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No. 19-0907 – Timothy Jarrell v. The City of Nitro, West Virginia

Wooton, Justice, dissenting:

The central issue before the Court is whether Sgt. Timothy Jarrell with the 

Nitro Police Department was properly terminated from his employment with the 

respondent The City of Nitro, West Virginia, for using a lateral carotid restraint1 to effect 

the arrest of Jared Hester, an unarmed, nonthreatening individual, for public intoxication. 

The circuit court, in reversing and vacating the Decision Order of the Nitro Police 

Department Civil Service Commission (“the Commission”), found that the evidence 

supported the officer’s termination from employment. However, the majority reverses the 

circuit court’s order and orders the officer’s reinstatement. Because I would affirm the 

circuit court’s decision that the Commission’s decision was clearly wrong and contrary to 

the evidence, I respectfully dissent. 

This Court has held that “‘[a] final order of a police civil service commission 

based upon a finding of fact will not be reversed by a circuit court upon appeal unless it is 

clearly wrong or is based upon a mistake of law.’ Point 1, Syllabus, Appeal of Prezkop, 

154 W.Va. 759, 179 S.E.2d 331 (1971).” Syl. Pt. 1, City of Logan v. Dingess, 161 W. Va. 

377, 242 S.E.2d 473 (1978) (emphasis added). While this Court, and the circuit court, do

give deference to the factfinder in an administrative hearing, see Frymier-Halloran v. 

1 As the majority states in note 2 of the opinion, “the parties and the record also 

refer to this maneuver as a ‘lateral vascular restraint’ or a ‘choke hold.’”

FILED

March 26, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Paige, 193 W. Va. 687, 458 S.E.2d 780 (1995),2 we have also said that “‘in no case will 

this Court [or the circuit court] act as a rubber stamp.’” See In re Hamrick, 204 W. Va. 357, 

359, 512 S.E.2d 870, 872 (1998) (quoting In re Browning, 192 W. Va. 231, 234 n.4, 452 

S.E.2d 24, 37 n.4 (1994)). 

Despite this Court’s clear admonition that it will not act as a “rubber stamp” 

of an administrative body’s determination, that is exactly what occurred in this case. There 

are two predominate fallacies in the majority’s decision. The first fallacy arises from the 

majority’s attempt to portray Sgt. Jarrell as being weaker than Mr. Hester and in fear of 

receiving serious injury. Apparently, the majority finds these characterizations necessary

as a means of rationalizing why the officer was justified in using a lateral carotid restraint 

in effecting Mr. Hester’s arrest on a petty offense. The majority states: “Sergeant Jarrell 

had attempted to handcuff Mr. Hester, who is ‘a larger man of superior size and perceived 

strength,’ but Mr. Hester resisted; . . . Sergeant Jarrell reasonably perceived the threat of 

receiving serious injury if Mr. Hester was not brought quickly under control.” Let there be 

no mistake, it was Sgt. Jarrell who had the upper hand in this case. According to Nitro 

Police Department Arrest Report of Jared Devone Hester, which was admitted into 

evidence below, he was twenty-nine years old, was 6’4’’, and weighed 235 pounds. Sgt. 

2 In Frymier-Halloran, the Court found that the “clearly wrong” standards of review 

“are deferential ones which presume the agency’s actions are valid as long as the decision 

is supported by substantial evidence . . . .” 193 W. Va. at 695, 458 S.E.2d at 788 (emphasis 

added). 
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Jarrell testified that he weighed the same as Mr. Hester and was just over 6’1’’. The video 

evidence obtained from a hotel security camera3 (“the security video”) of the encounter 

confirms that the two men were roughly the same build, a fact admitted by Sgt. Jarrell 

during cross-examination. The majority, however, glosses over the fact that Sgt. Jarrell is 

a well-trained police officer4 and holds a second-degree black belt in judo, a second-degree 

black belt in jiu-jitsu, a second-degree black belt in taekwondo, a second-degree black belt 

in karate, and a third-degree black belt in taiho-jutsu. Sgt. Jarrell testified that he was 

certified as an instructor in those disciplines of martial arts and is “recognized as a martial 

arts – or a defensive tactics instructor through[out] the State, as well as a use of force 

instructor through[out] the State[.]” Conversely, Mr. Hester was an intoxicated, 

nonthreatening, unarmed man. The security evidence plainly shows that he “made no 

threatening movements or gestures before being placed in a choke hold[.]” As a matter of 

fact, the security video evinces little, if any, movement by Mr. Hester at the time the officer 

rendered him unconscious. 

3 The majority adopts the Commission’s position that the security video “is black 

and white, [and] has low resolution,” and also finds that the camera was positioned “some 

distance away from Mr. Hester and Officer Jarrell.” While the security video is without 

audio and is not high quality, the camera was not positioned so far away that its video did 

not clearly capture the encounter between Sgt. Jarrell and Mr. Hester which results in Mr. 

Hester being rendered unconscious. 

4 Sgt. Jarrell testified that he had training in “defense tactics and use of force.” 
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The second fallacy stems from the majority’s mischaracterization of the 

review undertaken by the circuit court, all in order to support its decision to reverse and 

remand this case so that the officer is reinstated to his employment. In this regard, the 

majority focuses upon the circuit court’s review of the Commission’s decision as one in 

which the circuit court merely “overturn[ed] findings of fact simply because [it] would 

have decided [them] differently.” Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 

223, 470 S.E.2d 177 (1996) (“[A] reviewing court may not overturn a finding simply 

because it would have decided the case differently, and it must affirm a finding if the [lower 

tribunal’s] account of the evidence is plausible in light of the record viewed in its 

entirety.”). That is simply not what occurred in this this case; the record demonstrates that 

the circuit court undertook a thorough review of all the evidence supporting the 

Commission’s decision, focusing upon the critical evidence surrounding Mr. Hester’s 

arrest, to wit: the testimony of Mr. Hester, the testimony of Sgt. Jarrell and the security 

video. The appropriate standard of review is set forth in syllabus point one of In re Tiffany 

Marie S.: “[F]indings [of fact] shall not be set aside by a reviewing court unless clearly 

erroneous. A finding is clearly erroneous when, although there is evidence to support the 

finding, the reviewing court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.” Id., Syl. Pt. 1, in part (emphasis added). 

There is ample evidence in the record to support the circuit court’s judgment 

in this case. First, Mr. Hester testified that Sgt. Jarrell approached him while he was 
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standing in front of the hotel and instructed him to “[p]ut your hands behind your back.” 

Mr. Jarrell stated that he “just stood there, and when he kind of came up behind me, he 

kind of took my – I believe it would’ve been my right arm and put it behind my back.” 

Mr. Hester further testified as follows:

Q: Did you – when he did that, did you resist him in any 

way?

A: No.

Q: Did you engage in any physical altercation with him 

there at that Comfort Inn that night?

A: Well, yes.

Q: Did you attack him?

A: No.

Q: What was the physical altercation that you had with 

him?

A: Well, at the point that he came around behind me and 

took my hand, he quickly said “Stop resisting,” and put 

his right arm around my neck, andthat was about it I 

remember waking up on – from being unconscious.

Q: Were you – were you resisting him?

A: No.

Q: Okay. And you were – you were actually rendered 

unconscious?

A: Yes.

Next, Sgt. Jarrell testified that when he told Mr. Hester that he was under 

arrest, Mr. Hester had his arms crossed. According to Sgt. Jarrell, Mr. Hester was 

“clinching [sic] his fist” and “[i]n my mind, he’s contemplating swinging at me or hitting 

me in the face, so he is slightly belated, and he’s pumping his fist. So[,] I’m thinking he’s 
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left-handed, he’s going to swing with his – with his left arm.” Sgt. Jarrell also testified that 

Mr. Hester pulled away from him and “turns his back towards” him. At this point, Sgt. 

Jarrell stated that he placed his arms at the sides of his neck and instructed him to stop 

resisting, repeating, “Stop, stop, stop, stop.” Sgt. Jarrell testified that even though his arms 

were around the side of Mr. Hester’s neck, he did not perform any lateral carotid restraint

even though Mr. Hester did not comply with his command. According to Sgt. Jarrell,

where things get much more dangerous, he’s [referring to Mr. 

Hester] a very, very strong man. He’s extremely strong. From 

this position . . . [h]e just leans forward. . . . So my feet, my 

heels start to come up off the round.

It’s not super pronounced in this video, but when I’m 

holding him . . . just telling him to stop, there’s no choking. 

There’s no constriction of any airway, nothing. He starts to 

lean forward, and I think, “I’m going to get flipped right over 

his back. I’m going to land on my head on the concrete.”

So at that point is when I used a carotid restraint. 

Finally, the security video clearly shows the two men conversing from a few 

feet apart before Sgt. Jarrell moves closer to Mr. Hester. Mr. Hester makes little, if any, 

movement, threatening or otherwise, toward Sgt. Jarrell before the officer moves behind 

Mr. Hester and applies a lateral carotid restraint, causing him to lose consciousness. The 

entire encounter – from Sgt. Jarrell’s arrival at the hotel to his use of a lateral carotid 

restraint on Mr. Hester – occurs within a time frame of less than sixty seconds. 
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The Commission made factual findings regarding the security video based 

not on what the tape clearly shows but rather on an unconvincing effort to “interpret” these 

recorded events in order to make them more consistent with Sgt. Jarrell’s testimony. In so 

doing, the Commission found that it

observe[d] from the security video from the Comfort Inn, 

which was admitted into evidence, Sgt. Jarrell arrive[s] and 

find[s] Mr. Hester remaining outside of the motel. Sgt. Jarrell

engaged him in nearly one-half minute [thirty seconds] of 

dialogue, at which Mr. Hester crosses his arms in the apparent 

defiance as conceded in his testimony. 

9. At 2 minutes 31 seconds into the video, Sgt. Jarrell 

first reaches to touch Mr. Hester’s arm, having repeatedly told 

him to place his hands behind his back. (Hester testimony . . . 

; Sgt. Jarrell, Tr. P. 250).

10. During the next 3-4 seconds, Sgt. Jarrell testified 

that, having seen Mr. Hester “pumping his fist” is thereby 

alerted under the circumstances of the danger of being 

punched. Sgt. Jarrell was aware that he perceived Mr. Hester 

was very strong, which is supported by Resp. Exhibit 9, Nitro 

Police Department Arrest Report of Jared Devone Hester, 

which lists him as 6ft-4in. tall, weighing 235 pounds at 29 

years of age. 

11. However, Mr. Hester pulled away and turned his 

back to him, whereupon Sgt. Jarrell placed his arms at the sides 

of his neck and instructed him to stop resisting, repeating

“Stop, stop, stop, stop” as he felt Hester began to lean forward, 

positioning Jarrell to be thrown over Hester’s back. (Tr. 251-

252).

12. Because Mr. Hester did not cease the resistance, 

Sgt. Jarrell increased the pressure so as to engage the lateral 

vascular restraint, which was successful in rendering Hester 

momentarily unconscious, during which time he was lowered 

slowly to a seated position without injury. . . . It is only at that 

point that Sgt. Jarrell was able to place handcuffs on Mr. Hester 

and gain control of him.
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(Footnote omitted). 

The Commission then found that Mr. Hester’s “conduct clearly placed upon 

Sgt. Jarrell the right to arrest him[;]” that Mr. Hester “verbally and physically resisted 

arrest, passively and actively[;]” that “Sgt. Jarrell announced to Mr. Hester that he was 

under arrest and proceeded to attempt to handcuff him, a larger man of superior size and 

perceived strength[;]” that “Sgt. Jarrell reasonably perceived the threat of receiving serious 

injuries if Hester were not brought quickly under control and used a lateral vascular 

restraint to do so, an approved measure that he was more than adequately qualified to safely 

perform[;]” and that “[t]he lateral vascular restraint was within the use of force continuum 

of the department and reasonable as applied to those circumstances.” Based on the 

foregoing, the Commission found that the respondent had failed to meet its burden of 

showing just cause for Sgt. Jarrell’s termination and ordered that he be reinstated with full 

pay and that he be advanced to the rank of lieutenant. The respondent appealed the decision 

to the circuit court. 

As previously mentioned, in its review of the Commission’s decision, the 

circuit court properly examined the evidence in the case in order in order to ascertain 

whether the findings of fact made by the Commission were supported by the evidence or 

“clearly wrong.” See Dingess, 161 W. Va. at 377, 242 S.E.2d at 474, Syl. Pt. 1. The 

circuit court found that Sgt. Jarrell’s argument that the use of a lateral carotid restraint was 

appropriate because Mr. Hester “‘offered resistance’” and “admitted during his testimony 
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at the hearing below that he was engaged in a physical altercation” with the officer to be a 

“severe mischaracterization of Mr. Hester’s testimony.” Instead, the circuit court, after 

reviewing the security video, found that Mr. Hester’s “only resistance, if any, was in the 

form of failing to put his hands behind his back within a few seconds of being ordered to 

do so by . . . [Sgt.] Jarrell.” Further, the circuit court found that Mr. Hester “repeatedly 

testified that he did not resist” Sgt. Jarrell during the arrest. The circuit court found that 

Mr. Hester testified that he only engaged in a “‘physical altercation’” with the officer when 

Sgt. Jarrell applied the lateral carotid restraint. “Mr. Hester precisely stated that he did not 

resist” Sgt. Jarrell. 

The circuit court also found:

Here, Mr. Hester was ultimately charged with public 

intoxication, which is not a severe crime. He showed no 

indication that he was a threat to officers, himself, or others; 

the Arrest Report notes he was unarmed. Respondent Jarrell’s 

argument that Hester admitted he resisted is entirely 

unfounded, and the record demonstrates that Hester was 

passively resisting at most; if at all. The need for force was low 

and the amount of force used, a choke hold, was relatively high, 

as it caused Hester to lose consciousness, despite him being 

relatively unscathed afterward. Respondent Jarrell did not 

make many efforts to limit the amount of force used, as the 

entire interaction at the hotel took place in roughly one minute 

and escalated from a conversation to a choke hold in that time. 

The “security problem at issue” was low, as Hester had not 

performed any violent or threatening actions, and his alleged 

crime was public intoxication. Finally, the threat perceived by 

the officer could not have been high enough to justify the choke 

hold, as Hester had done nothing to come into or threaten 

physical contact with either an officer or bystander and was 

being charged with a non-violent crime. 
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Finally, the circuit court found:

Respondent Jarrell was trained fewer than two weeks before 

this arrest, it is clear that Jarrell used more force than 

necessary in response to anything he could have perceived. . . 

. Here, the evidence relied upon by the Commission was that 

Jarrell saw Mr. Hester “pumping his fist,” observed Mr. 

Hester to be “very strong,” and finally that Mr. Hester “pulled 

away and turned his back to [Jarrell]” at which point Jarrell 

“felt Hester [begin] to lean forward, positioning Jarrell to be 

thrown over Hester’s back.” While the video contradicts much 

of Jarrell’s characterization of the arrest, even if his 

statements are accepted as true, Jarrell’s act of placing Mr. 

Hester in a choke hold and causing him to lose consciousness 

is excessive in light of what Jarrell perceived. The 

Commission’s Decision Order states that “Mr. Hester clearly 

at first at a minimum passively resisted arrest as confirmed by 

his own testimony. His resistance then clearly became active,

and was cautioned to ‘Stop resisting.’” While this Court 

agrees that Mr. Hester failing to place his hands behind his 

back would constitute passive resistance, the Court cannot 

find any evidence of Hester actively resisting, and the 

Commission offers no such evidence despite its finding that 

“[h]is resistance then clearly became active.”

Instead, the video clearly shows the two men speaking 

to one another for roughly 30 seconds before Jarrell moves 

toward Hester. They speak for another few seconds before 

Jarrell places his hands on Hester. Hester does not move much, 

if at all, for a few more seconds before Jarrell places Hester 

in a choke hold until Hester’s body goes limp. Mr. Hester is 

standing up straight while being choked, never leaning 

forward or showing any sign of either positioning himself to 

toss Respondent Jarrell or any other method of resistance. 

Simply put, the Court FINDS that Respondent Jarrell’s use of 

a choke hold upon Mr. Hester was excessive in light of the

circumstances. Even if the Court accepts as true Jarrell’s 

characterization of the events, it is clear that Mr. Hester’s 

actions did not constitute a situation in which a choke hold 

would be proper. Respondent Jarrell had been recently trained 

to limit his use of choke holds to more serious situations 

wherein the suspect exhibits aggressive, physical behavior.
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Mr. Hester did not do so, and yet Jarrell responded with an 

incapacitating use of force.

(Some emphasis added and footnote omitted). 

Based upon the all the factual discrepancies set forth by the circuit court that 

existed between Sgt. Jarrell’s testimony, Mr. Hester’s testimony, and the security video, 

the circuit court determined

that the Nitro Police Department Civil Service Commission 

committed clear error in its role as factfinder by making 

findings of fact that were clearly wrong and largely 

contradictory to both the testimony during the hearing below 

and the evidence presented in the record. Likewise, the Court 

FINDS that the Commission’s conclusions of law were clearly 

wrong in light of the incorrect findings of fact and the 

application of those facts to the law.

Contrary to the majority’s opinion, this determination made by the circuit 

court was neither a reassessment of the Commission’s credibility determinations regarding 

the witnesses who testified nor a substitution of the Commission’s judgment by the circuit 

court. Instead, the circuit court’s decision was based upon its determination that factual 

findings made by the Commission were “clearly wrong,” because the findings were in clear 

contradiction of the evidence submitted. See Dingess, 161 W. Va. 377, 242 S.E.2d 473. 
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The evidence in this case unequivocally supports the circuit court’s decision.

The events surrounding Sgt. Jarrell’s arrest of Mr. Hester for public intoxication show, at 

best, only passive resistance which does not warrant any use of force. The facts are so 

clear in this case that there is no need to engage in any further analysis regarding the degree 

of force used by Sgt. Jarrell because no force was warranted. The circuit court found that 

the Nitro Police Department’s “Use of Force Policy” in effect at the time of Mr. Hester’s 

arrest, prohibited “[a]ny use of force not reasonably necessary in light of the circumstances 

confronting the officer.” Because the record is devoid of any evidence that Mr. Hester was 

a threat to Sgt. Jarrell, himself, or others, which might have warranted a use of force, Sgt. 

Jarrell’s conduct under the circumstances of this case, which undeniably violated the Nitro 

Police Department’s policy, warranted termination.

Based upon the foregoing, I respectfully dissent.