In a case entitled Wilson v. Isaacs, the Indiana Supreme Court continues a line of cases that erodes immunity protection for law enforcement officers. Basically, if there is an applicable statute that sets a standard of care, the Indiana courts will ignore a statute that otherwise provides immunity to law enforcement officers.
I was opposed to this line of thinking back in 2006 and 2007, and I still am. I think it ignores past precedent and gets the analysis backward. The Supreme Court hasn’t really mentioned its past statements that immunity assumes negligence but precludes liability anyway. It is only after a determination is made that a governmental defendant is not immune under the ITCA that a court undertakes the analysis of whether a duty exists under the circumstances.
That was with respect to the previous decisions having to do with police liability when a third party was injured during a high speed chase. Today’s decision has to do with immunity when an officer uses force to apprehend a suspect. Immunity is provided by IC 34-13-3-3(8):
A governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from . . . the adoption and enforcement of or failure to adopt or enforce a law[.]
Today, the Supreme Court held that this immunity is limited by the use of force statute, IC 35-41-3-3(b):
A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest.
In other words if the force used was unreasonable or, I suppose, the belief held by the officer is unreasonable, then there is no immunity. It’s up to a jury to decide what is or is not reasonable. Read broadly, this decision subjects officers to a simple negligence standard as determined by a jury in hindsight. From a liability standpoint, this encourages officers to fail to enforce the laws – immunity is still intact for failing to enforce the law.
There is probably a narrower interpretation that could still be imposed by the courts analyzing this decision. That interpretation would still allow immunity for use of force that fell below the Fourth Amendment’s “excessive force” threshold. This is a higher bar than simple negligence. (See e.g.)
This would be more workable than subjecting officers to a jury trial for every accusation leveled against them by disgruntled arrestees. The better bet would probably be for the General Assembly to specify exactly the immunity available to officers attempting to enforce the law.