Senate Bill 0396 Immunity for emergency vehicle operators. Sen. Weatherwax:
Provides a governmental entity or an employee acting within the scope of the employee’s employment immunity from a loss resulting from the operation of an authorized emergency vehicle under certain circumstances.
This seems pretty clearly to be an attempt to override the Supreme Court’s holding in City of Indianapolis v. Garman and Patrick v. Miresso involving injuries to third parties during high speed chases where the police are trying to apprehend a criminal. The Indiana Tort Claims Act immunizes governmental employees attempting to enforce the law. (IC 34-13-3-3) The Supreme Court held that the law enforcement immunity is limited by another statute (IC 9-21-1-8) requiring drivers of emergency vehicles to drive with due regard for the safety of all persons.
At the time, I suggested that the Court of Appeals (and therefore, subsequently, the Supreme Court) got it wrong because immunity analysis assumes negligence. So, a statute stating that one shouldn’t act negligently should do nothing to abrogate immunity.
Sen. Weatherwax’s bill would make explicit that the statutory duty of an emergency driver to drive with due regard for the safety of all persons does not abrogate a governmental entity’s tort claim immunity. The bill would go a bit further and offer immunity to all emergency vehicle operators using sirens or lights unless the vehicle operation constituted willful or wanton misconduct.
[tags]SB396-2007, immunity, law enforcement[/tags]
Sen. Weatherwax: BAD
Firefighters and EMTs are deployed more frequently than police, their vehicles are heavier and less maneuverable than police cruisers, and yet they manage to kill and maim innocent bystanders far less frequently than police.
Most judges and juries are going to be biased in favor of individual police officers anyway, and even when they’re not, police officers nearly always have capable representation thanks to their union.
Let the cops prove that they exercised good judgment via a preponderance of the evidence, which is the only burden they need meet in civil cases like this. Weatherwax puts the cart before the horse — how in the heck is a civil plaintiff supposed to demonstrate willful or wanton misconduct when they can’t even get to discovery because the police have, essentially, a statutory right to summary judgment in their favor?
Doug, if any of my amateur legal reasoning is off in the above, please set me straight.
Immunity for firefighters, EMTs and other emergency responders not engaged in “enforcing the law” is an enlargement of governmental immunity and should probably be chewed upon for awhile. Expansion of immunity should not be taken lightly, in my opinion.
It is also my opinion — contrary to the opinion of the Indiana Supreme Court, so take it for what it’s worth — that the legislature had previously intended to grant police immunity when they were engaged in law enforcement, whether that activity involved operation of an emergency vehicle or some other activity directly related to enforcing the law. So, I don’t think it’s as problematic. I think the policy is a good one. (But, I’m pretty biased — I represent my county’s Sheriff Department.)
Law enforcement is often going to involve police officers having to inject themselves into dangerous situations. They may be presented choices that are only bad — Do I let this criminal flee and quite possibly do more harm to the community? Or, do I act in a way that involves more than the usual level risk of harm to others to try to stop the criminal?
Without immunity, as an attorney with the county’s general fund in mind, my legal advice to a police officer would have to be to sit on their hands — cases are pretty clear that there is no private duty to enforce the law; meaning that if a criminal does you harm and the cops don’t stop that harm — even if you warned the cops that the criminal was going to hurt you — you don’t have a private right of action against the police. Without immunity, there is a strong incentive not to protect the public for fear of lawsuits.
You are incorrect about the inability of a Plaintiff to get to discovery. A plaintiff’s right to discovery begins with the filing of the complaint. Even if the defendant is entitled to immunity, the Plaintiff is entitled to depose witnesses and get production of documents and the rest of it. Only when there has been a fair chance for discovery will a court entertain a motion for summary judgment. (Unless of course the Plaintiff’s allegations, even if regarded as entirely true by the court, still wouldn’t entitle the Plaintiff to relief, in which case immediate dismissal would be in order. That’s why Plaintiffs often have to allege all sorts of horrid behavior on the part of Defendants.)
Doug,
Thanks for the correction on discovery matters. I had thought that discovery could be halted by a motion for summary judgment, and would only proceed if the claim survived that motion. I got that wrong, it seems, to the dismay of civil defendants everywhere. :)
Thanks also for presenting the other side of the issue from the police perspective. I suspect I will remain skeptical of high-speed police chases, but your view helps add nuance to my own.