COA rules on excessive force under ITCA

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The use of excessive force is not conduct immunized under section 3(8) of the Indiana Tort Claims Act, the Indiana Court of Appeals ruled today.

In Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven, No. 09A05-0906-CV-344, the appellate court had to determine if the trial court correctly granted summary judgment for Cass County Sheriff Gene Isaacs in the Wilsons' suit alleging injuries as a result of excessive force.

Deputy Brad Craven was called to a party held at Billy Don Wilson's house in response to a report that the Wilsons' brother, Carl, had punched a juvenile in the head. The account of the events following Craven's arrival differed among the parties: Craven said Patrick Wilson grabbed him from behind and wasn't compliant with his orders, so Craven ultimately fired his Taser at him. Patrick said he tapped the deputy on the shoulder to show him the person at the party the deputy was looking for when Craven pulled out his Taser and yelled at Patrick. Patrick claimed he was shot with the Taser after not knowing which of the deputy's commands to obey. The three Wilson brothers were arrested.

There's been some confusion whether the ITCA law enforcement immunity provision applies to claims for injuries resulting from the use of excessive force during a detention or arrest, noted Judge James Kirsch.

In 1993, the Indiana Supreme Court issued Quakenbush v. Lackey, 622 N.E.2d 1284 (Ind. 1993), which held section 3(8) of the ITCA conferred immunity to law enforcement officials for breaches of public duties owed to the public at large, but didn't shelter officers who breached private duties owed to individuals. In Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993), the high court found that law enforcement officers owed a private duty to refrain from using excessive force when making arrests and the use of excessive force isn't conduct immunized by section 3(8).

The high court later criticized the public duty/private duty test used in Quakenbush in Benton v. Oakland City, 721 N.E.2d 224, 230 (Ind. 1999), but didn't expressly overrule Quakenbush. The Supreme Court in another case later explained Benton overruled the public/private duty test at common law.

There are questions as to whether Kemezy still remains good law, wrote Judge Kirsch, noting Kemezy is directly on point with the instant case and has not been overruled. The judges followed the U.S. District Court for the Southern District of Indiana's reasoning on Kemezy to conclude the use of excessive force is not conduct immunized under section 3(8) of the ITCA.

"Therefore, consistent with the holding in Kemezy, police officers and the governmental entities that employ them can be found liable for excessive force claims despite the immunity coverage of the ITCA," he wrote. "Until our Supreme Court overrules Kemezy, we cannot conclude as a matter of law that the Sheriff is immune from liability for the Wilsons' excessive force claim based solely on the ITCA."

The trial court was correct in granting summary judgment in favor of the sheriff as to the state law claims against Craven individually. The Wilsons complained Craven acted outside the scope of his employment, but didn't present a reasonable factual basis supporting the allegations as required under Indiana Code Section 34-13-3-5(c). The undisputed evidence established Craven was acting within the scope of his employment, wrote the judge.

The case was remanded for further proceedings.


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.