A woman who decided to spend the night in her office, and whose lower lip was almost bitten through by a police dog, can pursue litigation against the city of San Diego, says an appellate court in overturning a lower court ruling.

In February 2010, Sara Lowry went out with a few friends after work and consumed a number of alcoholic drinks, according to Friday's ruling by the 9th U.S. Circuit Court of Appeals in San Francisco 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 her couch.

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.

The sergeant told her shortly afterwards, “You're very lucky. She could have ripped your face off.” The sergeant testified during a deposition that “police dogs are not trained to differentiate between 'a young child asleep or ... a burglar standing in the kitchen with a butcher knife' and will simply bite the first person they find.”

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.”

A three-judge panel overturned that ruling in a 2-1 decision. By focusing on the amount of force used against Ms. Lowry, the District Court “failed to consider the type of force employed,” said the majority ruling.

“When we consider both the type and the amount of force used against Lowry and draw all inferences in her favor, we have little trouble concluding that the intrusion on Lowry's Fourth Amendment rights was severe,” said the ruling, which stated also that burglars rarely pose a threat.

A reasonable jury could find that the police officers “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,” said the court in remanding the case for further proceedings.

The dissenting opinion said, “Thanks to the majority opinion, officers will be discouraged from protecting themselves and encouraged to risk their lives” by either not using a dog, or keeping one so closely tethered they expose themselves to danger.