Question: Are Courts Especially Hard On Governmental Bodies?

ANSWER: Some people believe that the court system, especially at the Federal level, is unfair to governmental bodies in tort cases. It is felt that Federal judges are enthusiastic about second-guessing the actions of public officials, especially police officers. Ancel, Glink has defended thousands of tort cases against governmental bodies. We are often assigned to defend these cases by governmental self-insurance pools which we have helped to create, along with assignments from individually self-insured governmental bodies and insurance companies. While it is true that some few judges may have an idea that governmental bodies should be perfect in their actions, most courts are willing to apply the broad range of full and partial immunities which are available to governmental bodies. Court should not be any government's first choice, but fear of a jury verdict or a trial court judge's decision should not paralyze a government's range of action.

Both in the State and Federal Systems, common law concepts and statutory language typically accord governmental officials a broad range of action in reaching decisions and taking actions before a point comes where the government is held libel for damages incurred. Especially in State courts, there are many situations where a private company would be liable for an injury but a governmental body is fully or partially immune. The Illinois Legislature, in its adoption and amendment of the Tort Immunity Act, appreciates the fact that without these immunities, tax dollars would often not be available to carry out essential governmental functions. Ancel, Glink produces a pamphlet called "The Tort Immunity Handbook," which fully discusses immunities available to governmental bodies and is available upon request.

Sometimes, a court decision against a governmental body is publicized and makes it appear that the courts have very little patience with governmental officials. A recent decision of the United States Court of Appeals for the Seventh Circuit may, unless analyzed, lead observers to this conclusion. On November 5, 2002, the Seventh Circuit rendered its decision in the case of Herzog vs. Winnetka. In that case, it reversed a decision of the trial court, which had dismissed a suit against the Village. The Court of Appeals ordered the case to be re-opened. The lawsuit came to the three-judge Federal Appellate Panel after the Village had won a motion dismissing the case based upon a summary judgment in the trial court. A motion for summary judgment is a technique which lawyers can use to attempt to dismiss a case if the plaintiff cannot prevail, even if all of his or her allegations are found to be true. In effect, the Village took a risk that the courts would find that, even if somewhat unusual and troubling, the alleged actions of the Village official, in this case a police officer, even if admitted to, did not create a federal cause of action under the Civil Rights Act. Instead, the circuit court judges unanimously found that the plaintiff could pursue her claim. These were the facts as stated by the Court: The plaintiff, Maris Herzog, is a middle-aged, unmarried schoolteacher. After a dinner at which she had two sips of wine, she was driving home on Sheridan road, which connects Winnetka to Chicago, where she lives, when she noticed something wrong with the lights on her dashboard. Seeing a police car in the vicinity she felt it safe (it was after midnight) to pull over to the side of the road and get out of her car to check her exterior lights. She was not speeding or violating any other rule regulating driving.

The police car, driven by defendant Powell, an inexperienced officer who had not yet completed her one-year probationary appointment, pulled up behind Herzog's car and Powell ordered her to get back into her car; Herzog obeyed. After checking her license and insurance card, both of which were in order, Powell ordered Herzog out of the car, walked her to the sidewalk, and pushed her down, and she fell in some bushes and hurt her hands. Powell then ordered Herzog to take a variety of "DUI performance tests," such as standing on one leg, touching her nose, and counting backwards from 1000. Herzog passed all the tests. Nevertheless Powell handcuffed Herzog and told her she was under arrest for driving under the influence. Herzog protested that she had only two sips of wine that evening. Powell then forced a plastic device (a "personal breath screening device") into Herzog's mouth, cracking a tooth, and told her to blow hard. The test revealed a blood-alcohol level of 0.00.

Powell transported Herzog to the Winnetka police station, where the other defendant, Officer Colleran, laughed at Herzog when she complained that the cuffs were too tight, although after an hour loosened them. Powell administered a breathalyzer test which confirmed the 0.00 blood alcohol-yet she told Colleran that she wanted to take the plaintiff to a hospital for blood and urine testing, and Colleran approved, though there was no reason to believe that Herzog was intoxicated or had violated any law. At the hospital Herzog was given a blood test and then forced to give a urine specimen in the presence of Powell, although the hospital had installed a special toilet for taking urine samples while providing privacy and yet preserving the integrity of the sample. She was told that if she refused either test the consequence would be to lengthen the period for which her driving license would be suspended. Powell then returned Herzog to the Winnetka police station and had her charged with speeding and driving under the influence of drugs. Both charges were dismissed at Herzog's first court appearance. The blood and urine tests of course proved negative. [Emphasis Added] [Seems like the Court's editorial comment of extreme impatience and concern.]

Recall that for purposes of this appeal the defendants have conceded that the facts we have recited are not only true, but complete; that is, there are no other facts on which to base our decision. Therefore we must accept that the arrest was made without probable cause and hence in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures; and that without provocation or excuse Powell shoved the middle-aged female plaintiff to the ground and Colleran refused to loosen the plaintiff's chafing handcuffs, both instances of excessive force, which, contrary to the defendants' argument, does not require either "a severe element of violence" or a threat of violence. "The Fourth Amendment protects against unreasonable seizures, not seizures that 'shock the conscience' or cause "severe injuries.'...The objectively unreasonable seizure itself (regardless of the officer's motive or whether any injury inflicted was severe) crosses the constitutional threshold. It was on the basis of this reasoning that the Court of Appeals found for the plaintiff and gave her an opportunity to present these facts to a jury. This case will now be returned for trial at which point, after the plaintiff puts on her case, the municipality will have the opportunity of presenting any counter-evidence to justify the facts alleged by the plaintiff. Of course, the Village may try to dispute the plaintiff's evidence through cross-examination as that evidence is presented. While, often courts will hold that seemingly inappropriate and thoughtless actions by governmental officials do not rise to the level at which they are protected by the Federal Constitution, this case illustrates the fact that courts are sometimes provoked into action by a really bad set of facts. Here, the story, uncontested at this point, cried out for judicial intervention.

One of the reasons that governmental bodies have created self-insurance pools or purchase insurance is that there is a recognition that sometimes their actions do cause serious financial or physical harm to third-parties. The training of personnel and loss prevention techniques can reduce claims against governmental bodies, but they cannot eliminate them entirely. Governments must be prepared, in the appropriate cases, to reach reasonable settlements prior to trial. Sometimes, the amounts requested by injured plaintiffs are so unreasonable that settlements cannot be reached and governments must go forward and seek the assistance of a jury in setting damages which hopefully will be at lower levels. Where governmental bodies take a poor factual situation into the court system and seek a dismissal of the case based on immunities, they will find, from time-to-time, as in this case, that the courts are not prepared to "give them a pass." Don't blame it on the courts or the judges.