The Indy Star has a story on an issue that has been blogged by the Indiana Law Blog and Opening Arguments. The question is whether police officers engaged in pursuit of a suspect are entitled to law enforcement immunity under IC 34-13-3-3(8). That provision states that governmental entities and their employees are immune from liability for actions they take in an effort to enforce the law.
Marion County Judge David Dreyer stated that officers were not entitled to law enforcement immunity when they hit a bystander while engaged in a high speed chase trying to apprehend a suspect. I do not know his rationale. However, the article states that the case could be merged with a Lake County case that raises the same issue.
Here is where I think the Court of Appeals reviewing the Lake County case got it wrong and where I think the Supreme Court ought to go with this law enforcement immunity case. The Court of Appeals spent a lot of time laboring over an apparent conflict between the immunity statute and IC 9-21-1-8 which imposes a duty on the driver of an emergency vehicle to drive with due regard for the safety of all persons. Ultimately, the Court decides that the immunity statute cannot be reconciled with the emergency vehicle duty statute and, because of that and certain rules of statutory construction favorit the duty statute, the duty statute trumps the immunity statute.
The Court of Appeals went so far as to quote the caselaw that leads in the opposite direction but did not follow its instructions to the necessary conclusion: “[I]t 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 common law duty exists under the circumstances.” Using this principal of immunity jurisprudence, you have to make the immunity determination first. Either the defendant is immune or not. Immunity exists in spite of duty. It’s not that the tortfeasor hasn’t breached a duty of care. That’s the whole point. The tortfeasor has acted negligently but the legislature has granted immunity in spite of the negligent breach of a duty.
So, first you look at ITCA (the immunity statute) and ask whether the police officer’s act constituted law enforcement. If so, the governmental entity and its employees are immune from liability. End of analysis. It’s only after you’ve established that immunity does not exist that you worry about whether a duty has been breached, regardless of whether it is a duty imposed by statute or by common law.
If any judges out there are reading this, consider whether you think the Court of Appeals statutory construction of law enforcement immunity would shake out the same way if it was judicial immunity on the line. Judges are immune from liability for decisions they make on the bench. Say the judge negligently messes up a sentencing calculation or fails to notice an inmate is on his jail list longer than his sentence called for. Certainly a statute on the books telling a judge to release an inmate when his sentence was up or to calculate a sentence in a certain way shouldn’t be construed to impair judicial immunity.
Immunity is a cruel thing. It potentially leaves someone who was wronged without a remedy against the wrongdoer. But, at least in the context of law enforcement, the benefits of having the government free to act to enforce its laws are seen to outweigh the detriment of leaving a claimant without a remedy when the government’s employees act negligently. (And, in the case of the judiciary, allowing judges to act freely is very important without every disgruntled litigant trying to conjure up a case for judicial liability.)
Branden Robinson says
Have to disagree with you on this one, Doug.
High speed car chases are a very dangerous testosterone game played between the fleeing suspect and the cop. We might expect reckless disregard for safety from would-be (or actual) criminals, but police officers should uphold a higher standard.
You’ll note that you don’t often hear about ambulances or fire trucks creaming pedestrians on the way to an incident, and yet these vehicles are deployed much more frequently than police cruisers on a chase. (I have only anecdotal support for this, but would appreciate references to studies upholding this assertion, or tearing it down, as the case may be.)
I think this is because paramedics and firefighters are racing to save lives. Police in pursuit, all too often, are racing only to save their egos. In California they’ve had to grapple with this problem repeatedly. Some panicky traffic offender flees from a cop, the cop gives chance, and a bystander dies. This is *after* a police officer’s had a chance to get the vehicle’s make, model, and plate.
I don’t think the analogy to judicial immunity holds very well. Judges don’t generally get to pick the cases they hear. Police officers can decide not to give chase for anything less than hard evidence of a grave threat to life or limb, but all too often it seems they don’t. Immunity seems to be reinforcing bad judgment, not good.
I think you’re arguing policy and I’m arguing statutory construction. You might be right about the policy, but I don’t think that’s how the immunity statute is written or how the case law interpreting law enforcement immunity.
Your arguments have merit, but I think the legislature is going to have to amend the immunity statute for that policy to be implemented.
Or maybe not — the Supreme Court has been known to do things that, in my opinion, completely broke with prior caselaw and basic statutory construction.
Branden Robinson says
Okay, I think I better understand the context of your remarks now.
However, I’m still not sure I’m with you. For me, the argument of “strict constructionism” is often misapplied. The fundamental purpose of government is to preserve the rights of the governed.
If conventional principles of statutory construction lead to a result in which the rights of the governed are violated, so much the worse for the principles of statutory construction.
On a note that I feel is related —
Rehnquist, before his accession to the Supreme Court, is said to have written that the doctrine of “strict constructionism” is ipso facto a doctrine that inherently disfavors criminal defendants and civil plaintiffs. Read in this light, a “strict constructionist” judge is not an alternative to an “activist”, simply one whose is an activist in favor of different types of parties, as has widely been noted over the past 20 years or so.
If so, I myself am proudly not a strict constructionist. The rights of the citizens and residents of a judge’s jurisdiction must be that judge’s primary concern. Immunity from liability for violating those rights promotes their abuse. This is just as true for my “cowboy cop” scenario as it is for the habits of limited-liability corporations to shove the cost of their externalities onto the public, a practice which you blogged about more recently.