# Larry T. Wilson, Cross-Appellant v. Thomas L. Beebe, Cross-Appellee > Court of Appeals for the Sixth Circuit · August 12, 1985 · 770 F.2d 578 URL: https://www.frixlaw.com/law-library/cases/9473877 ## Case - **Full name:** Larry T. WILSON, Plaintiff-Appellee, Cross-Appellant, v. Thomas L. BEEBE, Defendant-Appellant, Cross-Appellee - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** August 12, 1985 - **Citations:** 770 F.2d 578; 1985 U.S. App. LEXIS 22305 - **Precedential status:** Published - **Opinion:** Concurring in part by Wellford - **Judges:** Wellford, Lively, Engel, Keith, Merritt, Kennedy, Martin, Jones, Contie, Krupansky, Ford, Milburn, Edwards - **Cited by:** 249 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473877 ## How later opinions describe it (automated extraction) - finding that a post-shooting report prepared by police department was not inadmissible under Rule 407 because “[t]he report did not recommend a change in procedures following the shooting; it was a report of that incident and nothing more” - concluding that “[t]hough Parratt v. Taylor concerned the loss of property, we see nothing in its underlying rationale which would require a different treatment of due process claims for deprivation of liberty” - holding that due-process was not violated where officer’s pistol accidentally discharged as he handcuffed a suspect, and suggesting that an unraised Fourth Amendment claim would have failed - holding Parratt applies to procedural due process claims involving either property or liberty interests, but asserting—albeit as dicta—that Parratt wouldn’t apply to substantive due process claims - finding no abuse of discretion in admitting into evidence under Rule 803(8) a memorandum written by police captain which concluded subordinate had acted contrary to department training in weapons use and handling ## Opinion text WELLFORD, Circuit Judge, concurring in part and dissenting in part. I agree with the majority’s resolution of this most difficult case, to the extent that it holds Wilson possessed no federal cause of action. I cannot agree, however, with the majority’s conclusion that Officer Beebe is not protected by official immunity under Michigan law. For this reason, I respectfully dissent. In Ross v. Consumers Power Co., 420 Mich. 567 , 363 N.W.2d 641 (1984), the court delineated the elements requisite to official immunity in Michigan. As a lower level official, Beebe was entitled to immunity if he was acting within the scope of his authority, in good faith, and was performing a discretionary, as opposed to ministerial, act. There is every indication that Beebe was acting in good faith while performing his duties. 1 The only issue appears to be whether he was performing a discretionary act. Contrary to the position taken by the majority, I am convinced that Beebe was performing a discretionary function in effectuating the arrest. The discretionary nature of the arrest did not cease when Beebe attempted to handcuff Wilson with *599 pistol in hand; rather, the handcuffing was part and parcel to his activity requiring split second decisionmaking. Despite the majority’s view, it is difficult to separate this decision made by Beebe from its effectuation, which also involved a decision as to manner of execution. For the Ross opinion to have any effect, recognition must be given to this fact. If it were otherwise, then every action taken by a police officer in respect to effectuating custody of a suspect, as opposed to failure to act, could be deemed ministerial. I cannot believe this was the intent of the Michigan Supreme Court in Ross . I would hold this action of defendant Beebe, taken in the course of his employment, and deemed negligent by the trier of fact, 2 was not a ministerial act, but rather a discretionary one, and that immunity under Michigan law attaches. Specific language found in Ross, 420 Mich. 567 , 363 N.W.2d at 668, 679-80 , illustrates that Beebe’s action was “discretionary-decisional:” An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity [which] ... involves significant decision making. The ultimate goal is to afford the officer ... enough freedom to decide the best method of carrying out his or her duties, while ensuring that the goal is realized in a conscientious manner. Police officers, especially when faced with a potentially dangerous situation, must be given a wide degree of discretion in determining what type of action will best ensure the safety of the individuals involved and the general public, the cessation of unlawful conduct, and the apprehension of wrongdoers. The determination of what type of action to take, e.g., make an immediate arrest, pursue a suspect, issue a warning, await backup assistance, etc., is a discretionary-decisional act entitled to immunity. Once that decision has been made, however, the execution thereof must be performed in a proper manner,____ (Emphasis added). In the alternative, rather than decide the state “discretionary-ministerial” issue at the appellate level, I would remand this matter to the trial court for its resolution in light of Ross . . Of course, to the extent the good faith and scope of authority issues present factual questions, they need to be addressed initially by the district court. Because Ross was handed down after this appeal, the court below never had occasion to make these specific findings. . I have difficulty in the concept that cocking one's revolver during the arrest and handcuffing, alone, of a felony suspect on a dark rural road is an act of negligence. Even if it is so deemed, I would find Officer Beebe’s “decisional act" of cocking his weapon to be discretionary under all the circumstances. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473877. Public record. Not legal advice.