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Tasing a suspect while in handcuffs was excessive force in violation of the Fourth Amendment


In Wate v Kubler, a Civil Rights lawsuit for the wrongful death of Barnes, it began when Barnes went with his aunt to the Honeywell Island Beach in Pinellas County, Florida for a baptismal ritual in the water along the Beach. While in the water Barns began acting erratically by flailing, flopping, and thrusting his arms and body and yelling loudly about a demon. His actions attracted the attention of a law enforcement officer on the Honeywell Island that day. When Barnes failed to comply with the officers’ order to calm down and leave the water, a struggle ensued and the officer placed a handcuff on one of his hands. More struggling occurred resulting in the officer placing Barnes in a choke hold and dragged him out of the water by his head.

Barnes was just lying on the beach with the officer kneeling beside him as the officer tried to secure both hands with the handcuffs. The officer continued to hit him as he attempted to place the other arm in handcuffs. After the handcuff was secured Barnes spewed blood and fluids from his mouth and struggled to breath. When Barnes continued to struggle the officer pepper sprayed his eyes and hit his face multiple times.

Another officer Kubler, arrived on the scene in response to the first officer’s call for help. At this point eyewitnesses stated that when the first officer had Barnes pinned down, Barnes was starting to wear down and that the situation was under control.   Witnesses testified that Kubler stood over Barnes and put his foot on his buttocks and Kubler put his knee on Barnes’ back and that Barnes was immobilized.   After warning Barnes not to raise up (witnesses say he was arching his back when the officer’s foot pressed against his buttocks) Kubler threatened to taser Barnes and after he struggled Kubler deployed the taser a few minutes later. Kubler used the taser a total of 5 times. Barnes became still and another officer on the scene noticed Barnes was not breathing. Two days later Barnes died. The autopsy showed case of death to be asphyxia contributed by blunt trauma and restraint.

The district court denied the police officer’s motion for summary judgment after the civil rights lawsuit under 28 U.S.C. section 1983 against the officer was filed.  the motion was based on a claim of qualified immunity, and this interlocutory appeal ensued.

Deciding whether a defendant government official is entitled to qualified immunity is a two part inquiry. First the defendant must show he acted within the scope of his discretionary authority when the action occurred. If he did the burden shifts to the plaintiff to show that the defendant violated a constitution right that was clearly established at the time. Whether a right is clearly established depends on the binding decisions of the U.S. Supreme Court, the Eleventh Circuit decisions and the Florida Supreme Court. Based on these decisions whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

The plaintiff’s claim alleged excessive force during an arrest which falls under the Fourth Amendment right against unreasonable seizures. The court reviews the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, balancing the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate.

Here the court found that Kubler was not entitled to qualified immunity under these facts viewed in a light most favorable to the plaintiff. Gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive use of force. A reasonable officer in Kubler’s position would have had fair warning that repeatedly tasing Barnes after he was handcuffed and had ceased struggling and resisting was unreasonable under the Fourth Amendment

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