Oliver v. Smith, is a “published” Court of Appeals opinion, Docket No. 292585 ___ Mich App ___ (2010), that extends the Supreme Court’s “good faith” standard established in the 2008 Odom v Wayne County decision, a case which I briefed and argued, to the “state law” intentional torts of assault and battery / excessive force alleged against law enforcement officers.
This is significant because Odom made clear that the standard when reviewing a law enforcement officer’s claim of individual immunity from intentional torts alleged against him or her is a “subjective” good-faith standard, one which is not to be second-guessed in hindsight from an objective viewpoint. However, Odom addressed the intentional torts of malicious prosecution and false imprisonment, not assault and battery and excessive force.
It is also significant because it implicitly answers those recent Sixth Circuit decisions that have attempted to interpret Odom, but have continued to apply the “federal” “objectively reasonable” standard to the conduct of the law enforcement officer.
Prior to this decision, VanVourous v Burmeister, 262 Mich App 467 (2004), a Court of Appeals decision, had been consistently cited for the proposition that the standard for “assault and battery” / “excessive force” claims was “objectively reasonable” and thus, it was more difficult for a law enforcement officer to claim that he or she acted in good faith under the circumstances of the situation and in the heat of the moment, i.e., subjectively, when his or her conduct or actions were being judged from an “after the fact” “objective” perspective.
The Oliver case also highlights that when a law enforcement officer is doing his or her job and acting within the scope of his or her authority, they have broad discretionary latitude in the manner in which they can approach, apprehend and ultimately arrest individuals.
This is a significant extension of my Odom decision to the intentional torts of assault and battery and excessive force as plead against law enforcement officers acting within the course and scope of their authority and in the performance of the law enforcement function.
We’ll see if the federal courts pick up on this nuance when addressing “state law” intentional tort claims against law enforcement officers.