Academic journal article Boston College Law Review

EXCESSIVE FORCE, POLICE DOGS, AND THE FOURTH AMENDMENT IN THE NINTH CIRCUIT: THE USE OF SUMMARY JUDGEMENT IN LOWRY V. CITY OF SAN DIEGO

Academic journal article Boston College Law Review

EXCESSIVE FORCE, POLICE DOGS, AND THE FOURTH AMENDMENT IN THE NINTH CIRCUIT: THE USE OF SUMMARY JUDGEMENT IN LOWRY V. CITY OF SAN DIEGO

Article excerpt

INTRODUCTION

The use of police dogs is not generally what comes to mind when talking about the use of excessive force by police, but the U.S. Court of Appeals for the Ninth Circuit has addressed this issue in a series of cases arising from police practices in Southern California.1 Police dogs are primarily used to detect suspects, and the resultant force can sometimes be deployed out of the sight of their handler, with the dog determining the amount of force applied.2 Police officers have a range of types of force at their disposal that can be categorized either as deadly or nondeadly.3 The use of deadly force, such as guns, is analyzed under a stringent balancing test that requires a serious threat of bodily harm to be present.4 Courts have determined that the use of police dogs does not generally constitute deadly force, therefore these cases are evaluated under a more lenient reasonableness standard as part of a Fourth Amendment inquiry.5

In June 2017, in Lowry v. City of San Diego, the U.S. Court of Appeals for the Ninth Circuit sitting en banc upheld a district court's grant of summary judgment, dismissing a claim for use of excessive force in violation of 42 U.S.C. 1983 in the context of "bite and hold" training for police dogs.6 One member of the en banc panel dissented, arguing that a reasonable jury could find that the force was severe and the government's interest in the use of that force did not outweigh the intrusion; consequently, the use of force was "unreasonable."7

This Comment argues that the majority in Lowry incorrectly labeled the amount of force in this case as "moderate" and resolved this case on summary judgment when it should have been left for a jury to evaluate.8 Part I of this Comment discusses the development of the "objective reasonableness" test under the U.S. Supreme Court's 1989 decision Graham v. Connor as a means of evaluating claims under 42 U.S.C. 1983 for use of excessive force in violation of the F ourth Amendment to the U.S. Constitution.9 Part II explains the majority's opinion after the en banc rehearing of Lowry, the relevant case law on police dogs, and how the precedent cases were used to support different conclusions between the first appeal and rehearing.10 Lastly, Part III argues that the Ninth Circuit erred in maintaining the district court's evidentiary rulings and should not have upheld grant of summary judgment because the factintensive Graham analysis is best left to a jury and it precluded an examination of municipal liability.11

I. EXCESSIVE FORCE AND "OBJECTIVE REASONABLENESS"

Section A of this Part will develop and discuss the history of excessive force claims against police officers in the context of police dogs and will lay out the governing constitutional provisions and subsequent judicial standards applied.12 Section B of this Part will review the Fourth Amendment objective reasonableness test that was developed in Graham and subsequently used as the foundation for analysis throughout Lowry.13 Lastly, Section C of this Part will provide the factual and procedural history of Lowry.14

A. History of Constitutional Protections Against Use of Excessive Force by Police Officers

Claims of use of excessive force by police officers are most often brought in federal court under 42 U.S.C. 1983, which authorizes private parties to enforce their federal constitutional rights against defendants.15 Over time, the courts have distinguished between the different constitutional protections and corresponding standards that are used to evaluate excessive force claims in different contexts.16

Prior to the U.S. Supreme Court's 1989 decision in Graham, early analysis of excessive force claims derived from several different constitutional provisions.17 Courts either applied substantive due process or assumed that there was a basic "right to be free from excessive force" within in the principles of 1983 rather than enumerated constitutional rights. …

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