PER CURIAM.
Defendant, Lincoln Park Police Officer Dean Vann, appeals as of right the trial court's order denying his motion for summary disposition based on governmental immunity.
On April 5, 2007, Officers Malkowski and Vann received a police bulletin concerning a dark color Jeep traveling southbound on I-75 and being driven at a high rate of speed on three tires and a rim. The vehicle was being driven by plaintiff. Sparks were flying off the vehicle as a result of its condition and speed. The officers were unable to stop the vehicle for three miles despite activating lights and sirens. A semitrailer in front of plaintiff slowed to a stop, and plaintiff then stopped his vehicle. Officer Malkowski positioned her vehicle behind plaintiff to prevent his escape. The officers approached plaintiff's vehicle, and Officer Malkowski gave verbal commands to plaintiff to exit his vehicle. Plaintiff looked at her and looked away. Officer Malkowski again commanded plaintiff to shut off the engine and exit the vehicle. After plaintiff failed to respond to three commands, Officer Malkowski opened the door and attempted to pull him out, but he kicked at her with his feet, assaulted her with his hands, and actively resisted her. Officer Vann of the K-9 unit advised that he was going to get his dog, Aegis. Officer Vann testified that he ordered plaintiff out of the vehicle and advised that he would deploy the dog, but plaintiff did not comply. The dog began to bark and bite at plaintiff who began to kick and swat at the dog. Officer Vann told plaintiff to stop engaging the dog, and he would call the dog off. After 15 seconds,
While Officer Vann approached with the dog, Officer Malkowski heard plaintiff begin to spin the wheels on his car in an attempt to escape. She ran to the passenger side of the vehicle to remove the keys to prevent flight and injury to the officers. Plaintiff kicked at the dog and tried to avoid it by moving toward the center console. Officer Malkowski yelled at him to stop resisting and tried to grab plaintiff's coat to remove him from the vehicle. Once again, plaintiff began to strike Officer Malkowski and broke her glasses. At that point, two civilians ran up to her and asked if she needed assistance, and she accepted. The three pulled plaintiff from the car. Plaintiff was on his back with his hands beneath his body. He had to be rolled onto his stomach to be placed in handcuffs. During the incident, plaintiff looked straight ahead and did not verbally respond to commands. Although officers were aware of epilepsy that may cause seizures including involuntary movements, they were unaware of temporal lobe epilepsy and the staring spells that may accompany an episode of temporal lobe epilepsy. The officers did not notice any medical alert information on plaintiff's key chain.
Plaintiff asserted that he had no recollection of the incident, but testified that he now feared dogs and police officers and suffered from posttraumatic stress disorder. Although plaintiff acknowledged a history of epilepsy, he testified that the episodes he experienced caused him to "freeze." He testified that he remembered driving on I-75, hitting a pothole, and waking up in the back of a police vehicle. He passed out again in the back of the police vehicle and woke up in a holding cell. Plaintiff's neurologist, Dr. Eric Zimmerman, testified that although plaintiff's condition may cause him to "freeze," it was common for a person coming out of a seizure to be agitated or combative.
Plaintiffs filed suit alleging abuse of process,
The availability of governmental immunity presents a question of law that is reviewed de novo, and the decision to grant or deny summary disposition is also reviewed de novo. Willett v. Waterford Charter Twp., 271 Mich.App. 38, 45, 718 N.W.2d 386 (2006). If there are no material facts in dispute or if reasonable minds could not differ regarding the legal effect of the facts, the issue of governmental immunity is resolved as an issue of law. Id. A governmental agency is immune from tort liability when performing a governmental function unless a statutory exception applies. Jackson Co. Drain Comm'r v. Village of Stockbridge, 270 Mich.App. 273, 282, 717 N.W.2d 391 (2006).
In Odom v. Wayne Co., 482 Mich. 459, 468, 480, 760 N.W.2d 217 (2008), the Supreme Court concluded that lower-level employees are entitled to qualified immunity from tort liability for intentional torts when the acts were undertaken during the course of employment and the employee acted or reasonably believed that he or she was acting in the scope of his or her authority, the acts were performed in good faith or without malice, and the acts were discretionary, not ministerial. The good faith element is subjective in nature, and it protects a defendant's honest belief and conduct taken in good faith with the cloak of immunity. Id. at 481-482, 760 N.W.2d 217. Discretionary acts are those that require personal deliberation, resolution, and judgment. "Granting immunity to an employee engaged in discretionary acts allows the employee to resolve problems without constant fear of legal repercussions." Id. at 476, 760 N.W.2d 217.
A police officer's determination regarding the type of action to take, whether an immediate arrest, the pursuit of a suspect, or the need to wait for backup assistance, constitutes discretionary action entitled to immunity. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 659-660, 363 N.W.2d 641 (1984). A police officer's decisions regarding how to respond to a citizen, how to safely defuse a situation, and how to effectuate the lawful arrest of a citizen who resists are also clearly discretionary. See Oliver v. Smith, 290 Mich.App. 678, 689-690, ___ N.W.2d ___ (2010). Once the decision to arrest is made, it must be performed in a proper manner. Ross, 420 Mich. at 660, 363 N.W.2d 641. With regard to the execution of an arrest, "[a]n action may lie only if the officer has utilized wanton or malicious conduct or demonstrated a reckless indifference to the common dictates of humanity." Dickey v. Fluhart, 146 Mich.App. 268, 276, 380 N.W.2d 76 (1985). When addressing a claim of assault and battery that allegedly occurred during the making of an arrest, discretion must be reposed in the law enforcement officer concerning the means necessary to apprehend the alleged offender and to keep him secure after the apprehension. Firestone v. Rice, 71 Mich. 377, 384, 38 N.W. 885 (1888). Furthermore, "this discretion cannot be passed upon by a court or jury unless it has been abused through malice or wantonness or a reckless indifference to the common dictates of humanity." Id. Accordingly, the trial court must address a preliminary question of law. Good faith means acting without malice. See Armstrong v. Ross Twp., 82 Mich.App. 77, 85-86, 266 N.W.2d 674 (1978).
Police officers are not required to take unnecessary risks in the performance of their duties. See People v. Otto, 91 Mich.App. 444, 451, 284 N.W.2d 273 (1979). Police officers work in a "milieu of criminal activity where every decision is fraught with uncertainty." White v. Beasley, 453 Mich. 308, 321, 552 N.W.2d 1 (1996) (opinion by Brickley, C.J.) (quotation marks and citation omitted). In light of the unusual and extraordinary nature of police work, it is improper to second-guess the exercise of a police officer's discretionary professional duty with the benefit of 20/20 hindsight. Id.
In the present case, the intentional tort claims are barred by governmental immunity. See Odom, 482 Mich. at 468, 480, 760 N.W.2d 217; Ross, 420 Mich. at 659-660, 363 N.W.2d 641. Police dispatch received multiple 911 calls concerning a
Officer Vann's actions were undertaken during the course of his employment, he acted within the scope of his authority, the acts were performed in good faith, and the decision regarding the type of action necessary to effectuate the arrest constituted discretionary action.
The trial court concluded that there were factual issues precluding summary disposition because of the use of the dog, the release of the dog into a confined space, and the violation of the department's canine policies. An officer's decision regarding the type of action necessary to effectuate an arrest is only actionable if the officer engaged in wanton or malicious conduct or demonstrated a reckless indifference to the common dictates of humanity. In the present case, the officers testified that plaintiff was repeatedly uncooperative. After viewing the assault of Officer Malkowski, Officer Vann made a decision to utilize the police dog. Officer Vann testified that the use of a police dog can aid certain situations, such as the use of a barking dog in instances of crowd control. When it became apparent that plaintiff would also resist the police dog. Officer Vann called the dog back after 15 seconds. Without the dog to contend with, plaintiff began to once again resist Officer Malkowski who was now present at the passenger side of the vehicle. The action taken was discretionary police judgment. The conclusion that the use of the police dog was contrary to police policies and procedures is not supported by the record. The Lincoln Park Police Department's K-9 policy delineates the specific uses for the dog, but also allows for use of the dog for "any other assignment the handler feels the dog is capable of handling." Therefore, the trial court erred by holding that factual issues prevented the application of qualified immunity for the intentional tort claims.
Reversed and remanded for entry of an order granting defendant Vann's motion for summary disposition. We do not retain jurisdiction.
SAWYER, P.J., and MARKEY and FORT HOOD, JJ., concurred.