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No Qualified Immunity for Officers Who Use Taser Multiple Times on Restrained Suspect

The legal doctrine of qualified immunity protects government officials who apply force reasonably or apply force in situations where the law is unclear. The purpose of qualified immunity is to prevent government officials from being discouraged carrying out their duties or protecting themselves from violent individuals. In practice, however, qualified immunity often causes judges to throw meritorious lawsuits out of court. 

In an excessive force case, the qualified immunity inquiry is a two-step process. First, the court asks whether the force was reasonable under the totality of the circumstances which the officer was aware. Courts must balance the risk of bodily harm to the suspect against the gravity of the threat. If use of force was not reasonable, then it violates the plaintiff's constitutional rights.

Not all constitutional violations can form the basis of a lawsuit. The second step of the qualified immunity inquiry asks whether the officer violated "clearly established law." A violation of clearly established law can occur when the use of force is so obviously unreasonable that any reasonable would know it was illegal. However, generally the plaintiff must point to a binding case with a similar set of facts. Because excessive force cases often involve different facts and extenuating circumstances, this element of the qualified immunity inquiry is often the hardest to meet. A recent case from the Eleventh Circuit, Wate v. Kubler, shows that these types of cases remain viable with the right facts and evidence.

Wate involved a lawsuit over the death of a Pinellas county resident, Clifton Barnes, following his arrest. Barnes suffered a mental breakdown while undergoing a baptismal ritual and shortly thereafter became violent. Two officers restrained Barnes. They tased Barnes five times over the course of a two-minute period. The police officers testified that Barnes continued to resist throughout the arrest. However, several eye-witnesses testified that Barnes had calmed down by the time the officers deployed the Taser.

Because the court heard the case on a motion for summary judgment, it credited the version of events most favorable to the plaintiff. It found that found that if Barnes had indeed stopped resisting, it would be unreasonable to have used a Taser on him five times. Turning to the second element, the court pointed to a long line of cases where it had found Fourth Amendment violations for applying force to an arrestee who did not resist. Most notably, a case from 2002 called Lee v. Ferrarro found a violaiton where a police officer slammed an arrestee's head on the back of his patrol car who was already handcuffed and did not try to resist.

Historically, the Eleventh Circuit has been one of the most difficult courts in which to defeat a qualified immunity defense. However, Barnes's family was able to succeed for two reasons. First, Barnes stopped resisting, making his case similar to prior successful excessive force cases. Second, he had eye-witnesses to testify to that fact. Police officers are aware of the doctrine of qualified immunity. They will often tailor their reports and testimony to make the situation appear more dangerous. To preserve an excessive force claim, avoid resisting arrest where possible, and have someone testify about your cooperation. Otherwise, even if a police officer goes too far, the doctrine of qualified immunity can pose a significant obstacle.

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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
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Jacksonville, FL 32202

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