*1 from cross-examination citing passage do didn't asked, Bill "Unele T.M.
which he?", did, to did he said you things those Trial "Nope." responded, TM. no offers Jarrett Because at 183. Record this raise failure explanation it is appeal, his direct inor at trial issue had not Jarrett if Even Id. waived. function issue, not our it is this
waived credibili judge evidence reweigh the denial reviewing the when witnesses ty of relief. post-conviction petition aof Ind., N.E.2d v. State
Mosley TM. by given testimony Other fully himto did Jarrett things about finding court's post-conviction supports sustain evidence sufficient
there convictions.
Jarrett's failed State alleges the
Jarrett i.e., occurred, insert- acts distinct
prove two mouth, submit- T.M.'s into penis ing his T.M. penis fondling of his ting to the oc- may have fondling suggests
He sex, would the oral part of curred they because convictions two
prohibit Again, Jarrett act. same for the
would this raise did not why he explain fails reason, it waived. this For earlier.
issue affirmed.
Judgment J., ROBERTSON, C.J.,
RATLIFF,
concur. (Plaintiff), RODDEL, Appellant
Troy G. al., Appellees FLORA, et OF
TOWN (Defendants). 12A02-8907-CV-337.
No. Indiana, Appeals
Court District.
Second 21, 1991.
Oct. *2 Briggs,
Caroline B. Florence Anne Flora, Briggs, appellant. Heath, G. Ronald Johnson Smith Dens- Heath, Pearson, Wright Linley born & E. Gen., Small, Atty. Atty. Deputy Arthur M. Gen., Moore, William C. Steckbeck & Moore, Indianapolis, appellees. BUCHANAN, Judge.
CASE SUMMARY (Roddel) Plaintiff-appellant Troy Roddel appeals complaint from the dismissal of his against defendants-appellees Town of Flora, (Town), al., claiming Indiana et grounds upon his stated granted. relief could be We affirm.
FACTS The facts most favorable to the trial 10, judgment August court's reveal that on Roddel, shortly midnight before a resident, Park, driving local in Flora park in the Town of Flora. As Roddel left park, pursued by deputy he was town stop marshal. Roddel refused to and a high speed Speeds during chase ensued. per the chase reached 95 miles hour. The marshal was assisted several sheriffs, County deputy Carroll who path. formed a roadblock Roddel's To colliding avoid with the Roddel attempted left the road and his tree, vehiclе. His vehicle collided with a leg and his left was severed the accident. accident, After one of the officers steering handcuffed Roddel to the wheel of his vehicle. 8, 1986, August
On
Roddel filed suit
sought
the trial court. Roddel
relief under
theories,
including
various
a claim under
19831 for violation of his constitu
U.S.C. §
rights,
personal
injury
claim for
tional
damages
theory
general
on
tort
lia
bility,
that several Indiana
and a contention
in
statutes were unconstitutional.
provides
depri
City
1. 42 U.S.C.
remedies for
homa
v. Tuttle
471 U.S.
rights. City
vations of constitutional
Okla
S.Ct.
judgment unneces- excessive, and tal, unreasonable Sheriff, Marshal, the and the Town the establishing a road- force sary physical and marshal. sheriffs an unrea- effected block, had therefore and Brower, in violation seizure sonable ISSUES to the United Amendment Fourth dis- properly the trial court Whether 1. plaintiff, The Constitution. States action? Roddel's missed § Brower, the defen- alleged that heirs of dis- properly court the trial 2. Whether 18-wheel tractor-trail- placed an had dants injury claim? personal Roddel's missed highway lanes of a two-lane both er across con properly the trial court 3. Whether had that the defendants path; in Brower's constitutional? statutes were Indiana cluded certain it, unil- by placing concealed 2 curve; they had luminated, a behind car, headlights its police with positioned DECISION Brower on, as to blind a manner in such the trial roadblock; ONE-Did ISSUE approached he when action? he struck Roddel's when dismiss had died § that Brower court dismissed The trial roadblock. ar- CONTENTIONS-Roddel PARTIES' for a claim failing to state for sufficiently articu- that his gues relief. 42 U.S.C. of aсtion a cause lated failing for claim of Roddel's The dismissal court's dismissal the trial also claimed
2. Roddel
granted
upon
could be
relief
(E)
state a claim
8(A)
failing
comply
with T.R.
only
12(B)6),
proper
if Roddel
T.R.
However,
none of
conclude that
as we
error.
any
set
relief under
entitled to
not be
would
grounds upon which
complaints stated
Roddel's
by
pleadings. Union Fed-
represented
facts
regard
any
granted,
in that
error
relief could
Farms,
Chantilly
Inc.
Bank
eral Sav.
harmless.
have been
would
Ind.App., N.E.2d9.
accepted
plaintiff's
charac-
The Court
said would not state an
that Justice Scalia
use of a roadblock as
of the
terization
claim under
actionable
(6th Cir., 1987) 813
v. Pontiac
"seizure,"
analyzed
plaintiff's
Cameron
(State
"unreasonable."
Justice
that it was
death of
claim
F.2d 782.
liable for
ran onto
fleeing defendant when dеfendant
majority opinion,
Scalia, writing the Court's
truck;
highway
alleged
killed
and was
concluded:
proximate
seizure was not
unreasonable
precise
say that
"'This is not to
death).
cause of defendant's
of the roadblock is irrelevant
character
in this case.
'Seizure'
to further issues
position
persuasive.
Roddel's
is not
He
enough
liability;
is not
alone
claims that
used to
him
any roadblock
must also be 'unreasоnable.'
the seizure
seizure
would constitute an unreasonable
*4
right to
can claim the
recover
Petitioners
stop.
the
because there was no reason for
the un-
only
death
because
for Brower's
Supreme
clearly
opinion
But the
Court's
they allege
pre-
consists
reasonableness
contemplates
only
designed
that
roadblocks
in
setting up the roadblock
such
cisely of
bodily injury
causе death or serious
are
likelyto killhim.
as to be
This
a manner
sufficiently
"unreasonable"
to invoke
with the situation
should be contrasted
liability. Thus Roddel's sole claim
1983
§
claim
obtain
the sole
that would
generating
1983
of "unreasonableness"
if
of
§
were that
there was
unreasonableness
liability
explicitly rejected by the
was
Su-
In
stop.
the
that
probable
no
cause
preme
There exists no
Court Brower.
for
case,
оpportunity
the
if Brower had had
of facts or circumstances under the
set
voluntarily
the
stop
at
but
by
theory
liability
of
advanced
Roddel
intentionally driven
negligently
had
or
him
which would entitle
to relief.
then,
it,
proxi
because
lack
into
of
of
alleged
Because the facts
in Roddel's
though
respondents,
re
causality,
mate
insufficient,
complaint
a matter of
were
as
depriving him of his free
sponsible for
1983,
law,
imрose liability
we
movement, would not be liable
dom of
properly
trial
dis
must conclude the
his death. See Martinez v. Califor
for
Roddel's
as to this claim.
missed
277, 285,
553, 559,
nia, 444
100 S.Ct.
U.S.
Similarly,
sufficiently
as Roddel did
Pontiac,
(1980);
v.
"A admitted Roddel's employ- scoрe of his law, acting within of this a violation constituted marshal per from: miles results of 95 driving if a loss in excess not liable his ment class D to a his offense aggravates
hour (1989), Ind. v. felony. Adams State or enforcement (7) adoption 1362; Pettit v. State N.E.2d App., 542 (includ- a law enforce adopt or failure 1175; Yeley Ind.App., N.E.2d (1982), act unless the regulations), ing rules and N.E.2d Ind.App. (1972), 153 State arrest false constitutes enforcement if reasons true even This is ..." imprisonment;. or false attempt to initial marshal's as a provision this see The defendants unlawful, Roddel claims. Roddel were injuries. Roddel's liability from shield Ind.App. v. State Fields he was alleged says Roddel denied. trans. N.E.2d imprisonment, false arrest subject to alleged in his the facts Because fact as question there is therefore he conclusively established immune defendants to whether *5 arrest, proba- was there rеsisting of guilty of Roddel's A review this statute. under imprison- and his arrest for his cause ble however, that establishes complaint, was not sub- Roddel So lawful. ment was conclusively in his alleged facts as a imprisonment, or false arrest ject to false subject to not he was demonstrate in Rod- alleged The facts of law. matter imprisonment. arrest or as any issue create do not del's immune were the defendants to whether rule, to succeed general aAs Because 84-4-16.5-8. IC with accordance arrest, plaintiff false of upon a claim impris- falsely arrested Roddel was probable of the absence must establish law, the defendants matter as a oned City v. See Garrett for the arrest. cause liability and Roddel's from immune were (1985), Ind.App., 478 Bloomington dismissed. complaint was imprison False denied. trans. N.E.2d on restraint unlawful of an ment consists that not conclude did Even if we against his movement immune, freedom still one's we would defendants Ind.App., (1987), The proper. was Com'rs dismissal v. Bd. that will. Delk conclude 436. governmental 03 N.E.2d County are Town and 5 34-4-16.5-2(f), therefore IC entities com alleged in Roddel's The facts inappli law is fault comparative Indiana's he violat affirmatively establish plaint v. Trust Heger See 34-4-83-8. IC cable. (1988), pro 835-44-3-8 ed Ind.Code 526 (1988), Ind.App., Ind. Univ. ees of part: vides, pertinent If was Roddel denied. trans. N.E.2d knowingly or inten- "(a) who person A for dam his claim negligent, contributorily tionally: & v. Witham ages is barred. Norfolk 484; N.E.2d (1990), 561 Ry. Co. Western 93, 175 Ind. (1961), 242 Milligan Huey offi- a law enforcement (3) from flees has, by visible or N.E.2d officer cer after means, himself identified audible penal statute of a The violation stop; person ordered Hayes per se. negligence constitutes enforcement, a resisting law
commits Ind. v. Wilson Freight Linеs misdemeanor, provided except A v. Chesa Class also Gasich See N.E.2d 580. (b). (1983), Ind.App., in subsection R.R. Co. peake & Ohio per (a) negligent is a: subsection (b) The offense 453 N.E.2d town stop for the failing to se committing if, felony while (1) D Class In IC 85-44-3-8. in violation in marshal vehicle operates a it, person ... analysis Scalia's with Justice accordance a substantial creates manner The essence of IC 9-4-1-25 is that Brower, negligenсe was the supra, emergency may injuries. the driver of an vehicle of Roddel's See proximate cause regulations during Cameron, ignore certain traffic supra. Therefore Roddel pursuit suspected of a violator of the contributorily negligent as a matter of the driver from the law. It does not relieve Gasich, law, claim is and his barred. duty regard to drive due for the safe with supra. consequences of his ty of others or the immune the defendants were Because disregard safety of other reckless 34-4-16.5-8, and liability under IC from people. claims were barred Roddel's state law tort contributory negligence, the trial due to his provides police 86-8-8-6 officers of IC power arrest all municipalities with the properly dismissed his claims.4 their persons who violate statutes within court err THREE-Did the trial ISSUE custody. and take them into view (1988) it declared Ind.Code 9-4-1-25 when (1988) constitution 36-8-8-6 and Ind.Code argument concerning the Roddel's sole al? unconstitutionality of these two statutes is Supreme based on the United States com- PARTIES' CONTENTIONS-Roddel deadly that the use of Court's requirement erroneously trial court con- plains that the prevent escape suspected of a force to were constitutional be- cluded the statutes necessary is limited to when it is fеlon police limit these two statutes do not cause escape has prevent and the officer using deadly or excessive officers from suspect that the probable cause believe effect the arrest of a defendant. force to poses significant threat of death or seri The State counters that because Ind.Code bodily injury to the officer or others. ous (1988)regulates the usе of dead- 85-41-8-8 *6 Tennessee v. 471 U.S. Garner officers, by police the statutes are ly force L.Ed.2d 1. 105 S.Ct. unconstitutional. statute, aptly statutes are constitu- The State refers to another CONCLUSION-The 85-41-8-8,7 addresses the necessi IC tional. pertinent part: provides, Because the trial court's dismissal of Roddel's 6. IC 36-8-3-6 in 4. against principals proper, claims was the "(c) municipality police The officers of a against dismissal of his claims the Town Mar- shall: proper. shal's and Sheriff's sureties was part: provides, pertinent 5. IC in 9-4-1-25 (2) arrest, without all who persons process, "(c) any emergency The driver of authorized statutes, within view violate take them before emergency responding vehicle when to an call offense, having jurisdiction the court of the and pursuit suspected or when in of an actual or custody retain them in until the cause of thе responding, violator of the law or when but not investigated; has been arrest alarm, returning may upon from a fire exercise privileges chapter, set forth in this but sub- (4) ject peace suppress to the conditions herein stated. within all breaches of (d) emergency The driver of an authorized knowledge may their aid the their and call to may: vehicle pursue power municipality and of the and com- stand, irrespective provi- 1. Park or of the guilty jail persons mit to of crimes...." chapter; sions of this signal past stop 2. Proceed a red or or pertinent part: provides, 7. IC 35-41-3-3 in sign, only slowing may after down as but "(b) justified A law enforcement officer is in necessary operation; for safe reasonably using force if he believes reasonable long speed the maximum limits so 3. Exceed necessary is to effect a lawful that the force endanger property; as he does not life or However, using justified an officer is arrest. governing Disregard regulations direction deadly only reasonably if he believes that force turning specified or directions. of movement necessary: is that force (1) bodily injury prevent to serious to himself (f) foregoing provisions The shall not relieve person a fore- a third or the commission of or emergency an authorized vehicle the driver of felony; ible or duty regard drive with due for the from the to (2) person has to effect an arrest of a who safety persons, provisions of all nor shall such felony." consequences attempted a protect of his or to commit the driver from committed safety disregard reckless for the of others." mischaracterizes majority I believe is neces that force belief ty of a reasonable In order to appellant. the contention deadly force the use prohibits sary. It necessary for succeed, and was not it is unless officer enforcement law by a all road- any that and to establish is force that reasonably believes officer only He claim- are unreasonable. blocks bodily injury serious necessary prevent were chase and this ing that this prevent person, or a third himself that, the cireum- and unreasonable to effect felony, or forcible of a commission stances, such excessive they constituted has committed person who of a the arrest cognizable claim. give rise to a as to force felony. to commit attempted reflects, Roddel the record Insofar as 35-41-8-8) specifi (IC was statute This upon a street his vehicle operating was Su United States by the cally approved indication There is no Park. Floral within n. Garner, at 16-17 supra preme Court. felonious point his conduct was at that 14. Because IC 1703-04 n. at 105 S.Ct. only The reason unlawful. or even to all law applies 35-41-3-3 enforcement explain the institution appears pur in a involved including those officers, roadblock, were creation of chase and 9-4-1-25 under IC suspect suit of Knight Deputy Marshall the comments arresting sus municipal police officers through the Park" "Troy drove that: 36-8-3-6, are those statutes IC pect under Record at asking for it." "Troy just expressly failing to not unconstitutional 360 and need for of the requirement incorporate the and the amended Under necessary force is belief a reasonable filed, entitled Roddel was provisions. into their and road- the chase evidеnce submit argument persuasive no Roddel makes the circum- so excessive block two statutes that the of his claim support an unreasonable to constitute stances 86-8-3-6) unconsti- are (1C & IC 9-4-1-25 seek certainly entitled to He seizure. why any tutional, to see reason we fail handcuffing of fact that a trier to convince conclude that We must rule. we should so leg had been after him to the vehicle and that сonstitutional are statutes both a tortious constituted in the crash severed with pari materia construed they can be rights. of his violation IC 35-41-8-8. *7 per been have Similarly, Roddel should us that to convince has failed As Roddel the use of evidence mitted to submit any of in allegations contained any of the chase, and in the force excessive upon a cause of action complaints state proximаte handcuffing incident were trial granted, relief could light, facts In this to him. injury cause of com- Roddel's dismissed properly court within fall might well proof susceptible plaints. in Brower v. of the decision constraints Judgment affirmed. 593, 109 (1989) 489 U.S. Inyo County of case, In that L.Ed.2d 628. S.Ct. J., character clearly held that the STATON, concurs. majority rele a roadblock reasonableness and J., part and SULLIVAN, in dissents presented such as inquiry to an vant opinion. part with in concurs here. part dissenting in SULLIVAN, Judge, developed so might be The facts which part. concurring in and may recovery under to a give rise a claim to establish suffice erroneously dismissed The trial exists A caveat Act. Claims Indiana Tort alleged as it insofar Roddel's ensued If a chase however. regard, in this The dismis- 42of U.S.C. violation part activity on the unlawful without even sup- upon the necessarily premised sal was Rоddel, the chase ad- been a continuation facts could have that no position may have of the establishment him would entitle by Roddel duced officers pursuing If been warranted. recovery. unmistakably presence demonstrated their purpose stop, may to effect a engaged fleeing
have been a law en- officer, felony. a class D If at
forcement events, stage this of the the defendants engaged law, the enforcement of a
they liability would be immune from
1.C. 84-4-16.5-8.
I concur affirmance of the dismissals
to the extent allege
liability upon part municipality of the county
and the for failure to train personnel.
law enforcement fully
I majority's concur affirm-
ance upholding of the trial court's decision constitutionality of 1.0. 9-4-1-25 and
1.C. 85-8-3-6.
I would reverse and remand for rein-
statement of Roddel's and for proceedings
further in the matter. WHITEBIRCH,
Norma J.
Appellant-Plaintiff, STILLER,
Ernest W. Sr. Marian
Stiller, Appellees-Defendants.
No. 46A03-9005-CV-176 Indiana, Appeals
Court of
Fifth District.
Oct. reassigned
1. This case was to this office on January