section 4-102 absolute immunity in Illinois

2015“Section 4-102 immunity may apply in the context where police officers are simply ‘providing [or failing to provide] police services,’ but section 2-202 immunity requires more particular circumstances for its application, i.e., an act or a course of conduct ‘in the execution or enforcement’ of law.” (Emphases added.) Aikens v. Morris, 145 Ill. 2d 273, 282 (1991) (quoting Ill.

2014“Section 4-102 immunity may apply in the context where police officers are simply ‘providing [or failing to provide] police services,’ but section 2-202 immunity requires more particular circumstances for its application, i.e., an act or a course of conduct ‘in the execution or enforcement’ of law.” Aikens v. Morris, 145 Ill. 2d 273, 282 (1991) (quoting Ill.

2006This court's comments in Aikens suggest, as plaintiff argues, that the public duty rule, at least in this context, has been incorporated into the Tort Immunity Act as an "immunity." However, the current status of the public duty rule is not a point this court must resolve in this case because, even if these "`governmental units are liable in tort on the same basis as private tortfeasors'" ( Village of Bloomingdale, 196 Ill.2d at 490 , 256 Ill.Dec. 848 , 752 N.E.2d 1090 , quoting In re Chicago Flood Litigation, 176 Ill.2d at 192 , 223 Ill.Dec. 532 , 680 N.E.2d 265 ), we find that section 4-102

2006This court's comments in Aikens suggest, as plaintiff argues, that the public duty rule, at least in this context, has been incorporated into the Tort Immunity Act as an "immunity." However, the current status of the public duty rule is not a point this court must resolve in this case because, even if these "`governmental units are liable in tort on the same basis as private tortfeasors'" ( Village of Bloomingdale, 196 Ill.2d at 490 , 256 Ill.Dec. 848 , 752 N.E.2d 1090 , quoting In re Chicago Flood Litigation, 176 Ill.2d at 192 , 223 Ill.Dec. 532 , 680 N.E.2d 265 ), we find that section 4-102

2024There were no allegations that a teacher or administrator functioned as police personnel by “provid[ing] services performed by police personnel such as ‘weapons detection, traffic control, and crowd security and control.’ ” Id. at 876-77. - 10 - ¶ 35 Many courts, including our supreme court, have found section 4-102 immunity to apply to “functions traditionally performed by police, such as weapons detection, traffic control, and crowd security and control.” Albert v. Board of Education of City of Chicago, 2014 IL App (1st) 123544 , ¶ 53 (citing Doe v. Chicago Board of Education, 213 Ill. 2d 19

2024Ortega-Piron v. Chicago Board of Education, 213 Ill. 2d 19, 25 (2004). ¶ 34 In Doe v. School District U-46, the Northern District of Illinois federal court held that section 4-102 immunity did not apply because the plaintiff did not allege that the defendants failed to establish a police department or otherwise provide police protection service or, if police protection service was provided, failed to provide adequate police protection or service.

2023For example, defendants were immune where police officers were providing aid, assistance, or rescue services to stranded drivers and vehicles involved in traffic accidents (Long v. Soderquist, 126 Ill. App. 3d 1059 (1984); Kavanaugh v. Midwest Club, Inc., 164 Ill. App. 3d 213 (1987)), law enforcement failed to respond after receiving a call to assist a motorist who had driven off the road (DeSmet v. County of Rock Island, 219 Ill. 2d 497 (2006)), and in cases where the injury occurred during a poorly executed protective mental health detention (Payne, 2014 IL App (1st) 123010 ; see also Turner

2022Relying in part on this court’s holding in DeSmet v. County of Rock Island, 219 Ill. 2d 497 (2006), the appellate court held the absolute immunity found in section 4-102 of the Tort Immunity Act applies where liability is premised on the failure of a dispatcher to dispatch police in a timely fashion. 2020 IL App (5th) 190256 , ¶ 13.

2014The City counters that the holding of DeSmet regarding police liability for willful and wanton conduct where an officer “exercises a degree of control” over a situation was expressly overruled in Ries v. City of Chicago, 242 Ill. 2d 205, 226-27 (2011).

2012Section 2-202’s exception for willful and wanton -16- conduct prevailed over the blanket immunities of sections 4-102 and 4-107. ¶ 73 In Ries, we noted that while “Doe held section 2-202 provided a general willful and wanton exception to the immunities provided by the Act and rejected those decisions that held that blanket immunities provided by individual sections of the Act prevail over section 2-202,” subsequent cases “held that if a section of the Tort Immunity Act [did] not provide for a willful and wanton exception, then none exist[ed].” Ries, 242 Ill. 2d at 226-27 .

2006Indeed, this court apparently acknowledged as much in Aikens v. Morris, 145 Ill.2d 273 , 164 Ill.Dec. 571 , 583 N.E.2d 487 (1991), when it referred to "the common law blanket immunity, codified in section 4-102, which immunizes a municipality and its employees for the failure to provide police protection." Aikens, 145 Ill.2d at 282 , 164 Ill.Dec. 571 , 583 N.E.2d 487 ("Section 4-102 immunity may apply in the context where police officers are simply `providing [or failing to provide] police services'"); see also Hernandez v. Kirksey, 306 Ill.App.3d 912, 915 , 239 Ill.Dec. 915 , 715 N.E.2d 669 (

2006Indeed, this court apparently acknowledged as much in Aikens v. Morris, 145 Ill.2d 273 , 164 Ill.Dec. 571 , 583 N.E.2d 487 (1991), when it referred to "the common law blanket immunity, codified in section 4-102, which immunizes a municipality and its employees for the failure to provide police protection." Aikens, 145 Ill.2d at 282 , 164 Ill.Dec. 571 , 583 N.E.2d 487 ("Section 4-102 immunity may apply in the context where police officers are simply `providing [or failing to provide] police services'"); see also Hernandez v. Kirksey, 306 Ill.App.3d 912, 915 , 239 Ill.Dec. 915 , 715 N.E.2d 669 (

2024Ill. 2020) (holding that immunity under section 4-102 did not apply because the alleged misconduct did not involve police protection services.); see also Ortega-Piron, 213 Ill. 2d at 27 (finding the school board was not providing ‘police protection service’ under section 4-102 by providing a bus attendant). ¶ 36 In Wright-Young v. Chicago State University., 2019 IL App (1st) 181073, ¶ 64 , the defendant school board argued that the jury was improperly allowed to base its verdict on the school board’s failure to provide adequate police services.

2023See, e.g., Lacey, 232 Ill. 2d at 368 (section 4-102 absolute immunity applied to a claim that police failed to protect a woman experiencing domestic abuse who was later murdered by her abuser); Wisnasky, 2020 IL App (5th) 170418, ¶ 50 (section 4-102 absolute immunity applied to the claim brought by estate of a family killed at a railroad crossing that the municipality provided inadequate crowd control and traffic management); Wright-Young v. Chicago State University, 2019 IL App (1st) 181073, ¶ 65 (section 4-102 absolute immunity applied to allegations that the school board failed to implement

2019See id.

2018See id.

2015Section 4-102 contains no “willful and wanton” exception and thus provides blanket immunity and immunizes all misconduct, whether it is alleged to be willful and wanton or merely negligent. ¶ 60 Thus, under section 4-102, there is no duty, and section 4-102 provides absolute immunity, with no exceptions. “[W]hen the applicable provisions of the Tort Immunity Act provide absolute immunity, the plaintiff’s claim is barred.” Moore v. Green, 219 Ill. 2d 470, 478 (2006).

2008Defendants challenge this result, arguing that under DeSmet v. County of Rock Island, 219 Ill. 2d 497, 512 , 848 N.E.2d 1030 (2006), section 4-102 immunity for failure to provide police protection "applies in the first instance, rather than some other statutory provision of the Tort Immunity Act." (Emphasis added.) What defendants fail to mention is that DeSmet also acknowledges that immunity may be limited by provisions outside the Tort Immunity Act: "we recognize that there may be additional exceptions to the application of section 4-102 where a 12 1-06-2842 legislative enactment identifies

2023See, e.g., Lacey, 232 Ill. 2d at 368 (section 4-102 absolute immunity applied to a claim that police failed to protect a woman experiencing domestic abuse who was later murdered by her abuser); Wisnasky, 2020 IL App (5th) 170418, ¶ 50 (section 4-102 absolute immunity applied to the claim brought by estate of a family killed at a railroad crossing that the municipality provided inadequate crowd control and traffic management); Wright-Young v. Chicago State University, 2019 IL App (1st) 181073, ¶ 65 (section 4-102 absolute immunity applied to allegations that the school board failed to implement

2021Moore, 219 Ill. 2d at 488-89 ; Lacey, 232 Ill. 2d at 360-61 . ¶ 15 The Domestic Violence Act provides “a comprehensive statutory scheme for reform of the legal system’s historically inadequate response to domestic violence.” Moore, 219 Ill. 2d at 488 - 89.

2004App. 3d 336, 340-41 , 586 N.E.2d 564 (1991) (a police officer was immune under section 4-102 in a negligence action arising from a missing-person search).

2004Defendants argue that section 4-102 grants immunity to police officers not only when they are combating crime but also when they perform search and rescue functions, citing Platacis v. Village of Streamwood , 224 Ill.

2024There were no allegations that a teacher or administrator functioned as police personnel by “provid[ing] services performed by police personnel such as ‘weapons detection, traffic control, and crowd security and control.’ ” Id. at 876-77. - 10 - ¶ 35 Many courts, including our supreme court, have found section 4-102 immunity to apply to “functions traditionally performed by police, such as weapons detection, traffic control, and crowd security and control.” Albert v. Board of Education of City of Chicago, 2014 IL App (1st) 123544 , ¶ 53 (citing Doe v. Chicago Board of Education, 213 Ill. 2d 19

2024Doe v. School District U-46, 557 F. Supp. 3d 860 , 876 (N.D.

2023See, e.g., Lacey, 232 Ill. 2d at 368 (section 4-102 absolute immunity applied to a claim that police failed to protect a woman experiencing domestic abuse who was later murdered by her abuser); Wisnasky, 2020 IL App (5th) 170418, ¶ 50 (section 4-102 absolute immunity applied to the claim brought by estate of a family killed at a railroad crossing that the municipality provided inadequate crowd control and traffic management); Wright-Young v. Chicago State University, 2019 IL App (1st) 181073, ¶ 65 (section 4-102 absolute immunity applied to allegations that the school board failed to implement

2023See, e.g., Lacey, 232 Ill. 2d at 368 (section 4-102 absolute immunity applied to a claim that police failed to protect a woman experiencing domestic abuse who was later murdered by her abuser); Wisnasky, 2020 IL App (5th) 170418, ¶ 50 (section 4-102 absolute immunity applied to the claim brought by estate of a family killed at a railroad crossing that the municipality provided inadequate crowd control and traffic management); Wright-Young v. Chicago State University, 2019 IL App (1st) 181073, ¶ 65 (section 4-102 absolute immunity applied to allegations that the school board failed to implement

2023Neppl v. Murphy, 316 Ill. App. 3d 581, 583 (2000). ¶ 56 Mr. Glover argues that the circuit court erred in dismissing his case with prejudice, pursuant to section 2-619, on the basis that defendants were entitled to absolute immunity under sections 4-102 and 4-107 of the Act.

2023Similarly, the “police protection services” clause of section 4-102 may also apply where a police officer injures someone while performing, or failing to perform, a “community caretaking” function (DeSmet, 219 Ill. 2d at 520 ), something our supreme court has defined in other contexts as the “capacity in which the police act when they are performing some task unrelated to the investigation of crime, such as helping children find their parents, mediating noise disputes, responding to calls about missing persons or sick neighbors, or helping inebriates find their way home” (People v. McDonough,

2023See, e.g., Lacey, 232 Ill. 2d at 368 (section 4-102 absolute immunity applied to a claim that police failed to protect a woman experiencing domestic abuse who was later murdered by her abuser); Wisnasky, 2020 IL App (5th) 170418, ¶ 50 (section 4-102 absolute immunity applied to the claim brought by estate of a family killed at a railroad crossing that the municipality provided inadequate crowd control and traffic management); Wright-Young v. Chicago State University, 2019 IL App (1st) 181073, ¶ 65 (section 4-102 absolute immunity applied to allegations that the school board failed to implement