POLICE INACTION AND INSENSITIVITY
CAN BRING ABOUT COSTLY AND
EXTENDED LITIGATION

By STEWART H. DIAMOND

On August 4, 1994, the Illinois Supreme Court handed down its decision in the case of Jane Doe, et al., vs. City of Calumet City, et al. In the Jane Doe case, the Illinois Supreme Court expanded the right to sue under certain circumstances, which will undoubtedly result in more lawsuits being filed against Illinois governmental bodies and individual police officers. Communities and their police departments should be aware of these expanded causes of action, and should, through training programs and police procedures, attempt to prevent such suits. Newspaper articles have highlighted the part of the case that makes municipalities sometimes responsible for the non-action of their police. This concept is not actually new and is only one part of a troubling decision caused in large measure by a very bad set of facts.

The facts in the Jane Doe case are rather dramatic. At 4:00 a.m., a male intruder illegally entered the apartment of Jane Doe, and her two minor children, Betty and John while they slept. The intruder attempted to rape Jane Doe and threatened to kill her. At one point, Jane Doe escaped and made a break for the front door. She and the intruder fell down the stairs. During this altercation, the intruder again threatened to kill her and her children. Jane Doe escaped from the apartment clad only in her undergarments and the intruder locked the door and went upstairs. Jane Doe unsuccessfully attempted to gain entry to the apartment by kicking and pushing the door, and then ran into the streets where her screams attracted neighbors who dialed 911.

The incident took place in Calumet City, although a Village of Burnham police officer was the first to arrive on the scene. Shortly thereafter, Officer Horka, a Calumet City police officer arrived and assumed a supervisory role, and, among other things ordered the Burnham officer to guard the back door of the building. The actions alleged against Officer Horka in the complaint resulted in the Supreme Court reversing the dismissal of a number of counts against Officer Horka and Calumet City. The other officers merely followed Officer Horka's orders and the court found none of their alleged actions sufficient to state a cause of action against them or their municipalities.

What did Officer Horka do which caused the lawsuit to be returned to the court system for additional proceedings? It is alleged that even after repeated pleadings by Jane Doe, Officer Horka declined to break down the door of the apartment stating that he did not want to be responsible for the property damage. Instead, he tried to reach the landlord to seek permission to damage the door. It is alleged that he then prevented neighbors who had gathered on the scene from breaking down the door. During his conversation with Jane Doe, he spoke to her in a rude, demeaning and accusatory manner, and asked her "where is your husband?" "Do you know the guy?" "Why would you leave your children in the apartment if their was a strange man in there?" "Why did you leave the apartment without a key?" It is alleged that Officer Horka described Jane Doe as "an hysterical woman", and stated that "this girl is freaking out."

After a long period of time, an investigator from the Calumet City Police Department arrived at the scene and interviewed Jane Doe. Accompanied by several officers, Investigator Miller entered the apartment through the rear door of the building and the back door of the apartment which were unlocked. When the officer arrived, they found the intruder raping Betty. The intruder had also choked and threatened John.

This case reached the Supreme Court after the trial court had granted motions to dismiss filed by all of the defendants. When a motion to dismiss is filed, the court is to evaluate the complaint as if all of the plaintiffs' well-pleaded allegations are true. In such a case, the defendant argues that even if the allegations are all true, no legally recognizable cause of action has been stated. The Appellate Court affirmed the dismissal. The Supreme Court reinstated all but one of the plaintiffs' legal theories which arose out of Officer Horka's actions. That is not to say that the plaintiffs' will necessarily prevail once the actual facts are presented to a judge or jury. Nonetheless, the Court has established some new legal theories which will surely be alleged in other cases, and may prevent them from being dismissed at the earliest stages of suit. This can be a great victory for a plaintiff, since, in some instances, sympathetic facts when presented to a jury will result in a large verdict even if the jury doesn't follow all of the legal niceties contained in the Judge's instructions on the law.

It is not known whether Officer Horka did all of the things which are alleged in the complaint. But the message sent by the Supreme Court is that if he did do these things, a jury could decide the case for Jane Doe and her children under a number of legal theories.

The first matter which the Court considers is decided in favor of the police officers and the municipalities. The Supreme Court found that there did not exist a so-called "special relationship or duty" between the plaintiffs and the municipalities. This is an important victory for municipalities, since one could argue that by taking over the crime scene, the police had established a special duty of care for the victims. The Court, however, concluded that even though the police were in control of the exterior portion of the crime scene, they had no control over the acts of the assailant. They had

September 1994 / Illinois Municipal Review /Page 5

not brought the assailant to the scene, nor promised any special police assistance. This was a sympathetic case in which the Court could have expanded the "special relationship" doctrine. The Supreme Court refused to do so. This represents a victory for local governmental bodies because police can not be everywhere and in sufficient numbers to be asked to achieve perfection in every law enforcement operation.

The Court, however, then concluded that the alleged actions of Officer Horka, if true, showed such an utter indifference to or conscious disregard for the safety of others that a jury could find that Officer Horka's conduct was willful and wanton. Once a police officer's conduct reaches the level of "willful and wanton misconduct", the broad immunities granted to law enforcement officials disappear and the officer and the municipality must attempt to prove to a jury that the plaintiffs' allegations cannot be proven by the evidence, or that when properly understood they will not constitute "willful and wanton acts." Here the court characterized the allegations against Officer Horka as being sufficiently outrageous to meet this high standard.

Next, the Court evaluated whether Officer Horka had committed actions which would allow the plaintiffs to charge him with the tort of "intentional infliction of emotional distress." In order to establish the elements of that cause of action, the plaintiffs needed to allege facts to show that Officer Horka either intended that his conduct inflict severe emotional distress, or knew that there was a high probability that his conduct would cause severe emotional distress. The Court, once again, reviewed the facts of the case and concluded that a reasonable jury could find that Officer Horka's conduct was adequate to create a cause of action for Jane Doe. In this case, it was alleged that Jane Doe suffered severe emotional distress as a result of Officer Horka's unwillingness to employ reasonable police procedures. This type of a cause of action is not new. It is just that until recent years, the inaction of police officers, as opposed to affirmative acts, was not thought to be serious enough to trigger this standard. When the facts are sufficiently egregious, inaction alone will now support a lawsuit for the "intentional infliction of emotional distress."

From a legal standpoint, perhaps the most novel part of this case is the allegation that Jane Doe was deprived of her federal constitutional rights because Officer Horka committed gender discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Jane Doe alleged that Officer Horka treated her complaint differently than if it were made by a male and that he acted on gender-based stereotypes of females. The Court writes:

We find that the allegations in the complaint, when viewed in a light most favorable to the plaintiffs, make out a cognizable claim of gender discrimination. Initially, the manner in which Officer Horka treated Jane raises an inference of gender discrimination. Jane was clothed only in undergarments and had just suffered a sexual assault and a battle to escape her attacker. She also feared for her children, who remained at the mercy of her attacker. After being informed of this situation, Officer Horka allegedly questioned Jane in a rude and demeaning tone as to why she would leave her apartment with a strange man there and leave without a key. Horka allegedly also stated that he could not understand Jane and that she was not "coherent," while neighbors present could understand Jane at all times. In addition, Officer Horka described Jane, a woman old enough to have two children, as a "girl." A reasonable trier of fact could determine that such conduct shows Officer Horka discredited Jane's statements and dismissed her complaints based on her gender.

Two of the seven members of the Supreme Court did not agree with this conclusion regarding gender discrimination. Mr. Justice Heiple in his dissent wrote:

Section 1983 does not provide a cause of action whenever a word or phrase is spoken which happens to be on the current list of politically incorrect utterances. Neither the Constitution nor the federal statutes require officers to speak tactfully or deferentially to a person because of his or her gender.

Nonetheless, five of the Justices on the Supreme Court came to the conclusion that Officer Horka's alleged complete insensitivity to the situation and his approach, which indicated that he believed that a domestic situation was not fully deserving of his attention, went beyond mere poor police work into depriving the plaintiff of rights guaranteed to her under the Constitution. In addition to Officer Horka, the majority concluded that certain allegations about past practices in the defendant City made the municipality itself an appropriate defendant under this count.

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The lessons to be learned from the Jane Doe decision are many. First, this case proves the validity once again of the old legal proverb that "bad cases make bad law." Here, the alleged facts are sufficiently outrageous to make even seasoned judges want to second guess the decisions made by police officers. While court may be willing to generally allow police officers a reasonable chance to assess the circumstances of a police emergency, some acts of gross insensitivity and indifference go too far. The Court appears to be saying that if the police cannot make something better, they should at least not make it worse by freezing the situation through enforced inaction. Most lawsuits against police will continue to arise out of allegations of affirmative misconduct. But whether the suit arises from the failure to check the cell of a suicidal prisoner, a refusal to send an arrestee to the hospital, or timidity in the face of seemingly little risk, our police and the municipalities will be liable to suit. Most insurance companies and pools will defend against and cover both the alleged active and inactive negligent events.

Finally, the Court is telling us that our society will not tolerate gender-based discrimination in police work. A police officer, of whatever gender, must make certain that gender stereotypes do not appear to be the motivating factors in his or her actions. This kind of complaint could be made in a case involving male as well as female plaintiffs. A male or female police officer who refuses to intervene in a bar fight between males where one participant is clearly outmatched and asking for help does so at the municipality's peril. It will be no defense to a lawsuit, in which the loser in the fight is badly injured, that "boys will be boys". Nor will a failure to act on a "hysterical woman's ravings" provide any defense when other independent witnesses draw a wholly different conclusion.

The Jane Doe case is one which may eventually be entirely won by the police officer and the municipal defendant. The plaintiffs' allegations may not be proven by the testimony taken during depositions or at trial, or the defendants may have perfectly good explanations to justify their actions. Because this case never went beyond the stage of the motion to dismiss, the defendants were never required to file answers or to assert certain defenses available to them. Nonetheless, whatever may be the outcome of this case, the law of Illinois has been somewhat changed to impose a higher burden of care and sensitivity on police officers and their governmental employers. The higher standards now required of our clients can be attained through continued and, if necessary, improved training. If training takes place and police officers make decisions which in hindsight are incorrect, courts will, still give them the benefit of the doubt. Where, however, as is alleged here, the officer appears to have strung together a whole series of insensitive, unprofessional and incorrect decisions, the courts will be inclined to give the plaintiffs their day in court so that all facts can be evaluated by a jury. •

CONFERENCE ANNOUNCEMENT:
"THE AIRPORT LINK TO
ECONOMIC DEVELOPMENT"

National-Louis University (NLU), in partnership with aviation and community associations, is offering a one day conference focused on the value of general aviation airports to the economic development of the communities served by them, October 28 at the NLU Conference Center, 200 S. Naperville Road, Wheaton, IL, 9:30 a.m. to 3:30 p.m.

Discussion topics will include: The Future for the General Aviation Industry and Implications for the Community; General Aviation in Business Planning;

Economic Development Opportunities for Airports; The Role of the Community Airport in Transportation Planning; Merging the Airport into the Community Economy. Community leaders, economic planners, business managers, airport operators, and others interested in realizing the potential of the airport as a community asset should plan to attend.

Sponsoring organizations include: IL Aviation Forum, IL Aviation Trades Association, Aircraft Owners and Pilots Association, IL Development Council, IL Public Airports Association, IL Council of Independent Airports, IL Chamber of Commerce, IL Municipal League, and the IL Division of Aeronautics. To register by phone, or to receive additional information, call: 708-668-3838, Ext. 4430. •

September 1994 / Illinois Municipal Review / Page 7