309-788-2800 mcfe@mcfe-law.com

Illinois’s Tort Immunity Act protects police from lawsuits that involve their police duties. Therefore, as a rule, you cannot sue the police department when, for example, the police fail to protect you. While some may argue that police should be directly liable for their mistakes, the Tort Immunity Act provides a service to public safety. Were it not for the Tort Immunity Act, police would be constantly concerned about being sued and unable to perform their job duties competently. It may be difficult to apprehend a criminal who may later have the right to sue the police. In addition, the Tort Immunity Act reflects the unfortunate fact that police cannot possibly protect every person all the time due to limited staff and overall resources.

There are, however, some exceptions to this rule. For example, if a law states that police shall have some liability, then that law will override the Tort Immunity Act. The Domestic Violence Act is one such example. The Domestic Violence Act allows for police liability when there has been “willful or wanton misconduct.”

This liability only applies when the police have been called to a domestic violence scene to protect a victim. Therefore, when the police failed to protect a woman whose ex-boyfriend was stalking her, the police were not liable. Although the police knew about the stalking, they failed to give her constant protection, and the ex-boyfriend murdered her and her mother. This terrible situation again reveals the unfortunate reality that police lack resources to protect people like this woman on a constant basis.

In one situation, however, the court declared that the police would be liable for a violation of the Domestic Violence Act. The Court of Appeals determined that the police were liable when a man was killed by his girlfriend’s adult son, who was angry and severely intoxicated at the time. The mother called 911 two times before her boyfriend was murdered. Both times, the police appeared to handle the situation. However, the second time, the police moved the son out to the street (instead of arresting him). The son broke back into the house six minutes after being removed and murdered his mother’s boyfriend.

The mother and boyfriend were “abused persons” under the Domestic Violence Act. When a household or family member is harassed or threatened, that individual is deemed an abused person under the Act. Since the boyfriend, mother, and son all lived in the same house, then they were all household members. The “abused person” status allows them to have special protections under the law. The court explained that the police should have done something more than move the son out into the winter weather, where it was probable that he would try to return to the house. They likely should have arrested him given that he was violently harassing a household member, and their first visit did nothing to correct an escalating issue.

The increase in liability only occurs where the police are actually responding to a domestic violence call. Therefore, where the ex-boyfriend murdered his ex-girlfriend and her mother, the police will not be liable because they did not respond to a call. The fact that the police were aware of the stalking issue does not make them liable for their failure to protect her. However, if they responded incorrectly to a domestic violence situation, then they would be liable according to the Appellate Court.

This change in police liability opens up new legal issues. If you have questions regarding this development or have other legal issues, please contact McCarthy, Callas & Feeney at 309-788-2800. We would be happy to answer your legal questions.

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