Sawyer v. Asbury – Fourth Circuit excessive force case out of West Virginia involving videotaped punching and choking of an arrestee

Posted: April 9, 2014 in Excessive Force, Video Footage

This is a case that is important to me.  The reason is, that it is/was my case.  I first got a phone call from Brian Sawyer’s family in September of 2010 that he was taken from his jail cell, in his orange jumpsuit, and hauled before a criminal grand jury in Wood County, West Virginia (Parkersburg).  He was taken there (again in an orange jumpsuit and shackles) not as a suspect, but as a witness and an alleged victim of a civil rights violation.  The grand jury was examining “evidence” in order to make a decision on whether a Wood County, West Virginia deputy had committed a crime when he used force against Brian during his arrest processing.

Brian complained following his arrest processing that he was beaten.  The video surveillance footage, which captured the incident, was saved by a jail officer and examined by another deputy.  This deputy apparently believed the video showed an excessive use of force and took it to his superiors.  The superiors disagreed.  The video was ultimately sent to the elected county prosecutor for submission to a grand jury.

At the grand jury, the jurors were first shown the video.  Then, Brian Sawyer was brought from jail in his jumpsuit and shackles and put blindly in front of the jurors.  He had not been questioned, nor prepped in any way, by the prosecutor.  The prosecutor was supposedly presenting evidence and seeking an indictment.  However, the prosecutor began to question Brian on his criminal history, and began impeaching his credibility and memory even before asking him to explain what had happened.  After Brian had told his story, the prosecutor pointed out that he had been intoxicated that night, so his memory probably wasn’t reliable.

Next the sheriff himself testified before the jurors.  He told the jurors that he didn’t see any problem with Deputy Asbury’s conduct as portrayed in the video – that he himself had done something similar during his career and received a commendation for it.  The original deputy who examined the surveillance footage was not called to testify.  The jurors took the hints and returned with a “no true bill” – in other words, they did not return an indictment.  This is commonly used to exonerate police officers involved with uses of force – especially shooting cases.  As in other cases, this decision by the grand jury was touted in the media as having concluded that Deputy Asbury acted appropriately.  They did not disclose the fact that only biased evidence was presented to the grand jury.  We only know what happened in this situation because Deputy Asbury’s lawyer in the subsequent civil case obtained the grand jury transcript on the day prior to trial and provided it to us.

In any event, following Mr. Sawyer’s family being informed about the grand jury incident, they called me.  I immediately drove up to the regional jail where Brian was being held, and met with him.  I had no idea at that time that the case would be a long, long road.  But, to make a long story short, we filed a federal lawsuit, which eventually was tried before a jury.  The jury unfortunately ruled against us after three hours of deliberation.

Miraculously, a short time later, the federal judge who presided over the trial granted our post-trial motion for judgment as a matter of law, throwing out the jury verdict and ordering judgment in our favor.  Procedurally, this then scheduled another jury trial to be held solely on the issue of damages.  In other words, it is already established that there was a civil rights violation, and now how much money should be awarded to Mr. Sawyer.  During the trial on damages, we entered a settlement agreement.  The settlement agreement, which was reached in the judge’s chambers, contained a high/low amount to be awarded to Mr. Sawyer.  The low amount would be awarded immediately, while the high amount was still in contention.  The defense would have the ability to appeal the order throwing out the jury verdict to the Fourth Circuit.  If they won, Brian would not get the high amount. If they lost and we won the appeal, Brian would get the high amount within thirty days of the ruling.  Well, it was a long road, and one year later, after briefing the case extensively and oral arguments in Richmond, the Fourth Circuit returned with an opinion in our favor in August of 2013.

You can read the Court’s opinion here.

You can listen to the oral arguments here.

Since I know the facts so well, I don’t want to include anything that was not mentioned by the Fourth Circuit in their opinion.  Specifically, they found that the following occurred:

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, Asbury “saw the kick coming” and avoided it. As a result, Sawyer struck the door of the residence. JA 208.

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 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.

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.

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 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.  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.

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.

The opinion noted the reasoning of the District Court in throwing out the jury verdict and ruling in Mr. Sawyer’s favor:

“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.

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.

The Court commented that the existence of video footage was crucial:

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 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).

The Court ultimately held that “[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.”  Supporting this holding, the Court cited a prior case which was discussed in the briefs and at oral arguments:

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, 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.

The Court also cited the Cobb case:

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 787:23

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.

The Court contrasted the Jones v. Buchanan case, but also explained how it supported their holding:

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):

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.

The Court contrasted another case, the Grayson case, finding that it did not hold up to the facts in the Sawyer matter – nor the Orem, Cobb, or Jones facts:

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 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 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).

The Court specifically found that the Sawyer facts crossed the line into a clear civil rights violation, and noted that all these cases have something in common: the subject is not being violent, but is being verbally provocative.

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.

. . .

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.”

And what about the fact that Sawyer was not in handcuffs when the use of force occurred?

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.

The Court holds that the presence of a video changes the usual scenario where officers are able to testify they believed there was an imminent threat supporting their use of force, even where there was not a threat:

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.

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).

The Court summed up their holding in Sawyer:

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.

What this case means to me:

1.  Videotaped evidence is crucial and a game-changer.  A videotape of a violent use of force against a subject who has not engaged in violence, but who is merely running his mouth, or refusing to obey commands, is sufficient to establish a civil rights violation irregardless of contradictory officer testimony.

2. Subjects who are not being violent cannot be punched in the head and/or choked.

3. Violent physical force cannot be used against someone merely for making verbal threats or refusing to obey commands.

Here is a link to most of the blog entries in my other blog dealing with the Sawyer litigation, including actual filings and exhibits.

Here is a link to the actual beating video posted on the federal court’s website.

  1. […] just went back through the Sawyer v. Asbury opinion in this post on the Use of Force Source.  If you have followed the case on this blog, it’s interesting to take a step back and […]

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