Blanton v. Kooser

In the United States District Court

for the District of Kansas

_____________

Case No. 23-cv-01054-TC-RES

_____________

MISTIE BLANTON,

Plaintiff

v.

KENNETH KOOSER,

CHRISTOPHER HUFFMAN,

Defendants

_____________

MEMORANDUM AND ORDER

Mistie Blanton alleges that Sedgwick County Sheriff’s Department

employees Kenneth Kooser and Christopher Huffman used unreason-

able force against her. Doc. 1. Kooser and Huffman move to dismiss

Blanton’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Doc. 15. For

the following reasons, their motion is granted in part and denied in

part.

I

A

A federal district court may grant a motion to dismiss for “failure

to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). To survive a motion to dismiss for failure to state a claim, the

complaint need only contain “a short and plain statement … showing

that the pleader is entitled to relief” from each named defendant. Fed.

R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Two “working principles” underlie this standard. Kan. Penn Gaming,

LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011); see also Ashcroft v.

Iqbal, 556 U.S. 662, 678–79 (2009). First, a court ignores legal conclu-

sions, labels, and any formulaic recitation of the elements. Penn Gaming,

656 F.3d at 1214. Second, a court accepts as true all remaining

allegations and logical inferences and asks whether the claimant has

alleged facts that make his or her claim plausible. Id.

A claim need not be probable to be considered plausible. Iqbal, 556

U.S. at 678. But the facts, viewed in the light most favorable to the

claimant, must move the claim from conceivable to plausible. Id. at

678–80. The “mere metaphysical possibility that some plaintiff could

prove some set of facts in support of the pleaded claims is insufficient;

the complaint must give the court reason to believe that this plaintiff

has a reasonable likelihood of mustering factual support for these

claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177

(10th Cir. 2007).

Plausibility is context specific. The requisite showing depends on

the claims alleged, and the inquiry usually starts with determining what

the plaintiff must prove at trial. See Comcast Corp. v. Nat’l Assoc. of African

Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020). In other words, the

nature and complexity of the claim(s) define what plaintiffs must plead.

Cf. Robbins v. Oklahoma, 519 F.3d 1242, 1248–49 (10th Cir. 2008) (com-

paring the factual allegations required to show a plausible personal in-

jury claim versus a plausible constitutional violation).

Ordinarily, a motion to dismiss is decided on the basis of the plead-

ings alone, along with any exhibits attached to the complaint. Smith v.

United States, 561 F.3d 1090, 1098 (10th Cir. 2009). In some circum-

stances, a “district court may consider documents referred to in the

complaint if the documents are central to the plaintiff’s claim and the

parties do not dispute the documents’ authenticity.” Alvarado v. KOB-

TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (citation and internal

quotation marks omitted); Waller v. City & Cnty. of Denver, 932 F.3d

1277, 1282 (10th Cir. 2019); see also Est. of Harmon v. Salt Lake City, No.

20-4085, 2021 WL 5232248, *2 (10th Cir. Nov. 10, 2021) (applying that

standard to video evidence at the motion-to-dismiss stage).

B

Blanton alleges—and, at this stage of the proceedings, the factual

allegations she offers must be accepted as true—that Kooser and Huff-

man used excessive force to arrest her. See generally Doc. 1.1 Her claim

1 All document citations are to the document number and internal pagination

assigned in the CM/ECF system.

arises from an encounter with the Defendants that occurred on April

30, 2021 while Blanton was mowing her grandmother’s yard in Wich-

ita, Kansas. Id. at ¶ 10. When Blanton asked her neighbor to remove

his goats from her grandmother’s yard so that she could mow the lawn,

the neighbor called law enforcement to report a “verbal disturbance”

between Blanton and the neighbor over the neighbor’s goats. Id.

Law enforcement arrived at the home and “stated” that Blanton

had an outstanding “traffic-related” warrant. Doc. 1 at ¶ 11. At some

point, Blanton reentered the home and closed the door to a room be-

hind her. Kooser, who had arrived at the scene after other responding

officers, broke down the door in order to arrest her. Id. at ¶ 13. Before

doing so, Kooser threatened Blanton, warning “I’m about to kick the

s***out of this door and then you’re probably going to get f***** up.”

Id. at ¶ 12. Kooser then kicked open the door to the room and carrying

a heavy “barricade,” entered along with Huffman. Id. at ¶ 13. When

Kooser kicked open the door, there were already “multiple” law en-

forcement officers on the premises. Id.

Kooser and Huffman, who were both armed, found Blanton “lay-

ing on the floor” with “no weapon.” Doc. 1 at ¶ 13. At that point,

Blanton alleges that both officers “aggressively ran” towards her while

she was “lying on the floor, not actively resisting arrest and not at-

tempting to flee.” Doc. 1 at ¶ 14. Blanton alleges that Kooser “vio-

lently” struck her with his foot. Id. Both officers then pulled her arms

behind her back in order to “shackle” her. Id. While doing so, Kooser

put his “much larger” body weight fully on Blanton’s back and “right

upper extremity,” and continued to do so even after she had been “suc-

cessfully shackled.” Id. at ¶ 14, 15. As a result of the manner of the

arrest, Blanton suffered “an olecranon fracture of her right elbow,” for

which she has since had surgery. Id. at ¶ 15. In total, Blanton alleges

that the officers “made no attempt to temper or limit” the amount of

force they used, failed to intervene to prevent each other from using

excessive force, and intentionally used excessive force in order to

“punish” Blanton. Id. at ¶¶ 16, 19, 20.

Blanton filed suit against Kooser and Huffman in their individual

capacities. Doc. 1 at 1. She asserts that both “violated [her] rights under

the United States Constitution and Kansas law.” Doc. 1 at ¶ 2. While

the relatively short complaint never says as much, the parties assume

that she is asserting an excessive force claim in violation of the Fourth

Amendment. Doc. 18 at 6; Doc. 24 at 3. Kooser and Huffman request

that the case be dismissed for failure to state a claim and invoke the

doctrine of qualified immunity. Doc. 15.2

II

Blanton’s allegations, taken as true and ignoring any facts outside

the pleadings, state a claim for excessive force in violation of clearly

established Fourth Amendment law. Accordingly, Kooser and Huff-

man’s motion to dismiss, Doc. 15, is denied with respect to Blanton’s

claims under Section 1983.

A

Invoking 42 U.S.C. § 1983, Blanton seeks damages for the viola-

tion of her constitutional rights due to alleged excessive use of force.

Doc. 1 at ¶ 3. Section 1983 provides that “[e]very person who, under

color of [state law,] subjects, or causes to be subjected, any citizen ...

to the deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured.” 42

U.S.C. § 1983. It creates no substantive rights but merely provides a

mechanism for enforcing a right conferred by the Constitution or a

federal statute. Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002); see also

Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 174–75

(2023). To state a viable Section 1983 claim, a plaintiff must establish

that a person acting under color of state law caused him or her to be

deprived of a right secured by the Constitution or laws of the United

States. See Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009) (citing

West v. Atkins, 487 U.S. 42, 48(1988)); Lippoldt v. Cole, 468 F.3d 1204,

1219 (10th Cir. 2006).

Kooser and Huffman invoke qualified immunity in response to

Blanton’s claim. Doc. 18 at 6, 10. Qualified immunity attempts to bal-

ance competing interests. Suits against government actors allow those

wronged by government misconduct a method of redress. See Anderson

v. Creighton, 483 U.S. 635, 638 (1987) (citing Harlow v. Fitzgerald, 457

U.S. 800, 814 (1982)). But non-meritorious suits exact a high cost from

society and government officials by unduly interfering with the

2 Blanton’s Complaint references 42 U.S.C. § 1985. Doc. 1 at ¶ 7. Kooser and

Huffman seek dismissal of that claim. Doc. 18 at 13–14. Blanton agrees that

claim should be dismissed. Doc. 24 at 6, n.5. As a result, their motion to

dismiss is granted to the extent it concerns the Section 1985 claim.

discharge of official duties. See id.; see also Horstkoetter v. Dep’t of Pub.

Safety, 159 F.3d 1265, 1277 (10th Cir. 1998). So government officials

performing discretionary duties are immune from suit when their con-

duct does not violate clearly established statutory or constitutional

rights of which a reasonable official would have been aware. See Pearson

v. Callahan, 555 U.S. 223, 231 (2009); see also Johnson v. City of Shelby, 574

U.S. 10, 11 (2014) (recognizing municipalities may not rely on their

officers’ entitlement to qualified immunity). Whether an official is im-

mune turns on the objective reasonableness of the official’s actions,

considering the laws clearly established at the time the official acted.

See Messerschmidt v. Millender, 565 U.S. 535, 546 (2012). Objective rea-

sonableness is not an exacting standard; qualified immunity protects

all but the plainly incompetent or those who knowingly violate the law.

See White v. Pauly, 580 U.S. 73, 79 (2017); Malley v. Briggs, 475 U.S. 335,

341 (1986).

The analytical framework for the invocation of qualified immunity

at the Rule 12 stage is settled. See, e.g., City of Tahlequah, Oklahoma v.

Bond, 595 U.S. 9, 12 (2021) (per curiam); Rivas-Villegas v. Cortesluna, 595

U.S. 1, 5 (2021) (per curiam). First, the facts as pled in the complaint

must allege conduct that, assuming the allegations are true, violates the

Constitution or laws of the United States. Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011). Second, the law must have been clearly established at

the time of the alleged conduct such that the defendant had fair notice

that his or her conduct was unlawful. See District of Columbia v. Wesby,

583 U.S. 48, 63 (2018). If both inquiries are answered in the affirma-

tive, the motion to dismiss must be denied. But, if the answer to either

is no, the defendant is entitled to judgment as a matter of law. Hemry

v. Ross, 62 F.4th 1248, 1253 (10th Cir. 2023).3

The first step requires Blanton to establish a constitutional viola-

tion. As the allegedly excessive force occurred “up to and including”

Blanton’s arrest, her claim arises under the Fourth Amendment’s pro-

tection against unreasonable seizures. Est. of Booker v. Gomez, 745 F.3d

405, 419 (10th Cir. 2014); McCoy v. Meyers, 887 F.3d 1034, 1045 (10th

3 Courts have discretion to address the inquiries in any order, as courts must

“think carefully before expending ‘scarce judicial resources’ to resolve diffi-

cult and novel questions of constitutional or statutory interpretation that will

‘have no effect on the outcome of the case.’” al-Kidd, 563 U.S. at 735 (quoting

Pearson v. Callahan, 555 U.S. 223, 236 (2009)); Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018).

Cir. 2018) (citing Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)). “A po-

lice officer violates an arrestee’s … Fourth Amendment right to be free

from excessive force during an arrest if the officer’s actions were not

‘objectively reasonable’ in light of the facts and circumstances con-

fronting him.” McCowan v. Morales, 945 F.3d 1276, 1283 (10th Cir.

2019) (citing Est. of Ceballos v. Husk, 919 F.3d 1204, 1213 (10th Cir.

2019)).

Reasonableness is a product of both “the nature and quality of in-

trusion” and “the countervailing governmental interests at stake.” Gra-

ham v. Connor, 490 U.S. 386, 396 (1989). Graham identified several fac-

tors to aid in that inquiry, including “the severity of the crime at issue,”

“whether the suspect poses an immediate threat to the safety of the

officers or others,” and “whether [the suspect] is actively resisting ar-

rest or attempting to evade arrest by flight.” Id. But, because officers

are often forced to make “split-second judgments” under “stressful

and dangerous conditions,” the standard is never one of 20/20 hind-

sight and is always directed towards objective reasonableness consid-

ering the circumstances at the time of the conduct as they would have

appeared to a reasonable officer. Medina v. Cram, 252 F.3d 1124, 1131

(10th Cir. 2001).

If she states a constitutional claim, the next question is whether the

law was clearly established. Discerning whether the relevant legal rule

was clearly established is a narrow and context-specific exercise. See

City of Tahlequah, Oklahoma v. Bond, 595 U.S. 9, 12 (2021) (per curiam);

Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (per curiam). In short,

the precise contours of the legal right must have been so clear that

every reasonable official in that circumstance would have understood

what he or she was doing violated that right, leaving no debate as to

the lawfulness of the conduct in the particular situation. See Mullenix v.

Luna, 577 U.S. 7, 13–14 (2015); Reichle v. Howards, 566 U.S. 658, 664

(2012); Ashcroft v. al-Kidd, 563 U.S. 731, 740 (2011); see also Rivas-Villegas,

595 U.S. at 5-8 (reversing a denial of qualified immunity where the

precedent relied upon had “materially distinguishable” facts such that

it “did not give fair notice” to the official).

Practically, this means a “Supreme Court or Tenth Circuit deci-

sion” must have held that the same conduct (or very nearly the same

conduct) as the conduct at issue is a violation of law.4 Wise v. Caffey, 72

F.4th 1199, 1209 (10th Cir. 2023). To be sure, a case “directly on point”

is not necessary for a right to be clearly established, but existing prec-

edent must have placed the constitutional question “beyond debate.”

White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam). In the context

of a Fourth Amendment excessive force claim, this means that plain-

tiffs must show “that objectively reasonable officers could not have []

thought the force [used] was constitutionally permissible.” Cortez v.

McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007).

B

Kooser and Huffman argue that they did not violate any clearly

established law. But taking the allegations in the complaint as true,

Blanton states a claim. While Kooser and Huffman raise strong argu-

ments against the existence of a constitutional violation, they do so by

relying on facts drawn from body camera footage that cannot be con-

sidered at this stage.

1

Based on the Complaint, Blanton states a claim for excessive force.

Contra Doc. 18 at 7-10, 11-13. The Supreme Court and Tenth Circuit

has recognized that the right to arrest necessarily carries with it the

right to use some degree of physical coercion, and that handcuffing is

appropriate in nearly every circumstance. Graham, 490 U.S. at 396;

Fisher v. City of Las Cruces, 584 F.3d 888, 896 (10th Cir. 2009). This

includes minor traffic offenses. Atwater v. City of Lago Vista, 532 U.S.

318, 354-55 (2001). Nonetheless, the force used must be calibrated to

the situation; the salient inquiry is how much force was objectively

warranted as informed by the non-exclusive Graham factors. Mglej v.

Gardner, 974 F.3d 1151, 1167 (10th Cir. 2020).

4 The Supreme Court has never held that circuit precedent may be a disposi-

tive source of clearly established law, opting instead to assume without de-

ciding that it might. See City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019)

(citing City & County of San Francisco v. Sheehan, 575 U.S. 600, 614 (2015), which

cited Carroll v. Carman, 574 U.S. 13, 17 (2014), which, in turn, cited Reichle,

566 U.S. at 665-66)). Nonetheless, the law in the Tenth Circuit is clear: a

“constitutional right is clearly established when a Tenth Circuit precedent is

on point, making the constitutional violation apparent.” Apodaca v. Raemisch,

864 F.3d 1071, 1076 (10th Cir. 2017).

The allegations, assuming they are true, are troubling.5 The Com-

plaint alleges that Kooser threatened that he was going to “f***” Blan-

ton up, then “kicked open the door” to the room where Blanton was

lying. Doc. 1 at ¶¶ 12–13. Both Kooser and Huffman rushed towards

her, and, while carrying a barricade, Kooser “violently” struck Blanton

with his foot as punishment. Id. at ¶¶ 12, 14. Then, during the hand-

cuffing process, Kooser placed “his much larger body weight” on

Blanton and continued to do so even after she was “successfully shack-

led,” as further punishment. Id. at ¶ 14. Along with Kooser, Huffman

is alleged to have placed “force and weight” on Blanton’s “right upper

extremity” during the arrest and handcuffing. Id. at ¶ 15. And it is al-

leged that he “failed to intervene” as Kooser used “objectively unrea-

sonable force.” Id. at ¶ 16. As a result of Huffman and Kooser’s ac-

tions, Blanton suffered a broken elbow, requiring surgery. Id. at ¶ 15.

The allegations, accepted as true, state a claim for excessive force.

The degree of force used, and the resulting injuries exceed that which

was reasonable under the situation. First, the crime giving rise to the

arrest warrant appears to have been non-violent. Blanton’s outstanding

warrant was for a “traffic-related” offense and there is no basis to be-

lieve that she was prone to, or had employed violence or otherwise

resisted arrest in the past. See Fogarty v. Gallegos, 523 F.3d 1147, 1160

(10th Cir. 2008) (noting that an arrest for a misdemeanor requires re-

duced force); see also Dixon v. Richer, 922 F.2d 1456, 1462–63 (10th Cir.

1991).

Second, Blanton did not present any threat, immediate or other-

wise, to the officers, herself, or to the public more generally. Indeed,

there is no indication from the Complaint that Blanton ever made any

“hostile motions towards” the officers and there is no suggestion that

she was armed with any dangerous object. To the contrary, the Com-

plaint alleges that she was lying on the floor when the officers encoun-

tered her. The fact that there was no evidence to suggest that Blanton

posed an immediate threat to either officer weighs against the use of

more than minimal force. Mglej, 974 F.3d at 1168.

5 In some cases, the conduct of police officers may be considered in the ag-

gregate, rather than individually. See Est. of Booker v. Gomez, 745 F.3d 405, 421

(10th Cir. 2014). That is appropriate here since the Complaint alleges that

Huffman and Kooser acted collectively to arrest her, Doc. 1 at ¶¶ 14–23, and

neither Defendant raises a personal participation defense.

Third, the allegations suggest that Blanton was not resisting arrest

at the time the force was used or attempting to flee. The Complaint

describes multiple police officers responding to the scene, Blanton ly-

ing in her grandmother’s home on the floor, and no active resistance

to the officers’ attempt to arrest her. Doc. 1 at ¶¶ 11-14. Again, this

confirms only minimal force was needed. Mglej, 974 F.3d at 1168.

Despite that, the force used was more than minimal. According to

the Complaint, Kooser threatened that he was going to “f***” Blanton

up, then “kicked open the door” to the room where Blanton was lying.

Doc. 1 at ¶¶ 12–13. Both Kooser and Huffman rushed towards her

and Kooser “violently” kicked her, while carrying a barricade, as pun-

ishment. Id. at ¶¶ 12, 14. Then, during the handcuffing process, Blan-

ton alleges that Kooser and Huffman placed “[their] much larger body

weight” on her and continued to do so even after she was “successfully

shackled,” all as further punishment. Id. at ¶ 14. As a result of Huffman

and Kooser’s actions, Blanton suffered a broken elbow. Id. at ¶ 15.

2

The Defendants’ position does not confront Blanton’s allegations.

Instead, their principal point is that the facts alleged are not what hap-

pened. Blanton, they argue, left most of the relevant facts out of her

Complaint based on review of the body camera footage. Doc. 18 at 2-

4. Huffman and Kooser’s version of the facts would present a much

closer question. But at this stage of the proceedings, the videos and the

mitigating context that Defendants derive from them cannot be con-

sidered.

A court typically may only consider the well-pled allegations plus

any exhibits or documents attached to the complaint. Smith v. United

States, 561 F.3d 1090, 1098 (10th Cir. 2009). In some limited circum-

stances, federal courts have discretion to “consider documents referred

to in the complaint if the documents are central to the plaintiff’s claim

and the parties do not dispute the documents’ authenticity.” Alvarado

v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (citation and

internal quotation marks omitted). This includes body camera footage.

Est. of Harmon v. Salt Lake City, No. 20-4085, 2021 WL 5232248, *2

(10th Cir. Nov. 10, 2021) (affirming the consideration of body camera

footage incorporated into a complaint in evaluating a motion to dis-

miss).

Several factors counsel against considering the contents of any of

the videos at this stage of the proceedings.6 First, it is not clear that

Blanton actually referred to the video in the Complaint. Although the

Complaint quotes Kooser’s threat, the Complaint does not cite any

body camera video for that quotation. The defendants assume that the

quotation is from the body camera footage, Doc. 27 at 1, but it may

just as easily have been Blanton’s recollection. Even if the quotation

was pulled from a body camera video, there is no way of telling which

one. Defendants submitted four videos and provided no basis to do

anything other than consider all of them. That weighs against consid-

ering the videos. See Est. of Holmes by & through Couser v. Somers, 387 F.

Supp. 3d 1233, 1243 (D. Kan. 2019) (declining to consider six different

body camera videos where the “parties’ memoranda conflict[ed] as to

the events occurring on the videos, the statements made therein, and

the party making those statements,” and would invite the court to

“evaluate competing interpretations of the videos” that “may be sus-

ceptible to more than one interpretation”), aff’d sub nom. Couser v. Gay,

959 F.3d 1018 (10th Cir. 2020).

Second, Blanton does not consent to consideration of any part of

the videos. Doc. 24 at 2. That distinguishes this case from situations

where the Plaintiff consented to the consideration of some but not all

body camera footage. See Est. of Harmon v. Salt Lake City, No. 20-4085,

2021 WL 5232248, *2 (10th Cir. Nov. 10, 2021) (affirming the consid-

eration of body camera footage where Plaintiffs “did not object to the

court considering the body-cam videos,” and objected only to the con-

sideration of “frame-by-frame excerpts”).

C

Defendants also assert—without explanation—that Blanton’s

Fourth Amendment right was not clearly established. Doc. 18 at 10,

12. Well before the incident described in Blanton’s Complaint, the

Tenth Circuit had recognized the right of a handcuffed individual who

is not attempting to evade arrest, poses no threat to safety, and is

wanted for a minor crime to be free from the use of such force and

6 Blanton does not dispute the authenticity of the videos and instead contends

that the videos “are not central to her claims.” Doc. 24 at 3. That argument

is not persuasive. Cf. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d

1081, 1104 (10th Cir. 2017) (finding videos that documented words central

to a claim of defamation were central to the complaint).

attendant significant injury. Mglej v. Gardner, 974 F.3d 1151, 1169-70

(10th Cir. 2020) (affirming a district court’s conclusion that it was

clearly established, at the time the defendant arrested the plaintiff, that

unnecessarily tight handcuffs violated the law); see also Elder v. Holloway,

510 U.S. 510, 516 (1994) (recognizing federal courts have an obligation

to survey the full range of relevant precedent to ascertain the clarity of

the law).

There are obvious factual distinctions between Blanton’s case and

the facts in Mglej. In Mglej, the allegation was that the officer knew he

placed the handcuffs on the plaintiff too tight and that this could cause

(and, ultimately, did cause) long-lasting injuries. Mglej, 974 F.3d at 1167.

There were no allegations that the arresting officer made threats to

inflict harm on the arrestee, struck the arrestee with the intent to pun-

ish after she had been restrained, or broke the arrestee’s bones even

though she was not resisting. Those factual distinctions emphasize, not

undermine, the clarity of the violation Blanton alleged. Assuming it

occurred as Blanton alleges, Blanton’s allegations confirm the defend-

ants’ conduct fell far afield of the breathing room qualified immunity

affords.

Mglej is not an isolated case. In McCoy v. Meyers, for instance, offic-

ers breached a motel room in a hostage situation and found McCoy

with a gun sitting on a motel room bed. McCoy v. Meyers, 887 F.3d 1034,

1039 (10th Cir. 2018). McCoy was ordered to drop the gun and com-

plied. Id. at 1040. McCoy was then pulled off the bed where several

officers pinned him down, applied a neck restraint, and hit him “in the

head, shoulders, back, and arms.” Id. at 1041. As a result, McCoy be-

came unconscious. Id. While he was unconscious, his hands and feet

were zip-tied together. Id. Once he became conscious again, and while

he was bound hand and foot, an officer hit McCoy again several times

and applied another neck restraint, recklessly rendering him uncon-

scious again. Id. at 1042. The Tenth Circuit held that the use of such

“post-restraint” force was excessive based on clearly established law.

Id. at 1052 (applying this rule to conduct that occurred in 2011). In

short, using gratuitous, reckless force against “a fully compliant and

subdued misdemeanant arrestee who posed no threat to anyone” is

excessive. McCowan v. Morales, 945 F.3d 1276, 1284 (10th Cir. 2019); see

also Wilkins v. City of Tulsa, Oklahoma. 33 F.4th 1265 (10th Cir. 2022)

(holding that the use of pepper spray against a subdued, misdemeanant

arrestee who was not resisting was unreasonable and excessive).

Moreover, Defendants’ effort to distinguish the authorities offered

by Blanton do not justify a different result. Contra Doc. 27 at 4-5. In

Est. of Booker v. Gomez, 745 F.3d 405 (10th Cir. 2014), the Tenth Circuit

held that it was not reasonable to use upper-back pressure, a taser, and

a carotid restraint against an individual (who ultimately died) who was

not resisting arrest and was restrained by handcuffs. 745 F.3d at 428-

29 (applying Fourth Amendment principles in a Fourteenth Amend-

ment context). And in Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008),

the Tenth Circuit held that officers’ use of force on an individual who

had been restrained and that they knew was susceptible to positional

asphyxiation constituted unreasonable force that violated clearly estab-

lished law. Weigel, 544 F.3d at 1154. Defendants rightly contend that

the methods of applying the force (e.g., a taser instead of a knee) or

resulting injury (e.g., death instead of a broken bone) are different here

than in Weigel or Estate of Booker. Doc. 27 at 4–5. But those differences

fail to undermine the clarity of the prohibition—as applied in, among

other cases, Mglej, McCoy, and Wilkins—against using gratuitous force

and causing serious injury to a misdemeanant arrestee who is not re-

sisting. See, e.g., Packard v. Budaj, 86 F.4th 859, 869 (10th Cir. 2023)

(noting that the clearly established inquiry is not a “scavenger hunt for

prior cases with precisely the same facts”).

III

For the foregoing reasons, Kooser and Huffman’s Motion to Dis-

miss, Doc. 15, is GRANTED in part and DENIED in part.

It is so ordered.

Date: May 30, 2024 s/ Toby Crouse

Toby Crouse

United States District Judge