for the southern district of florida...

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

Case No.:

CHARLENE BENBOW, as personal

Representative of the Estate of ANTONIO

LEE ANDREW,

Plaintiff,

v.

MIAMI-DADE COUNTY, a municipal entity;

VERNANDO VILLA, ALAIN CRUZ,

MARIO FERGUSON, ARMANDO CALZADILLA,

CALVIN JAMES, STANLEY DOR,

GERMAN ALECH, HUMBERTO PEREZ,

JOSE GONZALEZ, MIKE MADRUGA,

PHILLIP FRAZIN, MANUEL MALGOR, and

LUIS SIERRA, in their individual and

official capacities as Miami-Dade County Police Officers,

Defendants.

________________________________________________/

COMPLAINT

Plaintiff CHARLENE BENBOW, as Personal Representative for the Estate of

ANTONIO LEE ANDREW (hereinafter referred to as “Andrew”), by and through undersigned

counsel, hereby sues Defendants MIAMI-DADE COUNTY (hereinafter referred to as “the

County”), VERNANDO VILLA (hereinafter referred to as “Villa”), ALAIN CRUZ (hereinafter

referred to as “Cruz”), MARIO FERGUSON (hereinafter referred to as “Ferguson”),

ARMANDO CALZADILLA (hereinafter referred to as “Calzadilla”), CALVIN JAMES

(hereinafter referred to as “James”), STANLEY DOR (hereinafter referred to as “Dor”),

GERMAN ALECH (hereinafter referred to as “Alech”), HUMBERTO PEREZ (hereinafter

referred to as “Perez”), JOSE GONZALEZ (hereinafter referred to as “Gonzalez”), MIKE

MADRUGA (hereinafter referred to as “Madruga”), PHILLIP FRAZIN (hereinafter referred to

Case 1:13-cv-20452-KMW Document 1 Entered on FLSD Docket 02/06/2013 of 30

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as “Franzin”), MANUEL MALGOR (hereinafter referred to as “Malgor”), and LUIS SIERRA

(hereinafter referred to as “Sierra”), and in support thereof alleges as follows:

NATURE OF THE ACTION

1. This action is brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983 and

the Florida Wrongful Death Act and arises out of the unlawful killing of ANTONIO LEE

ANDREW by Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech, Perez,

Gonzalez, Madruga, Frazin, Malgor and Sierra on June 30, 2011 in the Redlands, Miami-Dade

County, Florida. These officers were part of either the Miami-Dade County Police Department’s

Street Terror Offender Program (“STOP”) or Special Response Team (“SRT”) that lured a group

of men, including Andrew, to a county-owned “drug house” to commit a robbery of 20 pounds of

marijuana from a drug dealer, and then unlawfully and deliberately executed the entire group as

they approached the house, in violation of multiple department policies and well-established law.

JURISDICTION AND VENUE

2. Federal question jurisdiction is proper pursuant to 28 U.S.C. § 1331, 28 U.S.C. §

1343(3) and 28 U.S.C. § 1983, as Plaintiff’s claims arise out of the deprivation of Plaintiff’s

rights, privileges and immunities under the Constitution and laws of the United States. Plaintiff

seeks attorney’s fees and costs as prevailing party for these claims pursuant to 28 U.S.C. § 1988.

3. Supplemental jurisdiction is proper over Plaintiff’s state law claims, pursuant to

28 U.S.C. § 1367, because each such claim arises from the same case or controversy and from a

common nucleus of operative facts.

4. Venue in the United States District Court for the Southern District of Florida is

proper pursuant to 28 U.S.C. § 1391 because this is the judicial district in which the Defendants


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reside, and in which a substantial part of the events or omissions giving rise to Plaintiff’s claims

occurred.

PARTIES

5. Plaintiff, CHARLENE BENBOW, is a resident of Miami-Dade County, Florida

and is otherwise sui juris. CHARLENE BENBOW is the duly appointed Personal

Representative of the Estate of ANTONIO LEE ANDREWS. A true and correct copy of the

Letters of Administration and Order Appointing Personal Representative are attached hereto as

Composite Exhibit “A.”

6. Defendant, MIAMI-DADE COUNTY, is a municipal entity of the State of

Florida. The County operates and controls and the Miami-Dade Police Department (hereinafter

referred to as “MDPD”), STOP, SRT, its police officers, employees, agents and representatives,

including, but not limited to, Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech,

Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra. Pursuant to section 768.28, Florida

Statutes, Plaintiff sent a pre-suit notice letter to Miami-Dade County on August 26, 2011, which

was confirmed to have been received by Certified Mail/Return Receipt on September 9, 2011.

7. Defendant, VERNANDO VILLA, was and is, at all times material, a police

officer for the MDPD and was acting within the course and scope of his employment with the

MDPD. Defendant Villa is being sued in his individual capacity and his official capacity for acts

taken as a police officer for the MDPD. Defendant Villa’s MDPD badge number is 7866. Upon

information and belief, Defendant Villa has received nine (9) complaints since 2007, all of which

involved some alleged use of excessive force.

8. Defendant, ALAIN CRUZ, was and is, at all times material, a police officer for

the MDPD and was acting within the course and scope of his employment with the MDPD.


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Defendant Cruz is being sued in his individual capacity and his official capacity for acts taken as

a police officer for the MDPD. Defendant Cruz’s MDPD badge number is 5337.

9. Defendant, MARIO FERGUSON, was and is, at all times material, a police


MDPD. Defendant Ferguson is being sued in his individual capacity and his official capacity for

acts taken as a police officer for the MDPD. Defendant Ferguson’s MDPD badge number is

5544. Upon information and belief, Defendant Ferguson has received four (4) complaints since

2007, three (3) of which involved some alleged use of excessive force.

10. Defendant, ARMANDO CALZADILLA, was and is, at all times material, a

police officer for the MDPD and was acting within the course and scope of his employment with

the MDPD. Defendant Calzadilla is being sued in his individual capacity and his official

capacity for acts taken as a police officer for the MDPD. Defendant Calzadilla’s MDPD badge

number is 5303. Upon information and belief, Defendant Calzadilla has received four (4)

complaints since 2007, two (2) of which involved some alleged use of excessive force.

11. Defendant, CALVIN JAMES, was and is, at all times material, a police officer for


Defendant James is being sued in his individual capacity and his official capacity for acts taken

as a police officer for the MDPD. Defendant James’ MDPD badge number is 1090.

12. Defendant, STANLEY DOR, was and is, at all times material, a police officer for


Defendant Dor is being sued in his individual capacity and his official capacity for acts taken as

a police officer for the MDPD. Defendant Dor’s MDPD badge number is 5423.


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13. Defendant, GERMAN ALECH, was and is, at all times material, a police officer

for the MDPD and was acting within the course and scope of his employment with the MDPD.

Defendant Alech is being sued in his individual capacity and his official capacity for acts taken

as a police officer for the MDPD. Defendant Alech’s MDPD badge number is 2496. Upon

information and belief, Defendant Alech has received ten (10) complaints since 1996, three (3)

of which involve some alleged use of excessive force and four (4) of which involve an alleged

discharge of a firearm.

14. Defendant, HUMBERTO PEREZ, was and is, at all times material, a police


MDPD. Defendant Perez is being sued in his individual capacity and his official capacity for

acts taken as a police officer for the MDPD. Defendant Perez’s MDPD badge number is 1098.

Upon information and belief, Defendant Perez has received twenty-six (26) complaints since

1990, eight (8) of which involved an alleged discharge of a firearm and ten (10) of which involve

some alleged use of excessive force.

15. Defendant, JOSE GONZALEZ, was and is, at all times material, a police officer


Defendant Gonzalez is being sued in his individual capacity and his official capacity for acts

taken as a police officer for the MDPD. Defendant Gonzalez’s MDPD badge number is 3048.

Upon information and belief, Defendant Gonzalez has received seven (7) complaints since 1998,

three (3) of which involved an alleged discharge of a firearm and three (3) of which involve


16. Defendant, MIKE MADRUGA, was and is, at all times material, a police officer



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Defendant Madruga is being sued in his individual capacity and his official capacity for acts

taken as a police officer for the MDPD. Defendant Madruga’s MDPD badge number is 4499.

Upon information and belief, Defendant Madruga has received six (6) complaints since 2002,

two (2) of which involved an alleged discharge of a firearm and three (3) of which involve some

alleged use of excessive force.

17. Defendant, PHILLIP FRAZIN, was and is, at all times material, a police officer


Defendant Frazin is being sued in his individual capacity and his official capacity for acts taken

as a police officer for the MDPD. Defendant Frazin’s MDPD badge number is 3326. Upon

information and belief, Defendant Frazin has received twenty (20) complaints since 1993, nine

(9) of which involved an alleged discharge of a firearm and five (5) of which involve some

alleged use of excessive force.

18. Defendant, MANUEL MALGOR, was and is, at all times material, a police


MDPD. Defendant Malgor is being sued in his individual capacity and his official capacity for

acts taken as a police officer for the MDPD. Defendant Malgor’s MDPD badge number is 2718.

Upon information and belief, Defendant Malgor has received eighteen (18) complaints since

1994, five (5) of which involve an alleged discharge of a firearm and ten (10) of which involve


19. Defendant, LUIS SIERRA, was and is, at all times material, a police officer for


Defendant Sierra is being sued in his individual capacity and his official capacity for acts taken

as a police officer for the MDPD. Defendant Sierra’s MDPD badge number is 4378.


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20. All conditions precedent to bringing this lawsuit have been complied with.

GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS

A. Background on Antonio Lee Andrew

21. Antonio Lee Andrew was born on April 24, 1975 in Miami, Florida.

22. When Andrew was twelve (12) years old he was playing basketball with friends

in Sherbondy Park near Opa-Locka City Hall. A fight had broken out earlier in the nearby karate

dojo, and an angry man had returned, wielding a pistol.

23. The karate instructor, Mr. Stacey Hill, took out his own gun and, in an attempt to

diffuse the situation, went outside of the dojo and fired a single round into the air. The angry

man wielding the pistol dispersed from the area.

24. However, before going back indoors, Mr. Hill noticed a young boy had fallen to

the blacktop and had blood a pool of blood around him. It was Andrew – the bullet had struck

him in the head.

25. After receiving treatment for a week in Jackson Memorial Hospital, Andrew

returned home but was never the same person. His temper flared and he became increasingly

angry. He had significant mood swings, often due to the terrible headaches he suffered. He

began to have behavioral problems at school, often disappearing for hours on end.

26. Andrew began to have problems with the law, particularly stealing cars.

However, Andrew never committed a violent crime. His crimes were poorly planned and

executed, but never violent. When caught, Andrew would plead guilty and serve his time.

27. This lasted until approximately 2004. That year, Andrew was released from

prison after doing a three (3) year sentence. Upon being released, Andrew promised Ladonna


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Florence, the mother of his son, Antonio, Jr., that he would stay out of prison and help raise their

son.

28. For seven years Andrew stayed out of trouble with the law. He worked as a

bouncer and landscaper in order to make a living. Most importantly, he began to properly care

for his son, taking him shopping and teaching him to play basketball.

29. However, in May 2011, Andrew was recruited to join a crew that was actively

robbing homes of known drug dealers.

B. The Gonzalez Crew

30. Roger Gonzalez Sr. was the alleged leader of a group of men committing home

invasions in the late 1990s throughout South Florida. Pursuant to police direction, a confidential

informant infiltrated his group and, despite evading the initial set-up, Gonzalez was arrested and

charged in 1997 with kidnapping, armed robbery, racketeering and attempted cocaine trafficking,

amongst others charges.

31. Although he was facing decades in prison, Gonzalez cut a deal with prosecutors

that allowed him to serve only fourteen (14) years in exchange for providing law enforcement

with helpful information.

32. Gonzalez assisted Miami-Dade detectives with a murder case for six-months, and

provided information on various other cases, leading to his early release from prison on August

4, 2010.

33. Almost immediately upon release, Gonzalez, his son Roger Gonzalez Jr. and

others allegedly began conducting home invasions again. At some point, Andrew was recruited

to join them in these robberies. The extent of Andrew’s involvement is unknown.


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34. Gonzalez was well known to the police because of his position as a police

informant. Accordingly, members of the STOP put together a plan to take Gonzalez and his

crew off the streets.

C. Miami-Dade Police Department, STOP and SRT

35. The Miami-Dade Police Department, in conjunction with the Bureau of Alcohol,

Tobacco and Firearms (“ATF”), established the STOP in October of 1990 in order to target

violent crime that was related to the manufacture, distribution and sale of narcotics. Specifically,

the STOP is focused on career criminals who employ firearms in the commission of crimes

related to narcotics trafficking.

36. Since 1990, the STOP has been successful in removing such individuals who

commit these violent crimes from the streets of Miami-Dade County. However, recently, the

success of the STOP has come at the expense of some individuals’ civil rights, as many,

including Andrew in the instant case, have been taken off the streets in a body bag.

37. The first such instance occurred on September 7, 2006 in Medley, Miami, Florida.

The STOP officers used a confidential informant to lure six robbers to a tractor-trailer that the

confidential information suggested contained eighty (80) kilograms of cocaine. Upon arrival,

two of the robbers got out of the car wearing fake “FBI” and “DEA” shirts and each carrying a

gun. Immediately, STOP and SRT officers opened fire, shooting Jorge Torres five (5) times and

Joe Guevara an unidentified number of times. Jorge Torres died at the scene. Members of the

SRT stated they saw the two men raise their guns as if to shoot, which prompted them to

immediately fire upon the two men.

38. The second instance occurred almost one year later and under almost the exact

same conditions. Through the use of a confidential informant, the STOP officers lured seven


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robbers to a warehouse, also located in Medley, which the confidential informant suggested

contained seventy (70) kilograms of cocaine. The men arrived at the warehouse in a black Ford

Expedition and pulled right up to the cab of the tractor-trailer. The driver got out of the truck,

wearing a mask and carrying a pistol. As this point, one of the officers gave the takedown signal

and another shouted “Police! Put your hands on your head and don’t move.” As the man turned

and raised his hands, members of the STOP and SRT opened fire, shooting him in the head, chest

and abdomen and killing him instantly. Four more snipers opened fire and rattled off thirty (30)

rounds in ten seconds. Another individual, unarmed, got out of the car to take shelter and was

immediately killed, being shot in the face, stomach and wrist. Two other men located inside the

vehicle were also shot multiple times and survived.

39. The most recent instance occurred on May 17, 2012. Through the use of an ATF

informant, the STOP lured multiple suspects to a fictitious stash house. En route, the STOP had

staged a fake accident in order to slow traffic. The officer directing traffic initiated the stop of

the suspects, while they were still in their vehicle, and commanded that they show their hands.

The driver complied with the officer’s command, but a passenger in the car allegedly made an

“evasive” move down toward the floorboards. This prompted the officer to fire at the passenger

twice, killing him in the process. Upon a search of the vehicle, the passenger was found with a

black cell phone in his hand.

40. All MDPD officers are subject to those procedures set forth in Chapter 31, Part 1

of the Miami-Dade Police Department Standard Operating Procedures that govern use of force,

use of deadly force and discharge of firearms.


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41. Specifically, Section D governs the use of deadly force. Subsection 1 provides

that “[o]fficers may use deadly force which the officer reasonably believes is necessary to

prevent imminent commission of a violent felony.”

42. Further, subsection 2 provides that “[o]fficers may use deadly force which the

officer reasonably believes is necessary in self-defense or the defense of another when there is

reasonable belief that they or another person are in imminent danger of death or serious physical

injury.” That policy goes on to state that “[w]hen the decision is made to use deadly force,

officers must cease its application when the threat no longer exists and there is reasonable belief

that they or another person are no longer in imminent danger of death or serious physical injury.”

43. Despite being subject to these procedures, the STOP and SRT officers did not

comply with the standards set forth in these procedures on June 30, 2011, resulting in the

unlawful killing of Andrew.

D. Andrew’s Death

44. The STOP’s plan to get the Gonzalez crew off the streets began the same way its

past sting operations began – through the use of a confidential informant.

45. Rosendo Betancourt (hereinafter referred to as “Betancourt”), a recently released

convicted felon, allegedly approached the STOP officers with information about the Gonzalez

crew.

46. STOP officers directed Betancourt to inform Gonzalez that Betancourt would

soon be obtaining information about a marijuana stash house that could be robbed. On June 29,

2011, Betancourt provided Gonzalez with this information.


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47. The next day, June 30, 2011, Betancourt provided Gonzalez with the location of

the county-owned home in the Redlands. Betancourt told Gonzalez that twenty (20) pounds of

marijuana would be in the house and that it would be guarded by its owners.

48. Betancourt then escorted Gonzalez to check out the house. Upon doing so,

Gonzalez approved of the layout and gave the go-ahead to the rest of the group.

49. Later that evening, Gonzalez, Gonzalez Jr., Betancourt, Lemus and Andrew met

at a residence a few miles away from the target house. They grouped into one vehicle driven by

Gonzalez Jr. and made their way to the target house.

50. During the car ride, Betancourt and Gonzalez went over the target narcotics, the

details of the location and a contingency plan if a gun was discharged during the heist.

51. Upon arrival at the subject house, Gonzalez Jr. performed counter surveillance by

driving around the house. Eventually, Gonzalez, Betancourt, Lemus and Andrew got out of the

car wearing masks, gloves and carrying firearms. The investigating officers claim that they

instructed their confidential informant, Betancourt, to stay in the car and not participate in the

robbery.

52. All four individuals, including Betancourt, approached the house by making their

way through or over a perimeter fence. Gonzalez Jr. stayed in the car in order for the group to

ensure a quick getaway.

53. Almost immediately upon entering the yard, an unmarked van burst through the

back gate and onto the lawn. Men dressed completely in black jumped out of the van and began

shouting at the Gonzalez crew. The men in the unmarked van were all either STOP or SRT

officers, acting under color of law and in the exercise of the power and authority vested in them

as Miami-Dade Police Officers.


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54. According to STOP and SRT, the officers ordered the men to the ground. When

the officers gave these orders, none were dressed in police uniforms, none had badges displayed

and there were no marked police cars on the scene. As far as the Gonzalez crew was concerned,

these shooters were the drug dealers that were expected to be in the house.

55. All four (4) men from the Gonzalez crew attempted to flee from the scene.

Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech, Perez, Gonzalez, Madruga,

Frazin, Malgor and Sierra immediately opened fire on the men as they began to scatter from the

scene. Gonzalez, Betancourt, Lemus and Andrew were all killed. Gonzalez Jr. was captured

only moments later.

56. Andrew made it the farthest, as he was found laying only a few yards from the

perimeter fence. Andrew’s body was littered with bullets, including bullet holes in his open

hands and back.

57. At the time the Defendant Officers shot Andrew, he did not pose an immediate

threat of death or physical harm to any of the officers as Andrew was attempting to run away, did

not raise his firearm and did not discharge a bullet.

58. At the time the Defendant Officers shot Andrew, there was no reasonable grounds

to believe Andrew was about to commit a violent felony.

59. At the time the Defendant Officers shot Andrew, Andrew had no idea these

shooters were police officers and, in reasonably fearing for his own safety, Andrew ignored the

commands by the officers to go to ground, instead opting to flee the scene. Andrew’s belief that

these officers were armed drug dealers was the result of information provided by the police to

Betancourt while he was acting as a confidential informant.


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60. The use of deadly force by the Defendant Officers to prevent the escape of

Andrew was constitutionally unreasonable and violated the Fourth and Fourteenth Amendment

of the United States Constitution.

61. Since then, homicide detectives and prosecutors have been conducting a full

investigation into the shooting. While no official report has been issued, police have recognized

that none of the Gonzalez crew, including Andrew, ever fired upon any of the STOP or SRT

officers.

62. All conditions precedent to the filing of the claims set forth herein have been

satisfied.

COUNT I

42 U.S.C. § 1983

Excessive Force

(Against Defendant Officers)

Plaintiff realleges and reavers paragraphs 1 through 62 of the allegations as if fully set

forth herein.

63. On June 30, 2011, Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James,

Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra, acting under color of state

law in the course and scope of their duties with the MDPD, seized and detained Andrew.

64. In the course of Andrew’s detention, Defendant Officers Villa, Cruz, Ferguson,

Calzadilla, James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra, acting

under color of state law in the course and scope of their duties with the MDPD, employed

patently unreasonable and excessive force under the circumstances.

65. Specifically, in the course of their detention of Andrew, Defendant Officers Villa,

Cruz, Ferguson, Calzadilla, James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and

Sierra shot Andrew multiple times, killing him on the scene.


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66. During his detention, Andrew did not take any action that objectively or

subjectively could have been perceived as posing any threat to the safety of Defendant Officers

Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor

and Sierra. In fact, Andrew was fleeing from the scene at the time he was killed, and, upon

information and belief, was no longer holding a weapon and had his hands visible at all times.

Further, Andrew had no reasonable belief that the shooters were police officers.

67. The shooting and subsequent death of Andrew at the hands of Defendant Officers


and Sierra was in violation of then clearly-established constitutional law interpreting the Fourth,

Eighth and Fourteenth Amendment to the United States Constitution guaranteeing protection

from unreasonable seizures, the right to be free from cruel and unusual punishment and the right

to due process.

68. As a direct and proximate result of the constitutional violations described herein

and committed by Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech,

Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra, Andrew lost his life, and CHARLENE

BENBOW, as Personal Representative of the Estate of ANTONIO LEE ANDREW, has suffered

and will continue to suffer damages, including the loss of net accumulation of the estate which

might reasonably have been expected but for the wrongful death, medical expenses, funeral

expenses, and any and all other costs associated with Andrews’ death.

69. As a direct and proximate result of the constitutional violations described herein

and committed by Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech,

Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra, as hereinabove alleged, the survivors of


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ANTONIO ANDREW, by and through Personal Representative, CHARLENE BENBOW, seek

the following damages:

a. The past and future mental pain and suffering of ANTONIO ANDREW, JR., the

decedent’s surviving son;

b. Loss of the care, maintenance, companionship, instruction, guidance, advice,

counsel, inheritance and other reasonable contributions of pecuniary and non-

pecuniary value that the decedent’s son, ANTONIO ANDREW, JR. would have

otherwise received during the decedent’s life had it not been for his untimely,

tragic and wrongful death;

c. Expenses of medical care and funeral arrangements arising from the injury and

death of ANTONIO ANDREW;

d. Loss of the decedent’s prospective net accumulations; and

e. Loss of inheritable estate.

70. Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech, Perez, Gonzalez,

Madruga, Frazin, Malgor and Sierra acted with evil motive and intent in luring Andrew to the

house, providing him information that would lead him to be armed and then maliciously killing

Andrew for those exact reasons. In using such excessive and unreasonable force against

Andrew, Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech, Perez,

Gonzalez, Madruga, Frazin, Malgor and Sierra acted in a manner that was reckless and callously

indifferent to Andrew’s rights under the Fourth, Eighth and Fourteenth Amendments to the

United States Constitution.

71. In violating Andrew’s constitutional rights, Defendant Officers Villa, Cruz,

Ferguson, Calzadilla, James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra


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sought to continue the STOP’s string of executing those individuals they determine to be “bad

guys.” Andrews accordingly seeks punitive damages against Defendant Officers Villa, Cruz,

Ferguson, Calzadilla, James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra.

72. Pursuant to 42 U.S.C. § 1988, CHARLENE BENBOW, as Personal

Representative of the Estate of ANTONIO ANDREW seeks attorney’s fees in bringing and

prosecuting this action.

WHEREFORE, Plaintiff CHARLENE BENBOW, as Personal Representative of the

Estate of ANTONIO LEE ANDREWS, demands judgment against Defendant Officers Villa,


Sierra in their individual capacities, including costs, reasonable attorney’s fees pursuant to 42

U.S.C. § 1998 and any other relief this Court deems just and proper.

COUNT II

42 U.S.C. § 1983

Excessive Force

(Against Miami-Dade County)

Plaintiff realleges and reavers paragraphs 1 through 62 of the allegations as if fully set

forth herein.

73. On June 30, 2011, Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James,

Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra, acting under color of state

law in the course and scope of their duties with the MDPD, seized and detained Andrew.

74. In the course of Andrew’s detention, Defendant Officers Villa, Cruz, Ferguson,

Calzadilla, James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra, acting

under color of state law in the course and scope of their duties with the MDPD, employed

patently unreasonable and excessive force under the circumstances.


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75. Specifically, in the course of their detention of Andrew, Defendant Officers Villa,


Sierra shot Andrew multiple times, killing him on the scene.

76. During his detention, Andrew did not take any action that objectively or

subjectively could have been perceived as posing any threat to the safety of Defendant Officers


and Sierra. In fact, Andrew was fleeing from the scene at the time he was killed, and, upon

information and belief, was no longer holding a weapon and had his hands visible at all times.

Further, Andrew had no reasonable belief that the shooters were police officers.

77. The shooting and subsequent death of Andrew at the hands of Defendant Officers


and Sierra was in violation of then clearly-established constitutional law interpreting the Fourth,

Eighth and Fourteenth Amendment to the United States Constitution guaranteeing protection

from unreasonable seizures, the right to be free from cruel and unusual punishment and the right

to due process.

78. Miami-Dade County knew, or should have known, of and exhibited deliberate

indifference to, the ongoing unconstitutional custom and practice employed by the STOP and

SRT officers, specifically the manner in which they purposefully lured suspects into a position

that allowed the officers to use deadly force during sting operations.

79. Miami-Dade County failed to adequately reprimand and provide additional

training to Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech, Perez,

Gonzalez, Madruga, Frazin, Malgor and Sierr,a whose prior conduct amounted to constitutional

violations, including the unreasonable and/or excessive use of force, during sting operations.


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80. Miami-Dade County knew or should have known about the ongoing constitutional

violations because officers in the STOP and SRT have so often violated individual rights,

particularly by purposefully luring suspects into a position that allowed the officers to use deadly

force during sting operations, and that failure to provide additional training amounts to deliberate

indifference, i.e., constructive knowledge of these customary constitutional violations which

occur throughout Miami-Dade County, Florida. The deficient training programs of the Miami-

Dade County Police Department have become a county-wide problem.

81. A reasonable supervisor would conclude that an obvious consequence of

permitting officers with numerous excessive force and weapon discharge complaints against

them to remain in the STOP and SRT units is placing the public at risk of further constitutional

violations. Returning these officers to the STOP and SRT units without additional training

evidences Miami-Dade County’s deliberate indifference to those officers’ unconstitutional use of

excessive force, particularly the purposeful luring of suspects into a position that allows the

officers to use deadly force during sting operations, in violation of the Fourth and Fourteenth

Amendments to the United States Constitution.

82. The moving force behind Andrew’s death was Miami-Dade County’s deliberate

indifference to the STOP and SRT members’ ongoing use of unreasonable and/or excessive

force, particularly the purposefully luring of suspects into a position that allows the officers to

use deadly force during sting operations.

83. Andrew’s death on June 30, 2011 was the obvious consequence of, and is directly

linked to, the customary practices of Miami-Dade County and its police department.

84. As a direct and proximate result of the actions of Miami-Dade County, as

described herein, Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech,


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Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra were permitted to continue a pattern and

custom of using excessive and deadly force in violation of the constitutional rights of Andrew.

As such, the survivors of ANTONIO ANDREW, by and through Personal Representative,

CHARLENE BENBOW, seek the following damages:















WHEREFORE, Plaintiff CHARLENE BENBOW, as personal representative of the






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COUNT III

42 U.S.C. § 1983

Policy, Practice, Procedure or Custom of Lethal Ambush


Plaintiff re-alleges and incorporates paragraphs 1 through 62 of the allegations as if fully

set forth herein.

86. Defendant Miami-Dade County had a policy, practice, procedure and/or custom

which permitted members of the STOP and SRT to purposefully and willfully lure suspected

robbers into a situation that provided those members of the STOP and SRT grounds to use lethal

force.

87. Specifically, Defendant Miami-Dade County had a policy, practice, procedure

and/or custom of instructing members of the STOP and SRT to use confidential informants to

feed suspected groups of robbers information on fake stash houses that are guarded by fake drug

dealers. This policy, practice, procedure and/or custom ensured that the suspected robbers would

arrive to the house armed and ready to defend themselves, providing those STOP and SRT

officers grounds to use deadly force during the execution of the sting operation.

88. This policy, practice, procedure and/or custom of Defendant Miami-Dade County

caused a violation of Andrew’s constitutional right under the Fourth Amendment to the United

States Constitution to be free from unreasonable seizures.

89. Specifically, Miami-Dade County placed into effect a program that Miami-Dade

County either knew or should have known would amount to the ambush of the suspects.

90. This “ambush” policy enacted by the Miami-Dade County police department

amounts to a department-wide exhibition of deliberate indifference to the constitutional rights of

the suspects whose capture is allegedly intended by the STOP and SRT operation. By instituting

this grossly unconstitutional policy, practice, procedure and/or custom employed by the STOP


22

and SRT officers, specifically the manner in which they purposefully lured suspects into a

position that would most certainly end in the death of the suspects, Miami-Dade County

exhibited a willful, wanton and callous disregard for the constitutional rights of Andrew.

91. Defendant Miami-Dade County implemented and controlled this policy, practice,

procedure and/or custom and encouraged its officers to utilize this policy, practice, procedure or

custom that Miami-Dade County knew would end in death. In fact, at the time of Andrew’s

death, prior STOP and SRT ambushes had likewise ended in police shootings and the death of

the suspects. As such, Miami-Dade County had direct knowledge of the constitutional violations

that would likely take place when the raid was organized and still promoted the raid.

92. The moving force behind Andrew’s death was Miami-Dade County’s deliberate

indifference to Andrew’s constitutional rights as described herein. Miami-Dade County

disregarded the constitutional rights of suspects to be arrested, tried and convicted prior to

receiving state-sponsored punishment. Instead, Miami-Dade County acted as judge, jury and

executioner by instituting a program that most certainly would end in the death of the suspects.

93. Andrew’s death on June 30, 2011 was the obvious consequence of, and is directly

linked to, the customary practices of Miami-Dade County and its police department.

94. As a direct and proximate result of the actions of Miami-Dade County, as

described herein, members of the STOP and SRT, particularly Defendant Officers Villa, Cruz,

Ferguson, Calzadilla, James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra,

were instructed and permitted to continue a pattern and custom of luring suspects into a position

that inevitably ended in the violation of the constitutional rights of Andrew. As such, the

survivors of ANTONIO ANDREW, by and through Personal Representative, CHARLENE

BENBOW, seek the following damages:


23










d. Loss of the decedent’s prospective net accumulations;

e. Loss of inheritable estate; and

f. Punitive damages.










24

COUNT IV

Wrongful Death

(Against All Defendants)


set forth herein.

96. This is an action brought pursuant to the Florida Wrongful Death Act, Florida

Statutes section 768.16 to 768.26, against Defendants Miami-Dade County and Officers Villa,


Sierra, acting within the course and scope of their duties with the MDPD and as the employees,

agents and/or representatives of Miami-Dade County.

97. Defendant Miami-Dade County and Officers Villa, Cruz, Ferguson, Calzadilla,

James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra owed a duty of care to

Andrew to seize him within well-established notions of the Fourth Amendment of the United

States Constitution and to use deadly force within the guidelines set forth in the Miami-Dade

Police Department Standard Operating Procedures.

98. Defendant Miami-Dade County and Officers Villa, Cruz, Ferguson, Calzadilla,

James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra breached these duties

by:

a. Allowing a climate of “shoot first, think later” to persist throughout the STOP and

SRT;

b. Failing to properly train and supervise officers on the procedures to make an

arrest during a sting operation;

c. Failing to properly train and supervise officers on the use of firearms when

arresting an individual;


25

d. Failing to properly train and supervise officers on the proper procedures for the

discharge of a firearm;

e. Failing to properly train and supervise officers on the use of deadly force;

f. Negligently conducting a sting operation;

g. Negligently discharging a weapon;

h. Negligently using deadly force.

99. At all times material hereto, Defendant Miami-Dade County knew or should have

known that its failure to provide adequate training and supervision to officers in the above listed

areas would result in serious injury and/or death to its citizens, including Andrew.

100. At all times material hereto, Defendant Officers Villa, Cruz, Ferguson, Calzadilla,

James, Dor, Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra knew or should have

known that failing to properly arrest Andrew under the well-established notions of the Fourth

Amendment and failing to follow well-established guidelines for the use of deadly force as set

forth in the Miami-Dade Police Department Standard Operating Procedures would result in

serious injury and/or death to citizens of Miami-Dade County, including Andrew.

101. As a direct and proximate result of Defendant Miami-Dade County’s and Officers


and Sierra’s breach of the above listed duties, Andrew was killed on June 30, 2011. As such, the

survivors of ANTONIO ANDREW, by and through Personal Representative, CHARLENE

BENBOW, seek the following damages:




26








d. Loss of the decedent’s prospective net accumulations;

e. Loss of inheritable estate: and

f. Any and all other damages as specified in § 768.21, Fla. Stat.


Estate of ANTONIO LEE ANDREW, demands judgment against Defendant Miami-Dade

County and Defendants Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech, Perez, Gonzalez,

Madruga, Frazin, Malgor and Sierra in their individual capacities, including costs, reasonable

attorney’s fees and any other relief this Court deems just and proper.

COUNT V

Negligent Retention



set forth herein.

102. Defendant Miami-Dade County knew, or should have known, that Defendant


Frazin, Malgor and Sierra were dangerous, incompetent and liable to do harm to citizens and

residents of Miami-Dade County, Florida.


27

103. Defendant Miami-Dade County failed to conduct a reasonable investigation

regarding the competence of Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor,

Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra to be employed as police officers

for the MDPD.

104. Defendant Miami-Dade County, during the course of Defendant Officers Villa,


Sierra’s employment, became aware or should have become aware of problems with Defendant


Frazin, Malgor and Sierra that indicated their unfitness and/or predisposition to committing a

wrong, specifically the unnecessary or unreasonable use of excessive or deadly force, but failed

to take further action, such as investigating, discharging or reassigning.

105. Defendant Miami-Dade County owed Andrew, as well as all other residents of

Miami-Dade County, a duty of care to hire and retain only competent police officers.

106. Defendant Miami-Dade County breached this duty of care by hiring and retaining

incompetent officers such as Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor,

Alech, Perez, Gonzalez, Madruga, Frazin, Malgor and Sierra.

107. As a proximate and direct result of Miami-Dade County’s breach of duty,

Andrews was killed on June 30, 2011. As such, the survivors of ANTONIO ANDREW, by and

through Personal Representative, CHARLENE BENBOW, seek the following damages:






28









Estate of ANTONIO LEE ANDREW, demands judgment against Defendant Miami-Dade

County, including costs, reasonable attorney’s fees and any other relief this Court deems just and

proper.

COUNT VI

Negligent Failure to Train and Supervise



set forth herein.

108. Defendant Miami-Dade County owed Andrew, as well as all other residents of

Miami-Dade County, a duty to properly train and supervise its officers regarding the procedures

to make an arrest during a sting operation, the use of firearms when arresting an individual, the

proper discharge of a firearm and the use of deadly force.

109. Defendant Miami-Dade County breached this duty of care by failing to provide

Defendant Officers Villa, Cruz, Ferguson, Calzadilla, James, Dor, Alech, Perez, Gonzalez,

Madruga, Frazin, Malgor and Sierra with proper and special training and/or supervision so that


29

they could be prepared to execute the necessary duties reasonably expected of them during the

course and scope of their employment.

110. As a proximate and direct result of Miami-Dade County’s lack of training and

supervision, Andrews was killed on June 30, 2011. As such, the survivors of ANTONIO

ANDREW, by and through Personal Representative, CHARLENE BENBOW, seek the

following damages:













Estate of ANTONIO LEE ANDREWS, demands judgment against Defendant Miami-Dade

County, including costs, reasonable attorney’s fees and any other relief this Court deems just and

proper.


30

DEMAND FOR JURY TRIAL

Plaintiff demand trial by jury on all issues so triable.

DATED this 5th

day of February, 2013.

Respectfully submitted,

THE LETO LAW FIRM

Co-Counsel for Plaintiff

The Miami Center

201 South Biscayne Blvd.

Suite 1720

Miami, FL 33131

Phone: 305-577-8448

Fax: 305-577-8465

Email: [email protected]

By: /s/ Justin C. Leto

Justin C. Leto

Fla. Bar No. 0652776

Jonathan M. Hixon

Fla. Bar No. 100264

and

DEAN-KLUGER & SIBLEY LAW Co-Counsel for Plaintiff

1110 Brickell Avenue, Suite 208

Miami, Florida 33131

Phone: (305) 534-3460

Fax: (305) 517-1306

Email: [email protected]

By: /s/Jesse Dean-Kluger

Jesse Dean-Kluger

Florida Bar No.: 0062201


Case 1:13-cv-20452-KMW Document 1-1 Entered on FLSD Docket 02/06/2013 Page 1 of 1

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