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Anderson v. Vasquez

United States District Court, M.D. Florida, Tampa Division

September 30, 2019

TACARA ANDERSON, on behalf of minor child, MA, Plaintiff,



         THIS CAUSE comes before the Court upon Defendant Police Officer Jonathan Vazquez’s Dispositive Motion for Summary Judgment (Dkt. 40) and Plaintiff’s Response in Opposition (Dkt. 48). The Court, having reviewed the motion, response, record evidence, and being otherwise advised in the premises, concludes that the motion should be granted. Specifically, Defendant is entitled to qualified immunity on Plaintiff’s excessive force claim.


         Plaintiff Tacara Anderson filed a section 1983 excessive force claim against Defendant Officer Jonathan Vazquez on behalf of her minor son, Michael Atwater. The amended complaint alleged that Atwater, who was twelve years old, 60 inches tall, and weighed 80 pounds at the relevant time, suffered severe injuries to his right leg as a result of excessive force on the part of Officer Vazquez when he released a K-9 on Atwater.

         According to the amended complaint, officers from the St. Petersburg Police Department were pursuing Atwater and his friends after the officers saw them looking into vehicles. One of the boys took something out of a Ford pick-up truck. The boys ran from the officers and Officer Vazquez released the K-9. The K-9 “took [Atwater] down, ” Officer Vazquez said, “Get him! Good boy, ” watched the K-9 repeatedly bite Atwater, and Atwater was so scared that he lost control of his bladder. The amended complaint alleged in detail the severe extent of Atwater’s damages. It also alleged several facts that, if true, provided a strong inference that Officer Vazquez knew Atwater was a minor before he released the K-9. (Dkt. 3).

         Officer Vazquez filed a dispositive motion to dismiss the amended complaint, arguing he was entitled to qualified immunity. The Court denied the motion because the Court concluded that the allegations that Officer Vazquez knew Atwater was a minor and permitted the K-9 to continue to bite Atwater beyond what was reasonably necessary precluded a finding of qualified immunity at the motion to dismiss stage. The Court noted that Officer Vazquez could renew his argument at the summary judgment stage. (Dkt. 12).

         The parties conducted discovery and now Officer Vazquez has filed the instant motion for summary judgment. He argues that the undisputed record evidence makes clear that he is entitled to qualified immunity. The Court agrees. The record, which the Court now summarizes, paints a portrait different from the complaint.


         This case began in St. Petersburg, Florida, on Monday, July 22, 2014, shortly after midnight. At that time, undercover detectives with the St. Petersburg Police Department were conducting surveillance in an apartment complex that recently experienced a rash of auto burglaries. The detectives began surveilling three individuals walking in and around the apartment complex. The three individuals were later identified as Atwater, Harry Kato, and Marquil Evans.

         The record reflects that Atwater appeared to be acting as a “look out” while Kato and Evans tried opening cars. At one point, the detectives observed Kato and Evans enter an unlocked Ford Truck and remove an unknown item. Atwater assisted with concealing the item in a backpack Kato was wearing.

         Units were called in to form a perimeter in order to apprehend the suspects. The transcript of the police radio communications during this time describes the action of the three individuals in real time as they are being surveilled by the officers. Notably, the transcript does not identify which officer is speaking-it just references “officer.” Early in the transcript, one of the officers states that the individuals are not “looking at anything” and “may just be walking home to those apartments.” (Dkt. 40-5 at 3:10-12). Then an officer observes that the individuals stopped walking and are “standing in the alley.” Id. at 15-16.

         The officers continue to observe the individuals’ actions and discuss the individuals’ locations. Throughout the transcript, the individuals are described as: “tall one, ” “fairly tall, has got a hat on backwards, light-colored shirt, ” “small one, ” wearing a backpack, “little one, ” “smaller guy, ” and “little guy.” An officer is heard saying that “[t]hey’re in the white van, guys. Tall one is in the white van. K-9 monitoring?” Id. at 11:18-19. The officers continue to discuss the three individuals’ actions. At one point an officer says: “Running south, running south, running south.” And another officer states: “I got the dog out. Don’t move. Don’t move.” Id. at 12:19-22. Around this same time, Officer Vazquez’s K-9, Ares, apprehends Atwater.

         Atwater was twelve years old, weighed 75 pounds, and was 4 feet, 10 inches at the time of the incident. Atwater asserts that Officer Vazquez’s use of Ares to apprehend him was excessive in light of Atwater’s status as a juvenile, and in light of his incredibly small stature.

         The record reflects the following undisputed facts with respect to the circumstances surrounding Officer Vazquez’s decision to release Ares. Officer Vazquez had been employed with the St. Petersburg Police Department since 2007; he started with the K-9 unit in 2013. He testified that on the night of July 22, 2014, he was working with his dog Ares when undercover detectives observed three individuals commit an auto burglary. Officer Vazquez testified that it was very dark outside and several vehicles were between him and the three individuals. At no time were the three individuals referred to as “children, ” “juveniles, ” or “minors.” The three individuals started to run after Officer Vazquez yelled, “St. Petersburg Police K-9. Get on the ground or I’ll release my dog.” Officer Vazquez testified that he could see three figures running, but not that they were juveniles. The size of the individuals was not something he could determine due to the darkness. From his understanding of the radio communications they were described as “three guys, a taller one and smaller ones.” (Dkt. 41 at 57:19-23). Specifically, he stated: “Size was not something I was able to gather in the seconds that it took for them to run. It was, I could see three individuals running from where I challenged them. I couldn’t tell you how tall the tallest one was, and I couldn’t tell you how short the shortest one was.” Id. at 58:1-6. He testified there was a concern that one of the individuals could have a weapon because one suspect wore a backpack.

         Officer Vazquez chased the suspects with Ares on the leash until he was confident that Ares was able to see the suspects and was targeted on them. Ares lifted his head, looked in the direction of the suspects, and Officer Vazquez released him. Officer Vazquez testified that he did not see the size of the captured suspect (Atwater) until Ares made the apprehension. He testified that the entire situation was fluid: “As the dog is running, [the three suspects] are running as well.” Id. at 67:18-23. As soon as Officer Vazquez saw Atwater’s size, he gave the release command for Ares to release Atwater and Ares released Atwater. Officer Vazquez then immediately called for medical rescue and Atwater was transported to All Children’s Hospital.

         With respect to Atwater’s size, Vazquez repeatedly testified that he had no idea Atwater was only 4 feet, 10 ...

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