Excessive Force, Police Dogs, and the Fourth Amendment in the Ninth Circuit: The Use of Summary Judgement in Lowry v. City of San Diego

On June 6, 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 under 42 U.S.C. § 1983 for use of excessive force in violation of the Fourth Amendment to the U.S. Constitution, in the context of “bite and hold” training for police dogs. This Comment argues that although the use of force in Lowry may have been reasonable, the court was incorrect in deciding this question as a matter of law. The fact-intensive objective reasonableness test should only be resolved through summary judgment on those rare occasions where the facts of the situation are not in dispute and the answer is clear as a matter of law.