A woman who was attacked by a Santa Clara police dog will not be able to claim the bites she suffered amounted to a violation of her constitutional rights, because the "K-9 officer" acted on its own and the dog's police officer handler never intended to restrain the woman, a judge has ruled.
The ruling does not end the case entirely. However, it would block Silva from moving forward with claims against the city for violation of her Fourth Amendment rights, as well as her rights under California's Bane Act. It also would end her claim against the city and the officer for civil battery.
The lawsuit landed in court in 2023, months after Silva was attacked by a city of Santa Clara police dog, also known as a K-9 officer, while visiting the Santa Clara Youth Soccer Park with her dog.
According to court documents, McColloch was in that park on July 9, 2022, performing training exercises with his K-9 partner when Silva and her dog reportedly entered the park.
According to court documents, McColloch noticed Silva and her dog immediately, warned her of the police dog, and shouted at her to leave.
However, before she could leave, the police dog attacked, charging at her and pursuing her out of the park's entrance.
According to court documents, McColloch did not command the dog to attack. Rather, the dog had attacked of its own volition, or "self-deployed," according to the narrative.
According to court documents, McColloch had immediately attempted to restrain the dog, but had slipped and broken a toe and his foot in the process. According to the court decision's narrative, McColloch "stumbled" over to the scene outside the park, where his police dog was actively biting the woman on the ground.
According to court documents, the officer restrained the dog, but not before Silva had suffered six bite wounds on her arm, measuring 24 centimeters and requiring 26 stitches to close.
She also allegedly suffered nerve damage in her arm during the attack, allegedly causing her to lose feeling in the arm.
According to court documents, McColloch could have used verbal commands or a remote shock collar to attempt to stop the attack, but instead chose to hobble over to physically restrain the animal.
Silva then sued the city and McColloch.
Among other allegations, Silva asserted the attack amounted to violations of her Fourth Amendment rights to be free from illegal police force and restraint without cause.
She further alleged the attack violated her rights under California's Tom Bane Civil Rights Act, which generally protects people from the use of force or threats by government agents in violation of their constitutional rights. The Bane Act would have allowed Silva to sue for money damages, including compensatory damages and three times any actual damages.
The city, however, asked the judge to grant summary judgment in their favor. Summary judgment is a ruling on claims granted by a judge before trial.
In her ruling, Judge Van Keulen agreed with the city that constitutional claims fall short because the plaintiff couldn't prove McColloch intended for any aspect of the attack to happen.
In short, the judge said Silva's rights couldn't be violated the dog, because no police officer ever intended for her to be detained, much less attacked.
"The critical fact is that immediately upon reacting to the K-9 officer self-deploying, Defendant McColloch slipped, broke his toe and fractured his foot," the judge wrote. "This undisputed fact negates any inference that Defendant McColloch objectively manifested an intent to restrain Plaintiff by failing to subsequently call off the K-9 officer before it bit Plaintiff (Silva).
"... Further, Defendant McColloch did not permit the K-9 officer to bite Plaintiff for an excessively long period, as he separated the K-9 officer from Plaintiff once he saw it was biting Plaintiff.
"In sum, no Fourth Amendment seizure occurred because the undisputed facts show that Defendant McColloch did not intend to seize Plaintiff."
Because the judge said there was no Fourth Amendment violation, there can also be no violation of the Bane Act, as those state law claims rest on establishing the larger federal constitutional claims.
And civil battery claims for excessive force further fail if a plaintiff cannot show that a law enforcement officer intended to attempt to restrain or arrest them, the judge said.
The judge directed both sides to update the court on remaining issues and decide whether to continue toward trial on those claims or reach a settlement.
Silva is represented by attorneys Adante D. Pointer, Patrick M. Buelna, Lateef H. Gray and Justin M. Thompson, of the firm of Pointer & Buelna LLP Lawyers for the People, of Oakland.
Santa Clara and McColloch are represented by attorney Jon A. Heaberlin, of Rankin Stock Heaberlin ONeal, of San Jose.