Officer Birberick: Ram My Car Once, Shame On You…
Mar. 1, 2016 (Mimesis Law) — As we’ve covered before, it’s pretty hard to sue a police officer. Pretty hard to charge one too. And disciplinary complaints? Good luck with that. But even our court system has its limits. Southfield, Michigan, Police Police Officer Keith Birberick didn’t just find those limits, he rammed them out into a busy street with three crying children inside.
But let’s not get ahead of ourselves. The Sixth Circuit Court of Appeals held that a federal district court made the right call when it denied Officer Birberick qualified immunity. Cheryl McCarty got into a fight with a police officer about a ticket he had given her for allegedly passing a stopped school bus. She fought with him, called him a racist, and dropped the ticket on the ground. In a way, the officer showed some restraint—he probably could have arrested her with her three grandchildren still wailing inside the car and there would have been no lawsuit to speak of.
But he chose, instead, to drive away in his large SUV. He probably felt a thrill of karmic victory when he came back 20 minutes later to see that her car battery had died while she fought with him on the side of the road. Despite her best efforts, there was no one available to pick her up. She was stranded.
Birberick offered his own form of assistance. He walked up to her car, and when she rolled her eyes at him, he got back into his SUV, and rammed her car from behind, ostensibly to push her into a nearby gas station.
He did not forewarn McCarty of his intention to ram her car and the collision took her and the children by surprise, throwing them from their seats.
Birberick did not use this moment to reflect on his decision-making skills, or even to take a deep breath. Instead, as the court summarized:
Rather than moving the car to the gas station, however, this collision actually forced the car further into traffic. McCarty and the children were wailing in panic. Officer Birberick got out of his car and began screaming at McCarty that she could have been killed, though he did not specify what she had done wrong or should have done differently.
Then he had a smart idea. Why not ram her again?
He then waited for traffic to clear and rammed her car again, this time so hard that he knocked the rear end of the car up off the ground, causing it to lurch into the gas station, just missing the gas pumps. At this point, McCarty was dazed, the children were on the floor with one bleeding from the head, and the car was severely damaged. Officer Birberick drove off without any further interaction.
Now, you might imagine that there is some pretty damning dash cam footage of this going on. And you’d be right, except that, Birberick “later destroyed the dash cam recording from his police car.”
What’s truly remarkable about this case isn’t that Birberick acted with insane disregard for the safety of a grandmother and three children in enacting his over-the-top revenge for her earlier disrespect. It’s that an attorney decided, after losing on the issue at the district court level, to take it up to the Sixth Circuit Court of Appeals and see if they’d overturn the previous ruling.
Now, maybe counsel thought it would be a good idea because it’s really, really hard to prove that a police officer has violated your “substantive due process” rights. You have to show that his behavior “shocks the conscience.” And the Sixth Circuit isn’t always easy to shock—even a decision about warrantlessly paralyzing a man with drugs to search his rectum for crack cocaine drew a dissent.
As the Sixth Circuit Court of Appeals noted: “this would be shocking—and criminal—behavior if committed by an ordinary citizen.” Yet a lawyer could reasonably charge the government of Michigan what was likely a pretty hefty fee to take the case up on appeal. And he could reasonably tell his employers that they had a shot at winning.
Officer Birberick was not new to his job. He was not new to dealing with the public. But he knew that by driving away and destroying his dash camera evidence, he could likely rely on his credibility as a police officer to refute McCarty’s account of what happened.
And now, McCarty has won something. Not money. Not a jury verdict. Just the right to sue in front of a group of ordinary people. We should be glad that McCarty won. We should be horrified that it’s news.
 Substantive due process rights are, for the uninitiated, those rights which are so fundamental that they may not be stripped away no matter how fair the process for doing so. In a pretty arbitrary set of decisions, substantive due process has been used for everything from abortion to bakery labor contracts, to punitive damages in civil cases.
Main image via Deb Jacques/C&G Newspapers