ILNews

COA rules on excessive force under ITCA

Back to TopE-mailPrint

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.

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

ADVERTISEMENT