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San Diego 'Bite and Hold' Case Will Proceed to Trial: 9th Cir.

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By Jonathan R. Tung, Esq. on April 04, 2016 2:15 PM

Are the San Diego's policies employing canine units to "bite and hold" an unconstitutional violation of civil rights? Reasonable minds may disagree, and that is why the Ninth Circuit has reversed a lower court dismissal of the lawsuit allowing the suit to move forward to trial.

However your opinion may lean on this issue -- we're almost sure that it didn't help when the police officer told the victim that she was "very lucky," because the dog "could have ripped [her] face off."

Get Drunk -- Get a Face Full of Dog

The relevant facts go like this. Back in 2010, a woman gets drunk after drinking five vodkas with her friends and decides to sleep it off at work. She returns to the office and makes her way to the couch and falls asleep.

Unbeknownst to her, she had tripped the business's burglar alarm. Three policemen and a K9 unit arrive at the scene to find the office door ajar. The police men yell out loudly, "This is the San Diego Police Department! Come out now or I'm sending in a police dog! You may be bitten!" The police repeated the warning again. The victim, Sara Lowry, didn't answer because she was stone drunk asleep. The police unleashed the K9 and it pounced on Lowry, causing severe injury to her upper lip.

When the police finally saw Lowry, they called off the dog. The handler told Lowry that she was very lucky because things could have been much worse.

Something for the Jury

In the inevitable suit, Lowry argued a number of different theories including civil rights violations. Case dismissed.

But the Ninth Circuit reversed that dismissal and ordered the case be heard on the merits. The appeals panel ruled that a reasonable jury could find that excessive force had been used to investigate a burglar alarm incident with a dog trained and likely to "rip a person's face off."

Excessive force claims usually turn on the issue of proportionality of force. Almost by definition, a police officer who employs excessive force that is grossly disproportionate to the amount reasonably required to execute an arrest will not be shielded by qualified immunity.

However, these particular facts are not quite so cut and dried. The police officers in this case could have also reasonably believed that the room did contain a dangerous felon who was armed and dangerous. The fact of the matter was that they did not see Lowry until she had already been attacked. It is, arguably, almost irrelevant that the did not employ their flashlights sooner (a willful ignorance claim won't stick).

In fact, the opinion did contain at least the dissent of one judge. He argued that a reinstatement of the suit would mean that any officer who releases a dog and follows in search with a flashlight could "wind up in trial."

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