Rosalind Rochkind (P23504) | Garan Lucow Miller, P.C. | 1000 Woodbridge Street | Detroit, MI 48207-3108 | 313-446-5522 | [email protected]

Despite the Court holding in Odom v Wayne County that MCL 691.1407 provides an immunity defense to lower level governmental employees who commit intentional torts, counsel argues that the standard applied by this Court for that immunity denies the defense to police officers that used excessive force during a lawful arrest. First, the question of whether the force used by a police officer was objectively reasonable is distinct from the question of whether the police officer is entitled to an immunity defense. Second, In Odom, the Michigan Supreme Court recognized the existence of governmental immunity for lower level governmental employees who commit intentional torts, and adopted the three-part test from Ross v. Consumers Power, to determine whether the employee may use this immunity defense. Third, the Court of Appeals fails to differentiate between a lack of good faith and evidence of indifference to whether harm will result in cases involving excessive force by police officers, thus depriving officers of an immunity defense. Lastly, due to the need for fact-specific inquiries, which are necessary for different types of excessive force claims, and the conflicting standards applied in precedent cases, the Supreme Court must clarify the definition of “good faith” in excessive force cases.

The application for leave to appeal the January 31, 2013 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

Burton police officer was dispatched in response to complaints that a man was running in and out of traffic and yelling at motorists. Defendant approached plaintiff’s decedent who told defendant that he thought someone was trying to shoot or kill him. Plaintiff’s decedent walked away, defendant followed him, approached him from behind and put his hand on his right shoulder. Plaintiff’s decedent turned around and pushed defendant with both hands. After defendant called for backup, he and plaintiff’s decedent grabbed each other and
they both “went down to the ground.” As the two men were struggling, defendant shot plaintiff’s decedent.