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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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