Horry County police, officer face lawsuit over Bike Week arrest

MYRTLE BEACH, S.C. (WMBF) - A lawsuit has been filed against the Horry County Police Department, its chief, and one officer over an arrest made during Myrtle Beach Bike Week in 2021.

According to the lawsuit, on May 14, 2021, Kenard Burley and his wife Chelsea, of Texas, participated in Myrtle Beach Bike Week.

The lawsuit filed May 5, 2023, states Burley “is a black male who was among mostly white participants in Myrtle Beach Bike Week who were all standing outside of the Causeway Bar and Grill listening to music and showing each other their motorcycles, as is common during motorcycle gatherings.”

Horry County police officer Thomas DelPercio, who has since retired from the department, approached Burley, the lawsuit states, “the sole black individual in the group, believing [Burley’s] music to be too loud.”

According to the incident report from HCPD, DelPercio, as “acting Watch Commander, was at the Causeway Bar and Grill to assist with a very large crowd that was beginning to spill out into the roadway.”

DelPercio allegedly claimed Burley’s music was in violation of a noise ordinance, the lawsuit claims.

The incident report from HCPD states DelPercio told Burley to “turn down the stereo on his motorcycle at which time he increased [the] volume to a higher level.” The report also states DelPercio thought Burley “was intoxicated with bloodshot eyes and the odor of alcohol.”

According to the lawsuit, DelPercio told Burley he was being arrested. Burley claims he reached toward his pocket for ID “and DelPercio drew his service weapon,” aiming it at Burley’s face.

The claim states Burley was immediately in fear for his life and immediately raised his hands in the air.

According to the arrest warrant for Burley, he “resisted arrest by refusing to place his hands behind his back after he was advised he was under lawful arrest.”

“DelPercio reholstered his service weapon and drew his OC spray,” states the lawsuit. “Suddenly, without any warning to or provocation ... DelPercio sprayed [Burley] in the face and eyes.”

The arrest warrant states “a chemical agent was used to gain compliance,” and Burley was handcuffed; however, the warrant states that Burley continued to resist arrest by refusing to get into the van for several minutes.

Burley alleges he was immediately unable to see and suffered significant pain while the spray also struck other officers nearby, “putting them and bystanders at risk,” and “causing them to suffer from DelPercio’s unlawful conduct.”

The incident report says Burley’s “eyes were flushed with water and he was examined by Horry County EMS. The Horry County Sheriff’s Office Van responded and after a short period of time, the arrestee was placed in the van and transported to the Horry County Detention Center.”

According to the lawsuit, as a result of the arrest and use of excessive use of force, Burley suffered physical injury, mental pain and suffering, emotional pain and suffering, emotional distress, humiliation, fear, trauma, embarrassment, loss of enjoyment of life, and other injuries.

The lawsuit also claims HCPD and Horry County have a history of their officers violating policies and procedures and hold the Department and Chief of Police responsible for DelPercio’s actions that day.

Burley is seeking a jury trial for damages for improper search and seizure, and due process, deliberate indifference, negligence and gross negligence.

Horry County said it does not comment on pending litigation.

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