                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         May 16, 2016
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
DERON MCCOY, JR.,

      Plaintiff - Appellant,

v.                                                        No. 15-3223
                                                 (D.C. No. 5:12-CV-03050-JAR)
DAVID MILLER, Law Enforcement                               (D. Kan.)
Officer, Hutchinson Police Department, in
his individual and official capacity; CHRIS
SCHULTZ, Law Enforcement Officer,
Hutchinson Police Department, in his
individual and official capacity; LEE
CAMPBELL, Law Enforcement Officer,
Hutchinson Police Department, in his
individual and official capacity;
MICHAEL C. ROBINSON, City
Prosecutor, Municipal Court of
Hutchinson, Kansas, in his individual and
official capacity;

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
                   _________________________________



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       DeRon McCoy, Jr., proceeding pro se, advances claims under 42 U.S.C.

§ 1983, arguing that three police officers violated his Fourth Amendment rights by

forcibly entering his home without a warrant, consent, probable cause, or exigent

circumstances, and then arresting him. The district court granted the officers

summary judgment on the basis of qualified immunity. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.1

                                           I

       The district court found the following facts to be uncontroverted, and McCoy

does not dispute them on appeal. In response to a 911 call, the officers were

dispatched to McCoy’s home. Upon arriving, they found the mother of McCoy’s

girlfriend outside visibly shaken, very upset, and vocally concerned about what was

happening inside the home. She told them McCoy was inside with his girlfriend and

the couple’s infant daughter; that he had a history of physically abusing his

girlfriend, whom she had seen him hit in the past; and that McCoy had also hit the

mother in the past and threatened to kill her if she reported the abuse. She also

reported hearing the couple arguing upstairs that night, including McCoy saying that

he was not playing around with her anymore, someone being pushed, and McCoy

possibly hitting his girlfriend.


       1
        McCoy’s notice of appeal also included Michael Robinson, the City
Prosecutor, as an appellee. However, McCoy does not mention Robinson in his
appellate brief or present any issues involving him. Any challenge to the district
court’s dismissal of the claims against Robinson is waived. See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (“[O]mission of an issue in an opening brief
generally forfeits appellate consideration of that issue.”).
                                           2
       One of the officers knocked on the door, identified herself as a police officer,

and asked for the door to be opened so the officers could check on his girlfriend’s

safety. His girlfriend indicated she was okay, but because the officers could not see

her and believed McCoy was standing right beside her, they were concerned she was

not able to communicate honestly with them. The officers continued to ask for the

door to be opened so they could confirm she was safe. Speaking through the locked

door, McCoy and his girlfriend told the officers they could not come in without a

warrant and refused to open the door. McCoy and his girlfriend also denied the

officers’ request for them to come outside. The officers then kicked in the door and

entered the home with guns drawn. McCoy was handcuffed and taken to another

room while two of the officers examined his girlfriend for injuries, finding none. The

officers learned McCoy had an outstanding arrest warrant and arrested him. He was

also arrested for obstruction of justice based on his refusal to let the officers enter the

home or to come outside. McCoy argues that the forcible entry and resulting arrest

violated the Fourth Amendment. The district court disagreed, granting qualified

immunity to the officers. This appeal followed.

                                            II

       We review de novo the district court’s grant of summary judgment.

Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010).2 A party is entitled to


       2
        McCoy also argues that the district court failed to make findings of fact or
conclusions of law before denying his motion for summary judgment. We do not
reach this argument because the district court’s denial of summary judgment is not
appealable. Pahls v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013).
                                             3
summary judgment only if, viewing the evidence in the light most favorable to the

non-moving party, the movant is entitled to judgment as a matter of law. Lundstrom,

616 F.3d at 1118. To defeat summary judgment based on qualified immunity, the

plaintiff bears the burden to demonstrate that the defendants violated a statutory or

constitutional right that was clearly established at the time of the challenged conduct.

Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015). We construe McCoy’s pro se

filings liberally, but we will not supply additional factual allegations or construct

legal theories on his behalf. See Smith v. United States, 561 F.3d 1090, 1096

(10th Cir. 2009).

       “[S]earches and seizures inside a home without a warrant are presumptively

unreasonable” under the Fourth Amendment. United States v. Najar, 451 F.3d 710,

713 (10th Cir. 2006) (quotation omitted). “The Supreme Court has made clear,

however, that police may enter a home without a warrant where they have an

objectively reasonable basis for believing that an occupant is seriously injured or

imminently threatened with such injury.” West v. Keef, 479 F.3d 757, 759 (10th Cir.

2007). If such “exigent circumstances” exist, the entry and search do not violate the

Fourth Amendment so long as the manner and scope of the search is reasonable.

Najar, 451 F.3d at 718. We review de novo whether the facts the district court found

satisfy the exigency exception. See United States v. Davis, 290 F.3d 1239, 1241

(10th Cir. 2002).

      Although not every domestic call justifies a warrantless entry, see id. at 1244

(rejecting “a special rule for domestic calls because they are inherently violent”), the

                                            4
officers had information in addition to the call that indicated McCoy’s girlfriend’s

safety could be at imminent risk. In particular, the mother demonstrated distress,

described that she heard a threat against—and potential physical abuse of—his

girlfriend that night, and made statements demonstrating McCoy had a reputation for

violence. Cf. id. at 1243 (absence of a reputation for violence weighs against

exigency).3 This information provided a reasonable basis for investigating further.

Moreover, McCoy’s and his girlfriend’s refusal to allow the officers to either come

inside or speak with his girlfriend outside the home did not allay their legitimate

concerns. McCoy’s post hoc attempt to describe efforts the officers could have

used—such as asking the couple to stand in front of a window—is unavailing. Given

the totality of the circumstances, the officers had an objectively reasonable basis to

be concerned for McCoy’s girlfriend’s safety, which concern constituted exigent

circumstances justifying a search. See Najar, 451 F.3d at 720 (considering the

totality of the circumstances in determining that exigent circumstances existed).

Thus, McCoy has not shown a violation of his constitutional rights.4


      3
         McCoy argues that the mother’s statements are inadmissible hearsay. An
out-of-court statement is hearsay if “a party offers [it] in evidence to prove the truth
of the matter asserted in the statement.” Fed. R. Evid. 801(c)(2). The prosecution
did not submit the mother’s statements to demonstrate their truth; rather, the
statements were submitted to show why the officers sought to ensure McCoy’s
girlfriend’s safety. Accord United States v. Edwards, 782 F.3d 554, 560 (10th Cir.)
(“[A]n out of court statement is not hearsay if it is offered for the limited purpose of
explaining why a government investigation was undertaken.” (quotation omitted)),
cert. denied, 136 S. Ct. 153 (2015). Thus, the mother’s statements were not hearsay.
      4
        McCoy also argues that criminal proceedings on his obstruction of justice
charge preclude the district court’s grant of qualified immunity. For issue preclusion
                                            5
                                           III

      The judgment of the district court is AFFIRMED. McCoy’s motion to

proceed in forma pauperis is GRANTED. All other pending motions are DENIED

as moot.



                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




to apply, the officers must have been parties to that municipal court proceeding or in
privity with the parties in that action. See In re Application of Fleet for Relief from a
Tax Grievance in Shawnee Cty., 272 P.3d 583, 589 (Kan. 2012). The officers were
neither, and issue preclusion does not apply. Accord Kinslow v. Ratzlaff, 158 F.3d
1104, 1105-06 (10th Cir. 1998).
                                            6
