Wate v. Kubler
| Decision Date | 12 October 2016 |
| Docket Number | No. 15–15611,15–15611 |
| Parties | Patricia Juanita Wate, individually and as personal representative of the Estate of James Clifton Barnes, Deceased, Plaintiff–Appellee, v. Kenneth Kubler, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Bruce McCord Edenfield, Bruce M. Edenfield, PC, Dahlonega, GA, Keith Maxie Carter, Morgan & Morgan, PA, Tampa, FL, Stuart C. Markman, Kristin Ann Norse, Kynes Markman & Felman, PA, Tampa, FL, for Plaintiff–Appellee.
Paul Grant Rozelle, Pinellas County Sheriff's Office, Saint Petersburg, FL, for Defendant–Appellant.
Before MARCUS and WILLIAM PRYOR, Circuit Judges, and DAVIS,* District Judge.
, District Judge:
James Clifton Barnes and his aunt Paula Yount went to the beach to conduct a baptismal ritual. While in the water, Barnes became agitated. After Barnes was pulled out of the water and, following a struggle, he was handcuffed and pinned on the beach by two law enforcement officers. He was then “tased” five times, and at least two of those tases occurred after Barnes had ceased resisting. Barnes died two days later. The district court denied Pinellas County Deputy Sheriff Kenneth Kubler's motion for summary judgment seeking qualified immunity, determining that Kubler's use of the Taser gun amounted to an unconstitutional use of excessive force in violation of the Fourth Amendment, that was clearly established at the time. Because the record evidence, construed in favor of Plaintiff, demonstrates that Barnes was not a flight risk or a threat to the safety of the officers or the public prior to the conclusion of the tasings, we affirm.
The incident giving rise to this action occurred at midday on March 17, 2012, at the north end of Honeymoon Island State Park, located in Pinellas County, Florida. Honeymoon Island is a 400-acre barrier island with four miles of beach, located in the Gulf of Mexico off of the west coast of Florida, and is accessible via a causeway. While in the water with his aunt, Barnes began acting erratically by flailing, flopping, and thrusting his arms and body, and yelling loudly about a demon. Barnes was a big man, standing at 5 feet 10 inches tall, and weighing 290 pounds. Barnes' conduct drew attention on the crowded beach. The rapidly unfolding facts in this case are framed by a stipulated timeline, and painted by the testimony of sixteen witnesses.
Officer Joseph Tactuk of the Florida Department of Environmental Protection, was the only law enforcement officer on Honeymoon Island that day. Tactuk stopped his All Terrain Vehicle (“ATV”) when he saw Barnes, and Yount left the water to speak to the officer. Barnes did not comply with Tactuk's and Yount's admonitions to calm down and leave the water. Tactuk entered the water and ordered Barnes out of the water, believing that he had probable cause to arrest Barnes for battery on Yount. A struggle ensued and Tactuk repeatedly struck Barnes in the face. Barnes continued to physically resist, and Tactuk repeatedly ordered Barnes to cooperate.
Tactuk got Barnes to the shallow water and placed a handcuff on one of Barnes' hands. Barnes pulled Tactuk into waist-deep water, and Tactuk hit Barnes in the face with his fist while the two continued to struggle. Tactuk placed Barnes in a choke hold around the neck, and dragged Barnes out of the water by the head, assisted by a bystander. Barnes was yelling for help and pleading for the officer to “Please stop,” as Tactuk continued to hit him. Tactuk broadcast his call sign over the police radio at 12:30:52 p.m., and two bystanders who witnessed the struggle called 911 at 12:31 p.m.
Barnes was eventually pulled from the water at approximately 12:35:24, and at 12:35:53 p.m., a bystander reported to 911 that it looked as though Barnes had “calmed down,” and was “just laying on the beach now with the state park ranger next to him.” Tactuk kneeled beside Barnes on the beach and tried to secure Barnes' other arm in the handcuffs, but was unsuccessful because Barnes was resisting and not cooperating. Tactuk got on top of Barnes and hit him, as he attempted to place Barnes' other arm in the handcuffs.
Three bystanders assisted Tactuk in placing the handcuff on Barnes' second arm, holding Barnes' legs and positioning Barnes' free arm, as Barnes continued to resist, and to loudly grunt and growl. The 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.
At this point, Tactuk got off of Barnes and pulled him further up onto the shore, and then straddled him while Barnes continued to resist. Tactuk pressed the emergency button on his radio at 12:36:09 p.m., identified himself, and said that he had a violent, mentally-ill person in custody. Tactuk broadcast that he needed “help” at the north end of the island, and that the location was accessible only by ATV. As Barnes continued to struggle, Tactuk deployed pepper spray, shooting it into Barnes' eyes. Tactuk struck Barnes in the face multiple times, and Barnes continued to resist.
Officer Kubler, who was assigned to the Sheriff's Marine Unit, responded to the dispatch call. As he got closer to the scene, he eventually saw Tactuk and Barnes struggling on the beach. Kubler radioed that he had arrived, ran his boat aground, and jumped off boat at 12:36:59 p.m. Kubler observed that the officer on the scene had “somebody on the ground.”
When Kubler arrived, Barnes was on his back with his face out of water, struggling to get Tactuk off of him. Barnes had blood on his mouth and face and Tactuk was covered in blood. Tactuk was straddling Barnes, sitting on Barnes' stomach with his knees pinned under Barnes's armpits, and Barnes was screaming and yelling. One eyewitness said he thought that Barnes was starting to “wear down at that point” and that “he wasn't fighting as much,” and that the situation was “under control.” Kubler positioned himself between Barnes's hips and knees and tried to stop Barnes from kicking, instructing Barnes to quit resisting.
Starting at 12:37:37 p.m., Kubler and Tactuk radioed dispatch requesting other units and an ambulance. Kubler also reported over the radio that transporting Barnes would be problematic. Tactuk requested hobble restraints. Barnes can be heard yelling and screaming on the radio transmissions, and Tactuk can be heard on the dispatch call at 12:41:49 saying “stop resisting.”
Kubler and Tactuk rolled Barnes onto his stomach in an attempt to position the handcuffs correctly, as Barnes resisted and kicked. Tactuk continued to hit Barnes, striking him in the face three times after Barnes bit Tactuk's hand. Witnesses said that Kubler stood over Barnes and put his foot on Barnes's buttocks, and one testified that Barnes was arching his back. Another witness testified that Kubler put his knee on Barnes's back, and that Barnes was immobilized.
Kubler warned Barnes to stop raising up or the officer would tase Barnes, but Barnes continued to resist. Kubler drew the Taser and gave Barnes a second warning, but Barnes kept struggling, and at 12:43:18 p.m., he can be heard again yelling in the background on the dispatch radio transmission.
Seventeen seconds later, at 12:43:35 p.m., Kubler deployed his Taser, and the probes struck Barnes in the mid-back, 2.95 inches (7.5 centimeters) apart. Six and a half minutes had passed between Kubler's arrival on the beach and his deployment of the Taser. Kubler activated the Taser on Barnes a total of five times for 5, 3, 5, 4, and 5 seconds respectively, over a nearly two-minute period (12:43:35; 12:43:49; 12:44:20; 12:44:43; and 12:45:17). The intervals between deployments were 9, 28, 18 and 30 seconds respectively.
Kubler radioed dispatch at 12:45:26, but the transmission was unintelligible. Kubler and Tactuk uncuffed Barnes and attempted to position the handcuffs properly, and at this time, Barnes was still and had become quiet. An off-duty fire lieutenant ran to the scene, observed that Barnes appeared to be blueish gray, and told the officers “You need to get the handcuffs off him because he's not breathing.” J. Hutzler (Supp. App. 8). The officers uncuffed Barnes, turned Barnes over to his back and began CPR. The officers had to do chest compressions “[b]ecause of all the face trauma, we couldn't get an airway on him.” J. Hutzler (Supp. App. 10). A radio transmission reflects that by 12:46:37, rescue personnel had been called. Rescue personnel arrived on an ATV and took over the rescue.
Barnes died two days later. The Medical Examiner found the cause of death to be complications of asphyxia
with contributory conditions of blunt trauma and restraint. Barnes had scattered abrasions, contusions, and lacerations, plus subgaleal hemorrhage and cerebral edema. A pair of puncture marks were on his back.
Barnes' personal representative Patricia Juanita Wate (“Plaintiff”) brought suit against the two officers individually, the Sheriff in his official capacity, the Florida Department of Environmental Protection, and the Florida Fish and Wildlife Conservation Commission. The Sheriff removed the action to the United States District Court for the Middle District of Florida, in Tampa. Following announcement that the state agencies and Tactuk had settled with Plaintiff, those claims were dismissed. The district court then bifurcated Plaintiff's claims against Kubler and the Sheriff. Count II of Plaintiff's Fourth Amended and Recast Complaint, which is the operative complaint, is brought against Officer Kubler pursuant to 42 U.S.C. § 1983
, and alleges that Kubler violated the Fourth Amendment of the United States Constitution by using excessive force. Officer...
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