Litigation Meeting, Ancel Glink, P.C.

October 14, 2022 at 12:00 pm

Case Law Update (JCS)

Green v. Chi. Police Dep't, 2022 IL 127229

 Supreme Court of Illinois (September 22, 2022);
 The Supreme Court affirmed the appellate court judgment, and circuit court judgment
was reversed
 The Court held that the enforcement provisions of the FOIA act, 5 ILCS 140/11, did not
state a temporal framework for the judicial review of a public body’s withholding of
information under FOIA
 The Court also held that in light of that textual ambiguity, the appropriate time to
measure whether a public record may be withheld is when the public body asserts the
exemption and denies the request
 Under FOIA, 5 ILCS 140/3(d), (e), a public body has 5 to 10 business days to respond to
a FOIA request. The requestor then has 5 years to initiate an enforcement action to
compel disclosure of information withheld by the agency, 735 ILCS 5/3-105. Often, the
operative law and facts do not change between the public body’s denial of access and the
circuit court’s review of the denial
 The Court holds that, unless the FOIA exemption states otherwise, the circuit court
should review the withholding of information under the circumstances as they existed
when the public body made its decision. The time of request approach to reviewing FOIA
denials is practical and fosters finality. If the information becomes releasable later, the
requestor may refile his request and avail himself of FOIA’s guarantees of prompt govt
compliance with valid requests
 Ordinarily, a public body may deny a request as unduly burdensome by demonstrating
there is no way to narrow the request and the burden on the public body outweighs the
public interest in the information
 FOIA prescribes rules to ensure governmental compliance. FOIA requires a prompt
response to a request for inspection or copy of documents: each public body shall,
promptly, either comply with or deny a request for public records within 5 business days
after the receipt unless the time for a response is properly extended. A lack of response
denies the public body the right to treat the request as unduly burdensome. When a
person has been denied access to a public record, he may file suit for injunctive or
declaratory relief and may seek attorney fees and civil penalties from the public body
 The circuit court is vested with jurisdiction to enjoin the public body from withholding
public records and to order the production of any public records improperly withheld
from the person seeking access. Accordingly, the court may order production of pubic
records only if improperly withheld. A public body may withhold public records that
contain information that is exempt from disclosure, including information specifically
prohibited from disclosure by federal or state law.
 The absence of a temporal framework shows the legislature did not express its intent
concerning what circumstances the court should consider
 FOIA authorizes the court to grant a public body more time to respond if the public body
demonstrates that additional document review is necessary
 The burden of proof is on the public body to assert the exemption
  Facts--- an injunction that was entered in another action prohibited the public body from
releasing certain records requested in this case. The injunction was vacated while this
action was pending, but the public body persisted in its denial on the ground that the
information was withheld properly at the time of the request.
 CPD received two FOIA requests, one from a local newspaper and one from the plaintiff,
for all information relating to citizen complaints filed against CPD officers since 1967.
 Injunction barred the release of records that were more than four years old at the time
they were requested; it initially applied to the newspapers FOIA and later to the
plaintiff’s FOIA
 CPD made an online portal to access records not covered by the injunction. CPD did not
respond to plaintiff’s request, so that was an effective denial, and at the time the
injunction prevent disclosure of those records
 The case proceeded and by the time of the MSJ motions the injunction was vacated and
no longer supported the denial.
 Supreme Court found that the circuit court should review the withholding of information
under the circumstances as they existed when the public body made its decision

Midwest Sanitary Serv. v. Sandberg, 2022 IL 127327

 Supreme Court of Illinois (September 22, 2022)
 If punitive damages the client paid in the underlying action were found to be proximately
caused by the attorney’s alleged negligent conduct in the underling retaliatory discharge
action, they were an element of compensatory damages in the legal malpractice action
and were “part and parcel” of the whole of the pecuniary injury the client suffered in the
underlying action
 When the punitive damages paid in an underlying action were proximately caused by the
attorney’s alleged negligence, they were an element of compensatory damages in a
malpractice action when the damages were certain and not speculative, compensated the
plaintiff for its losses, and did not punish the negligent attorney
 Have to prove negligence on the part of the attorney, and that the negligence proximately
caused damage to the client, need evidence of actual damages and that the defendant
attorney caused the injury
 735 ILCS 5/2-1115- in all cases, whether in tort, contract or otherwise, in which the
plaintiff seeks damages by reason of legal malpractice, no punitive damages shall be
allowed
 The recovery of punitive damages as compensatory damages (out of pocket losses
sustained) in a malpractice action would not violate 735 ILCS 5/2-1115 nor the public
policy of this state
 In this case, the attorneys failed to list all witnesses to be called at trial that resulted in 6
witnesses being barred from testifying, failed to disclose a voicemail that resulted in a
missing evidence instruction, failed to object to a limiting instruction or offer an
alternative instruction, elicited testimony that implicated the client, and failed and refused
to discuss potential settlement with OC
 Client stated if not for these failures, they would not have been found for the punitive
damages
Stewardson v. Biggs, 43 F.4th 732
 US Court of Appeals for the 7th Circuit (August 5, 2022)
 In appealed cases involving qualified immunity, the court did not have jurisdiction over
the appeal because the lower court established the disputed fact that appellant had
realistic opportunity to intervene to prevent another officer from leg-sweeping the
appellee and appellant’s arguments on appeal were dependent on the disputed fact just
identified
 Appellate courts do not have jurisdiction to review qualified immunity denials on
interlocutory appeal when the district court’s decision, or the appellant’s arguments, turn
on disputes of material fact
 Appellate courts may review district court orders denying qualified immunity on
interlocutory appeal only when the appellant brings a purely legal argument that does nto
depend on disputed facts
 Officers have a duty to intervene when a realistic opportunity would prevent use of
excessive force on handcuffed individuals, individuals who are not or have not stopped
resisting arrest, or even individuals resisting law enforcement
 Generally, a district court's denial of summary judgment is an unappealable interlocutory
order because it is not a final decision under 28 U.S.C.S. § 1291. A narrow exception
applies to this rule when a district court denies a defendant's request for qualified
immunity. An interlocutory appeal of a qualified immunity denial is appealable to the
extent that it turns on issues of law. Appellate court's review is therefore confined to
abstract issues of law at this interlocutory stage, and appellate court's appellate
jurisdiction is secure only if the relevant material facts are undisputed or what amounts to
the same thing when the defendant accepts the plaintiff's version of the facts as true for
now
 To determine whether an officer's qualified immunity arguments turn on legal issues
only, appellate courts closely examine whether: (1) the district court identified factual
disputes as the reason for denying qualified immunity; and (2) the officer makes a back-
door effort to use disputed facts to support his arguments.
 It is clearly established that an officer who is present and fails to intervene to prevent
other law enforcement officers from infringing the constitutional rights of citizens is
liable under 42 U.S.C.S. § 1983 if that officer had reason to know excessive force was
being used, and the officer had a realistic opportunity to intervene to prevent the harm
from occurring. A realistic opportunity to intervene may exist if an officer could have
called for a backup, called for help, or at least cautioned the officer to stop. The realistic
opportunity analysis almost always implicates questions of fact for the jury: whether an
officer had sufficient time to intervene or was capable of preventing the harm caused by
the other officer is generally an issue for the trier of fact unless, considering all the
evidence, a reasonable jury could not possibly conclude otherwise.
 One who is given the badge of authority of a police officer may not ignore the duty
imposed by his office and fail to stop other officers who summarily punish a third person
in his presence or otherwise within his knowledge.
 Regarding an officer's qualified immunity, a jury may resolve disputed facts in officer's
favor, and the district court could then determine officer is entitled to qualified immunity
as a matter of law.
  The court found they had no jurisdiction to review the appeal b/c the arguments on appeal
were dependent on the disputed fact, whether the one officer had a realistic opportunity to
prevent the other officer from leg sweeping individual that was arrested

People v. Randall, 2022 IL App (1st) 210846

 Appellate Court of Illinois, First District, Fourth Division (September 8, 2022)
 Appellate Court reversed the judgment of the Circuit Court, that convicted him for
unlawful possession of a weapon by a felon b/c the Circuit Court should not have denied
his motion to suppress evidence and the State failed to prove his guilt beyond a
reasonable doubt
 The police officer's "thorough" initial search, which uncovered no contraband, served to
dissipate the already meager modicum of probable cause established by defendant's
alleged furtive movements and nervousness
 Once, the officer's initial thorough search was completed, any probable cause was
severely diminished;
 Because there was not probable cause to conduct the second search of the vehicle, the
trial court should have granted defendant's motion to suppress the firearm found under
the passenger seat.
 On a motion to suppress, the defendant bears the burden of establishing a prima facie
case that the evidence was obtained by an illegal search or seizure. Once the defendant
makes out a prima facie case that a search was unreasonable, the burden shifts to the
State to come forward with evidence to rebut. However, the ultimate burden of proof
remains with the defendant.
 In reviewing a circuit court's ruling on a motion to suppress evidence on appeal, this
court applies the two-part standard of review announced by the United States Supreme
Court. First, a reviewing court gives great deference to a trial court's findings of fact and
will reverse those findings only if they are against the manifest weight of the evidence. A
finding is against the manifest weight of the evidence when the opposite conclusion is
clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the
evidence presented. Second, a reviewing court remains free to undertake its own
assessment of the facts in relation to the issues and may draw its own conclusions when
deciding what relief should be granted. Accordingly, the appellate court reviews the trial
court's legal ruling as to whether suppression is warranted de novo. De novo
consideration means the appellate court performs the same analysis that a trial judge
would perform.
 The Fourth Amendment guarantees the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, U.S. Const.,
amend. IV. A search conducted without prior approval of a judge or magistrate is per se
unreasonable under the fourth amendment, subject only to a few specific and well-
defined exceptions. Under the automobile exception, law enforcement officers may
undertake a warrantless search of a vehicle if there is probable cause to believe that the
automobile contains evidence of criminal activity that the officers are entitled to seize.
 To establish probable cause, it must be shown that the totality of the facts and
circumstances known to the officer at the time of the search would justify a reasonable
person in believing that the automobile contains contraband or evidence of criminal
 activity. It does not demand any showing that such a belief be correct or more likely true
than false. Probable cause is a practical, nontechnical concept that deals with the factual
and practical considerations of everyday life on which reasonable and prudent persons—
not legal technicians—act. Probable cause is a fluid concept that turns on the assessment
of probabilities in particular factual contexts; it is not readily, or usefully, reduced to a
neat set of legal rules. As a corollary, moreover, of the rule that the police may rely on
the totality of facts available to them in establishing probable cause, they also may not
disregard facts tending to dissipate probable cause.
 Furtive movements standing alone are insufficient to establish probable cause under the
automobile exception because they are often susceptible to an innocent explanation.
Innocent explanations of furtive movements in reaction to an officer's attempt to stop a
vehicle may include the driver's reach to the glove compartment for the vehicle's
registration or to turn the radio down in expectation of a conversation with the officer. To
constitute probable cause for an arrest or search, a furtive gesture such as a motorist's act
of bending over inside his car must be invested with guilty significance either by specific
information known to the officer or by additional suspicious circumstances observed by
him.
 The scope of a warrantless search of an automobile is defined by the object of the search
and the places in which there is probable cause to believe that it may be found.
 The appellate court found the first search to be “thorough” and it uncovered no
contraband and the PC was severely diminished and there were no intervening facts to
serve to rehabilitate probable cause
 The fact that the defendant failed to register as a prior firearm offender said little to
nothing about whether there was a weapon currently in his vehicle and the passenger
would not have been able to definitely state whether the defendant had a weapon in his
car
 The court specifically stated that it is not deciding whether all the facts known to the
officers, gave the officer probable cause to search the vehicle b/c the officer did not
discover all of that evidence prior to searching the vehicle the first time. The initial search
was a break in the chain of events that served to severely diminish the evidentiary value
of the officer’s initial observations.