Cook County Record

Friday, September 20, 2019

Appeals panel splits on whether all passengers of car stopped by cops 'in custody,' if cops liable for later crash

State Court

By Scott Holland | Jul 29, 2019


CHICAGO — In a split decision, a state appeals panel ruled a man can’t sue the Chicago Police Department officers who pursued the vehicle that crashed into a car in which he was riding.

Michael Townsend was a passenger in a car involved in a crash March 2, 2015, near the intersection of Normal Boulevard and 63rd Street. The driver of the car that initiated the contact originally was a passenger in a car two Chicago police officers stopped near 1227 W. Garfield Blvd. After the driver and front-seat passenger of that car exited the vehicle to be handcuffed, passenger Ricky Anderson slipped into the front seat and drove from the scene.

Townsend sued the city and several officers, alleging they were unsafe in their pursuit of Anderson, causing him to drive erratically and cause the crash that injured Townsend’s head, neck, back, shoulder and hand. Cook County Circuit Court Judge Kathy Flanagan granted summary judgment in favor of the city defendants based on liability protection from the Tort Immunity Act.


Illinois First District Appellate Justice Aurelia Pucinski | Illinoiscourts.gov

On appeal, Townsend argued the court erred in finding an escaping prisoner caused his injuries. An Illinois First Distrct Appellate Court panel issued a 2-1 decision on the appeal July 25. Justice Aurelia Pucinski wrote the majority opinion with concurrence from Justice Mary Anne Mason. Justice Michael Hyman dissented.

Pucinski said Townsend’s argument relied on his position that Anderson wasn’t in police custody at the time he drove off from the scene of the initial traffic stop. The defendants acknowledge Anderson hadn’t been arrested, Pucinski wrote, but “he was nonetheless in custody at that time because no reasonable person in his position would have felt free to leave the scene of the traffic stop.”

Townsend failed to provide a competing account of the initial traffic stop, Pucinski continued, which means the court can only consider the accounts of the responding officers who “effectively curtailed Anderson’s and the other three occupants’ freedom of movement” by approaching the vehicle from both sides. One of the officers said he attempted to grab Anderson before he sped off, further supporting the argument he was in custody as the Tort Immunity Act defines.

In Hyman’s dissent, he argued the parties and majority opinion relied too heavily on a 2011 Supreme Court of Illinois opinion in Ries v City of Chicago, in which an escapee “knew he was under suspicion of a crime, having been identified to the officer as attempting to leave the scene of an accident.”

Because the officers in this instance “made no indication to Anderson or the other backseat passenger that they were the subjects of suspicion,” Hyman wrote, it is improper to presume Anderson knew he was in custody.

“Given the record we have, construing the evidence in Townsend’s favor requires us to presume Anderson’s questioning of the officer, and even the simple act of his driving away, indicate a belief that he was free to leave,” Hyman wrote. “I do not believe our supreme court directly imported the ‘free to leave’ custody standard into the escaped prisoner provision of the Tort Immunity Act to the extent of the majority’s interpretation.”

Hyman further explored the concept of custody as defined in several other arenas, determining statutory context is essential for a final determination and explaining the Tort Immunity Act only grants immunity based on injuries “inflicted by an escaped or escaping prisoner … Only a highly strained definition of ‘custody,’ when read in the context of ‘prisoner,’ would apply to a backseat passenger in a car pulled over for a run-of-the-mill traffic stop — and even more so here, where the officers made no attempt to communicate to Anderson that he could not leave.”

Anderson is represented in the matter by Robert A. Langendorf, of Chicago.

Representing the municipal defendants are City of Chicago corporation counsel.

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