’ safety, as the officers understood. If Bak were kept
on the leash, Sgt. Nulton would have been required to expose
himself to whomever might have been lurking in the dark
office, possibly armed. Moreover, it is far from clear that the
results would have been any different had Bak been kept on
the lead. Sgt. Nulton was in the room when Bak jumped on
Lowry and was able to call off the dog quickly. 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.

The majority’s alternative suggestion, at 23 n.10, that the
officers should have used night-vision goggles, is simply
puzzling. There is no indication in the record that these
officers—or any regular patrol officers—had access to that
technology, typically associated with military and SWAT
teams rather than local police forces. Nor is there any basis
for us to conclude that use of that equipment would have been
practical or beneficial. Would it have compromised the
officer in any other way, such as by cutting down on
peripheral vision or hindering movement? Would it have
actually permitted the officer to spot a burglar who could be
expected to be hiding behind a desk or in a closet? I don’t
know, and the majority opinion gives us no reason beyond
rank speculation to believe that it knows, either.

The majority fails seriously to consider the specific
context that the police officer faced and the relative risks that
42 LOWRY V. CITY OF SAN DIEGO

he had to balance when he decided to release and follow the
dog. Context matters. The majority opinion notes, at 23, for
instance, that the San Diego police department’s manual
requires an officer to keep a police dog on a lead during a
residential search, “unless the handler can reasonably
determine there are no residents or animals in the home.”
That makes sense, because in a home the likelihood of
encountering an innocent bystander who might be found and
injured by the dog is obvious.

The officer involved in this case was not at a home,
however. He was at a dark commercial building, late at night,
where there had been no response to multiple shouted
warnings. That is where he made the decision to release and
follow the service dog, and that was not a location where an
innocent bystander was likely to be found. It was possible
that nobody was in the building, but in that case releasing the
dog posed no risk of harm because there would not have been
anyone to find. The risk of injury from releasing the dog
mattered only if there was someone else in the building, and
the likelihood of someone else in the building being unable to
respond to warning shouts (or the loud burglar alarm) because
she was passed out on a couch could not have seemed, from
the officer’s perspective, very great. None of that matters to
the majority, though. The San Diego police department
appreciates that there is a difference between a residence and
a commercial building, but the majority opinion does not.

C. The degree of force used was commensurate with the
City’s interest

On the last step of the excessive force inquiry, we weigh
the degree of force used against the government’s interest in
using force. Glenn, 673 F.3d at 871. The discussion above
 LOWRY V. CITY OF SAN DIEGO 43

makes clear that the force used here was not severe, and the
police had a compelling interest in acting to protect
themselves against foreseeable danger in an uncertain
situation.

III. There are no material disputes of fact

The majority opinion acknowledges, at 28, that the
objective reasonableness of an officer’s actions in the
excessive force context is a “pure question of law” once “the
relevant set of facts” has been determined, quoting from Scott
v. Harris, 550 U.S. 372, 381 n. 8 (2007). It asserts that there
are questions of fact here that preclude summary judgment,
but it does not identify what they are. In reality, they don’t
exist. Summary judgment for the officers was appropriate
and should be affirmed.

In her briefing, Lowry pointed to several purported
factual disputes that she argued should preclude summary
judgment: whether the door to her suite was open, whether
the suite was dark, and whether the officers provided her with
warning prior to entering the suite. If these facts were in
dispute, summary judgment might be inappropriate. An open
door could be the difference between an overreaction to a
false alarm and a reasonable response to an apparent break-in.
The illumination in the office is relevant to the officers’ need
to protect themselves from a potential ambush. And we have
explicitly held that whether a warning was provided is one of
the factors to be considered. See Nelson, 685 F.3d at 882.

However, these facts are not in dispute, as Lowry
presented no admissible evidence on her behalf. The district
court excluded Lowry’s testimony that the door to her office
suite was closed because it was not “firsthand”: she did not
44 LOWRY V. CITY OF SAN DIEGO

state that she had actually closed the door but rather relied on
a belief that it always closed automatically. Similarly, the
district court concluded that her testimony as to the level of
illumination in the suite was “entirely speculative.”6 Finally,
it concluded that Lowry lacked the proper foundation to
testify as to whether Sergeant Nulton had issued a warning
prior to releasing Bak, as she was asleep at the time the
warning was given.

The district court’s evidentiary rulings made in the
summary judgment context 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 citation omitted). Since
“[g]enerally, a witness must have ‘personal knowledge of the
matter’ to which she testifies,” Bemis v. Edwards, 45 F.3d
1369, 1373 (9th Cir. 1995) (quoting Fed. R. Evid. 602), it was
not manifestly erroneous to conclude that Lowry had no
personal knowledge of events that she did not in fact witness.
Therefore, we must uphold the district court’s conclusions
that the door was open, the suite dark, and the warning given.

Without any admissible evidence to suggest that the doors
to the office suite were closed, the suite illuminated, or a
warning not provided, viewing the facts in the light most
favorable to Lowry does not change the analysis above. The
majority contends, at 29, that a jury might draw different
“inferences” from the facts, but it does not actually say what
different factual finding might be made—that the door was
not open, that the room was not dark, or that warnings had not

6
In fact, Lowry herself 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.
 LOWRY V. CITY OF SAN DIEGO 45

been given. No evidence supports any of those findings. The
“inferences” in question amount to the ultimate question of
whether the officer’s actions were objectively reasonable.
That question, even the majority acknowledges, is a pure
question of law. Given the facts available to the reviewing
court, it is clear that the type and amount of force inflicted
was moderate, the City had a strong interest in using force,
and the degree of force used was commensurate with the
City’s interest in the use of force. As a result, the officers’
actions were constitutional, and there can be no liability under
Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S.
658 (1978).

I would affirm the district court’s grant of summary
judgment.