Appellee's Response Brief

Appeal:122123Doc:29Filed:12/10/2012Pg:1of47
RECORD NO. 12-2123
IN THE
United States Court of Appeals

FOR THE FOURTH CIRCUIT BRIAN SAWYER,
Plaintiff-Appellee,
v. JIM R. ASBURY, INDIVIDUALLY AND IN HIS CAPACITY AS A DEPUTY WITH THE WOOD COUNTY SHERIFF S DEPARTMENT,
Defendant-Appellant,
and WOOD COUNTY COMMISSION, A POLITICAL SUBDIVISION IN THE STATE OF WEST VIRGINIA,
Defendant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT PARKERSBURG
RESPONSE BRIEF OF APPELLEE
John H. Bryan JOHN H. BRYAN, ATTORNEY AT LAW 611 Main Street Union, WV 24983 (304) 772-4999 Telephone (304) 772-4998 Facsimile jhb@johnbryanlaw.com Counsel for Appellee December 10, 2012
LAN TAGN E LE GAL PRIN TING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477 A D ivision of Lantagne Dupl icating Services
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. 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.
4.
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. II. Legal Standard for Fourteenth Amendment Excessive Force Claims and the Application of Qualified Immunity .................... 11
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 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
III.
CONCLUSION ........................................................................................................ 38 STATEMENT REGARDING ORAL ARGUMENT ............................................. 39 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
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 ii
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 iii
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-settlepolice-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
iv
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. 1
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 2
Angelita Cunningham did not testify at the trial for either party. Brian Sawyer alleged that he was choked by Deputy Asbury after he kicked at his door and filed a Fourth Amendment excessive force claim for this use of force. However, the District Court granted Deputy Asbury summary judgment on the Fourth Amendment claim - primarily due to the fact that Mr. Sawyer pled guilty to assaulting an officer for this act and admitted to resisting arrest by kicking at the door. 2
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.)
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 21:59:1721.) 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.)
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, 5
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 109:415, 195 at 111:1-6).3 Deputy Kearns testified that Mr. Sawyer was given a Later, Mr. Sawyer was taken to the hospital
timeout. (J.A. 249 at 165:9-15.)
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 Sheriffs Department while under investigation for falsifying an unrelated police report. During the trial, when asked Deputy Asbury, have you ever falsified a police report? His response was to invoke the Fifth Amendment. (J.A. 199 at 115:1518). 6
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
4
During 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 is affirmed on appeal. 7
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 law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the courts later deciding the legal questions raised by the motion. No later than 10 days after the entry of judgment . . . the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. FED. R. CIV. P. 50(b).
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 the court finds that a reasonable jury would not have a legally sufficient evidentiary 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). 9
Rule 50 also states that: If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the courts later deciding the legal questions 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 would not be at liberty to disbelieve and (2) the only reasonable conclusion is in 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).
10
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 11
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. 0373342, 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 officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
12
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 exercise power 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, do the facts alleged show the officers conduct violated a constitutional right? ... (2) whether the right was clearly established in light of the specific context 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. 13
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 face with his fist. The video shows the officers leaving an injured Mr. Sawyer lying on the holding center floor. Mr. Sawyer walked in to the holding center uninjured, and he left with a fractured nose and battered face. While Mr. Sawyers verbal threats against Deputy Asbury were disgusting, they were still only words, and a pretrial detainees words do not justify an officers use of such force. See Cobb, 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.).
14
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 Sawyer to 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 was making toward me that he needed to be handcuffed or restrained again, so yes. (J.A. 186 at 102:10-16.)
15
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. 0373342, 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 16
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 17
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 Rodney King beating twenty years ago. There, the jury acquitted officers in the face of unequivocal videotape evidence of guilt. The public had seen the tape. The Los Angeles riots ensued. Here and now as there and then, the jury did what they thought was right but simply got it wrong. 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. 11415 at 30:20-25, 31:1-15.) He has a history of abusing drugs and alcohol. (J.A. He is a convicted felon. (J.A. 166 at
115-17 at 31:16-25, 32:21-25, 33:1-5.) 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
18
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 the beginning we said we would cooperate with any law enforcement
5
Although Deputy Asbury resigned from the Wood County Sheriffs Department while under investigation for falsifying an unrelated police report, he did obtain employment with the Sheriffs Department of Ritchie County, West Virginia. 19
agency in the investigation, he said. Sandy said the verdict from the federal court reflects the decision from a Wood County grand jury that voted to not indict Asbury on charges from the incident where Sawyer claimed he was a victim of excessive force by a law enforcement officer. (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 you think - 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 the officers trying to get him to get up to be compliant. GRAND JUROR: You dont think they were - you dont think they were too aggressive with him? SHERIFF SANDY: Thirty years, one month, federal government service, the action in which Mr. Asbury conducted the - the - the thrust 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. 20
GRAND JUROR: Okay. SHERIFF SANDY: Yes, maam. And - . . . in one situation . . . outside a courtroom , with an aggressive individual . . . I used that technique and received a commendation letter for keeping the Assistant 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. 115:725, 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 and was used against Brian Sawyer, for impeachment purposes at the jury trial. A copy was given to Mr. Sawyers counsel by Mr. Asburys counsel on the day before trial. 21
in. Can you explain to the members of the Grand Jury where you are currently incarcerated? ... PROSECUTOR: Okay. When you say that you have those charges, do you mean that you have been convicted of the felony offense of unlawful assault and been convicted of the offense of forgery? ... PROSECUTOR: Okay. In addition to those two felonies, have you been 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 to those 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 come in Wood County; is that correct? ... PROSECUTOR: Okay. And youve had some run-ins with them in the past? ... PROSECUTOR: Okay. Do you have any batteries on non-law enforcement individuals? ... PROSECUTOR: Okay. Do you have any domestic battery convictions? 22
... PROSECUTOR: And while were waiting on this, would you agree with me that the Xanax and the alcohol has likely affected your ability to 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. 115:725, 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 23
video sub 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-settlepolice-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. Mr. Sawyer While He Was a Pretrial Detainee Deputy Asbury has at all times denied choking the Plaintiff. He has The District Court Properly Denied Deputy Asbury Qualified Immunity Where He Inflicted Unnecessary and Wanton Pain and Suffering on
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.
24
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 facts show that Mr. Asbury inflicted unnecessary and wanton pain and suffering 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. 3334.) The Court explained that: It does not appear from the videotape that Mr. Asburys actions were in response to any physical resistance or threatening actions by the plaintiff. The plaintiff was not actively resisting Mr. Asbury or physically threatening him and he has only admitted to running his mouth at Mr. Asbury. Verbal threats alone, however, are insufficient to justify the use of physical force against a pretrial detainee. See Cobb, 905 F.2d at 789. (J.A. at 34.) The Court concluded: Viewed in the light most favorable to the plaintiff, Mr. Asbury was acting maliciously and sadistically to cause Mr. Sawyer harm, which is 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 inflicted unnecessary, unwarranted pain, if you view the video in the fashion that counsel has described it. And frankly, as Ive viewed it, it is more consistent with the plaintiffs view than the defendants description. The sudden movement toward the throat, whether 25
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 the injuries argument that you kept making in your brief I took care of in summary judgment. The Supreme Court has overruled the Fourth Circuit 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 described them, that qualified immunity is an issue in this case. There is no question he was acting under the color of law, but the reasonableness of his actions and the constitution - or the clear knowledge that it is a constitutional deprivation to punch a prisoner seated on a bench in the face, or choke one, seems to be to be without question, so the motion is 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 established constitutional right that a pretrial detainee is not to be subjected to 26
willful, wanton and outrageous punishment in the terms of a punch to the nose. Here the nose is broken. Some people saw it bleeding, some people didnt. Some people say its a bloody nose, other people say it was broken. In any event, somehow something that both sides admit looks like a punch is shown on the videotape, and something that 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 to stop resisting so they could handcuff him and to stop climbing up the concrete bench as he could kick the officers, injuring them, or he could 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
27
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 the incident, the court may not accept the non-moving 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.). Thus, this court will adopt Mr. Sawyers version of the events at the holding center 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 the Marx Brothers where Chico is dressed as Groucho and the heiress confronts him and says, I saw ya, and he says, Who you gonna believe, me or your own eyes? . . . The testimony here today has been wildly inconsistent and I have grave concerns about it, but I will take 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 which Mr. Sawyers claim arose was captured on video camera. That videotape was introduced at trial as plaintiffs exhibit 1. The video indisputably 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 28
all may see that the jury did not have a legally sufficient evidentiary basis 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 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.) (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] at 21:59:23-26.) ... [A]fter the incident behind the wall, the officers left Mr. Sawyer injured on the ground and began to carry on other tasks. ([J.A. 46] at 22:02:31-22:05:23.) 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 a fractured nose. ([J.A. 139] at 55:2-9.) (J.A. at 78.)
29
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 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. Sawyers verbal threats against Deputy Asbury were disgusting, they were still only words, and a pretrial detainees words do not justify an officers use of such force. See Cobb, 905 F.2d at 789. 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 violated Mr. Sawyers right under 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
30
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 use of 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 the incident, and ultimately I took him to the hospital to receive treatment for his injuries. 31
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 it was 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 blood coming from his nose. Q. Let me fast - - fast forward the video a little bit for my next question. You previously testified that after you got Brian Sawyer back in handcuffs laying on the floor that you assisted him, that you tried to get the blood to stop flowing and to make sure that none of his injuries 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. 32
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, is there? 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 compliance technique and it causes some pain. It makes you want to get away from it, which is why youll see Mister - - in my opinion, why youll see Mr. Sawyer back up and sliding up the wall and eventually climbing up onto the step, because when someone has that on you its 33
causing pain and you try to get away from it. So thats why hes continually 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 a punch 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 go forwards on the video? A. It looks like it went back forward. Im sure it did, because at some point Deputy Asbury applied that pressure point tactic. Q. And you dont believe that that was a punch?
34
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 looks like Im just hanging out watching whats going on. Thats not the case. 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 148:1925, 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 35
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 Deputy Asbury 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 in the room. Q. Didnt you previously testify that you had not seen any forward motion 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. 36
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 The video shows Asbury suddenly and violently
hovering over Mr. Sawyer.
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 21:59:2321:59-33.) The District Court was correct in denying qualified immunity to Deputy Asbury. Merely having officers testify that their actions were reasonable does not 37
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;
38
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 SAWYER By Counsel /s JOHN H. BRYAN John H. Bryan (WV Bar No. 10259) JOHN H. BRYAN, ATTORNEYS AT LAW 611 Main Street P.O. Box 366 Union, WV 24983 (304) 772-4999 Fax: (304) 772-4998 jhb@johnbryanlaw.com Counsel for the Appellee, Brian Sawyer
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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 using Microsoft Word, Times New Roman, 14 point. December 10, 2012 /s/ John H. Bryan John H. Bryan, Attorney at Law 611 Main Street Union, WV 24983 (304) 772-4999 Telephone (304) 772-4998 Facsimile jhb@johnbryanlaw.com
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 wgreve@pffwv.com /s/ John H. Bryan John H. Bryan, Attorney at Law 611 Main Street Union, WV 24983 (304) 772-4999 Telephone (304) 772-4998 Facsimile jhb@johnbryanlaw.com

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Appeal:122123Doc:29Filed:12/10/2012Pg:1of47

RECORD NO. 12-2123

United States Court of Appeals

RESPONSE BRIEF OF APPELLEE

Whether the District Court properly denied Deputy Jim Asbury

timeout. (J.A. 249 at 165:9-15.)

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

115-17 at 31:16-25, 32:21-25, 33:1-5.) 82:11-12.)

He pled guilty to assaulting Deputy Asbury during the arrest at his

hovering over Mr. Sawyer.

Where there is a videotape of an officer violently choking and

Affirm the District Courts Order conditionally granting Plaintiff-

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Appellee&#39;s Response Brief

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Appeal:122123Doc:29Filed:12/10/2012Pg:1of47

RECORD NO. 12-2123

United States Court of Appeals

RESPONSE BRIEF OF APPELLEE

Whether the District Court properly denied Deputy Jim Asbury

timeout. (J.A. 249 at 165:9-15.)

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

115-17 at 31:16-25, 32:21-25, 33:1-5.) 82:11-12.)

He pled guilty to assaulting Deputy Asbury during the arrest at his

hovering over Mr. Sawyer.

Where there is a videotape of an officer violently choking and

Affirm the District Courts Order conditionally granting Plaintiff-

You might also like

Appellee's Response Brief

Appellee's Response Brief