Veteran’s High School Assualt Case to Proceed

ST. LOUIS (CN) - The police chief of a small southwest Missouri town may be liable for allegedly assaulting a veteran at a high school football game, the 8th Circuit ruled.

Mark Atkinson, an honorably discharged military police officer, said he had traveled to Mountain View, Mo., from his home in Arkansas to watch his nephew Justin's first varsity football game on Aug. 31, 2007.

Since Justin had dislocated his shoulder, however, he remained on the sidelines during the game. As the family prepared to leave after the game, Atkinson allegedly saw another teenager tackle Justin and pin him to the ground.

As Justin's father, Joe Taylor, bent over the fighting adolescents and yelled, Atkinson said another man in plain clothes approached and pushed Taylor away.

Unaware that this man was Mountain View police chief Derek Sanders, and fearing that Taylor would strike back for getting pushed, Atkinson allegedly tried to separate them.

Atkinson said Sanders then accused him of assault and whipped out his cellphone. Allegedly hoping to resolve the situation peacefully, Atkinson said he took the phone and that Sanders in turn "bull rushed" him.

The force of the blow allegedly knocked Atkinson back between 10 and 15 feet into the side of a pickup truck, leading Atkinson to spend 24 days in the hospital with three broken ribs and a punctured lung, which ultimately collapsed three times.

Atkinson said he was put in handcuffs and only then learned that Sanders was the city's police chief. He testified that he would have given the man more respect if he knew of his position. The criminal charges against Atkinson were later dismissed.

Atkinson sued Mountain View - a town of 2,700 people 300 miles southeast of Kansas City - and Sanders, claiming excessive force and violations of his Fourth and 14h Amendment rights. A federal judge threw out the lawsuit, finding that Sanders did not violate Atkinson's rights and that the city was not liable.

A three-judge panel of the 8th Circuit partly reversed, finding that Sanders must face excessive force and state-law claims.

"We conclude the facts most favorable to Atkinson are sufficient to establish a seizure occurred the moment Sanders charged Atkinson," Chief Judge William Jay Riley wrote for the panel. "It is undisputed Sanders intentionally applied physical force against Atkinson, and the evidence most favorable to Atkinson shows far more than a slight physical touch-Sanders' 'bull rush' forced Atkinson ten to fifteen feet backward into the side of a truck, broke three ribs, punctuated one lung, and caused repeated pneumothorax. This violence was more than enough physical force to effect a seizure under the Fourth Amendment."

It is also conceivable that a reasonable officer in Sander's position "would not have thought it appropriate to charge Atkinson without first identifying himself as a law enforcement official and giving Atkinson a chance to return the cell phone peacefully," according to the ruling.

"By remaining anonymous, Sanders never gave Atkinson the opportunity to comply with a legitimate request by a law enforcement official," Riley wrote. "Objectively, when Sanders told Atkinson to return the cell phone, Sanders' request was not the demand of a police officer, but the plea of an 'irate' civilian."

Atkinson cannot pursue claims against Mountain View, however, because he cannot show that Sanders had final policymaking authority.

Judge Steven Colloton partly dissented, saying the fracas constituted a seizure but that Sanders still deserves qualified immunity.

"There is a significant problem with the court's analysis: It was not clearly established in 2007 that the Fourth Amendment required a police officer to identify himself as an officer before using force to carry out an arrest in public, even when self-identification might have obviated the need to use force," Colloton wrote. "Two years after the incident in this case, the Court of Appeals for the Seventh Circuit surveyed the law and determined that 'it is far from clearly established that the Fourth Amendment requires police officers to identify themselves in the course of carrying out an arrest in a public place.'"

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