[dropcap]S[/dropcap]outhfield, MI — This week the U.S. Court of Appeals for the Sixth District ruled that on an officer, who violently endangered the lives of an innocent grandmother and her three grandchildren by repeatedly ramming his car into theirs, is not immune from a lawsuit.
On Oct. 24, 2011, Cheryl McCarty was driving her three young grandchildren to school when she was stopped by Southfield police officer Keith Birberick. Birberick accused her of illegally passing a school bus.
Claiming that she hadn’t passed a school bus, McCarty voiced her discontent with the several hundred dollar ticket she was receiving for it. She also informed the officer that she planned to file a complaint with the Mayor’s Office over this incident.
“She argued with him, claimed there had been no school bus, accused him of racism, and refused to accept the ticket, letting it instead drop on the ground,” says the appeals ruling. “Officer Birberick returned to his patrol car—a large SUV—and drove away.
“But McCarty, who had turned off her ignition, but not her headlights had accidentally drained her car battery and could not restart her car.”
McCarty was stuck on the roadside for 20 minutes before officer Birberick came driving by again. Seeing her in the same spot apparently angered the officer, so he took action to remove her and her grandchildren from the roadside — with extreme prejudice.
McCarty “then noticed that (Birberick) had first pulled beside her and then got behind and hit her car so hard that her grandkids came out of their seats,” says a September filing from McCarty’s attorney, Diana L. McClain, according to MLive.
After Birberick initially rammed the car full of children, he “waited for traffic to clear and then got out of his car and approached (McCarty’s) car yelling that he could have ‘killed them, and it would have been his fault.'” the filing says.
But that wasn’t enough. Birberick then got “back in his car and rammed (McCarty) a second time” pushing it “into a nearby gas station narrowly missing oncoming motorists and a row of gas pumps … ”
The entire time, according to court records, McCarty’s vehicle was in park. One can only imagine the metal smashing chaotic scene that unfolded as a police SUV cruiser forced a parked car into a gas station parking lot by ramming it over and over.
The patrol car hit her vehicle so hard that the children were thrown to the ground, and one of them suffered a cut to the head.
Birberick then sped off and made no mention of the incident.
The very next day, McCarty went to the Southfield Police Department to file a formal complaint against the maniac who’d almost killed her and her grandkids. However, upon entering the station, officials dissuaded her from filing a complaint, noting that the dashcam video had been destroyed by Birberick.
Naturally, McCarty immediately filed a lawsuit against Birberick and the department, but Birberick appealed — claiming he was “protected by law enforcement immunity while performing his job.”
Birberick asserted his blue privilege and noted that because he was operating within the scope of his job, he should be immune.
Luckily, however, a court decided the idea of granting immunity to a cop acting in such a manner is a preposterous idea.
The U.S. Appeals Court said Birberick’s actions “shock the conscience” and rose to a level of “gross negligence.”
“In short, without consent or even warning, he violently rammed (a woman’s) car with his much larger SUV, needlessly damaging her car and propelling it into traffic, endangering the safety of the occupants, which included three small children,” the court ruled. “He then fled the scene of the accident he had just caused and destroyed evidence that might have proven his motivation or malicious intent.”
“In fact, this would be shocking—and criminal—behavior if committed by an ordinary citizen,” the ruling says.
Naturally, the attorney for the city denies it happened in such a manner and denies that Birberick intentionally deleted the dashcam footage.
“The next step is we’ll let a jury decide what really happened,” Attorney Joe Seward said. “Her version, her story as to what happened, those facts are not accurate.”
Seward claims that McCarty is merely angry about getting a ticket and so, for the last 4 years, she’s been attempting to sue.
MLive reports that Birberick is no longer with the Southfield Police Department, but Seward said his departure from Southfield has nothing to do with this incident.
According to his Linked In profile, Birberick, previously a Southfield police officer and member of the U.S. National Guard, is a police officer at Oakland Community College. The profile indicates he worked in Southfield for 29 years and retired in 2013.