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McCoy v. Meyers

United States Court of Appeals, Tenth Circuit

April 10, 2018

DERON McCOY, JR., Plaintiff-Appellant,

          Appeal from the United States District Court for the District of Kansas D.C. No. 5:12-CV-03160-CM

          Brian 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.

          Before LUCERO, KELLY, and MATHESON, Circuit Judges.


         On 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.

         Based 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.

         Exercising 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.

         I. BACKGROUND

         A. Factual History

         The 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).

         1. Events Leading to Mr. McCoy's Arrest

         On 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.

         The 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 hostage situations.

         Officers 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.

         2. Mr. McCoy's Arrest

         Around 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.

         Upon entering the room, each of the five officers saw Mr. McCoy holding a gun.[1]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.[2] 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 1061.

         Approximately 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.[3]

         a. The allegedly excessive force

         Mr. 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.

         Later 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 "post-restraint."

         i. Pre-restraint period

         Once 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.[4] 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 consciousness.[5]

         While 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 restrained).[6]

         ii. Post-restraint period

         Officer 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.[7] 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.[8]

         As Mr. 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.[9]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.[10]

         Mr. McCoy was then removed from the motel room and put into a police car outside.[11] Less than ten minutes had elapsed between the five-member team's entry into the room and Mr. McCoy's removal.

         3. Mr. McCoy's Injuries

         Mr. 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.[12] 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.

         B. Procedural History

         Mr. 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.

         The 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).

         Mr. 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 carotid restraint.[13]


         We 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.

         A. Stand ...

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