BENTON – Madison County resident Brian Schell deserves trial on claims against sheriff’s deputies Eric Schellhardt and Marc Asbury, Senior U.S. District Judge Phil Gilbert ruled on Nov. 29.
Schell alleges excessive force and malicious prosecution against Schellhardt and false arrest against both deputies.
“The parties tell substantially different stories about the incident, which the court will leave to a jury to sort out,” Gilbert wrote.
He wrote that he carefully and repeatedly reviewed dashboard camera video and found it might be subject to different interpretations.
He set trial to start Jan. 31.
In 2018, Schell worked for state corrections in a position that required him to have a firearm owner’s card.
On Sept. 10, 2018, he and wife Sandra attended a hearing on their divorce.
He called her that evening and asked her to tell his sons he loved them.
He threw his cell phone and it struck a hard surface.
It sounded like a shot to Sandra so she called his mother and 911.
Schell drove to Memorial Hospital in Shiloh, waited a while in the emergency room, and went home.
Hospital personnel told a Highland officer that Schell had come and gone, and the officer arranged an emergency broadcast to local law enforcement.
The broadcast stated he was suicidal, owned guns, had a concealed carry license, worked for corrections, and was a martial artist.
Sheriff’s sergeant Christopher Brindley sent Schellhardt and Asbury to check on Schell, stating he trained in martial arts, firearms, and defensive tactics.
He told them deputies responded to a previous domestic issue at Schell’s home and he was less than cooperative.
Schellhardt spotted Schell’s car and followed it, and Asbury followed Schellhardt.
Schellhardt thought Schell was armed, so he asked Troy for assistance.
Schellhardt and Asbury activated their lights and Schellhardt activated his siren.
Schell stopped and Schellhardt stopped behind him.
Asbury stopped beside Schellhardt, to block oncoming traffic.
According to Schell’s allegations, which Gilbert took as true for purposes of his decision, Schell asked why they pulled him over.
“Schellhardt told him to shut up and put his hands in the air,” Gilbert wrote.
Troy officer Justin Christ arrived with his camera running.
Gilbert wrote that Schell knew Asbury would cuff him and he didn’t resist or jerk his arms away.
Asbury cuffed his right hand and started turning him to cuff the left.
Schell said he had rotator cuff surgery, and Schellhardt zapped him with a taser.
“Schell immediately fell to the ground face first flat on his stomach with his uncuffed left hand underneath him,” Gilbert wrote.
Schellhardt and Asbury yelled at him to place his left hand behind his back.
“As soon as Schell started regaining his abilities, and very soon after the first tasing, Schellhardt tased him a second time because he had not yet placed his left hand behind his back for cuffing,” Gilbert wrote.
Asbury finished the job.
Schellhardt filed a criminal complaint that led to a charge of resisting an officer.
State corrections discharged Schell and state police revoked his firearm card.
A jury acquitted him in October 2019.
He sued the deputies in December 2019, alleging violation of his rights at the scene and malicious prosecution afterward.
He claimed Schellhardt drafted a false report and a false complaint.
He sought indemnification from Madison County.
The deputies and the county moved for summary judgment but they didn’t get it.
Gilbert found the decision to place Schell in handcuffs was reasonable but the taser was a different story.
“Using a taser to disable an individual presents a much greater intrusion on personal liberty than simply handcuffing the individual,” Gilbert wrote.
He wrote that taking Schell’s version as true, he was not aggressive, complied with orders, and didn’t resist the cuffing.
“In such circumstances, a reasonable jury could find that Schellhardt’s use of a taser even once was more force than was necessary to restrain Schell in handcuffs,” he wrote.
“Schell’s version of the events is not so blatantly belied by the video from Christ’s dash cam that no reasonable jury could believe his version.”
He wrote that a reasonable jury could find that Schellhardt instigated prosecution to justify questionable use of force.
He wrote that a reasonable jury could find Schellhardt committed malicious prosecution “when he conveyed a fictitious version of events to the state’s attorney.”
He wrote that corrections hired Schell last year after a successful grievance, but he didn’t get his position back and he lost seniority.
Brian Polinske of Edwardsville represents Schell.
Heidi Eckert of Clayton, Mo. represents the deputies and the county.