as a courtesy to the reader. They are not part of the opinion of the court.
113352P.pdf 02/08/2013 Mark Atkinson v. City of Mountain View U.S. Court of Appeals Case No: 11-3352 U.S. District Court for the Western District of Missouri - Springfield [PUBLISHED] [Riley, Author, with Smith and Colloton, Circuit Judges]
Civil case - Civil Rights. In action alleging City's police chief used excessive force against plaintiff, the district court erred in granting the chief's motion for summary judgment; viewing the case through the common law lens of California v. Hodari D., 499 U.S. 621 (1991), the court concludes the facts most favorable to plaintiff were sufficient to establish a seizure the moment the police chief charged into plaintiff, throwing him backwards into a truck, breaking three of his ribs and puncturing his lung; further, the facts showed that the force used was not objectively reasonable as a matter of law as a reasonable jury could find that the police chief, who failed to identify himself in the encounter, used excessive force and unreasonably caused plaintiff severe injury; the chief was not entitled to qualified immunity as the unlawfulness of the chief's "bull rush" would have been clear to a reasonable officer in his position; the City was entitled to summary judgment since the Chief was not a final policymaker for the City, there was no evidence of an unlawful city policy or deliberate indifference of the City to unconstitutional acts, and there was no evidence that the City had any reason to believe its training or supervision of the Chief was inadequate; order dismissing plaintiff's pendent state law claims vacated. Judge Colloton, concurring in part and dissenting in part. 113402P.pdf 02/08/2013 United States v. Francis McLain U.S. Court of Appeals Case No: 11-3402 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Melloy, Author, with Bye and Smith, Circuit Judges]
Criminal case - Sentencing. For the court's prior opinion in the case, see U.S. v. McLain, 646 F.3d 599 (8th Cir. 2011). On remand, the district court expressly consulted with counsel to confirm that neither party was seeking an upward or downward departure, and defendant could not argue on appeal that the court had erred in failing to consider the application of a departure; district court correctly applied a preponderance-of-the-evidence standard at sentencing; sentence was not substantively unreasonable. 121839P.pdf 02/08/2013 United States v. Douglas Tarnow U.S. Court of Appeals Case No: 12-1839 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
Criminal case - Criminal law. Evidence was sufficient to support conviction for aggravated sexual abuse; evidence of a similar assault was properly admitted when defendant placed his state of mind at issue by denying he knowingly caused the victim to engage in a sex act against her will and by force; admission of evidence of a similar assault against the defendant's ex-wife, while presenting a closer question, was harmless in light of the overwhelming evidence against defendant and the limiting instruction given to the jury; defendant was not entitled to a lesser- included offense instruction on simple assault. 122094P.pdf 02/08/2013 United States v. Harold Ford U.S. Court of Appeals Case No: 12-2094 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Melloy, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]
Criminal case - Sentencing. The sentencing record showed the district court considered the 3553(a) factors, including factors pointed out by defendant, and reached a decision which was not an abuse of its discretion; court sufficiently explained its sentencing decision; any error in grouping two counts for sentencing purposes was harmless as the court made clear that it would impose a life sentence even absent the grouping because of the danger defendant posed to the public. 122266U.pdf 02/08/2013 United States v. Lamar Francis U.S. Court of Appeals Case No: 12-2266 U.S. District Court for the Western District of Missouri - St. Joseph [UNPUBLISHED] [Per Curiam - Before Wollman, Gruender and Shepherd, Circuit Judges]
Criminal case - Sentencing. The district court thoroughly explained its reasons for imposing sentencing, including its reasons for departing or varying from the Guidelines range, and it did not commit any procedural error. 122783U.pdf 02/08/2013 Peter Allan, Sr. v. Dennis Benson U.S. Court of Appeals Case No: 12-2783 U.S. District Court for the District of Minnesota - Minneapolis [UNPUBLISHED] [Per Curiam - Before Bye, Arnold and Shepherd, Circuit Judges]
Civil case - Civil Rights. Denial of Rule 60(b) motion affirmed without comment.