Michigan Supreme Court 

# Order

Lansing, Michigan

January 11, 2008 Clifford W. Taylor,
Chief Justice

133433 Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly AMANDA JEAN ODOM, Maura D. Corrigan Robert P. Young, Jr. Plaintiff-Appellee, Stephen J. Markman,
Justices v SC: 133433 COA: 270501 Wayne CC: 05-503671-NI WAYNE COUNTY and CITY OF DETROIT, Defendants,

and

CHRISTINE KELLY, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the February 1, 2007 judgment of the Court of Appeals is cons idered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court prior to the completion of the pro ceedings ordered by the Court of Appeals.

C AVANAGH and W EAVER , JJ., would grant leave to appeal.

M ARKMAN , J., dissents and states as follows:

The defendant police officer has sev eral years of experience in arresting prostitutes. She suspected plaintiff of be ing a prostitute because of the way she was walking back and forth on the street and ma king eye contact with drivers in an area known for prostitution. Defendant eventually saw plain tiff get into a vehicle. She followed the vehicle, stopped it, and arrested pl aintiff for disorderly conduct. In my judgment, defendant appears to have conducte d herself in a consci entious and responsible manner. However, when th e charges were subsequently dismissed, plaintiff sued defendant for false imprisonment and malici ous prosecution. The trial court denied defendant’s motion for summary dispositi on, and the Court of Appeals affirmed.

MCL 691.1407 provides , in pertinent part:2

(2) [E]ach officer and employee of a governmental agency . . . is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or

service . . . if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s

conduct does not amount to gross negligence that is the proximate cause of th e injury or damage.

(3) Subsection (2) does not alter the la w of intentional torts as it existed before July 7, 1986. [Emphasis supplied.]

Plaintiff’s complaint does no t allege that defendant wa s grossly negligent. The trial court held that “[t]his does not amount to a claim of an intentional act” and that the issue was whether defendant was grossly neg ligent, defining this in terms of whether defendant had “probable cause” to arrest plaintiff. The Cour t of Appeals held that a question of fact existed regardi ng whether defendant acted in an “objectively reasonable”

manner. Defendant now ar gues that imposing liability for “unreasonable” conduct contravenes the Legislature’s gran t of governmental immunity.

In Stewart v Haan, unpublished opinion per curiam of the Court of Appeals, issued September 25, 1998 (Doc ket No. 201250), slip op at 2, the Court of Appeals stated that “[t]he law of governmental immunity an d alleged intentional torts by government agents is beset by confusion.” As that Court explained,

[t]he governmental immunity statute provides an exception for gross negligence. MCL 691.1407(2); MSA 3996(107)(2). The statute also contains the cryptic provision that “[s ]ubsection (2) shall not be construed as altering the law of intentional torts as it existed before July 7, 1986.” MCL 691.1407(3); MSA 3996(107)(3). Researching the interplay between these two provisions, we encountered two seemingly contradictory authorities on immunity for officers ch arged with intentional torts. Bell v

Fox , 206 Mich App 522; 522 NW2d 869 (1994), held th at officers sued for false arrest were entitled to immunity because they had acted within the scope of their authority (implicitly referri ng to Subsection [2]) and stated that “contrary to plaintiff’s argument, there is no intentional tort exception to the doctrine of gov ernmental immunity.” Id. at 525. In contrast, in

Sudul v Hamtramck , 221 Mich App 4 55, 482; 562 NW2d 478 (1997), this_______________________________________ __ 3

Court held that “an indi vidual employee’s intentiona l torts are not shielded by our governmental statute, a propositi on that too frequently is mired in

confusion.” Id. at 458. [ Id. , slip op at 3 n 2.]

Because the law in this area is in such disarray, I woul d grant leave to appeal. Although this appeal is interlocutory, if d efendant is entitled to im munity, she should not have to expend time and resources to d efend herself. “[A] ‘central purpose’ of governmental immunity is ‘to prevent a drain on the state’s financial resources, by avoiding even the expense of having to contest on the merits any claim barred by governmental immunity.’” Costa v Community Emer gency Med Services, 475 Mich 403, 410 (2006), quoting Mack v Detroit , 467 Mich 186, 203 n 18 (2002). “Allowing governmental employee defendants to raise an immunity defense while simultaneously requiring that they disrupt their duties and expend time and taxpayer resources to prepare an unnecessary affidavit of meritorious defense, would re nder illusory the immunity afforded by the [g overnmental tort liab ility act, MCL 691.1401 et seq .].” Costa, supra at
410.

Further, this is an issu e not only of jurisprudentia l confusion, but also of considerable substantive signi ficance given the potential deterrent effect of this decision on police officers undertaking legitimate arrests. Not every arrest leads to a criminal conviction, and not every arrest proves in the end to have b een well-founded. The “gross negligence” standard for immunity affords a significantly greater leve l of protection for police officers in carrying out their responsibilities than does the “probable cause” standard of the trial court, the “objectively reasonable” standard of th e Court of Appeals,

or the “intentional conduct” standard. Police officers are entitled to kn ow the standard of liability applicable to their con duct, as is the Legislature, which enacted the governmental immunity statute. If the liab ility of police officers is to be judged by a standard other than gross negligen ce, this should be made clear. It is hard to imagine a legal proposition more damaging to effective la w enforcement activity than that a mistaken arrest will expose a police officer to pers onal civil liability. There are many things that a police officer should be evaluating when he or she makes an arrest; th e threat of civil liability if he or she makes a wrong decision should not be at the top of this list.

s0108 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

January 11, 2008

Clerk