But the three federal judges said in their order Tuesday that there is "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."
Ellen Lipton Hollander, a U.S. District Court judge from Maryland assigned to the panel, wrote the opinion. U.S. Circuit Judges Diana Motz and Roger Gregory joined in the opinion.
The judges ruled that words alone don't justify physical force by a police officer. Judges also ruled that Asbury did not qualify for immunity
Also, "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," the court's opinion states.
"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."
"Today the citizens of West Virginia, Maryland, Virginia North Carolina and South Carolina have more constitutional protections than they did yesterday," John Bryan, Sawyer's attorney, wrote in a statement.
"As a result of today's ruling, which affirmed the District Court for the Southern District of West Virginia, law enforcement officers will be taught to treat people differently, and that if they fail to do so, there will be consequences. Because of Brian Sawyer, and the federal court system, millions of people have more freedom. And that is something I am very proud of."
Wendy Greve, an attorney who represents Asbury, could not be reached for comment late Tuesday.
Reach Kate White at kate.wh...@wvgazette.com or 304-348-1723.
CORRECTION: An earlier version of this story incorrectly said a new trial to determine damages for Sawyer would have to be held in the future.