A federal appeals court on Tuesday found that San Diego police used reasonable force when they released a dog during a late-night search for a potential burglar in a Pacific Beach office building, resulting in a bite injury to an employee sleeping on her sofa.

In its 10-1 ruling, the 9th U.S. Circuit Court of Appeals emphasized the right of police officers to protect themselves from a potential threat and how the circumstances at the building the night of Feb. 11, 2010, reasonably suggested a burglary was in progress.

The ruling overturns an opinion reached last year by a three-member panel of the 9th Circuit. It also adds to a growing body of case law pertaining to the use of dogs in police work.

“The court found that the officers acted reasonably, used appropriate force, and were justified in protecting themselves when responding to an uncertain and potentially dangerous situation in a dark office building,” the City Attorney’s Office said in a statement Tuesday.


The lawyers representing the bite victim, Sara Lowry, plan to appeal to the U.S. Supreme Court.

“This is a very important case in the current state of police relations with the general citizenry and the United States right now, and how police use force,” said Nathan Shaman, one of her San Diego-based attorneys. “We think that the majority definitely got it wrong considering the use of bite-and-hold technique in this case did not violate our client’s rights.”

Lowry, who worked for a data consulting firm, sued the San Diego Police Department alleging the city’s “find-and-bite” dog policy to locate and hold suspects caused an excessive use of force. She did not sue the officers individually.

Lowry had gone out for drinks with friends and returned to her office, where she fell asleep. At one point, she got up to use the restroom in a neighboring office suite and then went back to sleep. Her trip unknowingly set off the building’s alarm around 11 p.m., prompting officers to investigate.


The officers noted a door on a second-floor balcony was ajar and went in suspecting they were dealing with an active burglary. Sgt. Bill Nulton and his dog, Bak, approached the office suite with two other officers. Nulton said he yelled loudly inside, announcing their presence and threatening to send a dog in. When no one answered, Nulton let the dog off-leash to see if a burglar was inside and quickly followed behind.

Nulton’s flashlight illuminated a purse on the floor and a person under a blanket on the couch at precisely the moment that Bak jumped on the sofa. Nulton called Bak off, but the dog had already bitten Lowry on the lip — an injury that resulted in three stitches.

Lowry sued in San Diego federal court, and the judge agreed with the city that the law prevented the case from moving forward to trial.

Lowry appealed, and a three-member panel of the 9th Circuit sided with her, saying the department’s policy could be considered a severe use of force and should be heard by a jury.


The city requested a larger, or en banc, panel rehear the case, and oral arguments were heard in January.

Lowry argued there were disputable facts that a jury should have had the chance to decide upon, including her contentions that the door to the suite was not open as officers said, that the suite was not dark and that the officer didn’t yell warnings before releasing the dog.

The disputed facts go to the heart of whether police reasonably suspected a burglary was in progress and if their use of force was appropriate.

But the judges agreed with the District Court, finding that Lowry hadn’t presented any admissible evidence to counter the officers’ testimony on those issues.


“This inquiry must be viewed ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,’” the majority wrote, citing case law. “An officer’s use of force cannot be deemed excessive based on facts that he reasonably would not have known or anticipated.”

The ruling cited Nulton’s close monitoring of Bak and his quick action to pull the canine off Lowry, concluding the use of force and actual harm was moderate, not severe.

The ruling also pointed to case law that recognizes the inherent dangers of police confronting burglars, and that “courts must allow ‘for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.’”

The majority found that the department’s practice of allowing dogs to go off-leash is meant to protect officers.


“Lowry suggests that the police dog could have been kept on her leash, albeit without any evidence in support of the effectiveness of that alternative technique,” the opinion stated. “If that approach had been followed, Sergeant Nulton would have been required to expose himself to what the officers reasonably suspected was a burglar, lurking in the dark office, possibly armed.”

In his dissenting opinion, Chief Judge Sidney Thomas said “it was error for the district court to assess Lowry’s credibility and to exclude her testimony.”

He stressed that a jury should have decided on the disputed facts, which were pertinent to the use of force argument. He also said there were no specific facts to indicate to the officers that an armed person was inside the office suite.

“Sara Lowry was sleeping in the privacy of her office, when she was attacked and injured by a police dog trained to inflict harm on the first person it encounters,” Thomas wrote. “Because a reasonable jury could find that the City of San Diego’s use of a police dog was unreasonable under the circumstances presented here, I must respectfully dissent.”


kristina.davis@sduniontribune.com

Twitter: @kristinadavis


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