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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. Based on several recent Indy Star articles, I would agree that being a case worker would be really hard. You would see the worst of humanity on a daily basis; and when things go wrong guess who gets blamed??!! Not biological parent!! Best of luck to those who entered that line of work.

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  4. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

  5. Attorney? Really? Or is it former attorney? Status with the Ind St Ct? Status with federal court, with SCOTUS? This is a legal newspaper, or should I look elsewhere?

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