On July 19, 2008, Village of Port Sanilac Police Chief Ronald Jaskowski was called by another police chief to a fundraiser at a local park; a number of people had complained about a band playing at the event, and trouble appeared to be brewing between those who wanted the band to play and those who did not. When Jaskowski arrived, the event’s organizer had returned to the park; at some point, the decision was made to stop the concert. Meanwhile, a drummer from another band, Thomas Petipren, had set up and was playing. According to Petipren, Jaskowski grabbed him without warning and pushed him off his seat. When Petipren began asking “What did I do?”, Jaskowski pushed him off the stage and shoved him to the ground before handcuffing him, Petipren asserts. Jaskowski disputes this account, saying that he told Petipren to stop playing and that Petipren refused, swore at him, and punched him in the jaw when he tried to take Petipren’s drumsticks; Petipren also resisted arrest, Jaskowski maintains.
Petipren sued Jaskowski, both individually and in his capacity as police chief, claiming that Jaskowski assaulted him without provocation and wrongfully arrested him. Jaskowski filed his own lawsuit against Petipren, alleging assault, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. Petipren filed a countercomplaint in that case alleging intentional and negligent infliction of emotional distress and negligence against Jaskowski.
Jaskowski moved for summary disposition of the claims against him in each case, asserting governmental immunity. Jaskowski could not be sued, he argued, because he was acting in his capacity as police chief when he responded to the incident at the park and arrested Petipren. The trial court denied Jaskowski’s motions.
Jaskowski appealed, but in a published 2-1 decision, the Court of Appeals affirmed the lower court’s ruling, saying that Jaskowski acted outside the scope of his “executive authority” as police chief and hence was not immune from suit.
“Governmental immunity from tort liability is governed by MCL 691.1407,” the majority noted. Under MCL 691.1407(5), “A judge, legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.” In general, a police chief is deemed to be the highest appointive official in the police department, the majority said.
“However, under MCL 691.1407(5), the highest appointive executive officials of a level of government are not immune from tort liability unless their acts fall within the scope of their executive authority,” the majority stated. “Whether the highest executive official of a local government was acting within his or her authority depends on a number of factors, including the nature of the acts, the position held by the official, the local law defining the authority, and the structure and allocation of powers at that particular level of government.”
Citing the Port Sanilac village council’s job description for chief of police, the majority said that Jaskowski’s duties “generally involve policy, procedure, administration, and personnel matters,” but not “acting as an ordinary police officer.” Earlier published Court of Appeals decisions had recognized immunity for a police chief when the chief was exercising executive authority, such as supervising and discharging police officers, the majority said.
“Although a police chief may occasionally perform the duties of an ordinary police officer, the police chief is not acting within the scope of his or her executive authority as the highest executive official in the police department when doing so,” the majority declared. “Rather, the nature of the act is that of an ordinary police officer. As an ordinary police officer, he would be entitled to the immunity provided to governmental employees under MCL 691.1407(2) if all the statutory requirements were satisfied.” MCL 691.1407(2) does not confer absolute immunity on police officers from tort claims; the statute provides that police officers are immune from suit if 1) they are acting, or reasonably believe they are acting, within the scope of their authority; 2) they are engaged in the exercise or discharge of a governmental function; and 3) their conduct does not amount to gross negligence that is the proximate cause of the injury or damage.
But the dissenting judge said that the trial court should have granted summary disposition and dismissed Petigren’s claims against Jaskowski. The dissent reasoned that Jaskowski was entitled to absolute immunity, based on Jaskowski’s “functional responsibilities” as police chief. “Jaskowski submitted an affidavit in which he attested that his executive authority as the chief of police included, amongst many other things, the duty to ‘arrest offenders,’” the dissent noted. “This testimony was based in part on the job description for the chief of police (which was also submitted to the trial court), which sets forth both the ‘functional responsibilities of the Police Department’ as well as the ‘essential duties and responsibilities’ of the position. As described in Jaskowski’s affidavit, his work as chief of police also included controlling public gatherings, the dissent noted.
“Furthermore, the Legislature has given all police officers the authority to pursue, arrest, and detain persons suspected of committing a crime,” the dissenting judge said. “Because Jaskowski was the highest executive official within the police department and the authority granted to that executive position included the ability to arrest offenders, he acted within the scope of his executive authority when he arrested plaintiff.”
Jaskowski appealed. In a May 2, 2012 order, the Supreme Court granted leave to appeal, “limited to the issue whether Chief of Police Jaskowski is entitled to absolute immunity under MCL 691.1407(5).”