dissenting:
I
Affirmance of the district court’s grant of a directed verdict rests on the faulty premise that Graham’s rights and the conduct of the police are measured by a standard fashioned to implement the eighth amendment’s prohibition against cruel and unusual punishment. It was error to require Graham to prove, in the words of King v. Blankenship, 636 F.2d 70, 73 (4th Cir.1980), that the police acted “maliciously and sadistically for the very purpose of causing harm.” King dealt with a convict’s claim against his guard for cruel and unusual punishment in violation of the eighth amendment. To establish such a violation, a convict must prove “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). But Graham was not a convict. He was not even a pretrial detainee or a person under arrest. He was a free, innocent citizen, a man who had a responsible job with the North Carolina Department of Transportation. Unfortunately, he suffered from diabetes and occasional insulin reactions.
The Supreme Court has never even hinted that a person in Graham’s situation should be subjected to the rigorous standards of the eighth amendment in order to recover damages for injuries inflicted by the police. The reason for distinguishing between a convict and a free citizen is clear. The police are not privileged to inflict any punishment on a free citizen. *951Consequently, there is no justification for absolving the police from liability unless the citizen can prove that their conduct satisfied the test for proving cruel and unusual punishment.
The fourth amendment, made applicable to the states through the fourteenth, provides that “the right of the people to be secure in their persons ... against unreasonable ... seizures shall not be violated____” Supreme Court precedent establishes that this amendment — not the eighth — is applicable to the claim of a person who protests police conduct arising out of an investigatory stop. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court held that the authority of police to make an investigatory stop “must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” 392 U.S. at 20, 88 S.Ct. at 1879. This involves a dual inquiry: “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” 392 U.S. at 20, 88 S.Ct. at 1879.
Recently, in rejecting the claim that police are authorized to kill an apparently unarmed, nondangerous fleeing suspect, the Supreme Court reviewed the fundamental principles that govern the interaction of police and citizens. In Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985), the Court reiterated that “[wjhenever an officer restrains the freedom of a person to walk away, he has seized that person.” The Court then explained: “To determine the constitutionality of a seizure ‘[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” 471 U.S. at 8, 105 S.Ct. at 1699. In neither Terry, Garner, nor Whitley does the Court suggest that the intrusion on an individual’s fourth amendment interests occasioned by an investigative stop is valid unless the individual proves by a preponderance of the evidence that the police acted “maliciously and sadistically for the very purpose of causing harm.” Although the police acknowledge that Graham is not a convict, they insist that the rigorous standard of proof unique to a convict’s claim arising under the eighth amendment bars Graham’s action as a matter of law. Their argument is supported by neither logic nor precedent. Instead, it is refuted by Terry and Garner. We too have long recognized these basic precepts of fourth amendment jurisprudence. See Kidd v. O’Neil, 774 F.2d 1252, 1255 (4th Cir.1985).
II
The police acted reasonably in making an investigative stop. But that is not the end of the fourth amendment inquiry. Garner explains: “Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out.” 471 U.S. at 8, 105 S.Ct. at 1699; see also Terry, 392 U.S. at 20, 28-29, 88 S.Ct. at 1879, 1883-84. The conduct of the police after the stop is critical to this inquiry.
Because we are reviewing a directed verdict we must determine whether there is evidence which would permit the jury to reach a verdict in favor of Graham. Our review is governed by the following standard:
In determining whether the evidence is sufficient the court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Instead it must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence.
9 Wright & Miller, Federal Practice and Procedure § 2524 at 543-45; see also Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1499, 8 L.Ed.2d 777 (1962).
Properly viewed, the evidence discloses that the officer’s investigatory stop revealed that Graham was unarmed, that he presented no danger to the public, and that no probable cause existed to believe he had committed a crime. Berry promptly told the officer that Graham was suffering from a sugar reaction. After Graham had *952run around the car twice, Berry and the investigating officer calmed him down as he sat on the curb. Another officer appeared and without inquiry about Graham’s condition pushed Berry aside, rolled Graham over, and handcuffed him. A third officer arrived on the scene and opined: “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M.F. but drunk. Lock the S.B. up.”
When Graham, restrained by handcuffs, asked an officer to look in his wallet for his diabetic decal, the officer told him to “shut up” and slammed his head against Berry’s car. Aware that they could place no charges against Graham, four officers threw him into a police car. A friend brought orange juice to the police car where Graham was confined in handcuffs. Graham asked the officer to give him the orange juice, and the officer responded “I’m not giving you shit.” The officers took Graham to his home where he collapsed in the yard. Friends gave him orange juice and took him to a doctor.
Graham suffered a head injury that left him with a ringing in his ear and an abrasion on his head. He also suffered injuries to his wrists, an injury to his shoulder, and a broken foot. If his evidence is credited, a jury could find that the police caused the injuries.
The police take the position that Graham proved no actionable harm because Berry, one of Graham’s witnesses, did not hear any impact when the police pushed Graham’s head against the car and because Berry’s statement to a police investigator differed in some respects from his testimony. ■ The police also emphasize that Graham’s expert witness acknowledged that it was appropriate to restrain him. Reliance on these arguments for affirmance violates both the standard for reviewing a directed verdict and Federal Rule of Evidence 607. A party is no longer bound by the statement of his own witness. It was the jury’s function — not the court’s — to decide which version of Berry's account to believe. Moreover, Graham’s expert soundly criticized the manner in which the police conducted themselves. His testimony on which the police rely was made in response to a hypothetical question on cross examination framed most favorably for the police in disregard of much of Graham’s evidence. Again, the jury was the proper arbiter of the weight to be accorded the expert’s response.
Within minutes after the investigatory stop the police knew they were dealing with a seriously ill man who was innocent of any crime. Whether the scope and conduct of their seizure violated the reasonableness requirement of the fourth amendment clearly presented a question for the jury to determine in accordance with the principles explained in Terry and Garner.