Department of Homeland Security

Federal Law Enforcement Training Centers

Office of Chief Counsel

Legal Training Division 

November 2016

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

ENFORCEMENT OFFICERS AND AGENTS

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Welcome to this installment of The Federal Law Enforcement Informer (The Informer). The Legal Training Division of the Federal 

Law Enforcement Training Centers’ Office of Chief Counsel is dedicated to providing law enforcement officers with quality, useful 

and timely United States Supreme Court and federal Circuit Courts of Appeals reviews, interesting developments in the law, and 

legal articles written to clarify or highlight various issues. The views expressed in these articles are the opinions of the author and 

do not necessarily reflect the views of the Federal Law Enforcement Training Centers. The Informer is researched and written by 

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This edition of The Informer may be cited as 11 INFORMER 16.
2

The Informer – November 2016

Supreme Court Preview

Hernandez v. Mesa: Application of the Fourth Amendment outside the United States, excessive

force, qualified immunity, Bivens.....................................................................................5

Shaw v. United States: Whether a prosecution for bank fraud under 18 U.S.C. § 1344(1) requires the 

government to prove the defendant intended the bank to be the primary financial victim of the fraud......5

♦

Case Summaries

Circuit Courts of Appeals

Fifth Circuit

United States v. Turner: Whether an officer conducted a lawful plain view seizure of a 

bag of gift cards from a vehicle, and whether the defendant had a reasonable expectation 

of privacy in the information contained on the magnetic strips on the backs of the cards............7

United States v. Ramirez: Whether a Border Patrol agent on roving patrol had 

reasonable suspicion to conduct a traffic stop...............................................................8

Sixth Circuit

United States v. Pacheco: Whether an officer conducted a lawful Terry frisk after a traffic

stop, and whether the officer lawfully seized contraband from the defendant’s pocket...............9

Eighth Circuit

United States v. Walker: Whether officers conducted a lawful traffic stop, and whether

the officers lawfully extended the duration of the stop to conduct a warrantless search 

of the defendant’s car under the automobile exception to the warrant requirement...................10

Eleventh Circuit

Fish v. Brown: Whether officers were entitled to qualified immunity after they entered

the defendant’s house without a warrant while escorting the defendant’s former girlfriend

so she could retrieve personal property.....................................................................11

Wate v. Kubler: Whether an officer was entitled to qualified immunity after he deployed his

Taser five times within a two-minute period against a handcuffed person, where there were 

conflicting witness accounts regarding the amount of resistance being offered by the person......12

♦
3

FLETC Informer Webinar Series 

1. Protective Sweeps

2-hour webinar presented by Bruce-Alan Barnard, FLETC Legal Division

This webinar will explore in-depth the warrantless “protective sweep” doctrine as it has 

evolved from Maryland v. Buie. We will discuss the rule generally, and then look at 

differences in the application of the doctrine in different situations by reviewing cases 

from the various circuits.

Date and Time: Monday December 5, 2016 2:30 p.m. EST 

To join this webinar: https://share.dhs.gov/informer

2. Law Enforcement Legal Refresher Training 

3-hour webinar presented by Bruce-Alan Barnard, FLETC Legal Division

This three-hour block of instruction focuses on Fourth and Fifth Amendment law and is 

designed to meet the training requirements for state and federal law enforcement officers 

who have mandated three-hour legal refresher training requirements. 

Date and Time: Thursday December 8, 2016 8:00 a.m. EST

To join this webinar: https://share.dhs.gov/informer

3. Self-Incrimination and Miranda

1-hour webinar presented by Bruce-Alan Barnard, FLETC Legal Division

This webinar will discuss the 5th Amendment’s Self Incrimination Clause,

and provide an overview of when Miranda is required.

Date and Time: Monday December 19, 2016 2:30 p.m. EST

To join this webinar: https://share.dhs.gov/informer

Bruce’s Brownbag Webinar

Each week, Bruce Barnard selects a very recent Federal case that is "hot off the press" and 

discusses the impact and possible lessons learned for law enforcement officers. This webinar 

series is intentionally offered over the lunch break, so pack your lunch on Wednesday, eat at your 

desk, and join us for an interesting discussion on cases involving the legal aspects of law 

enforcement. The site is always running and you can download slides and recordings of 

previous webinars in the archives on the site. We hope to see you every Wednesday!

1. Wednesday December 7, 2016 - 11:45 a.m. to 12:15 p.m. (EST)

2. Wednesday December 14, 2016 - 11:45 a.m. to 12:15 p.m. (EST)

3. Wednesday December 21, 2016 - 11:45 a.m. to 12:15 p.m. (EST)

4. Wednesday December 28, 2016 - 11:45 a.m. to 12:15 p.m. (EST)

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4

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broadcast of a previously aired webinar. 

1. Wednesday December 7, 2016 - 12:15 a.m. to 1:15 p.m. (EDT)

Cops, Canines, and Curtilage

2. Wednesday December 14, 2016 - 12:15 a.m. to 3:15 p.m. (EDT)

Law Enforcement Legal Refresher Training (from December 8, 2016)

3. Wednesday December 21, 2016 - 12:15 a.m. to 1:15 p.m. (EDT)

Understanding the New DOJ Profiling Guidelines (from April 2016)

4. Wednesday December 28, 2016 - 12:15 a.m. to 1:15 p.m. (EDT)

Self-Incrimination and Miranda (from December 19, 2016)

To join a Rewind Wednesday webinar: https://share.dhs.gov/informer

♦

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5

Supreme Court Preview

Fourth Amendment: Use of Force / Qualified Immunity / Bivens

Hernandez v. Mesa

Decision Below: 785 F.3d 117 (5th Cir. 2015); http://cases.justia.com/federal/appellatecourts/ca5/11-50792/11-50792-2015-04-24.pdf?ts=1430136043 

A United States Border Patrol Agent Jesus Mesa, Jr., standing in the United States, shot and killed 

Sergio Hernandez Guereca, a fifteen-year old Mexican citizen, standing in Mexico. Hernandez’s 

parents filed a lawsuit against Agent Mesa, his supervisors, and the United States government. 

The lawsuit alleged that Agent Mesa violated the Fourth Amendment by using excessive force 

against Hernandez, and the Fifth Amendment by depriving Hernandez of due process. 

The Fifth Circuit Court of Appeals held that Agent Mesa was entitled to qualified immunity on 

the Fourth Amendment excessive force claim. The court concluded the Fourth Amendment’s

protection against excessive force did not apply to Hernandez because Hernandez was a Mexican 

citizen who lacked any real connection to the United States, and he was in Mexico when Agent 

Mesa shot him. Concerning Hernandez’s Fifth Amendment claim, the court held that it was not 

clearly established at the time of the incident that Agent Mesa’s conduct was unlawful.

Hernandez appealed, and the United States Supreme Court agreed to hear the case.

The issues before the Supreme Court are:

1. What standard should courts apply to determine whether the Fourth Amendment

applies outside the United States. 

2. May qualified immunity be granted or denied based on facts, such as the victim’s 

legal status, which are not known to the officer at the time of the incident. 

3. Whether Hernandez can bring a claim against Agent Mesa under Bivens v. Six 

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

The Court has not yet scheduled oral arguments in this case.

*****

Bank Fraud: 18 U.S.C. § 1344(1)

Shaw v. United States

Decision Below: 781 F.3d 1130 (9th Cir. 2015); http://cases.justia.com/federal/appellatecourts/ca9/13-50136/13-50136-2015-03-27.pdf?ts=1427475665

Shaw had access to Stanley Hsu’s bank statements, which contained Hsu’s personal information. 

Using Hsu’s personal information, Shaw opened an email account in Hsu’s name, and then used 

this email account to open a PayPal account. Shaw “linked” the PayPal account to Hsu’s account 

with Bank of America. Shaw subsequently transferred money out of Hsu’s bank account into the 

PayPal account he controlled. 

The government charged Shaw with Bank Fraud under 18 U.S.C. § 1344(1).
6

The Bank Fraud Statute, 18 U.S.C. § 1344, makes it a crime to knowingly execute a scheme: 

(1) To defraud a financial institution, or 

(2) To obtain money, funds, credit, assets or other property held or owned by a 

financial institution by false pretenses or fraud.

Shaw argued that a prosecution under § 1344(1) required the government to prove the defendant 

intended the bank to be the primary financial victim of his fraud, as a majority of the federal 

circuits have held. Shaw claimed the government did not satisfy this requirement, as Shaw 

intended his primary financial victim to be Hsu, a bank customer. 

The district court disagreed, as did the Ninth Circuit Court of Appeals, which adopted the minority 

view, and affirmed Shaw’s conviction. 

Shaw appealed, and the United States Supreme Court agreed to hear the case to resolve a split 

among the circuits. 

The issue before the Court is:

1. Whether a scheme to defraud a financial institution under 18 U.S.C. § 1344(1)1

requires proof of specific intent not only to deceive, but also, to defraud a bank.

The Court heard oral arguments in this case on October 4, 2016.

*****

 1 In Loughrin v. United States, 134 S.Ct. 2384, 2387 (2014), the Supreme Court interpreted 18 U.S.C. § 1344(2), 

and held that it does not require the government to prove that the defendant intended to defraud the bank. 
7

CASE SUMMARIES

Circuit Courts of Appeal

Fifth Circuit

United States v. Turner, 2016 U.S. App. LEXIS 18480 (5th Cir. October 13, 2016)

An officer stopped a car driven by Henderson for a traffic violation. During the stop, the officer 

discovered Turner, a passenger, had an outstanding warrant for his arrest. The officer ordered 

Turner to exit the car, and when he did, the officer saw an opaque plastic bag protruding from 

under the front passenger seat. The officer placed Turner in his patrol car and then asked 

Henderson what was inside the bag. Henderson handed the officer the bag, which contained over 

100 gift cards. Henderson told the officer Turner bought the cards, but denied having a receipt 

for the purchase. 

After the officer spoke with other officers about their experiences with stolen gift cards, the officer 

seized the cards as evidence of suspected criminal activity. A subsequent warrantless scan of the 

magnetic strips on the backs of the gift cards revealed that at least forty-three cards had been 

altered. Specifically, the numbers encoded on the magnetic strips did not match the numbers 

printed on the front of the cards. 

The government charged Turner with aiding and abetting the possession of unauthorized access 

devices.

Turner filed a motion to suppress the gift cards. 

First, Turner argued the warrantless seizure of the gift cards violated the Fourth Amendment. 

The court disagreed. The court held that the officer conducted a valid plain view seizure of the 

gift cards. For a lawful plain view seizure, the officer must have lawful authority to be in the 

location from which he viewed the evidence, and the incriminating nature of the evidence must 

be “immediately apparent.” The incriminating nature of an item is immediately apparent if the 

officer has probable cause to believe the item is either evidence of a crime or contraband. 

The court held the officer had probable cause to believe the gift cards were contraband or evidence 

of a crime. Fist, the officer saw a plastic bag containing over 100 gift cards that appeared to have 

been concealed under the front passenger seat. Second, Henderson admitted to not having receipts 

for the gift cards, and told the officer that he and Turner had purchased the gift cards from an 

individual who sold them “for a profit.” Finally, the officer conferred with other officers who had 

experience with large numbers of gift cards being associated with drug dealing, fraud, and theft. 

Next, Turner argued that scanning the magnetic strips on the backs of the gift cards without first 

obtaining a search warrant violated the Fourth Amendment. 

Again, the court disagreed. The court joined the other circuits that have considered this issue2 and 

concluded that Turner did not have a reasonable expectation of privacy in the information encoded 

 2 See U.S. v. Bah, 794 F.3d 617, 633 (6th Cir. 2015), 8 Informer 15; U.S. v. De L’Isle, 825 F.3d 426, 432-33, (8th 

Cir. 2016), 7 Informer 16.
8

on the magnetic strips on the back of the gift cards. First, companies that issue gift cards and 

credit cards encode a small amount of information in the magnetic strip on the backs of the cards, 

which can only be altered by using a device not commonly possessed by most people. Second,

the purpose of gift cards and credit cards is to facilitate commercial transactions. Finally, third 

parties, such as cashiers, will often do the same kind of “swiping” of the gift and credit cards as 

law enforcement did in this case. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/15-50788/15-50788-

2016-10-13.pdf?ts=1476401433

*****

United States v. Ramirez, 2016 U.S. App. LEXIS 18540 (5th Cir. Tex. Oct. 14, 2016)

At 9:30 p.m. on a Wednesday, Border Patrol agent Espinel was sitting in his patrol car in the 

median of U.S. Highway 77 approximately forty-five miles north of the Mexican border, several 

miles south of the Sarita immigration checkpoint. Agent Espinel had been an agent for six years 

and had been patrolling this stretch of Highway 77 near Raymondville, Texas for more than nine 

months. Highway 77 is a known smuggling route and Agent Espinel had made over 150 alien 

arrests in this area. In addition, Agent Espinel knew that Tuesday, Wednesday, and Thursday 

nights saw the most smuggling activity, with smugglers dropping off aliens south of the Sarita 

checkpoint, typically using SUVs or pickup trucks. 

Agent Espinel saw Ramirez drive past in a Ford F-150 pickup truck, and noticed that Ramirez 

appeared to “duck down” as he passed. Agent Espinel also saw three or four passengers in the 

back of the truck who “ducked down” when they saw him. Agent pulled behind Ramirez and saw 

heads in the back of Ramirez’s truck “popping up and down.” Agent Espinel activated his 

emergency lights and pulled Ramirez over. As he was stopping, Agent Espinel saw two 

passengers get out of the truck and run away. Agent Espinel detained Ramirez and the four 

remaining passengers, two of whom turned out to be illegal aliens.

The government charged Ramirez with transporting illegal aliens.

Ramirez argued that Agent Espinel did not have reasonable suspicion to stop him.

The court disagreed. A roving Border Patrol agent may stop a vehicle if he has reasonable 

suspicion to believe the vehicle is involved in illegal activity. Here, Agent Espinel was an 

experienced officer who had been patrolling Highway 77 near Raymondville for almost one year. 

Next, Agent Espinel saw Ramirez’s truck forty-five miles north of the border, well south of the 

Sarita checkpoint. Agent Espinel saw Ramirez and his passengers acting as if they were very 

nervous when they saw him. Finally, Ramirez was driving a type of vehicle known to be popular 

among smugglers, on a highway, and on a day of the week popular among them. Based on these 

factors, the court held that Agent Espinel had reasonable suspicion to stop Ramirez. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/15-40887/15-40887-

2016-10-14.pdf?ts=1476487832

*****
9

Sixth Circuit

United States v. Pacheco, 2016 U.S. App. LEXIS 19495 (6th Cir. October 28, 2016)

An officer received a tip from a confidential informant (CI) that two Hispanic men in a silver 

Lincoln Navigator were moving narcotics from a specific apartment complex that evening. The 

apartment complex was located in an area known for drug trafficking, gun violence and gang 

activity. The officer set up surveillance in an unmarked police car, and within forty-five minutes, 

he saw a silver SUV exit the apartment complex parking lot. The officer followed the SUV, 

verified that it was a silver Lincoln Navigator, and that it contained two Hispanic male occupants. 

After the SUV failed to properly signal a turn, the officer requested an officer in a marked patrol 

car conduct a traffic stop. 

A marked police car, with two uniformed officers followed the SUV and conducted a traffic stop 

after the SUV briefly crossed the double-yellow line. During the stop, one of the officers 

approached the SUV and encountered Pacheco, who was in the front passenger seat. The officer 

asked Pacheco for identification, but Pacheco did not respond. Instead, Pacheco rummaged

through the glove compartment, ruffling papers, but removed nothing. The officer noticed that 

Pacheco was extremely nervous, would not make eye contact with him, and that Pacheco kept 

glancing over at his left leg, near the center console. Knowing the glove box, the floorboard area, 

and the center console are all often used to conceal weapons, the officer asked Pacheco to exit the 

vehicle. Pacheco did not respond or comply with this order. The officer asked Pacheco to exit 

the vehicle a second time, and opened the door for him. Pacheco got out of the vehicle and the 

officer immediately conducted a Terry frisk. On Pacheco’s right side, the officer felt a large 

“chunk of money on his right cargo pocket. When the officer went to frisk Pacheco’s left side, he 

saw the top of a brick-like object, wrapped in brown paper and tape, protruding approximately 

one inch out of the top of Pacheco’s left cargo pocket. As the officer patted this area down, he 

could feel that the object in the cargo pocket was “like a solid brick,” and was approximately six 

to eight inches long. Based on these observations and his experience, the officer believed the 

object in Pacheco’s pocket was brick cocaine. The officer seized the suspected brick cocaine and 

the currency. 

The government charged Pacheco with possession with intent to distribute cocaine.

Pacheco filed a motion to suppress the cocaine and currency seized from him during the stop.

First, the court held the officers conducted a lawful stop of the SUV. The officers received 

information from another officer that the driver of the SUV failed to properly signal a turn and 

they also saw the driver briefly cross the double-yellow line. Even if the uniformed officers’ 

motivation for stopping the SUV was to assist in the investigation of a drug case, the two traffic 

violations justified the officers in stopping the SUV. 

Second, the court noted that during a traffic stop, it is well established that an officer may order 

passengers out of the vehicle pending the completion of the stop.

Third, the court held the officer established reasonable suspicion that Pacheco might be armed 

and dangerous; therefore, he was entitled to conduct a Terry frisk. The court concluded that 

Pacheco’s extreme nervousness, his failure to acknowledge the officer’s presence, his failure to 

obey the officer’s commands to produce identification and exit the car, as well as the time of day 

and the high-crime nature of the neighborhood supported the officer’s belief that Pacheco might 

be armed. 
10

Fourth, the court held the seizure of the cocaine and currency from Pacheco’s pockets was lawful. 

During a Terry frisk for weapons, an officer may seize objects believed to be contraband as long 

as: 

(1) The officer is in a lawful position from which he views or feels the object; (2) 

the object’s incriminating nature is immediately apparent; and (3) the officer has 

lawful right of access to the object. 

Here, because of the traffic stop, Pacheco’s removal from the vehicle, and Terry frisk of his person 

were lawful, the court held that the officer was in a lawful position to view and then feel the 

contraband. In addition, the officer had a lawful right to access the contraband, as it was 

discovered before the Terry frisk was completed. Finally, the court found that the incriminating 

nature of the seized items was immediately apparent to the officer. After removing the large 

“chunk of money” from Pacheco’s right cargo pocket, the officer noticed a brick-like object 

partially sticking out of his left cargo pocket. The officer saw the object was wrapped in brown 

paper and bound together with tape. When the officer frisked the pocket, he discovered the brick 

was solid and around six to eight inches long. Combining his sight and his touch with his training 

and experience, the officer concluded “within seconds” that the object in Pacheco’s left cargo 

pocket was probably brick cocaine. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca6/16-3376/16-3376-

2016-10-28.pdf?ts=1477693836

*****

Eighth Circuit

United States v. Walker, 2016 U.S. App. LEXIS 18651 (8th Cir. Minn. Oct. 18, 2016)

Two officers on patrol stopped Walker’s car after they saw that it had a cracked windshield they 

believed obstructed the driver’s vision, in violation of Minnesota Statues § 169.71(a)(1). The 

officers approached the car, and when Walker rolled down the windows, the officers smelled the 

odor of fresh, unburned marijuana. The officers searched the car and found a glass pipe, along 

with a rock-like substance they believed to be cocaine, underneath the driver’s seat. The officers 

arrested Walker, and then continued to search his car. In the trunk, the officers found a 12-gauge 

shotgun, a box containing shotgun shells, and a high-capacity rifle magazine filled with 

ammunition.

The government charged Walker with being a felon in possession of a firearm and ammunition. 

Walker filed a motion to suppress the evidence seized from his car. First, Walker argued the 

windshield was not cracked to the extent that it impeded the driver’s view; therefore, the officers 

did not conduct a lawful traffic stop.

The court disagreed. The court noted that the district court found the officer’s testimony that he 

believed the crack in the car’s windshield obstructed the driver’s view, to be credible. Even if the 

officer was mistaken, the court held the officer’s observations regarding the severity of the crack 

provided a reasonable basis to believe that Walker was violating § 169.71(a)(1). 
11

Walker further argued the officers impermissibly extended the duration of the stop beyond the 

time necessary to investigate the cracked windshield. 

Again, the court disagreed. Here, the officers smelled unburned marijuana immediately after 

Walker lowered the car’s windows. This information provided the officers a reason to detain 

Walker that was independent of the cracked windshield. In addition, smelling the unburned 

marijuana provided the officers probable cause to conduct a warrantless search of Walker’s car 

under the automobile exception to the Fourth Amendment’s warrant requirement. Consequently, 

the court held the officers lawfully detained Walker and searched his car after the initial traffic 

stop.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca8/15-2921/15-2921-

2016-10-18.pdf?ts=1476804646

*****

Eleventh Circuit

Fish v. Brown, 2016 U.S. App. LEXIS 17778 (11th Cir. Fla. Oct. 3, 2016)

Anthony Fish and Margo Riesco were involved in a relationship for approximately two years. 

After Fish ended the relationship, Riesco told Fish that she wanted to retrieve her personal 

belongings from Fish’s house. Before going to Fish’s house, Riesco stopped at the local sheriff’s 

office and requested a law enforcement escort because she “feared for her safety.” As a result, 

Deputy Harrison and Deputy Loucks were separately directed by a supervisor to meet Riesco at 

Fish’s house.

The deputies met Riesco and followed her as she drove her car to the rear of Fish’s house. Riesco 

parked next to Fish’s vehicle, exited her car and walked up to a glass door that opened into a 

sunroom. The deputies followed Riesco as she opened the unlocked glass door and walked into 

the sunroom. Riesco then knocked on an interior wooden door and called out to Fish. Fish opened 

the wooden door, where he saw the deputies standing behind Riesco. Riesco greeted Fish and 

told him that she brought the deputies with her “to watch so I don’t steal nothing of yours, okay?” 

Fish responded, “all right,” and allowed Riesco and the deputies to enter his house. One of the 

deputies asked Fish what personal items Riesco had in his house, and Fish replied that everything 

Riesco left was in a drawer in a bedroom that adjoined the living room and kitchen area in which 

the parties were standing. From the kitchen area, Deputy Harrison saw a large revolver hanging 

in its holster from one of the bedposts through the open bedroom door. Deputy Harrison also saw 

a number of other long guns under the bed. Deputy Harrison knew that Fish was prohibited from 

possessing firearms by the terms of a domestic violence injunction entered by a state court judge 

a month earlier. Deputy Harrison arrested Fish for possessing firearms in violation of the domestic 

violence injunction.

The criminal charges against Fish were eventually dismissed, and he filed a lawsuit against 

Deputies Harrison and Loucks. Among other things, Fish claimed the deputies violated the Fourth

Amendment by entering his house without a warrant or consent. 

The district court held that Deputies Harrison and Loucks were entitled to qualified immunity,

and Fish appealed. 
12

The Court of Appeals agreed with the district court and held the deputies were entitled to qualified 

immunity. The deputies followed Riesco around to the back of Fish’s house where she parked 

next to Fish’s vehicle. Riesco entered the sunroom through an unlocked door to the interior wood 

door and knocked. Consequently, the deputies reasonably could have believed that the sunroom 

was “impliedly open to use by the public” for the purpose of gaining access to the interior areas 

of the house. 

Next, the Court of Appeals agreed with the district court, which found that Fish consented to the 

deputies entry into the interior of his house from the sunroom. Fish responded by saying “all 

right,” when Riesco told him that she brought the deputies with her so she could make sure she 

did not steal anything from his house. By affirmatively responding to Riesco’s introduction of 

the deputies, fish gave what any reasonable person would have considered explicit verbal consent 

for the officers to enter his house. In addition, neither deputy invoked his authority as a law 

enforcement officer by demanding entry or brandishing a weapon to obtain Fish’s consent to enter. 

Instead, the deputies just followed Riesco into the house after Fish said it was “all right.”

Finally, the Court of Appeals agreed with the district court, which held that the deputies made a 

plain view seizure of the firearms from Fish’s house. After lawfully entering Fish’s house, Deputy 

Harrison saw the firearms through an open bedroom door. The incriminating nature of the 

firearms was immediately apparent to Deputy Harrison, as he knew of the existence of the 

domestic violence injunction against Fish and that such injunctions prohibited the possession of 

firearms. 

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca11/15-12348/15-

12348-2016-10-03.pdf?ts=1475512283

*****

Wate v. Kubler, 2016 U.S. App. LEXIS 18365 (11th Cir. Fla. Oct. 12, 2016)

James Barnes and his aunt, Paula Yount, went to the beach to conduct a baptismal ritual. While 

in the water, Barnes, who was 5 feet 10 inches tall and weighed 290 pounds, began acting 

erratically by flailing his arms and yelling loudly about a demon. Officer Tactuk responded to the 

disturbance and spoke with Yount about the situation. Officer Tactuk ordered Barnes out of the 

water, believing that he had probable cause to arrest Barnes for battery on Yount. Barnes refused, 

and a violent struggle ensued between Officer Tactuk and Barnes. After approximately fiveminutes, Officer Tactuk pulled Barnes from the water, and with assistance from three bystanders, 

secured Barnes in handcuffs. Officer Tactuk radioed for assistance, stating that he had a violent, 

mentally ill person in custody. Although handcuffed, Barnes continued to struggle, and Officer 

Tactuk deployed pepper spray into Barnes’ face.

A short time later, Officer Kubler arrived. At this point, Barnes was lying on his back, screaming, 

yelling and struggling with Officer Tactuk, who was straddling him. Officers Kubler and Tactuk 

rolled Barnes onto his stomach so they could re-position the handcuffs. Barnes continued to resist 

by kicking the officers and biting Officer Tactuk’s hand. Officer Kubler warned Barnes to stop 

resisting, or he was going to tase Barnes. Barnes ignored Officer Kubler and continued to resist. 

Officer Kubler issued Barnes a second warning, which he ignored. Officer Kubler then deployed 

his Taser against Barnes. Officer Kubler activated his Taser against Barnes five times for 5, 3, 5, 

4, and 5 seconds respectively, over a two-minute period. By this time, Barnes had stopped moving
13

and did not appear to be breathing. The officers removed the handcuffs and began to administer 

CPR on Barnes. Barnes was transported to the hospital where he died two days later. 

Barnes personal representative, Wate, filed a lawsuit against Officers Kubler, Tactuk and their 

respective agencies. Wate claimed the officers violated the Fourth Amendment by using excessive 

force against Barnes. After the state agencies and Officer Tactuk settled with Wate, those claims 

were dismissed. Officer Kubler filed a motion for summary judgment, claiming that he was 

entitled to qualified immunity.

The district court held that Officer Kubler was not entitled to qualified immunity, and Kubler 

appealed. 

To prevail against an officer’s motion for summary judgment based on qualified immunity, a 

plaintiff must allege the officer’s conduct was unconstitutional, and that the law was clearly 

established so as to provide the officer fair warning that such conduct was unconstitutional. In 

addition, the court is bound to consider the facts as alleged by the plaintiff to be true. The court 

does not weigh the evidence presented by the parties, nor does it determine which witnesses to 

believe if conflicting accounts of an incident are provided, as those are both functions of the jury.

Against this backdrop, the Court of Appeals agreed with the district court that Officer Kubler was 

not entitled to qualified immunity. The court noted that the critical period to determine whether 

Officer Kubler’s use of the Taser on Barnes constituted excessive force spanned two minutes, 

from just before Kubler deployed the Taser until the time of the fifth activation. While witness 

accounts varied, several witnesses testified that Barnes had stopped resisting and had become still 

during this period. However, Officers Kubler and Tactuk testified that Barnes continued to resist 

violently throughout all activations of the Taser. Considering the evidence as alleged by the 

plaintiff to be true, the record in the district court established that while the first or second Taser 

deployment might have been reasonable, there was competent unambiguous evidence presented 

that by the third tasing, Barnes was handcuffed, immobile and no longer resisting. Consequently, 

a reasonable officer in Kubler’s position would conclude that Barnes did not pose a threat to the 

officers and further shocks were unnecessary. The court found that if the jury credited this version 

of events, it could find that Officer Kubler’s continued deployment of his Taser against Barnes 

constituted an unreasonable use of force. 

The court further held that at the time of the incident, it was clearly established law that it was 

unreasonable to repeatedly deploy a Taser against a handcuffed, non-resisting person.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca11/15-15611/15-

15611-2016-10-12.pdf?ts=1476280884

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