Law Review: Trained police dog bites innocent bystander
March 15, 2018
Police dogs are trained to "bite and hold." What happens if they bite and hold the wrong person – like an innocent person sleeping on a couch? Ask Sara Lowry who now has three stitches on her lip and is lucky to have a face.
Burglary in progress
A burglar alarm was triggered in a two-story office building in San Diego on a Thursday night at 10:40 p.m. Three San Diego Police officers arrived within minutes. They found an open door leading to Suite 201. One officer yelled, "This is the San Diego Police Department! Come out now or I am sending in a police dog! You may be bitten!" The officer waited a minute then repeated the same warning, again without response.
The officers entered Suite 201, and just as a person was spotted sleeping under a blanket on an office couch, police dog Bak jumped on the couch and bit Sara Lowry on the lip. Bak was told to back off (my joke). He did, but not before doing a number on Lowry.
Sleeping it off
Lowry worked in the building. She had visited a few bars in the area with friends that evening and consumed five vodka drinks. Around 9:30 p.m. she returned to her office and fell asleep on the couch, but got up during the night to use the bathroom in a neighboring suite and triggered the silent alarm.
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Unreasonable seizure of lip
Sorry for my cornball humor. Not really. Lowry sued claiming that San Diego's policy of training its dogs to "bite and hold" violated her constitutional Fourth Amendment prohibition against unreasonable seizures of a person — specifically, the lip of a person.
The federal trial court ruled for San Diego, a divided three-judge panel of the 9th Circuit reversed, and the case made it to the 9th Circuit Court of Appeals sitting En Banc.
Chew v. Gates
I can hardly contain myself. The most-cited case in this Court of Appeals decision was Chew v. Gates. I think it is safe to say I wrote this column just to cite that decision in our dog chewing-a-lip case. And I'm not even drinking. But I am easily humored.
In considering whether the seizure was unreasonable and excessive, San Diego acknowledged that dog handlers are to consider "(1) the severity of the crime; (2) the immediacy of the threat; and (3) if the subject is actively resisting arrest."
All of the judges except one found that the dog bite (seizure) was moderate and not excessive and did not violate Lowry's Fourth Amendment rights.
The sole dissenting judge started his dissent like this, "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 that it encounters."
The dissenting judge suggested the officers should have used an on-leash dog or should start training their dogs to "find and bark" and bite only if the suspect tries to flee.
Chew on that.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim's practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.
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