Jennifer J. Gibson

Thursday, November 29th, 2018

New Law Allows Law Enforcement To Petition for Emergency Firearms Restraining Orders

Public Act 100-0607, the Firearms Restraining Order Act (the “Act”), goes into effect January 1, 2019 and allows law enforcement, or a family member, to petition the court to issue an emergency firearms restraining order against an individual who poses an “immediate and present danger to himself, herself or another.” If the court issues such an order, the court can order law enforcement to search for and seize any firearms reasonably believed to be in the individual’s possession.

The Act provides that a petitioner may request an emergency order by filing an affidavit or verified pleading in the circuit court in which the individual resides, if the individual poses an “immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, purchasing, possessing, or receiving a firearm.” The petition must describe the type and location of any firearms the individual is believed to possess. Emergency orders are issued on an ex parte basis, meaning, without notice to the individual and the hearing for an ex parte order will be held the same day the petition is filed or the next day the court is in session.
If the emergency firearms restraining order is issued, it shall require that the individual:

  • “refrain from having in his or her custody or control, purchasing, possessing, or receiving additional firearms for the duration of the order; and
  • turn over to the local law enforcement agency any firearm, Firearm Owner’s Identification Card, or concealed carry license in his or her possession.”

To effectuate these terms, the court will issue a search warrant directing law enforcement to immediately seize the individual’s firearms. As part of the search warrant, the court may also direct law enforcement to search the individual’s residence or other places there is probable cause to believe he or she is likely to possess firearms.

After an ex parte emergency order is issued, the court is to schedule a full hearing no more than 14 days from the issuance of the emergency order to determine if a plenary 6-month firearms restraining order is appropriate. An ex parte order may be extended to exceed 14 days, to effectuate service of the order, if necessary to continue protection, or by agreement of the parties.

When petitioning for emergency and 6-month firearm restraining orders, if the individual is alleged to pose an immediate threat to an intimate partner, or if an intimate partner is alleged to be the target of a threat by the individual, the “petitioner shall make a good faith effort” to provide notice of the full hearing date to any and all intimate partners. If law enforcement is seeking the order, the notice must include referral to relevant domestic violence, stalking advocacy, or counseling services. Provision of this notice, or the inability to provide notice (with the reasons that attempted notice was unsuccessful) must be included in the affidavit or verified pleading.

Finally, the Act articulates a list of factors that the court must consider before issuing, renewing, or terminating a 6-month firearms restraining order, including but not limited to evidence of unlawful use or display of firearms, history of the use of physical force, prior felony arrests, substance abuse, recent or pattern of threats of violence, and violations of orders of protection.

Municipal Police Departments should be familiar with the requirements of this Act should such an emergency situation arise.


Jennifer J. Gibson

Author: Jennifer J. Gibson, Matt L. Marcellis

Tuesday, March 21st, 2017

Police Reports Held to be FOIA-able Despite Open Investigation

In its first public access opinion of the year, the Public Access Bureau of the Attorney General has opined that the mere existence of an open police investigation will not exempt a police report from the Freedom of Information Act (FOIA).

One of the more popular FOIA exemptions invoked by government agencies is the exemption under 7(1)(d)(i) of the FOIA Act, which exempts law enforcement records to the extent that disclosure would “interfere with pending or actually and reasonably contemplated law enforcement proceedings.” Under this exemption, it is common for law enforcement agencies to withhold police reports while an investigation is pending. Following the new Attorney General Opinion, an open investigation does not automatically invoke this exemption.

In the case considered by the Attorney General, the requester submitted a FOIA request to the Illinois State Police for a field report of a traffic accident. The Illinois State Police denied the request entirely, citing section 7(1)(d)(i). Following the requester’s appeal to the Attorney General, the Illinois State Police attempted to support its denial with an affidavit stating that there was an open investigation and that disclosure would interfere with the investigation. The Attorney General was unimpressed with the affidavit, calling it “devoid of detail” as to how disclosure of the report would interfere with the open investigation. The Attorney General opined that to invoke the section 7(1)(d(i) exemption, the law enforcement agency must set forth facts that demonstrate how the disclosure of records would interfere with the pending law enforcement proceeding.

While the Attorney General opinion does not close the door on using the section 7(1)(d)(i) exemption for law enforcement records when there is an open investigation, it is clear that to invoke this exemption, a law enforcement agency must be able to specifically detail how and why disclosure would jeopardize the investigation.


Jennifer J. Gibson

Author: Jennifer J. Gibson

Thursday, August 4th, 2016

Illinois is Now a Marijuana State

On July 29, 2016, Governor Rauner surprised the State by signing a bill into immediate effect that decriminalizes marijuana and marijuana paraphernalia.

Specifically, it is no longer a crime in Illinois to possess 10 grams or less of marijuana or any marijuana paraphernalia. Such persons are simply guilty of a “civil law violation” and can be fined between $100 and $200. The civil law violation may be proved by a field test or the opinion of a trained police officer.

The bill also provides for automatic expungements of persons cited for a civil law violation of possessing marijuana.  As it relates to municipalities, every law enforcement agency must automatically expunge on or before January 1 and July 1 of each year any law enforcement records, including police reports, of persons found to have committed a civil law violation of marijuana. Each police department must enact a procedure for automatic expungements and to confirm that the expungements have occurred.

The bill also makes it a lot more difficult to prove the offense of driving under the influence of marijuana. Formerly, there was a statutory presumption that a person was under the influence of marijuana for purposes of Illinois DUI laws, if a person’s urine contained any amount of THC (which can remain in a person’s urine for up to 30 days after using marijuana). Now, a marijuana DUI can only be proved 1) by a blood test revealing at least 5 nanograms per milliliter of blood; or 2) if the police officer is trained to detect impairment by marijuana versus impairment of alcohol or other drugs. The wrinkle to proving marijuana DUIs by blood test is that the State Police crime lab does not currently have the capability to test blood for marijuana level. There are private laboratories who do test for marijuana level in the blood, which can be costly.

We are recommending that, instead of writing civil law violations for marijuana use, municipalities write the offenses under their local ordinance and into adjudication court if they have one. For civil law violations written into circuit court, the first $45 of any fine will be divided between the circuit clerk, the county, the appellate prosecutor, and the state’s attorney. Municipalities will receive the entire fine if they write the marijuana offense as a local ordinance violation and into adjudication court. Additionally, if the offense is written under the local ordinance and into adjudication court, instead of as a civil law violation, then arguably the expungement requirement will not apply to that marijuana offense.  As for the more stringent standards to prove a marijuana DUI, we recommend drug recognition expert or “ARIDE” training for all police officers.


Jennifer J. Gibson

Author: Jennifer J. Gibson

Thursday, February 18th, 2016

New Act Requires Written Policy on Investigation of Officer-Involved Deaths

During last year’s legislative session, a number of new police requirements were put in place. Among these are the provisions contained in the Police and Community Relations Improvement Act (“Act”) that require each law enforcement agency to have a written policy regarding the investigation of officer-involved deaths for any law enforcement officer employed by that agency. The Act is effective as of January 1 of this year.

The term “officer-involved death” applies both to on-duty law enforcement officers and to those acting within the scope of their employment as well as to off-duty officers performing law enforcement activities. It is broadly defined to include deaths resulting directly from an action or intentional omission of a law enforcement officer, including unreasonable delay involving someone in custody or intentional failure to get medical treatment when the need is apparent. The term also includes deaths resulting from motor vehicle accidents if they happen while the officer was engaged in law enforcement activity involving the individual’s vehicle in the process of apprehension or attempt to apprehend.

While law enforcement bodies are permitted to conduct their own investigations in the event of an officer-involved death, they also are required to provide for an outside investigation, and their own internal investigation may not interfere with that outside investigation. The outside investigation must include at least two outside investigators or use an entity or agency with at least two investigators. The act spells out the minimum training qualification standards the outside investigators must meet, which will be those that basically qualify them to serve as a Lead Homicide Investigator. In the event that the officer-involved death involves a motor vehicle accident, at least one of the investigators must meet additional standards as a Crash Reconstruction Specialist. The act contemplates, however, that the Crash Reconstruction Specialist might come from within the law enforcement agency that employs the officer being investigated although it is not clear if, in that event, there would still need to be at least two additional outside investigators.

The outside investigators are required to provide a report of their investigation to the State’s Attorney of the county where the event occurred. In the event that State’s Attorney (or a designated special prosecutor) concludes that there is no basis to prosecute or otherwise charge the involved officer, then the investigator is required to publicly release a report of the investigation.


Jennifer J. Gibson

Author: Jennifer J. Gibson

Thursday, January 7th, 2016

Home Rule Voting Procedures Trump the Illinois Municipal Code

On December 23, 2015, the Illinois Second District Appellate Court issued an opinion holding that the City of Crystal Lake’s home rule voting procedures trumped the voting procedures set forth in the Illinois Municipal Code.

The case involved a tax objection challenging the validity of the City’s tax levy ordinance for the tax year 2014 based on the tax levy ordinance only being passed by the City Council with a 3-2 vote.  The tax objectors argued that the Illinois Municipal Code required a concurrence of a majority of all members then holding office on the City Council to approve any ordinance, and that since the City Council was comprised of 7 members that three affirmative votes was insufficient to pass the tax levy ordinance.  The City argued, however, that it adopted Robert’s Rules of Order for all procedural matters and that  Robert’s Rules of Order required an affirmative majority of those voting to pass a measure, which requirement was satisfied with the 3-2 vote.  The Appellate Court agreed with the City and reversed the trial court’s order granting summary judgment to the tax objections, thereby saving the City over $1.5 million in tax revenue.

The most interesting part of the opinion was the Appellate Court’s response to the tax objectors’ argument that the City had also adopted the Illinois Compiled Statutes, which again required a vote of a concurrence of a majority of all members then holding office and seemingly conflicted the voting requirement in Robert’s Rules of Order. The Appellate Court responded that the City’s adoption of the Illinois Compiled Statutes as a whole was “so broad as to be almost meaningless.”  The moral contained in this dicta is that many municipalities and local governments broadly adopt the provisions of the Illinois Municipal Code as did the City of Crystal Lake; however, it appears that doing so may just be a redundancy unless the municipality specifies the exact provisions they wish to adopt.


Jennifer J. Gibson

Author: Jennifer J. Gibson

Friday, February 13th, 2015

Recent Case Raises Concerns in Handling FOIA’d Police Reports

The Driver’s Privacy Protection Act is a federal law that prohibits knowingly obtaining or disclosing “personal information” from motor vehicle records. Personal Information includes an individual’s photograph, social security number, driver’s license number, name, and address. In 2013, the case of Senne v. Palatine applied the Driver’s Privacy Protection Act and altered the way municipalities and government agencies issue parking tickets. In Senne, a class of Plaintiffs sued the Village of Palatine, alleging that Palatine’s practice of issuing parking tickets that contained the names, addresses, and other personal information of the vehicle owners violated the Driver’s Privacy Protection Act. While Palatine ultimately prevailed after appeals all the way up to the Supreme Court, Senne changed the way municipalities across the state issue parking tickets. Now, the recent case of Dahlstrom v. Sun Times Media, LLC could change the way municipalities fill their FOIA requests.

Dahlstrom began with a FOIA request from the Sun Times to the City of Chicago for police reports and other documents related to the high profile Richard Vanecko case involving the nephew of then Chicago Mayer Richard M. Daley. With its FOIA response, the Sun Times published a critical article on the way the Chicago Police Department handled an eyewitness photo lineup in the Vanecko case. Five Chicago police officers who closely resembled Vanecko participated in the lineup as fillers: Plaintiffs Dhalstrom, Gallagly, Kelly, Shea, and Welch. In the end, eyewitnesses were unable to pick Vanecko out of the line-up, allegedly because the fillers too closely resembled Vanecko. In its article, the Sun Times not only featured the Plaintiffs’ names and lineup photos, but it revealed the Plaintiffs’ month and year of birth, height, weight, and hair and eye color.

The Plaintiffs brought suit against the Sun Times for a violation of the Driver’s Privacy Protection Act, alleging that the Sun Times knowingly obtained and disseminated information that came from motor vehicle records maintained by the Secretary of State—the Plaintiffs’ birth month and year, height, weight, and hair and eye color. The Sun Times moved to dismiss the Plaintiffs’ suit, arguing the First Amendment constitutional right of free speech and press. On February 6, 2015, the Seventh Circuit Court of Appeals upheld the District Court’s denial of the motion to dismiss and concluded that the Sun Times’ speech was not protected; it involved personal information from motor vehicle records. The Dahlstrom Court reiterated that personal information obtained from motor vehicles may not be disclosed or published.

What does this mean for municipalities and FOIA? It means more redacting. Municipalities routinely tender Police Reports in response to FOIA requests. Police Reports are generally replete with personal information on suspects and witnesses that have been obtained through the LEADS program, which uses Secretary of State motor vehicle records. This includes Driver’s License photos, dates of birth, addresses, height, weights, and hair and eye color.  In light of Dahlstrom, all personal information contained in police reports obtained by the police officer from LEADS or motor vehicle records should be redacted before the reports are tendered in a FOIA response. While the City of Chicago was not named as a Defendant in the Dahlstrom lawsuit, it could have easily been so named along with the Sun Times for providing personal information obtained from motor vehicle records.


Jennifer J. Gibson

Author: Jennifer J. Gibson

Wednesday, October 8th, 2014

Public Duty Rule Immunity in Jeopardy

Currently, Illinois municipalities, townships, counties, special districts and their employees are immune from the failure to provide general police and fire protection, even in cases involving negligence.  This is known as the Public Duty Rule.  The Public Duty Rule and the tort liability shield that it affords to municipalities and other government agencies has been in existence in Illinois since 1968.  The rationale behind the Public Duty Rule is that a municipality owes a duty to preserve the well-being of the community at-large, rather than to specific members of the community, and that police and other public employees cannot guarantee the safety of every specific community member.  This immunity is in jeopardy by a recent appeal to the Illinois Supreme Court in the case of Coleman v. East Joliet Fire Protection District, which seeks the abolishment of the Public Duty Rule.

In the Coleman case, a woman dialed 911 and informed the dispatcher that she could not breathe and needed emergency medical assistance.  Due to a series of alleged errors by dispatchers and emergency medical responders, the paramedics were not able to render assistance to her for over 40 minutes, by which time she had suffered a pulmonary embolism and died.  The deceased woman’s next of kin filed a wrongful death lawsuit against the East Joliet Fire Protection District and other involved public entities, alleging negligence in the performance of their duties.  The trial court dismissed the suit based on the public duty rule, and the Third District Appellate Court affirmed the lower court’s decision.  However, on September 24, 2014, the Illinois Supreme Court granted the plaintiff’s petition for leave to appeal.

The Illinois Supreme Court only accepts about 5 percent of the petitions for leave to appeal that it receives, and it reverses approximately 50 percent of those.  Therefore, the appeal signals a danger to the Public Duty Rule going forward, which could necessitate much more comprehensive and expensive liability policies for local governments to insure for negligence in the performance of duties related to police and fire protection.  The irony is that the Public Duty Rule was created in large part to minimize tax dollars going to pay insurance companies for additional coverage and to pay legal costs to defend lawsuits arising out of the intrinsic government function of providing emergency response services to residents.  The local government defendants are actively seeking amici curiae briefs from local governments, meaning they want local governments to support the value of the Public Duty Rule to the Illinois Supreme Court.


Jennifer J. Gibson

Author: Jennifer J. Gibson

Wednesday, May 28th, 2014

A Victory for Enforcement of Administrative Adjudication

Many municipalities struggle with what to do about Adjudication Court scofflaws: property owners or vehicle owners who rack up violation after violation or parking ticket after parking ticket and refuse to pay or do not even show up for the proceedings.  Until two weeks ago, the McHenry County Circuit Court had refused to allow home rule municipalities to enforce their Administrative Adjudication judgments through the court.  The court’s refusal to allow the enforcement of administrative adjudication court judgments left municipalities powerless to collect their adjudication judgments when respondents refused to voluntarily pay their administrative adjudication fines.  We recently challenged the circuit court’s refusal to allow enforcement of administrative adjudication judgments in an appeal in the case of Lake in the Hills v. Dennis Niklaus, No. 2-13-0654.  The end result was a win for home rule municipalities and their administrative adjudication courts.

In the Niklaus case, a property owner had racked up over $45,000 in fines for continually violating the Village of Lake in the Hills’ ordinance prohibiting the placement of items in the roadway.  After the property owner continued to ignore the tickets issued to him and refused to pay his fines, we filed a copy of the adjudication court judgment in circuit court and then served a wage garnishment on the property owner’s employer.  The McHenry County Circuit Court then dismissed our proceedings and ruled that a home rule municipality could not enforce its administrative adjudication judgments in circuit court.  The ruling was particularly curious considering that the court recognized enforcement for non-home rule governments through the circuit court.  We appealed the ruling and on May 15, 2014, the Second District Appellate Court issued an opinion holding that “the method attempted by the Village to seek enforcement in this case was appropriate under division 2.1 of the Municipal Code and that once the orders were properly enrolled the Village could commence collection proceedings.”

The required procedure to enforce an administrative adjudication order in the circuit court is relatively simple.  Just as we argued in the appeal, the municipality need only wait until the time for administrative review has expired (typically 35 days) and then file a copy of the administrative adjudication order with the circuit clerk.  Once the administrative adjudication order is filed in the circuit court, the municipality can then issue wage garnishments to a respondent’s employer, file citations to discover assets to the respondent’s bank account (which allows the municipality to intercept funds in a respondent’s bank account), and can use any other collection tool allowed in the circuit courts.   As noted by the Appellate Court, use of this procedure by which the judgment is obtained in the administrative adjudication court but collected in the circuit court can greatly reduce litigation cost and allow for speedier resolution of ordinance violation matters.


 

Jennifer J. Gibson

Author: Jennifer J. Gibson

 

Tuesday, April 1st, 2014

It’s Your Money, Recover It for Free!

Two years ago, Illinois instituted the Local Debt Recovery Program (“Program”), which allows local governments to intercept a debtor’s state income tax returns, state payroll, lottery winnings, contract payments and most other state payments, which the local government can then apply toward the unpaid debt. We previously reported on the Village of Lake in the Hills’ success with the Program, having recovered over $16,000 in its first few months of operation. Yet still, only a small percent of Illinois’ local governments have implemented the Program.

Through this Program, local governments may recover delinquent debts owed to them for obligations such as unpaid parking tickets, property code violations, water and sewer bills, and other service fees. All units of local governments may participate in the program, including municipalities, townships, school districts, state colleges and universities, and conservation districts. Perhaps the best part about this program is that participation is free—all costs of the state’s administration are charged to the debtor.

In order to participate, the local government unit must enter into an Intergovernmental Agreement with the State Comptroller’s office. Once an Intergovernmental Agreement is established, the local government will need to keep track of the following information for each debt it wishes to recover and submit the same to the Comptroller:  (1) the name and other identifying information of the debtor; (2) the amount claimed due; (3) the reason for the debt; (4) the time period to which the claim is attributable (the debt must be no more than seven years old); (5) the name of the local entity;  (6) a description of the notification to the debtor that the debt existed; (7) a statement as to the outcome of any hearings held to establish the debt; and (8) the date of final determination of the debt.

Once the above eight pieces of information are submitted to the State Comptroller, the  Comptroller will then withhold 25 percent of an individual’s state wages or contract payments and 100 percent of certain other monies such as state income tax returns and lottery winnings due to an individual. Then, once the State withholds the money, the debtor is given 60 days to contest the deduction. If the deduction is not contested, then the money withheld is forwarded to the local government. While the State may charge the debtor up to $15 per transaction, the local government is not charged a dime. Once the debt is satisfied, the local government would have a duty to inform the Comptroller of that fact within 30 days.

Any local governments not currently using the Local Debt Recovery Program should take the steps to enroll and take advantage of this free collection tool.


 

Jennifer J. Gibson

Author: Jennifer J. Gibson

 

Wednesday, June 5th, 2013

Electronic Device Prohibition While Driving

In an effort to discourage distracted driving, the Illinois General Assembly has passed legislation that would amend the Vehicle Code governing the use of handheld electronic communication devices while driving.  House Bill 1247 now sits on Governor Quinn’s desk for signature.

Currently, motorists 18 and under are prohibited from using cell phones while driving, all motorists are prohibited from using cell phones while driving in school and construction zones, and no driver may text, email, or use the internet.  Assuming the Governor signs HB 1247, all drivers will be generally prohibited from using handheld electronic communication devices, including cell phones.  Several exceptions exist, however.

The biggest exception is that drivers may use cell phones in hands free or voice operated mode.  Additionally, drivers may use their cell phones to report an emergency.  Some other odd exceptions are that drivers may use cell phones when stopped in traffic “due to normal traffic being obstructed” if the vehicle is in park or neutral, drivers are allowed to use CBs and two-way mobile radios licensed by the FCC (hands free or not), and drivers are allowed to hit a single button to initiate or terminate a phone call.  Also, police officers, fire fighters, and rescue squad personnel may talk on their cell phones while performing their duties.

The most interesting exception in this distracted driving legislation is that drivers may use their cell phones if the device is capable of “performing multiple functions, other than a hand-held wireless telephone” for a purpose “not otherwise prohibited by this Section.”  Although the legislature may have intended this exception for people to use navigation and fleet management features on their communication devices, playing games such as I-Tunes, Angry Birds, Words with Friends, and Candy Crush Saga is arguably allowed under this exception.

A first offense of this new legislation would carry a $75 fine but would not be a moving violation.  Second, third, and fourth and subsequent offenses would count as moving violations and respectively carry $100, $125, and $150 fines.

While HB 1247 may seem like a step forward in promoting traffic safety, the bill does not fully address the broader purpose behind the legislation which is to reduce the risks created by distracted driving.  Distracted behaviors can come in all sorts of forms—eating, reading, writing, grooming, smoking, and interacting with others in the vehicle.  Many municipalities in our State have recognized this and have passed local ordinances that prohibit distracted driving period, no matter what the cause of the distraction.  However, defining what it means to be distracted, much less proving a driver was distracted at a particular moment in time, is challenging.


Jennifer J. Gibson

Author: Jennifer J. Gibson