If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

UNPUBLISHED

April 13, 2023

v No. 359949

Ionia Circuit Court

JASON DIAZ, LC No. 2021-018262-FH

Defendant-Appellee.

Before: SHAPIRO, P.J., and LETICA and FEENEY, JJ.

PER CURIAM.

The prosecution appeals as of right the circuit court’s order dismissing the charges of 

assault with intent to do great bodily harm, MCL 750.84, misconduct in office, MCL 750.505, and 

careless discharge of a firearm causing injury or death, MCL 752.861. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case arises from a high-speed chase that resulted in defendant firing his weapon at a 

fleeing vehicle. At approximately 2:02 a.m. on August 29, 2020, defendant, a Lowell Police 

Department Officer, was on duty performing road patrol in Lowell, Michigan. Defendant passed 

a Chevrolet Impala that failed to dim its headlights,

1

and defendant, in a marked police cruiser, 

turned around and followed the car.

2

 Defendant saw that the Impala did not have a license plate. 

He advised the dispatcher that the number of occupants in the vehicle was unknown. The driver 

of the Impala increased the speed and fled from defendant through downtown Lowell. Defendant 

 

1 See MCL 257.700.

2 Defendant did not testify at the preliminary examination. Therefore, we cannot conclude that 

defendant turned and followed the Impala with the intention of conducting a traffic stop or if the 

lack of a license plate caused him to initiate the stop. In this opinion, any statements attributed to 

defendant were recorded on his body camera that was admitted at the preliminary examination.
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activated the cruiser’s overhead emergency lights and began to chase the Impala, reaching a speed 

of 106 miles per hour (mph).

The driver of the Impala then turned left onto an unlit, dirt road in order to evade defendant. 

The chase continued along this road until the Impala stopped in front of a large tree that had fallen

and blocked the roadway. Defendant parked behind the Impala, got out of his cruiser, stood by 

the cruiser’s driver-side door, and verbally commanded the driver of the Impala to, “Let me see 

your hands!” The driver did not comply with defendant’s demand. Instead, the driver reversed 

the Impala and accelerated backward directly toward defendant and his parked cruiser.3 To avoid 

being crushed by the Impala, defendant quickly jumped back into the cruiser. The reversing 

Impala then collided with the police cruiser. The Impala caused damage to the police cruiser, 

including the removal of its driver’s side-view mirror.

From the driver’s seat of the cruiser, defendant fired three rounds with his weapon at the 

Impala while it was reversing. After the Impala collided with the cruiser, the Impala began to pull 

away and attempted to flee the scene. Defendant again left his cruiser. He attempted to fire his 

weapon but two misfires occurred. Defendant corrected his weapon and fired eight additional 

rounds at the Impala, seemingly to stop the vehicle from fleeing.4 In less than 20 seconds, 

defendant parked his cruiser, the driver failed to abide by defendant’s command, the driver 

attempted to strike defendant with the Impala, defendant fired shots at the Impala, and the driver 

fled the scene in the Impala.

Defendant notified the dispatcher that the driver of the Impala attempted to run him over 

and that shots had been fired.5 In response, the dispatcher requested that all available units proceed 

to Lowell because shots were fired. Initially, defendant expressed that he may not be able to 

continue the pursuit because of a possibly flat tire. Defendant was able to drive to the end of the 

dirt road and notified the dispatcher that the driver of the Impala seemingly proceeded west on 

Fulton Road. When defendant drove his police cruiser further down the road, he found the Impala 

off the road in a ditch with multiple doors open. There were no occupants present at the scene,

and blood appeared to be in the Impala. At the scene, defendant encountered Grand Rapids Police 

Officer Zuby who was traveling home at the time in a marked police vehicle. Defendant apprised 

Officer Zuby that he was unaware if the occupants had weapons, but they attempted to “take” him 

out. Officer Zuby responded that he had to swerve off the roadway to avoid a nearly head-on 

 

3

In light of the video recording from the police cruiser, it appeared that the cruiser was in the 

center of the roadway behind the Impala. The driver of the Impala did not reverse along the 

passenger side of the cruiser but choose the route where defendant was standing.

4 We note that the prosecution does not take issue with defendant firing the first three rounds at

the Impala as it reversed toward defendant. On appeal, the prosecution submits that the eight 

additional rounds fired at the Impala after it collided with the police cruiser and fled served as the 

grounds for the charges.

5 Defendant’s body camera recorded defendant stating that shots were fired and that the driver 

“tried to take me out with the vehicle.”
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collision with the Impala. Defendant requested a K-9 unit come to the scene to locate the Impala’s 

occupants and called his police chief to report the officer involved shooting.

Willie Bledsoe testified that the driver of the Impala picked him up around midnight in 

Grand Rapids, and the occupants were headed to Lansing.6 During the chase, Bledsoe asked the 

driver to pull over on multiple occasions but the driver did not do so. Bledsoe acknowledged that 

the driver had attempted to escape both before and after defendant fired his weapon at the Impala. 

After the Impala was stopped by the fallen tree, Bledsoe did not see defendant because he had his 

head down. Bledsoe denied hearing defendant speak or seeing him get out of the police cruiser. 

Bledsoe testified that he did not hear any gunshots until “we started driving off.” Additionally, he 

did not see any bullets but observed “glass flyin’ everywhere.” Bledsoe stated that he “got shot 

at” and felt a “little weird vibration” on the back of his head, but “it wasn’t like anything major.” 

Bledsoe later realized that the hoodie he was wearing during the incident had a bullet hole in it. 

After the incident, Bledsoe was taken to the hospital and treated for “injuries on [his] head.”

The prosecution charged defendant with assault with intent to do great bodily harm, 

misconduct in office,7and careless discharge of a weapon causing injury or death. The district 

court bound defendant over on all three charges, noting that the burden of proof only required that 

probable cause be established, not proof beyond a reasonable doubt. It further determined that the 

driver of the Impala committed fleeing and eluding in trying to resist an arrest. The district court 

stated that if the trier of fact found that the amount of force defendant utilized exceeded that which 

is legal, it could conclude that misconduct in office and careless discharge of a weapon occurred.

 

6 There were conflicts in Bledsoe’s testimony. Initially, he indicated that there were six other 

people in the car, yet he only identified five others. He identified the driver as “Mike Mike,” and 

two individuals in the front passenger seat as “Cello” and “Tatiana.” Bledsoe testified that he was 

in the middle of the backseat with “Collin” seated to his left and “J.C.” seated to his right. Initially, 

Bledsoe testified that he was asleep in the backseat of the Impala until the driver turned on the dirt 

road. Additionally, Bledsoe did not detect the driver traveling at speeds in excess of 100 mph. 

However, he later stated that he woke up when the other occupants discussed how defendant turned 

his police cruiser around and drove behind them but had not yet activated his overhead lights. 

Bledsoe testified that the vehicle occupants were found “a couple minutes or so later,” after the 

Impala crashed, but on cross-examination, acknowledged that they hid for 11⁄2 hours in a car on 

someone’s property. Bledsoe denied that he hid because he had engaged in any wrongdoing. But, 

after the bindover to circuit court, the prosecutor moved to exclude evidence that the Impala was 

stolen, that it contained stolen property, and any criminal charges or convictions pertaining to or 

underlying the police chase. Further, the prosecutor moved to exclude Bledsoe’s criminal 

convictions and juvenile adjudications as well as criminal activity pertaining to the other 

occupants.

7 The prosecution was unable to admit the Lowell Police Department’s policy and procedures 

during the proofs at the preliminary examination. At the bindover stage, it orally moved to amend 

the misconduct in office charge to reflect firing at a moving vehicle.
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Defendant then filed a motion to dismiss the charges against him, alleging that, as a law 

enforcement officer, defendant was justified, under the fleeing-felon rule, in firing his weapon at 

the Impala to stop the driver from fleeing. The prosecution responded8that the reasonableness of 

defendant’s use of force was a question reserved for the trier of fact.

At the motion hearing, defendant again asserted that his use of deadly force (firing his 

weapon at the fleeing Impala) was justified because the driver of the Impala was a fleeing-felon 

who posed an ongoing danger to the community. Additionally, defendant maintained that the 

reasonableness of defendant’s actions was a matter of law for the circuit court to decide. The 

prosecution responded that the issue of whether defendant’s actions were justified was a question 

that must be resolved by the trier of fact. And the prosecution argued that there was no Michigan 

caselaw that prohibits the criminal prosecution of police officers who used deadly force against 

nondangerous fleeing felons.

The circuit court determined that the issue was a question of law and that the issue should 

be viewed through the reasonable-officer standard. The circuit court concluded that the driver of 

the Impala was a fleeing-felon, that defendant was forced to avoid being injured by the Impala (a 

dangerous weapon), and that the driver presented an ongoing danger to the community. After 

noting that the driver of the Impala attempted to run defendant over with the car, it stated:

This wasn’t a near miss of just somebody who was trying to get away. This 

was actually hitting the police officer – the vehicle – to the point that he was out of 

the vehicle, as I understood the facts, and had to jump back to avoid being hit 

himself.

So the other aspect that I think is very critical here, in the overall assessment 

of the situation, is that the fleeing felon, so to speak, was with a dangerous weapon. 

And we know that the law is clear and settled that vehicles can be a dangerous 

weapon.

The fact that [the driver] was willing to – clearly, he was trying to get away. 

And I think that the passenger in his car say, you know, just, basically, that the 

driver was trying to get away, but the fact that he was willing to actually hit a police 

cruiser, and then continue off, I think, is really indicative of the fact that we have, 

not just an unarmed fleeing, we have a dangerous felon who is leaving in the midst 

 

8

In the response brief, the prosecution alleged that defendant’s motion contained a statement of 

facts “very generous to himself” that relied on information and evidence not found in the record. 

However, the prosecution’s response brief stated that the driver of the Impala “reversed, backing 

up toward and around the patrol car.” The brief failed to mention that the driver struck the police 

cruiser and that defendant had to jump into the cruiser to avoid being hit. The circuit court stated 

that it was not provided the police cruiser and police officer body camera recordings and had to 

find a video clip online. The circuit court expressed its disappointment that the prosecution’s 

recitation of the facts did not mention that the Impala struck the police cruiser.
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of a high-charged situation, and [defendant] had to make decisions in a split-second 

type of a situation.

And I find that the facts and circumstances of this particular case, which is 

then augmented by the fact that, not only did this fleeing felon with a dangerous 

weapon go about continuing to flee, but the fact that there was an off-duty officer 

who had to actually take evasive action, in the middle of the night, to avoid being 

hit, I think is indicative of the fact that this truly was a dangerous fleeing felon . . . .

And so I don’t find this to be an issue of fact for a jury, because we’re 

looking at it through the lens of a reasonable police officer. And I think that that is 

better, I guess, a determination by a reviewing court, in terms of making it a matter 

of law.

But again, I do really tailor this finding to the specific circumstances of this 

particular case, recognizing that the officer was – his vehicle was hit, that he would 

have been hit had he not moved, and the fact that this fleeing felon was continuing 

in a very reckless and dangerous manner with a dangerous weapon.

So for these reasons, I do find that [defendant] was justified, when we look 

at it from the circumstances at that particular time and not going back with hindsight 

later.

Accordingly, the circuit court granted defendant’s motion and dismissed the charges.

II. STANDARD OF REVIEW

We review a trial court’s decision to grant or deny a motion to dismiss charges against a 

defendant for an abuse of discretion. People v Ali, 328 Mich App 538, 542-543; 938 NW2d 783 

(2019). An abuse of discretion occurs when the trial court’s decision falls outside the range of 

reasonable and principled outcomes. People v Montague, 338 Mich App 29, 37; 979 NW2d 406 

(2021). The application of a legal doctrine to the request for dismissal is reviewed de novo. See 

Ali, 328 Mich App at 542. Application of a principle of law to uncontested facts is reviewed de 

novo. See People v Stevens (After Remand), 460 Mich 626, 631; 597 NW2d 53 (1999).

III. MOTION TO DISMISS

The prosecution submits that the circuit court erred by granting defendant’s motion to 

dismiss. We disagree.

Police officers work in an environment of criminal activity where each decision is fraught 

with uncertainty. Norris v Lincoln Park Police Officers, 292 Mich App 574, 579; 808 NW2d 578 

(2011). Police officers are entitled or justified in engaging in actions for their own protection. 

People v Otto, 91 Mich App 444, 451; 284 NW2d 273 (1979).

Certainly, it would be unreasonable to require that police officers take 

unnecessary risks in the performance of their duties. American criminals have a 

long tradition of armed violence, and every year in this country many law 
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enforcement officers are killed in the line of duty, and thousands more are wounded. 

[Id. at 451-452 quoting Terry v Ohio, 392 US 1, 23-24; 88 S Ct 1868; 20 L Ed 2d 

889 (1968).]

There is an inordinate risk to a police officer as he approaches an individual seated in a vehicle. 

Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977). A significant percentage 

of murders of police officers occur during the course of an officer making a traffic stop. Id. In 

People v Whitty, 96 Mich App 403, 411-412; 292 NW2d 214 (1979), this Court addressed the 

arrest of a felon and its application to private citizens and police officers:

Under the common law, the use of deadly force in making an arrest can be 

divided into two categories; the use of deadly force when the person making the 

arrest is met with force from the person who is to be arrested, and the use of deadly 

force when necessary to prevent the person who is to be arrested from fleeing. The 

first is generally analyzed under principles of self-defense, although there may be 

differences such as forgoing the necessity of retreat. The second is more 

problematic, and has sparked the most controversy. It also appears that the common 

law imposed a further distinction between police officers and private persons when 

the matter escalated beyond the issue of making the arrest to the question of when 

deadly force could be used to make the arrest. While a private citizen could arrest 

a person who was suspected of committing a felony that in fact occurred, deadly 

force was justified only if the felony actually occurred and the person against whom 

the force was used was in fact the person who committed the felony. A police 

officer was justified in acting on the basis of reasonable belief at both levels of 

inquiry. [citations omitted, emphasis in original.]

Thus, the use of force may be necessary to effectuate an arrest, and the use of deadly force may be 

“necessary to stop a felon from fleeing.” Id. at 412.

The prosecution of a police officer as a criminal defendant is not prohibited by the fleeingfelon rule. In People v Fiedler, 194 Mich App 682, 684; 487 NW2d 831 (1992), the circuit court 

quashed the information charging the defendant police officer with involuntary manslaughter, in 

relevant part, premised on the fleeing-felon rule. The Benton Harbor Police Department received 

an anonymous tip that Terry Jenkins, an individual wanted on a charge of open murder, had been 

spotted in the vicinity of 700 Pavone Street. Jenkins was described as wearing a brown brimmed 

hat, black sweatpants, white tennis shoes, a blue denim jacket with a fur collar, and braids in his 

hair. No information was given regarding Jenkins’ height, weight, or complexion. The defendant 

received the information about the anonymous tip and proceeded to Pavone Street. Id. at 684-685.

Marie Kimble was watching television in her upstairs apartment at 755 Pavone Street when 

acquaintance Sam Buchanan arrived with Norris Maben, a man she did not know Maben was 

wearing a blue brimmed hat, two coats, one blue and one black, blue sweatpants, and blue tennis 

shoes. Kimble allowed the defendant into her apartment after he knocked on her door. The 

defendant first encountered Buchanan and asked for identification. Maben was in an adjoining 

room outside the view of the defendant and told Kimble, “You ain’t seen me,” but she advised that 

she would not hide anyone. Maben entered the kitchen where the defendant was standing, advised 

that he did not have any identification, and said his name was, “Norris Maben.” As the defendant 
-7-

extended his hand toward Maben, Maben fled the kitchen into the living room and back bedroom 

before jumping outside through the glass of a closed window. The defendant followed Maben’s 

path through the apartment, yelled “halt” three times, and then three rapid gunshots were fired. 

Kimble saw Maben lying face down on the ground in the backyard. Kimble testified that the 

defendant never told the apartment occupants why he was there, never mentioned who he was 

looking for, never arrested or charged anyone with a crime, and never drew his handgun in her 

presence. Id. at 685-686.

The defendant called a deputy sheriff to testify to whom the defendant gave a statement. 

The defendant stated that he saw two men on the porch of 755 Pavone Street, and one of the men 

matched the description of Jenkins because he was wearing a small-brim hat and dark clothing. 

When he knocked on the door, the defendant encountered a small child and asked about the men. 

The child told the defendant that the men went to the upstairs apartment. Once there, the defendant 

encountered a woman who said that no one else was present. The defendant noted that the child 

downstairs stated otherwise when a man stepped forward and indicated that he was the only man 

there. The defendant asked for the man in the small-brimmed hat when Maben stepped forward 

into the room. Maben said his name and denied having any identification. When the defendant 

reached for Maben’s coat pocket to locate a wallet, Maben pushed the defendant, fled from the 

room, and dove out the window. The defendant stood at the window and ordered Maben to halt. 

The defendant observed Maben turn and move as if reaching to his hip for something, and the 

defendant drew his handgun and fired three shots, believing that Maben was, in fact, Jenkins, and 

that he was reaching for a weapon. Id. at 686-687. The circuit court, in part, granted the motion 

to quash, citing the fleeing-felon rule. Id. at 686.

On appeal, this Court reversed the circuit court’s application of the fleeing-felon ruling. 

After acknowledging the Whitty decision and the fleeing-felon rule, id. at 693-694, the Fiedler

Court determined that a factual issue was presented because of conflicts in the evidence, stating:

In determining that [the] defendant’s killing of Maben was justified under 

the common-law fleeing-felon rule, the circuit court found that [the] defendant 

reasonably believed that Maben was Jenkins and that [the] defendant was justified 

in using deadly force against Mabel. In so doing, the circuit court resolved conflicts 

in the testimony and substituted its judgment for that of the district court. Whether 

[the] defendant was justified in believing that Maben was Jenkins and in using 

deadly force against Maben is a question for the trier of fact. Accordingly, we hold 

that the circuit court erred in granting [the] defendant’s motion to quash the 

information. Considering the evidence presented at the preliminary examination, 

the district court did not abuse its discretion in binding over [the] defendant for 

trial. [Id. at 694.]

In light of the Fiedler decision, the prosecution submits that the circuit court erred in 

granting defendant’s motion to dismiss because the application of the fleeing-felon rule always 
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presents a factual issue that must be resolved by the jury.9 But, we have concluded that the 

application of a legal doctrine to the request for dismissal is reviewed de novo. See Ali, 328 Mich 

App at 542. And, the application of a proposition of law to uncontested facts is reviewed de novo. 

See Stevens (Aft Rem), 460 Mich at 631. In the present case, the police chase was captured on 

video recordings. In less than seven minutes, the driver of the Impala fled from defendant through 

the downtown streets of Lowell at approximately 2:00 a.m. During the chase, defendant’s police 

cruiser reached speeds of 106 mph but still did not come in close proximity to the Impala. The 

Impala driver’s decision to turn down an unlit dirt road and the fallen tree allowed defendant to 

close the gap between the vehicles and pull up behind the Impala. Defendant stood outside his 

police cruiser with his weapon displayed and demanded to see the driver’s hands. The driver of 

the Impala did not comply but choose to back up the Impala in the location where defendant stood. 

Defendant was forced to jump into his police cruiser to avoid being struck and fired shots into the 

Impala. The prosecution does not take issue with defendant’s conduct at that time. However, after 

the Impala passed the police cruiser, defendant jumped back from his cruiser and attempted to fire 

his weapon. At that time, the Impala was still in proximity to defendant and could have attempted 

to ram the cruiser or defendant himself. Defendant corrected his weapon and fired eight additional 

shots at the vehicle. However, the driver of the Impala did not drive forward to further disable 

defendant or the police cruiser and took off at a high rate of speed. As the Impala sped away, the 

driver encountered Grand Rapids Police Officer Zuby in a marked police vehicle. Officer Zuby 

noted that he was forced to leave the roadway to avoid being involved in a head-on collision with 

the Impala.

The undisputed evidence established that the driver of the Impala took defendant on a high 

speed chase through downtown Lowell, when stopped by a fallen tree he failed to surrender, he 

reversed the Impala into the police cruiser where defendant stood, he hit the police cruiser and 

caused defendant to jump in to avoid being struck, and then proceeded to flee the scene and nearly 

caused injury to another police officer through a head-on collision.10 The use of force may be 

necessary to effectuate an arrest, and the use of deadly force may be “necessary to stop a felon 

from fleeing.” Whitty, 96 Mich App at 412. A police officer may justifiably use deadly force 

when he has a reasonable belief that a felony actually occurred and that the person against whom 

the force was used was in fact the person who committed the felony. Id. Reasonableness is 

contingent on what an ordinarily prudent and intelligent person would do in light of his 

perceptions. See People v Orlewicz, 293 Mich App 96, 102; 809 NW2d 194 (2011). In the present 

case, defendant had a reasonable belief that a felony occurred. He turned the police cruiser to drive 

behind the Impala and saw that it had no license plate. The driver fled from defendant at a rate of 

speed that exceeded 100 mph. Fleeing and eluding is a felony offense, see MCL 257.620a. When 

 

9 For further support for this proposition, the prosecution also cited to caselaw involving a private 

citizen as the defendant seeking to invoke the fleeing-felon rule, People v Hampton, 194 Mich App 

593; 487 NW2d 843 (1992), and a case seeking to impose civil liability for an officer’s use of 

force, Alexander v Riccinto, 192 Mich App 65; 481 NW2d 6 (1991).

10 Although the videos did not depict significant traffic at 2:00 a.m., at least five vehicles were 

seemingly passed during the chase.
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the chase was forced to stop because of a fallen tree, the driver of the Impala disregarded 

defendant’s commands and reversed the Impala in the direction where defendant stood rather than

on the passenger side to avoid defendant. Defendant jumped into the vehicle and fired three shots 

at the Impala.11 If it was unclear that the driver of the Impala engaged in felony fleeing and eluding, 

he used the Impala as a dangerous weapon and attempted to strike defendant. See e.g., People v 

Blacksmith, 66 Mich App 216, 221; 238 NW2d 810 (1975) (A fleeing defendant, who swerved his 

car into a pursuing police vehicle during a high-speed chase, was properly charged with felonious 

assault, MCL 750.82, because an automobile can constitute a dangerous weapon). Defendant then 

left the police cruiser and attempted to fire shots at the Impala when it was behind the police 

cruiser. After correcting his weapon, defendant fired at the Impala as it was behind the police 

cruiser and as it drove off. The timespan between the stop at the fallen tree and the firing of the 

shots transpired in under 20 seconds. In light of the undisputed facts as recorded on the body 

camera and police cruiser video, the circuit court did not err as a matter of law in its application of 

the fleeing-felon rule.

We note that defendant moved for dismissal by relying on United States Supreme Court 

cases that address a defendant police officer’s liability in the context of the fleeing-felon rule. See

Plumhoff v Rickard, 572 US 765; 134 S Ct 2012; 188 L Ed 2d 1056 (2014); Scott v Harris, 550 

US 372; 127 S Ct 1769; 167 L Ed 2d 686 (2007); Tennessee v Garner, 471 US 1; 105 S Ct 1694; 

85 L Ed 2d 1 (1985). However, our Supreme Court rejected the request to apply the Garner

decision to a case of deadly force by a private citizen and concluded that the Garner decision could 

not automatically modify Michigan criminal law with regard to fleeing felons. See People v 

Couch, 436 Mich 414; 461 NW2d 683 (1990) (Opinions by BOYLE, J. id. at 416, and ARCHER, J. 

id. at 426-427).12

Affirmed.13

/s/ Anica Letica

/s/ Kathleen A. Feeney

 

11 Again, these three shots do not offend the prosecution.

12 Although a majority of our Supreme Court agreed that Garner could not alter Michigan law, it 

is a plurality opinion because a majority declined to alter the criminal liability in relationship to 

the common-law fleeing-felon rule. Couch, 436 Mich at 417. Rather, the lead opinion noted that 

whether the fleeing-felon rule had outlived its utility presented a question for the Legislature. Id.

13 We note that the prosecution repeatedly argued that defendant’s motion was, in effect, a request 

to quash, and therefore, analyzed the elements of the offenses and the proofs to support those 

elements. Because we agree that the request for dismissal was premised on the application of a 

legal doctrine, see Ali, 328 Mich App at 542, to uncontested facts, see Stevens (Aft Rem), 460 Mich 

at 631, we disagree. Therefore, we do not address the elements of the charged offenses as applied 

to the preliminary examination testimony.