MATHESON, Circuit Judge.
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.
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, ___ U.S. ___, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (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).
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.
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.
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.
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."
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.
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]
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.
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.
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.
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.
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
"We review grants of summary judgment based on qualified immunity de novo." Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014).
"[S]ummary judgment is proper if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Patel v. Hall, 849 F.3d 970, 978 (10th Cir. 2017) (quotations omitted); see Fed. R. Civ. P. 56(a). As noted above, "[a]ll disputed facts must be resolved in favor of the party resisting summary judgment." White v. Gen. Motors Corp., 908 F.2d 669, 670 (10th Cir. 1990). "The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue." Patel, 849 F.3d at 978 (quotations omitted). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Cardoso, 490 F.3d at 1197 (quotations omitted).
"[P]ublic officials enjoy qualified immunity in civil actions that are brought against them in their individual capacities and that arise out of the performance of their duties." Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013). They are entitled to qualified immunity "if their conduct does not violate clearly established statutory or constitutional rights." Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).
"In resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged inquiry." Tolan, 134 S.Ct. at 1865. "The first asks whether the facts, `taken in the light most favorable to the party asserting the injury,... show the officer's conduct violated a federal right.'" Id. (brackets omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). "The second prong of the qualified-immunity analysis asks whether the right in question was clearly established at the time of the violation." Id. at 1866 (quotations omitted). "It is clearly established that specific conduct violates a constitutional right when Tenth Circuit or Supreme Court precedent would make it clear to every reasonable officer that such conduct is prohibited." Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016). Clearly established law "must be particularized to the facts of the case." White v. Pauly, ___ U.S. ___, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (quotations omitted); see also D.C. v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 590, 199 L.Ed.2d 453 (2018) ("The clearly established standard ... requires a high degree of specificity." (quotations omitted)). "Of course, general statements of the law are not inherently incapable of giving fair and clear warning to officers, but in the light of pre-existing law the unlawfulness must be apparent." White, 137 S.Ct. at 552 (citations and quotations omitted); see also Wesby, 138 S.Ct. at 590 ("[T]here can be the rare obvious case, where the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances." (quotations omitted)).
The Fourth Amendment protects "[t]he right of the people to be secure in their persons ... against unreasonable ... seizures." U.S. Const. amend. IV. "When a plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures." Tolan, 134 S.Ct. at 1865 (citing Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Our discussion proceeds by (1) identifying the applicable unreasonableness test in the excessive force context, the Graham balancing test, and (2) providing an overview of relevant Tenth Circuit cases applying the Graham test.
In Graham v. Connor, the Supreme Court established a balancing test to determine when the use of force to effect a seizure is unreasonable. See 490 U.S. at 396, 109 S.Ct. 1865. Under the Graham test, courts must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. (quotations omitted). Relevant considerations include: (1) "the severity of the crime at issue," (2) "whether the suspect poses an immediate threat to the safety of the officers or others," and (3) "whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Id.
"The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 396-97, 109 S.Ct. 1865. "[T]he `reasonableness' inquiry ... is an objective one: the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S.Ct. 1865. In other words, "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional." Id.
Our qualified immunity analysis relies heavily on three Tenth Circuit decisions published before the events at issue in this appeal: Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991); Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007); and Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008). We summarize these cases, each of which involved excessive force allegations against law enforcement officers under § 1983. In each case, this court applied the Graham test and held that the plaintiff had shown sufficient facts to make out a Fourth Amendment violation.
In Dixon, the plaintiff alleged that the police officer defendants had used excessive force by kicking, beating, and choking him in the course of an investigative stop. 922 F.2d at 1458-59.
Applying the Graham test to these facts, we held that the plaintiff had sufficiently shown a Fourth Amendment violation to survive summary judgment. Id. at 1463. In doing so, we analyzed each alleged act of excessive force separately. See id. at 1462-63. Regarding the first kick, we determined — even though the plaintiff "w[as] not suspected of committing any crime" and "did not resist being frisked" — that the defendants acted reasonably "in an uncertain, and potentially dangerous circumstance." Id. at 1462. We deferred to the defendants' judgment that such force may have been necessary to effect the frisk. Id. But we determined that the defendants' continued use of force after the plaintiff "had already been frisked, had his hands up against the van with his back to the officers, and was not making any aggressive moves or threats" was unreasonable. Id. at 1463. We reached this conclusion even though the plaintiff's "response to being kicked the first time (turning around and swearing at [the defendants]) could reasonably have been interpreted as an act of resistance." Id. at 1462.
In Casey, the plaintiff alleged that the police officer defendants had used excessive force by tackling, tasering, and beating him without warning in the course of arresting him for a misdemeanor. 509 F.3d at 1278.
In Weigel, Bruce Weigel's estate brought suit after Mr. Weigel died in an altercation with the highway patrol officer defendants. 544 F.3d at 1146-47. The estate alleged that the defendants had used excessive force by putting pressure on Mr. Weigel's upper torso for several minutes. Id. at 1152. This occurred after Mr. Weigel had collided into the defendants' police car on the highway. Id. at 1147. The defendants suspected Mr. Weigel of driving while inebriated. Id. at 1147-48. He agreed to submit to a sobriety test but then walked out in front of oncoming traffic and continued crossing the highway even after getting struck by a passing van's sideview mirror. Id. at 1148. The defendants followed, tackled him to the ground, and put him in a "choke hold." Id. During this struggle, Mr. Weigel fought back "vigorously, attempting repeatedly to take the [defendants'] weapons and evade handcuffing." Id. The defendants managed to handcuff Mr. Weigel, but he continued to struggle, so a bystander assisted by lying across the back of his legs. Id. The defendants then maintained Mr. Weigel in a facedown position and applied pressure to his upper torso. Id. Another bystander found plastic tubing or cord and bound Mr. Weigel's feet. Id. The defendants continued to apply pressure to Mr. Weigel's upper torso for several minutes until it was determined that Mr. Weigel had gone into cardiac arrest. Id. at 1149, 1152-53.
Applying the Graham test to these facts, we held that the plaintiff had sufficiently shown a Fourth Amendment violation to survive summary judgment. Id. at 1152-53. We determined that the defendants' use of force after — but not before — Mr. Weigel's hands and feet were bound was unreasonable. See id. (holding that the defendants' use of force, at least once Mr. Weigel "was handcuffed and his legs were bound," was unreasonable in part because they knew it "was unnecessary to restrain him"); id. at 1155 (Hartz, J., concurring) ("I do not think that the defendants violated Mr. Weigel's constitutional rights before his legs were bound[,] [i]n light of Mr. Weigel's strength and previous behavior."). We offered two reasons in support of our conclusion.
Mr. McCoy contends that the Appellees' use of force both before and after he was
The Appellees are entitled to qualified immunity as to Mr. McCoy's pre-restraint excessive force claims based on lack of clearly established law.
We skip prong one of the qualified immunity analysis because Mr. McCoy's failure to show clearly established law provides a sufficient basis to affirm. See Tolan, 134 S.Ct. at 1866 ("Courts have discretion to decide the order in which to engage the[] two [qualified immunity] prongs." (quoting Pearson, 555 U.S. at 236, 129 S.Ct. 808)).
Mr. McCoy has failed to show clearly established law because (1) no reasonable jury could conclude that Mr. McCoy was effectively subdued in the pre-restraint period, and (2) preexisting precedent would not have made it clear to every reasonable officer that using the force employed here on a potentially dangerous individual — who has not yet been effectively subdued — violates the Fourth Amendment. See Perea, 817 F.3d at 1204 ("It is clearly established that specific conduct violates a constitutional right when Tenth Circuit or Supreme Court precedent would make it clear to every reasonable officer that such conduct is prohibited.").
No reasonable jury could conclude that Mr. McCoy was effectively subdued when the allegedly excessive pre-restraint force occurred. Whether an individual has been subdued from the perspective of a reasonable officer depends on the officer having "enough time [] to recognize [that the individual no longer poses a threat] and react to the changed circumstances." See Fancher v. Barrientos, 723 F.3d 1191, 1201 (10th Cir. 2013) (quotations omitted); see also Graham, 490 U.S. at 396, 109 S.Ct. 1865 ("The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.").
Mr. McCoy concedes that a reasonable officer in the Appellees' position would be "entitled to believe [Mr. McCoy was] reaching for [Officer Burlie's] gun" when Officer Burlie pulled Mr. McCoy off the bed. Oral Argument at 7:08-7:16. 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. App., Vol. II at 470, 480. Even if Mr. McCoy was, as he maintains, lying face down with his hands behind his back and with several officers pinning him, Aplt. Br. at 1, a reasonable officer in the 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. The cases cited
Based on the foregoing, Mr. McCoy has failed to show clearly established law prohibiting the Appellees' pre-restraint use of force. The Appellees are therefore entitled to qualified immunity 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. We address both steps of the qualified immunity analysis.
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. Although the first Graham factor weighs in favor of the Appellees, the second and third Graham factors strongly favor Mr. McCoy. Accordingly, Mr. McCoy has met his burden of showing a constitutional violation at this stage of the case.
The first Graham factor — the severity of the suspected crime — weighs against Mr. McCoy. Mr. McCoy does not dispute that the Appellees were advised before entering his motel room that he was armed and that he had two hostages. Moreover, Mr. McCoy concedes that the Appellees reasonably suspected him of pointing a gun at several officers and reaching for Officer Burlie's gun leading
In contrast, the second Graham factor — the immediate threat posed by the suspect — favors Mr. McCoy. Viewing the evidence in the light most favorable to Mr. McCoy, the post-restraint force occurred after Mr. McCoy was rendered unconscious, handcuffed, and zip-tied. See App., Vol. II at 471-72. The Appellees nevertheless contend that "during the approximately forty seconds when the alleged excessive force occurred, [they] simply had no opportunity to stop and evaluate whether [Mr. McCoy] had stopped or would stop acting aggressively." Aplee. Br. at 32.
But the evidence here is sufficient for a reasonable jury to draw a contrary inference. It allows a finding that Mr. McCoy was unconscious long enough to be handcuffed, zip-tied, and moved from a prone, face-down position into a sitting position, and that the Appellees nevertheless struck him over 10 times and placed him into a second carotid restraint upon reviving him.
Finally, the third Graham factor — the suspect's active resistance (or attempts to flee) — also favors Mr. McCoy. Our cases have consistently concluded that a suspect's initial resistance does not justify the continuation of force once the resistance ceases. See Perea, 817 F.3d at 1203 ("Although use of some force against a resisting arrestee may be justified, continued and increased use of force against a subdued detainee is not."); see also Weigel, 544 F.3d at 1152-53 (a reasonable jury could find that the alleged force was excessive once the plaintiff's hands and feet were bound, even though the plaintiff had previously put up significant resistance); Dixon, 922 F.2d at 1462-63 (a reasonable jury could find that the alleged force was excessive once the plaintiff had been frisked, had his hands against a vehicle, and was no longer making aggressive moves, even though the defendants could reasonably have perceived the plaintiff's previous actions as resistance); Herrera v. Bernalillo Cty. Bd. of Cty. Comm'rs, 361 Fed.Appx. 924, 928 (10th Cir. 2010) (unpublished) (a reasonable jury could find that the alleged force was excessive where the defendants "acknowledge[d] that, whatever apprehensions of possible flight might have existed when they first saw [the plaintiff], by the time [of the alleged force] further flight was no more than `certainly possible' and was `perhaps unlikely'" (citation omitted)).
In our 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 the Appellees 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. See App., Vol. II at 471-72. 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. See App., Vol. II at 471-72, 478.
Although the Graham factors point in both directions, Mr. McCoy has shown sufficient facts at this stage to make out a Fourth Amendment violation based on the Appellees' post-restraint use of force. The Appellees faced a potentially dangerous situation before they subdued Mr. McCoy, whom they suspected of serious crimes and had perceived to be pointing a gun in their direction and reaching for Officer Burlie's handgun. But when the relevant conduct occurred, Mr. McCoy had already been rendered unconscious, handcuffed, and zip-tied, and — although he was regaining consciousness — was no longer resisting. The Appellees also had sufficient time to recognize the change in circumstances
Viewing the evidence in the light most favorable to Mr. McCoy, preexisting Tenth Circuit precedent — Dixon, Casey, and Weigel — made it clear to any reasonable officer in the Appellees' position that the post-restraint force was unconstitutional. See Perea, 817 F.3d at 1204 ("It is clearly established that specific conduct violates a constitutional right when Tenth Circuit or Supreme Court precedent would make it clear to every reasonable officer that such conduct is prohibited."). Although Dixon, Casey, and Weigel are not factually identical to this case, they nevertheless made it clear that the use of force on effectively subdued individuals violates the Fourth Amendment. In light of those cases, it should have been obvious to the Appellees that continuing to use force on Mr. McCoy after he was rendered unconscious, handcuffed, and zip-tied was excessive.
Dixon, Casey, and Weigel clearly establish that the Fourth Amendment prohibits the use of force without legitimate justification, as when a subject poses no threat or has been subdued. See Casey, 509 F.3d at 1286 ("[A]n officer's violation of the Graham reasonableness test is a violation of clearly established law if there are no substantial grounds for a reasonable officer to conclude that there was a legitimate justification for acting as she did." (quotations omitted)); see also Weigel, 544 F.3d at 1152 (the justification for using force ceased "once Mr. Weigel was handcuffed and his legs were bound"); Dixon, 922 F.2d at 1463 (the justification for using force ceased once the plaintiff "had already been frisked, had his hands up against the van with his back to the officers, and was not making any aggressive moves or threats"). In light of these cases, every reasonable official in the Appellees' position should have known that repeatedly striking a suspect — who is handcuffed, zip-tied, and just regaining consciousness — and subjecting him to a carotid restraint is unconstitutional.
Although Dixon, Casey, and Weigel are not factually identical to this case, they are factually analogous and their differences do not defeat Mr. McCoy's clearly established law showing.
Finally, this court's later decisions, though not controlling, accord with our clearly established law determination here.
In sum, qualified immunity applies (1) to Mr. McCoy's claims based on the pre-restraint force, due to the lack of clearly established law, but (2) 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.
For the foregoing reasons, we affirm in part and reverse in part the district court's grant of summary judgment on qualified immunity grounds and remand for further proceedings consistent with this opinion.
As far as we can tell, the LVNR is a "carotid" restraint as opposed to a "bar arm" restraint. See City of Los Angeles v. Lyons, 461 U.S. 95, 97 n.1, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (explaining that the terms "`control holds,' `chokeholds,' `strangleholds,' and `neck restraints[]' [a]ll ... refer to two basic control procedures: the `carotid' hold[,] [which] ... is capable of rendering the subject unconscious by diminishing the flow of oxygenated blood to the brain[,] [or] [t]he `bar arm' hold, which ... reduces the flow of oxygen to the lungs, and may render the subject unconscious"); Estate of Booker v. Gomez, 745 F.3d 405, 413 & n.6 (10th Cir. 2014) (distinguishing a carotid restraint, which restricts blood flow, from the "more dangerous" bar arm hold, which restricts oxygen flow).
Officer Pickering testified that the technique he used on Mr. McCoy was the LVNR. App., Vol. III at 593. Mr. McCoy contends that a reasonable jury could conclude that Officer Pickering applied a bar arm restraint instead of a carotid restraint, as described in Lyons. See Aplt. Br. 37. But the only record evidence that supports Mr. McCoy's contention is Officer Burlie's police report, in which Officer Burlie wrote that Officers Meyers and Pickering "set [Mr. McCoy] up and began patting him on his back to help him start breathing again" after he first lost consciousness. App., Vol. IV at 832. The "[e]vidence, including testimony, must be based on more than mere speculation, conjecture, or surmise," and "[u]nsubstantiated allegations carry no probative weight in summary judgment proceedings." Cardoso, 490 F.3d at 1197 (quotations omitted). Here, Officer Burlie's police report statement is unsubstantiated. As he later testified, he "never once checked to see if [Mr. McCoy] was breathing and [] didn't know if he was breathing." App., Vol. II at 507. Instead, he merely "misspoke" in the police report and "meant to say [that] [Mr. McCoy] was unconscious." Id. Additionally, Mr. McCoy testified that he had no personal knowledge that he stopped breathing and only "got that information from ... Brice Burlie's police report." Id. at 479.
Because Mr. McCoy's assertion that Officer Pickering applied a bar arm hold on him lacks adequate record support, we do not resolve this factual dispute in Mr. McCoy's favor. In any event, even assuming the record establishes a genuine factual dispute, this dispute is immaterial because, as our discussion below shows, we do not rely on the specific type of control technique as a factor in our analysis.
Officer Meyers further testified that he had initially placed his arms around Mr. McCoy's neck without applying any pressure, in accordance with his training, as a precaution against Mr. McCoy's injuring himself or others when he regained consciousness. App., Vol. III at 627, 635-36. Officer Meyers testified that he began applying pressure because Mr. McCoy was "aggressive" when he woke up, "kicking his feet, slinging his head back, and being resistant, as in just throwing himself around." Id. at 633, 636. But Mr. McCoy testified that he "never resisted." App., Vol. II at 478. He also testified that, upon regaining consciousness, he tried to shield himself but "realized [he] was handcuffed and ... zip tied, ... said `somebody help,' and then ... felt [two] arm[s] reach around [his] neck." Id. at 472. We resolve this factual dispute in Mr. McCoy's favor.
The Weigel defendants faced a more dangerous situation than the Dixon and Casey defendants did. See Weigel, 544 F.3d at 1148 (although Mr. Weigel was initially suspected only of driving under the influence, he later "fought vigorously, attempting repeatedly to take the [defendants'] weapons"). But the Appellees here used a lesser degree of force than in Weigel, in which the defendants put pressure on the suspect's back for several minutes despite being on notice that such pressure "created a significant risk of asphyxiation and death." Id. at 1152.
