Be careful where you answer the call of nature
Linell Derrickson and two friends left a tavern at closing time and each found a separate shrub where they could relieve themselves. Unbeknownst to them, Pontiac police officer David Stone was searching for an unidentified person who had thrown a rock at his cruiser, and was apparently in a foul mood. Stone approached Derrickson, announced his presence, waited a second or two, and then fired three pepper balls at Derrickson.
Two of the pepper balls--or fragments from them--struck Derrickson on the side of his face and neck, and he was disabled by the resulting pepper cloud. Derrickson was then briefly handcuffed and detained while the officer and his partner confirmed that Derrickson did not throw the offending rock, earlier. Derrickson ultimately filed suit against Stone, alleging that he was guilty of gross negligence and assault and battery.The Court of Appeals Majority accepted Stone's claim that he waited a "couple of seconds" for Derrickson to respond to his order to turn around and put his hands up (it is perhaps self-explanatory why Derrickson could not complete this process that quickly). It also accepted Stone's claim that he was aiming at a utility box near Derrickson, and not at Derrickson. It also accepted Stone's argument that the innocent man must have been struck by pepper ball fragments from the nearby utility box. Lastly, it chose to ignore Derrickson's friend's affidavit that Stone "yelled 'Hey,' then walked up behind Derrickson and shot at him twice and hit him in the head from ...30 feet away." Based on these "uncontested" assumptions, judges Bandstra and Sawyer upheld the dismissal of Derrickson's claim on the assertion that "reasonable jurors could not conclude that Stone had acted with gross negligence" and that Stone was therefore entitled to immunity.
To his credit, Judge William Whitbeck, a Republican nominee to the Court of Appeals and certainly no liberal firebrand, dissented from the decision and the majority's mis-use of the summary disposition procedure. Judge Whitbeck noted the contradictory testimony and the admission that Stone allowed only seconds of response time before using "non-lethal force" in a manner prohibited by most police agency guidelines, and concluded that reasonable jurors could conclude that Stone acted with reckless disregard. We'd imagine Officer Stone and his buddies are having a good laugh over this outcome; and its certainly clear that nothing has been achieved in the way of protecting the innocent public from "non-lethal" force directed at innocent bystanders.