Guider v. Smith

M. J. Kelly, P.J.

(concurring). I concur with the result reached by Judge Simon, but write separately regarding the trial court’s failure to instruct the jury on the affirmative defense of qualified immunity.

Under federal law, police officers are shielded from civil liability for damages recoverable in a § 1983 action if the officer’s conduct was discretionary in nature and consistent with constitutional law as established at the time the conduct occurred. This principle of qualified immunity is sometimes referred to as "good faith immunity,” which implies that the state of mind of the police officer is relevant. However, the only inquiries relevant to the defense of qualified immunity concern the established state of the law at the time the incident occurred and the officer’s compliance with that law. Harlow v Fitzgerald, 457 US 800 ; 102 S Ct 2727 ; 73 L Ed 2d 396 (1982), and Bates v Jean, 745 F2d 1146 (CA 7, 1984). Defendants in this case argue on appeal that error occurred when the jury was not instructed on the affirmative defense of qualified immunity because Officer Smith justifiably and in good faith relied upon the constitutionality of the Detroit Police Department’s fleeing felon rule in shooting at plaintiff under the circumstances presented.

If the trial court had instructed the jury on the *114 constitutional use of deadly force as eventually defined under Tennessee v Garner, 471 US —; 105 S Ct 1694 ; 85 L Ed 2d 1 (1985), as announced by the Sixth Circuit at the time of trial in Garner v Memphis Police Dep't 710 F2d 240 (CA 6, 1983), I would find that the omission of an instruction on the qualified immunity defense constitutes error requiring reversal. Under Tennessee v Garner, it is unconstitutional for a police officer to use deadly force unless the officer has probable cause to believe that defendant was armed or posed a threat to the officer or others. The fleeing felon rule in effect in Michigan at the time this incident occurred allows an officer to use deadly force where there is probable cause to believe that the person fleeing has committed murder, armed robbery, rape, kidnapping, arson, or has broken and entered an occupied dwelling. The trial court in this case did not instruct the jury under Tennessee v Garner, but instead upheld the constitutionality of the Detroit Police Department’s fleeing felon rule and instructed the jury that Officer Smith’s use of deadly force was lawful if consistent with that rule. Since the jury was accurately instructed on the state of the law regarding a police officer’s use of deadly force as it applied at the time this incident occurred, I do not think the trial court was obligated to instruct on the qualified immunity defense and I therefore concur with Judge Simon’s decision to affirm.

Bronson, J., did not participate.