BENTON – Madison County jurors found Brian Schell of Highland didn’t resist arrest and now jurors in U. S. district court must decide whether deputies should have tasered him twice.
Senior District Judge Phil Gilbert plans to start trial today on Schell’s excessive force claim against Eric Schellhardt, Marc Asbury, and the county.
Schell’s damage claim also involves the loss of his job as security chief at Graham State Prison in Hillsboro.
The prison reinstated him after jurors acquitted him, but he lost his seniority and retired last year.
On Sept. 10, 2018, Schell and his wife Sandra appeared in divorce court.
He called her that night and she allegedly feared he might kill himself, so she called 911.
Schellhardt and Asbury began searching for Schell, and sergeant Christopher Brindley told them Schell had experience in martial arts.
The deputies stopped him near U. S. 40 and Illinois Route 4.
Schellhardt wrote in a report on the incident that Schell approached their squad cars in an aggressive manner.
He wrote that Troy officer Justin Christ arrived to assist.
Schellhardt wrote that Asbury pulled Schell’s wrists behind him, Schell pulled his wrists from Asbury’s grasp, and Asbury held one wrist while Schell turned to face them.
“Due to Brian’s noncompliance and combatant training, I withdrew my department issued taser and discharged it at Brian’s chest,” Schellhardt wrote.
He wrote that Schell fell to the ground screaming and the taser completed its five second cycle.
He added that Asbury and Christ attempted to place Schell’s wrists into restraints.
“Brian continued resisting their efforts and again received a five second taser cycle,” Schellhardt wrote.
He wrote that Highland emergency personnel transported Schell to Anderson Hospital in Maryville.
Schellhardt wrote that he charged Schell with resisting an officer and he faxed a clear and present danger report to the state police firearm bureau.
State police revoked his firearm card, and corrections officials fired him because he allegedly resisted officers and he couldn’t perform his job without the card.
Schell demanded jury trial, and in October 2019 jurors acquitted him.
Brian Polinske sued Schellhardt, Asbury and Madison County in December 2019.
“Schellhardt and Asbury quickly escalated the stop into what is referred to as a felony stop, wherein firearms are drawn and pointed at the subject,” Polinske wrote.
He claimed Schell didn’t move toward them in an aggressive motion and didn’t yell, curse, or threaten them.
He added that Schell didn’t attempt to resist or pull away.
“At the time the taser was deployed on the plaintiff he was not committing any criminal violation of law,” Polinske wrote.
He claimed the deputies fabricated testimony at trial and video from Christ’s dashboard camera refuted their false claims.
Polinske claimed jurors returned a verdict in 30 minutes.
He sought to recover wages, benefits, and deferred compensation.
He sought compensation for anguish, distress, and deprivation of freedom.
He also sought to recover a $435 towing fee, a $300 fee for defense on the resisting charge, and medical bills from Anderson Hospital.
Polinske alleged malice on Schellhardt’s part and requested punitive damages.
He claimed Schellhardt told his shift commander in a recorded conversation that he needed to charge Schell with something because he tased him.
County counsel Heidi Eckert of Clayton, Missouri, answered that the conduct of the deputies didn’t rise to the level of a constitutional violation.
She claimed they acted in good faith and Schell’s claims were frivolous.
She claimed force was reasonable and necessary.
Eckert moved for summary judgment in 2021, and Gilbert denied it.
He found the decision to handcuff Schell was reasonable but using a taser to facilitate the handcuffing was a different story.
He found a reasonable jury could find Schellhardt used more force than necessary.
“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,” Gilbert wrote.
“The court has carefully and repeatedly reviewed the dash cam and finds it may be subject to different interpretations by reasonable jurors,” he added.
He found reasonable jurors could find an absence of probable cause for a criminal charge and could find Schellhardt instigated prosecution for an improper motive.
He also found reasonable jurors could find Schellhardt conveyed a fictitious version of events to the state’s attorney.
As trial approached, both sides advised Gilbert that they intended to call Schellhardt, Asbury, Christ, Brindley, and Sandra Schell as witnesses.
Polinske listed five other witnesses he intended to call.
Eckert listed 22 other witnesses she intended to call and 25 she might call.
Gilbert expects trial to take four or five days.