IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term

_____________________

No. 19-0907

_____________________

TIMOTHY JARRELL, 

Respondent Below, Petitioner

v.

THE CITY OF NITRO, WEST VIRGINIA,

Petitioner Below, Respondent

___________________________________________________________

Appeal from the Circuit Court of Kanawha County

Honorable Louis H. Bloom, Judge

Civil Action No. 19-AA-40

REVERSED AND REMANDED

_________________________________________________________

Submitted: January 13, 2021

Filed: March 26, 2021

Mark McMillian, Esq.

Mark McMillian–Attorney at Law, L.C.

Charleston, West Virginia

Counsel for Petitioner Jarrell

John R. Teare, Jr., Esq.

Spilman Thomas & Battle, PLLC

Charleston, West Virginia

Counsel for Respondent City of Nitro

JUSTICE HUTCHISON delivered the Opinion of the Court.

JUSTICE WOOTON dissents and reserves the right to file a separate opinion.

FILED

March 26, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS OF THE COURT

1. “‘A final order of the Civil Service Commission based upon a finding of 

fact will not be reversed by this Court upon appeal unless it is clearly wrong.’ Syllabus, 

Billings v. Civil Service Commn., 154 W. Va. 688, 178 S.E.2d 801 (1971).” Syl. Pt. 1, 

Giannini v. Firemen’s Civil Serv. Comm’n of Huntington, 220 W. Va. 59, 640 S.E.2d 122 

(2006).

2. “‘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.’ Syl. Pt. 1, Appeal of Prezkop, 154 W. Va. 759, 179 S.E.2d 

331 (1971).” Syl. Pt. 2, Giannini v. Firemen’s Civil Serv. Comm’n of Huntington, 220 W. 

Va. 59, 640 S.E.2d 122 (2006).

3. “An adjudicative decision of the Correctional Officers’ Civil Service 

Commission should not be overturned by an appellate court unless it was clearly erroneous, 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 

Review under this standard is narrow and the reviewing court looks to the Civil Service 

Commission’s action to determine whether the record reveals that a substantial and rational 

basis exists for its decision.” Syl. Pt. 1, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 

(1996).
ii

4. “An appellate court may reverse a decision of the Correctional Officers’ 

Civil Service Commission as clearly wrong or arbitrary or capricious only if the 

Commission used a misapplication of the law, entirely failed to consider an important 

aspect of the problem, offered an explanation that ran counter to the evidence before the 

Commission, or offered one that was so implausible that it could not be ascribed to a 

difference in view or the product of Commission expertise.” Syl. Pt. 2, In re Queen, 196 

W. Va. 442, 473 S.E.2d 483 (1996).

5. “[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.” Syl. Pt. 1, 

in part, In Re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
1

HUTCHISON, Justice:

The petitioner, Timothy Jarrell, appeals the September 6, 2019, order of the 

Circuit Court of Kanawha County, which reversed and vacated a March 30, 2019, order of 

the Nitro Police Department Civil Service Commission. The commission had concluded 

that the petitioner was improperly terminated from his employment as a police officer with 

the City of Nitro Police Department, but the circuit court decided that the termination was 

appropriate. After reviewing the parties’ written and oral arguments, the appendix record, 

and the pertinent legal authorities, we conclude that the circuit court impermissibly 

substituted its judgment for that of the commission, which was the factfinder in this matter. 

Accordingly, we reverse the circuit court’s order and remand this case to the circuit court 

for entry of an order reinstating the commission’s order.

I. Facts and Procedural Background

Late on a night in May 2016, Jared Hester was a customer at the Mardi Gras 

Casino & Resort. After drinking several alcoholic beverages, Mr. Hester went outside of 

the casino building, sat on a bench, and fell asleep. Casino security employees roused him 

and advised that he could not sleep on the bench. Mr. Hester attempted to go to his parked 

car, but casino employees would not allow this because he was intoxicated and they were 

concerned that he would drive. According to Lisa Smith, the Mardi Gras Director of 

Security, Mr. Hester acted aggressively, pointed his middle finger at the security staff, used 

profanity, and called the staff foul names. The casino staff called police.
2

Officers with the City of Nitro Police, including Sergeant Timothy Jarrell 

(the petitioner herein), responded to the call. Mr. Hester, a North Carolina resident, had not 

made any arrangements for lodging that night. The officers determined that Mr. Hester was 

publicly intoxicated and unfit to drive, but they told him that they would not arrest him if 

he would check into a hotel for the night. Mr. Hester ultimately agreed to this plan and 

accepted a ride in the casino’s courtesy van to a Comfort Inn hotel approximately one mile 

away in Cross Lanes. In a separate vehicle, Sergeant Jarrell followed the courtesy van to 

the Comfort Inn.

A hotel security video recording1 shows the van pulling up to the Comfort 

Inn, Mr. Hester exiting the van and walking toward the lobby doors, and Mr. Hester 

stopping and standing outside of the hotel. Sergeant Jarrell arrived alone, exited his own 

vehicle, and stood a few feet away from Mr. Hester. Mr. Hester told Sergeant Jarrell that 

he was not going to check into the hotel, and that Sergeant Jarrell could not make him do 

so. Sergeant Jarrell responded that Mr. Hester would be arrested. The video recording lacks 

audio, but Mr. Hester has admitted that Sergeant Jarrell instructed him to place his hands 

behind his back and to stop resisting arrest. The video shows that Mr. Hester did not put 

his hands behind his back, and instead crossed his arms in front of himself. After their short

discussion, Sergeant Jarrell approached Mr. Hester and, in the process of arresting him, 

1 The video is black and white, has low resolution, and lacks audio, and the camera 

was some distance away from Mr. Hester and Officer Jarrell. Nonetheless, the two men 

can be seen on the recording.
3

performed a “lateral carotid restraint.”2 Specifically, the sergeant placed his arm around 

Mr. Hester’s neck, briefly disrupting blood circulation and rendering Hester partially or 

fully unconscious. Sergeant Jarrell lowered Mr. Hester to the ground. Mr. Hester regained 

consciousness a few moments later, and other officers arrived at the Comfort Inn. The 

officers arrested Mr. Hester and charged him with public intoxication and resisting an 

officer; these charges were later dismissed with prejudice.

The City of Nitro (respondent herein), along with the Kanawha County 

Sheriff’s Department, investigated to determine whether Sergeant Jarrell had acted 

inappropriately and used excessive force in his arrest of Mr. Hester. Sergeant Jarrell was 

placed on paid administrative leave and was subsequently indicted for battery and false 

swearing. However, at a December 2017 trial, a magistrate court jury acquitted Sergeant 

Jarrell of all charges.

Meanwhile, by letter dated October 19, 2017, Nitro Police Chief Robert 

Eggleston terminated Sergeant Jarrell’s employment with the Nitro Police Department 

based upon his actions during the Hester arrest. Sergeant Jarrell demanded a review by an 

internal department hearing board, which found that he should not have been terminated. 

2 The parties and the record also refer to this maneuver as a “lateral vascular

restraint” or a “choke hold.”
4

Chief Eggleston and the City of Nitro then appealed to the Nitro Police Department Civil 

Service Commission, which held a de novo evidentiary hearing in February 2019.3

3 The police civil service commission hearings process is set forth in West Virginia 

Code § 8-14-20 (1996), providing, in part:

(a) No member of any paid police department subject to 

the civil service provisions of this article may be removed, 

discharged, suspended or reduced in rank or pay except for just 

cause, which may not be religious or political, except as 

provided in section nineteen of this article; and no such 

member may be removed, discharged, suspended or reduced in 

rank or pay except as provided by the civil service provisions 

of this article, and in no event until the member has been 

furnished with a written statement of the reasons for the action. 

In every case of such removal, discharge, suspension or 

reduction, a copy of the statement of reasons therefor and of 

the written answer thereto, if the member desires to file such 

written answer, shall be furnished to the policemen’s civil 

service commission and entered upon its records. If the 

member demands it, the commission shall grant a public 

hearing, which hearing shall be held within a period of ten days 

from the filing of the charges in writing or the written answer 

thereto, whichever shall last occur. At the hearing, the burden 

shall be upon the removing, discharging, suspending or 

reducing officer, hereinafter in this section referred to as 

“removing officer”, to show just cause for his or her action, and 

in the event the removing officer fails to show just cause for 

the action before the commission, then the member shall be 

reinstated with full pay, forthwith and without any additional 

order, for the entire period during which the member may have 

been prevented from performing his or her usual employment, 

and no charges may be officially recorded against the 

member’s record. The member, if reinstated or exonerated, 

shall, if represented by legal counsel, be awarded reasonable 

attorney fees to be determined by the commission and paid by 

the governing body. A written record of all testimony taken at 

the hearing shall be kept and preserved by the commission, 

which record shall be sealed and not be open to public 
5

During the commission’s hearing, Sergeant Jarrell narrated the events shown 

on the hotel security video to explain why he used a lateral carotid restraint. He testified 

that after Mr. Hester changed his mind and refused to check in to the Comfort Inn, the 

sergeant informed him that he could not “wander the streets intoxicated at your level” and 

their “discussion [grew] more heated.” The sergeant testified that he instructed Mr. Hester 

to “[t]urn around, put your hands behind your back. You’re under arrest. I’m tired of 

fooling with you” but Hester responded that he was “not going to jail.” The sergeant 

testified that he stepped closer to Mr. Hester, who was “clinching [sic] his fist.” Based on 

his experience in law enforcement, Sergeant Jarrell was concerned that Mr. Hester was

about to hit him:

In my mind, he’s contemplating swinging at me or 

hitting me in the face, so he is slightly belated [sic], and he’s 

pumping his fist. So I’m thinking he’s left-handed, he’s going 

to swing with his—with his left arm. So that’s what I need to 

watch for.

But at the same time, I’ve already told him, “You’re 

under arrest, turn around, put your hands behind your back.” 

I’ve told him this countless times. I have to get a response. We 

have to go somewhere from here. 

So I reach out and touch his elbow, and that’s all I intend 

to do at that second, because when he swings at me, I need to 

be prepared. So in my mind, I think he’s going to swing. To 

my surprise, when I reach out and touch his elbow, he turns 

away from me. 

So that’s the next portion of what we’re going to see [on 

the hotel security video]. So you see my left hand on his—on 

him. So if I can back up just slightly—I don’t know where that 

inspection unless an appeal is taken from the action of the 

commission.
6

put me. As I reach out to touch, prior to him turning—if I can 

correct myself, prior to him turning, I grab, go to pull, and he 

pulls away from me. 

So at that point, that’s what happens right here [referring 

to the video]. So when he pulls away, turns his back towards 

me, is what we’re about to see. I step closer, you see me touch 

the elbow, grab him, he turns away. . . .

So at this position, if you trust me sir, we’re here. 

[Witness demonstrates move on another person in the

commission’s hearing room.] Now, this is not a choke. You 

can talk, you can do anything, you can eat a sandwich, 

whatever he’d like to do.

From here, I’m standing behind him. I’m relatively safe 

here. He could—he would have a hard time to, you know, to 

assault me easily. So from here, I’m telling him, “Stop, stop, 

stop, stop.” That’s what I said. That’s exactly what I said, 

“Stop, stop, stop, stop.”

He doesn’t, and where things get much more dangerous, 

he’s a very, very strong man. He’s extremely strong. From this 

position, he’s here. He just leans forward. Now, Mr.—there we 

go. So my feet, my heels start to come up off the ground.

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

holding him here, 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. . . .

. . . [When] my feet start[ed] to come up, the only way 

that I can change that is to get him back standing more direct 

and to use a carotid restraint. That’s what I had to do.

The sergeant testified that he carefully lowered Mr. Hester to the ground, and Hester 

regained full consciousness a few seconds later. In response to further questioning, 

Sergeant Jarrell testified that alternative techniques, such as using other means of physical 
7

force to overtake Mr. Hester, sweeping Mr. Hester’s legs, or using a taser or stun gun, 

might have been effective but posed a greater risk of harm to the intoxicated Mr. Hester 

because he would have fallen to the concrete sidewalk in an uncontrolled manner.

In his pre-recorded testimony,4 Mr. Hester acknowledged that he was 

intoxicated and had refused to check into the hotel. He admitted that Sergeant Jarrell 

instructed him to put his hands behind his back, but he could not remember whether he did 

so.5 Mr. Hester testified that he did not move during the arrest. When asked whether he 

had resisted arrest, Mr. Hester testified “although I don’t remember a hundred percent, I 

don’t believe that I would have[.]”

The city presented testimony from its City Attorney, Johnnie Brown, who 

had given a training session to city police officers—including Sergeant Jarrell—just a few 

weeks before this arrest. Mr. Brown testified that during the training, he explained the 

continuum of force that police officers must follow; essentially, the more dangerous a 

situation is to the officer or another person, the more force that the officer may employ. 

The department’s policy manual at the time prohibited “[a]ny use of force not reasonably 

4 Some of the testimony at the commission’s hearing was presented by live 

witnesses, while some was pre-recorded testimony from the magistrate court trial. The city 

presented Mr. Hester’s testimony via prior recording.

5 Although the camera was positioned some distance away, the video shows that 

Mr. Hester did not put his hands behind his back.
8

necessary in light of the circumstances confronting the officer.” During the training and 

again during the commission’s hearing, Mr. Brown gave his legal opinion that the use of a

lateral carotid restraint is only appropriate in situations that would justify a police officer’s 

use of deadly force. However, Sergeant Jarrell and his witnesses opined that the technique 

is safe when properly applied by a person who is trained in the technique, and that it is 

appropriate for use in less dangerous situations. There was evidence presented during the 

hearing that Sergeant Jarrell had been trained in the use of this technique.6

In a police civil service commission proceeding, the employer has the burden 

of proving just cause for the discharge of an officer.

7 After considering the evidence, the 

commission concluded that the City of Nitro and Chief Eggleston had not met the burden 

of showing just cause for terminating Sergeant Jarrell’s employment. The commission 

found that Mr. Hester’s public intoxication and disorderly conduct at the casino justified 

his arrest; that Sergeant Jarrell had attempted to handcuff Mr. Hester, who is “a larger man 

of superior size and perceived strength,” but Mr. Hester resisted; that Sergeant Jarrell 

6 After the events herein, the Nitro Police Department’s policy manual was revised 

to expressly limit the use of the lateral carotid restraint. In addition, in March 2016 the 

Legislature passed West Virginia Code § 61-2-9d (2016, amended in 2020), criminalizing 

the knowing and willful restriction of another person’s blood flow by application of 

pressure on the neck or throat. However, West Virginia Code § 61-2-9d did not take effect 

until June 3, 2016, which is the month after Mr. Hester’s arrest. Because the revised policy 

manual and the new statute were not in effect at the time of this arrest, they are not 

applicable to our decision.

7 See W. Va. Code § 8-14-20(a), quoted supra n.3.
9

reasonably perceived the threat of receiving serious injury if Mr. Hester was not brought 

quickly under control; that Sergeant Jarrell was qualified to safely perform a lateral carotid

restraint; and that the lateral carotid restraint was within the use of force continuum and 

was reasonable under these circumstances. Accordingly, in its March 30, 2019, “Decision 

Order,” the commission ordered that Sergeant Jarrell be reinstated to his employment with 

full back pay.8

The city appealed the commission’s order to circuit court. Without holding a 

hearing, the circuit court reversed the commission’s decision by final order entered on 

September 6, 2019. The focus of the circuit court’s order was the court’s independent 

review of the hotel security video. The court saw no indication from the video that Mr. 

Hester had “pumped his fist,” leaned forward, or otherwise actively resisted arrest. At most, 

the court observed what it termed “passive resistance” when Mr. Hester refused to put his 

hands behind his back.9 The court concluded that Sergeant Jarrell’s use of the lateral carotid

8 Sergeant Jarrell also had an unrelated employment issue pending before the 

commission regarding his requested promotion to lieutenant. The commission had 

previously ruled that he was eligible and should have been promoted to a vacant lieutenant 

position, but the matter was held in abeyance pending the disposition of this discharge case. 

Accordingly, in addition to ordering reinstatement and back pay, the commission’s March 

30, 2019, order directed that Sergeant Jarrell be advanced to the rank of lieutenant nunc 

pro tunc.

9 The circuit court also found that the commission had mischaracterized part of Mr. 

Hester’s testimony. When asked if he had “engage[d] in any physical altercation” with the 

sergeant, Mr. Hester had responded “well, yes.” However, the circuit court found that Mr. 

Hester was only referring to the physical actions taken by the officer; elsewhere in his 

testimony, Mr. Hester had denied resisting arrest.
10

restraint was excessive in light of the circumstances, and directed that the commission’s 

order overturning the termination be vacated. Sergeant Jarrell now appeals the circuit 

court’s order to this Court.

II. Standard of Review

The well-settled standard of review in police civil service commission 

appeals requires courts to give deference to the commission’s factual findings. “‘A final 

order of the Civil Service Commission based upon a finding of fact will not be reversed by 

this Court upon appeal unless it is clearly wrong.’ Syllabus, Billings v. Civil Service 

Commn., 154 W. Va. 688, 178 S.E.2d 801 (1971).” Syl. Pt. 1, Giannini v. Firemen’s Civil 

Serv. Comm’n of Huntington, 220 W. Va. 59, 640 S.E.2d 122 (2006). Similarly, “‘[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.’

Syl. Pt. 1, Appeal of Prezkop, 154 W. Va. 759, 179 S.E.2d 331 (1971).” Syl. Pt. 2, Giannini.

To the extent that “the issue on an appeal from the circuit court is clearly a question of law 

or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 

3, Alden v. Harpers Ferry Police Civ. Serv. Comm’n, 209 W. Va. 83, 543 S.E.2d 364 (2001) 

(internal quotation marks and citation omitted).

The same standards of review apply to correctional officer civil service 

commission appeals, which this Court explained in syllabus points one and two of In re 

Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996), as follows:
11

1. An adjudicative decision of the Correctional 

Officers’ Civil Service Commission should not be overturned 

by an appellate court unless it was clearly erroneous, arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with the law. Review under this standard is narrow 

and the reviewing court looks to the Civil Service 

Commission’s action to determine whether the record reveals 

that a substantial and rational basis exists for its decision.

2. An appellate court may reverse a decision of the 

Correctional Officers’ Civil Service Commission as clearly 

wrong or arbitrary or capricious only if the Commission used 

a misapplication of the law, entirely failed to consider an 

important aspect of the problem, offered an explanation that 

ran counter to the evidence before the Commission, or offered 

one that was so implausible that it could not be ascribed to a 

difference in view or the product of Commission expertise.

With this in mind, we turn to the parties’ arguments.

III. Discussion

Sergeant Jarrell argues that the commission’s reinstatement order was based 

upon substantial evidence and the circuit court erred by essentially conducting a de novo

review of the record and substituting its judgment for that of the commission. He argues 

that his use of force was objectively reasonable in light of the circumstances and potential 

risk of harm. The city responds that the circuit court correctly reversed the commission’s 

order because it was objectively unreasonable for the sergeant to have used a lateral carotid 

restraint on a “non-combative misdemeanor suspect.”

As the parties recognize, an “objectively reasonable” test applies when 

evaluating a claim of excessive force by a police officer:
12

An objective reasonableness standard is used to assess 

whether an officer’s actions are excessive, that is, “whether the 

officers’ actions are ‘objectively reasonable’ in light of the 

facts and circumstances confronting them, without regard to 

their underlying intent or motivation.” City of Saint Albans v. 

Botkins, 228 W. Va. 393, 399 n. 16, 719 S.E.2d 863, 869 n. 16 

(2011) (quoting Graham [v. Connor], 490 U.S. [386] at 397, 

109 S.Ct. 1865 [1989]).

The proper application of the objective reasonableness 

standard in an excessive force case “requires careful attention 

to the facts and circumstances of each particular case, 

including the severity of the crime at issue, whether the suspect 

poses an immediate threat to the safety of the officers or others, 

and whether he is actively resisting arrest or attempting to 

evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 

1865. The United States Supreme Court recently offered a 

more extensive list of things to consider when weighing the 

objective reasonableness of an officer’s actions, emphasizing 

that the list was not exclusive:

Considerations such as the following may bear 

on the reasonableness or unreasonableness of the 

force used: the relationship between the need for 

the use of force and the amount of force used; the 

extent of the plaintiff’s injury; any effort made 

by the officer to temper or to limit the amount of 

force; the severity of the security problem at 

issue; the threat reasonably perceived by the 

officer; and whether the plaintiff was actively 

resisting. We do not consider this list to be 

exclusive. We mention these factors only to 

illustrate the types of objective circumstances 

potentially relevant to a determination of 

excessive force.

Kingsley [v. Hendrickson, 576 U.S. 389, 397], 135 S.Ct. [2466] 

at 2473[(2015)] (citation omitted).

Maston v. Wagner, 236 W. Va. 488, 504, 781 S.E.2d 936, 952 (2015). The determination 

of the reasonableness of force “‘is not capable of precise definition or mechanical 
13

application.’ State v. Lacy, 196 W. Va. 104, 117, 468 S.E.2d 719, 732 (1996) (quoting 

Graham, 490 U.S. at 396, 109 S.Ct. at 1865).” Maston, 236 W. Va. at 504, 781 S.E.2d at 

952. “There are no per se rules[,]” rather, the factfinder “must still slosh [its] way through 

the factbound morass of ‘reasonableness.’” Id. (quoting Scott v. Harris, 550 U.S. 372, 383 

(2007)).

Critically, it was the commission’s job to “slosh” through the evidence in this 

case and to make findings of fact regarding the potential risk of harm that Sergeant Jarrell 

faced when arresting Mr. Hester. The commission held an evidentiary hearing and was in 

the best position to decide what happened, as well as to make determinations regarding 

witness credibility.

10 On appeal, “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.” 

Syl. Pt. 1, in part, In Re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). “[I]f the 

Commission’s findings are based on its assessment of the credibility of witnesses and if 

adequately explained and supported by the record, the findings will not be overturned 

10 See, e.g., Sims v. Miller, 227 W. Va. 395, 402, 709 S.E.2d 750, 757 (2011) (“the 

hearing examiner who observed the witness testimony is in the best position to make 

credibility judgments.”); Stephen L.H. v. Sherry L.H., 195 W. Va. 384, 395, 465 S.E.2d 

841, 852 (1995) (superceded by statute on other grounds) (“There are many critical aspects 

of an evidentiary hearing which cannot be reduced to writing and placed in a record, e.g., 

the demeanor of witnesses. These factors may affect the mind of a trier of fact in forming 

an opinion as to the weight of the evidence and the character and credibility of the 

witnesses.”).
14

unless they are hopelessly incredible or they flatly contradict either the law of nature or 

undisputed documentary evidence.” Queen, 196 W. Va. at 447, 473 S.E.2d at 488.

The disposition of this appeal turns on the facts of the case—there are no 

disputed issues of law or statutory interpretation—and the commission found Sergeant 

Jarrell’s recitation of the events to be credible. He was the only police officer present at the 

Comfort Inn and was in the process of arresting a man who had behaved aggressively 

toward casino security staff just a few minutes earlier. It is undisputed that Mr. Hester was 

publicly intoxicated, refused to obtain lodging for the night, and refused to put his hands 

behind his back. Sergeant Jarrell and the other officers had already tried to mitigate the 

situation by allowing Mr. Hester the opportunity to “sleep it off” in a hotel, but Mr. Hester 

refused this opportunity. Sergeant Jarrell testified that he saw Mr. Hester clench his fist 

and that Mr. Hester leaned forward causing the sergeant’s heels to start coming off the 

ground. The sergeant testified that Mr. Hester was a large, strong man, and the sergeant 

feared being thrown to the concrete. Given this testimony, the commission found that it 

was objectively reasonable for the officer to have employed a lateral carotid restraint.

Based upon its own independent review of the security video, the circuit 

court doubted the veracity of some of the sergeant’s testimony and concluded that the threat 

of harm was too low to use this type of force. However, it is impossible to see on the video 

whether Mr. Hester did or did not clench his fingers into a fist, and it is impossible to see 

on the video whether or not Sergeant Jarrell’s heels were lifted off of the ground. The 
15

camera was simply too far away, and the video’s resolution is too low, for this to be 

determined. Moreover, the video lacks any audio, so the court could not have heard the 

discussion between the two men in order to evaluate whether it was growing more heated, 

as Sergeant Jarrell testified. Although Mr. Hester denied that he moved during the arrest, 

he was intoxicated and admits that he cannot recall everything that happened. Critically, at 

the time of this arrest, there was no statute or department policy that expressly prohibited 

the use of the lateral carotid restraint. Changes to the Nitro Police Department’s policy 

manual and to state law went into effect after these events.11 Given the particular facts and 

circumstances of this case, we find that the commission’s findings were plausible in light 

of the record viewed in its entirety and were therefore not clearly wrong.

We recognize that the circuit court’s concern about the use of force during 

this arrest was not without basis. Indeed, had this Court been the finder of fact, we might 

have ruled differently than the commission. However, when acting as an appellate 

reviewer, neither the circuit court nor this Court can overturn findings of fact simply 

because we would have decided differently. See Syl. Pt. 1, Tiffany Marie S. Accordingly, 

we conclude that it was error for the circuit court to have reversed and vacated the 

11 See supra, n. 6.
16

commission’s order. We reverse the circuit court’s September 6, 2019, order and remand 

this case with directions for the circuit court to reinstate the commission’s order.

12

IV. Conclusion

For the foregoing reasons, the circuit court’s September 6, 2019, final order 

is reversed. The case is remanded to the circuit court for entry of an order reinstating the 

commission’s March 30, 2019, final order.

Reversed and Remanded with Directions.

12 In his second assignment of error, Sergeant Jarrell seems to be asking this Court 

to declare that the lateral carotid restraint technique is a safe and appropriate maneuver for 

police officers to use in situations requiring the use of less-than-deadly force. We decline 

to address this request. We merely conclude that under the particular facts of this case, and 

pursuant to the law and policy in effect at the time, the circuit court erred in substituting its 

judgment for that of the commission on the fact-based question of whether the use of force 

was objectively reasonable.