Noah Feldman: A police dog bites a woman, and now it's a court case

Sam Lowry was bitten in the lip by Bak, a Sam Diego police dog, while she slept. Photo / Getty Images

Dog bites man may not be a news story - but in nine western American states, it's grounds for a constitutional case.

The US Court of Appeals for the 9th Circuit has allowed a lawsuit by a woman who fell asleep in her office after a hard night's drinking, accidentally tripped a burglar alarm, and was bitten in the lip by a San Diego police dog responding to the alarm.

What makes the case so interesting is that the San Diego Police Department trained Bak, a service dog, to enter a room and bite the first person she saw. Her training was to hold the bite in place until her handler ordered her to release her grip.

The US constitutional issue is whether this technique, used against someone who has made no resistance, violates the bite victim's Fourth Amendment right not to be detained by the use of excessive force. This question is especially charged given the troubling use of police dogs to subdue protesters.

After a night out Sara Lowry returned to her workplace and fell asleep on her office couch. Lowry, who had consumed five vodka-based cocktails, woke to use the bathroom, then went back to sleep. Unbeknownst to her, she'd set off a burglar alarm.

The police responded by sending three officers and Bak to the building where Lowry was asleep. Noting that there was no sign of forced entry, they entered. The door to Lowry's office suite was ajar. From outside, Bak's handler, Sergeant Bill Nulton, called out: "This is the San Diego Police Department! Come out now or I'm sending in a police dog! You may be bitten!" Lowry didn't hear or respond. A minute or so later, Nulton sent Bak into the office. The service dog behaved exactly as trained. She located Lowry and bit into her lip, almost penetrating through it, and she held on until Nulton realised what had happened and pulled her off. By then Lowry was bleeding profusely. She got three stitches in the wound.

In pre-trial discovery, it came out that Bak wasn't trained to tell the difference between good guys and bad guys. She and her canine colleagues are trained to "bite and hold" the first person they encounter after being unleashed, even if it's a baby.

The police department says it tells officers not to unleash dogs in homes unless they know the residents and their pets aren't there. But Lowry was in her office, so that guideline didn't apply.

This sounds like a bad policy to me - but does it violate the US Constitution? A district court said that it did not, and blocked the case from going forward.

A divided 9th-Circuit panel reversed, reinstating the lawsuit. The court didn't say the policy was definitely an exercise of excessive force. Rather, the court held that a reasonable jury could find it to be one. A jury will now hear the case, unless San Diego settles it.

It's surely excessive to bite and hold a sleeping person.

But the reason the policy should be found unconstitutional isn't just that Lowry happened to be sleeping.

To see what was wrong here, we need to ask if the San Diego police could train dogs to do something less potentially catastrophic than biting the first person they see in the face and holding on.

If the answer is yes, then Bak's training should count as excessive force. Police officers wouldn't ordinarily be allowed to injure someone so seriously before identifying the person as a dangerous suspect.

The police didn't see Lowry, and she wouldn't have qualified as dangerous once they did. Notably, Lowry wasn't a suspect to Bak, either. She was just the first person Bak encountered after being unleashed.

If there is no other way to train dogs to help in arrests short of "bite and hold," then the problem is using dogs in the first place.

It's reasonable for police officers to get help from our best friends in protecting themselves.

But not if that guarantees injuries that would be unconstitutional if the police inflicted them with fists or guns.