United States District Court, M.D. Florida, Tampa Division
S. MOODY, JR., UNITED STATES DISTRICT JUDGE.
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.
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
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).
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).
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
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.
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
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.
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.
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.
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
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.
respect to Atwater’s size, Vazquez repeatedly testified
that he had no idea Atwater was only 4 feet, 10 ...