In Lowry v. City of San Diego, 13-56141, 2017 WL 2434715 (9th Cir. June 6, 2017), officers responded to an office building to investigate a triggered burglar alarm. Upon seeing an opened door to a darkened suite and suspecting a burglary might be in progress, one of the officers released his service dog after giving several warnings to anyone inside. The dog raced in and jumped on top of and bit a woman who was passed out drunk on a couch.  The dog did not release until the officer called him off seconds later.  The woman sued, alleging the city’s policy and practice of training police service dogs to “bite and hold” individuals violated her Fourth Amendment rights.

The court held that the use of force (the dog) under the particular circumstances was reasonable.  The force used was not severe (only “moderate”) because, although the dog was capable of causing significant injury, its actual bite was brief and required only 3 stitches; the officers were confronting a potential burglary, an inherently dangerous crime; and, from the officers’ perspective, it was reasonable to infer that a person committing a burglary could be armed and therefore posed an immediate threat to their safety.  The court also noted that the officers had given warnings before releasing the dog and that they were not required to use less intrusive alternatives (e.g., keeping the dog on the leash) because it would have exposed them to a possibly armed burglar lurking inside.