Police Dogs That Bite: Unconstitutional Use of Force?

Michael Rubinstein, Esq.

Police dogs are helpful partners in law enforcement. However, many police departments in California employ an “attack first, ask questions later” approach when it comes to using dogs to help apprehend a crime suspect. Does such a policy violate the U.S. Constitution? This is an issue currently being considered by the U.S. Ninth Circuit Court of Appeals here in California. The closely watched case, Lowry v. City of San Diego, could affect how police agencies deploy canines in the course of police work.

California Dog-Bite Law in General

In California, any dog owner is strictly liable for injuries caused by his or her dog. In some other states, dog owners are afforded a “one-free bite” pass. This is similar to the concept from the Gemara, where an ox must establish its violent propensity, earning the distinction of a muad. In states with a “one-free bite” rule, this means that if a dog has never attacked before, the owner will not be liable the first time the dog bites someone.  The dog owner would be responsible for any injuries caused by his or her dog after the first bite.

California does not have a one-free bite rule. The Civil Code imposes liability on a dog owner any time the dog bites, including the first time. There is an exception to this strict liability rule, and that is for police and military dogs. If a police dog attacks a crime suspect, the police are immune from lawsuits stemming from the attack. If, however, a police dog attacks an innocent bystander who is not suspected of criminal activity, there is no immunity.

Granted, the police might be immune from civil dog bite liability under the Civil Code.  But can the use of a police dog violate the federal constitution?

The Case of Sara Lowry

One night in February 2010, Sara Lowry was sleeping on a couch in her office in San Diego. When she woke up to use the restroom, she accidentally triggered a silent alarm in her office building. San Diego police arrived on scene with a police dog named Bak, suspecting a burglar had broken into the office building. A canine officer announced that he would unleash Bak into the dark office to assist officers in apprehending the potential burglary suspect.

Ms. Lowry was sleeping on the couch and did not respond to the officer’s warnings. The officer then let Bak off her leash, and she pounced on a sleeping Ms. Lowry. Bak bit Ms. Lowry’s face and would not release her grip until the officer commanded her to do so.  Ms. Lowry’s lip was nearly torn off, and she required several stitches. Ms. Lowry sued the San Diego Police Department, arguing that the use of a police dog to bite Ms. Lowry, who was not engaging in any criminal activity, was an unconstitutional use of force under the federal constitution.

Bite and Hold: Lowry v. San Diego

The federal District Court in San Diego originally dismissed Ms. Lowry’s lawsuit, saying no reasonable jury could find that the San Diego police used excessive force when Bak attacked her. The Ninth Circuit Court of Appeals last year disagreed, holding that a reasonable jury could in fact hold that the police used excessive force through employing a “bite and hold” policy.

A key issue for the Court was testimony from police officers that Bak is trained to bite the first person she encounters – regardless of whether that person is a child or a burglar.  As was the case with Ms. Lowry, who was sleeping on a couch, a police dog can get it wrong and attack an innocent individual. The officer in Ms. Lowry’s case testified that, after subduing Bak, he was surprised that the dog did not rip Ms. Lowry’s face off. While the Court noted that Ms. Lowry was lucky to escape the attack without more serious injury, “a fundamental purpose of Section 1983 (the federal civil rights statute) is to deter the use of unreasonable force in the future to avoid what could be much more serious harm to the next person.”

This is not to say that police officers can never use force. The question is how much force may be used. While courts are deferential to officers’ safety, there must be objective factors to justify police using force. Furthermore, the Court noted that most burglar alarms are false – in San Diego the number is more than 95%. Ms. Lowry did not engage in threatening behavior, nor did she resist police commands. She was simply sleeping on a couch. Thus, the Court held that a reasonable jury could agree that she did not pose an immediate threat to anyone, let alone the police who arrived on scene. The Court therefore held that it was improper for the District Court to dismiss Ms. Lowry’s lawsuit before letting a jury hear all the evidence.

The Ninth Circuit reheard this case en banc last month. That means that while the original panel voted 2-1 to send Ms. Lowry’s case back to the jury, the full panel of 11 judges is now reconsidering the issues in this case. During oral argument, lawyers representing the city of San Diego conceded that under the department’s policy, innocent people can and likely will be wounded by police dogs should the bite and hold policy be upheld.

Will the full Ninth Circuit panel send Ms. Lowry’s case to the jury to decide if the San Diego Police Department’s “bite and hold” policy violates the constitution? Or will it decide that no reasonable jury could find that police using dogs to bite and apprehend a suspect is within the bounds of appropriate legal force? A decision is expected in the coming months.

Los Angeles-Area Law Enforcement Use of Dogs


Los Angeles K-9 unit. Photo: Michael Brian

Lowry v. City of San Diego could impose sweeping changes on law enforcement agencies throughout California. Many police departments use dogs, and a ruling that a “bite and hold” is unconstitutional could affect these agencies. It’s interesting to note that the Los Angeles Police Department stopped using bite and hold in the early 1990s. Sgt. Michael Goosby, LAPD’s chief canine trainer, says the department now uses a “find and bark” policy. Police dogs approach a suspect and bark while holding their position, alerting nearby officers and letting them come in make an arrest. The policy change among LAPD’s 19 dogs reduced litigation and has saved the City substantial amounts.

The Los Angeles Sheriff’s Department, in contrast, still uses a bite and hold policy, similar to the one used by San Diego. The Sheriff’s Department has about half the number of dogs as LAPD – and has paid over $1.1 million in dog attack settlements since 2009. In 2012, LASD’s dogs bit about 50% more often as LAPD’s dogs.


Lowry v. City of San Diego is an important case that could impact police agencies using dogs throughout California. Police dogs can assist police officers with many of their dangerous crime-fighting tasks. When police train and authorize a dog to bite first and ask questions later, this can result in serious injuries to innocent civilians. Whether the infliction of these injuries is an unconstitutional use of force remains to be seen.

(Sources: Civil Code 3342; Lowry v. City of San Diego; San Gabriel Valley Tribune; NY Times.)