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McCoy v. Meyers

United States District Court, D. Kansas

March 17, 2017

DeRON MCCOY, Plaintiff,
v.
TYSON MEYERS, DARRIN PICKERING, BRICE BURLIE, JERAMY HEDGES, AND COREY GRABER, Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE

         Plaintiff DeRon McCoy brings this action under 42 U.S.C. § 1983 against Hutchinson police officers Tyson Meyers, Darrin Pickering, and Brice Burlie, and Reno County sheriff's deputies Jeramy Hedges and Corey Graber, alleging that defendants used excessive force in arresting him in violation of his Fourth Amendment rights. Plaintiff was arrested at a Hutchinson, Kansas hotel on March 22, 2011 and was later convicted of numerous charges related to the incident. He is currently incarcerated.

         The matter is now before the court on defendants Meyers, Pickering, and Burlie's Motion for Summary Judgment (Doc. 163) and defendants Hedges and Graber's Motion for Summary Judgment (Doc. 164). Defendants assert they are qualifiedly immune because they acted reasonably in a high-risk hostage situation. The court finds defendants are entitled to qualified immunity in this case and therefore grants defendants' motions.

         I. Factual Background

         On March 20, 2011, plaintiff, along with his infant daughter and adult sister, checked into a room at the Budget Inn in Hutchinson, Kansas. At some point on March 22, 2011-while plaintiff and his sister and daughter still occupied the room-LeAnna Daniels, the mother of plaintiff's daughter, arrived at the hotel with her friend Gwendolyn Roby. It is unclear what occurred once Daniels and Roby arrived at the hotel, however, Roby eventually placed a call to 911 to report that plaintiff would not give his daughter to Daniels and that plaintiff had a gun. At approximately 4:38 p.m., officers were dispatched to the hotel. Upon arrival, they encountered Daniels, who informed them that plaintiff was inside the room with the baby, and that he had flashed a gun at her. Police began attempting engagement with plaintiff to no avail. Plaintiff allegedly continued to refuse to come out of the room, telling police to get back and leave him alone. Police could hear the baby and plaintiff's sister inside the room. Plaintiff, however, claims he never spoke to police that day.

         Defendants, all members of the Emergency Response Team (“ERT”), were notified at approximately 6:40 p.m. that they needed to report to the Budget Inn. Upon arrival at the scene, defendants were informed that an armed male was in the hotel room with another woman and a baby and that this was being treated as a hostage situation. Defendants heard a negotiator attempting to make contact with plaintiff via a PA system, but never heard anyone in the room respond. Officers grew concerned when a substantial amount of time had passed without any contact or noise from the room, and feared plaintiff might have harmed his daughter or sister. Defendant Burlie entered the hotel room next to plaintiff's room to determine whether there was any sound or activity. Burlie heard nothing. At this point the ERT leader ordered his team to enter plaintiff's room out of concern for the safety of the room's occupants.

         At approximately 9:05 p.m., defendants Pickering, Graber, Burlie, and Hedges entered plaintiff's room in a “stack formation” using the hotel's master key. Defendants heard plaintiff yell “get the fuck back” as they entered the room. Plaintiff claims he was not aware police were even at the hotel or attempting to communicate with him until they entered his room. Defendant Pickering, holding a ballistic shield, was the first officer to enter the room. Upon entering the room, he saw plaintiff on the bed with his daughter and sister. Plaintiff had the gun under his sister's chin, and was ducking behind her. Plaintiff does not deny there was a gun in the room that evening, but denies ever having a gun in his hand. Defendants, however, claim plaintiff began pointing the gun at the officers and then back toward his sister. Defendant Meyers, who had not yet entered the room, heard the officers shouting at plaintiff to drop his gun. Many of the defendants testified they were in fear for their lives.

         Defendants claim that despite repeated demands, plaintiff refused to drop the gun. Defendant Burlie asked defendant Graber if he was in a safe position to shoot plaintiff, to which defendant Graber replied he was not. At some point plaintiff lost control of the gun. Plaintiff claims he dropped the gun despite also arguing he never had a gun in his hand. Defendant Hedges grabbed the gun and was able to remove it from the room. Plaintiff's sister and daughter were also removed from the room during this time.

         As plaintiff's gun was being removed from the room, defendant Burlie jumped on the bed and, in an attempt to restrain plaintiff, grabbed him and began pulling him to the floor. During the struggle to control plaintiff, defendant Burlie felt him reaching for his gun, which was holstered in his right thigh holster. Plaintiff asserts he did not attempt to grab the gun, rather, he submitted to arrest as soon as defendant Burlie first grabbed him. Defendant Pickering, however, heard defendant Burlie yell that plaintiff was grabbing his gun and then saw plaintiff's hand on the handle of defendant Burlie's gun. Defendant Burlie got plaintiff onto the ground and defendant Pickering then applied a hold[1] on plaintiff to subdue him and prevent him from grabbing for defendant Burlie's gun.

         Defendants claim they applied a Lateral Vascular Neck Restraint (“LVNR”) on plaintiff. Both defendants Pickering and Meyers are trained in using the LVNR technique, which is designed to control a situation or an individual when an individual does not respond to verbal commands, is combative, or is resistant. (Doc. 166-6, at 8.) According to defendant Meyers, the LVNR is not intended to cut off oxygen to a person's brain, but may render an individual unconscious. Defendant Meyers also testified that there are multiple levels of LVNR application-Level 1, Level 2, Level 3, and Level 1 minus. The level of LVNR application applied depends on how resistive the subject is. Defendant Pickering claims he initially placed plaintiff in a Level 1 hold, but escalated to a Level 3 because plaintiff would not stop resisting. The Level 3 application caused plaintiff to go unconscious, but defendants assert plaintiff did not stop breathing.

         Plaintiff claims he was not resisting arrest when he was placed in the hold and that the hold caused him to go unconscious and stop breathing. He asserts that because he stopped breathing, the hold could not have been an LVNR and instead was a chokehold. Plaintiff believes he stopped breathing based on a statement made by defendant Burlie in his police report that “Sgt. Meyers and Officer Pickering sat Deron up and began patting him on his back to help him start breathing again.” (Doc. 166-13, at 19.) Defendant Burlie later corrected his statement in a deposition saying he misspoke: “I just used the wrong term. I meant to say that he was out of it or unconscious. I never once checked to see if he was breathing and I didn't know if he was breathing. Basically, all I did was look at him. What I meant to say is he was unconscious.” (Doc. 166-3, at 24.)

         It is uncontested that the first hold lasted somewhere between five and ten seconds. Defendant Meyers entered the room after defendant Pickering applied the hold and while plaintiff was unconscious. He could see other officers attempting to get plaintiff in custody and positioned himself behind plaintiff and moved him into a seated position. At that point, defendant Meyers performed a “palm revival technique” or “kidney slap” used to bring plaintiff back to consciousness and then placed plaintiff in a Level 1 minus hold in order to keep plaintiff under control as he regained consciousness. Defendant Meyers testified he was trained to place subjects in a light hold as they regained consciousness because they could often wake up aggressive. Defendant Meyers claimed he kept plaintiff in the second hold for less than 10 seconds and that plaintiff did not lose consciousness a second time as a result of the second hold. It is uncontested that at some point between the first and second hold, plaintiff was handcuffed and his legs were ziptied. Defendant Hedges testified he helped secure plaintiff's legs because plaintiff was still acting aggressively.

         Plaintiff asserts that defendants used excessive force after he was removed from the bed by defendant Burlie. He claims that he was repeatedly struck, kicked, and punched by defendants on two separate occasions. He testified that after being thrown face-down on the floor by defendant Burlie, he felt multiple people jump on top of him and that he was struck multiple times on the back of his head, shoulders, and back as he was placed in the first hold. Plaintiff then testified that as he was regaining consciousness from the first hold, he felt multiple strikes to his back, head, and arms, likely from more than one person. He claimed he felt more than 10 strikes to his body and as he tried to shield himself, he realized he was handcuffed and ziptied. Plaintiff cried out for help and then felt someone place him in a second hold, which also rendered him unconscious. Plaintiff claims he suffered numerous bruises and scrapes.

         When piecing together uncontested facts, the entire allegation of excessive force lasted approximately 40 seconds. This time period began when defendant Pickering placed plaintiff in the first hold and lasted until defendant Meyers released plaintiff from the second hold. During this time plaintiff was also handcuffed and ziptied. Plaintiff does not allege excessive force was used by defendant Burlie when he tackled him off the bed, nor does he allege excessive force was used when he was handcuffed and ziptied.

         Plaintiff was eventually removed from the room and placed in a police car. Dispatch records indicate that the entire incident-from the time of entry into the hotel room until the scene was clear- was less than ten minutes. Plaintiff remembers “coming to” standing in front of a police car. He asked to be taken to the hospital for neck pain. Police transported plaintiff to the hospital, and, according to police reports, plaintiff was x-rayed and doctors determined “nothing was broken or twisted.” (Doc. 166-13, at 5.) Plaintiff does not remember being treated at the hospital. Plaintiff was then taken to the Hutchinson Police Department.

         Plaintiff was tried in Reno County District Court on 19 charges related to the March 22, 2011 incident. The court has taken judicial notice of the county records. A jury found plaintiff guilty of one count of kidnapping his sister, one count of aggravated assault of his sister, one count of aggravated endangerment of a child, five counts of aggravated assault on a law enforcement officer, one count of criminal possession of a firearm, two drug charges, and one count of solicitation to commit perjury. Notably, the jury found him not guilty on charges of kidnapping his daughter, and not guilty of aggravated assault on defendant Burlie for “using Burlie's handgun” to assault him. This charge was related to defendant Burlie's belief that plaintiff grabbed for his gun as he tackled him off the bed. ...


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