appellee's response brief

7/27/2019 Appellee's Response Brief

1/47

BRIAN SAWYER,

Plaintiff-Appellee,

v.

JIM R. ASBURY, INDIVIDUALLY AND IN HIS CAPACITY AS ADEPUTY WITH THE WOOD COUNTY SHERIFFS DEPARTMENT,

Defendant-Appellant,

RECORD NO. 12-2123

John H. BryanJOHN H. BRYAN, ATTORNEY AT LAW611 Main StreetUnion, WV 24983(304) 772-4999 Telephone(304) 772-4998 Facsimile

[email protected]

Counsel for Appellee

LANTAGNELEGALPRINTING 801 East Main StreetSuite 100 Richmond, Virginia 23219 (804) 644-0477

A D ivision ofLantagne DuplicatingServices

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT PARKERSBURG

IN THE

United States Court of AppealsFOR THE FOURTH CIRCUIT

RESPONSE BRIEF OF APPELLEE

December 10, 2012

and

WOOD COUNTY COMMISSION,A POLITICAL SUBDIVISION IN THE STATE OF WEST VIRGINIA,

Defendant.

Appeal: 12-2123 Doc: 29 Filed: 12/10/2012 Pg: 1 of 47


2/47

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER

INTERESTS

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Local

Rule 26.1 of the Fourth Circuit, Brian Sawyer, Plaintiff-Appellee, makes the

following disclosure:

1. Is party/amicus a publicly held corporation or other publicly held entity?

No.

2. Does party/amicus have any parent corporations? If yes, identify all

parent corporations, including grandparent and great-grandparent

corporations:

No.

3. Is 10% or more of the stock of a party/amicus owned by a publicly held

corporation or other publicly held entity? If yes, identify all such

owners:

No.

4. Is there any other publicly held corporation or other publicly held entity

that has a direct financial interest in the outcome of the litigation (Local

Rule 26.1(b))? If yes, identify entity and nature of interest:

No.

5. Is party a trade association? (amici curiae do not complete this question)

If yes, identify any publicly held member whose stock or equity value

could be affected substantially by the outcome of the proceeding or

whose claims the trade association is pursuing in a representative

capacity, or state that there is no such member:

No.

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any

trustee and the members of any creditors committee:

No.



3/47

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF JURISDICTION.......................................................................... 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1

STATEMENT OF THE FACTS ............................................................................... 2

SUMMARY OF ARGUMENT. ................................................................................ 7

ARGUMENT. ............................................................................................................ 8

I. Standard of Review...............................................................................8

A. Legal Standard for Rule 50(b) of the F.R.C.P ............................... 8

B. Legal Standard for Fourteenth Amendment Excessive Force

Claims and the Application of Qualified Immunity .................... 11

II. The District Courts granting Plaintiffs Renewed Motion for

Judgment as a Matter of Law and Ordering a New Trial on

Damages Did Not Exceed the Courts Authority ................................ 13

III. The District Court Properly Denied Deputy Asbury Qualified

Immunity Where He Inflicted Unnecessary and Wanton Pain and

Suffering on Mr. Sawyer While He Was a Pretrial Detainee ............. 24

CONCLUSION ........................................................................................................ 38

STATEMENT REGARDING ORAL ARGUMENT ............................................. 39

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE



4/47

ii

TABLE OF AUTHORITIES

CASES

Bailey v. Kennedy,

349 F.3d 731(4th Cir. 2003) ............................................................................. 12

Bank of Montreal v. Signet Bank,

193 F.3d 818 (4th Cir. 1999) ............................................................................. .9

Baynard v. Malone,

268 F.3d 228 (4th Cir. 2001) .............................................................................. 9

Carr v. Deeds,

453 F.3d 593 (4th Cir. 2006) ............................................................................ 11

Chambers v. Cnty. of Macomb,

No. 03-73342, 2006 WL 1791398 (E.D. Mich. June 27, 2006) ................ 12, 16

Goedel v. Norfolk & W. Ry.,

13 F.3d 807, 1994 U.S. App. LEXIS 194 (4th Cir. 1994) ................................. 9

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ......................................................................................... 13

Henley v. FMC Corp.,

189 F.R.D. 340, 1999 U.S. Dist. LEXIS 15866 (S.D.W. Va. 1999) ............... 10

Hurd v. Am. Hoist & Derrick, Co.,

734 F.2d 495 (10th Cir. 1984) .......................................................................... 10

Jones v. Buchanan,

325 F.3d 520 (4th Cir. 2003) ......................................................................12, 16

Leland v. Vought,

No. 4:07-cv-20, 2008 WL 4525113 (N.D. Fla. Sept. 30, 2008) ................ 12, 16

Mesmer v. St. Marys Cnty.,

No. DKC 10-1053, 2010 WL 4791884 (D. Md. Nov. 18, 2010) ..................... 12



5/47

iii

Nobelpharma AB v. Implant Innovations, Inc.,

141 F.3d 1059 (Fed. Cir. 1998) ........................................................................ 10

Orem v. Rephann,

523 F.3d 442 (4th Cir. 2008) ............................................................................ 11

Pearson v. Callahan,

555 U.S. 223 (2009) ......................................................................................... 13

Phx. Sav. & Loan, Inc. v. Aetna Cas. & Sur. Co.,

427 F.2d 862 (4th Cir. 1970) .............................................................................. 7

Scott v. Harris,

550 U.S. 372 (2007) ............................................................................. 14, 14, 28

Taylor v. McDuffie,

155 F.3d 479 (4th Cir. 1998) ......................................................................11, 26

United States v. Cobb,

905 F.2d 784 (4th Cir. 1990) ....................................................11, 14, 16, 25, 30

White v. County of Newberry,

985 F.2d 168 (4th Cir. 1993) .............................................................................. 9

Wilkins v. Gaddy,

130 S. Ct. 1175 (2010) ............................................................................... 11, 26

RULES, STATUTES, AND OTHER AUTHORITIES

28 U.S.C. 1291 ........................................................................................................ 5

28 U.S.C. 1292 ........................................................................................................ 5

28 U.S.C. 1331 ........................................................................................................ 5

28 U.S.C. 1333 ........................................................................................................ 5

28 U.S.C. 1343 ........................................................................................................ 1



6/47

iv

42 U.S.C. 1983 ........................................................................................................ 1

Fed. R. Civ. P. 50 ....................................................................................................... 9

Fed. R. Civ. P. 50(a) ............................................................................................... 8, 9

Fed. R. Civ. P. 50(b) ................................................................................ 8, 10, 13, 14

Fed. R. Civ. P. 59 ....................................................................................................... 8

Fourth Amendment ..................................................................................... 1,2, 12, 16

Fifth Amendment ................................................................................................. 6, 33

Fourteenth Amendments .......................................................................... 1, 2, 6, 8, 11

Charles Wright & Arthur Miller, Federal Practice and Procedure 2524

(3d ed. 2008) ............................................................................................................ 14

News andSentinelNewspaper,

http://www.newsandsentinel.com/page/content.detail/id/550137/City-to-settle-

police-abuse-laws---.html ........................................................................................ 24

April 27, 2012, Asbury acquitted of federal charges, News and Sentinel

Newspaper,http://www.newsandsentinel.com/page/content.detail/id/560438/Asbur

y-acquitted-of-federal-charges.html?nav=5061....................................................... 20



7/47

1

STATEMENT OF JURISDICTION

Plaintiff, Brian Sawyer, filed his Amended Complaint (J.A. 15-23.),

pursuant to United States Code, Title 42, Section 1983, alleging Appellant, Jim R.

Asbury, used excessive force against him in violation of the Fourth and Fourteenth

Amendments of the Constitution of the United States. The United States District

Court for the Southern District of West Virginia exercised subject-matter

jurisdiction pursuant to United States Code, Title 28, Sections 1331 (federal

question jurisdiction) and 1343 (civil rights jurisdiction). On August 22, 2012, the

District Court entered the Judgment Order in favor of the Plaintiff, Brian Sawyer.

(J.A. 325-26.)

Deputy Jim Asbury seeks to invoke the jurisdiction of this Court pursuant to

United States Code, Title 28, Section 1291.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

The following issue is presented for review on this Appeal:

1. Whether the District Court exceeded the Courts authority in granting

Brian Sawyers Renewed Motion for Judgment as a Matter of Law, or in the

Alternative, Motion for a New Trial where a jury ignored overwhelming evidence

that Deputy Jim R. Asbury used excessive force against Brian Sawyer when he

choked and punched him causing a fractured nose and other facial injuries in

violation of the Fourteenth Amendment of the Constitution of the United States.



8/47

2

2. Whether the District Court properly denied Deputy Jim Asbury

qualified immunity where overwhelming evidence shows that he choked and

punched Brian Sawyer, a pretrial detainee, who was not assaulting any person but

was just running his mouth, in violation of the Fourteenth Amendment Due

Process Clause.

STATEMENT OF THE FACTS

On October 29, 2010, Defendant Deputy Jim R. Asbury arrested the Plaintiff

following a domestic disturbance call from Mr. Sawyers then-girlfriend, Angelita

Cunningham.1 During the arrest, Deputy Asbury alleged that Mr. Sawyer

attempted to kick him while handcuffed. Mr. Sawyer alleges that he attempted to

kick at his door due to frustration at being wrongly-arrested. Deputy Asbury used

force against Mr. Sawyer as a result of his actions.2 Mr. Sawyer was then placed in

Deputy Asburys police cruiser and driven to the Wood County holding center for

processing. During the drive Mr. Sawyer was running his mouth to Deputy

Asbury because of the use of force applied against him during his arrest. (J.A. 118

at 34:10-17.) Mr. Sawyer was telling Asbury that he was a tough guy because he

1 Angelita Cunningham did not testify at the trial for either party.2

Brian Sawyer alleged that he was choked by Deputy Asbury after he kicked at hisdoor and filed a Fourth Amendment excessive force claim for this use of force.However, the District Court granted Deputy Asbury summary judgment on theFourth Amendment claim - primarily due to the fact that Mr. Sawyer pled guilty toassaulting an officer for this act and admitted to resisting arrest by kicking at thedoor.



9/47

3

put his hands on someone while theyre cuffed and he told him [he] knew where

he lived. (J.A. 118 at 34:18-22.) Attempting to aggravate and anger Deputy

Asbury, Mr. Sawyer asked him does he ever wonder what his wife is doing while

hes out working these late hours. (J.A. 119 at 35:5-8.) Despite the disgusting

words Mr. Sawyer was speaking, there was no physical misconduct by Mr. Sawyer

while in the cruiser. He did not kick anything inside the cruiser. He did not rock

the vehicle. He was not spitting. (J.A. 119-20 at 35:18-25, 36:1-3.)

Upon arrival at the Wood County holding center, Mr. Sawyer was escorted

into the processing room, which was under video surveillance. There were three

other officers present to assist Deputy Asbury in processing Mr. Sawyer in the

event Mr. Sawyer became violent. These deputies were present due to the fact that

Mr. Sawyer was running his mouth in the cruiser. (J.A. 171 at 87:7-19.) Once

inside the processing room, Deputy Kearns asked Mr. Sawyer to sit down on a

cement bench attached to the wall, which he did. (J.A. 120, 227 at 36:13-20,

143:8-10.) Then Mr. Sawyer was asked to stand up so that his handcuffs could be

removed, which he did. (J.A. 120 at 36:21-24.) Mr. Sawyer was then asked to put

his hands on the wall, which he did. (J.A. 121 at 37:2-5.) During this time Mr.

Sawyer was still running his mouth. Deputy Asbury was also running his mouth at

Mr. Sawyer. (J.A. 37 at 37:8-17.)



10/47

4

After Mr. Sawyers handcuffs were taken off, he sat back down, and both he

and Deputy Asbury were running their mouths at each other. (J.A. 46 at 21:58:47.)

Mr. Sawyer crossed his arms and legs because he wanted to make it clear that he

was not a physical threat. He was afraid that the deputies might be looking for an

excuse to use physical force against him. (J.A. 122 at 38:2-24.)

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. (J.A. 46 at 21:59:03-17.) Mr. Asbury

also patted his chest while facing Mr. Sawyer. (J.A. 46 at 21:59:14.) 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. (J.A. 46 at 21:59:17-

21.) As Deputy Asbury was choking Mr. Sawyer with his right hand, the other

officers in the room began to move towards Deputy Asbury. (J.A. 46 at 21:59:20.)

Then Deputy Asbury pulled his arm back. (J.A. 46 at 21:59:21.) The tape skips

and does not show the completed arm movement. Mr. Sawyer testified that while

he was being choked, and his airway constricted, Deputy Asbury punched him in

the face. (J.A. 125 at 41:13-20, 127 at 43:3-8.)



11/47

5

Once the officers reached Deputy Asburys side and began holding Mr.

Sawyer, Deputy Asbury pulled his right fist back again. (J.A. 46 at 21:59:21.)

The video clearly shows Deputy Asbury punching Mr. Sawyer in the face, with the

force of his blow knocking Mr. Sawyers face to the side. (J.A. 46 at 21:59:22-23.)

Deputy Asbury then resumed choking Mr. Sawyer. (J.A. 46 at 21:59:23-26.)

The officers then took Mr. Sawyer to the floor and shortly thereafter they

were all largely outside the view of the video camera. (J.A. 46 at 21:59:36-41.)

Deputy Asbury testified that he was the officer in control of the Plaintiffs head

and shoulders during the incident behind the wall. (J.A. 191 at 107:8-25.) All of

the officers, including Deputy Asbury, testified that neither of them struck the

Plaintiff in the face, and that the Plaintiffs face never struck the floor. (J.A. 190 at

106:3-14, 246 at 162:20-22.) Deputy Asbury testified that he never struck Mr.

Sawyer in the face and that he never struck him in the back of the head causing his

face to impact the ground. (J.A. 192 at 108:1-6.)

Mr. Sawyer was left injured on the ground while the deputies began to carry

on other tasks. (J.A. 46 at 22:02:31-22:05:23.) Although Deputy Asbury testified

at his deposition (which was contained in his incident report) that he assisted the

injured Mr. Sawyer, attempting to get the blood to stop flowing from his face and

to make sure that none of his injuries were life threatening, he admitted at trial that

the video clearly showed that claim to be untrue. Instead of assisting the injured,



12/47

6

bleeding and handcuffed detainee who was left lying on the floor, he was stepping

over the injured Brian Sawyer and doing some paperwork. (J.A. 193 at 109:4-

15, 195 at 111:1-6).3

Deputy Kearns testified that Mr. Sawyer was given a

timeout. (J.A. 249 at 165:9-15.) Later, Mr. Sawyer was taken to the hospital

where he was treated for a fractured nose. (J.A. 139 at 55:2-9.)

The trial of the Plaintiffs Fourteenth Amendment excessive force claim was

held on April 24, 2012 in Parkersburg, West Virginia. After the close of evidence,

the Plaintiff moved for judgment as a matter of law on the issue of liability. (J.A.

276 at 192:7-23.) The District Court took the Motion under advisement, citing

grave concerns about the testimony presented by the officers - noting that the

officers were clearly contradicted by the surveillance video. (J.A. 277-78 at

193:20-25, 194:1-7.) The District Court noted that the circumstances were similar

to the Marx Brothers Duck Soup movie in which the heiress confronts Chico

Marx dressed as Groucho and says I saw, and he replies, Who are you going to

believe, me or your own eyes? (J.A. 277-78 at 193:22-25, 194:1-2.) The District

Court took the Motion under advisement and pursuant to Rule 50, submitted the

action to the jury subject to the Courts later decision, noting that efficiency favors

3 Deputy Asbury subsequently resigned from the Wood County SheriffsDepartment while under investigation for falsifying an unrelated police report.During the trial, when asked Deputy Asbury, have you ever falsified a policereport? His response was to invoke the Fifth Amendment. (J.A. 199 at 115:15-18).



13/47

7

submitting the question to the jury. Phx. Sav. & Loan, Inc. v. Aetna Cas. & Sur.

Co., 427 F.2d 862, 873-74 (4th Cir. 1970) ([W]e note in passing that it is

frequently the better practice, where all of the evidence has been presented to the

jury and at the close of the evidence a motion for directed verdict is made, for the

trial judge to reserve ruling on that motion until the jury has reached a verdict.).

Following the trial, the Plaintiff made a timely Renewed Motion for

Judgment as a Matter of Law, Or in the Alternative, For a New Trial. (J.A. 63-66.)

The District Court granted the Motion, finding 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. The Court further found that Deputy Asbury violated Mr.

Sawyers right under the Due Process Clause to be free from excessive force while

in pretrial detention. The Court granted judgment as a matter of law on the issue of

liability and ordered a new trial to be set as to the issue of damages.4

SUMMARY OF ARGUMENT

The District Court did not exceed its authority in granting the Plaintiffs

Renewed Motion for Judgment as a Matter of Law, Or in the Alternative, Motion

for a New Trial. There is overwhelming video evidence, medical evidence, and

4During the jury trial on damages, the parties agreed to a stipulation of damages,

with high and low amounts, contingent on whether the May 18, 2012 Order isaffirmed on appeal.



14/47

8

testimonial evidence, that Deputy Jim Asbury choked and punched Brian Sawyer

in violation of the Fourteenth Amendment Due Process Clause. The jury

concluded that Brian Sawyer deserved to have his civil rights violated, but the

District Court properly did not allow their verdict to stand.

The District Court properly denied qualified immunity to Deputy Asbury.

Where there is indisputable evidence that a law enforcement officer, acting under

color of law, choked and punched a pretrial detainee who was not assaulting the

officer, or any other person, and who merely was running his mouth, qualified

immunity will not be a valid defense.

ARGUMENT

I. Standard of Review

A. Legal Standard for Rule 50(b) of the F. R. C. P.

Rule 50(b) of the Federal Rules of Civil Procedure provides that:

If the court does not grant a motion for judgment as a matter of lawmade under Rule 50(a), the court is considered to have submitted theaction to the jury subject to the courts later deciding the legalquestions raised by the motion. No later than 10 days after the entryof judgment . . . the movant may file a renewed motion for judgment

as a matter of law and may include an alternative or joint request for anew trial under Rule 59.

FED. R. CIV. P. 50(b).



15/47

9

A renewed motion for judgment as a matter of law should be granted if a

district court determines, without weighing the evidence or considering the

credibility of the witnesses, that substantial evidence does not support the jurys

findings. See White v. County of Newberry, 985 F.2d 168, 172 (4th Cir. 1993).

Judgment as a matter of law will be upheld on appeal if, under the governing law,

there can be but one reasonable conclusion as to the verdict. Goedel v. Norfolk &

W. Ry., 13 F.3d 807, 1994 U.S. App. LEXIS 194 (4th Cir. 1994).

A court may grant judgment as a matter of law pursuant to Federal Rule of

Civil Procedure 50:

If a party has been fully heard on an issue during a jury trial and thecourt finds that a reasonable jury would not have a legally sufficientevidentiary basis to find for the party on that issue.

FED. R. CIV. P. 50(a). When considering a partys motion for judgment as a

matter of law, the court must view the evidence in the light most favorable to the

non-moving party and draw all reasonable inferences in his favor without

weighing the evidence or assessing the witnesses credibility. Baynard v. Malone,

268 F.3d 228, 234-35 (4th Cir. 2001). Judgment as a matter of law is inappropriate

if a reasonable jury could find in favor of the non-moving party. Id. at 235.

However, a court may grant judgment as a matter of law if the evidence presented

supports only one reasonable conclusion as to the verdict. Bank of Montreal v.

Signet Bank, 193 F.3d 818, 831 (4th Cir. 1999) (J.A. 81-82).



16/47

10

Rule 50 also states that:

If the court does not grant a motion for judgment as a matter of lawmade under Rule 50(a), the court is considered to have submitted theaction to the jury subject to the courts later deciding the legalquestions raised by the motion.

FED. R. CIV. P. 50(b). After the matter is submitted to the jury, the Rules allow a

movant to file a renewed motion for judgment as a matter of law. Id. If the party

moving for judgment as a matter of law bears the burden of proof on the claim, the

court may only grant the motion if:

(1) the movant has established its case by evidence that the jury wouldnot be at liberty to disbelieve and (2) the only reasonable conclusion isin the movants favor.

Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1065 (Fed. Cir.

1998) (quoting Hurd v. Am. Hoist & Derrick, Co., 734 F.2d 495, 499 (10th Cir.

1984))(internal quotations omitted) (J.A. at 82).

As an alternative to judgment as a matter of law, a new trial should be

granted if (1) The verdict is against the clear weight of the evidence; or (2) is based

upon evidence which is false; or (3) will result in a miscarriage of justice, even

though there may be substantial evidence which would prevent the direction of a

verdict. Henley v. FMC Corp., 189 F.R.D. 340, 1999 U.S. Dist. LEXIS 15866

(S.D.W. Va. 1999).



17/47

11

B. Legal Standard for Fourteenth Amendment Excessive Force

Claims and the Application of Qualified Immunity

The Due Process Clause governs excessive force claims by pretrial

detainees. Carr v. Deeds, 453 F.3d 593, 605 (4th Cir. 2006). To prevail on an

excessive force claim, a plaintiff must prove that Defendants inflicted

unnecessary and wanton pain and suffering upon the detainee. Id. (quoting

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

(quoting Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998)). A plaintiff is no

longer required to demonstrate that his injuries are not de minimus. Wilkins v.

Gaddy, 130 S. Ct. 1175, 1179 (2010). When determining whether an officers

actions violated due process, a court must consider the need for the application of

force, the relationship between the need and the amount of force used, the extent of

the injury inflicted, and whether the force was applied in a good faith effort to

maintain and restore discipline or maliciously and sadistically for the very purpose

of causing harm. Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008). (quoting

May 18, 2012, Mem. Op. & Order, at J.A. 71-84.)

The Fourth Circuit has found that an officer is not justified in using physical

force against a pretrial detainee based on the detainees words alone. United States

v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990). Courts have also found that officers



18/47

12

may not punch pretrial detainees or prisoners in the face, and if an officer throws a

punch under those circumstances, that action was intended to inflict unnecessary

and wanton pain and suffering. See, e.g., Chambers v. Cnty. of Macomb, No. 03-

73342, 2006 WL 1791398, at *7 (E.D. Mich. June 27, 2006)(finding no qualified

immunity on claims against officers alleged to have choked and struck a prisoner);

Leland v. Vought, No. 4:07-cv-20, 2008 WL 4525113, at *7 (N.D. Fla. Sept. 30,

2008)(stating that officer was not entitled to qualified immunity on claim that he

allegedly punched a handcuffed prisoner in the back of the head); see also Jones v.

Buchanan, 325 F.3d 520, 529-31 (4th Cir. 2003)(finding no qualified immunity on

Fourth Amendment claim against officer who knocked individual to the ground

and jumped on him in a holding center); Bailey v. Kennedy, 349 F.3d 731, 744

(4th Cir. 2003); Mesmer v. St. Marys Cnty., No. DKC 10-1053, 2010 WL

4791884, at *9 (D. Md. Nov. 18, 2010)(finding that an officer was not entitled to

qualified immunity on charges that he violated a pretrial detainees due process

rights by slamming him into a wall and punching him in the jaw.) (quoting May

18, 2012, Mem. Op. & Order, at J.A. 71-84.)

The Supreme Court has long held that:

The doctrine of qualified immunity protects government officialsfrom liability for civil damages insofar as their conduct does notviolate clearly established statutory or constitutional rights of which areasonable person would have known.



19/47

13

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). The courts are faced with a balancing test between two

significant interests:

[T]he need to hold public officials accountable when they exercisepower irresponsibly and the need to shield officials from harassment,distraction, and liability when they perform their duties reasonably.

Id. Traditionally, courts have made a two-pronged analysis:

(1) [t]aken in the light most favorable to the party asserting injury, dothe facts alleged show the officers conduct violated a constitutional

right?. . .

(2) whether the right was clearly established in light of the specificcontext of the case.

Scott v. Harris, 550 U.S. 372, 377 (2007). The District Court has the discretion to

determine which prong of the qualified immunity test to consider first. Pearson v.

Callahan, 555 U.S. 223, 243 (2009).

II. The District Courts Granting of Plaintiffs Renewed Motion for

Judgment as a Matter of Law and Ordering a New Trial on Damages

Did Not Exceed the Courts Authority

The District Court was well within the Courts authority to grant the

Plaintiffs Renewed Motion for Judgment as a Matter of Law pursuant to Rule

50(b) of the Federal Rules of Civil Procedure. The jury did what they thought was

right, but simply got it wrong. Although rarely used, District Courts have the

authority to overturn jury verdicts in such situations.



20/47

14

In its Order granting the Plaintiffs Rule 50(b) motion, the District Court

explained that, [w]hile courts are not to simply rubber stamp a jurys verdict,

judges believe that judgment as a matter of law is a power to be applied sparingly

and only in the most extraordinary circumstances. (citing CHARLES WRIGHT &

ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE 2524 (3d ed.

2008)). The Court concluded:

What the video shows cannot be reconciled with the jurys verdict.The video shows Deputy Asbury grabbing the plaintiff by the throat.

The video shows Deputy Asbury punching the plaintiff in the facewith his fist. The video shows the officers leaving an injured Mr.Sawyer lying on the holding center floor. Mr. Sawyer walked in tothe holding center uninjured, and he left with a fractured nose and

battered face. While Mr. Sawyers verbal threats against DeputyAsbury were disgusting, they were still only words, and a pretrialdetainees words do not justify an officers use of such force. SeeCobb, 905 F.2d at 789.

(J.A. at 83).

The U.S. Supreme Court has found that when a videotape exists of the

incident, the court may not accept one partys version of events if that version is so

utterly discredited by the record such that no reasonable jury would believe it. See

Scott v. Harris, 550 U.S. 372, 380 (2007) (When opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no

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

for purposes of ruling on a motion for summary judgment.).



21/47

15

Deputy Asburys own admissions established excessive force as a matter of

law. Deputy Asbury testified both at his deposition and at trial, that pursuant to his

alleged training, he asked Mr. Sawyer three times to stand up from the concrete

bench, and that when Mr. Sawyer refused, he applied physical force. (J.A. 180 at

96:13-25.) Deputy Asbury admittedly made a sudden movement towards Mr.

Sawyer, grabbing him in the throat area. (J.A. 182 at 98:1-3, 186 at 102:1-9.)

Deputy Asbury admitted that Brian Sawyer was sitting down at the time he was

attacked and that he was given no warning that sudden physical force was about to

be used against him. (J.A. 184 at 100:11:15, 186-87 at 102:17-25, 103:1-6.)

Deputy Asbury admitted that Brian Sawyer never physically assaulted him, or any

other officer, at the Wood County holding center, but that he was just running his

mouth. (J.A. 188 at 104:1-10.) Deputy Asbury admitted that he used physical

force in response to Mr. Sawyers verbal threats:

MR. BRYAN: So you also testified that you had asked Brian Sawyerto stand up, and he failed to comply?

MR. ASBURY: Numerous times, yes.

MR. BRYAN: At that point you pushed him back against the wall?

MR. ASBURY: I - - at that time I deemed that the threats he wasmaking toward me that he needed to be handcuffed

or restrained again, so yes.

(J.A. 186 at 102:10-16.)



22/47

16

These admissions by Deputy Asbury are consistent with the video, which

shows sudden and violent physical force being applied to Mr. Sawyers throat

while Mr. Sawyer was sitting on the concrete bench. (J.A. 46 at 21:59:17-21.)

The video confirms Deputy Asburys admission that physical force was applied to

Brian Sawyer in response to mere words, in violation of the Due Process Clause.

See United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990) (an officer is not

justified in using physical force against a pretrial detainee based on the detainees

words alone). The force used against Mr. Sawyer was also excessive as a matter of

law since Deputy Asbury engaged in choking and punching to the face of a person

who was not assaulting officers. See, e.g., Chambers v. Cnty. of Macomb, No. 03-

73342, 2006 WL 1791398, at *7 (E.D. Mich. June 27, 2006)(finding no qualified

immunity on claims against officers alleged to have choked and struck a prisoner);

Leland v. Vought, No. 4:07-cv-20, 2008 WL 4525113, at *7 (N.D. Fla. Sept. 30,

2008)(stating that officer was not entitled to qualified immunity on claim that he

allegedly punched a handcuffed prisoner in the back of the head); see also Jones v.

Buchanan, 325 F.3d 520, 529-31 (4th Cir. 2003)(finding no qualified immunity on

Fourth Amendment claim against officer who knocked individual to the ground

and jumped on him in a holding center).

Despite the fact that there were three other officers present to assist Deputy

Asbury with Mr. Sawyer, Deputy Asbury never sought their assistance before



23/47

17

deciding to suddenly lunge at Mr. Sawyers throat. (J.A. 187 at 103:10-21.) The

video shows that the assisting officers appear to be unconcerned about Mr. Sawyer

prior to Deputy Asbury lunging at him. (J.A. 46 at 21:58:54-21:59:16.) No

attempts were made by any other officer to confront, or to attempt to control, Mr.

Sawyer. Shockingly, after the attack begins, they casually watch Deputy Asbury

lunge at, and begin choking, Mr. Sawyer. (J.A. 46 at 21:59:17-21:21.) The other

deputies appear to intervene only when Deputy Asburys right arm is pulled back

for the first time. (J.A. 46 at 21:59:21.) Deputy Asbury is clearly seen on the

video punching Brian Sawyer in the face. (J.A. 46 at 21:59:22.) Deputy Massey,

who is wearing the hat and white gloves, is seen on the video moving behind

Deputy Asbury, immediately after the punch, and placing his hands on Deputy

Asbury, appearing to restrain him. (J.A. 46 at 21:59:23-21:59-33.)

It is undisputed that Mr. Sawyer left the processing room with a fractured

nose and other facial injuries. Mr. Sawyers emergency room medical records

were presented to the jury (J.A. 47-56.) Mr. Asbury admitted that Brian Sawyer

was injured as a result of the force used against him in the processing room and

that he received a fractured nose and was immediately bleeding from the face.

(J.A. 192-93 at 108:13-25, 109:1-3.) Although Asbury previously claimed under

oath that he immediately attended to Mr. Sawyers injuries, attempting to stop the

bleeding and to ensure that his injuries were non-life threatening, the video shows



24/47

18

that he did not - which Asbury acknowledged at trial. (J.A. 193-94 at 109:4-10,

110:4-6.) According to Asburys own words, Brian Sawyer was left handcuffed,

lying on the floor, bleeding from the face, with a fractured nose, with no ability to

tend to his own injuries, while Asbury and other deputies stepped over him and did

some paperwork. (J.A. 193-94 at 109:13-25, 110:1-9; see also J.A. 46 at 22:3:17.)

The District Court emphasized the Courts overarching duty to ensure that

everyone is equal under the law:

As I write this, I recall the trial of the officers involved in the RodneyKing beating twenty years ago. There, the jury acquitted officers inthe face of unequivocal videotape evidence of guilt. The public hadseen the tape. The Los Angeles riots ensued. Here and now as thereand then, the jury did what they thought was right but simply got itwrong. A rare event, but that is what judges are for.

(J.A. at 71.)

Brian Sawyer appeared before the jury in stark contrast to Deputy Jim

Asbury. His body, including his neck and hands, are covered in tattoos. (J.A. 114-

15 at 30:20-25, 31:1-15.) He has a history of abusing drugs and alcohol. (J.A.

115-17 at 31:16-25, 32:21-25, 33:1-5.) He is a convicted felon. (J.A. 166 at

82:11-12.) He pled guilty to assaulting Deputy Asbury during the arrest at his

home. (J.A. 118 at 34:1-4.)

Deputy Asbury, on the other hand, appeared before the jury in his Ritchie

County Sheriffs Department uniform - despite the fact that he was off duty and



25/47

19

not in Ritchie County.5 Deputy Asburys counsel, in one of her last questions to

Mr. Sawyer during the trial, asked him, Do you remember threatening to rape

[Asburys] child? and Do you remember threatening to rape the children of all

the officers that were in the holding center that night? (J.A. 165-66 at 81:22-25,

82:1-5.) However, Deputy Asbury never alleged to have heard any such

comments. Despite the fact that Mr. Sawyers reply was in the negative, it helped

to unfairly prejudice the jurors against Mr. Sawyer.

The jurors could only have concluded that Brian Sawyer deserved the

beating he received; that Brian Sawyer is below the law and that Deputy Asbury is

above it. The District Court was forced to step-in and do the right thing - which is

something that no court, law enforcement official, or jury had been willing to do

thus-far on behalf of Brian Sawyer.

The criminal investigation into the beating of Brian Sawyer consisted of a

Wood County grand jury proceeding that was little more than a kangaroo court.

Following the jury verdict in favor of Deputy Asbury, Sheriff Jeff Sandy gave an

interview to the News and Sentinel newspaper, which ran the following:

Wood County Sheriff Jeff Sandy said Thursday the verdict validated

the departments belief that Asbury was not guilty. From thebeginning we said we would cooperate with any law enforcement

5Although Deputy Asbury resigned from the Wood County Sheriffs Department

while under investigation for falsifying an unrelated police report, he did obtainemployment with the Sheriffs Department of Ritchie County, West Virginia.



26/47

20

agency in the investigation, he said. Sandy said the verdict from thefederal court reflects the decision from a Wood County grand jury thatvoted to not indict Asbury on charges from the incident where Sawyerclaimed he was a victim of excessive force by a law enforcementofficer.

(April 27, 2012, Asbury acquitted of federal charges, News and Sentinel

Newspaper,http://www.newsandsentinel.com/page/content.detail/id/560438/Asbur

y-acquitted-of-federal-charges.html?nav=5061)). However, Sheriff Sandy failed to

inform the public that he was personally involved in influencing the outcome of the

grand jury proceedings investigating Deputy Asbury when he appeared as a

witness and told the grand jurors that Asbury did nothing wrong and that he

himself had used the same type of force:

GRAND JUROR: On the video, - I know youve seen it. Do youthink - did it look like to you that Brian Sawyer was being picked up

by the officer, or being choked and picked up, or was he back -walking up the wall?

SHERIFF SANDY: I would - again I reviewed it. It was not there.Walked up or being forced up. I - maam, what I - what I see is theofficers trying to get him to get up to be compliant.

GRAND JUROR: You dont think they were - you dont think theywere too aggressive with him?

SHERIFF SANDY: Thirty years, one month, federal government

service, the action in which Mr. Asbury conducted the - the - thethrust to there, I have - I have seen that. I have seen that. And in fact-

GRAND JUROR: Have you done it?

SHERIFF SANDY: In - yes, maam.



27/47

21

GRAND JUROR: Okay.

SHERIFF SANDY: Yes, maam. And - . . . in one situation . . .outside a courtroom , with an aggressive individual . . . I used thattechnique and received a commendation letter for keeping theAssistant U.S. Attorney . . . from getting hit.

GRAND JUROR: Okay.

PROSECUTOR: Any other questions?

GRAND JURORS: (All indicating no).

(See Grand Jury Testimony Transcript, In re: Grand Jury Presentment Concerning

James R. Asbury, In the Circuit Court of Wood County, West Virginia, at p. 115:7-

25, 116:1-8.)6

The Sheriff also failed to tell the public that Brian Sawyer was never

interviewed by law enforcement, or the prosecutor, before being hauled before the

grand jurors in a jail jumpsuit to testify about the beating. Nor was Mr. Sawyer

even given an opportunity to view the surveillance video of his beating prior to his

testimony. In fact, Mr. Sawyer saw the video for the first time during his

testimony. Much of the questioning by the prosecutor was as follows:

PROSECUTOR: Okay. Youre sitting here in orange today. Youve

got shackles on and we just had you un-handcuffed before you came

6 A copy of the Grand Jury Transcript was obtained by Petitioners counsel andwas used against Brian Sawyer, for impeachment purposes at the jury trial. A copywas given to Mr. Sawyers counsel by Mr. Asburys counsel on the day beforetrial.



28/47

22

in. Can you explain to the members of the Grand Jury where you arecurrently incarcerated?. . .

PROSECUTOR: Okay. When you say that you have those charges,do you mean that you have been convicted of the felony offense ofunlawful assault and been convicted of the offense of forgery?. . .

PROSECUTOR: Okay. In addition to those two felonies, have youbeen convicted of a felony offense in the past?. . .

PROSECUTOR: Okay. Did you serve time in the penitentiary on

that or were you given some other sentence?. . .

PROSECUTOR: Okay. Have you been convicted, in addition tothose felony offenses, of any misdemeanor offenses in your past?

BRIAN SAWYER: Yes.

PROSECUTOR: Okay. Quite a few, isnt it; is that correct?

BRIAN SAWYER: Yes.

PROSECUTOR: Okay. Youve - and a lot of those arrest have comein Wood County; is that correct?. . .

PROSECUTOR: Okay. And youve had some run-ins with them inthe past?. . .

PROSECUTOR: Okay. Do you have any batteries on non-lawenforcement individuals?. . .

PROSECUTOR: Okay. Do you have any domestic batteryconvictions?



29/47

23

. . .

PROSECUTOR: And while were waiting on this, would you agreewith me that the Xanax and the alcohol has likely affected your abilityto remember exactly what happened?. . .

(See Grand Jury Testimony Transcript, In re: Grand Jury Presentment Concerning

James R. Asbury, In the Circuit Court of Wood County, West Virginia, at p. 115:7-

25, 20:1-25, 21:1-25, 22:1-23, 27:12-15.)

The Petitioner has given us a rare glimpse of the most successful method of

covering-up police misconduct: to put the allegations before a county grand jury,

where friendly officers and prosecutors, protected by confidentiality and secrecy,

persuade jurors not to indict. Then they tell the media that the grand jurors

investigated the matter and voted not to indict. More often than not, where a

county grand jury has returned a no-true-bill, federal investigators will not proceed

with an investigation. The only remedy for justice in these situations is 42 U.S.C.

1983 and private lawyers who are willing to risk their livelihoods through taking

cases on a contingency fee. In the case sub judice, Brian Sawyer - despite his

tattoos, criminal record, and history of drug and alcohol abuse - knew that he was

denied justice and resolved to do something about it.

Parkersburg, West Virginia, has become a cesspool of police excessive

force. Some cases have been settled, and others are still pending in federal court -

one of which involves another videotaped beating from the same camera as the



30/47

24

videosub judice. (See Jerry Seabolt v. Joshua A. Vensel, et al., Civil Action No.

6:12-cv-1891, U.S. District Court for the Southern District of West Virginia;

Timothy Maza v. City of Parkersburg, et al., Civil Action No. 6:10-cv-0834, U.S.

District Court for the Southern District of West Virginia; July 19, 2010, City to

Settle Police Abuse Lawsuit for $70,000.00, News and Sentinel Newspaper,

http://www.newsandsentinel.com/page/content.detail/id/550137/City-to-settle-

police-abuse-laws---.html .) Although most of the recent problems have been with

the Parkersburg Police Department rather than the county Sheriffs Department, to

allow the Sawyer beating to escape justice would send the wrong message to law

enforcement, and to the public.

III. The District Court Properly Denied Deputy Asbury Qualified Immunity

Where He Inflicted Unnecessary and Wanton Pain and Suffering on

Mr.

Sawyer While He Was a Pretrial Detainee

Deputy Asbury has at all times denied choking the Plaintiff. He has

furthermore denied punching the Plaintiff. However, Brian Sawyers testimony,

corroborated by the videotape (J.A. 46) has always been that he was choked and

punched by Deputy Asbury. The District Court properly held that where a deputy

chokes and punches a pretrial detainee under these circumstances, qualified

immunity will not be available as a defense. Deputy Asbury was caught on video

punching and choking Mr. Sawyer.



31/47

25

In the summary judgment Memorandum Opinion & Order (J.A. 24-43.)

District Court held that:

When viewed in the light most favorable to Mr. Sawyer, the factsshow that Mr. Asbury inflicted unnecessary and wanton pain andsuffering on Mr. Sawyer while he was a detainee.

(J.A. at 33.) Furthermore, the Court noted that the videotape (J.A. 46.) supports

Mr. Sawyers recollection and that it portrays an excessive use of force. (J.A. 33-

34.) The Court explained that:

It does not appear from the videotape that Mr. Asburys actions werein response to any physical resistance or threatening actions by the

plaintiff. The plaintiff was not actively resisting Mr. Asbury orphysically threatening him and he has only admitted to running hismouth at Mr. Asbury. Verbal threats alone, however, are insufficientto justify the use of physical force against a pretrial detainee. SeeCobb, 905 F.2d at 789.

(J.A. at 34.) The Court concluded:

Viewed in the light most favorable to the plaintiff, Mr. Asbury wasacting maliciously and sadistically to cause Mr. Sawyer harm, whichis shown by the fact that he grabbed Mr. Sawyer around the throat.

(J.A. at 34.)

After Deputy Asbury moved for judgment as a matter of law on the issue of

qualified immunity at trial, the District Court noted that:

[T]here is substantial evidence that the defendant inflictedunnecessary, unwarranted pain, if you view the video in the fashionthat counsel has described it. And frankly, as Ive viewed it, it ismore consistent with the plaintiffs view than the defendantsdescription. The sudden movement toward the throat, whether



32/47

26

choking or not, looked much more like an attempt to choke, to me,than it did like a restraining hand to the chest.

(J.A. at 222.) The Court also pointed out that defense counsels argument was

based on case law which had been overruled by the United States Supreme Court:

And I also think it important to remind you that the quality of theinjuries argument that you kept making in your brief I took care of insummary judgment. The Supreme Court has overruled the FourthCircuit on that issue. There is no doubt anymore about that.

(J.A. at 222.) (see Wilkins v. Gaddy, 599 U.S. , 130 S. Ct. 1175, 175 L.Ed.2d

995 (2010) (holding that a significant injury is not a threshold requirement for

stating an excessive force claim and overruling Taylor v. McDuffie, 155 F.3d 479

(C.A.4 (N.C.), 1999) (holding that where injuries are de minimis an officer who

committed excessive force is entitled to qualified immunity)).

The District Court ultimately concluded in response to Mr. Asburys motion

for judgment as a matter of law (based on qualified immunity) that:

[I] dont think, under all of the circumstances as I have describedthem, that qualified immunity is an issue in this case. There is noquestion he was acting under the color of law, but the reasonablenessof his actions and the constitution - or the clear knowledge that it is aconstitutional deprivation to punch a prisoner seated on a bench in theface, or choke one, seems to be to be without question, so the motionis denied.

(J.A. at 222.) Defense counsel renewed their motion for judgment as a matter of

law after the close of all evidence. The Court ruled that:

I adopt my previous ruling. I think it is a clearly establishedconstitutional right that a pretrial detainee is not to be subjected to



33/47

27

willful, wanton and outrageous punishment in the terms of a punch tothe nose. Here the nose is broken. Some people saw it bleeding,some people didnt. Some people say its a bloody nose, other peoplesay it was broken. In any event, somehow something that both sidesadmit looks like a punch is shown on the videotape, and somethingthat is actually a broken nose occurred.

(J.A. at 278.)

Deputy Asbury argues in his Opening Brief, that Mr. Sawyer had to be

restrained because he was being defiant and disobeying instructions and that

Mr. Asbury at no time used force against Mr. Sawyer in an attempt to maliciously

injure or harm him. (Def.s Brief at 32.) Deputy Asbury further argues that Lt.

Massey and Sgt. Kearns testified that there was no indication that Deputy Asbury

applied force with intent to injure Mr. Sawyer. (Def.s Brief at 33.) Deputy

Asbury argues that:

The officers testified that they repeatedly instructed Mr. Sawyer tostop resisting so they could handcuff him and to stop climbing up theconcrete bench as he could kick the officers, injuring them, or hecould hurt himself.

(Def.s Brief at 33.) Essentially, Mr. Asbury believes that qualified immunity

should be granted in any situation where the officer(s) opine that their actions were

reasonable.

However, the District Court was presented with video evidence of what

actually occurred and properly ruled that the Court was authorized to disregard the



34/47

28

self-serving and blatantly false testimony of the officers. The Court noted in its

summary judgment Memorandum Opinion & Order:

The U.S. Supreme Court has found that when a videotape exists of theincident, the court may not accept the non-moving partys version ofevents if that version is so utterly discredited by the record such thatno reasonable jury would believe it. See Scott v. Harris, 550 U.S. 372,380 (2007) (When opposing parties tell two different stories, one ofwhich is blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of the factsfor purposes of ruling on a motion for summary judgment.). Thus,this court will adopt Mr. Sawyers version of the events at the holdingcenter to the extent that those events are not blatantly contradicted by

the videotape exhibits submitted by the parties.

(J.A. at 32.) The Court later ruled, in response to Brian Sawyers motion for

judgment as a matter of law after the close of evidence, that:

I must tell you that Im reminded a bit of the Duck Soup movie of theMarx Brothers where Chico is dressed as Groucho and the heiressconfronts him and says, I saw ya, and he says, Who you gonna

believe, me or your own eyes? . . . The testimony here today hasbeen wildly inconsistent and I have grave concerns about it, but I willtake the motion under advisement.

(J.A. at 278.)

In the May 18, 2012 Memorandum Opinion & Order (J.A. 71-84) setting

aside the jury verdict and granting judgment for the Plaintiff, the Court noted that:

The exchange between Deputy Asbury and Mr. Sawyer from whichMr. Sawyers claim arose was captured on video camera. Thatvideotape was introduced at trial as plaintiffs exhibit 1. The videoindisputably captures Deputy Asburys 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



35/47

29

all may see that the jury did not have a legally sufficient evidentiarybasis to find for Deputy Asbury on the issue of liability.

(J.A. at 72.) The Court found that [s]hortly after patting his chest, Deputy Asbury

attacked Mr. Sawyer, violently grabbing him around the throat with his right

hand. (citing J.A. 46 at 21:59:17-21.) The Court included a screenshot of the

choking in the Order (J.A. 74-75.) The screen shot also shows Lt. Massey and Sgt.

Kearns casually watching the use of force, apparently unconcerned with the actions

of either Mr. Asbury or Mr. Sawyer. (J.A. at 75.) The Court further found that:

Once the other officers reached Deputy Asburys side and beganholding Mr. Sawyer, Deputy Asbury pulled his right fist back again.([J.A. 46] at 21:59:21.) The video clearly shows Deputy Asbury

punching Mr. Sawyer in the face, with the force of his blow knockingMr. Sawyers face to the side. ([J.A. 46] at 21:59:22-23.)

(J.A. at 75.) The Court again included screen shots of the punch and the impact in

the Order. (J.A. 76-78.) The Court found that:

Deputy Asbury then resumed choking Mr. Sawyer. ([J.A. 46] at21:59:23-26.)

. . .

[A]fter the incident behind the wall, the officers left Mr. Sawyerinjured on the ground and began to carry on other tasks. ([J.A. 46] at22:02:31-22:05:23.) Mr. Sawyer was left on the ground for a period

of time until he managed to sit up. ([J.A. 46] at 22:05:22-26.) Later,Mr. Sawyer was taken to the hospital where he was treated for afractured nose. ([J.A. 139] at 55:2-9.)

(J.A. at 78.)



36/47

30

The District Court noted that judgment as a matter of law is a power to be

applied sparingly and only in the most extraordinary of circumstances. (J.A. at

83.) However, the Court explained:

What the video shows cannot be reconciled with the jurys verdict.The video shows Deputy Asbury grabbing the plaintiff by the throat.The video shows Deputy Asbury punching the plaintiff in the facewith his fist. The video shows the officers leaving an injured Mr.Sawyer lying on the holding center floor. Mr. Sawyer walked into theholding center uninjured, and he left with a fractured nose and

battered face. While Mr. Sawyers verbal threats against DeputyAsbury were disgusting, they were still only words, and a pretrial

detainees words do not justify an officers use of such force. SeeCobb, 905 F.2d at 789.

I FIND that no reasonable jury was at liberty to disregard the videoevidence showing Deputy Asbury choking and punching Mr. Sawyerfor no purpose other than inflicting unnecessary and wanton pain andsuffering. I FIND that Deputy Asbury violated Mr. Sawyers rightunder the Due Process Clause to be free from excessive force while in

pretrial detention.

(J.A. at 83.)

The District Court was correct that sometimes judges must step in to protect

the rights of citizens who were beaten by police officers, and who may be

unpopular with jurors - such as in the Rodney King trial. (J.A. at 71.) Here and

now as there and then, (J.A. at 71.) the jurors were wrong to accept the officers

blatantly self-serving and uncorroborated testimony in the face of obvious and

overwhelming proof of excessive force. Furthermore, when analyzing the officers



37/47

31

testimony beyond their statements that there was no choking and no punching,

their answers are quite shocking and strongly corroborate Mr. Sawyers testimony.

All of the officers, including Deputy Asbury, testified that neither of them

struck the Plaintiff in the face, and that the Plaintiffs face never struck the floor.

(J.A. 190 at 106:3-14, 246 at 162:20-22.) Deputy Asbury testified that he never

struck Mr. Sawyer in the face and that he never struck him in the back of the head

causing his face to impact the ground. (J.A. 192 at 108:1-6.) Nevertheless, Mr.

Sawyer left the Wood County holding center with a fractured nose. Thus,

according to the officers, Brian Sawyers facial injuries are a complete mystery.

Larry Kearns testimony was perhaps the most egregious in that he refused to even

admit that Mr. Sawyer was injured. (J.A. 250 at 166:5-6.)

On the one hand, Larry Kearns is testifying under oath that Mr. Sawyer was

uninjured and that he didnt see anything that warranted a trip to the hospital . . .

(J.A. 251 at 167:3-6.), and on the other hand, Deputy Asbury testified to the

following during direct examination:

Q. You do admit that Brian Sawyer was injured as a result of the useof force that you used against him?

A. Mr. Sawyer was - - did receive an injury.

Q. He had a fractured nose?

A. At this time I observed blood coming from his nose after theincident, and ultimately I took him to the hospital to receive treatmentfor his injuries.



38/47

32

Q. Okay, so yes, he did have a fractured nose, to your knowledge?

A. I found out later it was fractured, but at the time I did not know itwas fractured.

Q. You found out at the hospital?

A. That is correct.

Q. But immediately there was bleeding from the face?

A. After the incident and he was restrained, yes, I did see bloodcoming from his nose.

Q. Let me fast - - fast forward the video a little bit for my nextquestion. You previously testified that after you got Brian Sawyer

back in handcuffs laying on the floor that you assisted him, that youtried to get the blood to stop flowing and to make sure that none of hisinjuries were life threatening?

A. I believe I did testify to that, yes.

Q. Well, if we look at the video, the video shows otherwise; correct?

A. The video is showing me stepping over Mr. Sawyer and coming - -I cant see now, but stepping over him and doing some paperwork,yes.

Q. Okay. So Brian Sawyer is left lying on the ground; correct?

A. He is on the ground, yes.

Q. Hes got his hands cuffed behind his back?

A. That is correct.

Q. His head or face is laying on the ground?

A. That is correct.



39/47

33

Q. He has no ability to tend to his own injuries?

A. That is correct.

Q. Theres nobody else there stopping the bleeding from his nose, isthere?

A. I - - I dont see anybody on this side of the wall. No, I do not.

Q. During this time - - were looking right now at [J.A. 46] 22:3:17.Theres nobody assisting Brian Sawyer, is there?

A. I dont believe so.

(J.A. 192-94 at 108:13-25, 109:1-25, 110:1-6.) Not only did Deputy Asbury admit

at trial that he had previously testified to false information regarding his

nonexistent attempts at assisting the injured Mr. Sawyer, when asked if he had ever

falsified a police report, he pled the Fifth Amendment. (J.A. 199 at 115:15-18.)

Larry Kearns testified during his direct examination that he had a front row

seat for whats going on but that he didnt see Deputy Asbury put his hands

around Mr. Sawyers neck and choke him. (J.A. 231 at 147:20-25.) Instead of

choking, Mr. Kearns claimed that he observed Mr. Asbury going for some kind

of a pressure point on Mr. Sawyers neck, although admitting that he was not

that familiar with them. (J.A. 232 at 148:1-10.) Kearns testified that:

I remember being in that hold, and I known its a pain compliancetechnique and it causes some pain. It makes you want to get awayfrom it, which is why youll see Mister - - in my opinion, why youllsee Mr. Sawyer back up and sliding up the wall and eventuallyclimbing up onto the step, because when someone has that on you its



40/47

34

causing pain and you try to get away from it. So thats why hescontinually trying to get away, get back away and up, to relieve that

pressure.

(J.A. 232-33 at 148:19-25, 149:1-2.). Kearns claimed that he remembers seeing

Deputy Asbury use the same force tactic before on suspects who were being

combative. (J.A. 243 at 159:2-7.) He acknowledged that the pain Brian Sawyer

would have been feeling would have been enough to make him do whatever you

wanted him to do. (J.A. 243 at 159:11-15.)

Larry Kearns explanation for what appears to be Deputy Asbury punching

Brian Sawyer in the face on the video was identical for his explanation for what

appeared to be violent choking: that it was merely a pressure point tactic:

Q. Deputy Kearns, its your testimony right now that you dont see apunch right there; is that right?

A. If youre asking me if I saw Deputy Asbury punch Brian Sawyer,no.

Q. Did you see anything that looked questionable to you?

A. I saw Deputy Asbury jerk his hand away from Mr. Sawyer.Questionable, no.

Q. Okay. So you saw his hand go backwards. Did you see it goforwards on the video?

A. It looks like it went back forward. Im sure it did, because at somepoint Deputy Asbury applied that pressure point tactic.

Q. And you dont believe that that was a punch?



41/47

35

A. If youre asking me if I saw Deputy Asbury punch Brian Sawyer,no, sir, I didnt.

(J.A. 246 at 162:8-22.) Indeed, Mr. Kearns disagreed with the video on other

accounts as well. When asked about the portion of the video where he and Mr.

Massey were casually watching Deputy Asbury apply force to Brian Sawyer,

Kearns stated:

But when you look at - - when you watch the video, it kind of lookslike Im just hanging out watching whats going on. Thats not thecase. Im sure we reacted a lot quicker than the video portrays.

(J.A. 234 at 150:16-19.)

Although Deputy Kearns testified that Asbury applied force to Mr. Sawyers

neck, for the purpose of causing pain (J.A. 232 at 148:1-10, J.A. 232-33 at 148:19-

25, 149:1-2.), Lt. David Massey testified that there was no indication to him that

Deputy Asbury applied force with a purpose of causing pain to Mr. Sawyer. (J.A.

258 at 174:14-18.)

Although Deputy Kearns testified that Brian Sawyer climbed up the bench

and backed up against the wall as a result of the pain inflicted on him by Asburys

use of force (J.A. 232-33 at 148:19-25, 149:1-2.), Lt. Massey testified that Mr.

Sawyer was not being compliant because hes climbed up on the bench. (J.A.

261:2-9.)

However, both Kearns and Massey were on the same page regarding the key

element of their testimony. Like Kearns, Lt. Massey testified that he believes that



42/47

36

what appeared to be a punch on video was in fact a pressure point tactic. (J.A.

266-67 at 182:15-25, 183:1-3.) Massey admittedly contradicted his own prior

grand jury testimony when, during his testimony at trial, he claimed that he

observed the sudden forward motion of Deputy Asburys arm during Asburys use

of force on Brian Sawyer and that it was just a routine pressure point move:

Q. In fact, you will admit that it looks like in that video that DeputyAsbury struck Brian Sawyer?

A. It looks like it in the video, yes, sir.

Q. And you didnt really see that until you looked back at the video?

A. No, I saw the incident, and he didnt strike him when we were inthe room.

Q. Didnt you previously testify that you had not seen any forwardmotion of Asburys hand when you were there?

A. I dont recall.

(J.A. 268 at 184:5-14.) However, during his grand jury testimony, on which he

was impeached during cross examination, Mr. Massey testified in response to

grand jurors questions that he hadnt noticed any forward motion until watching

the surveillance video after-the-fact:

Q. The forward motion, did you see that?

A. I saw it on the video, but to be honest with you, I didnt - -

Q. You didnt see it?

A. I didnt see it.



43/47

37

Q. That night?

A. That night, yeah.

(J.A. 271-72 at 187:20-25, 188:1 (impeachment quoting p. 52 of the grand jury

transcript.))

Given that David Massey, Larry Kearns and Jim Asbury were all over the

map with their testimony, the Court was correct to disregard their testimony in

favor of video evidence. The video shows Asbury engage in a verbal argument

with Mr. Sawyer after having taken off his handcuffs and surrounded him with

three other officers. The video shows Asbury thumping is chest as he was

hovering over Mr. Sawyer. The video shows Asbury suddenly and violently

attacking Mr. Sawyer by the throat. The video shows Kearns and Massey casually

watching Asbury up until the point Deputy Asburys right arm rears back for the

first time. At that point, both deputies get involved and appear to be restraining

Asbury. Asbury can be seen punching Brian Sawyer in the face. Massey,

Asburys supervisor, is wearing white gloves and can be seen in the video with his

hands on Asburys shoulders following the punch. He is not assisting in

restraining Brian Sawyer, he is restraining Deputy Asbury. (J.A. 46 at 21:59:23-

21:59-33.)

The District Court was correct in denying qualified immunity to Deputy

Asbury. Merely having officers testify that their actions were reasonable does not



44/47

38

make it so. Where there is a videotape of an officer violently choking and

punching a pretrial detainee who had not physically attacked the officer, or anyone

else, a court should properly deny qualified immunity. Deputy Asburys testimony

was that he asked Mr. Sawyer to stand up, and when he didnt he used physical

force. (J.A. 186 at 102:10-16.) Deputy Asbury admitted that Brian Sawyer never

physically assaulted him, or any other officer, at the Wood County holding center,

but that he was just running his mouth. (J.A. 188 at 104:1-10.) Deputy Asbury

admitted that Brian Sawyer was sitting down at the time he was attacked and that

he was given no warning that sudden physical force was about to be used against

him. (J.A. 184 at 100:11:15, 186-87 at 102:17-25, 103:1-6.) The surveillance

video corroborates these aspects of Deputy Asburys testimony, and therefore

qualified immunity was properly denied.

CONCLUSION

For the foregoing reasons, Plaintiff-Appellee, Brian Sawyer, respectfully

requests that this Court:

1. Affirm the District Courts Order granting Plaintiff-Appellee, Brian

Sawyers, Renewed Motion for Judgment as a Matter of Law, by Order, entered

May 18, 2012;



45/47

39

2. Affirm the District Courts Order conditionally granting Plaintiff-

Appellees, Brian Sawyer, Motion for a New Trial, by Order, entered May 18,

2012;

3. Affirm the Judgment Order in favor of Plaintiff-Appellee, Brian

Sawyer, entered August 22, 2012; and

4. Grant him costs and any and all other such relief allowable at law.

STATEMENT REGARDING ORAL ARGUMENT

Brian Sawyer requests oral argument pursuant to Rule 34(a)(2)(C) of the

Federal Rules of Appellate Procedure because the decisional process would be

significantly aided by oral argument.

BRIAN SAWYERBy Counsel

/s JOHN H. BRYANJohn H. Bryan (WV Bar No. 10259)JOHN H. BRYAN, ATTORNEYS AT LAW611 Main StreetP.O. Box 366Union, WV 24983

(304) 772-4999Fax: (304) 772-4998

[email protected] for the Appellee, Brian Sawyer



46/47

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance With Type-Volume Limitation,Typeface Requirements and Type Style Requirements

1. This brief complies with the Type-volume limitation of Fed. R. App.32(a)(7)(B) because:

The word count of this brief is 9,390 words.

2. This brief complies with the typeface requirements of Fed. R. App. P.32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

This brief has been prepared in a proportionally spaced typeface usingMicrosoft Word, Times New Roman, 14 point.

December 10, 2012/s/ John H. BryanJohn H. Bryan, Attorney at Law611 Main StreetUnion, WV 24983(304) 772-4999 Telephone(304) 772-4998 Facsimile

[email protected]



47/47

CERTIFICATE OF SERVICE

In accordance with Rule 25 of the Rules of the United States Court of

Appeals for the Fourth Circuit, I hereby certify that I have this 10th day of

December, 2012, filed the Response Brief of Appellee in the Office of the Clerk,

United States Court of Appeals for the Fourth Circuit, via hand delivery and

electronically using the Courts CM/ECF system which will send notification of

such filing to all counsel of record as follows:

Wendy Elizabeth Greve

Katie LeeAnn Hicklin

PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC

901 Quarrier Street

Charleston, WV 25301-0000

304-344-0100

[email protected]

/s/ John H. BryanJohn H. Bryan, Attorney at Law611 Main StreetUnion, WV 24983(304) 772-4999 Telephone(304) 772-4998 Facsimile

[email protected]


appellee's response brief

Documents