S P E C I A L    F O C U S

No Good Deed Goes Unpunished Park police services can open a Pandora's box of legal and liability exposures as well as public relations issues BY STEVEN J. KLEINMAN, J.D. AND EDWARD F. DUTTON J.D.

Consider this hypothetical situation.

It's another uneventful day on park patrol. Children are playing, birds are chirping and couples in love are strolling hand-in-hand. When two park police officers admonish a dog owner for violating the agency's leash ordinance, the belligerent dog owner rhetorically inquires, "Which officer is Barney Fife and who is Shaft?"

While entering their vehicle, the officers smirk at each other knowing all is quiet in their Mayberry and return to routine patrol, carefully monitoring radio traffic, a practice often referred to as "trolling." Over the radio they hear a general call for assistance directed to the city police. Apparently, a high-speed chase is in progress involving a stolen vehicle which had been pulled over because of inoperable brake lights. Park district policy requires that park police shall "call in" to obtain authorization before providing mutual aid. However, sensing that the pursuit is nearing their locality and perceiving urgency, the park police fail to call in first and instead immediately respond to the call for assistance.

Within moments, the park police are participants in a high-speed chase through the downtown area. They are now immediately behind the stolen vehicle and in hot pursuit when the perpetrator flies through an intersection, against the light, broadsiding another vehicle being driven by a 75-year-old grandmother. In attempting to avoid the collision, the park police vehicle sharply veers and strikes a tree. Fortunately, the officers sustain only minor injuries and immediately proceed to arrest the seriously injured perpetrator.

One Year Later

If we fast-forward to one year later, the following legal actions have commenced. The seriously injured grandmother has filed a negligence action in state court against the uninsured driver of the stolen vehicle, the park district and the city. In turn, the city has filed a counterclaim against the park district. The park police officers have filed workers' compensation claims for injuries sustained during the pursuit and their union is challenging disciplinary action against the officers for failing to follow agency policy requiring authorization prior to providing mutual aid.

Because the disciplinary action occurred subsequent to the filing of their respective workers' compensation claims, the officers (through legal counsel) are threatening a state court action for retaliation for exercising their rights under the Illinois Workers' Compensation Act and are demanding that all disciplinary action be expunged. Adding insult to injury, the driver of the stolen vehicle has filed a federal action for violation of his civil rights during the arrest.

Analysis of the Situation

Understandably, the need for brevity prohibits any complex legal analysis of each individual issue arising from even this relatively simple intersection collision. Yet, it is necessary for park districts to recognize and understand the proverbial Pandora's box of potential legal and liability exposures, departmental concerns, and public relations issues when ever park police services are provided.

Are there applicable defenses and immunities to the above actions? Yes! But at what costs and expenses?

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Park districts must understand and appreciate that in today's litigious and divisive society, any act or omission of park police officers may give rise to liability exposure, internal conflict, and public scrutiny.

Relative to this hypothetical, the most common legal action is a state court negligence claim by the innocent accident victim, in this instance the 75-year-old grandmother. Although the facts are relatively simple, the issues presented are of extreme importance to local public entities and law enforcement officers across the state. Park police are constantly called upon to respond to emergency calls for assistance (e.g., in response to crimes in progress, serious traffic accidents, threats to public safety and the like), often while operating a motor vehicle. In every instance the responding officer is faced with competing concerns: arriving at the scene as quickly as possible while at the same time avoiding accidents and injuries to others while on the way to the scene. During such an event, the perception of the crime victim or injured person is that the police are taking too long to respond. By contrast, bystanders often feel that the responding officer is driving too fast and needlessly endangering others. Police officers face and weigh these competing concerns on virtually every emergency assistance call.

The Law in This Case

Until the 1997 appellate court (fifth district) decision in Bradshaw v. City of Metropolis, 688 N.E. 2d 332 (5th Dist. 1997) the law had been well-settled that police officers who were involved in the execution and enforcement of the law at the time of a vehicle accident were immune from liability for allegations of negligence, pursuant to Section 2-202 of the Tort Immunity Act. Therefore, to impose liability upon the public entity, plaintiffs were required to establish that the officer's conduct was "willful and wanton," a burden often insurmountable.

The first district 1997 appellate decision in Morton v. City of Chicago, 676 N.E. 2d985 (1st Dist. 1997) is particularly instructive on this issue. In Morton, the plaintiff alleged that the police officer's failure to activate her lights and siren was in direct violation of police department rules and regulations requiring the activation of both lights and siren while engaged in a pursuit. In rejecting the plaintiffs argument that the internal rule imposed a legal "duty" upon the officer, and further, that a knowing violation of the rule was evidence of willful and wanton conduct, the court observed:
"Indeed, the violation of self-imposed rules or internal guidelines... does not normally impose a legal duty, let alone constitute evidence of negligence, or beyond that, willful and wanton conduct."

In Bradshaw, however, the appellate court created a conflict where none had previously existed when that court ruled for the first time that specific provisions of the Motor Vehicle Code imposed a duty of due care (i.e., a negligence standard) upon officers driving their vehicles while in the execution and enforcement of law. Further, the court held that the Vehicle Code overrode (or "trumped") the immunity from negligence specifically provided in Section 2-202 of the Tort Immunity Act. Fortunately, the holding in Bradshaw has been both criticized and rejected by three other appellate districts (Carter v. DuPage County Sheriff, 710 N.E.2d 1263 (2nd Dist. 1999); Sanders v. City of Chicago, 714N.E.2d 547 (1st Dist. 1999); and Young v. Forgas, 720 N.E. 2d 360 (4th Dist. 1999)). Although the Illinois Supreme Court has yet to resolve this conflict among our appellate courts, we can be cautiously optimistic that the Illinois Supreme Court will likely reject the holding in Bradshaw.

Park Police Immunities

In addition to the immunity of Section 2-202, the Tort Immunity Act provides numerous other immunities applicable (depending upon the facts of each case) to various state claims against park police officers and public agencies. Representative immunities include these:

• Section 2-201. A public employee is not liable for injuries resulting from the determination of policy or in the exercise of discretion even where abused.

• Section 2-203. A public employee who acts in good faith, and without malice, is not liable for the execution of a law that is unconstitutional, invalid or inapplicable, except to the extent that he would have been otherwise liable had it been constitutional, valid or applicable.

• Section 2-205. A public employee is not liable for an injury caused by his adoption of, or failure to adopt, an enactment, or by his failure to enforce any law.

• Section 2-109. A local public entity is not liable for an injury arising from an act or omission of its employee where the employee is not liable.

• Section 4-102. There is no liability for the failure to establish a police department or to provide police protection service. If police protection services are provided, there is no liability for failing to provide adequate police services or to prevent, detect or solve a crime or for failing to identify or apprehend a criminal.

• Section 4-103. There is no liability for the failure to provide a jail or correctional facility, and when one is provided, for the failure to provide sufficient equipment, personnel, supervision or facilities therein. Nothing in this Section requires the periodic inspection of prisoners.

• Section 4-104. Neither a local public entity nor a public employee acting within the scope of his employment is liable for interfering with a prisoner's right to obtain a judicial determination

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of the legality of his confinement, except when the interference is intentional and unjustifiable.

• Section 4-105. There is no liability for the failure to furnish medical care to a prisoner except, when it is determined through observation that a prisoner is in need of immediate medical care and there is a willful and wanton failure to take reasonable action or summon that care. Nothing in this Section requires the periodic inspection of prisoners.

• Section 4-106. There is no liability for an injury inflicted by an escaped or escaping prisoner, from determining to parole or release a prisoner, or by revoking or changing the terms of any parole or release.

• Section 4-107. There is no liability for an injury caused by the failure to make an arrest or by releasing a person in custody.

Public Official Immunity

In addition to the available statutory tort immunities to state law-based claims, the Illinois common-law doctrine of "public official immunity" remains alive and well in Illinois. In short, "public official immunity" is intended to shield public officials (including park police) from liability arising out of exercise of discretion. Indeed, this common-law immunity is essentially codified in Section 2-201 of the Tort Immunity Act. To apply, the public official must establish that he exercised his discretion on a matter truly"discretionary" in nature and not "ministerial."

In determining whether the conduct was discretionary rather than ministerial, courts traditionally determine whether the employee was required to act in a "prescribed" manner, without regard to judgment. Understandably, courts are often reluctant to applying this immunity because arguably, most tasks involve some degree of judgment and discretion. Further, public defendants must establish that they acted in "good faith" and not motivated by corrupt or malicious motives. With the availability of case law and development of statutory immunities, "public official immunity" has become a rarely used secondary defense.

Notably, the Illinois Tort Immunity Act and common-law "public official immunity" will not insulate public entities and their employees from federal civil rights actions such as false arrest, illegal search and seizure, police brutality, discrimination, and racial profiling. Further, although punitive damages are generally unavailable in state law-based claims and prohibited under the Tort Immunity Act (Section 2-102), punitive damages are often sought and in many circumstances available in federal civil rights claims. To the extent that public entities are prohibited from indemnifying their employees for punitive damages and it is against Illinois public policy to obtain insurance coverage for punitive damages, the fear of punitive damages is very real and potentially crippling to both the individual employees and agency involved.

Although park police sued in their"individual capacities" are generally entitled to "qualified immunity" from damages arising out of federal civil rights claims, this immunity is not available to public officials, park districts and police agencies sued in their "official capacities." An action against an official in his "official capacity" is deemed an action against his office, and the qualified immunity defense is not available to the entity. Further, the defense of "qualified immunity" is limited to circumstances where defendant's conduct did not violate "clearly established statutory or constitutional rights," a determination the court must make before the immunity could be applied in a given situation.

Notably, the Illinois Tort Immunity Act and common-law "public official immunity" will not insulate public entities and their employees from federal civil rights actions such as false arrest, illegal search and seizure, police brutality, discrimination, and racial profiling.

When making this determination, courts often seek guidance from the U.S. Supreme Court. As the U.S. Supreme Court has stated, "The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." (Hunter v. Bryant, 502 U.S. at 229, citing Malley v. Briggs, 475 U.S. 335 (1986). This accommodation for reasonable error exists because officials should not err always on the side of caution because they fear being sued. Nonetheless, a common irony is that even in a winning effort, the defense costs incurred often significantly exceed the settlement demands of the plaintiff. Park districts must understand and appreciate that in today's litigious and divisive society, any act or omission of park police officers may give rise to liability exposure, internal conflict, and public scrutiny. Often it is as true as it is irrelevant, that no wrongful or discriminatory conduct ever occurred; for even in a winning effort, the costs of defense, negative publicity, and damage to reputation often permanently scar and taint the public employees and agency involved.

Park districts should be cautioned and wary when providing police services. Prudent policies and procedures must be implemented, adhered to, and consistently reinforced with training and education. Absent such efforts, park police and their host agencies compromise the safety and well-being of the very communities they serve and protect, while exposing themselves to the crippling and very real consequences associated with liability exposure and public scrutiny. •

STEVEN J. KLEINMAN J.D.
is general counsel for the Park District Risk Management Agency.

EDWARD F. DUTTON J.D.
is chief litigation counsel for the Park District Risk Management Agency. For a sample policy for emergency response, see page 20. For more information and related policies for park district law enforcement, contact the authors at the Park District Risk Management Agency (PDRMA), 847.769.0332.

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