An en banc appeals court has reversed a three-judge appeal court panel’s ruling and held San Diego cannot be held liable in a case where a woman who decided to spend the night in her office was bitten by a police dog.

In February 2010, Sara Lowry went out with a few friends after work and consumed a number of alcoholic drinks, according to court papers in Sara Lowry v. City of San Diego. 

Shortly thereafter, she went to the bathroom where, unbeknownst to her, she set off a burglar alarm, then returned and fell back asleep on the couch in her office.

Responding to the burglar alarm, three policemen, including Sgt. Bill Nulton with his police service dog, Bak, went to the office. After issuing verbal warnings that the sleeping Ms. Lowry did not hear, they entered the office suite.

When they made their way into the office where Ms. Lowry was sleeping, the dog immediately jumped on top of Ms. Lowry and attacked her. She was left with a large gash on her lip that was bleeding profusely and needed three stitches, the ruling said.

Ms. Lowry filed suit against the city of San Diego, alleging a violation of her Fourth Amendment Rights, which guarantees people's right “to be secure.”

The U.S. District Court in Pasadena, California, dismissed the case, concluding the force used against Ms. Lowry was “moderate” because the dog's encounter with her was “very quick” and her injuries were “slight.” On appeal, a three-judge panel overturned that ruling in a 2-1 decision last year.

In its en banc, 10-1 ruling Tuesday, the 9th U.S. Circuit Court of Appeals in San Francisco ruled in the city’s favor. “From the perspective of a reasonable officer on the scene, the type and amount of force inflicted was moderate, the city had a strong interest in using the force, and the degree of force used was commensurate with the city’s interest in the use of that force,” said the majority ruling.

The dissenting opinion by Chief Judge Sidney R. Thomas said, “In my view, the district court erred in concluding that no reasonable jury could find that excessive force constitutional violation had occurred.”

The city of San Diego is self-insured, said a spokeswoman at the city’s risk management department.