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.
Dick Haggart says
Hi, Doug. You know I’m not an Indiana lawyer but nonetheless I can’t keep my mouth shut on this interesting issue. In defense of the Court’s decision, it seems to me that you cannot be acting with “unreasonable” force or under an “unreasonable belief” as a police officer *and* still be “within course and scope of employment” at the same time. The very unreasonableness of the officer’s conduct or state of mind removes him from the ordinary course of his employment — i.e., the officer was neither hired nor authorized to act unreasonably in the discharge of duties, and when an officer does act this way, then they remove themselves from the protection of the immunity statute.
Of course, I’m sure the Indiana Supreme Court was waiting with bated breath for a supportive comment from a retired old lawyer from Alaska.
The notion of “reasonableness” seems (maybe just to me) to get muddled up in use of force cases. I’m not quite sure if we’re talking about negligence-style reasonableness or Fourth Amendment Constitution-violating unreasonableness. There’s a gap, I think, and my read of the Indiana Supreme Court’s decision doesn’t make clear to me what happens if an officer’s use of force is negligent but not constitutionally excessive.
Dick Haggart says
Good point. The notion of ‘reasonable care to avoid undue risk of harm to others’ that we learned in Torts for Dummies doesn’t fit all that comfortably with the idea of ‘reasonable care to break only the minimum number of bones necessary to subdue a resisting suspect’.
As an extreme side example, go to http://collateralmurder.com/ and judge if the action of those US troops was reasonable.
Knowing what we know now, it very well may seem unreasonable. To the kid manning the gun who has been told that there are hostiles in the area that have attacked US troops, it may see very reasonable.
Point is, once a tragic event happens, all sorts of evidence can be sorted out pointing to what the best course of action may have been. However, for the person holding the gun with only seconds to react and limited information, the measure of “reasonable” is a far distance from what a judge may determine sitting with the benefit of hindsight.
Doug, while I haven’t read the case (yet), your description leads me to believe this could be an issue of conflicting statutes (which should be resolved by the legislature), rather than the issue of a Supreme Court determined to eliminate officer immunity. Is that fair?
Also, do you think the use of force against the fan on the field at the Phillies game was a reaonable use of force? Or would you personally believe that force to be “negligent”, and therefore, not subject to immunity. (I personally think the action was more force than necessary, but not unconstituionally so).
Your description is fair. My basic problem is that I think the court has essentially created the conflict by disregarding prior rulings on the proper method of analyzing immunity statutes. In the past, there have been decisions saying that, if the language of the statute confers immunity for a given activity, the analysis is over. For purposes of finding a conflict, you should never get to a statute dictating the standard of care because, in immunity cases, it’s assumed that the standard of care was breached but there is, nevertheless, no liability.
Additionally, if you look at the text of the law enforcement immunity statute, it specifically excludes acts of enforcement that constitute false arrest or false imprisonment. There is a principle of statutory construction (often ignored) that says “Expressio Unius Est Exclusio Alterius.” Fancy Latin for “the expression of one thing is the exclusion of the other.” This would mean that, by expressing two types of enforcement that are not immunized, the legislature is presumed to have immunized the remaining types of law enforcement.
That’s my take, anyway. Obviously the Indiana Supreme Court disagrees.
I didn’t see the Phillies’ take down. But, generally, there is a force continuum; you generally want to start as low as you can without risking anyone else’s safety and elevate until you obtain compliance.
First, we get rid of all the lawyers. Then we let the police do their jobs. Enough of this second guessing by people who do not have the courage to put on a uniforma and patrol areas of our cities where we fear to tread. This is an example of the court going to far parsing words. Do I believe that the police abuse their powers sometimes–yes. But the laws put in place will not help us deal with that problem. They just cause problems for the officers who are trying to do a good job without worrying about being second guessed by lawyers and media. IMHO
Working in public health and safety for a dozen years gives me a different view of this case. I actually agree with the court. If the use of force was unreasonable then the officer should be accountable. I’ve been in some rather scarey situations where the police officers are more dangerous than the suspect they’re arresting. I’ve seen situations in different states and cities where a few officers just like to beat on people. If these guys got kicked in the nuts legally a few times, maybe we could weed them out of law enforcement.
This may be a positive thing. Good officers can get their jobs done operating within the rules. Most of the officers I’ve met and worked with have little to worry about. They follow the rules, document well, and train often. The ones who say this discourages them from law enforcing are probably the ones who should be enforcing laws to begin with.
The problem is that jury trials are expensive and uncertain. Under this ruling, I think pretty much any suspect who can make barely plausible allegations that force was used negligently gets to have a jury decide the issue. Now your city and county fiscal bodies have to decide whether they want to trust a jury to do the right thing or just start paying people off.
Negligence is just a much lower standard than the excessive force prohibited by the Constitution.
And, of course, before we get to the question of whether this is good policy, we really need to decide whether the Court accurately captured the intent of the legislature. Did the legislature really intend a police officer to be liable for a good faith, but negligent, use of force? I don’t think so. But, I think this ruling can certainly be read to impose such liability.