SOUTHFIELD, MI -- No matter how egregious the claims may sound, ramming a parked car with kids inside and later destroying the dash-cam video evidence, a former Southfield police officer said he was operating within the scope of his job and should be immune from a lawsuit.

The U.S. Court of Appeals for the Sixth District disagreed last week.

"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."

On the morning of Oct. 24, 2011, Cheryl McCarty said she was driving her three grandchildren to school when then Southfield Police Officer Keith Birberick pulled her over, claiming she'd illegally passed a school bus.

"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 issued Friday. "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."

During the initial interaction, McCarty also said she planned to file a complaint at the Mayor's Office.

About 20 minutes later, Birberick returned and noticed McCarty's vehicle in the same spot and inoperable.

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.

The car was pushed into the busy intersection of Lahser and Ten Mile in Southfield.

Birberick "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. Birberick 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 officer then left the scene without a word to McCarty.

Birberick never warned McCarty of his plan to move her vehicle from the road before hitting it from behind. At the time it was in "park,' according to McCarthy.

The force of the officer's vehicle lifted the rear of McCarty's car, threw the children to the ground and caused on to suffer a cut to the head.

McCarty said she attempted to file a complaint twice at the Southfield Police Department but was dissuaded and told Birberick destroyed his dash-cam video when she asked to view it the following day.

A lawsuit was filed and appealed by Birberick who said he was protected by law enforcement immunity while performing his job.

The U.S. Appeals Court said Birberick's actions "shook the conscience" and rose to a level of "gross negligence."

"In fact, this would be shocking--and criminal--behavior if committed by an ordinary citizen," the ruling says.

The Court agreed with a lower court decision determining Birberick was not immune to a lawsuit in this case because he was working in the capacity of a law enforcement officer.

Attorney Joe Seward of Seward, Peck and Henderson law firm is representing the city.

He said the facts as stated in the court filing have not gone before a jury and disputes things happened the way McCarty claims.

"The next step is we'll let a jury decide what really happened," Seward said. "Her version, her story as to what happened, those facts are no accurate."

The attorney says McCarty passed a bus illegally, became angry after she was ticketed and decided to file a lawsuit.

The Appeals Court ruling states: "For purposes of this appeal, Officer Birberick accepts McCarty's version of the facts ... but claims that those facts do not prove a clearly established constitutional violation."

While Seward said there is no dash-cam video of the incident, the attorney denies it was intentionally destroyed.

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.

Appeals Court ruling:

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