Excessive force ; qualified immunity

Roell v. Hamilton Cty., 870 F.3d 471 (6th Cir. 2017)

Sixth Circuit upholds summary judgment in favor of law enforcement officers sued for use of excessive force by estate of man who died while being physically subdued and tasered by the officers in response to his acting out behaviors and active resistance of the officers.

Found in DMHL Volume 36, Issue 3

Excessive force; qualified immunity

S.B. v. County of San Diego, et al., 2017 WL 1959984 (9th Cir. May 12, 2017)

Ninth Circuit reverses district court’s refusal to grant sheriff deputy’s motion for summary judgment based on qualified immunity, finding that, while the officer’s use of lethal force was objectively unreasonable, there were no existing court decisions at the time of the event that were specific enough to give the deputy clear prior notice that his use of force in those particular circumstances would be unreasonable.

Found in DMHL Volume 36, Issue 2

Qualified Immunity, Law Enforcement, Excessive Force

Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938 (9th Cir. 2017)

Ninth Circuit held that (1) disputation about the reasonableness of deputy’s actions did not preclude granting qualified immunity, and (2) deputy was entitled to qualified immunity for the tasing and fatal shooting of the decedent because the decedent held no clearly established right not to be shot in circumstances in which he was larger than two officers, was not incapacitated by the taser, and was “winning” in hand-to-hand combat with the officers.

Found in DMHL Volume 37, Issue 1

Qualified Immunity, Excessive Force, Law Enforcement

Frederick v. Motsinger, 873 F.3d 641 (8th Cir. 2017)

Eighth Circuit held that deploying a Taser against a person in a public area who was refusing law enforcement commands to drop a knife did not violate a clearly established right and the officers were eligible for qualified immunity.

Found in DMHL Volume 37, Issue 1

Excessive force, conspiracy, and municipal liability under §1983

Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313 (11th Cir. 2015)

District court abused its discretion in dismissing plaintiff’s §1983 claims at the pleading stage on technical, procedural grounds; plaintiff’s allegation as sufficient to state a claim against individual deputies, but not the sheriff’s office as a unit, for use of excessive force and conspiracy to deprive plaintiff of constitutional rights

Background: Christopher Weiland brought an action against the sheriff's office and deputies, asserting claims under § 1983 based on allegations of excessive force and malicious prosecution, and state law claims for excessive force, intentional infliction of emotional distress, and malicious prosecution. On April 6, 2007, Weiland’s father called 911 alleging that his son, who had bipolar disorder, was “acting up,” was “on drugs,” and “probably had a gun.” Two sheriff’s deputies were dispatched and met Weiland’s father outside the house. They then proceeded, with guns drawn, toward Weiland’s bedroom and found him sitting on the edge of his bed with a shotgun in his lap. One of the deputies fired two rounds at Weiland and knocked him off the bed. While he was on the floor bleeding, the other deputy tasered him and then both deputies physically beat him before handcuffing him to a dresser. In an effort to cover up the assault, the deputies fabricated a story that Weiland first ran from the officers then pointed the shotgun at them. The district court dismissed the plaintiff’s § 1983 claims, finding that the complaint failed to comply with the form for pleadings. Weiland appealed.

Holdings: The Court of Appeals held that: (1) the district court had abused its discretion in dismissing the § 1983 claims for failure to comply with requirements for form of pleadings; (2) allegations were sufficient to support claims for use of excessive force and conspiracy to deprive arrestee of his constitutional rights; (3) allegations were insufficient to support claims for § 1983 failure-to-train and conspiracy claims against the sheriff’s office; and (4) allegations were insufficient to support a § 1983 claim that the sheriff’s office had a policy of using internal affairs investigations to cover up use of excessive force against mentally ill citizens.

Notable Points:

Claims against individual deputies: Construing the allegations in the light most favorable to the plaintiff, the Court had little difficulty in deciding that Weiland had stated a claim for use of excessive force. The Court concluded that Weiland’s injuries were cognizable under both the Fourth and Fourteenth Amendments and that his claim specified a “causal connection between the alleged cover up and the specific deprivation of [his] constitutional rights.”

Failure-to-train and claims against the sheriff’s office: Plaintiffs cannot hold local government liable under § 1983 under a respondeat superior theory, so to be successful, a plaintiff must establish that the government unit has a “policy or custom” that caused his injury. The Court held that the claims resulted from an isolated incident involving only two deputies, and that Weiland had not provided any facts supporting either a widespread deficiency in training regarding interactions with mentally ill individuals, or a deliberate indifference to the specialized training needs of deputies interacting with the mentally ill. The Court found the conspiracy allegation against the sheriff’s office similarly deficient.

Found in DMHL Volume 34 Issue 3

Excessive use of force

Estate of William E. Williams, et al. v. Indiana State Police Department (No. 14-2523), Nancy Brown v. Wayne Blanchard and Walworth County, Wisconsin (No. 14-2808) (7th Cir. August 13, 2015)

Post-Sheehan analysis of two separate excessive force claims in mental health emergencies results in sustaining summary judgment in one case and denial of summary judgment in the second case

Background: In the Williams case, family members reported to the police that Williams had taken all of his remaining Xanax, locked himself in a bathroom and reported that he had cut himself, and threatened to kill anyone who tried to enter the bathroom. The officers who responded were unable to look into the bathroom to confirm Williams’ condition, and carried out a plan in which they unlocked the bathroom door and then tasered Williams to keep him from carrying out his threats of self-harm and harm to others. The tasers had no effect on Williams, who pursued the officers through the house, swinging his knife. Officers shot and killed him. Williams’ estate brought suit alleging excessive use of force by the officers in violation of the 4 th amendment. The district court granted the defendants summary judgment based upon a finding that the officers were protected by qualified immunity. The Williams estate appealed.

In the Brown case, Nancy Brown’s son John had cut himself, had a knife in his possession and was locked in his bedroom, but his mother had a key and went into her son’s room and spoke with him. He refused help, but did not threaten to harm his mother or anyone else. The first responding officer (Officer Such) spoke with Ms. Brown and then attempted to speak with Mr. Brown through the door, but Brown only responded with a profanity. A second officer (Officer Blanchard) arrived, spoke briefly with Ms. Brown and Such, and proceeded down the hall to the bedroom door as Such went outside to look at Mr. Brown through the window. Such radioed to Blanchard that Brown was sitting at his desk, in front of his computer, drinking a beer and smoking. Declining an offer by Brown’s mother to unlock the door to Brown’s room, Blanchard kicked in the door, gun drawn. Officer Such came back inside, backing up Blanchard with his taser drawn. Brown rose with knife in hand, crossed the room, and slammed the door shut. Blanchard again kicked open the bedroom door. The officers later reported that Blanchard ordered Brown to drop the knife and advised Brown that he would have to shoot him, and that Brown responded by rolling his shoulders forward and advancing toward the officers while moving the knife “in an upward position.” The officers reported that when Brown was 5 or 6 feet away from them, Blanchard shot him twice, killing him. Nancy Brown, who was in the living room at the time of the shooting, reported that she never heard either officer tell Brown to drop his knife and that she heard the fatal shot fired almost immediately after the bedroom door was kicked open the second time. Ms. Brown sued Officer Blanchard and the county, claiming excessive force was used against her son in violation of the 4 th amendment. Blanchard moved for summary judgment but the district court denied the motion, ruling that there were material facts in dispute, and that the jury’s findings on those disputed facts could result in a finding of liability on the part of the officer, under one or both of two legal theories: (1) that Blanchard’s unreasonable “pre-seizure conduct” provoked the actions by John Brown that resulted in the shooting, and (2) that at the time of the shooting, John Brown at most was only passively resisting the officers, so that the use of lethal force against Brown was unreasonable. Blanchard appealed. The Court of Appeals consolidated the two cases.

Holdings: A 3-judge panel of the Court of Appeals upheld the rulings of each district court. In upholding Williams, the panel cited and closely followed the reasoning of the U.S. Supreme Court in City and County of San Francisco v. Sheehan, 35 S. Ct. 1765 (2015), noting that the plaintiffs could not cite any case law existing at that time that found “objectively unreasonable” the strategy of the officers. In fact, the panel noted, a number of appellate courts had specifically found similar actions in other cases to be objectively reasonable. Hence, the officers were not on notice that their actions were an excessive use of force.

In Brown, the panel upheld the district court’s denial of the officer’s request for summary judgment based on qualified immunity. The panel, noting again its reliance on Sheehan, rejected the district court’s concept of liability for “pre-seizure conduct” as not having the support of case law that would put the officer on notice that his conduct violated 4 th amendment standards. However, the panel sustained the district court’s denial of summary judgment in regard to the second theory, noting that under longstanding case law it was clear that it was unreasonable for an officer to use deadly force in response to an individual who was presenting only passive resistance to the officer.

Notable Points: The opinion is a careful and detailed consideration of the facts of each case and of the proper legal framework for a court’s analysis of those facts, particularly under the guidance provided by the U.S. Supreme Court in Sheehan. The panel rejected the Brown court’s first theory of liability: “Our case law is far from clear as to the relevance of pre-seizure conduct, or even as to a determination as to what conduct falls within the designation ‘pre-seizure,’ although the majority of cases hold that it may not form the basis for a Fourth Amendment claim.”

Why the result in Brown was different: Review standard for interlocutory appeal: The panel noted that, because Blanchard’s appeal was an interlocutory appeal from the district court’s denial of qualified immunity, the scope of the panel’s review was limited to ”the purely legal question of whether ‘a given set of undisputed facts demonstrates a violation of clearly established law.’” Panel’s acceptance of district court’s second theory of liability: The panel found that the law was clear that officers cannot use significant force on non-resisting or passively resisting suspects; so, if a jury found that the facts were as Nancy Brown described them, then Blanchard’s use of deadly force against a “passively resisting” John Brown would violate the 4 th amendment. Blanchard's “pre-seizure conduct” is relevant to this analysis because it is part of the “totality of the circumstances” that must be considered in evaluating the reasonableness of the seizure. The panel noted factors, such as: John never threatened to harm anyone else; John allowed his mother to enter his room and hug him; John was clearly seen to be passively sitting at his computer; and Blanchard chose to kick in the door to John’s room, and to immediately resort to deadly force when the non-lethal taser was immediately available.

Found in DMHL Volume 34 Issue 3

​​​​​​​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

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

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

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Case Law

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