Schell v. Schellhardt

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BRIAN J. SCHELL,

Plaintiff,

v. Case No. 19-cv-1326-JPG

ERIC SCHELLHARDT, MARC ASBURY, and

MADISON COUNTY,

Defendants.

MEMORANDUM AND ORDER

This matter comes before the Court on the motion for summary judgment filed by

municipal defendant Madison County and individual defendants Eric Schellhardt and Marc

Asbury, both of whom are deputies for the Madison County Sheriff’s Office (Doc. 28). Plaintiff

Brian J. Schell has responded to the motion (Doc. 31), and the defendants have replied to that

response (Doc. 32). This case arose after a traffic stop in which the defendants arrested Schell

for resisting a peace officer. A jury acquitted him of the charge, and he now seeks compensation

from the defendants for injuries he suffered connected to his arrest, which he claims was in

violation of his Fourth Amendment rights and state common law rights. The parties tell

substantially different stories about the incident, which the Court will leave to a jury to sort out.

I. Summary Judgment Standard

Summary judgment must be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels

Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The Court must construe the evidence in the

light most favorable to the nonmoving party and draw all reasonable inferences in favor of that

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520

F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. Because at this stage of the proceedings

the Court must accept Schell’s version of the relevant events as true, with one exception, the

Court cannot grant summary judgment for the defendants.

II. Facts

As noted above, the factual disputes about the incident in this case are numerous and

must be viewed in Schell’s favor. Nevertheless, a critical issue is what Schellhardt and Ashbury

knew at the time they stopped and arrested Schell; Schell lacks personal knowledge about much

of this. Keeping in mind the inferences that must be drawn and the requirement of a witness’s

personal knowledge, the evidence establishes the following relevant facts for purposes of this

motion.

A. Schell

At the time the events in this case began, Schell was employed by the Illinois Department

of Corrections (“IDOC”) in a position that required him to possess an Illinois Firearm Owners

Identification (“FOID”) card.

In the fall of 2018, Schell and his wife Sandra Schell were getting divorced. They had

their last court hearing prior to the final divorce decree on September 10, 2018, and Schell was

upset at Sandra after the hearing. That evening, Schell and Sandra had a contentious phone call

in which Schell said inappropriate things to Sandra, told her to tell their sons that he loved them,

and threw his cell phone in anger to the passenger side of his car. Schell was extremely sad and

anxious, but not suicidal.

That evening, Schell presented at the emergency department of Memorial Hospital in

Shiloh, Illinois, waited for about twenty minutes, and then left to go home and go to bed.

Personnel at Memorial Hospital reported to the Shiloh Police Department that Schell had visited

and then left, and that he had said he was suicidal. The incident at issue in this case occurred on

Schell’s drive home a little after 1:00 a.m. on September 11, 2018.

B. Schellhardt and Asbury

In the meantime, Sandra’s phone call with Schell led her to believe that Schell was in

distress, could harm himself, and might be saying his final good-bye to his children. She also

believed the noise when Schell threw his phone across the car might have been a gunshot.

Immediately after the call, Sandra called Schell’s mother, then 911 to request a wellness check to

make sure Schell did not need assistance. She told the 911 dispatcher that Schell had said he was

going to end his life, that she had heard a possible gunshot on the phone, and that Schell owned

guns. She described his car, his residence, and another piece of real property he owned.

Independent of Sandra’s call, a Highland police officer alerted the 911 dispatcher that

Schell had gone to Memorial Hospital but had left. The officer requested that an Illinois State

Police Emergency Radio Network (“ISPERN”) broadcast be put out to all local law enforcement

agencies to try to locate Schell because he was believed to be suicidal. The ISPERN broadcast

was issued and included information that Schell was suicidal, owned multiple guns, had an active

concealed carry license, worked for IDOC, was a well-trained martial artist, and had presented to

Memorial Hospital earlier that evening.

A little after 1:00 a.m. on September 11, 2018, Schellhardt, Asbury, and Madison County

Sheriff’s Patrol Sergeant Christopher Brindley were dispatched to perform a wellness check on

Schell. They were informed by the dispatcher and had learned from the ISPERN broadcast that

Schell was suicidal and might be in possession of a firearm. Brindley also told Schellhardt and

Asbury that he was familiar with Schell and that they should use caution because Schell had

professional mixed martial arts fighting experience and had been trained in firearms and IDOC

defensive tactics. Brindley also told the deputies that Schell had been “less than cooperative”

during a previous contact with the Sheriff’s Office when deputies reported to Schell’s home in

response to a domestic issue. The dispatcher also informed Schellhardt that Schell had just left

Memorial Hospital after reporting that he was suicidal, that he had sent a good-bye message via

Sandra to his children, and that Sandra believed she had heard a gunshot on the phone with

Schell. Based on this information, Schellhardt formed the impression that Schell was in

possession of a gun. Schellhardt spotted Schell’s car and reported the location to Asbury and

Brindley, who were driving separate cars. Asbury reported to that location and started following

Schellhardt’s car as it was following Schell. Schellhardt also requested assistance from the Troy

Police Department because he thought Schell was armed.

Schellhardt and Asbury both activated their emergency lights, but Schell did not stop, so

Schellhardt also activated his siren. Schellhardt was trying to pull Schell over not because he

had reason to believe Schell had committed a crime but solely to conduct a wellness check to

make sure Schell was not a danger to himself or others.

C. Encounter between Schell and the Defendants1

While he was driving home a little after 1:00 a.m. on September 11, 2018, Schell saw

Schellhardt’s unmarked squad car behind him. He saw the car’s police lights on but he did not

hear the siren. He wondered why he was being pulled over since he had not disobeyed any

traffic rules. It took Schell a minute to find a place to pull over safely because the road was

beside a ditch with not much of a shoulder. Schellhardt pulled his car behind Schell’s, but Schell

1 Schell and the defendants have significantly different recollections of these events, but, as it

must on summary judgment, the Court takes Schell’s version as true.

was unable to see the officer because of the bright lights from the police car. Another officer

pulled beside Schellhardt blocking the lane of oncoming traffic.

Once Schell and the deputies had stopped, Schellhardt gave orders over the squad car

speaker for Schell to turn off his engine, roll down his window, throw his keys out of the

window, and place his hands outside the window. Schell was playing his radio loudly so he did

not hear the command at first, but when he turned his radio down, he heard something muffled,

so he rolled down his window to hear what was being said. He placed his hands out the window

to block the bright lights from the squad cars reflected in his side mirror. Schell never heard

anyone instruct him to throw his car keys out.

Schellhardt then instructed Schell to get out of his vehicle. Schell stepped out so he was

standing in the open doorway of his car raising his hands in the air. He saw three officers

present. He did not begin to move away from the car; he just stood still and asked—without

using profanity—why he had been pulled over. Schellhardt told him to shut up and put his hands

in the air. Based on the officers’ stance, Schell believed they were pointing guns at him,

although he could not see the guns because of the bright lights.

When Schell had gotten out of his car, he had inadvertently failed to shift the gear into

“park,” and as he was standing outside the car, it begin to roll forward. Schellhardt yelled at him

to get back in and put it in “park.” While this exchange was occurring, Troy Police Officer

Justin Christ arrived and recorded the events on his squad car’s dashboard camera. Schell

lowered his hands, got back in the car, shifted it to “park,” and then stepped out with his hands

up again and remained in the open doorway of his car.

Asbury approached Schell with handcuffs, and Schellhardt instructed Schell to turn

around to be cuffed. Schell knew he was going to be cuffed and did not resist or jerk his arms

away from Asbury. He put his left hand on top of his car and his right hand behind his back for

the cuffs. Asbury placed Schell’s right hand in the cuffs and began to turn Schell around to cuff

his left hand. Schell had started to tell Asbury he had just had rotator cuff surgery on his left

shoulder when Schellhardt used a taser on him. Schell immediately fell to the ground face first

flat on his stomach with his uncuffed left hand underneath him. Asbury was concerned that

Schell was reaching for a firearm and was concerned for the deputies’ safety. Officers yelled at

Schell to place his left hand behind his back, but he was unable to move and had no control over

his arms from the debilitating effects of the taser. 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. After the second tasing, Asbury was

able to complete handcuffing him. When Schell asked Schellhardt why he has used the taser,

Schellhardt answered that Schell was a big guy.

D. Collateral Consequences

Later in the day of September 11, 2018, Schellhardt and the Sheriff of Madison County

recommended to the Illinois State Police that it revoke Schell’s FOID card because he posed a

clear and present danger to himself and others. In support of that recommendation, they attached

a copy of Schellhardt’s incident report which set forth his version of the relevant events. Those

differed substantially from Schell’s version as described above. The Illinois State Police revoked

Schell’s FOID card. Additionally, Schellhardt filed a criminal complaint against Schell, which

led to a charge of resisting a peace officer in violation of 720 ILCS 5/31-1. The charge was

based on Schell’s alleged jerking his hands away when Asbury was first trying to handcuff him

and on Schell’s failure to place his hands behind his back when ordered to do so while he was

lying on the ground after the first tasing. A jury acquitted him of the charge in October 2019.

In the meantime, as a consequence of the incident, IDOC placed Schell on administrative

leave with lower pay and then discharged him effective in June 2019. He was able to regain

employment with IDOC in April 2020 after grieving his discharge, being acquitted of the

criminal charge, and getting his FOID card back, although he lost his seniority and was unable to

return to his former position.

E. This Litigation

Schell filed this lawsuit in December 2019 asserting claims against Schellhardt for false

arrest for resisting a peace officer in violation of the Fourth Amendment (Count I), malicious

prosecution in violation of state law (Count II), and excessive force by handcuffing and using a

taser twice in violation of the Fourth Amendment (Count III); against Asbury for false arrest for

resisting a peace officer in violation of the Fourth Amendment (Count IV); and against Madison

County for indemnification for the conduct of Schellhardt and Asbury (Count V). Importantly,

Schell does not assert that the deputies did not have sufficient justification for the initial stop to

conduct a wellness check, so the Court focuses on what happened after Schellhardt pulled Schell

over and whether those events justified the level of force used, an arrest for resisting a peace

office, and prosecution on that charge.

The defendants urge the Court to grant summary judgment on a variety of grounds. First,

they argue that the initial stop was objectively reasonable in light of the community caretaking

doctrine. Second, the defendants argue that the force Schellhardt used was objectively

reasonable. Third, they argue that, in light of Schell’s conduct, they had probable cause to arrest

him for resisting a peace officer and did not maliciously prosecute him by instigating the charge

against him. Finally, they contend that they are entitled to qualified immunity. For its part,

Madison County argues that because Schellhardt and Asbury are not liable, they cannot be liable

for to indemnify for the deputies’ conduct.

III. Analysis

A. Initial Stop

The defendants seek summary judgment on a claim that the initial stop of Schell to

conduct a wellness check was not justified. A vehicle stop, even simply to conduct a wellness

check, is a seizure. The law is clear that “stopping an automobile and detaining its occupants

constitute a ‘seizure’ within the meaning of [the Fourth and Fourteenth] Amendments, even

though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v.

Prouse, 440 U.S. 648, 653 (1979); Brendlin v. California, 551 U.S. 249, 254 (2007) (recognizing

that a seizure occurs whenever law enforcement intentionally use physical force or a show of

authority to restrain an individual’s freedom of movement). However, as noted above, Schell is

not challenging the stop itself, so this argument addresses a claim that Schell has not made.

Instead, Schell challenges the manner of restricting his personal physical movement after his

vehicle was initially stopped and his arrest for resisting a peace officer.

B. Excessive Force (Count III)

Schellhardt argues that his participation in the handcuffing of Schell and the use of a taser

to facilitate that handcuffing was objectively reasonable in light of Schell’s refusal to obey

commands, including the command to place his hands behind his back to be cuffed.

The Fourth Amendment forbids seizures, including arrests, investigatory stops, or other

seizures of a free citizen, that are unreasonable because they involve the use of excessive force.

See Graham v. Connor, 490 U.S. 386, 394-95 (1989); Tennessee v. Garner, 471 U.S. 1, 7-8

(1985). To determine whether unreasonable force was used, the Court must balance the level of

law enforcement’s “intrusion on the individual’s Fourth Amendment interests against its

promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U.S. 648, 654 (1979).

The Court must give “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. The test is an objective reasonableness test; that is,

the situation should be evaluated from the point of view of a reasonable officer on the scene

rather than in 20/20 hindsight. Id. The officer’s “use of force is unconstitutional if, judging from

the totality of the circumstances at the time of the [seizure], the officer used greater force than

was reasonably necessary to make the [seizure].” Chelios v. Heavener, 520 F.3d 678, 689 (7th

Cir. 2008) (internal quotations omitted).

The Court first turns to the decision to restrain Schell using handcuffs. In the context of

executing a valid search warrant, “detention represents only an incremental intrusion on personal

liberty” while the search is conducted. Michigan v. Summers, 452 U.S. 692, 703 (1981); see

Muehler v. Mena, 544 U.S. 93, 98-100 (2005). Temporary detention also prevents flight,

minimizes harm to law enforcement officers, and facilitates an orderly search. Summers, 452 at

702-03; Mena, 544 U.S. at 98. The Court believes the balance is similar for traffic stops to

conduct wellness checks on individuals reasonably believed to be armed and suicidal.

Here, it is true that Schell was not suspected of committing a crime, but a reasonable

officer in Schellhardt’s position would have believed that Schell posed an immediate threat to

himself and the officers on the scene. Information from the dispatcher and from Brindley

painted a picture of a suicidal, armed man who was skilled in physical combat. Whether the

information was true was irrelevant, for it was what Schellhardt had been informed and

reasonably believed was true. A reasonable officer would believe that, in the circumstances

known to Schellhardt, it was necessary to take the simple precaution of placing Schell in

handcuffs—an “incremental intrusion on personal liberty”—while law enforcement officers

checked for nearby weapons and assessed Schell’s dangerousness and need for medical attention.

Thus, the decision to seize Schell by placing him in handcuffs was not, by itself, unreasonable

and did not constitute excessive force.

The use of the taser to facilitate the handcuffing is a different story. Using a taser to

disable an individual presents a much greater intrusion on personal liberty than simply

handcuffing the individual. Additionally, the parties have vastly different views about the

handcuffing process. Taking Schell’s version as true, he was not aggressive, was compliant with

law enforcement orders to submit to handcuffing, was resigned to being handcuffed, and never

showed any physical resistance to 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. Therefore, the Court cannot grant summary judgment in Schellhardt’s favor

on this facet of Count III.

C. Probable Cause (Counts I and IV)

Schellhardt and Asbury maintain that they had probable cause to arrest Schell for

resisting a peace officer. “Probable cause is an absolute bar to a claim of false arrest asserted

under the Fourth Amendment and section 1983.” Muhammad v. Pearson, 900 F.3d 898, 907

(7th Cir. 2018) (internal quotations omitted). Probable cause is determined by considering the

totality of the circumstances:

[A] law enforcement officer has probable cause to make an arrest when the facts

and circumstances within the officer’s knowledge and of which the officer has

reasonably trustworthy information are sufficient to warrant a prudent person in

believing the suspect has committed or is committing an offense. . . . So long as

the totality of the circumstances, viewed in a common sense manner, reveals a

probability or substantial chance of criminal activity on the suspect’s part,

probable cause exists.

United States v. Sawyer, 224 F.3d 675, 678-79 (7th Cir. 2000) (internal citations omitted);

accord Muhammad, 900 F.3d at 908. “Whether probable cause exists depends upon the

reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the

arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

The defendants assert they had probable cause to arrest Schell for resisting a peace officer

in violation of Illinois law, 720 ILCS 5/31-1. That statute makes it a misdemeanor to

“knowingly resist[] or obstruct[] the performance by one known to the person to be a peace

officer . . . of any authorized act within his or her official capacity.” The resistance must be a

physical act, not just verbal resistance or argument with an officer. People v. McCoy, 881

N.E.2d 621, 630 (Ill. App. Ct. 2008).

No doubt, if everything had happened the way the defendants describe the roadside

encounter with Schell, they would likely have had probable cause to arrest him for physically

resisting a peace officer. However, on summary judgment, the Court relies on Schell’s version

of the facts—including that he was respectful, obedient, and not at all resistant physically or

verbally—not the defendants’. And 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.2 Therefore,

the defendants are not entitled to summary judgment on Counts I and IV.

D. Malicious Prosecution (Count II)

Schell charges that Schellhardt pursued the misdemeanor charge against him by drafting

a false police report, by filing a false criminal complaint, and by otherwise providing false

2 The Court has carefully and repeatedly reviewed the dash cam video and finds it may be subject

to different interpretations by reasonable jurors.

information to, and concealing exculpatory information from, the State’s Attorney, the person

who decided to bring the charge. Schell asserts this amounts to malicious prosecution under

Illinois law. The elements of the tort of malicious prosecution under Illinois law are:

(1) the commencement or continuance of an original criminal or civil judicial

proceeding by the defendant; (2) the termination of the proceeding in favor of the

plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence

of malice; and (5) damages resulting to the plaintiff.

Beaman v. Freesmeyer, 131 N.E.3d 488, 495 (Ill. 2019) (internal citations and quotations

omitted); accord Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). Schellhardt asks for

summary judgment on the grounds that Schell cannot prove the third and fourth elements—lack

of probable cause and presence of malice.

As with Count I, Schellhardt argues that he had probable cause to arrest Schell.

However, as discussed above, accepting Schell’s version of the events, a reasonable jury could

find the absence of probable cause to pursue the criminal charge of resisting a peace officer.

And because accepting Schell’s version of events as true would necessarily mean that

Schellhardt had fabricated his version of events—this is hardly a case where Schell and

Schellhardt merely perceived or remember things differently—the Court believes a reasonable

jury could find Schellhardt instigated Schell’s prosecution for an improper motive, say, to justify

a questionable use of force on a totally cooperative individual. This would satisfy the fourth

element of malice, which can be inferred from prosecution without probable cause. Beaman v.

Freesmeyer, No. 125617, 2021 IL 125617, ¶ 141, 2021 WL 3204481, at *19 (Ill. July 29, 2021),

reh'g denied (Ill. Sept. 27, 2021).

Simply put, a reasonable jury could find Schellhardt committed malicious prosecution

when he conveyed a fictitious version of events to the State’s Attorney, which led to the charge

against Schell. For this reason, Schellhardt is not entitled to summary judgment on Count II.

E. Qualified Immunity

Finally, the Court addresses the defense of qualified immunity to Schell’s § 1983 claims.

Qualified immunity is an affirmative defense that shields government officials from liability for

civil damages where their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); Pearson v. Callahan, 555 U.S. 223, 231 (2009). It protects an official from suit “when

[he] makes a decision that, even if constitutionally deficient, reasonably misapprehends the law

governing the circumstances [he] confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

The qualified immunity test has two prongs: (1) whether the facts shown, taken in the light most

favorable to the plaintiff, demonstrate that the officer’s conduct violated a constitutional right,

and (2) whether the right at issue was clearly established at the time of the alleged misconduct.

Pearson, 555 U.S. at 232; see Brosseau, 543 U.S. at 197; Wilson v. Layne, 526 U.S. 603, 609

(1999).

If the plaintiff can prove a constitutional violation, which the Court has held Schell may

be able to do, the Court must determine whether the right was sufficiently clear at the time of the

violation that a reasonable official would have understood that what he was doing violated that

right. Anderson v. Creighton, 483 U.S. 635, 640 (1987); see Brosseau, 543 U.S. at 199; Wilson,

526 U.S. at 609. The inquiry must be made focusing on the specific context of the case, not at a

high level of generality. White v. Pauly, 137 S. Ct. 548, 552 (2017). “[T]he clearly established

law must be ‘particularized’ to the facts of the case. Otherwise, ‘[p]laintiffs would be able to

convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.’” Id. at 552 (quoting Anderson, 483 U.S. at 639,

640; internal citations omitted).

The plaintiff bears the burden of demonstrating that a constitutional right is clearly

established. Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir. 2000). To determine whether the

right was clearly established, this Court looks to Supreme Court and Seventh Circuit Court of

Appeals decisions, then, if there is no controlling precedent, to all relevant caselaw to determine

if there is a clear trend suggesting recognition of the right is inevitable. Gill, 850 F.3d 335, 341

(7th Cir. 2017). “Qualified immunity is dissolved, however, if a plaintiff points to a clearly

analogous case establishing a right to be free from the specific conduct at issue or when the

conduct is so egregious that no reasonable person could have believed that it would not violate

clearly established rights.” Smith v. City of Chi., 242 F.3d 737, 742 (7th Cir. 2001).

Were this a more nuanced case, the Court could readily say that Schell has not carried his

burden of proving clearly established law; he does not cite any Supreme Court or Seventh Circuit

cases with a similar fact pattern. However, this is not a nuanced case. Schell testified he was

cooperative and compliant, and the relevant, although generalized, false arrest and excessive

force principles of law were abundantly clear on September 11, 2018. No reasonable officer

could possibly believe the use of a taser on a cooperative individual was necessary, and no

reasonable officer could believe that the cooperative individual had unlawfully resisted arrest.

Therefore, the defendants are not entitled to qualified immunity.

F. Madison County (Count V)

Madison County’s argument in support of summary judgment is premised on judgment

being granted for Schellhardt and Asbury. However, since the Court has not disposed of the

claims against the deputies, there is no basis for granting summary judgment for Madison

County.

IV. Conclusion

For the foregoing reasons, the Court:

• GRANTS in part and DENIES in part the defendants’ motion for summary judgment

(Doc. 28) as follows:

o The motion is GRANTED on Schell’s excessive force claim (Count III) to the

extent it relies on the defendants’ decision to restrain Schell in handcuffs;

o The motion is DENIED in all other respects; and

• DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.

DATED: November 29, 2021

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE