*1 Smith Guider v SMITH GUIDER (Calendar 5, 80577, 80578, Argued April No. 80804. Docket Nos. 1). post, 24, 1988. Rehearing 1212. denied Decided October Wayne brought in the Circuit an action Terrance L. Guider officer, City Smith, police of and against a Detroit Ronald Detroit, civil alleging his federal the defendants violated that him in the Smith shot rights when Officer under 42 USC apparent attempting of an to flee scene neck he was while deadly breaking entering, force to the use and and unnecessary under the cir- apprehend was excessive and him answer, raised the defense the defendants cumstances. In their judgment summary immunity, qualified move for but did not court, plaintiffs proofs, the prior the close of the to trial. At Teranes, J., city granted verdict for the a directed Paul S. gross ground to show evidence was insufficient part city negligence on the or deliberate indifference deadly training supervising use of its officers force, a directed verdict. Smith’s motion for but denied Officer jury trial, judgment Following on a verdict entered the court finding compensatory damages plaintiff, awarding and for the qualified to the defense Smith was not entitled that Officer Appeals, (Michael immunity. Simon, J. J. C.W. The Court J., Kelly, P.J., participating), concurring) af- (Bronson, 79507). (Docket appeals. The defendant firmed Nos. Riley Boyle, joined by opinion by Chief Justice In an Justice Griffin, Brickley, Cavanagh, and and Justices Court held: judgment against reversed should not be immunity. qualified The trial of the defense of on the basis correctly that the defendant was not entitled determined court qualified immunity, the trial court’s to an instruction on References 16-18,268, 2d, Rights 269. Am Jur §§ Civil States, Territories, seq. 2d, Dependencies 99 et §§ Am Jur personal liability Immunity public in civil from officials brought by public employees 63 ALR under 42 USC 1983. actions Fed 744. prosecutor from civil suit for is entitled to absolute When post-Imbler damages cases. 67 ALR Fed under 42 USC 1983: Mich responsive theory instructions were to the defendant’s actual addition, preserve the case. In defendant failed the trial court’s denial of his motion for a directed verdict on immunity grounds, contending that the use of force was not *2 qualified immunity required judg- excessive rather than that for him ment as a matter of law. addressing qualified immunity In1. the issue of in an action brought objec- under USC trial courts must consider alleged tive factors: whether the conduct constitu- establishes a tional violation and whether the constitutional standard was clearly question. undisputed established at the time in If the clearly facts show that the defendant’s conduct violated no standards, qualified immunity applies established constitutional however, established, clearly as a matter of law. If the law was that, proved defense will fail unless it can be circumstances, extraordinary govern- because of the defendant ment official neither knew nor should have known the relevant legal inquiry person standard. The is whether a in reasonable position the defendant’s could have believed that the actions Except which violated the were consistent with the law. circumstances, extraordinary knowledge actual is irrelevant to the determination whether the defendant is entitled to a qualified immunity defense. Ordinarily, appropri- the issue of is not jury. ate for the The threshold test of violation is If one law for the court to decide. there is a i.e., fact, dispute, genuine involving factual issue of material turns, an issue on which so that it be deter- cannot mined before trial what the defendants’ acts were or whether existed, exceptional proceed circumstances the case should However, qualified trial. entitlement to the defense of immu- nity is not lost because of the defendant’s failure to move for disposition. summary properly pleaded may to, prior during, raised or after trial. case, 3. In defendant did not move for a directed qualified immunity grounds, arguing verdict on instead that the that, therefore, force used no was excessive and there was violation, waiving appeal. thus the claim on ground correctly trial court denied the motion disputed regarding probable factual issues cause and the rea- sonableness of the force used the defendant had been raised presented. jury the evidence The instruction of the on the faith, question good whether the defendant acted in even if inappropriate, plaintiff, harmed the rather than defendant. Justice Levin concurred in the resolution of the issues of the v Smith Guider qualified immunity, of his the denial waiver of defendant’s verdict, challenge jury and his motion for a directed instructions. result, concurring Archer, stated that in the Justice was not entitled to the defense Any lost to the defense was under 42 USC 1983. entitlement summary disposition and the case move for when he failed to preserve proceeded immu- to trial. To the defense nity, plead in the it as an affirmative defense a defendant must summary disposition responsive pleading first and move prior to trial.
Affirmed.
(1985)
App 92;
affirmed.
Jaffe, Snider, Brian Raitt & P.C. G. Shannon), Spearman plain- and Theodore for the tiff.
Cooper, (by Zausmer, Fink & P.C. Daniel S. Vacketta), Cooper, Fink, H. B. David and Barbara for the defendants. granted leave to consider J. This Court Boyle, against judgment
the issue whether the vidual defendant should be reversed on the basis of the doctrine of USC 1983. the indi- qualified immunity 1) appeal requires This the Court to address the the 2) qualified immunity, substantive law of procedural problems framing which arise resolving claims of in civil actions against police against judgment officers. We hold that not reversed on defendant should qualified immunity. the basis the defense correctly The trial court determined defendant was not entitled to a jury The trial court’s instructions instruction. responsive theory were the case. to the defendant’s actual pre- addition, the defendant failed to motion for serve the trial court’s denial of the qualified immunity grounds, directed verdict on having contended that use of force was excessive, rather than that required judgment for the defendant as a matter of law. judgment affirmed the
The Court against the result the defendant. While we affirm Appeals, so on reached the Court of we do *4 grounds reject analysis the of the different and Appeals. Court of
i police was a Detroit Defendant Ronald Smith v Smith Guider Opinion of the Court assigned unit of to a four-member cruiser officer April defen- Thirteenth Precinct. On the police responded unit to a cruiser dant Smith’s radio two drove into Hague, "priority to "1145 run: one” call males, The cruiser b & the rear door.” Black e, Hague. alley adjacent to 1125 the steps coming men down the saw two The officers personal property. carrying items of the house plaintiff, Jeffrey Neely and the men were The two Terrance plaintiff Neely the Guider. When they dropped police they car, the items saw began through carrying to run back were yard. jumped out of the car and The defendant po- stop, yelling, "Halt, the two men to ordered Sparrow, car, the driver of lice.” Officer police,” got "Stop, yelled, out of the car. as he also got yard, he saw to the back As the defendant plaintiff running straight Neely and the ahead pursued going the fence. The defendant over again yelled, plaintiff front of the house and to the fleeing pursue police.” "Halt, He continued to freeway, running plaintiff, toward who was police.” yelled, time, "Halt, The for the third and plaintiff possibilities concluding kept running and, all that capture exhausted, defendant were plaintiff. The one shot at Smith then fired plaintiff of the neck the back struck bullet causing injuries. serious testify he did not believed
The defendant plaintiff plaintiff only armed, the would have was freeway. escaped if he had reached plaintiff that, the time claimed Neely’s thought carrying be- incident, he he was Neely longings to share claimed from a house that arraigned plaintiff girl friend. with youthful eventually placed May in a 16, 1978, and program. diversion offender August a com- 11, 1980, the filed On against plaint Wayne Detroit Circuit *5 Mich Opinion of the Court police plaintiff alleged officer Ronald Smith.1 The rights that the defendant violated his federal civil sought damages pursuant and to 42 USC 1983. plaintiff The contended that defendant Smith’s use unnecessary of force was excessive and to make plaintiff the arrest of the and thus amounted to a deprivation plaintiffs rights to process, equal protection, due and freedom from punishment. cruel and unusual response complaint, to the the defendant immunity. jury raised the defense of A trial com- September 12, menced on 1983. At the close of plaintiffs proofs, the defendant moved for a di- grounds rected verdict on the that no constitu- alternatively, and, occurred that tional violation qualified immunity. he was entitled to The trial reasoning motion, court denied the defendant’s disputed that issues of fact remained whether defendant violated the constitutional plaintiff.2 request jury The defendant’s instruc- regarding good-faith tion defense was also de- jury nied. The returned a verdict in favor of the plaintiff compensatory $472,000 in and awarded damages. Appeals reasoning affirmed,3 also jury
that
instruction
the defendant was not entitled to a
regarding qualified immunity.
How-
ever, the Court of
reasoned that
the de-
original complaint
City
included the
of Detroit as a defendant
1)
city’s policy
on the
deadly
to
theories
the defendant
allow
use
apprehend
entering suspect
fleeing, breaking
to
force
2)
unconstitutional,
city
was
grossly negligent
the defendant
was reckless or
training
the defendant
officer. At the close
plaintiffs
granted
proofs,
city’s
motion for a
trial court
directed verdict.
2The court decided that fact issues had been raised whether
there
probable
cause that the defendant would believe the
was
fleeing
a felon who was
and whether the force used
the defendant
necessary
was reasonable and
under the circumstances.
Smith,
App 92;
Guider v
157 Mich
ii proper regarding qualified test claims of or "good immunity faith” under 42 USC 1983 actions 800; be found in 457 can Harlow v US Fitzgerald,5 (1982): 1717; Harlow, 102 L S Ct 73 Ed 2d 396 the United States Court altered the sub- stantive law of and established procedural goal implementing for the defense. Note, Quick termination of insubstantial civil rights procedural immunity and Qualiñed claims: (1985). fairness, 38 Vand LR 1547 The Court government performing official held that a discre- tionary immunity functions is entitled to from damages [his] "insofar as conduct does not violate clearly rights statutory or constitutional person
of which a reasonable would have supra, p Harlow, known.” Harlow, it To understand the effect of is neces- development qualified sary to examine the immunity doctrine in civil of the
rights litigation.
Prior
Ray,
547;
386 US
87 S
under Pierson v
(1967), police
1213;
L
288
were
Ct
entitled to raise
18 Ed 2d
officers
good
an affirmative defense of
Smith,
faith and
immunity
defense to
tional
liability,
equivalent
This
arrests.
purposes
claims,
§ 1983
recognized
previously
defenses
of those
law.
at trial under common
could be raised
which
pp
895D,
Torts, 2d,
411-420.
§
2See Restatement
(5th ed),
pp
1056-
Keeton,
§
Torts
Prosser &
assumed a violation
1060. The defense thus
plaintiffs
was excusable.
which
Rhodes,
232; 94 S Ct
416 US
In Scheuer v
(1974),
developed
Court further
of reasonable *7 public taken, formed official in the action light question in of all in the time incident pp Thus, Id., 247-248. Court circumstances. improper because that dismissal was concluded lower courts erroneously accepted fact as a had "[tjhere good executive, was no and faith of such a from which the courts evidence before properly finding good faith could be p Id., . . . .” made Strickland, 308; 95 S Ct 420 US v Wood (1975), 421 US den
43 L Ed 2d reh immunity (1975), issue dealt with the the Court again rejecting jury trial, of a in the context immunity in of absolute claims the defendant’s favor of the whether immunity. that The Court held deciding appropriate to use standard qualified im- entitled to an official was objec- subjective encompasses munity both Guider v Smith Opinion of the Court Id., p tive factors. 321. The Court concluded that an officer would not be entitled to if reasonably
he the action or knew should have known that sphere took he within his of official responsibility would violate the constitutional rights affected, of the student or if he took the action with the malicious intention to cause a deprivation to rights of constitutional injury or other [Id., p the student. 322.] rejected While the Court absolute Pierson, from for liability executive officials in Scheuer, Wood, supra, the Court also sug- suits, gested damage that alleging constitutional trial, violations not proceed need but could be terminated motion on the basis of qualified Economou, Butz v immunity. 478, 508; 438 US (1978). Thus, Ct S L Ed 2d 895 the Court emphasized "firm application the Federal Rules of Civil Procedure will ensure that federal officials are not frivolous lawsuits.” Id. harassed
However, despite admonition, in actual practice subjective good prevented faith early dis- position litigation because trial courts fre- quently deemed the subjective component of the question defense a of fact that required resolution Qualiñed immunity Balcerzak, aby gov- jury. ernment problem officials: The of unconstitutional purpose civil litigation, 95 Yale L J Fifteen years after Pierson v Ray, the United States the Wood recognized test for had disruptive become government of effective due to "the costs of trial broad-reaching discovery.” burdens of *8 supra, pp 817-818. The Court’s Harlow in response limit "subjective was the narrowly element of defense,” id., good-faith the p and to redefine Mich Opinion of the Court longer No could the defense. defendant acted that the
defeated a bare claim injury. cause Un- the intention to with malicious government Harlow, officials are liable der "clearly damages only if their conduct violates statutory or constitutional established” person If known. a would have which reasonable "clearly governing was not law their actions the protected established,” the officers are from liabil- ity. ques- addressing
Thus, in the trial must in courts tion as redefined 1) alleged estab- the conduct consider: whether 2) violation, and whether lishes established the constitutional standard question. p Id., in 818. If undis- at the time puted conduct the defendant’s facts show that no constitutional stan- violated dards, qualified immunity applies as matter of clearly established, However, if the law was law. ordinarily fail would unless extraordinary circum- oficial demonstrates prove stances, nor should can he neither knew legal standard, in which known the relevant have p By Id., the defense should be sustained. case initially defining limits of essentially proposed objective terms, the Harlow Court in govern- disruption
to "avoid excessive many permit insub- the resolution ment and p summary judgment.” Id., 818.6 claims stantial supra, Creighton, n 5 483 US As illustrated Anderson susceptible liability meaning issue more of Harlow was make viewing disposition. inquiry summary would be whether The relevant plaintiffs, light a reasonable most favorable to the the facts position conduct to could have believed his in the defendant’s official considering it as existed when the the state of law be lawful challenged answer would actions. An affirmative defendant took his claims, negative to dismissal but entitle answer would ant could establish disposition summary if the defend foreclose through discovery he the actions took *9 569 Guider v Smith op Opinion the Court appropriate standard, this Under new in circum- stances, the defense of func- immunity as an tions from suit as an well as liability. affirmative defense to ultimate iii Appeals The Court of determined that the defen jury regard dant was not entitled to a instruction ing defense under 42 USC ****7 upon 1983.*This decision was based the erroneous subjective belief that a defendant’s belief in the legality of his actions the time of the incident is necessary support good-faith defense. The Appeals assuming Court of further erred that ap the issue was issue propriate jury for a determination. Appeals
The Court of focused on the facts that testimony [of "the the defendant] not did establish shooting that the defendant believed that lawful,” was and that "there was no testimony to show it was reasonable for him to believe this.” On basis the Court concluded good-faith that the "defendant was not entitled to App instruction.” 157 Mich 101. That subjective focus is and incorrect supra.8 Assuming that there was a violation of alleged were than different those and that his actions were reasonable. Stevens, Brennan, creating Justices accused Court of accountability Marshall "stunningly a rule that restricts the constitutional id., police/’ Court, Supreme Leading 483 647. The US 1986 term: (1987). cases, 101 Harv LR 224 7 preserve The defendant did not the directed verdict motion qualified immunity grounds. only argument verdict directed Court defendant ever made the uncontro verted facts showed no constitutional violation occurred. had 8 assume, arguendo, applicable We that Harlow is in this cause apply action. The United did States Court the Harlow objective reasonableness standard to 42 officers under USC Malley Briggs, 1983 until US 106 S Ct L Ed 2d Mich right, the next inquiry is whether a under the Harlow standard position man in the could reasonable defendant’s with the his were consistent have believed actions law. subjective pub recognize of a faith
We yet may § lic official in a claim under *10 controlling the in the situation in which relevant of mind law makes official’s state substantive an plaintiff’s constitu an essential element of Dist Metro tional claim. See Martin v of Columbia politan Dep't, App DC 812 F2d Police US challenged of a act lawfulness upon dependent may the actor’s motive or be purpose intent, and, therefore, for which analyzed. v act undertaken must Gutierrez was be Municipal Dist, 838 Court of Southeast Judicial (CA 1988).9 1031, cases, intent, 9, In F2d these purposeful discrimination, is an as racial such plaintiff’s of the cause of action. Turner element 1988). (CA 4, Dammon, 440, 445, n 3 848 F2d Here, however, the defendant’s motivation or of the chal- is not an essential element intent lenged It is to this conduct. therefore irrelevant addition, plaintiffs opportunity to should afforded an over In be proof an asserted defense of with offers of come unconstitutional motive. As the Appeals Court of United States (CA recognized Haydon, in 853 F2d Sixth Circuit Poe v 1988), impermissible inquire to whether under Harlow it is actually knew his conduct unlawful. defendant official was instance, however, the Court noted that "the relevance motive especially applicable is Poe’s of sex discrimination or intent in deciding claim and, result, equal protection "in clause” as a violation of rights, appellants whether violated established inquiry sensitive to their individual motivations.” there must be an Id., Subsequently, findings genuine p material fact 432. of a issue of concerning a a and direct evidence defendant’s motivation for decision by plaintiff’s gender would necessi that a defendant was motivated alleged conduct trial in order to determine whether tate a Further, "the violation. the test is still established objective Id., p reasonableness of an official’sconduct.” Guider v Smith plaintiff’s Further, claim. while in some instances may the defendant’s motive or intent be relevant plaintiff’s rarely action, to a cause of it will relevant claim defendant’s immu- nity under the Harlow standard. What the defen- dant believed at the time of the incident and the testify failure the defendant to toas his belief is irrelevant to a determination of the threshold question undisputed whether the defendant’s con- Further, duct violated ex- law. cept extraordinary circumstances, actual knowl- edge is irrelevant to a determination whether the defendant was to a entitled defense under 42 USC 1983.10 argue extraordinary
The defendant did not circumstances existed to demonstrate neither he legal knew nor should have known of the relevant Thus, standard. the Court of erred its subjective decision that the defendant’s belief in legality shooting necessary sup- port defense.
Although application quali the of the defense of immunity fully fied has not clarified, been it is qualified immunity clear that the defense of is 11 ordinarily appropriate jury.* not an for issue the In instances clear, where is if defen the. alleges extraordinary justify dant circumstances ing suggests law, his failure to follow the Harlow 10 subjective inquiry may A become relevant where a defendant exceptional justified claims that there were circumstances which his example, may failure to know the settled law. For a defendant counsel, claim reliance on of inquiry advice an therefore whether Nahmod, proper. Rights there was such reliance would be Civil (2d Litigation: ed), 8.15, p Civil Liberties 508. Law Section 1983 § 11 good in circumstances which an instruction on faith be would relatively example, used seem to be would be rare. For such an instruction appropriate warrant, in circumstances where a search albeit one, being Devitt, Wolff, an invalid is used. 3 & Blackmar Federal (4th (1988 ed), Jury 103.90, p Supp). Practice & Instructions 30 § 572 431 Mich 559 op the Court jury.12 However, issue there could be an for the extraordinary since the circumstances must be that such the defendant neither knew nor should legal standard, known have the relevant even this exception primarily objective turn would on fac supra, p tors. Again, recognize we if there that is a factual fact)
dispute (i.e., genuine issue material involving immunity turns, on issue which such that it cannot be determined before trial what exceptional were, or cir defendants’ acts whether proceed existed, the trial.13 cumstances case will any However, it that entitlement does follow to a defense was lost when apparent knowledge It is that the of the defendant is relevant Wilson, extraordinary 219, 244-245; App DC Hobson v 237 US circumstances. (1984), appropriate 737 F2d the court described the inquiry as follows: x, plaintiff alleges Right that defendant violated [A]ssume summary judgment grounds and defendant moves for qualified immunity, on claiming Right x was not well-established and, alleged alternatively, acts were committed when prevented knowing extraordinary circumstances him both from having legal If the to know the standard. and district was reason relevant Right judge x court determines matter of law that as a well-established, question might still remain as to of fact reasonably neither knew nor should have
whether defendant
legal
purely
it.
issue
and should be
known of
The first
is
complaint
susceptible
and sum-
to initial determination on
potentially
mary judgment papers.
for
The latter is
an issue
trial,
unique
depending
each case.
on
circumstances
not)
(and
ques
any disputed
resolve
The Court need not
should
"However,
disputed fact
there are
of material fact.
if
issues
tions
upon
proceed
Thus, although
turns,
immunity
. .
must
question
. the case
which the
1987).
(CA
7,
Carlson,
826 F2d
to trial.” Green
frequently
resolved
will
be
issue
recognize
practice,
federal
lower
courts
motion
may
presented
verdict
in a motion for directed
verdict, i.e.,
notwithstanding
judgment
"even
motion
in a
and
after
cert
directed
fied
(directed
(CA 1986),
268, 277,
Allphin,
F2d
n 19
Benson v
a trial.”
(1986) (partial
to,
or after trial.15The threshold test
of a
is
violation
one of law and
always will be an issue for the court to decide.
The defense of
assumes the
right.
occurrence
a violation of a constitutional
purpose
give
opposing
of a "raise or waive”
is to
rule
party
opportunity
argue why
notice of the defense and an
to
may
claim should not be barred since an affirmative defense
defeat
Miller,
opposing party’s
Wright
&
claim.
Federal Practice and
(Í987
1270,
Supp),
p
However,
Procedure: Civil
§
once the defense
pled
raised,
has
sound
in the
and the
is on notice that the issue will be
policy
unique
does not dictate the
"raise waive” rule created
concurring opinion.
concurring opinion misperceives
language
Mitchell v
Forsyth,
472 US
105 S Ct
disposition on grounds. appropriate circumstances, In the same by judgment issue be raised a motion for could subsequent notwithstanding find- the verdict present ing jury that, case, as in the police force.16 officer used excessive
Regardless stage at which the issue addressed, is the defense will supra, objective primarily factors, turn on pp Thus, the Court of discussion 818-819. focused on defen- which subjective is under Harlow. belief incorrect dant’s
iv
this Court are whether
narrow
before
issues
denying
motion for
the trial court erred
police
regard
defendant
directed verdict
test, then, if,
objective assessment of the
the Anderson
Under
reasonably
circumstances,
could
as the defendant
an officer situated
necessary,
the defendant would
force used was
have
that the
believed
granted immunity.
we must not be concerned
In the instant case
it,
perceived
particular
plaintiffs
as this
conduct
with the
acting reasonably
the circumstances
officer
as a
but
supra,
Dicksey,
p
Sevigny
perceived it.
have
should
Smith
Guider v
the Court
given by
jury
instructions
officer, and whether
prejudicial error.
constituted
the lower court
alleged
part,
pertinent
In
amounted
force
the defendant
use
excessive
deprivation
to due
of constitutional
to a
protection,
process, equal
cruel
freedom from
moving
punishment.
for a directed
In
and unusual
nowas
that there
verdict,
claimed
defense counsel
right.
addition,
violation of a
*14
to the
entitled
the
claimed
defendant
counsel
good-faith immu-
the
of
on
directed verdict
nity
basis
right
from the
to be free
constitutional
since a
clearly estab-
force had not been
use of excessive
judge
trial
incident. The
at the time
the
lished
may
due
a violation of
that there
have been
ruled
probable
police
process17if
officer did not have
the
he
was not reasonable
or if the force
used
cause
the
circumstances.
judge
motion
trial
denied the defendant’s
disputed
explaining
verdict,
that
for a directed
The trial court believed
factual
issues existed.18
17
ground
provision upon
most
which
courts
constitutional
alleging
Fourteenth Amendment—
1983 claim
excessive force is the
§
potential deprivation
liberty without
the use of
due
(employing
is treated as a
force
1973)
(CA 2,
Glick,
process of
F2d
law. See Johnson
481
1028
analy
process
substantive due
Fourteenth Amendment
claim).
analyze
force
sis to
an excessive
cases,
Supreme
Despite
large
the
number of
force
the
excessive
only
brought under
Court has decided
two excessive force cases
force,
Freyermuth, Rethinking
692.
1987 Duke L J
excessive
§
(1985),
Garner,
1964;
1;
471 US
85
2d 1
In Tennessee v
the Court held that
105 S Ct
L Ed
subject
deadly
the use of
is a
to the
force
seizure
requirements
Whitley v
Fourth Amendment. In
reasonableness
the
(1986),
Albers,
475
S Ct
L Ed 2d 251
the Court
US
106
89
prisoner
developed
shooting
to determine whether the
of a
standard
Eighth
Amendment.
courts to
violated
The adherence of circuit
process factors
has been
substantive due
to excessive force cases
creating
as
an abstract
free of
viewed
to be
excessive force.
noted, "[tjhere
judge
The trial
lot of fact
that have
are a
issues
during
testimony
or not
been reused
there was
plaintiff
on both the issue of whether
probable
Sergeant
that
cause that
Smith would believe
scene, and,
fleeing
secondly,
was a
who was
was the
felon
Mich
op
the Court
disputed
factual
issues were created
testimony
presented
plaintiff
and evidence
regarding
plaintiff’s
probable
theory
both
theory
ap-
cause and his
of excessive force.19On
peal,
challenges only
the defendant
the denial of
grounds.20
the directed verdict on excessive force
Although
the United States
Court had
appears
not
issue,21
it
addressed
the law
was
force22violates
established that
use
excessive
Amendment,
the Fourteenth
Wil-
(CA 1985) (en banc).
BeeBe,
son v
770 F2d 578
disputed questions regard-
Because there remained
ing
occurred,
whether the violation
the defendant
was not entitled to a
directed verdict
the basis
immunity,
correctly
and the
court
trial
denied
Moreover,
the motion.23
the defendant did not
Sergeant
force of
The trial
Smith
force
reasonable
under the circumstances.”
judge incorrectly
disputed
determined that a
factual issue
However,
probable
ap-
existed as to
pealed
cause.
has
ground.
the denial of his motion on that
judge
questions regarding
The trial
noted that
there were
plaintiff
defendant,
distance between the
and the
the number of
scene,
area,
layout
way
officers at the
and the
which the
escaped.
could have
position
plaintiff’s
We
theory
take no
on whether
alternate
*15
presented
properly
jury.
factual issues which were
to the
submitted
21
Supreme
clarify
The United States
has
Court
failed to
whether
only
pronouncements
its own
can
a
establish
right, or whether lower court decisions will have the
effect.
same
Circuit,
however,
United States
held
for the Sixth
has
established,
right
that in
order to be
a
must be decided
by
highest
arose,
the
by
court
the state
the
where
case
a United
Appeals,
Bibb,
States Court of
Court. Robinson v
(CA 1988).
840 F2d 349
22
right
Garner,
recognized
This is not the
in Tennessee v
n 17
Kelly
supra,
Judge
below,
114;
App 92,
as
noted
157 Mich
403 NW2d
(1987).
right
505
The Gamer Court did not establish a constitutional
force,
simply recognized
to be free
the
and
extent
use
from the
of excessive
but
that
application
implicated specific
of force
Fourth Amendment
applied
developed
protect
right.
the standard
to
that
To the
Judge
opinion suggests
that
that Tennessee v Garner
Simon’s
applies
question
express
to
liability,
of defendant Smith’s
we
no
opinion
question.
on the merits of that
23
assume, arguendo,
applies,
We
that Harlow
while
577
Smith
Guider v
the Court
for a
appeal
motion
of defendant’s
the denial
grounds,
on
verdict
directed
arguing
exces-
not
force used was
that the
instead
no constitutional
there
and therefore
sive
injustice,
Finding
decline
we
manifest
no
violation.
party
depart
rule that a
our traditional
from
presented
properly
for review.
not
waives claims
Napier
222; 414 NW2d
Jacobs,
Mich
See
(1987).
jury
agree
trial court’s
can we
Nor
requiring reversal.
to error
amounted
instructions
proposed
not submit
counsel did
Because
instructions,
she believed
whether
it
is unclear
good
on the
irrelevant
faith was
that defendant’s
proofs
merits after
on the
or irrelevant
submitted
question
to submit
it was error
Harlow. While
given
good
jury,24 the instruction
to the
faith
proof
imposed
here
burden
good
prove
not act
defendant did
to
faith.25This
inappropri-
may have been
instruction
party
yet
the defendant
not
ate,26
harmed was
Glick,
supra, Judge Friendly
noting
set forth
n 17
that in Johnson v
including good
apply,
or malicious or
faith
factors for courts to
four
purpose.
sadistic
properly allege
that extraordi
or establish
The defendant did not
knew nor
nary
should
demonstrate that he neither
circumstances existed to
Thus,
legal
it was not
relevant
standard.
have known of the
jury.
question
appropriate to
this
to the
submit
following
judge
instructions:
The trial
recited
proof
prove by preponderance
Plaintiff has the burden
did not
the Defendant Ronald Smith
of the evidence that either
have
entering
Terrance
honestly
the
breaking
probable
the crime of
cause to believe that
Plaintiff,
dwelling
occupied
was committed
or,
Guider,
that the Defendant Ronald Smith did
necessary
prevent
deadly
that the
force was
believe
(fid
Guider,
escape
if he
hon-
the Plaintiff Terrance
it,
given
estly
the
and circumstances the
was unreasonable
believe
then
belief
totality
of the circumstances —the facts
reasonably
Ronald Smith was aware of or
should
Defendant
been aware of at that time.
have
Toledo,
100 S Ct
CONCLUSION performing Under officer discre- tionary functions is entitled to the defense of his when conduct does not violate established constitutional person which a reasonable would known. If immunity have established, law was only be if will sustained the officer demon- extraordinary prove strates circumstances can he neither knew nor should have known rele- legal vant standard.
We hold the defendant in this case was not qualified immunity. entitled defense of We judgment therefore affirm the of the trial court Appeals. and the decision of the Riley, C.J., Brickley, Cavanagh, and Grif- fin, JJ., J. Boyle, concurred with opinion part I J. concur in iv of the
Levin, the Court. (concurring). granted J. We leave to
Archer, appeal to consider the sole issue whether against judgment the individual defendant should on the reversed basis of the doctrine of immunity under 42 USC 1983.1_ provides:
1 42 USC 1983 who, ordinance, Every person any statute, under color custom, regulation, usage, any Territory State or or the *17 Guider v Smith Opinion by Archer, J. majority to the defendant failed holds that preserve the of motion for the trial court’s denial grounds, on directed verdict the use of force was because he contended excessive, rather than that required judgment a matter for the defendant as majority basis, the holds that law. On this the raising precluded the defense from defendant was by agree Although result reached I here. with grounds. majority, I do so on different defendant was I hold that individual would not entitled to defense Any § to the entitlement failed to move for Smith lost when defendant proceeded summary judgment case and the Accordingly, I affirm the result would also trial. Appeals, but for the Court of reached reasons outlined below.
FACTS eighteen April plaintiff, years then On telephone friend, old, from his Jeff call received plaintiff requested Neely. Neely assist removing belongings from a house him in his girl sharing Neely had with his claimed he been plaintiff parked Neely’s direction, friend. Under girl Neely car a house that said was his his behind Neely re- nor testified friend’s. Neither garding They entered of this house. the address Columbia, any subjects, subjected, to be District or causes jurisdic- person or within the United States other citizen rights, privileges, deprivation any or tion thereof laws, by the and shall be Constitution immunities liable to the secured law, equity, party injured suit in an action purposes proper proceeding of this For other redress. section, Congress exclusively applicable to the any Act of to be a statute of shall be considered District of Columbia District of Columbia. Mich Archer, J. trips from the door. Plaintiff side made two to the Neely’s alleged belongings. car with police Defendant Ronald Smith awas Detroit assigned officer the Thirteenth Precinct.2 to a four-member cruiser unit night question,
theOn responded defendant Smith’s cruiser unit Hague, males, radio run of "1145 two Black [breaking entering], the rear door.” Defendant was familiar with the address because he knew the prior owner had been inside the house alley occasion. The officers drove into the behind headlights the house their with off. *18 making trip
Plaintiff was his third to the car carrying Neely’s alleged belongings when he and Neely dropped police Neely observed the car.3 Plaintiff and they carrying began
the items were and through yard. police to run the back officers breaking two, observed the fit who and enter- ing description, stop, by and them ordered to yelling police.” yelling "halt, time, After the third police,” "halt, defendant Smith fired one shot plaintiff, striking him in the back of his neck. warning No shot was ever fired.
Officer Smith testified that he fired he because suspect was afraid he would lose the between two safety, where, pursue houses for own his he would not be able as fast. Defendant Smith did not see anything that would lead him believe that plaintiff was armed. Michigan permitted time, At that law use
deadly necessary, apprehend force, when a flee- high A cruiser car is a four-door sedan with colored beam head lights spotlights and colored on left and sides of the front lights flashing windshield. are There in the rear window. The words appear "Detroit Police” and the vehicle number on each of the front passenger Usually, are doors. there four officers in unit. each One uniform, generally plain is four the other three wear clothes. thought carrying Neely’s belongings Plaintiff he was from the However, Neely taking by house. knew he was items owned occupants without their consent. Smith Guider v Archer, J. Department’s policy
ing 5*TheDetroit Police felon.4 an even nar firearms delineated on the use of scope officers. the use of firearms its for rower The deadly policy to seven force limited the use entering breaking in felonies, and was of which police department Accordingly, internal cluded. investigation use Smith’s that defendant concluded justified. deadly force was complaint August 11, 1980, filed a
On against City Wayne Detroit Circuit alleging Smith, officer Ronald Detroit civil violated his federal the defendants recovery theory of Plaintiffs 42 USC 1983. under deadly force to use of defendant Smith’s was that apparent apprehend the scene of an him as he fled entering breaking unneces excessive and sary deprivation to a and amounted the circumstances rights.5 In the
of his constitutional complaint, raised the defendants to the answer immunity. defense of September by jury commenced A trial presid- S. Teranes Paul with the Honorable ing. motion trial, did not file a defendants Prior to City summary judgment. mo- of Detroit’s granted close of at the verdict was tion for directed ground proofs plaintiff’s the evidence on the *19 negligence gross or delib- to show was insufficient city part in train- of the indifference on erate ing supervising in the use officers its or deadly denied defendant The trial court force. verdict because for directed Smith’s motion probable remaining questions cause ex- whether only used Smith defendant isted and whether The the circumstances. force under reasonable 4 747, 753; Hartfelder, App See, 318 NW2d e.g., 113 Mich v Werner (1984). (1982), 906 den 418 Mich 825 lv 5 granted plaintiffs to amend motion Subsequently, the trial court rely explicitly Fourth Amendment. complaint on the 582 Mich 559 by Archer, J. questions fact,
trial court considered these to be jury. resolved jury concerning
The case went to § the 1983 liability 18, of defendant Smith. On October jury found in favor of the damages. compensatory $472,000 awarded him parties appealed. Both
The Court affirmed the trial court’s quali- decision that defendant to a entitled immunity fied defense.6 granted 6, 1987,
On October this Court leave to appeal to consider the sole issue whether judgment against the individual should be reversed on the basis of the doctrine of 42 1983.7 USC
ANALYSIS
Fitzgerald,
In Harlow v
800;
US
102 S Ct
(1982),
2727;
tive
pleaded
defense that must
a defendant
Toledo,
official. Gomez v
1988] Guider v Smith 583 Opinion by Archer, J. subjective good-faith element proved
frequently
incompatible
has
with our ad-
Economou,
478;
in Butz
monition
438 US
98 S
[v
(1978)],
Ct
competing it now is clear that substantial litigation subjective good costs attend the government faith of only officials. Not are there general subjecting costs of officials the risks govern- trial —distraction of officials from their duties, action, mental inhibition of discretionary people public and deterrence of able from service. special There "subjective” inquiries are costs to inquiry this kind. . . . Judicial subjective into mo- tivation ery may broad-ranging therefore entail discov- deposing persons,
and the of numerous includ- ing professional colleagues. Inquiries official’s peculiarly disruptive this kind can be of effective government. Consistently with the balance at which we Butz, aimed in today allega- we conclude that bare subject govern- tions of malice should not suffice to ment officials either to the costs of trial or to the broad-reaching burdens of discovery. We therefore government hold that performing officials discre- functions, tionary generally are shielded from lia- bility damages for civil insofar as their conduct statutory does not violate person of which a reasonable Navarette, would have known. See Procunier v 555, 434 US (1978); 565 S Ct 55 L Ed 2d [98 Strickland, v Wood US at 322. [Harlow Emphasis at 815-818. added.] stage Harlow set the for a new era in the law of qualified immunity. After immu- nity purely legal question, is a decided prior judge 818- to trial.8 As stated in Harlow 819: (CA 1985). Hooper, Donta F2d Mich *21 by Archer, J. an reasonableness of objective
Reliance on the conduct, to by reference as measured official’s law, avoid excessive should clearly established permit the resolu- disruption government and summary claims on many insubstantial tion of judge ap- summary judgment, On judgment. determine, currently only not propriately may law, clearly law was applicable but whether If occurred. at the time an action established established, clearly time was not law at that expected to antici- reasonably not be official could could he subsequent legal developments, nor pate the law forbade fairly said to "know” be Un- previously as unlawful. identified conduct resolved, immunity question is til threshold If the law was discovery should not be allowed. established, immunity defense ordinar- fail, competent public reasonably since a ily should governing his conduct. know the law official should Nevertheless, pleading if the defense the official prove and can extraordinary circumstances claims nor have known neither knew should that he standard, the defense should legal the relevant pri- turn again, the defense would But sustained. marily objective factors. [Emphasis added.] Harlow, 1983 defen- forth in Under the test set § if their are entitled dants statu- not violate a conduct did a reasonable which or constitutional tory Harlow rejected have known. person would test qualified subjective element are standard. We objective of a purely in favor Court’s con- Supreme the United States by bound However, apply I do not 1983.9 struction § the defen- Harlow to these facts because analysis given States statute the United to a federal The construction Clark, Lyon 124 Mich in state court. v Court controls (1900). 1058; 105; 82 NW NW Guider Smith v Opinion by Archer, J. dant forfeited any entitlement immu- nity by failing to move for summary judgment.10
Harlow had been decided over year prior the start of trial.11 the Court deter- that qualified mined immunity was a threshold question to be resolved on a motion for summary judgment prior to trial.12 Notwithstanding defen- Harlow,13 dant’s awareness did not motion file a for summary judgment prior to trial. importance filing a motion for summary judgment 1983 actions reemphasized § the Court Mitchell US 105 S Forsyth, Ct 86 L Ed 2d *22 Mitchell,
In Supreme the United States Court held: qualified entitlement immunity] is an [to
immunity from
rather
a
suit
than mere defense to
liability; and
an
like
absolute
it
is
immunity,
effectively
erroneously permitted
lost if a case is
to
trial.[14]
go to
at
[Id.
526.]_
10 Michigan
change
in
Court Rules were amended
1985 to
summary judgment
name of a
motions for
motion. These motions are now called
summary disposition.
MCR 2.116.
day
Harlow was
June
decided
1982. The first
of trial was
12,1983.
September
Additionally,
Briggs,
335, 341;
Malley
Id.
at
in
v
475 US
1092;
(1986),
holding
S Ct
clearly established
a defendant
immu-
Mich Archer, J.
City
Kennedy
Cleveland, 797 F2d 297
In
(CA 1986),
107 Ct
den 479 US
S
cert
(1987),
the United States Court
In accordance with the United States holding Mitchell, hold that Smith Court’s we effectively any right lost
nity ery. the commencement of discov- is entitled to dismissal before Harlow, 526, quoting 457 at US 818.] [Id. complaint adequately alleges plaintiffs the commission Even if the law, clearly is entitled to sufficient to that violated established the defendant acts summary disposition discovery if fails uncover evidence genuine committed as to in fact create issue whether recognized trial an entitlement not to stand those acts. or the thus litigation conditioned on the resolution of the other burdens face essentially legal question of which whether the conduct Thus, complained 472 US the to the established law. violated interpretation congruent of Harlow is indeed Mitchell Court’s bar. conclusion reached in case at 587 Guider v Smith Opinion by Archer, J. proceeded defense when the case trial. To avoid specif- result, § defendants a 1983 suit must plead ically qualified immunity in their first re- sponsive pleading as an affirmative defense15 and summary disposition prior move for summary disposition pursue If trial. may denied,
is defendants interlocutory appeal of the denial.16 Accord, Mitchell, at 14-15.17_ 15 specifically employ "qualified Defendants did not im words munity” complaint. in their answer to the defense was raised in captioned, "Special the section of the answer and Affirmative Defen states, part: ses.” It 2. That the individual defendants at all times herein men- good
tioned acted in
scope
peace
faith and without
and
malice
within the
City
of their
as
duties
officers of the
of Detroit and
Michigan.
State
officersof the
force,
any,
plaintiffs)
6. That
if
used on the
was reasonable
necessary
protect
circumstances to
themselves so
any
damages
injury
allegedly
by plaintiffs)
or
suffered
were due to and/or misconduct in the unlawful assault and
defendant^).
battery
plaintiffs) upon
committed
these
employees
7. That the
actions
defendant and its
in all
reasonable,
respects
proper
legal.
were
Strickland,
992;
308;
Under Wood v
420 US
95 Ct
CONCLUSION qualified I would hold that the doctrine of immu- require nity judgment not does a reversal of against Smith on facts of this case. defendant Any was lost when entitlement defense summary judg- Smith failed move preserve proceeded To ment the case to trial. qualified immunity defense, must the plead a defendant immunity as an affirmative defense responsive pleading move for sum- in the first prior mary disposition to trial. The result reached by the is affirmed._ requirement holding This is with Harlow’s consistent clearly judge time the law was established at the determine whether If the that time an action occurred. then law at was qualified immunity. If the law official is entitled established, ordinarily fail. Until should resolved, discovery immunity question should not be is this threshold allowed. Harlow at 818-819.