Guider v. Smith 431 Mich. 559

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 *563officer 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 *564police 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 de*565fendant 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 *566faith 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 objec*567tive 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 *568the 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 *569Under 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 *570clearly 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 *571plaintiff’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 *572there 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 *573defendant 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. *574A 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 *575officer, 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 *576that 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 *577appeal 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 *578but, 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.

Archer, J.

(concurring). 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 1983.1_

*579The majority holds that the defendant failed to preserve the trial court’s denial of the motion for directed verdict on qualified immunity grounds, because he contended that the use of force was not excessive, rather than that qualified immunity required judgment for the defendant as a matter of law. On this basis, the majority holds that the defendant was precluded from raising the defense here. Although I agree with the result reached by the majority, I do so on different grounds.

I would hold that the individual defendant was not entitled to the defense of qualified immunity under § 1983. Any entitlement to the defense was lost when defendant Smith failed to move for summary judgment and the case proceeded to trial. Accordingly, I would also affirm the result reached by the Court of Appeals, but for the reasons outlined below.

FACTS

On April 20, 1978, plaintiff, then eighteen years old, received a telephone call from his friend, Jeff Neely. Neely requested that the plaintiff assist him in removing his belongings from a house Neely claimed he had been sharing with his girl friend. Under Neely’s direction, plaintiff parked his car behind a house that Neely said was his girl friend’s. Neither plaintiff nor Neely testified regarding the address of this house. They entered *580from the side door. Plaintiff made two trips to the car with Neely’s alleged belongings.

Defendant Ronald Smith was a Detroit police officer assigned to a four-member cruiser unit of the Thirteenth Precinct.2 On the night in question, defendant Smith’s cruiser unit responded to a police radio run of "1145 Hague, two Black males, [breaking and entering], the rear door.” Defendant was familiar with the address because he knew the owner and had been inside the house on a prior occasion. The officers drove into the alley behind the house with their headlights off.

Plaintiff was making his third trip to the car carrying Neely’s alleged belongings when he and Neely observed the police car.3 Plaintiff and Neely dropped the items they were carrying and began to run through the back yard. The police officers observed the two, who fit the breaking and entering description, and ordered them to stop, by yelling "halt, police.” After yelling the third time, "halt, police,” defendant Smith fired one shot at the plaintiff, striking him in the back of his neck. No warning shot was ever fired.

Officer Smith testified that he fired because he was afraid he would lose the suspect between two houses where, for his own safety, he would not be able to pursue as fast. Defendant Smith did not see anything that would lead him to believe that the plaintiff was armed.

At that time, Michigan law permitted the use of deadly force, when necessary, to apprehend a flee*581ing felon.4 5*The Detroit Police Department’s policy on the use of firearms delineated an even narrower scope for the use of firearms by its officers. The policy limited the use of deadly force to seven felonies, of which breaking and entering was included. Accordingly, an internal police department investigation concluded that defendant Smith’s use of deadly force was justified.

On August 11, 1980, plaintiff filed a complaint in Wayne Circuit Court against the City of Detroit and Detroit police officer Ronald Smith, alleging that the defendants violated his federal civil rights under 42 USC 1983. Plaintiffs theory of recovery was that defendant Smith’s use of deadly force to apprehend him as he fled the scene of an apparent breaking and entering was excessive and unnecessary under the circumstances and amounted to a deprivation of his constitutional rights.5 In the answer to the complaint, the defendants raised the defense of qualified immunity.

A trial by jury commenced on September 12, 1983, with the Honorable Paul S. Teranes presiding. Prior to trial, defendants did not file a motion for summary judgment. The City of Detroit’s motion for directed verdict was granted at the close of plaintiff’s proofs on the ground that the evidence was insufficient to show gross negligence or deliberate indifference on the part of the city in training or supervising its police officers in the use of deadly force. The trial court denied defendant Smith’s motion for directed verdict because of the remaining questions whether probable cause existed and whether defendant Smith used only reasonable force under the circumstances. The *582trial court considered these questions of fact, to be resolved by the jury.

The case went to the jury concerning the § 1983 liability of defendant Smith. On October 18, 1983, the jury found in favor of the plaintiff and awarded him $472,000 in compensatory damages. Both parties appealed.

The Court of Appeals affirmed the trial court’s decision that defendant was not entitled to a qualified immunity defense.6

On October 6, 1987, this Court 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 1983.7

ANALYSIS

In Harlow v Fitzgerald, 457 US 800; 102 S Ct 2727; 73 L Ed 2d 396 (1982), the United States Supreme Court held that subjective evidence of an officer’s good faith is no longer relevant to an analysis of qualified immunity. As stated in Harlow:

Qualified or "good faith” immunity is an affirmative defense that must be pleaded by a defendant official. Gomez v Toledo, 446 US 635 [100 S Ct 1920; 64 L Ed 2d 572] (1980). Decisions of this Court have established that the "good faith” defense has both an "objective” and a "subjective” aspect. The objective element involves a presumptive knowledge of and respect for "basic, unquestioned constitutional rights.” Wood v Strickland, 420 US 308, 322 [95 S Ct 992; 43 L Ed 2d 214] (1975). The subjective component refers to "permissible intentions.” . . .

*583The subjective element of the good-faith defense frequently has proved incompatible with our admonition in Butz [v Economou, 438 US 478; 98 S Ct 2894; 57 L Ed 2d 895 (1978)], that insubstantial claims should not proceed to trial. . . .

In the context of Butz’ attempted balancing of competing values, it now is clear that substantial costs attend the litigation of the subjective good faith of government officials. Not only are there the general costs of subjecting officials to the risks of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service. There are special costs to "subjective” inquiries of this kind. . . . Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official’s professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.

Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Procunier v Navarette, 434 US 555, 565 [98 S Ct 855; 55 L Ed 2d 24] (1978); Wood v Strickland, 420 US at 322. [Harlow at 815-818. Emphasis added.]

Harlow set the stage for a new era in the law of qualified immunity. After Harlow, qualified immunity is a purely legal question, to be decided by the judge prior to trial.8 As stated in Harlow at 818-819:

*584Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors. [Emphasis added.]

Under the test set forth in Harlow, § 1983 defendants are entitled to qualified immunity if their conduct did not violate a clearly established statutory or constitutional right of which a reasonable person would have known. Harlow rejected the subjective element of the qualified immunity test in favor of a purely objective standard. We are bound by the United States Supreme Court’s construction of § 1983.9 However, I do not apply the Harlow analysis to these facts because the defen*585dant forfeited any entitlement to qualified immunity by failing to move for summary judgment.10

Harlow had been decided over a year prior to the start of trial.11 In Harlow, the Court determined that qualified immunity was a threshold question to be resolved on a motion for summary judgment prior to trial.12 Notwithstanding defendant’s awareness of Harlow,13 defendant did not file a motion for summary judgment prior to trial. The importance of filing a motion for summary judgment in § 1983 actions was reemphasized by the Court in Mitchell v Forsyth, 472 US 511; 105 S Ct 2806; 86 L Ed 2d 411 (1985).

In Mitchell, the United States Supreme Court held:

The entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.[14] [Id. at 526.]_

*586In Kennedy v City of Cleveland, 797 F2d 297 (CA 6, 1986), cert den 479 US 1103; 107 S Ct 1334; 94 L Ed 2d 185 (1987), the United States Court of Appeals for the Sixth Circuit considered whether a pretrial denial of qualified immunity was immediately appealable. In resolving this issue, the court interpreted Mitchell as describing two stages at which the doctrine of immunity may be interposed in a motion for summary judgment. The first instance arises when the complaint is insufficient to describe a violation of a clearly established and objectively well-known statutory or constitutional right, while in the second instance the complaint may be sufficiently descriptive, yet the claim upon which it is based is insubstantial. In contrast to Mitchell, Kennedy further stated that "decisions with respect to dismissal of summary judgment, if adverse, do not preclude the interposition of the defense of immunity as a defense to liability on the merits.” 797 F2d 300.

Accordingly, to the extent that Kennedy alludes to the defendant’s right to raise the qualified immunity defense at any point during the trial, it is inconsistent with the United States Supreme Court’s decision in Mitchell and thus, I do not consider it precedent.

In accordance with the United States Supreme Court’s holding in Mitchell, we hold that Smith effectively lost any right to a qualified immunity *587defense when the case proceeded to trial. To avoid this result, defendants in a § 1983 suit must specifically plead qualified immunity in their first responsive pleading as an affirmative defense15 and move for summary disposition prior to trial. If summary disposition is denied, defendants may pursue an interlocutory appeal of the denial.16 Accord, Mitchell, at 14-15.17_

*588Defendant moved for a directed verdict at the close of plaintiffs’ proofs. This was insufficient to preserve the qualified immunity defense because defendant had already begun to defend the action at trial. By this time, defendant had effectively lost his qualified immunity from suit.18

CONCLUSION

I would hold that the doctrine of qualified immunity does not require a reversal of the judgment against defendant Smith on the facts of this case. Any entitlement to the defense was lost when defendant Smith failed to move for summary judgment and the case proceeded to trial. To preserve the qualified immunity defense, a defendant must plead qualified immunity as an affirmative defense in the first responsive pleading and move for summary disposition prior to trial. The result reached by the Court of Appeals is affirmed._