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Savieo v. City of New Haven4/7/2005
criminal act in the State of Indiana." Appellant's Br. at 10. While this observation is true as far as it goes, it is far from dispositive here.
The trial court found that Lt. Baatz could have detained Jon pursuant to Indiana Code Section 12-26-4-1, which provides:
A law enforcement officer, having reasonable grounds to believe that an individual is mentally ill, dangerous, and in immediate need of hospitalization and treatment, may do the following:
(1) Apprehend and transport the individual to the nearest appropriate facility. The individual may not be transported to a state institution.
(2) Charge the individual with an offense if applicable.
The decision to take Jon into custody pursuant to Indiana Code Section 12-26-4-1 presumably would have resulted in his being searched and restrained. To the extent that Patrick's negligence claim is premised on Lt. Baatz's failure to apprehend Jon to prevent him from committing suicide, we agree with the trial court's conclusion that the City is entitled to immunity under Indiana Code Section 34-13-3-3(8). Granted, Indiana Code Section 12-26-4-1 does not criminalize conduct and thus cannot be "enforced" in the same sense as a statute outlawing murder, for example, but it does grant a law enforcement officer the discretion to compel another's obedience to the police powers of the state as defined by its laws and constitution, regardless of whether the person is suspected of committing a crime. The exercise of this discretion is the very essence of law enforcement; accordingly, we hold that police officers and their governmental employers are entitled to immunity if a loss results from the decision to apprehend (or not to apprehend) a mentally ill and dangerous person "in immediate need of hospitalization and treatment" pursuant to Indiana Code Section 12-26-4-1.
To the extent that Patrick's negligence claim is based on other grounds relating to Lt. Baatz's alleged acts or omissions in handling Jon's suicide threat, we must continue our immunity analysis. In its motion for summary judgment, the City also claimed that it was immune for the " he performance of a discretionary function" under Indiana Code Section 34-13-3-3(7). We disagree. In Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40 (Ind. 1988), our supreme court developed the "planning/operational" test for determining whether a particular function is discretionary. The court subsequently explained that through this test, "we distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitled to immunity." Greathouse v. Armstrong, 616 N.E.2d 364, 366-67 (Ind. 1993). Here, Lt. Baatz was engaged in the execution or implementation of policy; consequently, the City is not entitled to discretionary function immunity.
The City also claimed immunity under Indiana Code Section 34-13-3- 3(10), which precludes liability for " he act or omission of anyone other than the governmental entity or the governmental entity's employee." Patrick correctly observes that such immunity applies only where a plaintiff seeks to impose vicarious liability for the conduct of third parties "other than government employees acting within the scope of their employment." Mangold, 756 N.E.2d at 976. That is not the case here.
Based upon the designated evidence, we conclude that the City is not entitled to immunity under any other ground enumerated in Indiana Code Section 34-13-3-3, aside from Section 3(8) as mentioned above. We note, however, that the scope of governmental immunity is not limited solely to those statut
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