​​​​​​​Excessive use of force

Clay v. Emmi, No. 14-2351, 2015 WL 4758917 (6th Cir. Aug. 13, 2015)

Claim that officer used excessive force in taking person into custody for involuntary commitment survives summary judgment

Background: Police officer Emmi went to the home of Clay upon call from Clay’s counselor, who reported that Clay, who had diagnoses of schizophrenia and bipolar disorder and a history of suicidal ideation, was making suicidal statements. Clay voluntarily rode with Emmi to the hospital and entered the hospital “to talk to somebody.” When hospital staff asked Clay to disrobe and put on a gown, he refused. In a § 1983 action against Emmi and others for excessive use of force, Clay claimed that, despite his offering no resistance, he was wrestled to the ground, handcuffed and turned face-down, and then tasered in the back by Emmi while handcuffed and offering no resistance. Emmi claims that Clay attempted to leave the hospital, physically resisted efforts to keep him there, and had to be tasered and then handcuffed in order to overcome his resistance. Witnesses provided support for Emmi’s version of events, but there was no definitive evidence (such as a video recording). Emmi moved for summary judgment on the grounds that a 14th Amendment “subjective use of force” analysis applied to his actions, he had no reason to think that his actions violated Clay’s due process rights, and therefore he was entitled to “qualified immunity” for his actions.

Holdings: The district court found, and the Court of Appeals affirmed, that (1) the 4 th Amendment’s “objectively reasonable” standard for use of force applied to Emmi’s actions because Clay was not in custody until the initial “seizure” in the hospital, and (2) because key facts were in dispute that related directly to the need to use force to manage Clay in the hospital, summary judgment action was not supported at that stage of the proceedings.

Notable Points: The Court noted that “among the factors to be considered” in determining whether an officer’s use of force was objectively reasonable were “whether the person being seized poses an immediate threat to the safety of officers or others” and “whether the person is actively resisting.”9 Therefore, “Clay's level of resistance and whether he was handcuffed before being tasered” were “central to this inquiry.”

Found in DMHL Volume 34 Issue 3

Qualified immunity

Waters v. Coleman, No. 14-1431, 2015 WL 6685394 (10th Cir. Nov. 3, 2015)

Officers involved in the subduing and arresting of a man experiencing “excited delirium” were entitled to qualified immunity against an excessive force claim by the man’s estate

Background: On July 18, 2011, Alonzo Ashley and his girlfriend visited the Denver Zoo. Zoo patrons called security when Ashley tried to cool off under a water fountain, and the police were called when zoo security reported that Ashley attacked a security officer. When the first officer on scene, Jones, approached Ashley, he noticed that Ashley was sweating profusely—a symptom of excited delirium. Ashley and Jones struggled, and Jones eventually tackled Ashley with the assistance of two zoo officers. Ashley attempted to punch Jones, and Jones deployed his Taser to Ashley’s back. When the second officer, Coleman, arrived, Ashley was still resisting, and Jones deployed his Taser again. Coleman also deployed his Taser two times and noticed that “Mr. Ashley seemed extremely strong.” When three more officers, the officers were eventually able to subdue Ashley, and after he was handcuffed he remained on his stomach for between 2 and 5 minutes. Noticing that Ashley had vomited, Conner called for medical assistance. Ashley vomited once more and then stopped breathing. The officers began chest compressions, but Ashley was pronounced dead after paramedics transported him to the hospital. Ashley’s mother, Gail Waters, brought a § 1983 action against the police officers alleging excessive use of force that led to his death. The United States District Court for the District of Colorado denied the officers’ motions for summary judgment on the grounds of qualified immunity. The officers appealed.

Holding: The Tenth Circuit Court of Appeals reversed in part and dismissed in part, holding that all officers who participated in the arrest were entitled to qualified immunity. Additionally, the Tenth Circuit held that the Court of Appeals lacked jurisdiction to consider the denial of qualified immunity for lieutenant’s supervisory conduct as the ranking officer on scene after Ashley was handcuffed.

Notable Points:

Excessive force when detainee may be suffering from excited delirium: The Tenth Circuit did not reach the question of whether any officer’s conduct was objectively unreasonable and therefore unconstitutional because it found that, on the day of the incident, the law was not clearly established so as to alert the officers to the potential illegality of their conduct. Even though Ashley presented symptoms of excited delirium, the Tenth Circuit stated that it has never “required officers to refrain from a minimal use of force when dealing with an impaired individual,” noting several times the fact that a struggle was ongoing at the time that force was used. The Court noted that existing case law does, however, make it clear that continued use of force against a subdued or nonresisting person is not constitutionally permissible.

Found in Found in DMHL Volume 34, Issue 4

Use of Expert Mental Health Testimony in Criminal Cases

United States v. West, No. 14-2514, 2015 WL 9487929 (7th Cir. Dec. 30, 2015)

In a case of illegal gun possession that rested almost exclusively on defendant’s replies to police questioning that the gun in question was his, testimony by an expert that the defendant’s admission was unreliable due his low IQ, mental illness and high suggestibility should not be excluded.

Background: Antonio West was indicted for possessing a firearm as a felon in violation of 18 U.S.C. § 922(g). The gun was found in the attic of the family home during a consensual search for a stolen television. No fingerprints were recovered from the gun, and there was conflicting evidence regarding whether West actually lived in the home in which the gun was found. As such, the case for possession rested on West’s admission to police that the gun was his. West’s attorney moved to suppress his statements to police based on expert testimony that West had a low IQ, suffered from mental illness, and scored highly on the Gudjonsson Suggestibility Scale. The district court denied the motion, finding that West had competently and voluntarily waived his Miranda rights. West’s attorney then moved to admit the expert testimony at trial to (1) assist the jury in assessing the reliability of the confession, (2) negate the intent element of the offense, and (3) explain West’s demeanor should he testify. The judge excluded the evidence on all three grounds and the jury found West guilty.

Holding: On appeal, the Seventh Circuit reversed the decision of the district court and remanded for a new trial. The Court agreed with West that the exclusion of expert testimony regarding West’s IQ was reversible error. Because the government’s case relied heavily on the jury’s acceptance of West’s confession, the district court’s decision to exclude expert testimony regarding the potential reliability of that confession could not have been harmless error.

Notable Points

The expert’s testimony regarding West’s IQ was relevant to the question of the reliability of the confession: The Seventh Circuit held that expert testimony explaining that a defendant’s low IQ and mental illness could have influenced his responses to officers’ questions was certainly relevant and admissible where the major issue at trial was the reliability of the defendant’s confession. The expert testimony was highly relevant to the jury’s consideration of the defendant’s personal characteristics, and the government’s objection to the testimony went properly to its weight, not admissibility.

Erroneous exclusion of expert testimony warranted a new trial: Because the government’s case depended on whether the defendant knowingly possessed a firearm as a felon, and that determination rested largely on the defendant’s confession, the expert should have been allowed to testify. If he had, the jury might have discounted the defendant’s statement admitting that the gun was his. Given that, a new trial was required.

Found in Found in DMHL Volume 35, Issue 1

Excessive Force

Kent v. Oakland Cty., 810 F.3d 384 (6th Cir. 2016)

Qualified immunity denied to officers who tased a man who was agitated but not armed, actively resisting arrest, or making threats of physical harm against the officers and EMTs seeking his compliance.

Background: Claudio Lopez and Christina Maher—both Oakland County Sherriff’s Deputies—responded to the natural, at-home death of Michael Kent’s father. When EMTs attempted to attach an Automated External Defibrillator to Kent’s father, Kent objected on the grounds that his father had not wished for life-sustaining procedures. Kent became increasingly agitated, yelling at the deputies and EMTs and refusing to calm down. One of the EMTs asked the deputies for assistance and told one deputy that he felt he could not perform his duties for fear of Kent intervening. After additional commands by the deputies to calm down, Deputy Lopez stated pulled out his taser and told Kent that he would deploy it, to which Kent reported that he replied, with his hands in the air, “Go ahead and Taze me, then.” It was at this point that Deputies Lopez and Maher tased Kent. Kent brought an action pursuant to 42 U.S.C. § 1983 and the deputies moved for summary judgment on the grounds of qualified and governmental immunity. Finding that the deputies’ use of the taser under the circumstances was clearly unreasonable, the district court denied the motion for summary judgment. The deputies appealed.

Holding: The Sixth Circuit affirmed the district court’s denial, holding that there was no combination of facts that would have made the officers’ use of force reasonable. Especially important to the Court was the fact that Kent’s resistance to the officers’ directions was only verbal and generally non-threatening. The Court found that, while Kent did not address the officers in a polite manner, his conduct did “not resemble the ‘continued resistance and hostility’ often present in our active resistance cases…”

Notable Points:

Kent did not pose an immediate threat to the safety of others: Even though Kent may have prevented EMTs from doing their duties, his conduct did not “resemble the physical and immediate safety threat” found in other cases in which tasing was justified. Examples of threats that warrant tasing include: a suspect who is armed, a suspect reported to be armed reaching into a bag, or a suspect whose violent resistance endangers responders.

Kent was not continuously resistant and hostile in a way that warranted use of force against him: The Sixth Circuit noted that active resistance of arrest, which would support use of a stun gun or taser by police, includes physically struggling against, threatening, or disobeying officers. It could also include refusing to allow police to handcuff a person or fleeing from police. Although Kent was not compliant with all orders given to him by police, he was not actively resisting them in a way that would have authorized use of a stun gun against him. Additionally, the Court found it important that there was “no evidence that Kent was aware that he would be detained until Deputy Lopez instructed him that he would be tased if he failed to comply with commands.”

Found in Found in DMHL Volume 35, Issue 1

Liability of Public Entities in Caring for Persons during Involuntary Commitment Process

Anderson v. Marshall Cty., Miss., No. 15-60051, 2016 WL 143303 (5th Cir. Jan. 12, 2016) (per curiam)

Estate of mentally ill person, who was taken into involuntary custody due to mental health crisis and later died in County Sheriff Department’s custody, failed to meet requirements for claims against hospital and County under 42 USC § 1983, as evidence did not demonstrate that defendants had a policy or practice amounting to deliberate indifference, as required under Monell. 

Background: After Princess Anderson arrived at a hospital in Marshall County Mississippi, she became increasingly agitated and physical with emergency room staff. Anderson tested positive for marijuana and opiates, and was diagnosed with acute psychosis. After a mental health evaluation, it was determined that Anderson required psychological care, but she refused voluntary admission. The chancery court granted the doctors’ request to have Anderson involuntarily committed and ordered the DeSoto County sheriff to take custody of her. Because Anderson was a resident of Marshall County, she was transported from DeSoto to Marshall County jail on Tuesday, February 8th. On arrival, DeSoto deputies told the Marshall County jail officer that Anderson had become agitated during the transport requiring that she be restrained. The Marshall jail officer did not review Anderson’s medical records (believing she was not entitled to view Anderson’s health information), and Anderson was placed in a cell. Although other inmates reported that Anderson needed emergency medical attention, she was not taken to a hospital until Friday, February 11th when Anderson’s mother arrived at the jail to take her to a hospital for follow-up tests. Shortly after arriving there, Anderson died of multisystem organ failure. Her mother, Angela Anderson, sued Marshall County and the Sheriff for violations of Princess Anderson’s rights under 42 U.S.C. § 1983. The district court determined that there was no § 1983 violation.

Holding: The Fifth Circuit held per curiam that Angela Anderson did not meet “the high bar required for Monell liability” under § 1983 and upheld the district court’s grant of summary judgment against her. On the failure to train claim, the Court held that the plaintiff failed to establish that Marshall County acted with deliberate indifference to the constitutional rights of inmates when adopting its training procedures. The Court also found the single incident exception to Monell’s general requirement of a pattern of unconstitutional conduct was not applicable given the evidence presented by the plaintiff.

Notable Points:

Plaintiff did not show evidence of a pattern of deliberate indifference: Anderson came forward with no evidence to show or allege a pattern of deliberate indifference to the constitutional rights of prisoners in Marshall County’s training, policies, or procedures. Without evidence of a pattern, Marshall County could not be found to have been on notice that its current training was producing unconstitutional results. Absent a pattern, the plaintiff must show deliberate indifference through the single incident exception.

Plaintiff’s evidence was not sufficient to meet § 1983’s single incident exception: The single incident exception would require that Marshall County’s training be so inadequate that the county was on notice that an untrained officer would have neglected a prisoner in the way Marshall jail officer was alleged to have done. The Fifth Circuit reiterated that “it is not enough to say that more or different training or supervision would have prevented Princess’s injuries.” It is almost always the case that more or better training could have prevented a poor outcome, so that cannot be enough to subject a county to governmental liability. Specifically, the Court said that, given the training provided, Marshall County “could not have anticipated that Officer Anderson and other correctional officers would ignore Princess’s litany of obvious ailments.”

Found in Found in DMHL Volume 35, Issue 1

Sex Offender; Probation Violation

Zebbs v. Com., 785 S.E.2d 493 (Va. Ct. App. 2016)

A defendant whose probation requirements necessitate a sex offender program may be held in violation of his probation when he refuses to abide by a central requirement of the program, namely admitting to the misconduct for which he was convicted. Defendant who entered an Alford plea is treated as if he entered a guilty plea after conviction; therefore, an admission of guilt to the crimes he was charged with does not invoke Fifth Amendment protection.

Background: Defendant Zebbs entered an Alford plea, pleading guilty to forcible sodomy, among two other charges. An Alford plea is treated the same as a guilty plea after the defendant is tried and convicted. Zebbs was required to successfully complete a sex offender treatment program to satisfy the terms of his probation, among other terms. Admitting to the offense for which the offender received probation is a mandatory part of the program. Zebbs refused to admit to his misconduct, arguing that it was a violation of his Fifth Amendment right to require him to verbally incriminate himself and punish him for not doing so. The circuit court found Zebbs in violation of his probation, and he subsequently appealed.

Holding: A valid Fifth Amendment claim must include an admission that may carry the risk of incrimination and a substantial penalty for not giving the incriminating testimony. There was no risk of incrimination here because the misconduct Zebbs was required to admit to had already been litigated and thus an admission after the fact would not give rise to incrimination. Double jeopardy would bar the prosecution of Zebbs for admitting to misconduct for which he had been tried and convicted. Therefore, the Fifth Amendment did not protect Zebbs from cooperating with the sex offender treatment terms and the circuit court did not err in finding that he violated his probation by not completing the treatment.

Found in DMHL Volume 35, Issue 2

42 U.S.C Section 1983 Liability; Emergency Custody

Goines v. Valley Cmty. Servs. Bd., No. 15-1589, 2016 U.S. App. LEXIS 8512 (4th Cir. May 9, 2016)

Claim of Fourth Amendment seizure violation by officers who used independent emergency custody authority to take person into custody for mental health evaluation survives officers’ motion to dismiss, as facts alleged by plaintiff, if proved, would establish unlawful seizure. Related claim against CSB evaluator dismissed.

Background: In a complaint filed in the district federal court, Gordon Goines alleged that, on May 15, 2014, he was experiencing problems with his cable television service and was informed by a technician that one of his neighbors had spliced into his cable, and that that was the cause of the connectivity issues. Goines, according to his complaint, went across the street to a police station to report the theft. Goines took two officers back to his apartment, but the officers did not turn on the television and so did not hear the strange noises. Instead, according to Goines, the officers asked if Goines had any mental health issues or if he “wanted to talk to someone.” Goines believed they were referring to the problem with his television and so said yes. The officers then handcuffed Goines and transported him involuntarily to the area medical center. There he was interviewed by an intake clinician employed by Valley Community Services Board, who concluded that Goines suffered from a mental illness and posed a threat to the safety of his neighbors.

Goines was hospitalized until his release on May 20, 2014. Goines then brought an action under 42 U.S.C. § 1983, alleging that he was unlawfully seized without probable cause in violation of the Fourth and Fourteenth Amendments. Goines noted in his complaint that he suffers from cerebellar ataxia, which affects his speech, balance and fine motor coordination, but that he has no mental health issues. The district court granted defendants’ motion to dismiss for failure to state a claim and dismissed the complaint in its entirety.

Holding: On appeal, the Fourth Circuit held that the claims against the mental health intake clinician and her employer were properly dismissed, but that the claims against the two officers had been dismissed in error. The court found that the allegations in Goines’ complaint were sufficient to survive a motion to dismiss with regard to the officers because the complaint provided no reasonable basis for the officers to have concluded that Goines was a danger.

Notable Points:

Goines’ complaint plausibly alleged facts that no reasonable officer would have found sufficient to justify an emergency mental health detention: The Appeals Court noted that “a motion to dismiss tests the sufficiency of a complaint,” so that the Court’s review was limited to “a review of the allegations in the complaint itself.” The defendant officers, noting that Goines had included the officers’ Incident Report as an attachment, argued that, by including the Report, Goines had adopted all of the statements in the Incident Report as true. Those statements, which described behaviors by Goines and observations of Goines by the officers that Goines did not allege in his complaint, were cited by the officers as showing good cause for Goines’ seizure, and thereby supporting the officers’ motion to dismiss. Goines argued, and the Appeals Court agreed, that while Goines relied on the Incident Report for some of the facts in his complaint, he did not base his claims on the Incident Report, and none of his claims were dependent on the truth of any statements contained in the Incident Report. Goines merely used the report to support his theory that the police assumed from his physical difficulties that he was mentally ill. The Fourth Circuit determined that Goines’ complaint alleged facts indicating that the officers failed to make a sufficient inquiry before assuming a threat and transporting him to the evaluation center. Also important to the court were the alleged facts that (1) Goines had reported to the stationhouse seeking police assistance and (2) the officers were not faced with an emergency situation that would limit their ability to conduct further inquiry.

Goines’ complaint failed to allege a constitutional violation by intake clinician: In contrast to the officers’ Incident Report, the Fourth Circuit found that Goines had incorporated by reference the intake Screening Report. Probable cause to seize a person for psychological evaluation exists “when the facts and circumstances within the defendant’s knowledge and of which the defendant had reasonably trustworthy information were sufficient to warrant a prudent man to believe that the person poses a danger to himself or others.” The Screening Report, which Goines had adopted for purposes of his claims against the clinician and community services board, showed that the clinician had observed Goines “behaving as if he were responding to visual hallucinations” and had received seemingly trustworthy information from the officers that Goines had been suffering from auditory hallucinations. Additionally, Goines, while in the clinician’s presence, threatened to attack his neighbors after his release. Taken together, the court held that these facts established probable cause for the emergency mental health detention, and supported the clinician’s motion to dismiss.

Found in DMHL Volume 35, Issue 2

Excessive Force

Hughes v. Kisela, 841 F.3d 1081 (9th Cir. 2016)

Ninth Circuit reverses district court’s grant of summary judgment to police officers based on qualified immunity when there were disputed facts as to whether the officer acted reasonably when he shot a woman who was holding a knife, but not acting aggressively.

Background: In May 2010, three officers responded to a welfare check call and reports of a woman acting erratically and hacking at a tree with a large knife. Soon after the officers arrived, Amy Hughes exited her house carrying a large kitchen knife at her side with the blade pointing backwards. Sharon Chadwick, who lived with Hughes, was standing outside the house near the driveway at the time. She later testified that Hughes was composed and content. Chadwick also testified that she did not consider Hughes a threat and was not in any fear. The three officers each drew their guns and ordered Hughes to drop the knife; Corporal Kisela contended that the officers yelled several times but Chadwick remembered hearing only two commands in rapid succession. Corporal Kisela testified that he saw Hughes raise the knife as if to attack, but the other two responding officers told investigators that they did not see her raise the knife. Corporal Kisela fired four shots each of which struck Hughes, but the injuries were not fatal. Chadwick testified that Hughes was taking medication for bipolar disorder, and Chadwick was always able to manage Hughes’s behavior in the past. Chadwick also testified that she believes Hughes did not understand what was happening when the police yelled for her to drop the knife. The district court granted summary judgment in favor of the police officer on a theory of qualified immunity.

Holding: The Ninth Circuit ruled that the officer was not entitled to summary judgment with respect to the reasonableness of his actions. The court also explained that qualified immunity requires a determination that the actions of the officer were reasonable, which in this case involved disputed facts that should properly be weighed by a jury. The Ninth Circuit reversed the grant of summary judgment and remanded for a jury to determine whether the responding officer acted reasonably.

Notable Point:

Excessive Force and Mental Illness: The Ninth Circuit noted that there are not separate excessive force analyses for those with mental illness and serious criminals, but the government interest in using such force is diminished when confronted with an individual with mental illness.

Found in DMHL Volume 35, Issue 4

Excessive Force

Aldaba v. Pickens, 844 F.3d 870 (10th Cir. 2016)

The Tenth Circuit (following remand from the U.S. Supreme Court) reverses its prior decision that had denied qualified immunity to police officers in regard to a claim they used excessive force in subduing a medical patient attempting to leave the hospital (and risking death) due to temporary delirium, finding on remand that there were no existing case decisions that would have clearly informed those officers that their conduct violated Fourth amendment standards.

Background: Johnny Manuel Leija was admitted to the hospital after feeling ill for several days and was diagnosed with dehydration and severe pneumonia in both lungs. He was initially alert and cooperative and he was given an IV and an oxygen tube. The treatment improved Leija’s condition, but a nurse later found that Leija had cut his IV and removed his oxygen tube. She also found blood on the floor and in the bathroom. The nurse reconnected his IV and oxygen tube, but Leija became increasingly agitated. A doctor prescribed Xanax to treat his anxiety, but Leija refused to take it and again removed his IV and oxygen tube while loudly claiming that the nurse was telling lies and trying to poison him. The female nurse became concerned for her safety based on Leija’s behavior and a male nurse was sent to try to calm Leija. The male nurse found Leija claiming to be god and superman. The nurse attempted to inject Leija with Haldol and Ativan to calm him, but Leija refused to cooperate. The doctor was concerned about Leija’s low oxygen levels, and the nurse did not think they could restrain Leija sufficiently to administer the drugs for treatment. Law enforcement was called to assist. Three officers responded and found Leija in the hallway walking toward the hospital lobby and exit. The doctor told the officers that if Leija left the hospital he would die. The officers ordered Leija to return to his room, but he grew more agitated. Leija removed bandages from his arms and a “fairly steady stream of blood” began to flow from both of his arms. The officers tried to calm Leija and warned him that they might use a Taser. When Leija refused to cooperate, a Taser was deployed, but one of the probes missed. The other officers grabbed Leija and struggled to subdue him. As the three officers struggled with Leija, the male nurse injected him with Haldol and Ativan. Leija went limp, grunted and vomited clear liquid almost immediately after being injected with the drugs. Medical staff began CPR, but were unable to revive him. The cause of death was determined to be respiratory insufficiency secondary to pneumonia that was exacerbated by Leija’s exertion during the struggle with the officers. The Tenth circuit originally affirmed the district court’s denial of summary judgment for the officers, but the U.S. Supreme Court remanded with instructions to reconsider consistent with Mullenix v. Luna, 136 S. Ct. 305 (2015). In Mullenix, the Court ruled that qualified immunity should be denied only when “clearly established case law” would put officers on notice that it was “beyond debate” that their actions amounted to excessive force.

Holding: The Tenth Circuit found no cases that would have informed the officers “beyond debate” that their actions would be excessive force. Accordingly, the court remanded the case with instructions for the district court to grant summary judgment in favor of the officers based on qualified immunity.

Notable Point:

Qualified Immunity analysis: The Mullenix court emphasized that courts should not define clearly established case law at a high level of generality. The Court explained that “specificity is especially important in the Fourth Amendment context” because officers may have difficulty in determining how the legal doctrine will apply to the particular factual situation with which an officer may be confronted. The Court stressed that the inquiry must be focused on the specific facts and context of a particular case.

Found in DMHL Volume 35, Issue 4

Excessive Force

Wate v. Kubler, 839 F.3d 1012 (11th Cir. 2016)

Eleventh Circuit upholds district court’s refusal to grant law enforcement officer’s motion for summary judgment based on qualified immunity in response to a claim that he used excessive force in responding to a person in mental health crisis where there was evidence that the officer Tasered the detained person at least twice after the person had stopped actively resisting the officer.

Background: James Barnes was visiting a beach on Honeymoon Island in Florida with his aunt Paula Yount in order to conduct a baptismal ritual. While in the water, Barnes began acting erratically by flailing around and yelling about a demon. The only law enforcement officer on the Island at the time was Officer Tactuk, who responded to the commotion in the water. Yount came out of the water to speak with Tactuk, who then believed there was probable cause to arrest Barnes for battery on Yount. Tactuk entered the water and attempted to arrest Barnes, but a struggle ensued and Tactuk repeatedly struck Barnes in the face. Tactuk was able to place a handcuff on one of Barnes’s hands and they continued to struggle in the water. Bystanders eventually helped Tactuk drag Barnes onto the beach. Multiple witnesses had called 911 to report the incident and Tacktuk called for backup over the police radio. Tactuk attempted to place Barnes’s other hand in handcuffs, and a bystander observed that during the struggle, Barnes was coughing blood and appeared to have difficulty breathing. Officer Kubler responded to the incident about seven minutes after Tacktuk’s initial encounter with Barnes. Kubler and Tactuk continued to struggle with Barnes until Kubler deployed his Taser a total of five times over the course of nearly two minutes. Barnes became still and the officers were able to handcuff him. There was a dispute between the officers’ testimony and that of bystanders regarding when Barnes stopped resisting. An off-duty fire lieutenant who came to the scene at that point told the officers to take the handcuffs off because Barnes was not breathing and had turned blueish gray. The officers then removed the handcuffs and began CPR. Rescue personnel responded to the scene and took over the rescue, but Barnes died two days later. The cause of death was determined to be complications of asphyxia with contributory conditions of blunt trauma and restraint. Barnes’s representative brought suit against the officers and agencies involved. The other parties in the case settled with the plaintiff, but Officer Kubler moved for summary judgment based on qualified immunity. The district court denied the motion and Kubler appealed.

Holding: The Eleventh Circuit ruled that Kubler was not entitled to summary judgment and affirmed the holding of the district court. The court found that by reviewing the evidence in the light most favorable to the plaintiff, as required at the summary judgment stage, “a reasonable officer in Kubler's position and under these circumstances would have had fair warning that repeatedly deploying a Taser on Barnes, after he was handcuffed and had ceased resisting, was unconstitutionally excessive.”

Found in DMHL Volume 35, Issue 4

Unlawful Seizure

May v. City of Nahunta, 841 F.3d 1173 (11th Cir. 2016)

Eleventh Circuit reverses district court’s grant of summary judgment based on qualified immunity in seizure of individual for mental health evaluation, finding that although the evidence supported the officer’s initial seizure, the officer carried out the seizure in a manner that violated the individual’s constitutionally protected privacy interests.

Background: Phyllis May was the sole caregiver for her mother who was suffering from Alzheimer’s with sundowning syndrome, a condition that caused her to stay awake for days at a time. May became exhausted and called her brother to come help care for her mother before lying down. When her brother arrived several hours later, he was unable to wake May and called 911. Four EMTs responded and used an ammonia capsule to wake May. The EMTs evaluated May, but she refused to be transported to the hospital and the EMTs determined that she did not require further treatment. May executed a form refusing treatment. At the same time, Officer Allen responded to a 911 call requesting assistance at May’s residence. The EMTs told Allen that May had “been a little combative to herself” and was upset. Allen entered May’s bedroom to investigate and found her hair in disarray and decided to transport her to a hospital for a psychological evaluation. Allen instructed the EMTs to leave the bedroom and then locked himself in the bedroom with May. He instructed her to take off her nightgown and put on suitable clothes to go to the hospital. May became upset and began to cry, but Allen insisted that she change, even pulling on her nightgown to remove it. May put on shorts, but Allen insisted she take them off and first put on undergarments. May refused, but Allen patted his gun and told her “yes you will.” Allen remained in the locked room with May for 15 to 20 minutes, while her sister was outside requesting the door be opened. When they emerged from the bedroom, Allen stated that he was taking May to the hospital and she again objected. Allen escorted May to the emergency room and asked hospital staff about May’s prior diagnoses before leaving. May was subsequently released from the hospital after no more than two hours. May brought suit alleging unlawful seizure, false imprisonment, assault and battery, and invasion of privacy. The district court granted Officer Allen’s motion for summary judgment based on qualified immunity

Holding: The Eleventh Circuit affirmed the district court’s finding of qualified immunity for Allen’s decision to seize May for a mental health evaluation, but reversed and remanded to determine whether the manner of the seizure unreasonably violated May’s privacy interests.

Notable Point:

Manner of Seizure: The court explained that searches conducted in an abusive fashion may violate the Constitution. The court emphasized that if Officer Allen’s alleged conduct were proven, it would be “representative of the type of unnecessarily invasive and demeaning intrusion that is undoubtedly within the sphere of what the Fourth Amendment prohibits.”

Found in DMHL Volume 35, Issue 4