CA9: City’s policy on dogs that attacked innocent worker asleep in building keeps city in case

Plaintiff stopped at work after an evening of drinking to sleep on the couch rather than drive home. She got up to pee in the night and accidentally set off the building silent burglar alarm, and she went back to the couch to sleep. Police arrived with a dog to check the building. They knew the dog would attack any person it encountered. Plaintiff was asleep and didn’t respond to police commands. The dog found her and bit her face. Summary judgment for the city reversed. “A reasonable jury could find that police officers responding to an office building’s burglar alarm used excessive force when they deliberately unleashed a police dog that they knew might well ‘rip[] [the] face off’ any individual who might be present in the office. Because a reasonable jury could find that the force used was excessive and because the City conceded that the use of the force involved was in conformance with its policy, the panel reversed the district court’s summary judgment in favor of the City and remanded for further proceedings.” Lowry v. City of San Diego, 2016 U.S. App. LEXIS 5989 (9th Cir. April 1, 2016) (2-1 (still no city liability)).