Guider v. Smith

• Decision Date: 16 April 1987
• Docket Number: Docket Nos. 77323,79507
• Citation: 403 N.W.2d 505,157 Mich.App. 92
• Parties: Terrance L. GUIDER, Plaintiff-Appellee and Cross-Appellant, v. Ronald SMITH, Defendant-Appellant, and City of Detroit, Defendant and Cross-Appellee. Terrance L. GUIDER, Plaintiff-Appellant, v. Ronald SMITH, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 505

403 N.W.2d 505

157 Mich.App. 92

Terrance L. GUIDER, Plaintiff-Appellee and Cross-Appellant, v. Ronald SMITH, Defendant-Appellant, and City of Detroit, Defendant and Cross-Appellee.

Terrance L. GUIDER, Plaintiff-Appellant, v. Ronald SMITH, Defendant-Appellee.

Docket Nos. 77323, 79507.

Court of Appeals of Michigan.

Submitted Dec. 17, 1985.

Decided Jan. 6, 1987.

Released for Publication April 16, 1987.

Jaffe, Snider, Raitt & Heuer, P.C. by Brian G. Shannon and Carol A. Osborne and Theodore Spearman, Detroit, for plaintiff.

Cooper and Fink by Daniel S. Cooper and David H. Fink, Detroit, for defendants.

Before KELLY, P.J., and BRONSON and SIMON, ^* JJ.

SIMON, Judge.

On August 11, 1980, plaintiff, Terrance Guider, 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 and seeking damages pursuant to 42 U.S.C. Sec. 1983. Plaintiff was shot by officer Smith as he fled from the scene of an apparent breaking and entering. Plaintiff's theory of recovery was that Officer Smith's use of deadly force to apprehend him was excessive and unnecessary under the circumstances and amounted to a deprivation of his constitutional rights.

A jury trial was held in the case commencing on September 12, 1983. After the plaintiff had presented his case, the trial court granted a directed verdict to defendant City of Detroit. The court concluded that the evidence was insufficient to show gross negligence or deliberate indifference on the part of the city in the training and supervising of its police officers in the use of deadly force. Thereafter, the case went to the jury concerning the liability of Officer Smith. On October 18, 1983, the jury found in favor of the plaintiff and awarded him $472,000 in compensatory damages. Both sides appeal as of right raising numerous issues.

I

On April 20, 1978, plaintiff, then an eighteen-year-old youth with no criminal record, received a telephone call from a friend, Jeff Neely, who asked the plaintiff to help him remove his belongings from a house Neely claimed he had been sharing with his girlfriend. Following Neely's directions, plaintiff parked his car behind a house that Neely claimed was his girlfriend's. They entered at the side of the house. On plaintiff's third trip outside with Neely's alleged belongings, plaintiff saw a car with its lights off creeping down the alley towards the house. Fearing that the occupants of the house were returning, he dropped what he was carrying and ran. The next thing he remembered was that he was face down on the ground with somebody over him telling him to lie still because he had been shot. Plaintiff sustained serious injuries as a result of the shooting.

Defendant Smith testified that he became a police officer in 1974. On April 20, 1978, he was one of four members of a cruiser unit assigned to the 13th Precinct. That night his unit got a call to respond to "1145 Hague, two black males, B & E, the rear door." The radio call also said it was the first house on the alley. The officers pulled up in the alley behind the house with their lights off. They saw two black males in the back yard who immediately took off running. Defendant chased after the plaintiff and yelled "Halt, police!" three times. After the third time, Officer Smith fired one shot at the plaintiff striking him in the neck. 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. Officer Smith did not see anything to lead him to believe that the plaintiff was armed. An internal police department investigation concluded that the shooting was justified.

II

Defendant Smith's first claim of error concerns the trial court's refusal give certain jury instructions. Initially, defendant claims that the trial court erred in refusing to read SJI2d 115.09 in its entirety. After reviewing the record, I cannot agree.

SJI2d 115.09 states:

"If a person has knowledge, or by the exercise of reasonable care should have knowledge, that he or she is being lawfully arrested by a law enforcement officer it is the duty of that person to refrain from resisting the arrest.

"An arresting officer may use such force as is reasonably necessary to effect a lawful arrest. However, an officer who uses more force than is reasonably necessary to effect a lawful arrest commits a battery upon the person arrested to the extent the force used was excessive."

The trial court read to the jury the second paragraph of SJI2d 115.09 verbatim, except that the trial court substituted the word "wrong" for "battery." The first paragraph of the instruction was not read to the jury. After jury instructions were completed, defense counsel objected that the judge read only the second paragraph of SJI2d 115.09. The trial court and plaintiff's counsel thought that they had all agreed only to read the second paragraph, but defense counsel remembered differently. The trial court noted the defendant's objection, but the jury was not further instructed.

Generally, a requested and applicable standard jury instruction should be given by the trial court. MCR 2.516(D)(2). However, whether a particular requested instruction is applicable and accurately states the law based on the individual characteristics of a given case is left to the sound discretion of the trial court. Johnson v. Corbet, 423 Mich. 304, 327, 377 N.W.2d 713 (1985). Further, the Court in Johnson stated that a reviewing court should not reverse for a violation of MCR 2.516 unless it concludes that noncompliance with the rule resulted in such unfair prejudice that the failure to vacate the jury award would be inconsistent with substantial justice. 423 Mich. at 327, 377 N.W.2d 713.

Defendant argues that the first paragraph of SJI2d 115.09 was applicable for two reasons. First, defendant maintains that the instruction was applicable because whether the police officer's force was reasonable is related both to the right of the police officer to pursue and the duty of the fleeing felon to submit. Second, defendant asserts the instruction was applicable because otherwise the jury might infer the existence of a constitutional right to escape. However, plaintiff maintains that the instruction was simply not applicable because his breach of the duty to submit to an arrest was irrelevant to the issue of whether Officer Smith's use of deadly force violated his constitutional rights. I agree with the plaintiff.

Concerning the liability of Officer Smith, the jury was required to determine whether the degree of force employed by Smith was reasonable under the circumstances. The fact that plaintiff may have had a duty to submit to a lawful arrest is irrelevant to the determination of whether the force used by Officer Smith was reasonable. Defendant has cited no case which states that a fleeing felon's duty to submit to a lawful arrest makes the use of deadly force more reasonable. In fact, the United States Supreme Court has suggested that deadly force cannot be used on a fleeing felon who poses no serious threat of harm. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Thus, the fact that the plaintiff had a duty to refrain from resisting arrest is not relevant to the determination of whether the force used was reasonable, and therefore the first paragraph of SJI2d 115.09 was properly excluded from the jury instructions. Further, we reject defendant's contention that the instructions read even remotely suggested to the jury that the plaintiff had a constitutional right to escape.

Defendant also asserts that the trial court erred by refusing to give an instruction to the jury regarding the qualified good-faith immunity to actions under 42 U.S.C. Sec. 1983. While defense counsel apparently never offered a specific instruction on good-faith immunity under Sec. 1983, she did object to the fact that the court's instruction regarding the use of deadly force did not contain the "good faith defense as enunciated in Harlow " or the "immunity defense under 1983."

If supported by the evidence and under certain circumstances, a police officer is entitled to qualified immunity to a Sec. 1983 action for money damages if the officer acted in good faith. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Landrum v. Moats, 576 F.2d 1320 (CA 8, 1978), cert den 439 US 912 (1978). In Harris v. Pirch, 677 F.2d 681, 686 (CA 8, 1982), the Court stated:

"In Sec. 1983 actions for damages defendants are entitled to a qualified immunity from liability based on a good faith belief in the propriety of their actions and reasonable grounds for that belief. Procunier v Navarette, 434 US 555; 98 SCt 855; 55 LEd2d 24 (1978); Scheuer v Rhodes, 416 US 232; 94 SCt 1683; 40 LEd2d 90 (1974). Therefore, '[w]hen a court evaluates police conduct relating to an arrest, its guideline is good faith and probable cause.' ... 'Thus, even though a police officer may not have chosen the wisest or most reasonable course of action, he will not be civilly liable if his conduct is based on a reasonable and good faith belief that it was necessary under the circumstances.' "

In this case, I believe that, if the record indicates that testimony was offered to support a good faith defense, then Officer Smith would have been entitled to an instruction on the defense. After reviewing the record, however, I conclude that the defendant did not give any testimony which would have supported a good faith defense. Officer Smith's defense at trial was that the force he used to make the arrest was necessary and therefore justified. The defendant clearly testified that he believed the shooting was necessary. However, the defendant did not testify that he believed that it was lawful for him to shoot the plaintiff. At trial, he indicated that he was...