On October 20, the Court of Appeals released a 2-1 published opinion on the issue of governmental immunity. In that case, the police chief of a Michigan village was sued by a person he arrested for assault and battery and false arrest.

Governmental immunity from tort liability is governed by MCL 691.1407. Subsection 5 of the statute reads: "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." This provision is known in the law as "absolute immunity."

In the Court of Appeals majority opinion, Judges Fitzgerald and Krause held that a police chief, as the highest executive official of a level of government, only enjoys absolute immunity when performing acts "within the scope of his executive authority," and that "[w]hen a police chief acts as an ordinary police officer - that is, when the nature of the act is outside the scope of his executive duties - he is not entitled to absolute immunity simply because he is also the police chief."

Judge Murray dissented, reasoning that because the village's police chief presented an unrebutted affidavit stating that part of his duties as police chief included making arrests, and because the Legislature has given all police officers the authority to make arrests, the making of arrests does fall within the scope of the police chief's executive duties for which he is entitled to absolute immunity.

The full majority opinion and dissenting opinion may be found at http://www.michbar.org/opinions/appeals/2011/102011/49998.pdf.

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