How Governments Can Win in Cases Before Appellate Courts – 10 Examples

by Ellen K. Emery

Do you think that when a local governmental body is sued, the deck is stacked against it in court? Would you expect that most judges go out of their way to rule against government officials and public employees? Think again. Illinois State and Federal Appellate courts look at the actions of governments and their employees with a fair reading of governmental tort immunity and a real understanding of the difficulties governments face in performing their duties perfectly. Thus, governmental bodies often get very favorable rulings.

In 1959, the Illinois Supreme Court abolished common law tort immunity in Illinois. After several failed attempts, the Illinois Legislature adopted the Local Governmental and Governmental Employees Tort Immunity Act. As originally written, that law only provided tort immunity to self-insured governmental bodies. In 1969, Illinois became one of the first States in which governments came together to form intergovernmental self-insurance agencies, known as "risk pools." Ancel Glink attorneys wrote the Contract and By-Laws for the first pool. We successfully argued at the Illinois Supreme Court the case which validated that new concept and gave pools the ability to argue tort immunity defenses on behalf of their members. Legislation was later changed to permit insurance companies with governmental policy holders to also utilize tort immunity defenses.

While agreeing to pay most valid claims, many self-insured governments, governmental self-insurance pools and insurance companies have chosen to use the important provisions of the Illinois Tort Immunity Act to fight against frivolous cases or those in which excessive demands have been made. As demonstrated in the description of the ten cases that follow, a decision to aggressively fight questionable cases has been rewarded in both Federal and State Courts, and by both judges and juries.

1. Village Not Liable for Injury Sustained on Its Property Despite Failure to Enforce Ordinance
On a fall day in 1996, 12 year-old Joseph Schweinberg was riding a motorized dirt bike on vacant property owned by the Village of Round Lake Beach. The property had dirt trails on it, as well as four jumps. At the same time Joseph was riding north on one of the trails, Greg Britton, an adult, was coming south on the same one. When Britton came over one of the jumps, he collided with Joseph, who suffered a brain injury. Suit was filed against Britton and the Village.

During discovery depositions for the ensuing circuit court case, it was revealed that the Village was aware of people off-road motorcycling on this property since 1975.

On several occasions in 1993 and 1994, the Village dumped dirt, gravel and asphalt on the property, and some of these piles were between 10 and 15 feet high. The mounds of dirt and debris were used as jumps by people riding motorbikes.

The site also had a history of at least three accidents by riders, all young men, including one who bled to death after the footrest of his bike punctured his leg during an accident. The Village never posted any warning signs on the property at any time prior to Joseph's accident.

In 1994, the Village enacted an ordinance, which provided in part: "It shall be unlawful for any person to operate, drive or ride on any minibike, go-cart and other similarly operated motor-driven vehicle (exclusive of motorcycles) on any public street, alley or thoroughfare, or upon the publicly owned property."1 Although the police were aware of the ordinance, it was only selectively enforced. Officers sometimes stopped children from riding only in response to a noise complaint, or after dark. Some officers told the children it was all right to ride on the property, and even pulled over to watch the riders.

The five counts against the Village in the amended complaint included failure to warn and guard against danger, willful and wanton misconduct in permitting its property to be used for off-road motorcycling despite its knowledge of dangerous conditions, failure to maintain property in a reasonably safe condition, and breach of duty to protect children from dangerous conditions on its premises. The trial court granted summary judgment to the Village, and the plaintiff appealed.2

Section 3-102(a) of the Tort Immunity Act provides in part that: "...a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury" unless it is proved that the entity had notice of unsafe conditions, and a reasonable amount of time to address them. 745 ILCS 10/3-102(a). The Appellate Court, in upholding summary judgment in favor of the Village, found that "Pursuant to this language, the Village has a duty of ordinary care to maintain its property only for people who are both intended and permitted users of the property. Our Supreme Court has held that, although intended users of property are permitted users by definition, permitted users are not necessarily intended users."

The distinction the court makes is between permitted users and intended users of property. The plaintiff argued that the Village's knowledge of the way the property was being used, the presence of well-worn trails, and its failure to enforce the ordinance prohibiting the activity manifested its intent that the property be used for off-road motorcycling. However, the plain language of the Village's ordinance specifically prohibits this conduct on its property, and it is this that has largely determined its immunity in this case.

The Appellate Court found that ordinances must be interpreted in light of what they have been enacted to protect against, and if the harm or injury suffered by a party is the same harm the ordinance was enacted to prevent, then a violation of the ordinance eradicates the municipality's liability: "Illinois courts have consistently held that when a person violates a municipal ordinance prohibiting the use of municipal property in a certain manner, that person is not an intended user of the property under section 3- 102(a)" of the Tort immunity Act.

While the police did not consistently enforce the ordinance, that does not transform Joseph, or any other rider, into an intended user of the property because municipal intent cannot be determined by the decisions of its police officers in particular circumstances. Even the fact that children rode motorbikes on the property frequently does not alter the Village's express intent that the property should not be used as such. The court stated: "we are unaware of any authority holding that a municipality's failure to enforce an ordinance governing the use of public property rendered the prohibited use an intended one."

Accordingly, the Appellate Court affirmed the grant of summary judgment in favor of the Village, while remanding for further proceedings the counts against defendant Britton. When honestly interpreting the provisions of the Tort Immunity Act, courts will often find for the government even when the plaintiff has suffered a debilitating injury.

2. Firing of Teacher who Engaged in "Immoral" Conduct of Theft by Deception Upheld
On December 13, 2001, the Chicago Board of Education charged plaintiff Rita Ahmad, a tenured teacher, with numerous violations of the Board's Employee Discipline Code. The Board alleged, among other things, that Ahmad misappropriated the merchandise of a nonprofit organization for the benefit of her unauthorized secondary business by falsely representing herself as an agent of the Chicago Public Schools. The trial court reversed the hearing officer's decision to uphold the Board's charges, and ordered that it reinstate Ahmad with back pay. The Board of Education appealed.

The Appellate Court3 looked at the amended section 34-85 of the Illinois School Code which states:

"No written warning shall be required for conduct on the part of a teacher or principal which is cruel, immoral, negligent, or criminal or which in any way causes psychological or physical harm or injury to a student as that conduct is deemed to be irremediable" (105 ILCS 5/34-85).

Since the Code does not define "immoral" conduct, the Court looked to Black's Law Dictionary where immoral conduct is defined as "shameless" conduct showing "moral indifference to the opinions of the good and respectable members of the community." Applying this definition to Ms. Ahmad's behavior, the Court found that the record revealed "an abundance of evidence demonstrating plaintiff engaged in conduct one might properly characterize as immoral, perhaps even criminal, i.e., theft by deception."

The Court also noted that plaintiff's later decision to donate her ill-gotten merchandise did not negate the original immoral conduct plaintiff engaged in to acquire the merchandise. The Court found it "completely unreasonable" to believe that plaintiff acquired $33,979 worth of merchandise for the purpose of donating it to the Salvation Army and other charities.

Finally, the Court stated that "where teachers indulge in conduct that is immoral at best, and criminal or quasi-criminal at worst, they demonstrate a basic character flaw which makes their future employment at the Board of Education, which is partially responsible for molding the character of our youth, untenable." The Court reversed the judgment of the trial court and reinstated the decision of the hearing officer terminating Ahmad's employment. Sometimes, cases like this need to be appealed in order for a court to fully focus on the provisions of the law. The trial judge may have felt that ending a teacher's career over an "indiscretion" was too severe. The Appellate Court focused on the bigger picture and the rather unforgiving language of the statute.

3. No Excessive Force Liability for City and Police Officer Even Though Officer Admitted to Punching the Plaintiff
On the evening of June 23, 2001, Paul Oh flew into O'Hare Airport from Washington, D.C. Oh left O'Hare Airport via the "el" train to the town of Rosemont and decided to run to his home in Mount Prospect, approximately eight miles from the Rosemont el stop. Oh was dressed in business causal clothes and shoes, running (not jogging) down a major thoroughfare at 9:20 p.m. When a Des Plaines police officer spotted Oh running down the side of the road, the officer stopped ahead of Oh to see if he needed help and to further investigate the situation.

When Paul Oh ran near the officer's stopped squad car, the officer noticed that Oh was sweating profusely and that his manner of dress was not appropriate for running. The officer asked Oh if he needed help, and Oh swore at the officer. The officer asked Oh what he was doing, and Oh told him that he was running from the Rosemont el stop to his home in Mount Prospect. The officer thought the story was preposterous, given the totality of circumstances. When he asked Oh for some identification, Oh again swore at the officer and began to run away. The officer reached out, grabbed Oh's wrist, and pulled him back near the squad car so he could further investigate the situation, as his suspicions were high at this point. Oh began to struggle, and punched the officer in the chest. The officer then tried to arrest Oh for battery. Oh continued to struggle and repeatedly tried to strike the officer. The officer called for backup and wrestled Oh to the ground in an attempt to handcuff him.

When Oh continued his attempts to strike the officer in the face, the officer punched Oh in the face and head several times as hard as he could to get him to stop. The officer managed to handcuff Oh, and backup officers arrived to assist placing Oh in the back of the squad car for transportation to the Des Plaines Police Station. Oh continued to swear at the officers, and was charged with battery and resisting arrest. He was held at the police station for about 5 ½ hours in order to verify his story about having flown in from Washington. At his request, he was transported to Holy Family Medical Center, where he refused treatment.

Paul Oh brought two claims against the Des Plaines police officer, for excessive force and unlawful arrest.4 Neither party disputed that the officer was acting under color of state law. The only issue at trial was whether a reasonable jury could conclude from the facts surrounding Paul Oh's arrest that he suffered a deprivation of his constitutional rights, privileges, or immunities.

Excessive force claims resulting from a seizure are analyzed under the Fourth Amendment's objective reasonableness standard. Reasonableness depends on the information the officer possesses prior to and at the immediate time of the use of force; the knowledge, facts and circumstances known to the officer at the time he exercised his split-second judgment as to whether the use of force was warranted. Reasonableness is evaluated from the officer's perspective at the time, not with 20/20 hindsight. Under cases interpreting the Fourth Amendment, the right to make an arrest "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it."

The proper application of the reasonableness standard requires consideration of a number of factors known to the officer at the time, including the nature of the underlying crime. It requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. When the Des Plaines officer attempted to talk to Oh and find out what he was doing, Oh responded in a highly suspicious manner by swearing at the officer and refusing to cooperate. Instead, he tried to take off running again. The totality of the circumstances surrounding the situation gave the officer reasonable suspicion to stop Oh. When Oh threw the first punch at the officer, the officer then had probable cause to arrest Oh for battery (thus defeating Oh's unlawful arrest claim).

In a situation where an offender is resisting arrest, an officer can use that amount of force necessary to overcome the offender's resistance. The amount of force that police officers may justifiably use increases as the confrontation escalates. As Oh continued to fight the officer, the officer was justified in using a reasonable amount of force to get the handcuffs on Oh and get him under control.

This case was tried to a jury by Ellen Emery and Allen Duarte of Ancel Glink in 2004. The jury rejected Paul Oh's request for $60,000 in damages for the officer's use of excessive force. Instead, the jury returned a verdict in favor of the officer and the City of Des Plaines, his employer, even thought the officer admitted punching Oh as hard as he could. Although this case may very well have gone away for a settlement amount far less that $60,000, the City stood on its principles and refused to compensate this plaintiff. It made the right decision by having Ancel Glink attorneys try this case to victory.

4. County, City, and Police Immune from Liability for Total Failure to Respond to a Call About an Accident
On April 5, 2002, Doris Hays was driving her vehicle in rural Rock Island County when it left the road and ran into a ditch. A passing motorist witnessed the vehicle's departure from the roadway and, not stopping to investigate, used her cell phone to report her observation to the clerk of the Village of Orion. The Orion clerk then phoned the dispatcher for Henry County. When notified of the general area of the accident, the Henry County dispatcher notified the City of Moline and the City of East Moline that she had received a report of a vehicle in the ditch on Route 150 "at the Rock Island, Henry County line." The Moline dispatcher then telephoned the Rock Island County Sheriff's Department and reported the incident to a dispatcher for Rock Island County.

Although the Rock Island County dispatcher said they would "check on it," none of the parties contacted responded to the scene on the day the calls were made. On that day, Doris Hays' family also notified Rock Island County that she was missing. Three days later, Hays' body was found lying outside her vehicle at the scene of the accident.

Doris Hays' estate filed a 24-count complaint in the circuit court of Rock Island County naming as parties defendant: Rock Island County; the Sheriff of Rock Island County; the dispatcher for Rock Island County; Henry County; the Sheriff of Henry County; the Village of Orion, the clerk of the Village of Orion; the City of Moline; the City of East Moline; the Moline-East Moline Dispatch Center; the dispatcher for the Dispatch Center; and the Police Chief of the City of Moline.

The circuit court dismissed plaintiff's complaint, ruling that section 4-102 of the Illinois Tort Immunity Act immunized all defendants. Section 4-102, by its terms, immunizes local public entities and public employees from liability for failure to (1) establish a police department or (2) otherwise provide police protection or (3) if police protection service is provided, for failure to provide adequate police protection service. 745 ILCS 10/4-102 (emphasis added).

Doris Hays' estate presented three issues for consideration by the Illinois Supreme Court,5 all of which concerned the applicability of section 4-102 of the Act. They were:

(1) whether a municipality that sends no assistance whatsoever in response to a request for help at an accident scene can claim the immunity provided by section 4-102 of the Tort Immunity Act for failure to provide adequate police or service;

(2) whether a call placed for help at an accident scene automatically triggers a police search rather than a paramedic response, thus triggering the immunity of section 4-102 for failure to provide adequate police services, or whether such a call instead simply triggers a duty to send rescue personnel, whose misconduct is not shielded by section 4-102; and

(3) whether the recognition of a willful and wanton exception to the immunity otherwise provided by section 4-102 for injuries resulting from failure to provide adequate police service remains good law and applies in this instance.

The Court decided the three issues in defendants' favor. The Court held that section 4-102 of the Act is comprehensive in the breadth of its reach, addressing situations where no police protection is provided to the general public as well as those in which inadequate protection is provided. Moreover, as section 4-102 contains no exception for willful and wanton conduct, that section immunized defendants against both negligence and willful and wanton misconduct.

In so holding, however, the Court recognized that there may be exceptions to the application of section 4-102 where a legislative enactment identifies a specially protected class of individuals to whom statutorily mandated duties are owed, such as the statutorily mandated duties owed to the class of individuals protected by the Illinois Domestic Violence Act. But as no such scenario was encountered in the facts of Doris Hays' accident, section 4-102 immunity applied and the dismissal of plaintiff's complaint against all defendants was upheld. The Legislature, in creating tort immunities for law enforcement, paramedic and fire safety activities, acknowledged that governments can only do so much and that the public cannot afford to pay damages every time an inefficiency hurts someone. Cases like this sometimes find their way to Federal Court, where the Illinois Tort Immunity Act doesn't apply if a federally-protected right is alleged. In recent years, the Federal Courts have also been narrowing the situations in which relief will be granted where the plaintiff's lawyer is simply trying to puff up a losing State tort action into a "federal case."

5. City Did Not Violate Real Estate Developer's Equal Protection Rights
Maulding Development was a real estate development company owned and operated by David Maulding, a Caucasian male. Maulding wanted to build warehouses on the west side of Springfield, and submitted a development plan to the City to do so. Before giving final approval, the City had expressed a favorable view towards Maulding's variance requests and proposed Economic Development Agreement.

During the final planning stage, certain African-American City officials, including Alderman Kunz, asked Maulding Development to consider relocating its warehouse project to the east side of Springfield in an area with a significant African- American population. Maulding agreed, then performed the necessary legwork and submitted a plan to the City for a warehouse development project on the east side. The plan met all of the technical requirements for this type of project and no variances were necessary.

As the City was considering Maulding's new plan, a public meeting was held between David Maulding and residents from the east side of the City. Alderman Kunz and two other aldermen attended. The meeting did not go well for Mr. Maulding, as he was verbally attacked with racial slurs by the residents, and openly called a racist.

Later, the matter of Maulding's development plan came before the City Council for a vote. Some east side neighbors attended and voiced their objections, while David Maulding spoke in favor of both the east and west side projects. The City Council unanimously denied both plans, citing public safety concerns. At the time of the vote, Alderman Kunz stated that the City had never before denied approval for development plans that met all of the technical requirements.

Maulding Development then filed suit in the federal district court. The court issued a writ of mandamus ordering the City to approve both plans, as the approval of a development plan that met all technical requirements was a ministerial act, as opposed to a discretionary one. Maulding also raised a "class of one" equal protection claim, alleging the City's failure to approve the east side plan was on account of Mr. Maulding's race. On Maulding's equal protection claim, the district court granted summary judgment for the City, finding no evidence of similarly situated entities and no evidence of racial animosity on the City's part. Maulding appealed. (The City, however, did not appeal the district court's issuance of the writ of mandamus and a permit would be issued if Maulding still wished to proceed.) The case went on, however, on the issues of damages.

The Seventh Circuit Court of Appeals6 recognized that to establish its "class of one" claim, Maulding had to show that (1) it had been intentionally treated differently from others similarly situated; and (2) there was no rational basis for the difference in treatment or the cause of the differential treatment was a "totally illegitimate animus" toward Maulding by the City.

Maulding's claim failed in the Appellate Court because of the total lack of evidence of someone who was similarly situated but intentionally treated differently than it. The only evidence Maulding had was the statement made by Alderman Kunz during the City Council meeting that "the City was doing something it had never done before," namely that it "was denying the approval of a large scale development plan that met all technical requirements." Maulding introduced no evidence regarding any of the other developers to bolster his contention that he was "similarly situated."

Since a showing that two projects were similarly situated "required some specificity," the Court pointed out that there was no evidence whatsoever to make a comparison between development projects. It found a total lack of evidence to establish whether these other plans involved warehouses, or any type of commercial property for that matter. There was no evidence establishing whether the other plans involved commercial property that, if developed, would abut already existing residential areas such as the Maulding plan did. There was no evidence establishing whether the other plans involved the development of a new commercial area, or were simply a redevelopment of a preexisting site. Furthermore, there was no evidence regarding the timing of the alleged other plans, such as whether they were submitted to the same or different members of the City Council, or even whether they were submitted in the last five (or fifty) years. Finally, there was no evidence establishing that the other plans did not seek variances, similar to Maulding's plan.

The Court held that Maulding's sweeping argument that it was "treated differently than any other developer has ever been treated" with no evidentiary support, had no specificity sufficient to show that any two projects were similarly situated, a showing necessary to proceed under an equal protection claim. The Seventh Circuit affirmed the judgment of the district court in favor of the City of Springfield. Even though this was not a political issue and the City had improperly denied the permits, Mr. Maulding was not given the benefit of the doubt by the Federal Appeals Court. The City did not have to pay damages just because the circumstances might have looked a touch suspicious.

6. Police Shooting of a Shirtless, Unarmed Man was Reasonable
At 4:14 a.m. on a chilly date in late March, a Rockford police officer was dispatched to a domestic disturbance at the DeLuna residence where Martha DeLuna had suffered a beating at the hands of her husband. Luis DeLuna had an extensive arrest history and was known to carry weapons. As the officer got out of his car, he saw Luis DeLuna standing shirtless in the yard, despite the chilly weather. The officer had his gun drawn, and told DeLuna to raise his hands. DeLuna did not raise his hands, but began walking towards the officer with his arms extended out to his sides. The officer was not able to see if DeLuna had tucked a weapon into his back waistband. The officer began backing up to keep distance between himself and DeLuna. As he backed up, the officer stumbled, and DeLuna lunged for him. The officer shot DeLuna, fearing that DeLuna was either reaching for a weapon behind his back or attempting to reach the officer's weapon.

Martha DeLuna made Fourth Amendment and wrongful death claims arising out of her husband's death. The Fourth Amendment came into play because a police officer's use of deadly force constitutes a seizure within the meaning of the Fourth Amendment and therefore is constitutional only if it is reasonable. Reasonableness is not based on hindsight, but rather is determined considering the perspective of the officer on the scene, allowing for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation. The focus is on whether the actions of the officer are objectively reasonable. If an officer believes that the suspect's actions place him, or others in the immediate vicinity, in imminent danger of death or serious bodily injury, deadly force can reasonably be used.

The Seventh Circuit Court of Appeals7 held that the combination of events in this case led to an unstable situation with an uncooperative person who had a history of violence and weapons possession, establishing the real danger of imminent serious bodily injury should DeLuna have succeeded in reaching the officer. The Court stated that the officer "need not wait until there is a physical struggle for control of his weapon before a situation presents an imminent danger of serious physical injury." The officer acted reasonably in firing the fatal shot. The newspaper accounts of this shooting, the next day, probably read: "Cop Kills Unarmed Man Stripped To Waist." Skilled attorneys were able to demonstrate that the headline should have read: "Wife Beater Killed While Attacking Retreating Officer." In court, governments are better able to tell their full stories.

7. Jury Finds the Shooting of Suicidal Man was Justifiable Use of Force
Around 11:00 p.m. on May 7, 2000, Joshua Berryhill got his .32 caliber handgun from home and drove to a Thornton's gas station in Streamwood. He had been drinking heavily, and was feeling suicidal. He used the pay phone to call Elmwood Park Deputy Police Chief, whom he knew through the Deputy Chief's son. The Elmwood Park Deputy Chief and one of his Commanders drove 25 miles to the gas station to try and talk Berryhill out of killing himself. Streamwood police surrounded the gas station, out of Berryhill's view. Berryhill contended that around 1:00 a.m., he was facing away from the Elmwood Park police officer was were trying to get him to surrender the handgun, when he hit his leg with his gun and it accidentally discharged. The shot prompted a Streamwood police officer, who was armed with a patrol rifle 200 feet away, to shoot Berryhill twice.

Berryhill sustained gunshot wounds to his left arm, left flank, and left leg, with forearm tissue shot away nearly to the bone. He also had shrapnel in his abdomen with bullet entry and exit wounds, the insertion of a rod in his femur to support his leg, and extensive skin grafts. His medical bills alone were nearly $350,000.

Berryhill filed suit against the Streamwood officer,8 contending that the officer's first shot was excessive, and the second shot was unreasonable and excessive force because Berryhill had dropped his gun after the first shot. In a situation where an offender is resisting arrest, an officer can use that amount of force necessary to overcome the offender's resistance. The amount of force that police officers may justifiably use increases as the confrontation escalates.

This case was tried to a jury in late 2004 by Ellen Emery, Darcy Proctor, and Lucy Bednarek of Ancel Glink. At trial, the issue to be decided by the jury was whether the officer's use of deadly force was excessive, thus depriving Berryhill of his constitutional rights under the Fourth Amendment. The defense argued that the first shot was reasonable since Berryhill had pulled the trigger in the vicinity of police officers and surrounding residences, and the second shot was reasonable to stop the threat still posed by Berryhill because he was still on his feet after the first shot. The Ancel Glink lawyers were again successful in presenting the case so that the officer's actions were found to be reasonable under the law, and the jury entered a verdict in his favor.

In this case, the last settlement demand made by Berryhill prior to the start of the trial was $1,500,000, while Streamwood, on behalf of the officer, offered $18,000. Sometimes a plaintiff's demand to settle a case is so outrageous, that the government entity is basically left with no choice but to try the case. Even if the facts of the case are such that it is likely that the government entity will lose on liability, cases are often tried when the defense attorneys have had great success at keeping the verdict substantially lower than the plaintiff's demand, often lower than the amount the defendants offered to settle the case. A good example of this is illustrated by the next case.

8. Excessive Force Trial Can Be Successful When Demand is So High and Jury Award is So Low
James Knaack was convinced the Spring Grove police were harassing his son, especially after the son received his 23rd moving violation ticket. On September 12, 2001, when a police car parked alongside a bank where Knaack's son was banking, the son called his father, who rushed to the bank to confront the police officer seated in the squad car. The officer immediately radioed his supervisor to assist at the scene as the confrontation was rapidly escalating.

The confrontation ended when Knaack was ultimately arrested for reckless driving and resisting arrest. He claimed he was beaten during the arrest. After a jury acquitted Knaack of the criminal charges, he sued Spring Grove and the two police officers for false arrest, excessive force, and malicious prosecution.9 Knaack claimed he suffered a back injury, bruised legs and emotional distress from the arrest. The defense contended that plaintiff sped to the scene, pulled up onto the curb in front of the squad car, showered the officers with profanities and tried to drive away without his driver's license after the officers took it from him. When Knaack was arrested, he acted as if he were being beaten and complained that he was hit sharply in the back, where he had a previous work injury.

Although Spring Grove made a nuisance offer of $10,000 to settle the case, plaintiff demanded $45,000. This case was tried to a jury in July of 2006 by Tom DiCianni of Ancel Glink. At trial, the jury found Spring Grove and the two police officers not guilty of the false arrest and malicious prosecution claims. On the other hand, the jury agreed with Knaack that the officers had used excessive force when arresting him. However, the jury only awarded plaintiff $1,500 for that claim. A jury trial is successful even when the jury finds against the governmental entity or its employees but the award against the government defendant is so low that money was saved by not having to pay the higher amount of money offered to settle the case than what the jury ultimately awards.

9. Police Not Liable to Pedestrian When "Pursuit" Not the Proximate Cause of Injuries
On October 4, 2000, fleeing felon Jerry Davis was driving westbound on Van Buren Street located in downtown Chicago, in a station wagon fleeing from the police. At the same time, plaintiff William Wade was walking on the sidewalk on the north side of Van Buren Street when Davis drove up onto the sidewalk and struck Wade and other pedestrians, severely injuring Wade.

Wade then filed a two-count complaint against the City, and police officer Jasinski, for negligently, willfully, and wantonly "pursuing" a vehicle. Wade alleged that the officer's "pursuit" caused the driver of the pursued vehicle to drive up onto the sidewalk and strike plaintiff, thereby causing his injuries.

At trial, Wade argued that Jasinski willfully and wantonly chased Davis through a crowded downtown street, with conscious disregard for or utter indifference to the safety of others, and that Jasinski's conduct was a proximate cause of his injuries. Plaintiff's expert witness opined that Jasinski's conduct was a "pursuit" consistent with the Chicago Police Department General Order 97-3, which defined "pursuit" as:

"[a]n active attempt by a sworn member operating an authorized emergency vehicle to apprehend any driver or operator of a motor vehicle who, having been given a visual and audible signal by the officer directing such driver or operator to bring his vehicle to a stop, fails to or refuses to obey such direction, increases or maintains his speed, extinguishes his lights, or otherwise flees or attempts to elude the officer."

Finding that Jasinski was not willful and wanton, the jury returned a verdict for defendants, and plaintiff appealed. In upholding the jury's verdict in favor of the defendants, the Appellate Court10 found that Wade did not prove that Jasinski's conduct was willful and wanton. Section 1-210 of the Tort Immunity Act defines willful and wanton conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210 (2002). The facts brought out at trial were that during the chase, Jasinski's lights and siren were activated. When he came to a red light, he slowed down and proceeded through the red light at about five miles per hour with his emergency equipment still activated. Jasinski also moved into the left lane so that he would be visible to the oncoming traffic. His speed never exceeded the speed limit of 30 or 35 miles per hour. Therefore, in reviewing the evidence, the Appellate court believed that Jasinski acted with due regard for the safety of the general population.

The Court also found that there was no evidence upon which the jury could conclude that any action by Jasinski was the proximate cause of plaintiff's injuries. Although Wade argued that Jasinski proximately caused his injuries because the accident was a foreseeable and likely result of the pursuit, the Court disagreed. Its review of the evidence at trial led it to opine that Jasinski did not drive recklessly or cause Davis to drive recklessly. When Jasinski was stuck in traffic on Van Buren, his location was about 20 to 25 cars behind Davis' station wagon. The officer was keeping a safe distance at the speed limit and was driving at a constant speed, when Davis drove up onto the sidewalk and struck Wade. The Court stated that it was Davis's "own independent decision to drive onto the sidewalk without regard for the pedestrians' safety that caused plaintiff's injuries. Plaintiff's argument that Jasinski's continued pursuit of the station wagon after seeing it run a red light proximately caused his injuries is illogical and against sound public policy." Accordingly, the Court affirmed the jury verdict in favor of the City and Jasinski. This case acknowledges the public policy that sometimes innocent citizens can be injured when governments carry out their activities in a reasonable way. This risk will not be passed on to the public treasury in every case.

10. Detention by Police of Armed Plain-Clothes Officer at Home Depot was Reasonable
Clifton Thurman was shopping at Home Depot when store employees noticed that he was armed. Thurman was dressed in jeans and a sweatshirt, and his clothes did not signal that he was a police officer. In response to a call from an employee of Home Depot, officers of the Homewood Police Department responded, approached Thurman, and asked if he was armed. Thurman responded in the affirmative, and stated that he had a star around his neck and credentials in his pocket. He then showed the officers his badge, which stated Chicago Police but did not contain any identifying information such as his name or photo.

The officers requested additional identification from Thurman, and he produced his driver's license and firearm registration card. The firearm serial number on the firearm card was whited out and another number was handwritten in its place. Thurman also proffered an identification card that stated Chicago Police Department. The card contained Thurman's photo, but did not indicate that he was a police officer with the department, as opposed to an employee in another capacity. The Homewood officers then asked a series of questions designed to elicit whether Thurman was truly a Chicago Police Officer. Thurman was obviously annoyed and, while answering questions, was not helpful, and did not clear up the confusion about where he worked, which would have shortened the investigation. They were still unable to verify whether he was a police officer or not. The officers finally asked Thurman for the phone number to the 21st District of the Chicago Police Department and Thurman provided it. Upon receiving verification that Thurman was, indeed, a Chicago Police Officer, the Homewood officers returned the weapon to Thurman and left the store.

The entire incident took approximately 20-25 minutes from the initial confrontation to the resolution by Thurman's estimate, or less than 14 minutes according to the police dispatch records from the officers' arrival at the scene to their departure.

Thurman filed suit in the federal district court against Homewood and the police officers, contending that the questioning and detention by the officers deprived him of his freedom of movement in violation of his Fourth Amendment rights and that the Village of Homewood caused the violation of his rights by failing to properly train the officers. The district court granted summary judgment in favor of the defendants.

The Seventh Circuit Court of Appeals11 found that Thurman simply failed to produce any evidence that would demonstrate that the officers unreasonably extended the duration of the investigation in violation of his Fourth Amendment rights. All of the actions taken by the officers were designed to elicit information as to whether he was a police officer. Although Thurman believed that they should have accepted his badge and initial tender of identification, the officers were not constitutionally required to do so. The Court noted that the badge could have been stolen or fabricated, apparently not an uncommon occurrence. Moreover, the altered firearm card gave the officers more reason to be cautious in making their determination as to Thurman's status. Even absent that, however, Thurman failed to present any identification with his name, or photo, which identified him as a police officer.

The Court, in upholding summary judgment in favor of the officers, held that because all of the questioning and the actions of the officers were likely to yield the needed information regarding his status as a police officer, the investigation did not violate Thurman's Fourth Amendment rights.

Then, because Thurman could not survive summary judgment on the substantive claim against the individual officers, summary judgment was proper for the Village of Homewood on Thurman's failure to train claims as well. In order to recover damages from a municipality under either a failure to train theory or a failure to institute a municipal policy theory, the plaintiff must prove that the individual officers are liable on the underlying substantive claim. Since the claim against the officers could not survive, neither could the claim against the Village. CONCLUSION
Governmental bodies, like any other business, profession or institution, make mistakes or take conscious actions which can injure people with whom they come into contact. Some of the contacts governments make are especially prone to such risks because they involve dangerous situations or persons with special needs or vulnerabilities. The courts, in making common law rules, and the Legislature, in granting governments and their officers and employees certain immunities recognize the existence of these risks. They have also concluded that, as a matter of public policy, the taxpayers within a governmental body cannot be the insurer or guarantor of all actions of the governments. Thus, the immunities granted are substantial, but far from total. While in some cases the temptation to dip into the seemingly deep pocket of government seems strong, both judges and juries, helped by good defense lawyers, are prepared to grant to governments the protections they need to fiscally survive. At Ancel Glink, we have decades of experience in making sure that governmental bodies receive the full and often successful defenses accorded them by law. For more information about the immunities available to Illinois governments, see Chapter 5.

1 Village of Round Lake Beach Municipal Code, Sec. 5-8-1(A) [1994]
2 First Midwest Trust Co., N.A. v. Britton, et al., 322 Ill.App.3d 922, 751 N.E.2d 187 (2nd Dist. 2001)
3 Ahmad v. Chicago Board of Education, 365 Ill.App.3d 155, 847 N.E.2d 810 (1st Dist. 2006)
4 Paul Oh v. City of Des Plaines and William Rochotte, United States District Court for the Northern District of Illinois, Eastern Division, Case No. 03 C 120
5 DeSmet v. County of Rock Island, et al., 219 Ill.2d 497, 848 N.E.2d 1030 (2006)
6 Maulding Development, LLC, v. City of Springfield, 453 F.3d 967 (7th Cir. 2006)
7 DeLuna, et al. v. City of Rockford, Illinois, et al., 447 F.3d 1008 (7th Cir. 2006)
8 Joshua Berryhill v. Village of Streamwood and Daniel Spychalski, United States District Court for the Northern District of Illinois, Eastern Division, Case No. 02 C 3268
9 James Knaack v. Officer Paul Tierney, Sgt. David Holem, and Village of Spring Grove, United States District Court for the Western District of Illinois, Case No. 03 C 50360
10 Wade v. City of Chicago, 364 Ill.App.3d 773, 847 N.E.2d 631 (1st Dist. 2006)
11 Thurman v. Village of Homewood, 446 F.3d 682 (7th Cir. 2006)

All chapters:
Ten Steps to Help Keep Your Employees From Suing You (Or To Help Defend You If They Do), by Margaret Kostopulos

Ten Lessons Learned by a Former Elected Official, by Gregory S. Mathews

Ten Rules to Live by for Public Management Labor Negotiators , by Gregory S. Mathews Donald W. Anderson

Moving Ten (Giga) Steps to the Digital Future , by Adam B. Simon

Ten Things Governmental Officials Should Know About The Illinois Governmental Tort Immunity Act , by Darcy L. Proctor

How Governments Can Win in Cases Before Appellate Courts – 10 Examples , by Ellen K. Emery

Ten Rules About Running for Local Government Office, by Keri-Lyn J. Krafthefer

Top Ten Tools for Your Construction Project, by Derke J. Price

Ten Steps to Creating a TIF District, by Paul N. Keller

Ten Things Governmental Officials Don't Know About Workers' Compensation, by Gerald A. Granada and W. Britt Isaly

Ten Things Municipal Officials Should Know About Local Prosecution and Ordinance Enforcement, by Scott Puma and John Christensen

The Zoning Game in Ten Easy Lessons , by David S. Silverman

Ten Ways Municipalities and Park Districts Can Intergovernmentally Cooperate, by Scott A. Puma

Ten Steps to a Closer Relationship Between Municipalities and School Districts, by Margaret Kostopulos







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