by Christopher Zoukis

The United States Court of Appeals for the Eleventh Circuit has ruled that an excessive force claim made by the estate of a man killed by police during an arrest can go forward.

While conducting a baptismal ritual with his aunt at Honeymoon Island State Park on the west coast of Florida, James Clifton Barnes began acting erratically and yelling about a demon. Officer Joseph Tactuk of the Florida Department of Environmental Protection responded to the disturbance. Tactuk ordered Barnes out of the water, and when he did not comply, entered the water to pull him out.

A struggle ensued, and Tactuk repeatedly struck Barnes in the face. He then placed Barnes in a chokehold and dragged him from the water. While attempting to handcuff Barnes, Tactuk repeatedly pummeled him. Barnes was eventually handcuffed, but "[t]he handcuff was not placed on Barnes' second arm in the normal fashion, and instead, one of Barnes' arms was pulled over his head, with his elbow pointing toward the sky, and his other arm was twisted behind his back, in a manner that looked like a figure-eight."

"One bystander observed that an 'eruption of blood and fluids' spewed from Barnes' mouth with each breath, and that Barnes was struggling to breathe," wrote the Eleventh Circuit.

While Barnes lay handcuffed in this way, continuing to "resist," Tactuk straddled him and sprayed him in the face with pepper spray.

Pinellas County Deputy Sheriff Kenneth Kubler then arrived on the scene. While Tactuk continued to beat Barnes in the face, Kubler assisted in rolling him over. Kubler warned Barnes to stop resisting, and when he did not, Kubler tasered Barnes -- five times, over a two-minute period. By the fifth tasing, Barnes was no longer breathing.

After essentially killing him, the two officers uncuffed Barnes, flipped him over and attempted CPR. The officers were unable to get an airway due to the extensive trauma to Barnes' face. Barnes died two days later. According to the medical examiner, the cause of death was "asphyxia with contributory conditions of blunt trauma and restraint."

Barnes' estate sued Officer Kubler and alleged that he violated the Fourth Amendment by using excessive force against Barnes. Kubler claimed that he should be granted qualified immunity, which would shield him from damages -- but only if he was performing a discretionary duty and did not violate a clearly established constitutional right.

 Both the district court and the Eleventh Circuit agreed that Kubler was not entitled to qualified immunity. Even granting Kubler an allowance for having to make a split-second judgment, as police officers often must do, both courts found the amount of force used here to be unreasonable.

"[T]he unambiguous facts are that Barnes was no longer resisting at least after the first two tasings, and that Kubler's further use of the Taser was wholly unnecessary, and grossly disproportionate to the circumstances," wrote the appellate court. "Kubler had arrived on the scene six and a half minutes earlier, found Barnes bleeding from the face and observed Tactuk striking Barnes multiple times. The two officers immobilized Barnes face down on the sand. Barnes had no weapon and was awkwardly handcuffed . . . [and] while the first or maybe even the second Taser deployment may have been warranted, there is competent unambiguous evidence that by the third tasing, Barnes was handcuffed, immobile and still, such that a reasonable officer in Kubler's position would conclude that Barnes did not present a risk of flight, or a threat of danger to the officers or the public.”

See: Wate v. Kubler, United States Court of Appeals for the Eleventh Circuit, Case No. 15-15611 (October 12, 2016).

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