from the United States District Court for the District of
Kansas D.C. No. 5:12-CV-03160-CM
A. Jackson and Alexandra L. Sorenson, Shook, Hardy &
Bacon LLP, Kansas City, Missouri, for Plaintiff-Appellant.
William D. Cross, (Michael K. Seck and Kenneth J. Berra with
him on the brief), Fisher, Patterson, Sayler & Smith,
L.L.P., Overland Park, Kansas, for Defendants-Appellees.
LUCERO, KELLY, and MATHESON, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
March 22, 2011, Hutchinson, Kansas police officers responded
to a reported armed hostage situation and arrested DeRon
McCoy, Jr. The officers brought him to the ground, struck
him, and rendered him unconscious with a carotid restraint
maneuver. While he was unconscious, they handcuffed his arms
behind his back, zip-tied his legs together, and moved him
into a seated position. As he regained consciousness, the
officers resumed striking him and placed him into a second
carotid restraint, rendering him unconscious a second time.
on this incident, Mr. McCoy sued three of the officers who
participated in his arrest-Tyson Meyers, Darrin Pickering,
and Brice Burlie (collectively, the
"Appellees")-under 42 U.S.C. § 1983. He
alleged that they violated his Fourth Amendment right to be
free from excessive force. The Appellees moved for summary
judgment on qualified immunity grounds. The district court
granted the motion, determining that (1) the Appellees had
acted reasonably under the circumstances, and (2) the
relevant law was not clearly established at the time of the
Appellees' alleged conduct. Mr. McCoy now appeals.
jurisdiction under 28 U.S.C. § 1291, we affirm in part
and reverse in part because the Appellees are entitled to
qualified immunity (1) for their conduct before Mr.
McCoy's arms and legs were bound while he was
unconscious, but (2) not for their conduct after this point.
following factual history is drawn from the parties'
statement of uncontroverted facts and from the record, viewed
in the light most favorable to Mr. McCoy, the non-moving
party. See Tolan v. Cotton, 134 S.Ct. 1861, 1866
(2014) (on summary judgment, "a court must view the
evidence in the light most favorable to the opposing
party" and "draw inferences in favor of the
nonmovant" (quotations omitted)). We therefore resolve
"genuine disputes of fact" in the record in favor
of Mr. McCoy. See id. But for "dispositive
issues on which [Mr. McCoy] will bear the burden of proof at
trial, " the record must contain evidence that is
"based on more than mere speculation, conjecture, or
surmise." Cardoso v. Calbone, 490 F.3d 1194,
1197 (10th Cir. 2007) (quotations omitted).
Events Leading to Mr. McCoy's Arrest
March 20, 2011, Mr. McCoy checked into a room at the Budget
Inn in Hutchinson, Kansas, with his infant daughter and his
sister. Sometime on March 22, 2011-while the three were
inside the motel room-Leanna Daniels, the mother of Mr.
McCoy's daughter, and Gwendolyn Roby, Ms. Daniels's
friend, arrived at the motel. Ms. Roby called the police when
she realized Mr. McCoy was not going to allow Ms. Daniels to
take her daughter. Ms. Roby told the police that Mr. McCoy
was at a motel with his daughter and sister, that he would
not give the daughter to Ms. Daniels, and that he had a gun.
Hutchinson police arrived at the Budget Inn around 4:38 p.m.
They attempted to contact Mr. McCoy, but he did not respond
and remained inside the motel room. Around 6:40 p.m., the
police requested assistance from the Emergency Response Team
(the "ERT"), a special law enforcement unit trained
to respond to unusually dangerous circumstances, including
Meyers, Pickering, and Burlie-all ERT members-reported to the
Budget Inn with the rest of the ERT. Upon their arrival, they
were told that they were responding to a hostage situation
involving an armed male with a female and a baby. After
determining that no sound was emanating from Mr. McCoy's
motel room, the ERT command decided to send in a five-member
team to secure the room, extricate the hostages, and arrest
Mr. McCoy. Officer Burlie, the ERT's assistant team
leader, selected himself and four other ERT members-including
Officer Pickering-for the task. Officer Meyers was assigned
to stay back and hold a ballistics blanket to provide cover
for the five-member team as they approached the door.
Mr. McCoy's Arrest
9:05 p.m., the five-member team entered Mr. McCoy's motel
room with a master key. As the door opened, the Appellees and
several other officers heard Mr. McCoy yell "[g]et
back." App., Vol. II at 417-18; App., Vol. V at 1061.
The team then entered in a "stack" formation, one
after another, with Officer Pickering leading. When the team
entered the room, Mr. McCoy was on the bed with his sister
and his daughter.
entering the room, each of the five officers saw Mr. McCoy
holding a gun.Mr. McCoy alternated between pointing the
gun in his sister's direction and pointing it at the
first three officers to enter, including Officers Pickering
and Burlie. Officer Meyers, who was still staying back
with the ballistics blanket, heard several officers shouting,
"Drop the gun, drop the gun, " immediately after
they entered the room. App., Vol. II at 419; App., Vol. V at
30 to 45 seconds after the officers first shouted out
"drop the gun, " Mr. McCoy dropped the gun. One of
the officers removed the gun from the room, and someone
announced that the gun was out. After the gun was removed,
Officer Burlie jumped onto the bed, attempting to arrest Mr.
McCoy. While Officer Burlie was on the bed, Mr. McCoy's
sister and daughter were cleared from the immediate area and
removed from the room. After determining that Mr. McCoy's
sister and daughter were clear, Officer Burlie pulled Mr.
McCoy off the bed to arrest him. Officer Burlie perceived
that Mr. McCoy was reaching for his duty weapon and yelled
out, "He's grabbing my gun." App., Vol. II at
423-24; App., Vol. V at 1063.
The allegedly excessive force
McCoy does not allege that the Appellees used any excessive
force up to this point. He alleges their use of force became
excessive only after Mr. Burlie pulled him onto the ground.
in this opinion, we separate our legal analysis between what
happened before and after Mr. McCoy was rendered unconscious,
handcuffed, and zip-tied. We therefore present the relevant
facts-including both the Appellees' and Mr. McCoy's
conduct-for each period separately. We refer to the two
periods as "pre-restraint" and
Mr. McCoy was on the ground, lying face-down with his hands
behind his back, Officer Pickering "immediately"
placed him in a carotid restraint. App., Vol. II at 470-71,
477-78. Unidentified officers
"simultaneously" pinned Mr. McCoy down and hit him
in the head, shoulders, back, and arms. Id. at 480;
see also id. at 470-71. Officer Pickering maintained
the carotid restraint for approximately five to ten seconds
and increased pressure, even though Mr. McCoy was not
resisting, thereby causing Mr. McCoy to lose
Mr. McCoy was unconscious, the officers handcuffed his hands
behind his back and zip-tied his feet together. See
App., Vol. II at 471-72 (Mr. McCoy testifying that the next
thing he remembered was "coming to" and that
"when [he] came to [he] was in a sitting position with
[his] legs zip tied and [his] hands handcuffed behind [his]
back"); see also App., Vol. III at 595 (Officer
Pickering affirming at his deposition that "at this
point in time, Mr. McCoy [was] unconscious . . . [a]nd
handcuffed . . . [w]ith zip ties around his ankles");
App., Vol. V at 1314 (Officer Burlie affirming at his
deposition that when Mr. McCoy "eventually [came] to,
" he was handcuffed and his legs were
Meyers entered the motel room while Mr. McCoy was unconscious
to perform a revival technique known as a "kidney slap,
" which consists of "a slight tap to the lower
back." App., Vol. III at 632. Officer Meyers positioned
himself behind Mr. McCoy, moved Mr. McCoy into a sitting
position, and performed the kidney slap. App., Vol. II at
428; App., Vol. V at 1066.
McCoy regained consciousness, unidentified officers again
struck him- more than 10 times-on his head, shoulders, back,
and arms. App., Vol. II at 471-72.Mr. McCoy tried to shield
himself but realized he was handcuffed and zip-tied.
Id. at 472. He yelled out, "[S]omebody
help." Id.; see also id. at 508
(Officer Burlie testifying that Mr. McCoy "looked like
he was really scared" at this time and "was using
[the words], 'Oh God, please help me, please help
me'"). Officer Meyers then placed Mr. McCoy, who was
not resisting, in a second carotid restraint for less than 10
seconds, maintaining pressure until Mr. McCoy lost
consciousness again. App., Vol. II at 472, 478; App., Vol.
III at 636.
McCoy was then removed from the motel room and put into a
police car outside. Less than ten minutes had elapsed
between the five-member team's entry into the room and
Mr. McCoy's removal.
Mr. McCoy's Injuries
McCoy was then transported to the hospital, where doctors
determined that nothing was broken or twisted, before being
taken to the police station. App., Vol. IV at
818. His arms, shoulders, and back were
visibly bruised and cut. See App., Vol. V at 1288;
see also App., Vol. III at 637 (Officer Meyers
testifying that he remembered Mr. McCoy "having some
kind of marks"). Since his arrest, Mr. McCoy has
experienced severe long-term pain in his back and neck. Dist.
Ct. Doc. 15 at 10 (Mr. McCoy's sworn affidavit attached
to the second amended complaint). Medical treatment,
including pain medication and steroid injections, has not
eliminated his pain and discomfort. Id.
McCoy sued the Appellees under 42 U.S.C. § 1983 in the
U.S. District Court for the District of Kansas. He alleged
that the Appellees violated his Fourth Amendment rights by
using excessive force in effecting his arrest. After the
parties completed discovery, the Appellees moved for summary
judgment, asserting qualified immunity.
district court granted summary judgment for the Appellees. It
held that (1) Mr. McCoy had failed to show a Fourth Amendment
violation, and (2) in any event, the law was not clearly
established at the time of the Appellees' alleged
violation. McCoy v. Meyers, 2017 WL 1036155, at *7,
*8 (D. Kan. Mar. 16, 2017).
McCoy now appeals. His appeal concerns four alleged acts of
excessive force: before he was handcuffed and zip-tied, (1)
the Appellees' strikes and (2) Officer Pickering's
carotid restraint; and after he was handcuffed and zip-tied,
(3) the Appellees' strikes and (4) Officer Meyers's
begin with our standard of review and summary judgment
standards. We also provide background on the qualified
immunity defense and Fourth Amendment law pertaining to
excessive force claims. Finally, we analyze whether the
Appellees are entitled to qualified immunity, addressing the
pre- and post-restraint force separately. We conclude that
the Appellees are entitled to qualified immunity as to the
former but not the latter.