By Adam S. Willfond, Travelers Staff Counsel Indiana
In 2019, Indiana’s General Assembly passed a law which provides immunity from civil liability relating to use of force employed under certain circumstances. See generally Ind. Code § 34-30-31-1 et seq. As an initial matter, how can the legislature do that?
The legislature may create, modify, or abolish any particular cause of action. VanDam Estate v. Mid- Am. Sound, 25 N.E.3d 165, 169 (Ind. Ct. App. 2015) (citing Smith v. Ind. Dep’t of Corr., 883 N.E.2d 802, 810 (Ind. 2008)). Indeed, the Indiana Supreme Court has found that it is within the legislature’s authority to expand or restrict the scope of sovereign immunity. See State v. Rendleman, 603 N.E.2d 1333, 1337 (Ind. 1992). The Rendleman court held the law enforcement immunity section of the Indiana Tort Claims Act was a constitutional exercise of legislative authority. Id. Whatever one may think of the resultant laws, the legislature has exercised this discretion many times. A quick search of the Indiana Code reveals literally dozens of immunity provisions. See generally Ind. Code § 34-30-1-1 et seq.; see also KS&E Sports v. Runnels, 72 N.E.3d 892, 899-901 (Ind. 2017) (discussing various immunity provisions passed by legislature). In fact, the legislature just enacted an immunity from Covid-related claims for businesses during its 2021 session. Ind. Code § 34-30-32-1 et seq.
Back to the use-of-force immunity. When a “forcible felony” is being committed, an individual is justified in using force against the person committing the forcible felony. Ind. Code § 34-30-31-1(c). The Indiana Code defines a forcible felony “a felony that involves the use or threat of force against a human being, or in which there is imminent danger of bodily injury to a human being.” Ind. Code § 35-31.5-2-138. It also includes the criminal offenses of residential entry and burglary. Ind. Code § 34-30-31-1(a).
Under the immunity statute, the fact that an individual was not prosecuted for a crime relating to his use of force creates a rebuttable presumption that the use of force is justified under Ind. Code § 35-41-3-2. See Ind. Code § 34-30-31-1(e). And the justified use of force under Ind. Code § 35-41-3-2 “provides a complete immunity against any claim or action initiated by a person who alleges to have been injured or damaged by the force or whose conduct justified the use of force.” Ind. Code § 34-30-31-1(b). Indeed, when the use of force is justified—i.e., when an individual is not criminally charged for his conduct—“no claim or action for damages” can be brought against that individual or his employer. Ind. Code § 34-30-31-1(b).
Beyond that, if a defendant moves for summary judgment and shows that he was not charged with any criminal offense, the plaintiff must “oppose the motion with admissible evidence directly contradicting the application of the immunity in order to establish a genuine issue of material fact for trial.” Ind. Code § 34-30-31-1(d). The immunity applies to any action commenced after June 30, 2019.” Ind. Code § 34-30-31-1(f). Interestingly, the statute also provides for attorney’s fees if the defendant wins on summary judgment or at trial. Id.
What does this statute mean in practice? For governmental defendants, it could be substantial. For example, Indiana law requires police officers to use only reasonable and necessary force in making an arrest. Bowden v. Town of Speedway, Ind., 539 F. Supp. 2d 1092, 1110 (S.D. Ind. 2008). If an officer uses excessive or unnecessary force, he may commit the tort of battery. Id. Indiana’s excessive-force standard effectively parallels the Fourth Amendment standard discussed above. O’Bannon v. City of Anderson, 733 N.E.2d 1, 3 (Ind. Ct. App. 2000). But the use-of-force immunity seems to place the kibosh on these and other tort claims—if the facts (and stars) align. The same conclusion could also be drawn for private defendants too.
For now, the courts have not had the occasion to interpret or apply the statute. Time will tell to what extent the immunity applies to bar any state-law claims.
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