Guider v. Smith

431 N.W.2d 810, 431 Mich. 559

• Court: Michigan Supreme Court
• Decided: October 24, 1988
• Docket: Docket Nos. 80577, 80578, 80804, (Calendar No. 1)
• Status: Published

Opinions

Boyle, J.

This Court granted leave to consider the issue whether the judgment against the individual defendant should be reversed on the basis of the doctrine of qualified immunity under 42 USC 1983.

This appeal requires the Court to address 1) the substantive law of qualified immunity, and 2) the procedural problems which arise in framing and resolving claims of immunity in civil rights actions against police officers. We hold that the judgment against the defendant should not be reversed on the basis of the defense of qualified immunity.

The trial court correctly determined that the defendant was not entitled to a qualified immunity jury instruction. The trial court’s instructions were responsive to the defendant’s actual theory of the case. In addition, the defendant failed to preserve the trial court’s denial of the motion for directed verdict on qualified immunity grounds, having contended that the use of force was not excessive, rather than that qualified immunity required judgment for the defendant as a matter of law.

The Court of Appeals affirmed the judgment against the defendant. While we affirm the result reached by the Court of Appeals, we do so on different grounds and reject the analysis of the Court of Appeals.

i

Defendant Ronald Smith was a Detroit police officer assigned to a four-member cruiser unit of the Thirteenth Precinct. On April 20, 1978, defendant Smith’s cruiser unit responded to a police radio run: a "priority one” call to "1145 Hague, two Black males, b & e, the rear door.” The cruiser drove into the alley adjacent to 1125 Hague.

The officers saw two men coming down the steps of the house carrying items of personal property. The two men were Jeffrey Neely and the plaintiff, Terrance Guider. When the plaintiff and Neely saw the police car, they dropped the items they were carrying and began to run through the back yard. The defendant jumped out of the car and ordered the two men to stop, yelling, "Halt, police.” Officer Sparrow, the driver of the police car, also yelled, "Stop, police,” as he got out of the car.

As the defendant got to the back yard, he saw Neely running straight ahead and the plaintiff going over the fence. The defendant pursued the plaintiff to the front of the house and again yelled, "Halt, police.” He continued to pursue the fleeing plaintiff, who was running toward the freeway, and for the third time, yelled, "Halt, police.” The plaintiff kept running and, concluding that all possibilities of capture were exhausted, defendant Smith then fired one shot at the plaintiff. The bullet struck the plaintiff in the back of the neck causing serious injuries.

The defendant did not testify that he believed the plaintiff was armed, only that the plaintiff would have escaped if he had reached the freeway. The plaintiff claimed that, at the time of the incident, he thought he was carrying Neely’s belongings from a house that Neely claimed to share with a girl friend. The plaintiff was arraigned on May 16, 1978, and eventually placed in a youthful offender diversion program.

On August 11, 1980, the plaintiff filed a complaint in Wayne Circuit Court against Detroit police officer Ronald Smith.¹ The plaintiff alleged that the defendant violated his federal civil rights and sought damages pursuant to 42 USC 1983. The plaintiff contended that defendant Smith’s use of force was excessive and unnecessary to make the arrest of the plaintiff and thus amounted to a deprivation of plaintiffs constitutional rights to due process, equal protection, and freedom from cruel and unusual punishment.

In response to the complaint, the defendant raised the defense of immunity. A jury trial commenced on September 12, 1983. At the close of plaintiffs proofs, the defendant moved for a directed verdict on the grounds that no constitutional violation occurred and, alternatively, that he was entitled to qualified immunity. The trial court denied the defendant’s motion, reasoning that disputed issues of fact remained whether defendant violated the constitutional rights of the plaintiff.² The defendant’s request for jury instruction regarding a good-faith defense was also denied. The jury returned a verdict in favor of the plaintiff and awarded $472,000 in compensatory damages.

The Court of Appeals affirmed,³ also reasoning that the defendant was not entitled to a jury instruction regarding qualified immunity. However, the Court of Appeals reasoned that the defendant was not entitled to a qualified immunity instruction because he failed to testify that he believed that the shooting was a legal act at the time of the incident. We granted leave to appeal to consider the sole issue whether the judgment against the individual defendant should be reversed on the basis of the doctrine of qualified immunity under 42 USC 1983.⁴

ii

The proper test regarding claims of qualified or "good faith” immunity under 42 USC 1983 actions can be found in Harlow v Fitzgerald,⁵ 457 US 800; 102 S Ct 1717; 73 L Ed 2d 396 (1982): In Harlow, the United States Supreme Court altered the substantive law of qualified immunity and established a procedural goal for implementing the defense. Note, Quick termination of insubstantial civil rights claims: Qualiñed immunity and procedural fairness, 38 Vand LR 1543, 1547 (1985). The Court held that a government official performing discretionary functions is entitled to immunity from damages "insofar as [his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, supra, p 818.

To understand the effect of Harlow, it is necessary to examine the development of the qualified immunity doctrine in civil rights litigation. Prior to Harlow, under Pierson v Ray, 386 US 547; 87 S Ct 1213; 18 L Ed 2d 288 (1967), police officers were entitled to raise an affirmative defense of good faith and probable cause to claims of unconstitutional arrests. This qualified immunity defense to liability, for purposes of § 1983 claims, was the equivalent of those previously recognized defenses which could be raised at trial under common law. See 2 Restatement Torts, 2d, § 895D, pp 411-420. Prosser & Keeton, Torts (5th ed), § 132, pp 1056-1060. The defense thus assumed a violation of plaintiffs rights which was excusable.

In Scheuer v Rhodes, 416 US 232; 94 S Ct 1683; 40 L Ed 2d 90 (1974), the Court further developed the notion of a qualified, or "good faith” immunity as a defense to liability. The Scheuer Court addressed the issue whether the trial court had properly dismissed claims against certain executive officials on the basis that the officials were absolutely immune from suit. The Court rejected the claim of absolute immunity in favor of a qualified immunity standard and held that the qualified immunity defense depended upon a finding of reasonable grounds for a good-faith belief of the public official in the action taken, formed at the time of the incident in question in light of all the circumstances. Id., pp 247-248. Thus, the Court concluded that dismissal was improper because the lower courts had erroneously accepted as a fact the good faith of the executive, and "[tjhere was no evidence before the courts from which such a finding of good faith could be properly made . . . .” Id., p 250.

In Wood v Strickland, 420 US 308; 95 S Ct 992; 43 L Ed 2d 214 (1975), reh den 421 US 921 (1975), the Court dealt with the immunity issue in the context of a jury trial, again rejecting the defendant’s claims of absolute immunity in favor of qualified immunity. The Court held that the appropriate standard to use in deciding whether an official was entitled to qualified immunity encompasses both subjective and objective factors. Id., p 321. The Court concluded that an officer would not be entitled to immunity if

he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. [Id., p 322.]

While the Court rejected absolute immunity from liability for executive officials in Pierson, Scheuer, and Wood, supra, the Court also suggested that damage suits, alleging constitutional violations need not proceed to trial, but could be terminated by motion on the basis of qualified immunity. Butz v Economou, 438 US 478, 508; 98 S Ct 2894; 57 L Ed 2d 895 (1978). Thus, the Court emphasized that a "firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.” Id.

However, despite this admonition, in actual practice subjective good faith prevented early disposition of litigation because trial courts frequently deemed the subjective component of the defense a question of fact that required resolution by a jury. Balcerzak, Qualiñed immunity for government officials: The problem of unconstitutional purpose in civil rights litigation, 95 Yale L J 126, 132 (1985).

Fifteen years after Pierson v Ray, the United States Supreme Court recognized that the Wood test for qualified immunity had become disruptive of effective government due to "the costs of trial or the burdens of broad-reaching discovery.” Harlow, supra, pp 817-818. The Court’s response in Harlow was to narrowly limit the "subjective element of the good-faith defense,” id., p 815, and to redefine the defense. No longer could qualified immunity be defeated by a bare claim that the defendant acted with the malicious intention to cause injury. Under Harlow, government officials are liable for damages only if their conduct violates "clearly established” statutory or constitutional rights of which a reasonable person would have known. If the law governing their actions was not "clearly established,” the officers are protected from liability.

Thus, in addressing the qualified immunity question as redefined in Harlow, trial courts must consider: 1) whether the alleged conduct establishes a constitutional violation, and 2) whether the constitutional standard was clearly established at the time in question. Id., p 818. If the undisputed facts show that the defendant’s conduct violated no clearly established constitutional standards, qualified immunity applies as a matter of law. However, if the law was clearly established, the immunity defense ordinarily would fail unless the oficial demonstrates extraordinary circumstances, and can prove he neither knew nor should have known the relevant legal standard, in which case the defense should be sustained. Id., p 819. By initially defining the limits of qualified immunity essentially in objective terms, the Harlow Court proposed to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” Id., p 818.⁶ Under this new standard, in appropriate circumstances, the defense of qualified immunity functions as an immunity from suit as well as an affirmative defense to ultimate liability.

iii

The Court of Appeals determined that the defendant was not entitled to a jury instruction regarding a qualified immunity defense under 42 USC 1983.* ****⁷ This decision was based upon the erroneous belief that a defendant’s subjective belief in the legality of his actions at the time of the incident is necessary to support a good-faith defense. The Court of Appeals further erred in assuming that the issue of qualified immunity was an issue appropriate for a jury determination.

The Court of Appeals focused on the facts that "the testimony [of the defendant] did not establish that the defendant believed that shooting the plaintiff was lawful,” and that "there was no testimony to show it was reasonable for him to believe this.” On this basis the Court concluded that the "defendant was not entitled to good-faith immunity instruction.” 157 Mich App 101. That focus is subjective and incorrect under Harlow, supra.8 Assuming that there was a violation of a clearly established constitutional right, the next inquiry under the Harlow standard is whether a reasonable man in the defendant’s position could have believed his actions were consistent with the law.

We recognize that the subjective faith of a public official in a claim under § 1983 yet may be relevant in the situation in which the controlling substantive law makes an official’s state of mind an essential element of the plaintiff’s constitutional claim. See Martin v Dist of Columbia Metropolitan Police Dep't, 259 US App DC 31; 812 F2d 1425 (1987). The lawfulness of a challenged act may be dependent upon the actor’s motive or intent, and, therefore, the purpose for which the act was undertaken must be analyzed. Gutierrez v Municipal Court of Southeast Judicial Dist, 838 F2d 1031, 1051 (CA 9, 1988).⁹ In these cases, intent, such as purposeful racial discrimination, is an element of the plaintiff’s cause of action. Turner v Dammon, 848 F2d 440, 445, n 3 (CA 4, 1988).

Here, however, the defendant’s motivation or intent is not an essential element of the challenged conduct. It is therefore irrelevant to this plaintiff’s claim. Further, while in some instances the defendant’s motive or intent may be relevant to a plaintiff’s cause of action, it will rarely be relevant to a defendant’s claim of qualified immunity under the Harlow standard. What the defendant believed at the time of the incident and the failure of the defendant to testify as to his belief is irrelevant to a determination of the threshold question whether the defendant’s undisputed conduct violated clearly established law. Further, except in extraordinary circumstances, actual knowledge is irrelevant to a determination whether the defendant was entitled to a qualified immunity defense under 42 USC 1983.¹⁰

The defendant did not argue that extraordinary circumstances existed to demonstrate he neither knew nor should have known of the relevant legal standard. Thus, the Court of Appeals erred in its decision that the defendant’s subjective belief in the legality of the shooting was necessary to support a qualified immunity defense.

Although the application of the defense of qualified immunity has not been fully clarified, it is clear that the defense of qualified immunity is ordinarily not an appropriate issue for the jury.* ¹¹ In instances where the. right is clear, if the defendant alleges extraordinary circumstances justifying his failure to follow the law, Harlow suggests there could be an issue for the jury.¹² However, since the extraordinary circumstances must be such that the defendant neither knew nor should have known the relevant legal standard, even this exception would turn primarily on objective factors. Harlow, supra, p 819.

Again, we recognize that if there is a factual dispute (i.e., a genuine issue of material fact) involving an issue on which immunity turns, such that it cannot be determined before trial what the defendants’ acts were, or whether exceptional circumstances existed, the case will proceed to trial.¹³ However, it does not follow that any entitlement to a qualified immunity defense was lost when the defendant failed to move for summary judgment. While the failure to plead qualified immunity in the answer results in a waiver of the defense,¹⁴ Boyd v Carroll, 624 F2d 730 (CA 5, 1980), a defendant who properly pleads qualified immunity may raise the issue of a qualified immunity defense prior to, during, or after trial.¹⁵ The threshold test of a clearly established violation is one of law and always will be an issue for the court to decide.

The defense of qualified immunity assumes the occurrence of a violation of a constitutional right. A determination by a jury that a police officer did not have probable cause to arrest or that excessive force was used in effectuating an arrest would not resolve a qualified immunity question. Sevigny v Dicksey, 846 F2d 953, 956 (CA 4, 1988).

A court addressing the issue of qualified immunity must first determine whether the conduct of the police officer violated a plaintiff’s rights under the constitution. Then the court must address the issue whether the constitutional standards of the right in question were clearly established. A determination by the court that the alleged conduct of a police officer was a violation of a clearly established right would defeat a defendant’s motion for summary disposition on qualified immunity grounds. In appropriate circumstances, the same issue could be raised by a motion for judgment notwithstanding the verdict subsequent to a finding by the jury that, as in the present case, the police officer used excessive force.¹⁶

Regardless of the stage at which the issue of qualified immunity is addressed, the defense will turn primarily on objective factors, Harlow, supra, pp 818-819. Thus, the Court of Appeals discussion of qualified immunity which focused on the defendant’s subjective belief is incorrect under Harlow.

iv

The narrow issues before this Court are whether the trial court erred in denying the motion for a directed verdict in regard to the defendant police officer, and whether the jury instructions given by the lower court constituted prejudicial error.

In pertinent part, the plaintiff alleged that the use of excessive force by the defendant amounted to a deprivation of constitutional rights to due process, equal protection, and freedom from cruel and unusual punishment. In moving for a directed verdict, defense counsel claimed that there was no violation of a constitutional right. In addition, counsel claimed the defendant was entitled to the directed verdict on the basis of good-faith immunity since a constitutional right to be free from the use of excessive force had not been clearly established at the time of the incident. The trial judge ruled that there may have been a violation of due process¹⁷ if the police officer did not have probable cause or if the force he used was not reasonable under the circumstances.

The trial judge denied the defendant’s motion for a directed verdict, explaining that disputed factual issues existed.¹⁸ The trial court believed that disputed factual issues were created by the testimony and evidence presented by the plaintiff regarding both the plaintiff’s theory of probable cause and his theory of excessive force.¹⁹ On appeal, the defendant challenges only the denial of the directed verdict on excessive force grounds.²⁰

Although the United States Supreme Court had not addressed this issue,²¹ it appears that the law was clearly established that the use of excessive force²² violates the Fourteenth Amendment, Wilson v BeeBe, 770 F2d 578 (CA 6, 1985) (en banc). Because there remained disputed questions regarding whether the violation occurred, the defendant was not entitled to a directed verdict on the basis of immunity, and the trial court correctly denied the motion.²³ Moreover, the defendant did not appeal the denial of defendant’s motion for a directed verdict on qualified immunity grounds, arguing instead that the force used was not excessive and therefore there was no constitutional violation. Finding no manifest injustice, we decline to depart from our traditional rule that a party waives claims not properly presented for review. See Napier v Jacobs, 429 Mich 222; 414 NW2d 862 (1987).

Nor can we agree that the trial court’s jury instructions amounted to error requiring reversal. Because defense counsel did not submit proposed instructions, it is unclear whether she believed that defendant’s good faith was irrelevant on the proofs submitted or irrelevant on the merits after Harlow. While it was error to submit the question of good faith to the jury,²⁴ the instruction given here imposed the burden of proof on the plaintiff to prove that the defendant did not act in good faith.²⁵ This instruction may have been inappropriate,²⁶ yet the party harmed was not the defendant but, rather, the plaintiff. The jury found that the defendant’s use of deadly force was unreasonable, and the verdict is supported by the evidence.

v

CONCLUSION

Under Harlow, a police officer performing discretionary functions is entitled to the defense of qualified immunity when his conduct does not violate clearly established constitutional rights of which a reasonable person would have known. If the law was clearly established, the immunity defense will be sustained only if the officer demonstrates extraordinary circumstances and can prove he neither knew nor should have known the relevant legal standard.

We hold that the defendant in this case was not entitled to a defense of qualified immunity. We therefore affirm the judgment of the trial court and the decision of the Court of Appeals.

Riley, C.J., and Brickley, Cavanagh, and Griffin, JJ., concurred with Boyle, J. Levin, J. I concur in part iv of the opinion of the Court.

1 The original complaint included the City of Detroit as a defendant on the theories 1) that the defendant city’s policy to allow the use of deadly force to apprehend a fleeing, breaking and entering suspect was unconstitutional, and 2) that the defendant city was reckless or grossly negligent in training the defendant police officer. At the close of plaintiffs proofs, the trial court granted the city’s motion for a directed verdict.

2 The court decided that fact issues had been raised whether there was probable cause that the defendant would believe the plaintiff was a felon who was fleeing and whether the force used by the defendant was reasonable and necessary under the circumstances.

3 Guider v Smith, 157 Mich App 92; 403 NW2d 505 (1987).

4 Guider v Smith, 429 Mich 858 (1987).

5 We recognize that Harlow and Anderson v Creighton, 483 US 635; 107 S Ct 3034; 97 L Ed 2d 523 (1987), have been criticized as unduly expanding the scope of the qualified immunity defense. We must emphasize that our responsibility when resolving claims brought under § 1983 is to adhere to the federal standard.

6 As illustrated in Anderson v Creighton, n 5 supra, 483 US 644, the meaning of Harlow was to make the liability issue more susceptible to summary disposition. The relevant inquiry would be whether viewing the facts in the light most favorable to the plaintiffs, a reasonable official in the defendant’s position could have believed his conduct to be lawful considering the state of the law as it existed when the defendant took his challenged actions. An affirmative answer would entitle the defendant to dismissal of the claims, but a negative answer would not foreclose summary disposition if the defendant could establish through discovery that the actions he took were different than those alleged and that his actions were reasonable. Justices Stevens, Brennan, and Marshall accused the Court of creating a rule that "stunningly restricts the constitutional accountability of the police/’ id., 483 US 647. The Supreme Court, 1986 term: Leading cases, 101 Harv LR 119, 224 (1987).

7 The defendant did not preserve the directed verdict motion on qualified immunity grounds. The only directed verdict argument the defendant ever made in the Court of Appeals was that the uncontroverted facts showed no constitutional violation had occurred.

8 We assume, arguendo, that Harlow is applicable in this cause of action. The United States Supreme Court did not apply the Harlow objective reasonableness standard to police officers under 42 USC 1983 until Malley v Briggs, 475 US 335; 106 S Ct 1092; 89 L Ed 2d 271 (1986).

9 In addition, plaintiffs should be afforded an opportunity to overcome an asserted defense of immunity with offers of proof of an unconstitutional motive. As the United States Court of Appeals for the Sixth Circuit recognized in Poe v Haydon, 853 F2d 418, 431 (CA 6, 1988), under Harlow it is impermissible to inquire whether the defendant official actually knew that his conduct was unlawful. In this instance, however, the Court noted that "the relevance of motive or intent is especially applicable to Poe’s claim of sex discrimination in violation of the equal protection clause” and, as a result, "in deciding whether the appellants violated clearly established rights, there must be an inquiry sensitive to their individual motivations.” Id., p 432. Subsequently, findings of a genuine issue of material fact concerning a defendant’s motivation for a decision and direct evidence that a defendant was motivated by plaintiff’s gender would necessitate a trial in order to determine whether the alleged conduct established a constitutional violation. Further, the test is still "the objective reasonableness of an official’s conduct.” Id., p 430.

10 A subjective inquiry may become relevant where a defendant claims that there were exceptional circumstances which justified his failure to know the clearly settled law. For example, a defendant may claim reliance on advice of counsel, and therefore an inquiry whether there was such reliance would be proper. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2d ed), § 8.15, p 508.

11 The circumstances in which an instruction on good faith would be used seem to be relatively rare. For example, such an instruction would be appropriate in circumstances where a search warrant, albeit an invalid one, is being used. 3 Devitt, Blackmar & Wolff, Federal Jury Practice & Instructions (4th ed), § 103.90, p 30 (1988 Supp).

12 It is apparent that the knowledge of the defendant is relevant in extraordinary circumstances. In Hobson v Wilson, 237 US App DC 219, 244-245; 737 F2d 1 (1984), the court described the appropriate inquiry as follows:

[A]ssume plaintiff alleges that defendant violated Right x, and defendant moves for summary judgment on grounds of qualified immunity, claiming Right x was not well-established when the alleged acts were committed and, alternatively, that extraordinary circumstances prevented him both from knowing and having reason to know the relevant legal standard. If the district court judge determines as a matter of law that Right x was well-established, a question of fact might still remain as to whether defendant reasonably neither knew nor should have known of it. The first issue is purely legal and should be susceptible to initial determination on the complaint and summary judgment papers. The latter is potentially an issue for trial, depending on the unique circumstances of each case.

13 The Court need not (and should not) resolve any disputed questions of material fact. "However, if there are issues of disputed fact upon which the question of immunity turns, . . . the case must proceed to trial.” Green v Carlson, 826 F2d 647, 652 (CA 7, 1987). Thus, although the immunity issue will frequently be resolved in motion practice, lower federal courts recognize that the qualified immunity defense may be presented in a motion for directed verdict and in a motion for judgment notwithstanding the verdict, i.e., "even after a trial.” Benson v Allphin, 786 F2d 268, 277, n 19 (CA 7, 1986), cert den 479 US 848; 107 S Ct 172; 93 L Ed 2d 109 (1986) (partial directed verdict and judgment notwithstanding the verdict on qualified immunity grounds); Saldana v Graza, 684 F2d 1159 (CA 5, 1982) (directed verdict). See Bates v Jean, 745 F2d 1146, 1152 (CA 7, 1984).

14 The purpose of a "raise or waive” rule is to give the opposing party notice of the defense and an opportunity to argue why the claim should not be barred since an affirmative defense may defeat the opposing party’s claim. 5 Wright & Miller, Federal Practice and Procedure: Civil (Í987 Supp), § 1270, p 69. However, once the defense has pled and the plaintiff is on notice that the issue will be raised, sound policy does not dictate the unique "raise or waive” rule created in the concurring opinion.

15 The concurring opinion misperceives the language of Mitchell v Forsyth, 472 US 511, 526; 105 S Ct 2806; 86 L Ed 2d 411 (1985). When the Court stated that the right "is effectively lost if a case is erroneously permitted to go to trial,” it meant that under certain circumstances qualified immunity functions as an immunity from suit, the effectiveness of which is lost if the defendant must go through the time and expense of having to defend insubstantial claims. In concluding that the issue of qualified immunity is immediately appeal-able, the Court explained the dual nature of qualified immunity as not only "a mere defense to liability” but also "an immunity from suit.” Id. Thus, the Court’s language indicates that the entitlement to immunity from standing trial (as opposed to immunity from liability) would be, as a practical matter, forfeited if appeal on the former issue was delayed until at or after trial on the merits. Nowhere has the Supreme Court stated or implied that immunity from liability must be preserved by way of a summary disposition motion.

As the United States Court of Appeals for the Sixth Circuit has observed, Mitchell counsels trial courts to consider three different and relatively independent aspects of immunity: at a motion to dismiss, on motion for summary judgment, and in defense of liability. In Kennedy v City of Cleveland, 797 F2d 297, 300 (CA 6, 1986), the court stated:

Mitchell makes it clear that immunity doctrines’ protections against liability and against the various burdens of litigating insubstantial claims are conceptually distinct (citation omitted). Consequently, decisions with respect to dismissal or summary judgment, if adverse, do not preclude the interposition of the defense of immunity as a defense ....

16 Under the Anderson test, then, if, on objective assessment of the circumstances, an officer situated as the defendant reasonably could have believed that the force used was necessary, the defendant would be granted immunity. In the instant case we must not be concerned with the plaintiffs conduct as this particular defendant perceived it, but as a police officer acting reasonably under the circumstances should have perceived it. Sevigny v Dicksey, supra, p 956.

17 The constitutional provision upon which most courts ground a § 1983 claim alleging excessive force is the Fourteenth Amendment— the use of force is treated as a potential deprivation of liberty without due process of law. See Johnson v Glick, 481 F2d 1028 (CA 2, 1973) (employing a Fourteenth Amendment substantive due process analysis to analyze an excessive force claim).

Despite the large number of excessive force cases, the Supreme Court has decided only two excessive force cases brought under § 1983. Freyermuth, Rethinking excessive force, 1987 Duke L J 692. In Tennessee v Garner, 471 US 1; 105 S Ct 1964; 85 L Ed 2d 1 (1985), the Court held that the use of deadly force is a seizure subject to the reasonableness requirements of the Fourth Amendment. In Whitley v Albers, 475 US 312; 106 S Ct 1078; 89 L Ed 2d 251 (1986), the Court developed a standard to determine whether the shooting of a prisoner violated the Eighth Amendment. The adherence of circuit courts to substantive due process factors to excessive force cases has been viewed as creating an abstract constitutional right to be free of excessive force.

18 The trial judge noted, "[tjhere are a lot of fact issues that have been reused during the testimony on both the issue of whether or not there was probable cause that Sergeant Smith would believe that plaintiff was a felon who was fleeing the scene, and, secondly, was the force of Sergeant Smith reasonable force under the circumstances.” The trial judge incorrectly determined that a disputed factual issue existed as to probable cause. However, the defendant has not appealed the denial of his motion on that ground.

19 The trial judge noted that there were questions regarding the distance between the plaintiff and the defendant, the number of police officers at the scene, the layout of the area, and the way in which the plaintiff could have escaped.

20 We take no position on whether plaintiff’s alternate theory presented factual issues which were properly submitted to the jury.

21 The United States Supreme Court has failed to clarify whether only its own pronouncements can clearly establish a constitutional right, or whether lower court decisions will have the same effect. The United States Court of Appeals for the Sixth Circuit, however, has held that in order to be clearly established, a right must be decided by the highest court in the state where the case arose, by a United States Court of Appeals, and by the Supreme Court. Robinson v Bibb, 840 F2d 349 (CA 6, 1988).

22 This is not the right recognized in Tennessee v Garner, n 17 supra, as Judge Kelly noted below, 157 Mich App 92, 114; 403 NW2d 505 (1987). The Gamer Court did not establish a constitutional right to be free from the use of excessive force, but simply recognized that the application of force implicated a specific Fourth Amendment right and applied the standard developed to protect that right. To the extent that Judge Simon’s opinion suggests that Tennessee v Garner applies to the question of defendant Smith’s liability, we express no opinion on the merits of that question.

23 We assume, arguendo, that Harlow immunity applies, while noting that in Johnson v Glick, n 17 supra, Judge Friendly set forth four factors for courts to apply, including good faith or a malicious or sadistic purpose.

24 The defendant did not properly allege or establish that extraordinary circumstances existed to demonstrate that he neither knew nor should have known of the relevant legal standard. Thus, it was not appropriate to submit this question to the jury.

25 The trial judge recited the following instructions:

Plaintiff has the burden of proof to prove by a preponderance of the evidence that either the Defendant Ronald Smith did not have probable cause to believe that the crime of breaking and entering an occupied dwelling was committed by the Plaintiff, Terrance Guider, or, that the Defendant Ronald Smith did not honestly believe that the deadly force was necessary to prevent the escape of the Plaintiff Terrance Guider, or if he (fid honestly believe it, then this belief was unreasonable given the totality of the circumstances — the facts and circumstances the Defendant Ronald Smith was aware of or reasonably should have been aware of at that time.

26 See Gomez v Toledo, 446 US 635; 100 S Ct 1920; 64 L Ed 2d 572 (1980).