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Oral Arguments Set in Defendant's Challenge to $360k Verdict and Plaintiffs' Challenge to Whether the Tort Immunity Act Bars Claims of Negligent Retention Against a Municipality

For Immediate Release: September 5, 2017

Contact: Craig M. Sandberg, 312.263.7249, craig@muslin-sandberg.com

Rockford, IL – This case involves the shooting death of young black man, in front of 15 or so women and children, inside of a predominantly black church, by two white Rockford Police Department officers. On August 24, 2009, at approximately 12:33 p.m., then 17-year old Marissa Brown witnessed two uniformed Rockford Police Department officers (Oda Poole and Stanton North) shoot and kill an unarmed 23-year old male, Mark Anthony Barmore (“Barmore”), who was inside the House of Grace Day Care run by Kingdom Authority International Ministries church located at 518 North Court Street, Rockford, Illinois. Marissa “was a witness to Barmore’s fatal shooting, which occurred in a local church where defendant’s parents were the pastors” “by two Rockford police officers”. People v. Brown, 2013 IL App (2d) 111228, at ¶ 4. While Marissa was the only non-police individual who observed the officers fatally shooting Barmore, third parties to that shooting, both children and adults, were at great risk of harm from ricocheting bullets in the basement of the church.

Following a three-week jury trial, on March 25, 2016, an all-white jury awarded twelve of the plaintiffs a combined verdict in the amount of $360,000.00 for damages proximately caused by the reckless actions of Officers Poole and North that resulted in Barmore’s death. The jury’s verdict, effectively, affirmed many of the findings from the March 2010 report from the Rockford-retained Independent Assessment & Monitoring, LLP (Oakland, CA) (the “IAM Report”). In December 2014, the city of Rockford paid $1,115,500 to settle the wrongful death lawsuit filed by the estate of Barmore. (Jeff Kolkey and Brian Leaf, Rockford City Council OKs $1.1M settlement with Mark Anthony Barmore estate, Rockford Register Star On-Line, Dec. 15, 2014, http://www.rrstar.com/article/20141215/NEWS/141219585 (last visited Sept. 5, 2017)) In total, as of the time of the jury trial, the City of Rockford paid approximately $1,000,000 in litigation costs defending these cases.

However, earlier in the case, the City had filed a motion for summary judgment directed at one of the plaintiffs' alternative theories of recovery, namely, negligent retention of Officers Poole and North. The gist of the claim was that when the City became aware of problems with the officers indicating their unfitness,  the City should have taken further action such as investigation, discharge or reassignment of the officers.

“Illinois law recognizes a cause of action against an employer for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. An action for negligent hiring or retention of an employee requires the plaintiff to plead and prove (1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee's hiring or retention; and (3) that this particular unfitness proximately caused the plaintiff's injury.” Van Home v. Muller, 185 Ill. 2d 299, 705 N.E.2d 898, 904 (1998) (internal citations omitted). “Negligent retention occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigation, discharge or reassignment.” Geise v. Phoenix Co. of Chicago, Inc., 246 Ill. App. 3d 441, 453-54 (2d Dist. 1993) (Doyle, J., dissenting) (internal quotes omitted) (citing Foster v. Loft, 526 N.E. 1309, 1311 (Mass. App. Ct. 1988)).

The circuit court ruled that Section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”) (745 ILCS 10/1-101, et seq.) barred the plaintiffs claim. Section 2-201 provides that “[e]xcept as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” 745 ILCS 10/2-201 (emphasis added). “In order to obtain immunity under section 2-201, the particular act or omission sought to be immunized must be both discretionary and involve a policy choice.” Doe v. Dimovski, 336 Ill. App. 3d 292, 783 N.E.2d 193, 197 (2d Dist. 2003) (citing Arteman v. Clinton Cmty. Unit School Dist. No. 15, 198 Ill. 2d 475, 484 (2002). The primary case relied upon was Johnson v. Mers, 279 Ill. App. 3d 372 (2d Dist. 1996) (finding that hiring and firing an employee is a “discretionary”, as opposed to “ministerial”, act), but does not addressing whether or when such a decision may be considered an act or omission in determining policy. In order for the Act’s immunity to apply, “[t]he discretionary act [must be] made in furtherance of a governmental policy.” Stratman v. Brent, 291 Ill. App. 3d 123, 130 (2d Dist. 1997) (emphasis added). Because the Act does not define the terms “policy” and “discretion”, courts have employed common-law definitions in interpreting section 2-201 of the Act. Synder v Curran Twp., 167 Ill. 2d 466, 473 (1995). A determination of policy is one that requires (1) balancing of competing interests and (2) making judgments as to what solution will best serve those interests. West v. Kirkham, 147 Ill. 2d 1, 11 (1992).

Our supreme court has held that the Tort Immunity Act sets up a two-part test to determine which employees may be granted immunity under section 2–201. Harinek v. 161 North Clark Street Ltd. P’ship, 181 Ill. 2d 335 (1998). First, an employee may qualify for immunity “if he holds either a position involving the determination of policy or a position involving the exercise of discretion.” Harinek, 181 Ill. 2d at 341 (1998) (emphasis in original). Second, an employee who satisfies the first prong of the test must also have engaged in both the determination of policy and the exercise of discretion when performing the act or omission from which the plaintiff's injury resulted. Harinek, 181 Ill.2d at 341. Plaintiffs-appellants admitted the City has positions involving the determination of policy or the exercise of discretion. However, the plaintiffs contended that there was no immunity to the City because the retention of the officers did not involve both discretionary and involve a policy choice.

WHAT: Oral arguments begin in Kingdom Authority International Ministries, et al. v. City of Rockford (Docket Nos. 2-17-0084 and 2-17-0093).

WHO: Craig M. Sandberg will argue for the plaintiff-appellants, before a panel of judges in Illinois Court of Appeals, Second District.

WHEN: Tuesday, September 26, 2017 at 9:30 a.m.

WHERE: Appellate Court of Illinois, Second District, 55 Symphony Way, Elgin, Illinois 60120

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