rejecting the use of a “subjective” focus and explaining that the proper inquiry was “whether a reasonable man in the defendant’s position could have believed his actions were consistent with the law[]”
How later courts described this case
- rejecting the use of a “subjective” focus and explaining that the proper inquiry was “whether a reasonable man in the defendant’s position could have believed his actions were consistent with the law[]”
- noting a case should proceed to trial if there is a question of fact that would affect the availability of immunity
- trial court may consider immunity claims on motion to dismiss, motion for summary judgment and as defense to liability in trial on the merits
Written by the judges who cited it.
The opinion
Archer, J.
(concurring). We granted leave to appeal to consider the sole issue whether the judgment against the individual defendant should be reversed on the basis of the doctrine of qualified immunity under 42 USC 1983. 1 _
*579 The majority holds that the defendant failed to preserve the trial court’s denial of the motion for directed verdict on qualified immunity grounds, because he contended that the use of force was not excessive, rather than that qualified immunity required judgment for the defendant as a matter of law. On this basis, the majority holds that the defendant was precluded from raising the defense here. Although I agree with the result reached by the majority, I do so on different grounds.
I would hold that the individual defendant was not entitled to the defense of qualified immunity under § 1983. Any entitlement to the defense was lost when defendant Smith failed to move for summary judgment and the case proceeded to trial. Accordingly, I would also affirm the result reached by the Court of Appeals, but for the reasons outlined below.
FACTS
On April 20, 1978, plaintiff, then eighteen years old, received a telephone call from his friend, Jeff Neely. Neely requested that the plaintiff assist him in removing his belongings from a house Neely claimed he had been sharing with his girl friend. Under Neely’s direction, plaintiff parked his car behind a house that Neely said was his girl friend’s. Neither plaintiff nor Neely testified regarding the address of this house. They entered *580 from the side door. Plaintiff made two trips to the car with Neely’s alleged belongings.
Defendant Ronald Smith was a Detroit police officer assigned to a four-member cruiser unit of the Thirteenth Precinct. 2 On the night in question, defendant Smith’s cruiser unit responded to a police radio run of "1145 Hague, two Black males, [breaking and entering], the rear door.” Defendant was familiar with the address because he knew the owner and had been inside the house on a prior occasion. The officers drove into the alley behind the house with their headlights off.
Plaintiff was making his third trip to the car carrying Neely’s alleged belongings when he and Neely observed the police car. 3 Plaintiff and Neely dropped the items they were carrying and began to run through the back yard. The police officers observed the two, who fit the breaking and entering description, and ordered them to stop, by yelling "halt, police.” After yelling the third time, "halt, police,” defendant Smith fired one shot at the plaintiff, striking him in the back of his neck. No warning shot was ever fired.
Officer Smith testified that he fired because he was afraid he would lose the suspect between two houses where, for his own safety, he would not be able to pursue as fast. Defendant Smith did not see anything that would lead him to believe that the plaintiff was armed.
At that time, Michigan law permitted the use of deadly force, when necessary, to apprehend a flee *581 ing felon. 4 5*The Detroit Police Department’s policy on the use of firearms delineated an even narrower scope for the use of firearms by its officers. The policy limited the use of deadly force to seven felonies, of which breaking and entering was included. Accordingly, an internal police department investigation concluded that defendant Smith’s use of deadly force was justified.
On August 11, 1980, plaintiff filed a complaint in Wayne Circuit Court against the City of Detroit and Detroit police officer Ronald Smith, alleging that the defendants violated his federal civil rights under 42 USC 1983. Plaintiffs theory of recovery was that defendant Smith’s use of deadly force to apprehend him as he fled the scene of an apparent breaking and entering was excessive and unnecessary under the circumstances and amounted to a deprivation of his constitutional rights. 5 In the answer to the complaint, the defendants raised the defense of qualified immunity.
A trial by jury commenced on September 12, 1983, with the Honorable Paul S. Teranes presiding. Prior to trial, defendants did not file a motion for summary judgment. The City of Detroit’s motion for directed verdict was granted at the close of plaintiff’s proofs on the ground that the evidence was insufficient to show gross negligence or deliberate indifference on the part of the city in training or supervising its police officers in the use of deadly force. The trial court denied defendant Smith’s motion for directed verdict because of the remaining questions whether probable cause existed and whether defendant Smith used only reasonable force under the circumstances. The *582 trial court considered these questions of fact, to be resolved by the jury.
The case went to the jury concerning the § 1983 liability of defendant Smith. On October 18, 1983, the jury found in favor of the plaintiff and awarded him $472,000 in compensatory damages. Both parties appealed.
The Court of Appeals affirmed the trial court’s decision that defendant was not entitled to a qualified immunity defense. 6
On October 6, 1987, this Court granted leave to appeal to consider the sole issue whether the judgment against the individual defendant should be reversed on the basis of the doctrine of qualified immunity under 42 USC 1983. 7
ANALYSIS
In Harlow v Fitzgerald, 457 US 800 ; 102 S Ct 2727 ; 73 L Ed 2d 396 (1982), the United States Supreme Court held that subjective evidence of an officer’s good faith is no longer relevant to an analysis of qualified immunity. As stated in Harlow :
Qualified or "good faith” immunity is an affirmative defense that must be pleaded by a defendant official. Gomez v Toledo, 446 US 635 [ 100 S Ct 1920 ; 64 L Ed 2d 572 ] (1980). Decisions of this Court have established that the "good faith” defense has both an "objective” and a "subjective” aspect. The objective element involves a presumptive knowledge of and respect for "basic, unquestioned constitutional rights.” Wood v Strickland, 420 US 308, 322 [ 95 S Ct 992 ; 43 L Ed 2d 214 ] (1975). The subjective component refers to "permissible intentions.” . . .
*583 The subjective element of the good-faith defense frequently has proved incompatible with our admonition in Butz [v Economou, 438 US 478 ; 98 S Ct 2894 ; 57 L Ed 2d 895 (1978)], that insubstantial claims should not proceed to trial. . . .
In the context of Butz’ attempted balancing of competing values, it now is clear that substantial costs attend the litigation of the subjective good faith of government officials. Not only are there the general costs of subjecting officials to the risks of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service. There are special costs to "subjective” inquiries of this kind. . . . Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official’s professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.
Consistently with the balance at which we aimed in Butz , we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Procunier v Navarette, 434 US 555, 565 [ 98 S Ct 855 ; 55 L Ed 2d 24 ] (1978); Wood v Strickland, 420 US at 322 . [Harlow at 815-818 . Emphasis added.]
Harlow set the stage for a new era in the law of qualified immunity. After Harlow , qualified immunity is a purely legal question, to be decided by the judge prior to trial. 8 As stated in Harlow at 818-819:
*584 Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors. [Emphasis added.]
Under the test set forth in Harlow , § 1983 defendants are entitled to qualified immunity if their conduct did not violate a clearly established statutory or constitutional right of which a reasonable person would have known. Harlow rejected the subjective element of the qualified immunity test in favor of a purely objective standard. We are bound by the United States Supreme Court’s construction of § 1983. 9 However, I do not apply the Harlow analysis to these facts because the defen *585 dant forfeited any entitlement to qualified immunity by failing to move for summary judgment. 10
Harlow had been decided over a year prior to the start of trial. 11 In Harlow , the Court determined that qualified immunity was a threshold question to be resolved on a motion for summary judgment prior to trial. 12 Notwithstanding defendant’s awareness of Harlow , 13 defendant did not file a motion for summary judgment prior to trial. The importance of filing a motion for summary judgment in § 1983 actions was reemphasized by the Court in Mitchell v Forsyth, 472 US 511 ; 105 S Ct 2806 ; 86 L Ed 2d 411 (1985).
In Mitchell , the United States Supreme Court held:
The entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.[ 14 ] [Id. at 526.]_
*586 In Kennedy v City of Cleveland, 797 F2d 297 (CA 6, 1986), cert den 479 US 1103 ; 107 S Ct 1334 ; 94 L Ed 2d 185 (1987), the United States Court of Appeals for the Sixth Circuit considered whether a pretrial denial of qualified immunity was immediately appealable. In resolving this issue, the court interpreted Mitchell as describing two stages at which the doctrine of immunity may be interposed in a motion for summary judgment. The first instance arises when the complaint is insufficient to describe a violation of a clearly established and objectively well-known statutory or constitutional right, while in the second instance the complaint may be sufficiently descriptive, yet the claim upon which it is based is insubstantial. In contrast to Mitchell, Kennedy further stated that "decisions with respect to dismissal of summary judgment, if adverse, do not preclude the interposition of the defense of immunity as a defense to liability on the merits.” 797 F2d 300.
Accordingly, to the extent that Kennedy alludes to the defendant’s right to raise the qualified immunity defense at any point during the trial, it is inconsistent with the United States Supreme Court’s decision in Mitchell and thus, I do not consider it precedent.
In accordance with the United States Supreme Court’s holding in Mitchell , we hold that Smith effectively lost any right to a qualified immunity *587 defense when the case proceeded to trial. To avoid this result, defendants in a § 1983 suit must specifically plead qualified immunity in their first responsive pleading as an affirmative defense 15 and move for summary disposition prior to trial. If summary disposition is denied, defendants may pursue an interlocutory appeal of the denial. 16 Accord, Mitchell , at 14-15. 17 _
*588 Defendant moved for a directed verdict at the close of plaintiffs’ proofs. This was insufficient to preserve the qualified immunity defense because defendant had already begun to defend the action at trial. By this time, defendant had effectively lost his qualified immunity from suit. 18
CONCLUSION
I would hold that the doctrine of qualified immunity does not require a reversal of the judgment against defendant Smith on the facts of this case. Any entitlement to the defense was lost when defendant Smith failed to move for summary judgment and the case proceeded to trial. To preserve the qualified immunity defense, a defendant must plead qualified immunity as an affirmative defense in the first responsive pleading and move for summary disposition prior to trial. The result reached by the Court of Appeals is affirmed._
42 USC 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the *579 District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
A cruiser car is a four-door sedan with colored high beam headlights and colored spotlights on the left and right sides of the front windshield. There are flashing lights in the rear window. The words "Detroit Police” and the vehicle number appear on each of the front passenger doors. Usually, there are four officers in each unit. One of the four is generally in uniform, the other three wear plain clothes.
Plaintiff thought he was carrying Neely’s belongings from the house. However, Neely knew he was taking items owned by the occupants without their consent.
See, e.g., Werner v Hartfelder, 113 Mich App 747, 753 ; 318 NW2d 825 (1982), lv den 418 Mich 906 (1984).
Subsequently, the trial court granted plaintiffs motion to amend the complaint to explicitly rely on the Fourth Amendment.
Guider v Smith, 157 Mich App 92, 100 ; 403 NW2d 505 (1987).
Guider v Smith, 429 Mich 858 (1987).
Donta v Hooper, 774 F2d 716, 719 (CA 6, 1985).
The construction given to a federal statute by the United States Supreme Court controls in state court. Lyon v Clark, 124 Mich 100, 105 ; 82 NW 1058 ; 83 NW 694 (1900).
The Michigan Court Rules were amended in 1985 to change the name of a summary judgment motion. These motions are now called motions for summary disposition. MCR 2.116.
Harlow was decided June 24, 1982. The first day of trial was September 12,1983.
Id. at 818 . Additionally, in Malley v Briggs, 475 US 335, 341 ; 106 S Ct 1092 ; 89 L Ed 2d 271 (1986), the Court reaffirmed its holding in Harlow , ruling that the entitlement to qualified immunity is determined by an objective test and that the issue should be resolved on a motion for summary disposition.
Defendant Smith was aware of Harlow because the decision was cited by defendant to support his motion for directed verdict at the close of plaintiff’s proofs.
Although the focus of the Mitchell Court was to resolve the issue whether a lower court ruling on qualified immunity was a "final order” subject to an immediate appeal, the Court nonetheless fashioned its holding with great deference to the basic tenets found in Harlow . For example, the text of the opinion preceding the above-quoted language, expresses the following:
Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immu *586 nity is entitled to dismissal before the commencement of discovery. [Id. at 526, quoting Harlow, 457 US 818 .]
Even if the plaintiffs complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary disposition if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. Harlow, thus recognized an entitlement not to stand trial or face the other burdens of litigation conditioned on the resolution of the essentially legal question whether the conduct of which plaintiff complained violated clearly established law. 472 US 526 . Thus, the Mitchell Court’s interpretation of Harlow is indeed congruent to the conclusion reached in the case at bar.
Defendants did not specifically employ the words "qualified immunity” in their answer to the complaint. The defense was raised in the section of the answer captioned, "Special and Affirmative Defenses.” It states, in part:
2. That the individual defendants at all times herein mentioned acted in good faith and without malice and within the scope of their duties as police officers of the City of Detroit and peace officers of the State of Michigan.
6. That force, if any, used on the plaintiffs) was reasonable and necessary under the circumstances to protect themselves so that any injury or damages allegedly suffered by plaintiffs) were due to and/or misconduct in the unlawful assault and battery committed by the plaintiffs) upon these defendant^).
7. That the actions of the defendant and its employees in all respects were reasonable, proper and legal.
Under Wood v Strickland, 420 US 308 ; 95 S Ct 992 ; 43 L Ed 2d 214 (1975), reh den 421 US 921 (1975), the qualified immunity defense was unavailable if either: (1) he knew or reasonably should have known that the action he took within the sphere of his official responsibility would violate the plaintiff’s clearly established constitutional rights, or (2) he acted with malicious intent to cause a deprivation of constitutional rights or other injury. The defendants’ answer was marginally sufficient to address the elements of the Wood test for qualified immunity.
However, Harlow eliminated the subjective aspects of the Wood test. Accordingly, an individual § 1983 defendant must now allege that his actions did not violate a clearly established statutory or constitutional right of which a reasonable person would have known. We reiterate that qualified immunity is an affirmative defense that must be pled by a defendant official. Harlow at 815. Defendants who fail to plead the defense with specificity incur the risk of waiving the defense and excluding it from the case. See, e.g., Satchell v Dilworth, 745 F2d 781, 784 (CA 2, 1984).
See MCR 2.116(J)(2)(a). See also United States v Archer-Daniels-Midland Co, 785 F2d 206, 211 (CA 8, 1986), cert den 481 US 1028 ; 107 S Ct 1952 ; 95 L Ed 2d 525 (1987).
See also Rich v Dollar, 841 F2d 1558, 1560 (CA 11, 1988).
This holding is consistent with Harlow’s requirement that the judge determine whether the law was clearly established at the time an action occurred. If the law at that time was not clearly established then an official is entitled to qualified immunity. If the law was clearly established, the immunity defense ordinarily should fail. Until this threshold immunity question is resolved, discovery should not be allowed. Harlow at 818-819.