The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14386
Non-Argument Calendar
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D.C. Docket No. 8:18-cv-01646-JSM-SPF
TACARA ANDERSON,
on behalf of minor child MA,
Plaintiff - Appellant,
versus
JONATHAN VAZQUEZ,
Officer,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 6, 2020)
Before GRANT, LUCK, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Plaintiff Tacara Anderson, on behalf of her minor son M.A., appeals the
district court’s order granting summary judgment in favor of Defendant Officer
Jonathan Vasquez in Plaintiff’s civil action, filed pursuant to 42 U.S.C. § 1983.
Plaintiff contends that a policeman’s use of a K-9 to stop M.A. constituted
excessive force in violation of the Fourth Amendment. No reversible error has
been shown; we affirm.
This appeal arises out of events that occurred on the night of 22 July 2014.
Viewed in the light most favorable to Plaintiff, these facts are pertinent.
Undercover detectives with the St. Petersburg Police Department were conducting
surveillance near an apartment complex that had experienced recently a series of
auto burglaries.1 The detectives communicated with each other over the police
radio and described their observations at the actual time the events occurred. At
some point, Officer Vasquez -- who was not involved in the surveillance activities
-- began listening to the detectives’ radio communications.
After midnight, the detectives observed three persons walking in and around
vehicles parked at the apartment complex. A transcript of the radio transmission
shows that the detectives described one of the three people as being “fairly tall” or
1
In Florida, auto burglary is a felony offense. See Fla. Stat. § 810.02.
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the “tall one” and referred to the other two people as “the small ones,” “the little
ones,” or the “smaller guys.” Words like boys or juveniles or children were not
used. As the detectives watched, they observed two of the persons enter a vehicle
and take something out. The third person -- later identified as M.A. -- then assisted
the others in concealing the stolen item in a backpack. At that point, the detectives
requested back-up from a K-9 officer; Officer Vasquez, hearing the request,
responded to the call.
Officer Vasquez arrived at the location specified by the detectives and got
his K-9 partner, Ares, out of the car. Officer Vasquez then saw three figures
walking along the street about forty to fifty feet away. Officer Vasquez
announced, “Police. K-9. Get on the ground or I will release my dog.” The three
suspects looked in Officer Vasquez’s direction and then immediately took off
running. It was dark out. Officer Vasquez swears he was unable to see facial
features or determine the age or size of the suspects -- he saw only that the figures
were attempting to flee. Officer Vasquez ran after the three suspects with Ares on
a leash. Officer Vasquez then shouted a second warning; the three suspects
ignored the warning and continued running. At that point, Officer Vasquez
released Ares.
Officer Vasquez turned a corner and saw that Ares had caught one of the
suspects (M.A.). Immediately, Officer Vasquez gave the command for the dog to
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let go; and Ares did. Officer Vasquez says it was not until M.A. was caught that
Officer Vasquez saw M.A.’s size. At the time of the incident, M.A. was 12 years’
old, 4 feet 10 inches tall, and weighed 75 pounds.2 Officer Vasquez called
immediately for medical assistance, and M.A. was carried to the hospital. M.A.
suffered significant injuries to the back of his right leg as a result of the dog bite.
According to M.A., the entire incident -- from when Officer Vasquez first
called out and M.A. started running to when M.A. was bitten -- lasted about thirty
to forty seconds. Officer Vasquez then acted “quickly” in commanding the dog to
let go. About the reason M.A. ran from Officer Vasquez, M.A. explained that --
given how dark it was -- M.A. did not know that Officer Vasquez (who was in
uniform) was a police officer and thought, instead, that he was the owner of the car
that had just been burglarized. M.A. said no objects stood between M.A. and
Officer Vasquez that would have obstructed Officer Vasquez’s view of M.A.
during the ensuing chase.
Plaintiff filed this civil action against Officer Vasquez, in his individual
capacity, asserting a claim for excessive force in violation of the Fourth
Amendment. The district court granted Officer Vasquez’s motion for summary
judgment: a motion asserting qualified immunity. The district court concluded that
2
These measurements are not the only ones to the point in the record for M.A. Plaintiff’s
complaints said M.A. was somewhat bigger: standing 5 feet tall and weighing 80 pounds. We
have used the smaller numbers for our decision-making.
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Plaintiff had demonstrated no constitutional violation and no violation of a
constitutional right that was already clearly established.
We review de novo a district court’s grant of summary judgment, viewing
the evidence and all reasonable factual inferences in the light most favorable to the
nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
“Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). To
avoid summary judgment based on qualified immunity, Plaintiff carries the burden
and must show both that Officer Vasquez violated a federal right and that the right
was already clearly established when Officer Vasquez acted. See id. The doctrine
of qualified immunity, when applied properly, “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563
U.S. 731, 743 (2011).
A federal right is “clearly established” when “at the time of the officer’s
conduct, the law was sufficiently clear that every reasonable official would
understand that what he was doing is unlawful.” D.C. v. Wesby, 138 S. Ct. 577,
589 (2018) (quotations omitted). “We do not require a case directly on point, but
existing precedent must have placed the statutory or constitutional question beyond
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debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasis added); see
Wesby, 138 S. Ct. at 589. In determining whether the law is clearly established,
courts must consider “whether the violative nature of particular conduct is clearly
established . . . in the light of the specific context of the case, not as a broad
general proposition.” Mullenix, 136 S. Ct. at 308 (emphasis in original).
“Although suspects have a right to be free from force that is excessive, they
are not protected against a use of force that is necessary in the situation at hand.”
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quotations
omitted). “[T]he right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or threat thereof to effect
it.” Graham v. Connor, 490 U.S. 386, 396 (1989). An officer’s use of force is
unconstitutionally excessive only if the force used was “objectively [un]reasonable
in light of the facts and circumstances confronting” the officer. Id. at 397
(quotations omitted).
“In determining the reasonableness of the force applied, we look at the fact
pattern from the perspective of a reasonable officer on the scene with knowledge of
the attendant circumstances and facts, and balance the risk of bodily harm to the
suspect against the gravity of the threat the officer sought to eliminate.”
McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). The merits of
excessive force claims are fact sensitive. We must consider all of the
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circumstances; among other things, “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396.
We stress that “[t]he ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Id. And we must allow “for the fact that police
officers are often forced to make split-second judgments -- in circumstances that
are tense, uncertain, and rapidly evolving -- about the amount of force that is
necessary in a particular situation.” Id. “We are loath to second-guess the
decisions made by police officers in the field.” Vaughan v. Cox, 343 F.3d 1323,
1331 (11th Cir. 2003).
The evidence, viewed in the light most favorable to Plaintiff, shows that
Officer Vasquez acted objectively reasonably under the circumstances when he
released Ares. Officer Vasquez knew that detectives had observed three suspects
committing vehicular burglary: a felony offense. See Fla. Stat. § 810.02. He and
his dog had been called to the scene as back-up by other police officers who had
been watching the suspects. After Officer Vasquez saw the suspects and
announced himself, the three suspects attempted immediately to evade arrest by
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flight; they refused two orders to stop and get on the ground. It was very dark and
was late -- after midnight.
Given the felony suspects’ noncompliant behavior, that the suspects carried
a backpack that could have concealed a weapon (at the time, the police did not
know what had been taken from the vehicle), and that the suspects fled at night
through a populated area where an extended flight might well be successful, an
objective officer in Officer Vasquez’s position could have believed reasonably that
these fleeing felony suspects posed a danger to others. Faced with a “tense,
uncertain, and rapidly evolving” situation, Officer Vasquez made a split-second
decision to use his K-9 to gain control of the situation and to lessen the risk of
danger. Under these circumstances, we cannot say that Officer Vasquez’s decision
to use his dog was constitutionally unreasonable.
On appeal, Plaintiff contends that Officer Vasquez knew or should have
known that M.A. was a child or a small person; and Plaintiff then argues that the
use of force employed must therefore be unreasonable. We accept M.A.’s
testimony that no vehicles or objects stood between him and Officer Vasquez.
Still, nothing adequately contradicts Officer Vasquez’s testimony that -- given the
darkness, that the suspects were running, and the speed with which the events
unfolded -- he was unable to see the suspects’ facial features or to determine the
individual size of each of the suspects. Officer Vasquez could determine only that
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three suspects (one of whom was taller than the other two) were running in a group
in an attempt to evade arrest. Moreover, at no time during the pertinent radio
transmissions did the detectives -- who had been surveilling the suspects for
several minutes and who called for the K-9 back-up -- indicate that the suspects
were juveniles. The detectives, instead, described the suspects as being “tall,”
“small,” or “little” -- as one suspect related to another. Those adjectives alone
would not have put a reasonable officer on notice that the suspects might have
been juveniles or child-like in size. (In passing, Officer Vasquez -- who is 5 feet 6
inches in height and who weighs 150 pounds -- testified in deposition that he
frequently gets called “small” or “little” himself).
On this record, nothing evidences that a reasonable officer in Officer
Vasquez’s position must have known that M.A. was a juvenile or that Officer
Vasquez’s use of the K-9 constituted a violation of the Fourth Amendment.
By the time of this incident in 2014, this Court had some precedent about the
constitutionality of using a K-9 to apprehend a suspect. In Preister v. City of
Riviera Beach, we concluded (without similar precedent) that an officer was
unentitled to qualified immunity from a claim for excessive force when the officer
had ordered his dog to attack a burglary suspect -- and allowed the dog to bite
repeatedly the suspect for at least two minutes -- after the suspect had submitted
immediately to the officers and complied with the officers’ orders to get on the
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ground. 208 F.3d 919, 927 (11th Cir. 2000). In Crenshaw v. Lister, we concluded
that an officer acted objectively reasonably when he used a K-9 to apprehend an
armed robbery suspect who had fled violently from police, crashing his car into a
marked police car and then ran into dense woods at night. 556 F.3d 1283, 1291-92
(11th Cir. 2009). Then, in Edwards v. Stanley, we determined that the initial use
of a K-9 to track and to subdue a fleeing suspect who had committed “a non-
serious traffic offense” was constitutionally reasonable, but that permitting the K-9
to then attack the suspect for five to seven minutes constituted excessive force.
666 F.3d 1289, 1295-96 (11th Cir. 2012).3
While these cases provide some guidance about the unlawful use of K-9
force, the circumstances presented in this appeal are far different from the
circumstances involved in Priester, Crenshaw, and in Edwards. Most important --
unlike the circumstances in Priester and in Edwards that led to the conclusion that
the officer’s use of force was unconstitutionally excessive, nothing in this record
evidences that Officer Vasquez permitted Ares to attack M.A. for an unduly
prolonged period. To the contrary, the entire incident here lasted only thirty to
forty seconds; and Officer Vasquez immediately issued the command for Ares to
let go as soon as Officer Vasquez saw that M.A. had been caught.
3
The opinions in these three cases say nothing about the arrested person’s age or physical size.
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Plaintiff correctly concedes that no binding precedent existed in 2014 that
involved circumstances factually similar to the pertinent circumstances presented
in this case. Plaintiff contends, instead, that Officer Vasquez’s conduct -- given
the state of the law generally -- constituted an “obvious” Fourth Amendment
violation. We reject this argument.
The Supreme Court has stressed repeatedly that the “clearly established”
standard requires a “high degree of specificity.” See Wesby, 138 S. Ct. at 590
(quotations omitted); Mullenix, 136 S. Ct. at 309; see also Gates v. Khokar, 884
F.3d 1290, 1302-03 (11th Cir. 2018) (collecting cases). Specificity is particularly
important in Fourth Amendment cases, where -- given the many variables
confronting an officer on the scene that must be considered -- it is often difficult
for officers to predict on the spot how the pertinent legal doctrine (here, excessive
force) will apply in the precise factual situation arising before them. See Wesby,
138 S. Ct. at 590; Mullenix, 136 S. Ct. at 308.
We have recognized a rare “narrow exception” to the general rule requiring
particularized case law to establish clearly the law: the obvious violation. Still,
facts and context dictate case outcomes: not general legal propositions. This
“narrow exception” applies in circumstances where an “official’s conduct lies so
obviously at the very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent to the official, notwithstanding
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the lack of caselaw.” See Priester, 208 F.3d at 926. For an official to lose
protection under qualified immunity, in some way the “pre-existing law must
dictate, that is, truly compel (not just suggest or allow or raise a question about),
the conclusion for every like-situated, reasonable government agent that what
defendant is doing violates federal law in the circumstances . . ..” Id. at 927. The
law beforehand must give genuine notice.
Nothing about the pre-existing law tied to the Fourth Amendment’s
prohibitions, especially with the use of K-9s to apprehend suspects, came close to
compelling the definite conclusion for every reasonable police officer that Officer
Vasquez’s use of force was constitutionally unreasonable under the circumstances
presented to him in this case. Tiny differences in the facts of cases, for example,
matters of lighting, of time and place, can justify entirely different outcomes for
the question of whether police conduct was consistent or inconsistent with the
federal law. IF this case presents a constitutional violation at all (and we say
“no”), this case presents no constitutional violation that was obvious when the
officer acted.
Officer Vasquez was entitled to qualified immunity from Plaintiff’s claim
for excessive force. Accordingly, we affirm both the district court’s grant of
summary judgment in favor of Officer Vasquez and the district court’s denial of
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Plaintiff’s motion to alter or amend the final judgment.
AFFIRMED.
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