OPINION
Appellant-plaintiff Eucy O’Bannon appeals the trial court’s grant of summary judgment in favor of appellee-defendant City of Anderson and its police department (the City). Specifically, O’Bannon argues that the grant of summary judgment was error because the City was not entitled to sovereign immunity pursuant to Ind.Code § 34-13-3-3(7).
FACTS
The facts most favоrable to the non-movant reveal that O’Bannon lived at 2226 Halford Street in Anderson, Indiana on October 6, 1995. On that night, Anderson police officers were chasing an armеd felon, Trevor Nunn, who had attempted to kill a police officer. Nunn had also fired *2 upon the officers who assembled in front of O’Bannon’s home, to which he had rеtreated without O’Bannon’s permission. The Anderson police officers fired shots into O’Bannon’s home, searched her home, and seized her momentarily in the coursе of arresting Nunn.
On June 25, 1997, O’Bannon filed a complaint against the City based upon this incident and alleging negligent infliction of emotional distress, trespass, and illegal search and seizure. The City filed its answer and, on November 23, 1998, filed affidavits and a motion for summary judgment. O’Bannon filed her response to the motion on December 22, 1998 and a brief in support of response to defendant’s motion for summary judgment. After hearing argument on the motion for summary judgment, the trial court granted the City’s motion by entry on June 10, 1999. O’Bannon now appeals.
DISCUSSION AND DECISION
O’Bannon argues that the City was not entitled to sovereign immunity under I.C. § 34-13-3-3(7), that there was a genuine question of fact regarding the City’s common law duty to her, and that summary judgment should be reversed for that reason. Specifically, she argues that the City and its police officers had- a “private duty” to her not to trespass on her propеrty, not to search her home or seize her person and not to negligently inflict emotional distress. Appellant’s brief at 4.
We note initially our standard of review for a grant of summary judgment. Summary judgment should be granted only if the designated evidentiary material shows that there is no genuine issue of material fact and the moving party is entitled to summаry judgment as a matter of law.
Askren Hub States Pest Control v. Zurich Ins.,
The Indiana Tort Claims Act renders immune from liability police officers acting in the course of their employment and their governmental employers if a loss results from “the adоption or enforcement of or failure to adopt or enforce a law ..., unless the act of enforcement constitutes false arrest or false imрrisonment.” I.C. § 34-13-3-3(7). Our supreme court has interpreted this statute to mean that law enforcement immunity would not attach in suits which were based upon a governmental unit’s “private duty” to individuals, to which O’Bannon refers. For example, our supreme court held that immunity would not attach in suits based upon negligent driving of a squad car on the way to the scеne of a crime,
Quakenbush v. Lackey,
However, most recently, оur supreme court has noted that the “private” and “public” duty distinction has led to confusion in Indiana case law.
Benton v. City of Oakland City,
In this case, O’Bannon’s analysis fails to explain why the City’s actions should not come under the immunity statute, I.C. § 34-13-3-3(7). The officers were clearly seeking to enforce a law, and the act of enforcement did not involve false arrest or false imprisonment. However, O’Bannon appears to argue that the officer’s presence in her house was illegal or that excessive force was used in effecting the arrest, thus endangering her and her grandchildren, humiliating her, and causing her a loss of quality of life. We will analyze her claims as one stating that the arresting officers’ actions were in some way illegal, and for this reason sovereign immunity should not apply.
We first address the argument that shooting into her home gave rise to tort liability unprotected by I.C. § 34-13-3-3(7). Excessive force claims are governed by a Fourth Amendment objective reasonableness standard.
Graham v. Connor,
In Indiana, I.C. § 35-41-3-3(b) reflects the same principles and provides in relevant part:
(b) A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest. However, an officer is justified in using deadly force only if the officer:
(1) has probable cause to believe that the deadly force is necessary:
(A) To prevent the commission of a forcible felony; or
(B) To effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer....
Furthermore, while thе Fourth Amendment requires a search warrant before lawfully entering a premises, the exceptions to this requirement include risk of bodily harm or death.
Harless v. State,
In this case, O’Bannоn has not demonstrated that the officers’ use of force was unwarranted or excessive. Instead, the officer’s actions were reasonable under a Fоurth Amendment analysis and I.C. § 35-41-3-3(b). Nunn had attempted to kill one police officer and had fired at the assembled officers from inside O’Bannon’s home. Record at 15, 17, 19. Thus, the officers acted legally when they fired into O’Bannon’s home. Furthermore, the risk of bodily harm or death was such that it was legal for the officers to enter into her home without a warrant, to search the home, and to momentarily detain O’Ban-non in the process.
See Harless,
*4
Furthermore, we note that this case is nearly identical to another in which summary judgment was granted and upheld on appeal,
State v. May,
Judgment affirmed.
Notes
. The common law exceptions include: failure to prevent crime, appointment of an incompetent official, or an incorrect judicial decision.