Lacey v. Village of Palatine ( 2009 )

Docket Nos. 106353, 106359 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
SUSAN H. LACEY, Special Adm’r of the Estate of Mary E. Lacey,
Deceased, Appellee, v. THE VILLAGE OF PALATINE et al.,
Appellants.
Opinion filed February 20, 2009.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Plaintiff, the special administrator of the estate of decedent Mary
Lacey, brought this action in the circuit court of Cook County against
the Village of Glenview, the Village of Palatine, and individual police
officers employed by the villages (defendants). Plaintiff’s complaint
alleges that defendants willfully and wantonly breached duties owed
to Lacey under the Illinois Domestic Violence Act of 1986 (Act) (750
ILCS 60/101 et seq. (West 2002)). Defendants moved to dismiss
plaintiff’s complaint pursuant to section 2–619(a)(9) of the Code of
Civil Procedure (735 ILCS 5/2–619(a)(9) (West 2006)) on the basis
that they were not enforcing the Act and, therefore, were not subject
to the limitations on immunity provided in section 305 of that statute
(750 ILCS 60/305 (West 2002)). The circuit court of Cook County
granted defendants’ motions and dismissed the case, holding that
defendants were not enforcing the Act and were, therefore, immune
from liability under sections 4–102 and 4–107 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act) (745 ILCS 10/4–102, 4–107 (West 2002)).
Plaintiff appealed and the appellate court reversed, finding that
questions of material fact precluded dismissal of the case. 379 Ill.
App. 3d 62. Defendants sought leave to appeal to this court pursuant
to Supreme Court Rule 315 (210 Ill. 2d R. 315). We granted
defendants’ petitions and consolidated the appeals. We also permitted
the Chiefs of Police of the Intergovernmental Risk Management
Agency and the South Suburban Chiefs of Police to file a brief as
amici curiae. 210 Ill. 2d R. 345. We now reverse the decision of the
appellate court and affirm the circuit court’s dismissal of plaintiff’s
complaint.
BACKGROUND
The decedent, Mary Lacey, began living with Steven Zirko in June
1995. Plaintiff alleges that in December of the following year, Zirko
began physically and emotionally abusing Lacey. Zirko was allegedly
arrested on several occasions both for domestic battery and for
violating various orders of protection that Lacey received between
December 2002 and December 2003.
On December 9, 2003, Lacey received a two-year plenary order
of protection (order) against Zirko. This order was to be in effect until
December 9, 2005. It was, therefore, in full force and effect during all
times relevant to this opinion. The order prohibited Zirko from
physically abusing, harassing, or interfering with Lacey’s personal
liberty. The order also required Zirko to stay away from Lacey. The
order was, pursuant to statute, entered into the Law Enforcement
Automated Data System. See 750 ILCS 60/302(a) (West 2002). As
a result, defendant police officers, their respective departments, the
villages, and other unnamed individuals had knowledge of Lacey’s
order.
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In October 2004, Chad Larsen, Zirko’s chiropractor of five years,
contacted Detective Daily of the Chicago police department.1 Larsen,
whose practice was located in Palatine, contacted the Chicago police
because he had heard Zirko, a Chicago resident, make a number of
threatening statements toward Lacey. According to plaintiff, Larsen
stated that in the several months prior, Zirko had commented to him
that Lacey needed to have her legs broken and had asked Larsen if he
knew anyone that Zirko could hire to break them. Shortly before
Larsen contacted Daily, Zirko told Larsen that he no longer needed
someone to break Lacey’s legs, he needed someone to kill her. Zirko
then asked Larsen if he knew anyone he could hire to kill Lacey. In
early October 2004, Zirko allegedly told Larsen that Zirko’s father
had agreed to kill Lacey. Zirko then requested that Larsen charge
Zirko’s credit card for chiropractic services on a regular basis to “set
up a pattern showing that Zirko was at the chiropractor in Palatine on
certain days and times.”
Based on Larsen’s statements, Daily began an investigation of
Zirko’s alleged solicitation of someone to murder Lacey. On October
14, 2004, Daily contacted the Palatine police department, presumably
because Larsen’s practice was located in Palatine. Daily discussed the
investigation with Detectives Bertnik and Tulley of the Palatine police
department.
On October 15, 2004, Palatine police Detectives Bertnik and
Kraeger went to the Wilmette police department. Lacey had lived in
Wilmette from February 2002 to July 2003, when she moved to
Glenview. While in Wilmette, Bertnik and Kraeger learned of Zirko’s
“significant history of domestic battery and violations of orders of
protection.” Bertnik and Kraeger were also supplied with all the police
reports involving Lacey and Zirko during this period.
Following their trip to Wilmette, Bertnik and Kraeger reported
their investigation to Sergeant Johnson and Detective Mazurkiewicz
of the Glenview police department.
1
Detective Dailey and the City of Chicago were originally named as
defendants in this case. Plaintiff subsequently dismissed her claims against
these defendants.
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That same day, Bertnik telephoned Lacey and told her she was in
“immediate danger” and requested that she “come to the Glenview
Police Department Station immediately.” Lacey complied with this
request and went to the Glenview police department.
At the Glenview police department, Lacey met with Bertnik and
Kraeger, who informed Lacey of Zirko’s alleged plot to murder her.
Lacey informed Bertnik and Kraeger that Zirko was capable of hurting
her and her family. During this discussion, Bertnik and Kraeger
informed Lacey that Zirko would not be arrested at that time.
Following the meeting at the Glenview police department, Palatine
and Glenview officers, including Mazurkiewicz, went to Lacey’s
Glenview home to further discuss Zirko’s alleged murder plot.
Plaintiff alleges that at this meeting, both Palatine and Glenview
officers reiterated that Zirko would not be arrested, but assured Lacey
that they would protect her by placing a 24-hour watch over her.
Plaintiff alleges that this 24-hour watch was to include an officer
posted outside Lacey’s home when she was there, and an officer to
follow Lacey when she left her house.2
On October 21, 2004, Bertnik interviewed Zirko. Zirko attended
the interview with his attorney. Zirko’s attorney told Bertnik that
Zirko would not answer any questions and would not make any
statements. However, the attorney did tell Bertnik that Zirko had no
intention of harming Lacey or hiring anyone to harm Lacey.
Plaintiff alleges that on or about October 22, 2004, defendants
closed their investigation into Zirko’s murder-for-hire plot. Zirko was
never detained or arrested.
Plaintiff alleges that from October 22, 2004, through December
13, 2004, Lacey called the Palatine and Glenview police departments
multiple times requesting that defendants either arrest Zirko or
provide the supervision and protection they promised. It is undisputed
that defendants did not provide Lacey with police protection between
October 22 and December 13, 2004.
2
There are no facts alleged in plaintiff’s complaint regarding whether
defendants ever extended this protection to Lacey. Neither are there any
allegations of when this protection was terminated if, in fact, it had ever
begun.
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Plaintiff alleges that on December 13, 2004, Zirko brutally
attacked and murdered Lacey and her mother, Margaret Ballog, 3 while
the two were present in Lacey’s Glenview home.
Thereafter, the special administrator of Lacey’s estate brought
suit. Plaintiff’s second amended complaint contained 76 separate
counts against the various defendants.4 However, this appeal is
concerned only with those claims that were brought on behalf of
Lacey’s estate under the Act. Further, the defendants who are parties
to the present appeal are the Village of Palatine and its employees
Detective Bertnik, Detective Tulley, and Officer Kraeger (Palatine
defendants) and the Village of Glenview and its employees Sergeant
Johnson and Detective Mazurkiewicz (Glenview defendants).
The claims relevant to this appeal are plaintiff’s allegations that
Palatine defendants and Glenview defendants (collectively referred to
as defendants) willfully and wantonly breached a duty owed to Lacey
under the Act. Plaintiff filed two relevant counts against each of the
police officer defendants. The first count alleged wrongful death under
the Act. The second count was a survival claim under the Act. The
factual assertions and alleged breaches are identical in both the
wrongful-death and the survival counts. The counts are identical as to
all the police officer defendants.
Plaintiff specifically alleges that Lacey was a member of the class
of persons protected by the Act and had been “so found by virtue of
the Order of Protection she obtained on December 9, 2003.” Plaintiff
further alleges that because Lacey was protected under the Act, she
was owed a duty under the Act and that defendants willfully and
3
Originally, the special administrator of Ballog’s estate was also a
plaintiff in this case. The circuit court dismissed Ballog’s claim along with
Lacey’s claim. The appellate court affirmed the dismissal with regard to
Ballog’s estate. The appellate court’s ruling with regard to Ballog is not
before this court.
4
The original defendants of the case were: the City of Chicago and its
employee, Detective Dailey; the Village of Palatine and its employees,
Detective Bertnik, Detective Tulley, and Officer Kraeger; the Village of
Glenview and its employees Sergeant Johnson and Detective Mazurkiewicz;
and Steven Zirko.
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wantonly breached that duty. Plaintiff alleges that Bertnik, Tulley, and
Kraeger of Palatine and Johnson and Mazurkiewicz of Glenview were
aware of the order of protection, knew that Zirko was in violation of
that order, had been informed of all facts necessary to take immediate
action against Zirko, and had probable cause to arrest Zirko based on
the information they received in October 2004. Plaintiff argues that
defendants had a “duty under the [Act] to immediately use all
reasonable means to prevent further abuse, harassment or exploitation,
including but not limited to arresting Zirko or providing police
supervision and protection.” Plaintiff alleges that defendants violated
this duty by:
“a) Failing to arrest Zirko in light of his violation of an
order of protection;
b) Failing to detain and/or arrest Zirko despite learning of
his plan to murder Mary Lacey;
c) Failing to provide police supervision and protection
after learning of the Zirko plan to murder Mary Lacey, after
deciding not to arrest Zirko, and after promising 24-hour
surveillance and protection of Mary Lacey;
d) Failing to further investigate the murder plan;
e) Knowingly rejecting Mary Lacey’s pleas for help to
respond to complaints that she feared for her life;
f) Failing to arrange for Mary Lacey’s transportation to a
safe place when informed that Mary Lacey was in need of
protection; and
g) Failing to intervene after learning that Mary Lacey was
in need of protection.”
Plaintiff alleges that as a direct and proximate result of this willful and
wanton conduct, Lacey was murdered on December 13, 2004.
Plaintiff further alleges that the villages of Palatine and Glenview are
liable for the breaches of their officers.
Defendants filed separate motions to dismiss the case under
section 2–619(a)(9) of the Code of Civil Procedure (735 ILCS
5/2–619(a)(9) (West 2006)). The circuit court dismissed the case,
finding that defendants had not been engaged in the enforcement of
the Act and, thus, the absolute immunity provided defendants by
sections 4–102 and 4–107 of the Tort Immunity Act (745 ILCS
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10/4–102, 4–107 (West 2002)) controlled over the limited immunity
in section 305 of the Act (750 ILCS 60/305 (West 2002)).
Plaintiff appealed the dismissal arguing that section 305 of the Act
trumps the absolute immunity of sections 4–102 and 4–107. The
appellate court reversed, holding that material questions of fact
precluded dismissal under section 2–619(a)(9). In doing so, the
appellate court noted that Lacey was a protected person under the Act
and that, as a result, the Act imposed specific duties on defendants.
The disputed material facts identified by the appellate court
included whether defendants had probable cause to arrest Zirko,
whether defendants adequately investigated the murder-for-hire
scheme, whether Lacey called defendants on the day of her murder,
and whether defendants were enforcing the Act during the
investigation and/or at the time of the murder. 379 Ill. App. 3d 62.
QUESTION PRESENTED
Despite the complex procedural history of this case, the question
before this court is relatively straightforward. Defendants assert that
the appellate court erred in reinstating plaintiff’s claim, because they
were not enforcing the Act and, therefore, enjoy blanket immunity
under sections 4–102 and 4–107 of the Tort Immunity Act (745 ILCS
10/4–102, 4–107 (West 2002)).
Plaintiff counters that she has alleged facts that implicate the Act
and demonstrate that defendants were enforcing the Act. Plaintiff
further alleges that defendants owed a duty to Lacey under the Act
and that this duty was willfully and wantonly breached. Plaintiff notes
that where the Act is being enforced, the limited immunity found in
section 305 of the Act controls over the absolute immunity found in
sections 4–102 and 4–107 of the Tort Immunity Act. Therefore,
plaintiff argues that the appellate court should be affirmed and the
case remanded to the circuit court for further proceedings.
All parties agree that if the Act was not being enforced, defendants
enjoy absolute immunity and the case was properly dismissed.
Therefore, as defendants made clear at oral argument, the question in
this case is not whether the immunity of sections 4–102 and 4–107
applies over the limited immunity of the Act, but whether the Act is
implicated in the first instance.
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STANDARD OF REVIEW
This case comes to us following the circuit court’s granting
defendants’ section 2–619(a)(9) motions to dismiss. See 379 Ill. App.
3d at 64. We review the dismissal of a complaint pursuant to section
2–619(a)(9) de novo. Glisson v. City of Marion, 188 Ill. 2d 211, 220
(1999).
However, we also note that this case involves interpretation of the
Act. Questions of statutory interpretation are, likewise, subject to de
novo review. Barnett v. Zion Park District, 171 Ill. 2d 378, 385
(1996); Smith v. Waukegan Park District, 231 Ill. 2d 111 (2008).
ANALYSIS
Ordinarily, a public entity or public employee enjoys absolute
immunity for a failure to provide police protection, prevent the
commission of a crime, or to make an arrest. See 745 ILCS 10/4–102,
4–107 (West 2002). Section 4–102 of the Tort Immunity Act
provides:
“Neither a local public entity nor a public employee is
liable for failure to establish a police department or otherwise
provide police protection service or, if police protection
service is provided, for failure to provide adequate police
protection or service, failure to prevent the commission of
crimes, failure to detect or solve crimes, and failure to identify
or apprehend criminals.” 745 ILCS 10/4–102 (West 2002).
Section 4–107 further builds on this immunity by stating that
“[n]either a local public entity nor a public employee is liable for an
injury caused by the failure to make an arrest or by releasing a person
in custody.” 745 ILCS 10/4–107 (West 2002). Both sections provide
defendants with absolute immunity.
However, the Illinois Constitution of 1970 established that the
immunity enjoyed by public entities and employees applies only to the
extent provided for by the General Assembly. See Ill. Const. 1970, art.
XIII, §4; Moore v. Green, 219 Ill. 2d 470, 478 (2006). Thus, the
General Assembly may both grant and limit the immunity of
defendants. Section 305 of the Act is a grant of limited immunity to
defendants.
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In contrast to the grant of absolute immunity of sections 4–102
and 4–107, section 305 of the Act provides:
“Any act of omission or commission by any law
enforcement officer acting in good faith in rendering
emergency assistance or otherwise enforcing this Act shall not
impose civil liability upon the law enforcement officer or his
or her supervisor or employer, unless the act is a result of
willful or wanton misconduct.” 750 ILCS 60/305 (West
2002).
In Moore, this court held that when the Act is implicated, the
limited immunity of section 305 of the Act takes precedence over the
blanket immunity of sections 4–102 and 4–107. This court specifically
noted that this interpretation of the Act was consistent with the
General Assembly’s intention to create “a comprehensive statutory
scheme for reform of the legal system’s historically inadequate
response to domestic violence.” Moore, 219 Ill. 2d at 489. However,
as we have noted, the question in this case is whether the Act applies
in the first instance.
In order for the limited immunity provided for in section 305 to
apply, the officer’s act of omission or commission must occur while
the officer is rendering “emergency assistance or otherwise enforcing”
the Act. 750 ILCS 60/305 (West 2002). In Calloway v. Kinkelaar,
this court noted that “the legislature unambiguously intended to limit
the liability of law enforcement personnel to willful and wanton acts
or omissions in enforcing the [Act].” Calloway v. Kinkelaar, 168 Ill.
2d 312, 326 (1995).
In the present case, there is no claim that defendants were
rendering “emergency assistance” to Lacey. Therefore, the question
is whether defendants were “otherwise enforcing” the Act between
October and December 2004.
The meaning of the phrase “otherwise enforcing” presents a
question of statutory interpretation. The primary objective of statutory
interpretation is to give effect to the intent of the legislature. Illinois
Department of Healthcare & Family Services v. Warner, 227 Ill. 2d
223, 229 (2008). In determining the intent of the legislature, we begin
with the language of the statute, which is the most reliable indicator
of the legislature’s objectives in enacting a particular law. Michigan
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Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504
(2000). Further, a statute should be read “as a whole, considering all
relevant parts.” Harshman v. DePhillips, 218 Ill. 2d 482, 493 (2006).
In addition, a court “should look to the evil that the legislature sought
to remedy or the object it sought to attain in enacting the legislation.”
Stern v. Northwest Mortgage, Inc., 179 Ill. 2d 160, 164 (1997).
The purpose of the General Assembly in enacting the Act is
apparent from the face of the Act. The purposes of the Act are, in
part, to:
“(1) Recognize domestic violence as a serious crime
against the individual and society which produces family
disharmony in thousands of Illinois families, promotes a
pattern of escalating violence which frequently culminates in
intra-family homicide, and creates an emotional atmosphere
that is not conducive to healthy childhood development;
***
(3) Recognize that the legal system has ineffectively dealt
with family violence in the past, allowing abusers to escape
effective prosecution or financial liability, and has not
adequately acknowledged the criminal nature of domestic
violence; that, although many laws have changed, in practice
there is still widespread failure to appropriately protect and
assist victims;
(4) Support the efforts of victims of domestic violence to
avoid further abuse by promptly entering and diligently
enforcing court orders which prohibit abuse and, when
necessary, reduce the abuser’s access to the victim and
address any related issues of child custody and economic
support, so that victims are not trapped in abusive situations
by fear of retaliation, loss of a child, financial dependence, or
loss of accessible housing or services;
(5) Clarify the responsibilities and support the efforts of
law enforcement officers to provide immediate, effective
assistance and protection for victims of domestic violence,
recognizing that law enforcement officers often become the
secondary victims of domestic violence, as evidenced by the
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high rates of police injuries and deaths that occur in response
to domestic violence calls; and
(6) Expand the civil and criminal remedies for victims of
domestic violence; including, when necessary, the remedies
which effect the physical separation of the parties to prevent
further abuse.” 750 ILCS 60/102 (West 2002).
See also Moore, 219 Ill. 2d at 480-81. The Act provides that it is to
be “liberally construed and applied to promote” the foregoing
purposes. 750 ILCS 60/102 (West 2002).
The phrase “otherwise enforcing” is not defined by the Act. See
750 ILCS 60/103 (West 2002). Nor has the phrase ever been
interpreted by this court within the context of the Act. However, the
meaning of the phrase is easily comprehended when the definitions of
the two terms are examined. Where a term is undefined within a
statute, “[i]t is entirely appropriate to employ the dictionary as a
resource to ascertain the meaning of undefined terms.” Price v. Philip
Morris, Inc., 219 Ill. 2d 182, 243 (2005).
The word “enforce” is defined as “to give force to” or to “put in
force : cause to take effect : give effect to.” Webster’s Third New
International Dictionary 751 (2002). Black’s Law Dictionary further
defines “enforce” as “[t]o give force or effect to (a law, etc.); to
compel obedience.” Black’s Law Dictionary 569 (8th ed. 2004). The
word “otherwise” simply means “different” or “in different
circumstance : under other conditions.” Webster’s Third New
International Dictionary 1598 (2002).
Therefore, in context, the phrase “otherwise enforcing” means that
the police are giving effect to some portion of the Act under
circumstances that cannot be considered an emergency.
Though this court has never been previously called on to interpret
the meaning of “otherwise enforcing” within the Act, this court has
had the opportunity to interpret a similar phrase in the Tort Immunity
Act. Section 2–202 of the Tort Immunity Act uses similar language to
section 305 of the Act. See Moore, 219 Ill. 2d at 489. Section 2–202
states that an officer is liable if they commit a willful and wanton act
or omission “in the execution or enforcement of any law.”
In interpreting section 2–202, this court has held that the
determination of whether an officer was enforcing a law is a question
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of fact that must be determined by the trier of fact in light of the
circumstances in each case. Aikens v. Morris, 145 Ill. 2d 273, 286
(1991). Enforcement of the law is “ ‘rarely a single, discrete act, but
is instead a course of conduct.’ ” Fitzpatrick v. City of Chicago, 112
Ill. 2d 211, 221 (1986), quoting Thompson v. City of Chicago, 108 Ill.
2d 429, 433 (1985).
By bringing all the alleged breaches within a single count, plaintiff
has tried to establish that defendants were engaged in an uninterrupted
course of enforcing the Act that began the moment defendants were
informed of the alleged murder-for-hire plot and only ended upon
Lacey’s murder. Therefore, as the question has been framed in
plaintiff’s complaint, the issue is whether defendants were enforcing
the Act at all times alleged within this time frame. For the reasons that
follow, we find that defendants were not enforcing the Act at all
relevant times, and the cause was properly dismissed.
Plaintiff alleges at least seven ways that defendants breached their
duty to Lacey under the Act. However, before a plaintiff may recover
for a breach, they must allege that the breach was related to a duty the
plaintiff was owed. In Calloway, this court stated that an injured party
can recover under the Act provided that he or she can “establish that
he or she is a person in need of protection under the Act, the statutory
law enforcement duties owed to him or her were breached by the
willful and wanton acts or omissions of law enforcement officers, and
such conduct proximately caused plaintiff’s injuries.” Calloway, 168
Ill. 2d at 324. When plaintiff’s complaint is read as a whole, the duty
defendants were alleged to owe Lacey was an ongoing, open-ended
duty to protect Lacey from further abuse. Plaintiff alleges that this
duty was breached at multiple times.
The flaw in plaintiff’s claim is that the Act does not impose the
kind of general, open-ended duty to protect that plaintiff alleges was
breached. Implicit within the definition of “otherwise enforcing” is
some police involvement or contact with a protected person or
someone on his or her behalf. The Act is not implicated merely
because someone is a protected party under the Act. If this court were
to hold to the contrary, we would create a generalized duty by all law
enforcement agencies and personnel toward anyone who has been
abused by a family or household member regardless of whether the
police have reason to know that their services may be required.
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While the Act can require police intervention under certain
circumstances (see Moore, 219 Ill. 2d 470; Sneed v. Howell, 306 Ill.
App. 3d 1149 (1999); Calloway, 168 Ill. 2d 312), there is no
generalized, open-ended duty to protect victims of domestic violence.
As this court noted in Aikens v. Morris,
“A police department’s duty to preserve the well-being of the
community is owed to the public at large, rather than specific
individuals. [Citations.] The duty is so limited because of
strong public policy considerations which seek to avoid
placing police departments in the untenable position of
guaranteeing the personal safety of each individual in the
community.” Aikens v. Morris, 145 Ill. 2d 273, 278 n.1
(1991).
Even though Aikens was not a case that dealt with the Act, we find
persuasive its logic as to why there can be no general duty to protect.
Defendants and amici further underscore the impossibility of such
a generalized duty to protect when they compare the number of orders
of protection against the number of law enforcement officers in the
state. Defendants note that there were 64,639 orders of protection
issued within the St ate of Illinois in 2005, citing
http://www.ivpa.org/factsheets/illinoisviolencefactsheet.pdf (last
visited December 17, 2008). However, defendants note that,
excluding the Illinois State Police, there are only 38,611 full-time
police officers in the state.5 Thus, even assuming that there is only one
protected person named in each order of protection, it would be
impossible for the police to provide protection to each of these
persons at all times.
Further, the Act makes the necessity of police contact explicit
through its delineation of law enforcement responsibilities in section
304. Section 304 of the Act requires a law enforcement officer to
5
Defendants cite the “Executive Director’s Office of the Local
Enforcement Officer’s Training Board” for this figure. This court has not
been able to verify this figure. However, because the exact number is not
central to this opinion, and because the parties have given us no reason to
dispute this figure, we have used it to illustrate the impossibility of a general
duty to protect all persons protected by the Act at all times.
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“immediately use all reasonable means to prevent further abuse.” 750
ILCS 60/304(a) (West 2002). The inclusion of the word
“immediately” is critical to our understanding of this section. It not
only implies that the officer at the scene cannot delay in implementing
reasonable means, it also implies that the officer is in a position
proximate to the victim that can allow the officer to take reasonable
steps to prevent further abuse. In addition, each of the reasonable
steps listed in section 304 indicates that the officer is in some
proximity to a person protected by the Act. For instance, the Act lists,
inter alia, the following reasonable steps: (1) the officer
accompanying a victim to his or her place or residence, (2) providing
the victim with information on the procedures and relief available, (3)
providing a referral to a service agency, and/or (4) providing
transportation to a medical facility or a place of shelter. 750 ILCS
60/304(a)(3), (a)(4), (a)(5), (a)(7) (West 2002). Each of these
reasonable steps assumes that officers will, at some point, make direct
in-person contact with the victim.
However, each of these reasonable steps is also of a limited
duration, indicating that the Act envisioned some discrete, limited
involvement by law enforcement officers and not an open-ended,
general, or long-term duty to protect. In fact, even where the Act
encourages officers to accompany victims to their homes to remove
their belongings, the Act notes that this escort should be for a
“reasonable period of time” to allow the victim an opportunity to
safely remove “necessary personal belongings and possessions.” 750
ILCS 60/304(a)(3) (West 2002). If the General Assembly wished for
a broader interpretation, it would not have used the words “reasonable
period of time” and “necessary personal belongings.” This underscores
the fact that the Act does not contemplate a general ongoing duty to
victims of domestic violence.
Ordinarily, the determination of whether an officer was enforcing
the law is a question of fact that must be determined by the trier of
fact in light of the circumstances in each case. Aikens, 145 Ill. 2d at
286. However, a court may, as a matter of law, determine whether
officers were enforcing a law when the facts alleged support only one
conclusion. Sanders v. City of Chicago, 306 Ill. App. 3d 356, 361
(1999).
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In the present case, plaintiff’s complaint is facially inadequate to
invoke the application of the limited immunity of the Act.
Plaintiff alleges that defendants were “enforcing” the Act over the
course of approximately two months. In the present case, defendants
closed their investigation of Zirko’s murder-for-hire plot on or about
October 22, 2004. From that date until Lacey’s murder on December
13, 2004, plaintiff makes no allegation that Lacey reported any new
incident or information. There was no request for an officer to come
by Lacey’s home to investigate or respond to any new crime or
allegation of a potential crime. There was, as stated succinctly by
amici, “nothing new.”
In the calls that Lacey allegedly made between October 22 and
December 13, she expressed a desire that defendants reconsider their
actions and either arrest Zirko or provide the protection that they had
previously promised.6 An individual’s request that police reconsider
an action previously taken is not of a nature that would ordinarily
require a police response. It does not constitute a call for help, for
investigation, or to report any new information. A victim’s subjective
fear, however reasonable it may ultimately prove to have been, does
not, in itself, provide the police with a basis to take action and
therefore is insufficient to invoke the Act.
Even if defendants had been enforcing the Act at the point they
were informed of the alleged murder-for-hire plot, at some point over
the following two months, that enforcement was concluded. Were this
court to hold to the contrary, we would create a situation where once
officers were aware of the potential for violence, they would remain
liable for the prevention of that violence for an indefinite period of
time. Such a result would be contrary to the plain language of the Act.
Because there is no genuine issue of material fact with regard to
defendants’ enforcement of the Act, the absolute immunity of sections
4–102 and 4–107 applies and the case is dismissed.
In light of the foregoing analysis, we do not need to address the
merits of the Palatine defendants’ argument that they could not
6
Implicit in Lacey’s request for the protection defendants had previously
promised is an allegation that the protection was not being provided at the
time the request was made.
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enforce the Act for someone who lived outside their territorial
jurisdiction.
CONCLUSION
Because defendants were not enforcing the Act, the absolute
immunity of sections 4–102 and 4–107 controls in this case.
Accordingly, the decision of the appellate court is reversed and the
judgment of the circuit court is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
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