On May 6, 2020, the Eleventh Circuit Court of Appeals decided Anderson v. Vazquez[i], which is instructive regarding the use of police canines as a use of force under the Fourth Amendment. The relevant facts of Anderson, taken directly from the case, are as follows:
Undercover detectives with the St. Petersburg Police Department were conducting surveillance near an apartment complex that had experienced recently a series of auto burglaries. 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 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 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. 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.[ii]
The plaintiff sued Officer Vasquez and alleged that his use of the canine on a fleeing juvenile suspect was excessive force under the Fourth Amendment. The district court granted the officer’s motion for qualified immunity, and the plaintiff appealed to the Eleventh Circuit Court of Appeals.
At the outset, the Eleventh Circuit noted that the Supreme Court has previously held that
[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, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)[iii]
The court also noted that the officer’s use of force must be reasonable based on the specific facts and circumstances of a case. The court then stated
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 circumstances; among other things, “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.[iv]
The court of appeals also noted that the officers should be given latitude in their use of force decisions because situations develop rapidly, and split-second decisions are required. Specifically, the court stated
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)[v]
The court of appeals also examined Eleventh Circuit precedent regarding the use of police canines. The first case examined was Priester v. City of Riviera[vi], in which an officer ordered his canine to attack a burglary suspect and allowed the dog to continue to attack the suspect for “at least two-minutes” after the suspect had stopped resisting. The court held that the officer was not entitled to qualified immunity in this situation.
The second case was Crenshaw v. Lister[vii], in which an officer used his canine to apprehend an armed robbery suspect who crashed his car and fled into the woods at night. The court held that this was reasonable under the Fourth Amendment.
The final case was Edwards v. Stanley[viii], in which an officer used his canine to track and subdue a fleeing non-violent traffic offender. The court held that tracking the suspect was reasonable under the Fourth Amendment, however, allowing the canine to attack the suspect for five to seven minutes was excessive force.
After examining the cases above, the court of appeals noted that none of the cases fit squarely into the issue of Anderson’s case: Whether it was unreasonable under the Fourth Amendment to release and canine to capture and subdue a fleeing, 12-year-old felony suspect who was 4 feet, 10 inches tall and weighed 75 lbs.
The court of appeals then set out to apply the use of force principles and precedent discussed above to the facts of Anderson’s case. First, the court noted that detectives had observed three suspects breaking into cars and stealing unknown items. Second, it was late at night (after midnight) and very dark; the suspects were described as “tall,” “small,” and “little” as a way of distinguishing the suspects. There was no evidence that any of the detectives or Officer Vasquez were able to see facial details of the suspects or any characteristics that would have put them on notice that one of the suspects was twelve years old. Third, Officer Vasquez had been called to the scene as back-up for the detectives. Fourth, Officer Vasquez observed the suspects and announced himself. The suspect’s fled, and he ordered them to stop and warned them he would release his dog. Additionally, the court of appeals considered that
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.[ix]
Therefore, the court held that the officer’s decision to use his dog was not unreasonable under the Fourth Amendment. Additionally, the court noted that nothing in court precedent would put a reasonable officer on notice that he could not use his canine in such a circumstance as occurred in the case at hand.
As such, the court of appeals affirmed the grant of qualified immunity for Officer Vasquez.
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Citations
[i] No. 19-14386 (11th Cir. Decided May 6, 2020)
[ii] Id. at 2-4
[iii] Id. at 6 (emphasis added)
[iv] Id. at 6-7 (emphasis added)
[v] Id. at 7 (emphasis added)
[vi] 208 F.3d 919 (11th Cir. 2000)
[vii] 556 F.3d 1283 (11th Cir. 2009)
[viii] 666 F.3d 1289 (11th Cir. 2012)
[ix] Anderson at 8 (emphasis added)
