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                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT


                                         No. 15-15611


                      D.C. Docket No. 8:14-cv-01196-VMC-TBM


PATRICIA JUANITA WATE,
individually and as personal representative of the
Estate of James Clifton Barnes, Deceased,

                                                            Plaintiff-Appellee,

versus

KENNETH KUBLER,

                                                            Defendant-Appellant.

                                    __________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                                  _________________

                                      (October 12, 2016)
Before MARCUS and WILLIAM PRYOR, Circuit Judges, and DAVIS,* District
Judge.


         * Honorable Brian J. Davis, United States District Judge for the Middle District of
Florida, sitting by designation.
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DAVIS, 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 Atased@ 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.

                                    I. Background

      A. The Tasing

      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

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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 (AATV@) 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,


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assisted by a bystander. Barnes was yelling for help and pleading for the officer to

APlease 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

Acalmed down,@ and was Ajust 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 Aeruption of blood and fluids@ spewed from Barnes= mouth with

each breath, and that Barnes was struggling to breathe.


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      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

Ahelp@ 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 Asomebody 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 Awear

down at that point@ and that Ahe wasn=t fighting as much,@ and that the situation was


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Aunder 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 Astop 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


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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 AYou 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 A[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


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back.

        B. Procedural History

        Barnes= personal representative Patricia Juanita Wate (APlaintiff@) 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

Kubler moved for summary judgment based on qualified immunity. The district

court denied Kubler=s motion for summary judgment, and Kubler timely appealed.

                                III. Standard of Review

        The Court has jurisdiction over the interlocutory appeal of the denial of

qualified immunity as a collateral order under 28 U.S.C. ' 1291. Wilkerson v.

Seymour, 

, 977 (11th Cir. 2013) (citing Mitchell v. Forsyth, 

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511, 530 (1985)). We review de novo a district court=s denial of qualified immunity

at summary judgment, and apply the same legal standards as the district court.

(11th Cir. 2013); Draper v. Reynolds, 

,

1274 (11th Cir. 2004). We resolve all issues of material fact in favor of the

plaintiff, and then determine the legal question of whether the defendant is entitled

to qualified immunity under that version of the facts. 

.

A[I]n ruling on a motion for summary judgment, >[t]he evidence of the nonmovant is

to be believed, and all justifiable inferences are to be drawn in his favor.=@ Tolan v.

Cotton, 

, 1863 (2014) (quoting Anderson v. Liberty Lobby, Inc.,

, 255 (1986)). We do not weigh conflicting evidence or make

credibility determinations; the non-movant=s evidence is to be accepted for purposes

of summary judgment. Mize v. Jefferson City Bd. of Educ., 

, 742

(11th Cir.1996); see also, e.g., Strickland v. Norfolk S. Ry. Co., 

,

1154 (11th Cir. 2012) (A>Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury functions, not those

of a judge [when] ruling on a motion for summary judgment

. . . . =@ (quoting 

)).



                                   IV. Discussion


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      A. Qualified Immunity

      AQualified immunity shields government officials from liability for civil

damages for torts committed while performing discretionary duties unless their

conduct violates a clearly established statutory or constitutional right.@ Hadley v.

Gutierrez, 

, 1329 (11th Cir. 2008). To decide whether a defendant is

entitled to qualified immunity we engage in a two-part inquiry. The defendant must

first establish that he acted within the scope of his discretionary authority when the

allegedly wrongful acts occurred. If he did, as in this case, the burden shifts to the

plaintiff to demonstrate that the defendant violated a constitutional right that was

clearly established at the time, see, e.g. Brooks v. Warden, 

, 1306

(11th Cir. 2015); Lee v. Ferraro, 

, 1194 (11th Cir. 2002), or in rare

circumstances, that the conduct was so obviously prohibited by the Fourth

Amendment that the constitutional violation would be readily apparent to the officer

with Aobvious clarity.@ Fils v. City of Aventura, 

, 1291-92 (11th Cir.

2011). To determine whether a right was clearly established, we look to binding

decisions of the Supreme Court of the United States, the United States Court of

Appeals for the Eleventh Circuit, and the highest court of the pertinent state, here

the Florida Supreme Court. See McClish v. Nugent, 

, 1237 (11th

Cir. 2007). Based on these decisions, we ask A>whether it would be clear to a


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reasonable officer that his conduct was unlawful in the situation he confronted.=@

Terrell v. Smith, 

, 1255 (11th Cir. 2012) (quoting Saucier v. Katz,

, 202 (2001), overruled in part by Pearson v. Callahan, 

,

234-36 (2009)). We may decide these two issues in either order, but to survive

Kubler=s assertion of qualified immunity, the Plaintiff must make both showings

that Kubler=s alleged conduct was unconstitutional, and that the state of the law at

the time was clearly established so as to provide Afair warning@ to Kubler that such

conduct was unconstitutional. See 

; Maddox v. Stephens,

, 1120-21 (11th Cir. 2013).

       When considering qualified immunity on a defendant=s motion for summary

judgment, we consider the record in the light most favorable to the plaintiff,

eliminating all issues of fact. A>By approaching the record in this way, the court has

the plaintiff=s best case before it. . . . [M]aterial issues of disputed fact are not a

factor in the court=s analysis of qualified immunity and cannot foreclose the grant or

denial of summary judgment based on qualified immunity[.]=@ Penley v. Eslinger,

, 848 (11th Cir. 2010) (quoting Robinson v. Arrugueta, 

,

1257 (11th Cir. 2005)). A[O]nce we have determined the relevant set of facts and

drawn all inferences in favor of the nonmoving party to the extent supportable by

the record, the reasonableness of the officer=s actions is a pure question of law.@


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(internal quotations and emphasis omitted).

      B. Constitutional Violation

      When a plaintiff alleges excessive force during an arrest, the federal right at

issue is the Fourth Amendment right against unreasonable seizures. 

. ADetermining whether the force used to effect a particular seizure is

>reasonable= under the Fourth Amendment requires a careful balancing of the nature

and quality of the intrusion on the individual=s Fourth Amendment interests against

the countervailing governmental interests at stake.@ Graham v. Connor, 

, 396 (1989) (internal quotation marks and citation omitted).

             Because A[t]he test of reasonableness under the Fourth
             Amendment is not capable of a precise definition or
             mechanical application, [citation omitted], . . . its proper
             application requires careful attention to the facts and
             circumstances of each particular case, including the
             severity of the crime at issue, whether the suspect poses
             an immediate threat to the safety of the officers or others,
             and whether he is actively resisting arrest or attempting to
             evade arrest by flight.

v. Garner, 

, 8-9 (1985)). We are charged with

examining Athe fact pattern from the perspective of a reasonable officer on the scene

with knowledge of the attendant circumstances and facts, and balanc[ing] the risk of

bodily harm to the suspect against the gravity of the threat the officer sought to

eliminate.@ McCullough v. Antolini, 

, 1206 (11th Cir. 2009) (citing


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Scott v. Harris, 

, 383 (2007)). AAlthough some amount of force is

generally needed to subdue a suspect, the amount used must be reasonably

proportionate to the need for force.@ Smith v. LePage,     F.3d    , 

, at *5 (11th Cir. August 25, 2016) (citing 

); see

also 

(observing that in determining whether the Fourth

Amendment was violated, Awe must still slosh our way through the factbound

morass of >reasonableness.=@). AThe calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make split-second

judgments - in circumstances that are tense, uncertain, and rapidly evolving - about

the amount of force that is necessary in a particular situation.@ 

. We make this inquiry without regard to the officer=s underlying intent or

motivation. 

AOfficers may use force that is >necessary in the situation at

hand.=@ 

(citation omitted). However, A[r]easonableness cuts

both ways . . . . At summary judgment, we cannot simply accept the officers’

subjective version of events, but rather must reconstruct the event in the light most

favorable to the non-moving party and determine whether the officer=s use of force

was excessive under those circumstances.@ 

v. Wilson, 

, 1347-48 (11th Cir. 2002)).

      The critical time period for purposes of determining whether Officer Kubler=s


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use of the Taser on Barnes constituted unconstitutional excessive force spans two

minutes, from 12:43:18, just before the first activation when Barnes can be heard

yelling, through 12:45:17 p.m., the time of the fifth Taser deployment. While

witness accounts of what happened vary, several witnesses testified that Barnes had

stopped resisting and had become still during this time period.

      One witness stated that Barnes was not moving when Kubler approached the

scene. AI know Mr. Barnes wasn=t moving. But he [Tactuk] like, lifts Mr. Barnes

up and begins punching him again. And then he - the ATV officer [Tactuk] tells

the marine officer [Kubler] to Tase him.@ S. Richardson (Supp. App 79); see also

S. Richardson (App. 1792-93 (Q: ARight before Mr. Barnes was Tased by the

marine officer, was Mr. Barnes making any movement that you could see? [A:] Not

that I recall. I don=t believe so.@). A second witness responded to questions as

follows:

             Q:     At the point in time when Mr. Barnes was Tased,
             right before that, do you remember seeing any movement
             by Mr. Barnes at that time before he was Tased?

             A:    No.

B. Szenay (App. 1704). Another witness said that he saw Avery minimal@ body

movements by Barnes after Kubler arrived at the scene. AI didn=t see a lot of

movement other than maybe floundering feet around a little bit.@ J. Hutzler (Supp.


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); see also J. Hutzler (App. 1256). Another witness testified:

             A:    He was still face down and the DEP officer
             [Tactuk] had control of him, but he wanted to like raise
             up or move or whatever. And it appeared that they
             wanted submission and they weren=t going to get it.
                                        ...

                     I didn=t see anything out of the ordinary. Actually,
             at that point he was more submissive than any, because he
             was so wore out. . . .

             Q:    Was his leg flailing around or moving around?

             A:    No.
                                         ...

                   Oh, he tried to get up, yeah.
                                         ...

                     No [the handcuffs] weren=t [in the normal position].
              And the only way he [Barnes] could have gotten up is to
             like roll over and do a swing move to get up and all that,
             so . . . He was face down. So they [the officers] would
             have had no problem at all.

C. Szenay (Supp. App. 30-31). Kubler had warned Barnes to cooperate or be tased,

and then Kubler Awent straight for the taser.@ 

And yet another witness

testified he saw Barnes struggling and kicking as Kubler was by Barnes= side

holding Barnes= head on the ground, and observed that Barnes was kicking his legs

when Kubler gave two warnings and shot the Taser. After the second tasing,

however, AMr. Barnes went stiff, stopped moving, and then a second later, started


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kicking his legs again. And then all of a sudden, just stopped kicking, stopped

moving, stopped doing everything. . . . Mr. Barnes was not moving at all. And the

marine officer [Kubler] tased him again,@ and then tased Barnes a fourth time. J.

Esposito (App. 964).

      We have held that noncompliance or continued physical resistance to arrest

justifies the use of force by a law enforcement officer. See 

(holding that the use of Taser to effectuate an arrest did not constitute

excessive force when the suspect repeatedly refused to comply with the officer=s

verbal commands). However, Agratuitous use of force when a criminal suspect is

not resisting arrest constitutes excessive force.@ 

; see also

(holding that once an arrest has been fully secured and any

potential danger or risk of flight vitiated, a police officer cannot employ severe and

unnecessary force).

      Construing the evidence in favor of Plaintiff, the 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. 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


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weapon and was awkwardly handcuffed, which, drawing inferences from the facts

in a light favorable to Plaintiff, had a greater than normal effect of further

neutralizing Barnes. The record establishes that 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 to the

public. Under these circumstances, further shocks were unnecessary and grossly

disproportionate, and a jury could find that Kubler=s use of a Taser on Barnes five

times was unreasonable force.

      To be sure, Kubler and Tactuk both testified that Barnes continued to resist

violently throughout all of the tasings, and other witnesses agreed that Barnes was

still rising up, kicking, struggling and refusing to comply with the officers=

commands. As noted by the Supreme Court in a similarly charged and disputed

excessive force case, A[t]he witnesses on both sides come to this case with their own

perceptions, recollections, and even potential biases. It is in part for that reason that

genuine disputes are generally resolved by juries in our adversarial system.@ 

. We are tasked at this summary judgment stage not with

weighing the evidence, making credibility choices or determining the truth of the


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matter, but with deciding whether there is a genuine issue for trial, viewing the

evidence and making reasonable inferences in the light most favorable to Plaintiff.

See 

1868.

      C.     Clearly Established

      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. In Lee,

, we found that the officer who arrested a female motorist for a horn-

honking offense, was not entitled to qualified immunity on summary judgment

when he slammed the head of the non-resisting arrestee against the trunk of her car,

after pulling her from the vehicle and handcuffing her. We held that based on the

plaintiff=s account of the facts, Ait is abundantly clear@ that the officer used force

that was Aplainly excessive, wholly unnecessary, and, indeed, grossly

disproportionate under 

. At this point, after the

plaintiff had been arrested and secured in handcuffs, she Aposed no threat at all to

the officer or to anyone else and no risk of flight,@ making the officer=s use of force

Aunnecessary and disproportionate.@ 

2008, we held that an officer who punched an arrestee in the

stomach while the arrestee was handcuffed and not struggling or resisting, was not


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entitled to summary judgment on qualified immunity from the arrestee=s ' 1983

excessive force action. 

. In Hadley, the arrestee had

entered a grocery store and was yelling and creating a commotion while high on

cocaine. Two officers arrested the plaintiff for resisting arrest with violence, and

handcuffed him while still in the store. 

Though the plaintiff and the

officers gave differing accounts of what happened next, we construed the facts in

the plaintiff=s favor on the officers= motions for summary judgment, finding that the

officer punched the arrestee in the stomach after he was handcuffed and was not

struggling or resisting. 

We held that after being handcuffed, the

plaintiff Aneither resisted arrest nor posed a danger to [the officer] sufficient to

warrant a blow to the stomach. Thus [the officer] was not entitled to use force at

that time.@ 

this Court considered the reasonableness of an officer=s repeated use

of a Taser on an individual who was not accused of any crime; was not belligerent

or aggressive or a risk of flight, and did not pose an immediate threat to the officer

or others. Oliver v. Fiorino, 

, 902, 906 (11th Cir. 2009). The officer

in Oliver deployed a Taser multiple times, even after the individual was

Aimmobilized,@ Alimp,@ and Awrithing in pain.@ 

Under those

circumstances, we held that the officer was not entitled to qualified immunity


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because the force used was Aso plainly unnecessary and disproportionate that no

reasonable officer could have thought that this amount of force was legal under the

circumstances.@ 

Slicker v. Jackson, 

, 1233 (11th Cir.

2000) (Crediting unambiguous testimony that after plaintiff was arrested and

handcuffed, officers repeatedly hit arrestee=s head on the pavement, kicked him, and

knocked him unconscious, Asuggests the officers used excessive force in beating

Slicker even though he was handcuffed and did not resist, attempt to flee, or

struggle with the officers in any way.@).

      In light of this precedent, a reasonable officer in Kubler=s position would

have had fair warning that repeatedly tasing Barnes after he was handcuffed and

had ceased struggling and resisting was unreasonable under the Fourth Amendment.

Kubler is not entitled to qualified immunity on Plaintiff=s excessive force claim at

this stage of the proceedings.

                                   V. Conclusion

      The facts, when viewed in the light most favorable to Plaintiff, demonstrate

that Officer Kubler=s multiple tasings of Barnes, after an arrest had been fully

secured and any potential danger or risk of flight eliminated, violated Barnes=

clearly established constitutional right to be free from excessive force. For this

reason, we AFFIRM the order of the district court denying Officer Kubler=s motion


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for summary judgment on qualified immunity grounds.




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