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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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