                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-2123


BRIAN SAWYER,

                 Plaintiff - Appellee,

           v.

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

                 Defendant – Appellant,

           and

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

                 Defendant.



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


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


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


Affirmed by unpublished opinion.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


Unpublished opinions are not binding precedent in this circuit.




                                2
ELLEN LIPTON HOLLANDER, District Judge:

     This    appeal   concerns       events       that   occurred   at       the   Wood

County Detention Center in West Virginia, while Brian Sawyer was

detained    following      his    arrest   in     connection   with      a   domestic

disturbance.     During his detention, Sawyer sustained a broken

nose after Wood County Deputy Sheriff Jim Asbury used physical

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

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

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

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

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

rights under the Due Process Clause of the Fourteenth Amendment.

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

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

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

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

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




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


                                           3
                                       I.

      In October 2010, Sawyer filed suit against Deputy Asbury,

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

Amended Complaint (JA 15) contained two claims against Asbury

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

of   excessive    force,   in   violation    of   the   Fourth    Amendment,

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

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

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

the detention center.

      Following    discovery,    the   district   court   granted    summary

judgment in favor of Deputy Asbury in his official capacity as

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

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

arrest.     However, the court denied summary judgment with respect

to the individual-capacity Fourteenth Amendment claim relating

to the occurrence at the detention center. 3



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

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

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

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

the jury “several times at different speeds with freeze frames

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

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

JA 171.

     The    evidence      showed       that   Deputy      Asbury       proceeded     to

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

disturbance call from Sawyer’s girlfriend.                    Sawyer admitted that

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

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

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




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


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

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

     After Asbury arrested Sawyer, Asbury put Sawyer into his

police vehicle and drove him to the detention center.                             Both

Sawyer    and    Asbury    testified    that,      during     the   drive    to    the

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

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

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

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

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

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

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

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

stream    of    invective    continued       as   Sawyer    proceeded    into     the

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

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

rocking    the     police    vehicle,        or   physically        resisting     the

deputies’ directives.

     As reflected on the video and as described in the trial

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


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


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

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

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

that Deputy Asbury could remove his handcuffs.                 Again, Sawyer

complied.     Thereafter, Asbury directed Sawyer to face the wall

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

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

down.      During   these   events,   Sawyer       continued   his   invective

against Asbury, although Asbury conceded that Sawyer’s demeanor

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

vehicle.    JA 174.

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

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

his   hands   on    the   wall.    All     three    deputies   characterized

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

the deputies described from their training and experience as a

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

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

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

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

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

any   physically    aggressive    action    toward    the   deputies.    And,

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

back in handcuffs.

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

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

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

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

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

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

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

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

       Sawyer and Asbury were gesticulating with their hands, and

both admitted that they were using “abrasive” and inappropriate

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

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

fingerprinted      and    photographed,     but     Sawyer    did     not     do   so,

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

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

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

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

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

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

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

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

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

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



                                       8
       Although the video indisputably shows that Asbury seized

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

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

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

examination, Asbury acknowledged that he had testified at his

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

throat area.”       JA 186.

       Sgt.   Kearns    and    Lt.   Massey    both    testified   that   Asbury

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

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

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

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

testify that he attempted to use a pressure point control tactic

on Sawyer at any time during the incident.

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

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

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

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

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

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

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

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

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

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

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

the pressure point tactic.              Id.

       The video indicates that, after Asbury lunged at Sawyer and

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

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

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

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

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

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

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

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

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

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

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

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

Sawyer’s ear.           JA 266.

       According to the video, Asbury then grabbed Sawyer by the

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Sawyer.

     At trial, Sawyer claimed that Asbury punched him repeatedly

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

video    cannot    resolve       the   dispute     as    to    that     portion    of   the

incident.

     The    video     and    the       trial    testimony       showed     that,     after

restraining       Sawyer    on     the    ground    for       several     seconds,      and

placing him in handcuffs, the deputies left Sawyer handcuffed

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

business, Sawyer remained unattended on the ground for several

minutes.         Eventually,       Sawyer       pulled        himself    to   a    seated

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

JA 249-251; JA 273-74.



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

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

Asbury transported Sawyer to the emergency room, where Sawyer

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

face       and    extremities.         Plaintiff’s   hospital   records     and   the

medical bill were entered into evidence, along with photographs

of Sawyer that depicted his injuries.                JA 145.

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

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

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

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

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

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

think it is a clearly established constitutional right that a

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

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

the nose is broken.” JA 278.




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


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

Thereafter,      Sawyer   renewed         his   motion     for        judgment      as    to

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

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

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

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

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

incorporated by reference in his ruling.                        The district judge

also included in his opinion several still images taken from the

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

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

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

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

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

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

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

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

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

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

     In   granting   Sawyer’s   renewed   motion   for   judgment   as   to

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

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

and emphasis omitted):

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

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

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

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

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

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

appeal followed.

                              II.

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

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


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


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

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

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

make credibility determinations or substitute [its] judgment for

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

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

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

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

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

       Sawyer brought his excessive force claim pursuant to 42

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

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

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

other person within the jurisdiction thereof to the deprivation

of     any    rights,        privileges,           or    immunities         secured     by     the

Constitution and laws” of the United States.

       Section       1983     “‘is       not    itself        a    source    of     substantive

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

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

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

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

under        § 1983          begins         with        ‘identifying          the      specific

constitutional          right       allegedly           infringed     by     the     challenged



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

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

      In Graham, the touchstone case with respect to excessive

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

“that    all     excessive    force   claims        brought    under     § 1983    are

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

held that claims for the use of excessive force in effectuating

an    arrest     or   other    seizure        are    governed    by      the    Fourth

Amendment’s prohibition against “unreasonable” seizures; claims

of excessive force against a convicted prisoner are governed by

the     Eighth    Amendment’s    prohibition          of     “cruel    and     unusual

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

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

Due Process Clause of the Fourteenth Amendment, which prohibits

before conviction “the use of excessive force that amounts to

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

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

      Under the Fourteenth Amendment standard, a plaintiff must

show that the defendant “‘inflicted unnecessary and wanton pain

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

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

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

in a good faith effort to maintain or restore discipline or

maliciously and sadistically for the very purpose of causing

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

quotation marks omitted in Carr).

     Moreover,    no   particular   extent     of     physical     injury   is

required to establish an excessive force claim under the Eighth

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

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

convicted prisoner under the Eighth Amendment, the Supreme Court

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

which the Fourth Circuit previously had applied in excessive

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

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

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

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


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


                                    18
      In    applying         these     principles       to    the       facts,     we   must

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

district judge correctly concluded that Asbury used excessive

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

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

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

while two deputies began to hold him.                         Under binding Supreme

Court precedent, the video recording of the incident operated as

a legal constraint on the fact finding of the jury.

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

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

one   of   which        is   blatantly        contradicted”        by     video    evidence

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

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

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

propounded by the party whose account is contradicted by the

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

depicted by the videotape.”              Id. at 381.

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

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

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

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

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

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

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

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

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

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

videotape whose accuracy is unchallenged, should be credited by

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

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

that    no    reasonable       juror   could    fail   to   believe     the   version

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

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

judgment as a matter of law). 11

       A review of applicable case law under § 1983 leaves no

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

video irrefutably established that Asbury engaged in the use of

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




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


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

officers were transporting a handcuffed arrestee to jail, the

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

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

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

officer opened the door of the vehicle and repeatedly instructed

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

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

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

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

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

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

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

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

Fourteenth Amendment excessive force claim, and we affirmed.

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

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

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

acknowledged       that       “some    action       was    necessary       to   calm      [the

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

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

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

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

several factors, including that the arrestee “was handcuffed,

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

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

immediately     after       she    used        profanity        toward    him;     that       the

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

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

the officers.”        Id. at 447.

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

also instructive.           There, four law enforcement officers were

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

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

excessive     force    against       a    detainee        who    was    being     held    in    a

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

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

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

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

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

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

officers.”     Id.

       We   upheld    the       convictions         of   three       officers    for    use    of

excessive     force,       in     violation         of   the     detainee’s       Fourteenth

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

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

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



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

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

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

correct that words alone do not justify the excessive use of

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

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

pretrial detainee can justify the use of physical force by a

police officer.”      Id.

      Perhaps the most factually apposite of our prior cases is

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

a handcuffed detainee in a processing room at a jail exchanged

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

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

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

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


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

     We   also   noted   that   testimony   that   the   officer   had   “hit

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

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

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

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

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

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

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

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

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

Grayson, officers arrested a man for possession of marijuana and

PCP after he was discovered with those substances while on the

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


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


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

detention center where, after being strip searched, he attempted

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

who subdued the detainee with pepper spray.                      Id.

       The       next   morning,      the        detainee        “was     again   acting

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

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

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

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

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

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

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

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

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

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

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

detainee suddenly ceased breathing.                    Id.   Attempts at CPR were

unsuccessful and the detainee died.                 Id.

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

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

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

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

we ruled that the officers’ “restraining measures were necessary

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

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

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

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

(citation omitted).

       Unlike Grayson, in this case the video clearly reveals that

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

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

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

verbal   tirade      and/or    his    intransigence        and    failure     to    heed

instructions.

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

in handcuffs when they were assaulted by officers, whereas in

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

This   distinction      is    not    determinative,       however.       We   did    not

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

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

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

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

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

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

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

the video dispels any need to speculate as to whether Sawyer

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

Asbury, rather than Sawyer, was the aggressor.

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

exercise   a    certain   degree   of   force    in   order   to   protect    the

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

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

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

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

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

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

F.3d at 605 (citation omitted).

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

detainee who was verbally defiant and uncooperative in response

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

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

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

effect that Asbury was using “pressure point control tactics”

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

“pressure point control tactics” was not excessive under the

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

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

deputies had begun to restrain Sawyer.

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

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

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

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

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

just   frisked     Sawyer.     Nor    did    the   deputies’   testimony   that

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

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

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

concerned that Sawyer was about to become violent, they would

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

in handcuffs at that time.

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

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

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

excessive.    Such conduct did not constitute a good faith effort

to maintain or restore discipline. The district court understood

the import of the video evidence, which indisputably shows that

Deputy    Asbury     used     force    that    was    excessive    under    the

circumstances.       Accordingly, the district court did not err in

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

                                      III.

       The district court also determined that Deputy Asbury was

not entitled to qualified immunity, and Asbury challenges that

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

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

188, 201 (4th Cir. 2002).



                                       28
       “The    doctrine         of   qualified           immunity        protects     police

officers      and    public     officials        from     claims    of     constitutional

violations ‘for reasonable mistakes as to the legality of their

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

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

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

immunity extends to protect officials ‘who commit constitutional

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

reasonably believe that their actions were lawful.’”                                Williams

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

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

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

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

       The qualified immunity analysis involves two inquiries: (1)

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

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

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

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

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

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

in which he allegedly engaged was unlawful in the situation he

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

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

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

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

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

his conduct indisputably violated Sawyer’s Fourteenth Amendment

rights.

      The second inquiry, concerning whether the right at issue

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

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

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

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

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

sufficiently clear ‘that every reasonable official would [have

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

other words, ‘existing precedent must have placed the statutory

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

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

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

internal quotation marks and citations omitted).

      In determining whether a right was clearly established, we

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

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

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


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


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

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

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

case holding the defendant’s identical conduct to be unlawful

does     not   prevent        denial      of    qualified        immunity,’”      because

“‘qualified immunity was never intended to relieve government

officials      from    the    responsibility           of    applying    familiar   legal

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

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

still be on notice that their conduct violates established law

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

730, 741 (2002).

       Arguably, the de minimis injury standard, discussed supra,

remains relevant to Deputy Asbury’s qualified immunity defense,

because    the   incident       at     the     detention       center    took    place   in

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

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

underlying events, the de minimis injury standard was part of

the clearly established law of this circuit.

       Nevertheless,         that    standard        was     readily    satisfied   here.

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

well   within      the      range    of   injuries          considered    more   than    de

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from handcuffs and leg irons was de minimis).

      We recognize that “‘police officers are often forced to

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

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

evaluated from the perspective of a reasonable officer at the

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

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

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

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

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

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

Nevertheless,          qualified   immunity         does   not     protect     an    officer

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

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

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

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

established,       [a    qualified]      immunity       defense      ordinarily       should

fail, since a reasonably competent public official should know

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

800, 818–19 (1982).

      With respect to qualified immunity, we are presented here

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

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

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

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

perspective       of    a    hypothetical       “reasonable        officer,”     the    Orem

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

‘reasonable officer’ because, two other presumably ‘reasonable

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

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

taser or physical force to subdue the arrestee.

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

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

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

                                               33
to suggest that Sawyer had suddenly exhibited threatening or

volatile behavior.           Indeed, the other deputies stood still for

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

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

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

powerful indicator that a need to deploy violent force was not

apparent to a reasonable officer.

       Our     substantive     analysis    of   Deputy   Asbury’s   conduct    in

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

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

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

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

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

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

does     not    justify   an     objectively     reasonable    police     officer

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

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

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

defense was legally correct.

                                          IV.

       For the foregoing reasons, the judgment of the district

court is

                                                                        AFFIRMED.



                                          34
