March 20, 2019

Archives for July 25, 2018

Tenth Circuit: Officers Not Entitled to Qualified Immunity for Use of Excessive Force After Suspect Subdued

The Tenth Circuit Court of Appeals issued its opinion in McCoy v. Meyers on April 10, 2018.

Mr. DeRon McCoy sued three of the officers who participated in his arrest—Tyson Meyers, Darrin Pickering, and Brice Burlie (collectively, Appellees)—under 42 U.S.C. § 1983, alleging that they violated his Fourth Amendment right to be free from excessive force during his arrest on March 22, 2011. Appellees moved for summary judgment on qualified immunity grounds. The district court granted the motion, determining that (1) Appellees had acted reasonably under the circumstances, and (2) the relevant law was not clearly established at the time of Appellees’ alleged conduct.

Mr. McCoy appealed the district court’s decisions. The Tenth Circuit affirmed in part and reversed in part, finding Appellees were entitled to qualified immunity for their conduct before Mr. McCoy’s arms and legs were bound while he was unconscious, but not for their conduct after this point.

On March 20, 2011, Mr. McCoy, his infant daughter, and his sister checked into the Budget Inn in Hutchinson, Kansas. Later, 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 Mr. McCoy did not allow Ms. Daniels to take her daughter, and stated that Mr. McCoy had a gun. In response to the call, Hutchinson police arrived at the Budget Inn around 4:38 p.m. and were unable to get Mr. McCoy to respond or exit the room. Around 6:40 p.m., the police requested assistance from the Emergency Response Team (ERT), a special law enforcement unit trained to respond to unusually dangerous circumstances, including hostage situations. In response to this request, Officers Meyers, Pickering, and Burlie, all ERT members, reported to the Budget Inn with the rest of the ERT. Around 9:05 p.m., the five-member team entered Mr. McCoy’s motel room with a master key. As the door opened, Appellees and several other officers heard Mr. McCoy yell “[g]et back.” 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, and each of the five officers saw Mr. McCoy holding a gun that he alternated between pointing in his sister’s direction and pointing at the first three officers to enter, including Officers Pickering and Burlie. Officer Meyers was holding back with a ballistic blanket, and heard several officers shouting, “Drop the gun, drop the gun,” immediately after they entered the room. Approximately 30 to 45 seconds after the officers first shouted out “drop the gun,” Mr. McCoy dropped the gun and it was removed from the room by an officer. After the gun was removed, Officer Burlie jumped onto the bed, attempting to arrest Mr. McCoy. After Mr. McCoy’s sister and daughter were removed from the room, 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.”

To this point, Mr. McCoy does not allege that the Appellees used any excessive force. He alleges their use of force became excessive only after Mr. Burlie pulled him onto the ground. The Tenth Circuit divided its legal analysis into two periods and referred to the two periods as “pre-restraint” and “post-restraint.”

During the pre-restraint period, Mr. McCoy was on the ground, lying face-down with his hands behind his back, and Officer Pickering “immediately” placed him in a carotid restraint. Unidentified officers “simultaneously” pinned Mr. McCoy down and hit him in the head, shoulders, back, and arms. 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. While Mr. McCoy was unconscious, the officers handcuffed his hands behind his back and zip-tied his feet together.

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.” Officer Meyers positioned himself behind Mr. McCoy, moved Mr. McCoy into a sitting position, and performed the kidney slap. As Mr. McCoy regained consciousness, unidentified officers again struck him—more than 10 times—on his head, shoulders, back, and arms. Mr. McCoy tried to shield himself but realized he was handcuffed and zip-tied. 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. Mr. 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.

Before being taken to the police station, Mr. McCoy was transported to the hospital, where doctors determined that nothing was broken or twisted. His arms, shoulders, and back were visibly bruised and cut.

Mr. McCoy sued the Appellees under 42 U.S.C. § 1983 in the U.S. District Court for the District of Kansas, alleging violations of his Fourth Amendment rights by using excessive force in effecting his arrest. After the parties completed discovery, Appellees moved for summary judgment, asserting qualified immunity. The district court granted summary judgment for Appellees, holding that Mr. McCoy had failed to show a Fourth Amendment violation, and that in any event, the law was not clearly established at the time of the Appellees’ alleged violation.

Mr. McCoy appealed, alleging four acts of excessive force: Appellees’ strikes and Officer Pickering’s carotid restraint before he was handcuffed and zip-tied, and Appellees’ strikes and Officer Meyers’ carotid restraint after he was handcuffed and zip-tied.

The Circuit’s qualified immunity analysis relied heavily on three Tenth Circuit decisions that applied the Graham balancing test. For each of these three cases, all of which involved excessive force allegations against law enforcement officers under § 1983, the court applied the Graham test and held that the plaintiff had shown sufficient facts to plead a Fourth Amendment violation.

In the case at hand, Mr. McCoy contended that Appellees’ use of force both before and after he was handcuffed and zip-tied violated clearly established Fourth Amendment law. The Tenth Circuit agreed with him in part, concluding that the pre-restraint force did not violate clearly established law, but the post-restraint force violated Mr. McCoy’s clearly established right to be free from the continued use of force after he was effectively subdued.

Appellees were entitled to qualified immunity as to Mr. McCoy’s pre-restraint excessive force claims based on lack of clearly established law. When applying the two-prongs, the Circuit

skipped prong one of the qualified immunity analysis because Mr. McCoy’s failure to show clearly established law provided a sufficient basis to affirm. For the second prong, Mr. McCoy failed to show clearly established law because no reasonable jury could conclude that Mr. McCoy was effectively subdued in the pre-restraint period, and preexisting precedent would not have made it clear to every reasonable officer that using the force employed here on a potentially dangerous individual—who had not yet been effectively subdued—violated the Fourth Amendment.

According to Mr. McCoy’s testimony, as soon as he hit the ground, Officer Pickering “immediately” placed him in a carotid restraint while, “simultaneously,” unidentified officers hit him in the head, shoulders, back, and arms. Even if Mr. McCoy was lying face down with his hands behind his back and with several officers pinning him, a reasonable officer in Appellees’ position could conclude that he was not subdued when the allegedly excessive force occurred. Under these circumstances, the preexisting precedent would not have made it clear to every reasonable officer that striking Mr. McCoy and applying a carotid restraint on him violated his Fourth Amendment rights. Based on the foregoing, Mr. McCoy failed to show clearly established law prohibiting the Appellees’ pre-restraint use of force. Appellees were therefore entitled to qualified immunity for the pre-restraint force as to Mr. McCoy’s claims based on this conduct.

The Appellees are not entitled to qualified immunity as to Mr. McCoy’s post-restraint excessive force claims because the post-restraint force violated Mr. McCoy’s clearly established right to be free from the continued use of force after he was effectively subdued. For the first prong of the qualified immunity analysis, when viewing the evidence in the light most favorable to Mr. McCoy, a reasonable jury could conclude that the post-restraint force violated his Fourth Amendment rights. A reasonable jury could conclude based on this record that the Appellees should have been able “to recognize and react to the changed circumstances.”

In this case, viewing the evidence in the light most favorable to Mr. McCoy, any resistance on his part had fully ceased by the time of the post-restraint force. Even if Appellees had previously perceived that Mr. McCoy pointed a gun at them and reached for Officer Burlie’s duty weapon, Mr. McCoy had been rendered unconscious, handcuffed, and zip-tied before he was revived. And as he regained consciousness, even though he did not resist, the Appellees struck him more than 10 times and placed him in a carotid restraint with enough pressure to render him unconscious again. The cessation of active resistance on Mr. McCoy’s part weighs in favor of finding that the post-restraint force was unreasonable.

Viewing the evidence in the light most favorable to Mr. McCoy, preexisting Tenth Circuit precedent made it clear to any reasonable officer in the Appellees’ position that the post-restraint force was unconstitutional.

In sum, qualified immunity applied to Mr. McCoy’s claims based on the pre-restraint force, due to the lack of clearly established law, but not to the claims based the post-restraint force, which violated Mr. McCoy’s clearly established right to be free from continued force after he was effectively subdued.  The Tenth Circuit affirmed in part and reversed in part the district court’s grant of summary judgment on qualified immunity grounds and remanded for further proceedings consistent with this opinion.

Tenth Circuit: Unpublished Opinions, 7/23/2018

On Monday, July 23, 2018, the Tenth Circuit Court of Appeals issued six published opinions and no unpublished opinion.

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.