Brian Sawyer v. Jim Asbury

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2123

BRIAN SAWYER,

Plaintiff - Appellee,

v.

JIM R. ASBURY, individually and in his capacity as a Deputy
with the Wood County Sheriff's Department,

Defendant – Appellant,

and

WOOD COUNTY COMMISSION, a political subdivision in the State
of West Virginia,

Defendant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph R. Goodwin,
District Judge. (6:10-cv-01256)

Argued: May 17, 2013 Decided: August 13, 2013

Before MOTZ and GREGORY, Circuit Judges, and Ellen Lipton
HOLLANDER, United States District Judge for the District of
Maryland, sitting by designation.

Affirmed by unpublished opinion. Judge Hollander wrote the
opinion, in which Judge Motz and Judge Gregory joined.
ARGUED: Wendy Elizabeth Greve, PULLIN, FOWLER, FLANAGAN, BROWN &
POE, PLLC, Charleston, West Virginia, for Appellant. John Hague
Bryan, JOHN H. BRYAN, ATTORNEY AT LAW, Union, West Virginia, for
Appellee. ON BRIEF: Katie L. Hicklin, PULLIN, FOWLER, FLANAGAN,
BROWN & POE, PLLC, Charleston, West Virginia, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

2
ELLEN LIPTON HOLLANDER, District Judge:

This appeal concerns events that occurred at the Wood

County Detention Center in West Virginia, while Brian Sawyer was

detained following his arrest in connection with a domestic

disturbance. During his detention, Sawyer sustained a broken

nose after Wood County Deputy Sheriff Jim Asbury used physical

force upon him. The interaction was recorded on closed-circuit

video, without sound, and that video is central to the case.

As a result of the incident, Sawyer sued Asbury in federal

court, pursuant to 42 U.S.C. § 1983, claiming (among other

things) that Asbury’s use of excessive force violated Sawyer’s

rights under the Due Process Clause of the Fourteenth Amendment.

The jury returned a verdict in Asbury’s favor. Concluding that

the video clearly established Asbury’s use of excessive force,

the district court granted Sawyer’s motion for judgment. See

Sawyer v. Asbury, 861 F. Supp. 2d 737 (S.D.W. Va. 2012). In

addition, the district court found that Asbury was not entitled
1
to qualified immunity. For the reasons that follow, we affirm.

1
The district court had jurisdiction under 28 U.S.C.
§§ 1331 & 1367(a). Our jurisdiction is founded on 28 U.S.C.
§ 1291.

3
 I.

In October 2010, Sawyer filed suit against Deputy Asbury,

in both his individual and official capacities. 2 Sawyer’s

Amended Complaint (JA 15) contained two claims against Asbury

under 42 U.S.C. § 1983. In particular, Sawyer asserted a claim

of excessive force, in violation of the Fourth Amendment,

arising out of Deputy Asbury’s arrest of Sawyer at his home in

October 2009, and another claim of excessive force, in violation

of the Fourteenth Amendment, based on Deputy Asbury’s conduct at

the detention center.

Following discovery, the district court granted summary

judgment in favor of Deputy Asbury in his official capacity as

to all counts, and in favor of Deputy Asbury in his individual

capacity as to the excessive force claim arising from Sawyer’s

arrest. However, the court denied summary judgment with respect

to the individual-capacity Fourteenth Amendment claim relating

to the occurrence at the detention center. 3

2
Sawyer also sued Asbury’s employer, the Wood County
Commission, but the district court granted summary judgment in
its favor. That ruling is not contested on appeal.
3
On appeal, Deputy Asbury challenges the summary judgment
ruling as to the Fourteenth Amendment claim to the extent that
the district court denied him qualified immunity. However, a
party may not “appeal an order denying summary judgment after a
full trial on the merits[.]” Ortiz v. Jordan, ___ U.S. ___, 131
S. Ct. 884, 889 (2011). Accordingly, our review concerning
qualified immunity is limited to the district court’s rulings
(Continued)
4
 At the trial in April 2012, the jury heard the testimony of

Sawyer and Asbury, as well as Sergeant Larry D. Kearns and

Lieutenant David Massey, who were at the detention center at the

relevant time. In addition, the video recording was played for

the jury “several times at different speeds with freeze frames

on occasion.” 861 F. Supp. 2d at 743. 4 At the time of the

incident, Asbury was not aware of the video camera in the room.

JA 171.

The evidence showed that Deputy Asbury proceeded to

Sawyer’s home on October 29, 2009, in response to a domestic

disturbance call from Sawyer’s girlfriend. Sawyer admitted that

before his arrest he had consumed “a couple Klonopin” and “a

couple beers.” JA 115-16. While Deputy Asbury was placing

Sawyer under arrest, Sawyer attempted to kick Asbury. But,

during trial. In undertaking this review, we look to “‘the
trial record, not the pleadings nor the summary judgment
record.’” Id. (citation omitted).
4
At the outset of trial, the district court gave the jury
the following stipulated instruction regarding the video, JA111:
[T]he video recording you are about to see is from a
security camera that is motion-activated. As a
result, the video will skip slightly and the playback
will pause or be slower than real-time in parts. The
security camera does not record audio, so that is not
available to us.

5
Asbury “saw the kick coming” and avoided it. As a result,

Sawyer struck the door of the residence. JA 208. 5

After Asbury arrested Sawyer, Asbury put Sawyer into his

police vehicle and drove him to the detention center. Both

Sawyer and Asbury testified that, during the drive to the

detention center, Sawyer was “running [his] mouth” to Asbury.

JA 118 (Sawyer); JA 171 (Asbury). For example, Sawyer told

Asbury that Asbury “was a tough guy because he put his hands on

someone while they’re cuffed”; claimed that Sawyer “knew where

[Asbury] lived”; stated that Sawyer was “going to kick

[Asbury’s] ass”; and asked Asbury if “he ever wonder[s] what his

wife’s doing while he’s out working these late hours.” JA 118-

19 (Sawyer); JA 171 (Asbury). 6 The parties agree that Sawyer’s

stream of invective continued as Sawyer proceeded into the

detention center. They also agree, however, that Sawyer did not

engage in any physical misconduct, such as kicking, spitting,

rocking the police vehicle, or physically resisting the

deputies’ directives.

As reflected on the video and as described in the trial

testimony, the deputies escorted Sawyer, in handcuffs, into the

5
Based on Sawyer’s conduct during the arrest, he was
prosecuted in West Virginia state court on charges of assaulting
a police officer and pleaded guilty to that offense.
6
Sawyer did not know Asbury’s marital status. JA119. In
fact, Asbury was unmarried. JA209.

6
processing room at the detention center. Once inside, Sawyer

complied with Sgt. Kearns’ directive to sit on a cement bench

attached to the wall. Sawyer was then instructed to stand so

that Deputy Asbury could remove his handcuffs. Again, Sawyer

complied. Thereafter, Asbury directed Sawyer to face the wall

and place his hands on it, so that Asbury could perform a pat-

down. Sawyer complied, and Deputy Asbury conducted the pat-

down. During these events, Sawyer continued his invective

against Asbury, although Asbury conceded that Sawyer’s demeanor

was “diminished” from the hostility he displayed in the police

vehicle. JA 174.

The video shows that, during the pat-down, Sawyer turned

his head to look back at Asbury and to speak to him, but kept

his hands on the wall. All three deputies characterized

Sawyer’s action in turning his head as a “target glance,” which

the deputies described from their training and experience as a

“danger cue,” indicating (in Sgt. Kearns’ description) that the

suspect is “looking back to see the position of the officer, or

what the officer might have, or what the officer’s doing in

preparation for some kind of an act against the officer.” JA

206; see also JA 229; JA 255. Nevertheless, Sawyer did not take

any physically aggressive action toward the deputies. And,

despite the “target glance,” the deputies did not place Sawyer

back in handcuffs.

7
 After Asbury completed the frisk, Sawyer again sat on the

cement bench. JA 176. However, Sawyer crossed his legs and

arms, a posture that Asbury and Sgt. Kearns both regarded as

“defiant.” JA 176; JA 229. It is undisputed, and readily

apparent from the video, that while Sawyer was seated on the

bench and Asbury stood directly in front of him, the two engaged

in a heated verbal argument for about thirty seconds. The other

deputies observed the events from a distance of a few feet.

Sawyer and Asbury were gesticulating with their hands, and

both admitted that they were using “abrasive” and inappropriate

language. JA 179. Asbury claimed that during this exchange he

told Sawyer, three times, to stand so that he could be

fingerprinted and photographed, but Sawyer did not do so,

instead sitting back with his arms and legs crossed. Asbury is

seen on the video pointing repeatedly with his right hand at his

own left chest, in the area of his badge. The parties agree that

around this time, Sawyer stated that he would “take [Asbury’s]

badge off [his] chest and shove it up [his] ass.” JA 178.

At this point, the video shows that Deputy Asbury lunged at

Sawyer, who was still seated. With his left hand, Asbury

grabbed Sawyer’s right arm, which was in mid-gesture. With his

right hand, Asbury seized Sawyer by the throat, and forced him

back against the wall, pushing back and upward on Sawyer’s neck.

8
 Although the video indisputably shows that Asbury seized

Sawyer by the neck, Asbury denied placing his hands on Sawyer’s

neck. JA 183. Instead, he claimed that he “placed [his] hand

upon [Sawyer’s] chest in the upper chest area.” Id. On cross-

examination, Asbury acknowledged that he had testified at his

deposition that he placed his hand on Sawyer’s “upper chest and

throat area.” JA 186.

Sgt. Kearns and Lt. Massey both testified that Asbury

seized Sawyer by the neck. But, they claimed that Asbury was

attempting to use “pressure point control tactics” on Sawyer’s

neck, and denied that Asbury was “choking” Sawyer. JA 232

(Kearns); see also JA 259 (Massey). Notably, Asbury did not

testify that he attempted to use a pressure point control tactic

on Sawyer at any time during the incident.

Sgt. Kearns believed the “pressure point” had “to do with a

thumb up along the jawbone by the ear, something in that area.”

JA 232. He described the pressure point control tactic as “a

pain compliance technique” and stated: “[W]hen someone has that

on you it’s causing pain and you try to get away from it.” JA

232. But, Kearns denied that the purpose of such a technique is

to cause pain or injury, explaining: “[I]t’s in an effort to get

them to do what you want them to do. You -- you apply the

pressure to cause pain and you must tell them what to do; and

when they comply, then you stop.” JA 233. However, he could

9
not recall whether Asbury told Sawyer what to do while applying

the pressure point tactic. Id.

The video indicates that, after Asbury lunged at Sawyer and

seized him by the throat, Sgt. Kearns and Lt. Massey walked to

either side of Asbury and Sawyer. Asbury drew his hand back as

if to strike Sawyer, but what he did with his hand is not

captured on the video, because the video skips at that point. A

moment later, however, the video clearly shows that Asbury drew

his fist back a second time and struck Sawyer in the face.

Nevertheless, Asbury testified that he “did not punch Mr.

Sawyer,” JA 105, and “did not strike him.” JA 106. The other

two deputies also denied that Asbury hit Sawyer. See JA 245-46

(Kearns); JA 266 (Massey). Lt. Massey testified that he believed

that what appears to be a punch on the video was another

instance of Asbury attempting to touch a “pressure point” behind

Sawyer’s ear. JA 266.

According to the video, Asbury then grabbed Sawyer by the

neck, and the other two deputies laid hands upon Sawyer’s

extremities. Sawyer’s head and body rose higher. 7 After another

moment, Sawyer’s head and body rose above the deputies’ heads.

7
Sawyer testified that, at this point, he was “trying to
keep [his] tippytoes down to take the pressure off” of his neck.
JA 128. It is not possible to discern from the video how much
of Sawyer’s upward movement was due to the deputies pushing
Sawyer upward, as opposed to Sawyer’s attempt to find a foothold
on the floor to alleviate the pressure on his throat.

10
During this entire time, Asbury was holding Sawyer by the

throat. Thereafter, the deputies pulled Sawyer to the ground.

It is clear from the video, as well as from the testimony of

Sawyer and Asbury, that Sawyer’s face did not strike the ground

when the deputies pulled him down. See JA 132 (Sawyer); JA 190

(Asbury). Sawyer was face-down and the upper half of his body

was behind a corner and hidden from the view of the camera.

Deputy Asbury also was not visible to the video camera, although

the other deputies, who were grabbing and striking Sawyer in the

arms and legs, were visible. The deputies proceeded to restrain

Sawyer.

At trial, Sawyer claimed that Asbury punched him repeatedly

in the head while he was on the ground; Asbury denied it. The

video cannot resolve the dispute as to that portion of the

incident.

The video and the trial testimony showed that, after

restraining Sawyer on the ground for several seconds, and

placing him in handcuffs, the deputies left Sawyer handcuffed

and face down on the ground. As the deputies proceeded to other

business, Sawyer remained unattended on the ground for several

minutes. Eventually, Sawyer pulled himself to a seated

position, reclining against the wall. See JA 136-38; JA 193-94;

JA 249-251; JA 273-74.

11
 Sawyer was bleeding from the nose, see JA 192; JA 273, and

at some point he asked to be taken to the hospital. JA 138.

Asbury transported Sawyer to the emergency room, where Sawyer

was diagnosed with a broken nose, along with bruising to his

face and extremities. Plaintiff’s hospital records and the

medical bill were entered into evidence, along with photographs

of Sawyer that depicted his injuries. JA 145.

At the close of the evidence, Sawyer moved for judgment as

a matter of law as to liability, and Asbury moved for a

“directed verdict” on the basis of qualified immunity. 8 Pursuant

to Fed. R. Civ. P. 50(b), the district judge reserved ruling on

Sawyer’s motion until after the jury returned its verdict. JA

277-78. In denying Asbury’s motion, the district judge said: “I

think it is a clearly established constitutional right that a

pretrial detainee is not to be subjected to willful, wanton and

outrageous punishment in the terms of a punch to the nose. Here

the nose is broken.” JA 278.

8
Deputy Asbury also moved for a “directed verdict” on the
same grounds at the close of plaintiff’s case. JA 220-22. Fed.
R. Civ. P. 50 was revised in 1991 to change the nomenclature of
“directed verdict” to “judgment as a matter of law.” However,
the amendment did not “alter the substantive content of the
standard.” CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 9B FEDERAL PRACTICE &
PROCEDURE § 2521, at 223 (3d ed. 2008, 2013 Supp.) (indicating
that a motion for directed verdict is synonymous with a motion
for judgment).

12
 The jury returned a verdict in favor of Deputy Asbury.

Thereafter, Sawyer renewed his motion for judgment as to

liability, which the district court granted. See Sawyer v.

Asbury, 861 F. Supp. 2d 737 (S.D. W.Va. 2012).

In his opinion, the trial judge included a link to a

portion of the video posted on the district court’s website, see

http://www.wvsd.uscourts.gov/videos/, which the judge

incorporated by reference in his ruling. The district judge

also included in his opinion several still images taken from the

video. And, he provided a detailed description of the events

depicted on the video, id. at 739-43 (internal citations,

images, and footnote omitted), stating, in part:

The officers brought Mr. Sawyer into the processing
room.
* * *
Sergeant Kearns asked Mr. Sawyer to sit on a
cement bench attached to the wall. Mr. Sawyer sat
until Deputy Asbury had him stand while he removed the
handcuffs and searched him. . . . After the pat-down,
Mr. Sawyer sat back down.

While Mr. Sawyer was seated on the bench, the
video shows Mr. Sawyer and Deputy Asbury exchanging
words and Deputy Asbury motioning upward, as if he was
asking Mr. Sawyer to stand back up. Mr. Asbury also
patted his chest while facing Mr. Sawyer. During the
exchange, Mr. Sawyer remained seated on the bench and
his lower back remained against the wall.

Shortly after patting his chest, Deputy Asbury
attacked Mr. Sawyer, violently grabbing him around the
throat with his right hand.

As Deputy Asbury was choking Mr. Sawyer with his
right hand, the other officers in the room began to

13
 move towards Deputy Asbury. Then Deputy Asbury pulled
his arm back. The tape skips and does not show the
completed arm movement.[ ]

Once the other officers reached Deputy Asbury’s
side and began holding Mr. Sawyer, Deputy Asbury
pulled his right fist back again. The video clearly
shows Deputy Asbury punching Mr. Sawyer in the face,
with the force of his blow knocking Mr. Sawyer’s face
to the side.

The officers then took Mr. Sawyer to the
floor . . . . Mr. Sawyer was left on the ground for a
period of time until he managed to sit up.

In granting Sawyer’s renewed motion for judgment as to

liability and a new trial as to damages, the district court

stated, in relevant part, id. at 738, 745-46 (internal citations

and emphasis omitted):

[T]he jury did what they thought was right but simply
got it wrong . . . but that is what judges are for.
* * *
The video indisputably captures Deputy Asbury’s
excessive use of force on Mr. Sawyer at the Wood
County holding center. I have incorporated a part of
the videotape that was introduced at trial in this
order so that all may see that the jury did not have a
legally sufficient evidentiary basis to find for
Deputy Asbury on the issue of liability.
* * *
While courts are not to simply rubber stamp a
jury’s verdict, judges believe that judgment as a
matter of law is a power to be applied sparingly and
only in the most extraordinary circumstances. No
weighing of the evidence or credibility determinations
are permitted. I made none.

What the video shows cannot be reconciled with
the jury’s verdict. The video shows Deputy Asbury
grabbing the plaintiff by the throat. The video shows
Deputy Asbury punching the plaintiff in the face with
his fist. The video shows the officers leaving an
injured Mr. Sawyer lying on the holding center floor.

14
 Mr. Sawyer walked into the holding center uninjured,
and he left with a fractured nose and battered face.
While Mr. Sawyer’s verbal threats against Deputy
Asbury were disgusting, they were still only words,
and a pretrial detainee’s words do not justify an
officer’s use of such force.

I find that no reasonable jury was at liberty to
disregard the video evidence showing Deputy Asbury
choking and punching Mr. Sawyer for no purpose other
than inflicting unnecessary and wanton pain and
suffering. I find that Deputy Asbury thereby violated
Mr. Sawyer’s right under the Due Process Clause to be
free from excessive force while in pretrial detention.

On August 22, 2012, the district court entered a “Judgment

Order” in accordance with the parties’ request. 9 This timely

appeal followed.

II.

We review de novo the district court’s grant of Sawyer’s

Rule 50 motion, viewing the evidence in the light most favorable

9
Initially, Deputy Asbury filed a motion asking the
district court to enter partial final judgment, pursuant to Fed.
R. Civ. P. 54(b), so that he could take an immediate appeal from
the district court’s liability ruling. Although the district
court denied that motion, Asbury noted an appeal, docketed in
this Court as Sawyer v. Asbury, No. 12-1775. Thereafter, Asbury
dismissed that appeal, and instead filed a Petition for Writ of
Prohibition, asking this Court to direct the district court to
reinstate the jury’s verdict and cancel the new trial as to
damages. See In re: Asbury, No. 12-1878. We denied the
petition.
The parties jointly moved for entry of a final judgment in
favor of Sawyer in the stipulated amount of one dollar, and
advised the district court that they “had reached a side
agreement concerning damages that is a high low agreement.” JA
325. Accordingly, the district court awarded Sawyer nominal
damages, noting that a “live controversy still exists between
the parties regarding the defendant’s liability.” Id.

15
to Deputy Asbury as the non-moving party and drawing all

reasonable inferences in his favor. Buckley v. Mukasey, 538

F.3d 306, 321 (4th Cir. 2008). The reviewing court “may not

make credibility determinations or substitute [its] judgment for

that of the jury.” United States v. Kivanc, 714 F.3d 782, 795

(4th Cir. 2013). “We must affirm if a reasonable jury could

only rule in favor of [Sawyer]; if reasonable minds could

differ, we must reverse.” A Helping Hand, LLC v. Balt. Cnty.,

Md., 515 F.3d 356, 365 (4th Cir. 2008).

Sawyer brought his excessive force claim pursuant to 42

U.S.C. § 1983. It establishes a cause of action against any

person who, acting under color of state law, “subjects, or

causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws” of the United States.

Section 1983 “‘is not itself a source of substantive

rights,’ but merely provides ‘a method for vindicating federal

rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266,

271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979)). Thus, “analysis of an excessive force claim brought

under § 1983 begins with ‘identifying the specific

constitutional right allegedly infringed by the challenged

16
application of force.’” Orem v. Rephann, 523 F.3d 442, 445 (4th

Cir. 2008) (quoting Graham v. Connor, 490 U.S. 386, 394 (1989)).

In Graham, the touchstone case with respect to excessive

force claims under § 1983, the Supreme Court rejected the notion

“that all excessive force claims brought under § 1983 are

governed by a single generic standard.” Id. at 393. The Court

held that claims for the use of excessive force in effectuating

an arrest or other seizure are governed by the Fourth

Amendment’s prohibition against “unreasonable” seizures; claims

of excessive force against a convicted prisoner are governed by

the Eighth Amendment’s prohibition of “cruel and unusual

punishment”; and claims of post-arrest excessive force against

an arrestee or pre-trial detainee, as here, are governed by the

Due Process Clause of the Fourteenth Amendment, which prohibits

before conviction “the use of excessive force that amounts to

punishment.” Id. at 395 & n.10. Accord Orem, 523 F.3d at 446;

Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998).

Under the Fourteenth Amendment standard, a plaintiff must

show that the defendant “‘inflicted unnecessary and wanton pain

and suffering’ upon the detainee.” Carr v. Deeds, 453 F.3d 593,

605 (4th Cir. 2006) (citations and some internal quotation marks

omitted). “‘The proper inquiry is whether the force applied was

in a good faith effort to maintain or restore discipline or

maliciously and sadistically for the very purpose of causing

17
harm.’” Id. (quoting Taylor, 155 F.3d at 483) (internal

quotation marks omitted in Carr).

Moreover, no particular extent of physical injury is

required to establish an excessive force claim under the Eighth

Amendment or the Fourteenth Amendment. In Wilkins v. Gaddy, 559

U.S. 34 (2010), involving an excessive force claim brought by a

convicted prisoner under the Eighth Amendment, the Supreme Court

abrogated a requirement to prove more than a de minimis injury,

which the Fourth Circuit previously had applied in excessive

force cases. Id. at 39. See, e.g., Taylor, 155 F.3d at 483;

see also Orem, 523 F.3d at 447-48; Carr, 453 F.3d at 605-06;

Riley v. Dorton, 115 F.3d 1159, 1166 (4th Cir.) (en banc), cert.

denied, 522 U.S. 1030 (1997). 10

10
Prior to Wilkins, we had required plaintiffs in excessive
force cases under either the Eighth or Fourteenth amendments to
establish that the defendant inflicted upon the plaintiff “‘more
than de minimis’” injury, or alternatively, inflicted either
force of “‘a sort repugnant to the conscience of mankind’” or
pain of a nature such that the “‘pain itself . . . can properly
be said to constitute more than de minimis injury.’” Taylor,
155 F.3d at 483 (quoting Norman v. Taylor, 25 F.3d 1259, 1263 &
n.4 (4th Cir. 1994)(en banc), cert. denied, 513 U.S. 1114
(1995)). Although Wilkins was an Eighth Amendment case, the
Supreme Court also disapproved the de minimis injury standard
under the Fourteenth Amendment. See Wilkins, 559 U.S. at 38-39
(overruling Riley (Fourteenth Amendment), Taylor (Fourteenth
Amendment), and Norman (Eighth Amendment)). In the wake of
Wilkins, the trial judge correctly recognized that the de
minimis injury standard is no longer applicable in either Eighth
Amendment or Fourteenth Amendment cases. See JA 222 (“The
Supreme Court has overruled the Fourth Circuit on that issue.
There is no doubt anymore about that.”).

18
 In applying these principles to the facts, we must

determine whether, in the light most favorable to Asbury, the

district judge correctly concluded that Asbury used excessive

force. The lens of the video camera played a key role in the

district court’s decision, as it does here. The video clearly

shows that, at least once, Asbury struck Sawyer in the face

while two deputies began to hold him. Under binding Supreme

Court precedent, the video recording of the incident operated as

a legal constraint on the fact finding of the jury.

In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court

held that, when “opposing parties tell two different stories,

one of which is blatantly contradicted” by video evidence

contained in the record, “so that no reasonable jury could

believe it, a court should not adopt that version of the facts

. . . .” Id. at 380. Rather than relying on “visible fiction”

propounded by the party whose account is contradicted by the

video evidence, a court should “view[ ] the facts in the light

depicted by the videotape.” Id. at 381.

As we explained in Witt v. West Virginia State Police,

Troop 2, 633 F.3d 272 (4th Cir. 2011), the principle articulated

in Scott does not license a court to reject one side’s account

as a matter of law if the “documentary evidence, such as a

video,” merely “offers some support for [the other side’s]

version of events.” Witt, 633 F.3d at 276 (emphasis in

19
original). Rather, the video controls only where it “‘blatantly

contradict[s]’” one side’s testimonial account. Id. (quoting

Scott, 550 U.S. at 380). Nevertheless, “[i]ncontrovertible evi-

dence relied on by the moving party, such as a relevant

videotape whose accuracy is unchallenged, should be credited by

the court” when resolving a motion for judgment as a matter of

law, “if it so utterly discredits the opposing party’s version

that no reasonable juror could fail to believe the version

advanced by the moving party.” Zellner v. Summerlin, 494 F.3d

344, 371 (2d Cir. 2007) (applying Scott in context of motion for

judgment as a matter of law). 11

A review of applicable case law under § 1983 leaves no

doubt that the district judge did not err in concluding that the

video irrefutably established that Asbury engaged in the use of

excessive force when he struck Sawyer in the face. 12 We explain.

11
Although Scott and Witt concerned motions for summary
judgment, “the standard for granting summary judgment ‘mirrors’
the standard for judgment as a matter of law, such that ‘the
inquiry under each is the same.’” Reeves v. Sanderson Plumbing,
530 U.S. 133, 150 (2000) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250-51 (1986)).
12
In light of this conclusion, we do not resolve whether
Asbury was justified in his alleged use of a “pressure point
control tactic” (i.e., seizing Sawyer by the neck) to secure
Sawyer’s compliance with his directives. The separate act of
striking the detainee in the face was an unlawful method for the
officer to obtain compliance with his orders.

20
 In Orem v. Rephann, supra, 523 F.3d 442, while police

officers were transporting a handcuffed arrestee to jail, the

arrestee “yelled, cursed and banged her head against the police

car window . . . . Her jumping and banging around in the back

of the vehicle was so intense that the vehicle rocked.” Id. An

officer opened the door of the vehicle and repeatedly instructed

the arrestee to “‘calm down’” and to “‘[s]top it,’” and

admonished the arrestee “to respect” the officers. Id. The

arrestee directed profanity at the officer, who stated, “‘I’m

telling you, you’d better stop it,’” and then “shocked [the

arrestee] twice with a taser gun -- underneath her left breast

and on her inner thigh.” Id. at 445. At the time, the arrestee

was in handcuffs and foot restraints. Id. at 443. The district

court denied summary judgment to the officer on the arrestee’s

Fourteenth Amendment excessive force claim, and we affirmed.

This Court rejected the officer’s claim that “his use of

the taser gun was not excessive because [the arrestee] was

unruly and uncooperative.” Id. at 446. Although we

acknowledged that “some action was necessary to calm [the

arrestee] and safely transport her,” we concluded that, in the

light most favorable to the arrestee, the officer’s “actions

were not a ‘good faith effort to restore order’ but, rather,

wanton and unnecessary.” Id. This conclusion was based on

several factors, including that the arrestee “was handcuffed,

21
weighed about 100 pounds, . . . and was locked in the back seat

cage of [a police] car,”; that the officer tasered the arrestee

immediately after she used profanity toward him; that the

officer applied the taser to sensitive body areas; and, “after

shocking” the arrestee, the officer “commanded that she respect

the officers.” Id. at 447.

United States v. Cobb, 905 F.2d 784 (4th Cir. 1990), is

also instructive. There, four law enforcement officers were

criminally prosecuted under 18 U.S.C. § 242 (“the criminal

analog of 42 U.S.C. § 1983,” id. at 788 n.6), for their use of

excessive force against a detainee who was being held in a

booking room after his arrest for public intoxication. Id. at

785. The detainee “and the officers exchanged insults and a

heated argument ensued.” The officers “proceeded to beat [the

detainee] for almost two hours, insulting and ridiculing him the

entire time.” Id. The arrestee “remained handcuffed throughout

the attack. At no point did he attempt to strike any of the

officers.” Id.

We upheld the convictions of three officers for use of

excessive force, in violation of the detainee’s Fourteenth

Amendment rights. In doing so, we approved as “fairly stat[ing]

the controlling law,” id. at 789-90, the trial court’s jury

instructions, which stated, in pertinent part, id. at 787:

22
 A law enforcement officer is justified in the use
of any force which he reasonably believes to be
necessary to effect arrest or hold someone in custody
and of any force which he reasonably believes to be
necessary to defend himself or another from bodily
harm.

Provocation by mere insulting or threatening
words will not excuse a physical assault by a law
enforcement officer. Mere words, without more, do not
constitute provocation or aggression on the part of
the person saying those words. No law enforcement
officer is entitled to use force against someone based
on that person’s verbal statements alone.

Of import here, we said: “The trial court was entirely

correct that words alone do not justify the excessive use of

force against a pretrial detainee.” Id. at 789. Accordingly,

we rejected the officers’ contention that “mere words by a

pretrial detainee can justify the use of physical force by a

police officer.” Id.

Perhaps the most factually apposite of our prior cases is

Jones v. Buchanan, 325 F.3d 520 (4th Cir. 2003). In that case,

a handcuffed detainee in a processing room at a jail exchanged

“‘pretty foul language’” with a deputy, who then knocked the

detainee to the floor, jumped on him, and crushed his nose. Id.

at 524. 13 We reversed the district court’s grant of qualified

immunity to the deputy, stating, id. at 530 (citation omitted):

13
Jones was litigated under the Fourth Amendment, rather
than the Fourteenth Amendment. The detainee in that case had
not been arrested. Rather, in an intoxicated state, he had
asked officers to “‘take [him] to jail so [he could] get sober”
(Continued)
23
 To be sure, when Deputy Keller knocked Jones to
the floor and injured him, Jones concedes that he was
drunk, angry, and using foul language. However, mere
use of foul language, even a drunk’s loud use of such
language in a police station, does not justify an
objectively reasonable police officer knocking the
drunk down, jumping on him, and breaking his
nose. . . . [A] drunken plaintiff’s ‘screaming’ and
use of ‘foul language’ in a confined area . . .
constitutes a mere ‘nuisance’ and not an immediate
threat to the safety of the officers or others . . . .

We also noted that testimony that the officer had “hit

Jones ‘with his fist’” provided further “evidentiary support for

Jones’s contention that the level of force was excessive.” Id.

at 530 n.6. And, we stated: “Deputy Keller also cannot justify

his actions based on Jones’s slight physical movement –- simply

beginning to stand up,” id. at 530 (emphasis omitted), where the

detainee “never pushed, kicked, or threatened anyone.” Id.

Orem, Cobb, and Jones stand in marked contrast to Grayson

v. Peed, 195 F.3d 692 (4th Cir. 1999), in which we rejected a

claim of use of excessive force against a pretrial detainee. In

Grayson, officers arrested a man for possession of marijuana and

PCP after he was discovered with those substances while on the

floor of a mall restroom stating, “I love everyone.” Id. at

in advance of a court appearance scheduled for the following
morning. 325 F.3d at 523. He was handcuffed “in keeping with
‘standing’ department policy for transporting persons to the
sheriff’s department.” Id. Although we applied Fourth
Amendment principles, Jones is closely on point with this case
factually, and nothing in our analysis in Jones suggests that it
would have been decided differently under the Fourteenth
Amendment.

24
694. The man resisted arrest. Id. He was transported to a

detention center where, after being strip searched, he attempted

to escape his cell, causing a “struggle” to ensue with officers,

who subdued the detainee with pepper spray. Id.

The next morning, the detainee “was again acting

belligerently,” sticking his arm through the food slot of his

cell. Id. When one of the officers opened the door of the

detainee’s cell in an attempt to get the detainee to put his arm

back, the detainee jammed his own foot in the doorway of the

cell. A “five-man cell extraction team . . . pinned [the

detainee] face down. During the course of the struggle [the

detainee] was punched seven to nine times.” Id. The detainee

“continued to act violently” until the officers “placed him in

four-point restraints.” Id. A few minutes later, the detainee

lost consciousness. Id. Although medics checked the detainee’s

pulse on two occasions and observed that “he was okay,” the

detainee suddenly ceased breathing. Id. Attempts at CPR were

unsuccessful and the detainee died. Id.

In the § 1983 suit that followed, brought on behalf of the

detainee’s estate, we affirmed the district court’s grant of

summary judgment in favor of the officers. In light of the

detainee’s physical resistance and attempts to escape his cell,

we ruled that the officers’ “restraining measures were necessary

to subdue” the detainee. Id. at 696. Therefore, we determined

25
that the “force applied by [the] officers was ‘in a good faith

effort to maintain or restore discipline,’ and did not violate

the Due Process Clause of the Fourteenth Amendment.” Id.

(citation omitted).

Unlike Grayson, in this case the video clearly reveals that

Sawyer did not attempt any violent, unruly, or evasive act

before Deputy Asbury hit him in the face. As in Orem, Carr, and

Jones, the officer’s assault here was provoked by the detainee’s

verbal tirade and/or his intransigence and failure to heed

instructions.

To be sure, the detainees in Orem, Carr, and Jones were all

in handcuffs when they were assaulted by officers, whereas in

this case, Sawyer was not handcuffed when Asbury struck him.

This distinction is not determinative, however. We did not

state in Orem, Carr, or Jones that the officer’s use of force

was excessive because the detainee was in handcuffs. Nor did we

suggest that, but for the handcuffs, the force would not have

been excessive. Rather, as we reasoned in Jones, the handcuffs

were significant because, “if [the detainee] was handcuffed

behind his back,” it was “hard to see how he would pose an

immediate threat to anyone.” 325 F.3d at 529. In this case,

the video dispels any need to speculate as to whether Sawyer

posed an immediate threat to the officers: it shows that Deputy

Asbury, rather than Sawyer, was the aggressor.

26
 We recognize that “the agents of the state are permitted to

exercise a certain degree of force in order to protect the

interests of society.” Justice v. Dennis, 834 F.2d 380, 382

(4th Cir. 1987) (en banc), vac’d on other grounds, 490 U.S. 1087

(1989). In the Fourteenth Amendment context, an officer may use

the force needed in a “‘good faith effort to maintain or restore

discipline,’” but the officer may not use force “‘maliciously or

sadistically for the very purpose of causing harm.’” Carr, 453

F.3d at 605 (citation omitted).

In the light most favorable to Asbury, he was faced with a

detainee who was verbally defiant and uncooperative in response

to Asbury’s lawful order to stand, and Asbury resorted to

“pressure point control tactics” to obtain compliance. Even if

the jury credited the testimony of Kearns and Massey, to the

effect that Asbury was using “pressure point control tactics”

when he seized Sawyer by the neck, and even if the use of such

“pressure point control tactics” was not excessive under the

circumstances, that did not end the parties’ contact. Asbury

then proceeded to strike Sawyer in the face, just as the other

deputies had begun to restrain Sawyer.

Sawyer’s failure to comply with Asbury’s order to stand did

not justify Asbury in striking Sawyer in the face. A detainee’s

refusal to comply with an officer’s lawful order, without more,

is not a license to “take the gloves off.”

27
 Moreover, Asbury knew that Sawyer was unarmed, as he had

just frisked Sawyer. Nor did the deputies’ testimony that

Sawyer engaged in “target glances” during the pat down support

Asbury’s decision to strike Sawyer. It is plain that, if the

“target glances” had actually caused any of the deputies to be

concerned that Sawyer was about to become violent, they would

not have removed Sawyer’s handcuffs or would have put him back

in handcuffs at that time.

In sum, under the facts of this case, Asbury’s deployment

of a blow to the head of Sawyer, a detainee, in response to mere

insulting words and noncompliance with the deputy’s orders, was

excessive. Such conduct did not constitute a good faith effort

to maintain or restore discipline. The district court understood

the import of the video evidence, which indisputably shows that

Deputy Asbury used force that was excessive under the

circumstances. Accordingly, the district court did not err in

granting Sawyer’s motion for judgment as a matter of law.

III.

The district court also determined that Deputy Asbury was

not entitled to qualified immunity, and Asbury challenges that

ruling on appeal. We review de novo the court’s denial of

motion for judgment. Randall v. Prince George’s Cnty., 302 F.3d

188, 201 (4th Cir. 2002).

28
 “The doctrine of qualified immunity protects police

officers and public officials from claims of constitutional

violations ‘for reasonable mistakes as to the legality of their

actions.’” Merchant v. Bauer, 677 F.3d 656, 661 (4th Cir.)

(quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)), cert.

denied, ___ U.S. ___, 133 S. Ct. 789 (2012). “Qualified

immunity extends to protect officials ‘who commit constitutional

violations but who, in light of clearly established law, could

reasonably believe that their actions were lawful.’” Williams

v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013) (quoting Henry v.

Purnell, 652 F.3d 524, 531 (4th Cir.) (en banc), cert. denied,

___ U.S. ___, 132 S. Ct. 781 (2011)); accord Durham v. Horner,

690 F.3d 183, 188 (4th Cir. 2012).

The qualified immunity analysis involves two inquiries: (1)

whether the facts alleged, “[t]aken in the light most favorable

to the party asserting the injury, . . . show the officer’s

conduct violated a constitutional right,” Saucier, 533 U.S. at

201; and (2) whether the right at issue “‘was clearly

established in the specific context of the case -- that is,

[whether] it was clear to a reasonable officer that the conduct

in which he allegedly engaged was unlawful in the situation he

confronted.’” Merchant, 677 F.3d at 662 (citation omitted). The

“two inquiries . . . may be assessed in either sequence.” Id.

at 661-62; accord Pearson v. Callahan, 555 U.S. 223, 236 (2009).

29
 As to the first inquiry, our analysis demonstrates that,

taking the facts in the light most favorable to Deputy Asbury,

his conduct indisputably violated Sawyer’s Fourteenth Amendment

rights.

The second inquiry, concerning whether the right at issue

was clearly established, is “assessed in light of the legal

rules that were ‘clearly established’ at the time” of the

conduct at issue. Messerschmidt v. Millender, ___ U.S. ___, 132

S. Ct. 1235, 1245 (2012) (citation and some internal quotation

marks omitted). “To be clearly established, a right must be

sufficiently clear ‘that every reasonable official would [have

understood] that what he is doing violates that right.’ In

other words, ‘existing precedent must have placed the statutory

or constitutional question beyond debate.’” Reichle v. Howards,

___ U.S. ___, 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v.

al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2078, 2083 (2011)) (some

internal quotation marks and citations omitted).

In determining whether a right was clearly established, we

“‘ordinarily need not look beyond the decisions of the Supreme

Court, this court of appeals, and the highest court of the state

in which the case arose,’” 14 as of the date of the conduct in

14
The parties have not cited any pertinent case law from
the Supreme Court of Appeals of West Virginia, and our own
research has uncovered none.

30
issue. Doe ex rel. Johnson v. S.C. Dept. of Soc. Servs., 597

F.3d 163, 176 (4th Cir.) (citation omitted), cert. denied, ___

U.S. ___, 131 S. Ct. 392 (2010). And, the “‘nonexistence of a

case holding the defendant’s identical conduct to be unlawful

does not prevent denial of qualified immunity,’” because

“‘qualified immunity was never intended to relieve government

officials from the responsibility of applying familiar legal

principles to new situations.’” Wilson v. Kittoe, 337 F.3d 392,

403 (4th Cir. 2003) (citations omitted). Thus, “officials can

still be on notice that their conduct violates established law

even in novel factual circumstances.” Hope v. Pelzer, 536 U.S.

730, 741 (2002).

Arguably, the de minimis injury standard, discussed supra,

remains relevant to Deputy Asbury’s qualified immunity defense,

because the incident at the detention center took place in

October 2009, and the Supreme Court did not decide Wilkins, 559

U.S. 34, until February 2010. Therefore, at the time of the

underlying events, the de minimis injury standard was part of

the clearly established law of this circuit.

Nevertheless, that standard was readily satisfied here.

Under clearly established law in October 2009, a broken nose was

well within the range of injuries considered more than de

minimis. Compare Orem, 523 F.3d at 447-48 (holding “electric

shock, pain,” and “sunburn-like scar” from taser application

31
more than de minimis); Young v. Prince George’s Cnty., 355 F.3d

751, 758 n.3 (4th Cir. 2004) (holding “‘contusion, cut to [the]

lips, bruises, lesions to [the] wrist, and a strained neck and

back’” more than de minimis); Robles v. Prince George’s Cnty.,

302 F.3d 262, 270 (4th Cir. 2002) (where police officers did not

physically injure arrestee, but left him “tied up [to a metal

pole in a shopping center parking lot] in a dark and deserted

location in the middle of the night” such that he “did not know

when or if anyone would come to rescue him or who might discover

him” and “in the months following the incident he had trouble

sleeping and was scared to leave his home,” the “resulting

injury was more than de minimis”); with Taylor, 155 F.3d at 484

(holding “temporary swelling and irritation” of the jaw and

mucous membranes and “‘abrasions about the wrists and ankles’”

from handcuffs and leg irons was de minimis).

We recognize that “‘police officers are often forced to

make split-second judgments -- in circumstances that are tense,

uncertain, and rapidly evolving,’” and thus “the facts must be

evaluated from the perspective of a reasonable officer at the

scene, and the use of hindsight must be avoided.” Waterman v.

Batton, 393 F.3d 471, 476–77 (4th Cir. 2005) (quoting Graham,

supra, 490 U.S. at 397) (internal citations omitted). “Not

every push or shove, even if it may later seem unnecessary in

the peace of a judge’s chambers,” transgresses clearly

32
established constitutional rights. Graham, 490 U.S. at 396.

Nevertheless, qualified immunity does not protect an officer

“‘who knowingly violate[s] the law,’” Hunter v. Bryant, 502 U.S.

224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)), or an officer who makes an objectively unreasonable

mistake. Henry, supra, 652 F.3d at 535. “If the law was clearly

established, [a qualified] immunity defense ordinarily should

fail, since a reasonably competent public official should know

the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S.

800, 818–19 (1982).

With respect to qualified immunity, we are presented here

with a situation similar to the one we encountered in Orem,

where the incident was captured on a dashboard camera. See id.

at 444 n.2. In evaluating whether the unlawfulness of an

officer’s use of a taser was clearly established from the

perspective of a hypothetical “reasonable officer,” the Orem

Court said: “[W]e need not use hindsight or conjure up a pseudo-

‘reasonable officer’ because, two other presumably ‘reasonable

officers’ were at the scene.” Orem, 523 F.3d at 448. We noted

that the other officers on the scene never attempted to use a

taser or physical force to subdue the arrestee.

In this case, the video shows that, when Asbury lunged at

Sawyer and seized him by the neck, two other officers were

standing several feet away, and neither reacted in such a way as

33
to suggest that Sawyer had suddenly exhibited threatening or

volatile behavior. Indeed, the other deputies stood still for

two seconds as Asbury seized Sawyer by the neck, and then they

walked without urgency to Sawyer and grabbed him, just as Asbury

struck Sawyer in the face. The conduct of the two deputies is a

powerful indicator that a need to deploy violent force was not

apparent to a reasonable officer.

Our substantive analysis of Deputy Asbury’s conduct in

striking Sawyer in the face is drawn entirely from pre-2009 case

law and does not involve any novel extension of precedent. It

was clearly established in October 2009 that “words alone do not

justify the excessive use of force against a pretrial detainee.”

Cobb, supra, 905 F.2d at 789. Our precedent made it clear to

any reasonable officer that “mere use of foul language . . .

does not justify an objectively reasonable police officer

knocking [an arrestee] down, jumping on him, and breaking his

nose.” Jones, supra, 325 F.3d at 530. Accordingly, the

district court’s rejection of Deputy Asbury’s qualified immunity

defense was legally correct.

IV.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

34