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.)