Governmental Immunity: Protecting the Protectors

Ronyale White secured an emergency order of protection against her husband, Louis Drexel, to prevent him from physically harassing or abusing her. Two weeks later, in violation of this protective order, he entered her home armed with a gun. White became fearful and called 911.

Two Chicago police officers responded to the call, having been made aware that the husband was in violation of a protective order.

Although they had probable cause to make an arrest under the Domestic Violence Act, they failed to enter her home and, instead, drove away without even investigating the matter or assisting her. Within minutes of their departure, her husband shot and killed her.

The administrator of her estate brought an action against the two police officers and the city, based upon the Domestic Violence Act, 750 ILCS 60/102 (2002). The defendant, though, sought dismissal of the suit under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/4-102 or 4/107 (2002), claiming that it provided absolute immunity for their actions. The circuit court denied the motions to dismiss, but submitted to the appellate court a certified question of law on the applicability of tort immunity under those sections.

The appellate court found that the legislature intended such claims to be governed exclusively by the Domestic Violence Act. Moore v. Green, 355 Ill.App.3d 81, 822 N.E.2d 69 (1^st Dist. 2004). 750 ILCS 60-305.

The Illinois Supreme Court affirmed the lower court’s decision, and, although the case is moving forward under that act, its holding under the Tort Immunity Act is disturbing, to say the least. Moore v. Green, Docket No. 100029 (decided April 20, 2006).

That same day, the Illinois Supreme Court decided DeSmet v. County of Rock Island, Docket No. 100261 (decided April 20, 2006). Similarly, the court in DeSmet found that governmental employees were immune from liability despite their being informed of a car going off the road into a ditch. The driver of that car died without anyone ever responding to the emergency call.

In both decisions, Justice Mary Ann McMorrow filed a separate opinion, discussing in DeSmet and specially concurring in Moore.

"It is in my view that absolute immunity should not shield from liability acts performed by local governmental entities or government officials in bad faith, especially where the provision of life-saving police protection services are involved," McMorrow wrote, "It has long been my position that it is not necessary to legislatively bestow absolute immunity upon governmental entities and/or governmental employees in order to protect public entities from liability arising from ‘the operation of government,’ which is the stated purpose of the Tort Immunity Act [citation omitted]," Moore, slip op. At 21.

I agree with Justice McMorrow.

The Illinois Supreme Court however, did not cite a vital section of the Tort Immunity Act, 745 ILCS 2-202, which provides that officers can, in fact, be held liable for willful and wanton conduct when the are "in the execution and enforcement of any law."

This statutorily created willful and wanton exception to immunity was evident in Leone v. City of Chicago, 156 Ill.2d 33, 619 N.E.2d 119 (1993); see also, Fatigato v. Village of Olympia Fields, 281 Ill.App.3d 347, 666 N.E.2d 732 (1^st Dist. 1996).

In Moore, the officers wee on duty and aware of the dangerous situation – a woman being threatened by a man, potentially armed, where a protective order was in place. The officers had a duty to protect the woman, and simply driving away from the scene does not absolve them from liability, certainly not under 745 ILCS 2/202.

It should be noted that a judicially created exception to the public duty rule known as the special duty doctrine has been applied by the courts. This immunity applies when governmental personnel are under a special duty, such as responding to emergency calls, a doctrine that was ignored in Moore and distinguished in DeSmet. Doe v. Calumet City, 161 Ill.2d 374, 619 N.E.2d 119 (1993).

In Doe, the Illinois Supreme Court held that certain conditions must exist – among those, that the injury must occur while the plaintiff is under the direct and immediate control of municipal employees or agents – for the special duty doctrine to apply.

In Moore, officers said they were at the scene, but, in fact, left the victim helpless.

And in DeSmet, officers failed to respond at all; the evidence showed that the victim would have survived ha they made an effort to find her. The willful and wanton exception in Section 2/202 was held not to apply because the officers were not executing or enforcing any laws, and, because they did not exercise any control over the decedent, a special duty had not been created.

Nevertheless, in Doe, the Illinois Supreme Court recognized that, even absent the existence of a special duty owed to a plaintiff by a police officer, Section 2/202 creates an exception to the governmental immunities provided for in Sections 4/102 and 4-107, and liability will lie when an officer acts willfully or wantonly when executing or enforcing the laws.

That statute 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.

Certainly, the legislature and the courts cannot condone such harmful behavior by the very people entrusted with protecting the public’s safety.

Now that Justice McMorrow is leaving the bench, commentators will be speculating about how her successor will judge this fight between victims and governmental employees’ alleged willful and wanton conduct. Whether the court will ultimately considered that the first line of attack should be 745 ILCS 2/202, a line of reasoning the Supreme Court has not invoked since 1993, only time will tell.