- Associated Press - Monday, February 29, 2016

SOUTHFIELD, Mich. (AP) - The actions of a Detroit-area police officer who twice rammed a stalled car with children inside would qualify as criminal if committed by a regular citizen, an appeals court said in clearing the way for the driver to sue.

Southfield Officer Keith Birberick has no immunity in the case brought by Cheryl McCarty, the court found last week in a 3-0 decision, affirming a ruling by a federal judge in Detroit.

McCarty was driving her grandchildren to school in October 2011 when she was stopped on a busy road in Southfield and ticketed for failing to stop for a school bus and failing to present proof of insurance.

McCarty’s car then wouldn’t start. Twenty minutes later, she said Birberick returned and pushed the car into traffic. He then struck the car again, sending it into a gas station and just missing gas pumps.

Attorneys for Birberick said there’s no evidence of malice, but the 6th U.S. Circuit Court of Appeals had a different view.

“Officer Birberick’s actions shock the conscience,” the court said, citing a legal standard.

“He then fled the scene of the accident he had just caused and destroyed evidence that might have proven his motivation or malicious intent,” the court said. “This is not what one would expect from a reasonable police officer in these circumstances. In fact, this would be shocking - and criminal - behavior if committed by an ordinary citizen.”

The lawsuit now will go to trial or be settled.

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