dissenting in part and concurring in part.
The trial court erroneously dismissed Roddel's complaint insofar as it alleged a violation of 42 U.S.C. § 1988. The dismissal was necessarily premised upon the supposition that no facts could have been adduced by Roddel which would entitle him to recovery.
I believe the majority mischaracterizes the contention of appellant. In order to succeed, it is and was not necessary for Roddel to establish that any and all roadblocks are unreasonable. He is only claiming that this chase and this roadblock were unreasonable and that, under the cireum-stances, they constituted such excessive force as to give rise to a cognizable claim.
Insofar as the record reflects, Roddel was operating his vehicle upon a street within Floral Park. There is no indication that at that point his conduct was felonious or even unlawful. The only reason which appears to explain the institution of the chase and creation of the roadblock, were the comments of Deputy Marshall Knight that: "Troy drove through the Park" and "Troy was just asking for it." Record at 41, 360 and 444.
Under the complaint and the amended complaints filed, Roddel was entitled to submit evidence that the chase and roadblock were so excessive under the circumstances as to constitute an unreasonable seizure. He was certainly entitled to seek to convince a trier of fact that handcuffing him to the vehicle after his leg had been severed in the crash constituted a tortious violation of his rights.
Similarly, Roddel should have been permitted to submit evidence that the use of excessive force in the chase, roadblock, and handcuffing incident were a proximate cause of injury to him. In this light, facts susceptible of proof might well fall within the constraints of the decision in Brower v. County of Inyo (1989) 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628. In that case, the majority clearly held that the character and reasonableness of a roadblock is relevant to an inquiry such as that presented here.
The facts which might be developed so as to give rise to a recovery under § 1983 may also suffice to establish a claim under the Indiana Tort Claims Act. A caveat exists in this regard, however. If a chase ensued even without unlawful activity on the part of Roddel, a continuation of the chase and establishment of the roadblock may have been warranted. If the pursuing officers *262unmistakably demonstrated their presence and purpose to effect a stop, Roddel may have been engaged in fleeing a law enforcement officer, a class D felony. If at this stage of the events, the defendants were engaged in the enforcement of a law, they would be immune from liability under 1.C. 84-4-16.5-8.
I concur in affirmance of the dismissals to the extent that the complaints allege liability upon the part of the municipality and the county for failure to properly train law enforcement personnel.
I fully concur in the majority's affirmance of the trial court's decision upholding the constitutionality of 1.0. 9-4-1-25 and 1.C. 85-8-3-6.
I would reverse and remand for reinstatement of Roddel's complaint and for further proceedings in the matter.