I have received some comments under previous unrelated posts regarding the United States Supreme Court’s decision released Monday, June 27, 2010, captioned McDonald, et al. v. Chicago, Illinois, a monumental Supreme Court decision relating to 2nd Amendment Rights, specifically the right to possess handguns. The opinion specifically addresses the prohibition placed on residents of Chicago and Oak Park, Illinois to possess handguns, but has far greater implications with respect to gun rights. A later blog may follow as it relates to McDonald, but for now, a synopsis of the Court’s ruling, as well as, a link to the decision can be found at the Washington Post’s website here.
Filed under: General by Terry Dodds
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So, You Think You Can Say Something Defamatory About Someone On The Internet That You Might Not Otherwise Say Elsewhere, Because You Think You Can Hide Behind The Anonymity of the Internet? Well, You Might Want To Rethink That Strategy Before Deciding To Do So Now
Donald Maxon and Janet Maxon v. Ottawa Publishing Co.
Ever posted something on an online newspaper or other website that allowed you to voice your opinion about a particular article or subject anonymously? If you’re reading this and you are connected to the World Wide Web, chances are greater than not that you have. Well, the Third District of the Illinois Appellate Court and some other jurisdictions are weighing in and warning that your posts might not be so anonymous after all; that is, if they are defamatory in nature. Just ask the people who posted derogatory statements aimed at Donald and Janet Maxon (the Plaintiffs) on the online version of the newspaper, “The Times”, affiliated with Ottawa Publishing, Co. (hereinafter referred to as Ottawa Publishing), which is distributed in and around Ottawa, Illinois.
According to the court’s decision, on March 20, 2008, Ottawa Publishing posted an article on the online version of its newspaper called “MyWebTimes” , titled “Ottawa: Commissioners favor B&B additions, changes.” “The subject of the article, which generally reported on the Ottawa Planning Commission’s consideration of a proposed ordinance to allow bed and breakfast (B&B) establishments to operate in residential areas, precipitated numerous comments by readers. The article did not mention the plaintiffs by name.”
Continuing its coverage of the controversial ordinance proposal, less than a month later, Ottawa Publishing published a letter to the editor on its website titled “Precedent will be set by changing B&B ordinance!”. The letter posted to the internet again did not mention the plaintiffs by name. The post, however, again spawned readers to post numerous comments online about the issue.
Subsequently, the Maxons commenced litigation to discover the identities of the anonymous posters. As part of the lawsuit, the Maxons petitioned the court for an order requiring Ottawa Publishing to disclose “the ‘name, address, phone number, e-mail address or other account information used to establish their blog ‘identity,’ the password used for access to the blog, or other identifying information’ for “FabFive” and “birdie1.”
Pleadings were filed on both sides as to whether or not the Maxons should be allowed to move forward with their lawsuit. The circuit court also allowed each side to argue their respective positions during oral arguments on the pleadings, after which the court dismissed the Maxon’s lawsuit, noting that no precedence in Illinois had previously addressed whether such a lawsuit could proceed, and what burden had to be met in order to do so. The trial court had looked at authority from other jurisdictions, but concluded that the Maxons were not entitled to ascertain the identities of the anonymous posters. According to the opinion of the third district, the trial court adopted the analysis of these other jurisdictions, and ruled that “a petitioner seeking the disclosure of an anonymous Internet poster must show that:
(1) the anonymous poster has been notified of the potential claim so they may have the opportunity to appear; (2) the petitioners have set forth the exact statements that have been purportedly made by the anonymous person; and (3) the allegations meet a prima facie standard and are able to withstand a hypothetical motion for summary judgment as if brought by one of the potential defendants, at least with regard to elements that are within the petitioner’s knowledge. The trial court noted that the goal in applying the [above test is] to balance the rights of a person not to be defamed with the first-amendment, free-speech rights of anonymous posters. (internal citations omitted).
The trial court found that the Maxons had not satisfied the third prong of the test, believing that “the literary and social context of the statements rendered them nonactionable opinions as a matter of law.” In other words, the statements were not defamatory as a matter of law.
The Third District of the Illinois Appellate Court framed the ultimate issue as being: whether “allegedly defamatory speech enjoys any constitutional protections, such as the right to speak anonymously?”
In order for a plaintiff to be able to proceed with such an action for defamation, the third district held that:
the court must insure that the petition: (1) is verified; (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action of defamation; and (4) is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant, i.e., the unidentified person is one who is responsible in damages to the petitioner. (internal citations omitted)
The court was of the opinion that any protections afforded by the United States Constitution as to cases of this nature are sufficiently addressed by such an analysis and would be adequately considered when the court makes its determination as to whether or not the plaintiff has plead sufficient facts to meet its burden “as part of [its] prima facie case”.
The long and the short of the court’s opinion appears to be that what one posts anonymously does not necessarily afford more protection than what one would say or write using their true identity. Defamatory statements are defamatory statements, and one should not post such statements relying on the belief that they will be shielded by the superficial protections of the otherwise faceless Internet. Simply put, what you wouldn’t say in public for fear of retribution, you shouldn’t post anonymously online. As the court noted, “it is overly broad to assert that anonymous speech, in and of itself, warrants constitutional protection.”
However, as the court outlines in its analysis above, the same scrutiny will be applied to determine whether the speech is protected by the 1st Amendment. While this post is not intended to explore available defenses to defamation lawsuits, and this author does not profess to have expansive knowledge regarding libel and slander cases, a few examples that come to mind include (1) whether the targeted individual is a public official or other notable public figure, such as a celebrity or professional athlete (2) whether the statement is true or (3) whether the public’s interest in freedom of expression outweighs the plaintiff’s interest in preserving his reputation.
As can be ascertained from the court’s opinion and from merely conducting an online search of the topic, other jurisdictions are having to establish precedence for this type of litigation as well. Dubbed “cyberlibel” by those on the World Wide Web , such cases appear to becoming more and more common. One interesting case that caught my attention was highlighted by the New York Times on their website. The case identified in the article involved a twenty-one year old college student named Just Kurtz who created an entire website devoted to lambasting a towing company for what he claims was an illegal tow. The towing company, T&J Towing retaliated by filing a defamation lawsuit, one which the New York Times cites some lawyers referring to as a “SLAPP” lawsuit, an acronym for “strategic lawsuit against public participation”. One might also refer to them simply as meritless or harassment lawsuits.
Again, the lesson to be learned is don’t post something on the internet anonymously that could possibly be considered defamation for fear of retribution from your target. Internet libel or “cyberlibel” is still libel, whether or not you are asking others to “pay no attention to that man behind the curtain”.
Filed under: General by Terry Dodds
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People of the State of Illinois v. McPeak (DUI_Drugs)
In March 2005, Samuel McPeak was stopped by a Police Officer in Lee County who noticed him not wearing his seat belt. When McPeak exited the vehicle at the Officer’s request so that he could give Mr. McPeak his ticket for the seat belt violation, the Officer noticed an odor of cannabis, which the officer testified he noticed coming from McPeak’s person.
During his encounter with McPeak, the Officer asked McPeak if he had been smoking cannabis, which McPeak replied he had, and that he had taken one or two hits from a “hit pipe” within the last hour or two. Based on McPeak’s response, and the Officer’s observations, the Officer arrested McPeak for “Driving Under the Influence” (DUI) of drugs for having cannabis in his breath, blood, or urine.
Prior to a stipulated bench trial on the evidence, McPeak’s counsel filed a motion to quash the arrest and to suppress the evidence, arguing that there was insufficient evidence to arrest McPeak for DUI, “because there was no evidence of the presence of cannabis in his breath, blood, or urine as required by section 11-501(a)(6).” After a conviction at a stipulated bench trial , McPeak appealed. The facts stipulated to at trial were that: 1) the officer smelled burnt cannabis about Mr. McPeak’s person 2) that McPeak admitted to taking two hits out of a hitter box about an hour before being stopped, and 3) that after he was arrested, the officer located a smoking pipe in McPeak’s vehicle that contained a burnt substance that smelled like cannabis, and which later field-tested positive for cannabis.
On appeal, the State argued that there was sufficient circumstantial evidence to support McPeak’s conviction, in that there was sufficient circumstantial evidence that Mr. McPeak had cannabis in his breath, blood, or urine at the time he was driving as prohibited by Illinois law. McPeak argued that his Motion to Suppress should have been granted, and that there was insufficient evidence to uphold the conviction. The Illinois Appellate Court, Second District reversed noting that while “McPeak admitted to smoking ‘two hits’ of cannabis ‘about an hour ago’ [t]here was no evidence whether consuming that amount of cannabis would result in any cannabis being left in his breath, blood, or urine an hour later.” Furthermore, the court held that there “was no evidence that McPeak was impaired and no evidence of any odor of cannabis on McPeak’s breath, as opposed to his ‘person’.” In other words, what the court was really saying was that while there may have been circumstantial evidence that McPeak smoked cannabis, and that it likely remained in his system, the State had failed to show beyond a reasonable doubt by way of scientific evidence, or by way of other evidence, that the cannabis remained in his system.
Relying on a holding from the Third District, People v. Allen , the court noted that while “the odor of cannabis on the breath of a defendant could provide circumstantial evidence that the defendant has cannabis in his breath”, there was no such evidence in this case because the Officer had testified that he had smelled burnt cannabis about Mr. McPeak’s person, “something that does not address whether McPeak had cannabis in his breath, blood, or urine at that time.” (emphasis added). In its opinion, the court also noted that there was also a lack of additional evidence to show that Mr. McPeak was impaired; evidence such as dilated pupils, that his motor skills were impaired, that he had trouble performing standard field sobriety tests, problems communicating or speaking, etc.
While additional evidence likely would have resulted in Mr. McPeak’s conviction, the court ruled that, “the State provided no evidence that cannabis remained in McPeak’s breath, blood, or urine while he was driving.” (emphasis added).
My interpretation of the court’s ruling is simply that the State failed to connect the dots. They didn’t have urine or blood showing the presence of cannabis. This is akin to a lack of corpus delecti, a Latin term requiring proof that a crime has been committed.
The case may have been proven through scientific evidence, by way of expert testimony, that cannabis tends to remain in one’s system for a period of time after ingestion. Another possibility is that they may have simply stipulated their way out of the case, meaning that they agreed to some facts, but failed to insist on the presence of additional facts that might have existed which would have helped to prove the case circumstantially.
While it may seem that Mr. McPeak may have dodged a bullet in this case, I have no doubt that the bullet was actually diverted by the help of his lawyer. That is why it is so important to hire a qualified Illinois Criminal Defense Attorney. Sometimes convictions are avoided through an intelligent, cunning lawyer, who knows the law, or who can use it to their advantage.
Filed under: Criminal by Terry Dodds
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Interstate Scaffolding, Inc. v. The Illinois Workers’ Compensation Comm’n, et al., 236 Ill.2d 132, 923 N.E.2d 26 (Ill. 2010).
During oral arguments held at its March 2009 docket, the Illinois Supreme Court was asked to decide whether or not an Illinois employer, with an employee with a workers’ compensation claim, who is entitled to Temporary Total Disability (TTD) benefits pursuant to the Illinois Workers’ Compensation Act, can discontinue its Illinois at-will employee’s right to those TTD benefits when that employee is terminated for cause or for “volitional conduct”. In a very meaningful opinion for Illinois Workers’ Compensation attorneys, the Supreme Court of Illinois held in its January 22, 2010 decision, that:
“Whether an employee has been discharged for a valid cause, or whether the discharge violates some public policy, are matters for and to workers’ compensation cases. An injured employee’s entitlement to TTD benefits is a completely separate issue and may not be conditioned on the propriety of the discharge.
For the reasons stated above, we hold that an employer’s obligation to pay TTD benefits to an injured employee does not cease because the employee had been discharged-whether or not the discharge was for “cause”. [T]he determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant’s condition has stabilized. If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury, the employee is entitled to TTD benefits.”
In more simple terms, Illinois employers cannot terminate an Illinois employee’s right to TTD simply because the worker was fired with or without cause. Those rights continue until the employee’s condition has stabilized, or he or she has reached “maximum medical improvement.
In this particular cause of action, the Petitioner, Jeff Urban (Urban), was employed as an Illinois employee by Interstate Scaffolding, Inc. (Interstate), as a union carpenter when he sustained a work-related injury to his head, neck, and back. He was initially diagnosed with a mild concussion and cervical strain. Following his injury, he continued to experience persistent headaches, cervical pain, and numbness in his arms. After more conservative treatment failed, it was recommended by his employer’s Independent Medical Examiner that he undergo a spinal fusion operation. At first, Urban rejected the spinal fusion and opted to continue with further conservative treatment. As a result of his injuries, and at different times during the course of his treatment, Urban’s doctor instructed him not to work or placed him on “light duty” with restrictions.
During the course of his treatment, and before reaching maximum medical improvement, Urban was terminated for, among other things, writing religious graffiti or slogans in the storage room on Interstate’s premises. As a result of his termination, Interstate discontinued Urban’s TTD, and the issue eventually made its way to the Illinois Supreme Court, which issued the above ruling.
Filed under: Workers Compensation by Terry Dodds
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As many of you may already be aware (hopefully not because you have already been ticketed for violating this new statute), the Illinois Legislature passed a new law that took effect on January 1, 2010, limiting the usage of cellular phones in school and construction zones. The law was introduced in the House as HB 0072, by Representative John D’Amico (D) of the 15th Dist. (Chicago). It was later sponsored in the Senate by Pamela J. Althoff (R) of the 32nd Dist. (Crystal Lake), and later passed both houses of the Illinois General Assembly as Public Act 96-0131.
Many Illinois attorneys, prosecutors and Illinois criminal defense attorneys alike, have interpreted the new law to mean that individuals cannot be utilizing their cell phones at any time while in these protected zones. The rationale behind this belief is found in the statute itself, 625 ILCS 5/12-610.1, which reads in section (e) that “A person, regardless of age, may not use a wireless telephone at any time while operating a motor vehicle on a roadway in a school speed zone established under Section 11 605, or on a highway in a construction or maintenance speed zone established under Section 11 605.1.” When the Peoria Journal Star printed an article regarding new laws to take effect January 1 of this year on December 30, 2009, the author, Doug Finke, wrote that “[H]ouse Bill 72, makes it illegal for drivers to use cell phones in school or construction zones, unless they are the hands-free variety.” To be honest, my interpretation of the new law was consistent with those who had interpreted the statute to mean no cell phones at any time; that was until I reread the statute after another attorney and I were discussing the matter since our office was then representing someone charged with having violated this particular statute. Attorneys should invariably always read the statute itself before moving forward in a criminal matter; that is what we are taught, and this is particularly true with new statutes. Of course, I had done this, but discussion led to further analyzation of the statute and conducting some legislative research to determine whether or not the new statute was to truly be interpreted as to not allow cellular usage at any time in these protected zones.
Notice the reference to 625 ILCS 5/11-605 at the end of the sentence quoted above? That particular statute is what establishes “School Speed Zones”; requiring you to reduce your speed to 20 mph at certain times. In that statute “School Speed Zones” are only in effect “[o]n a school day when school children are present and so close thereto that a potential hazard exists because of the close proximity of the motorized traffic, no person shall drive a motor vehicle at a speed in excess of 20 miles per hour while passing a school zone or while traveling on a roadway on public school property or upon any public thoroughfare where children pass going to and from school.” (emphasis added).
625 ILCS 5/11-605 goes on to say that “School Speed Zones” are only in effect from 7:00 a.m. to 4:00 p.m.
When controversy exists over the interpretation of a law, which may have been poorly drafted, which was passed by the legislative branch of any governmental body, one has to turn to the “legislative history” of the statute, if any exists, to try and determine the legislative intent of the legislative body. That’s exactly what I set out to do, although no definitive answer could be ascertained from reviewing the legislative history available at the Illinois General Assembly’s website with respect to this particular piece of legislation; no debates as to the intent or meaning of the statute could be located.
Finding no help from the house and senate debates regarding this statute, I called Senator Althoff’s office for assistance, since she was the sponsor in the Senate, which was the last house of the Illinois General Assembly to pass the bill. Senator Althoff’s office directed my inquiry to someone with the Illinois State Police. He directed my inquiry to the legal counsel of the Illinois State Police.
Further efforts included contacting the Illinois Legislative Information Bureau, which suggested that I contact the Index Department of the Illinois Secretary of State and the House Committee Clerk. The individual I spoke with at the Index Department told me that he would gladly send me the audio recordings of the transportation committee meetings, where HB0072 was assigned, to further my efforts in ascertaining the correct reading of this statute. During this time, an additional telephone call was received from a Republic Legislative Analyst who advised me of his interpretation of the statute.
As a result of my efforts, I must say that I learned a lot about the Illinois legislative process, discovered the existence of new governmental entities that I previously did not know existed, and got to speak to a lot of wonderful people employed by the Illinois Government, all of whom, with the exception of one, were extremely helpful and seemed to be interested in what I was trying to accomplish.
Bottom line, I think there may be a continued debate as to whether or not Illinois drivers can use their cell phones at any time in a “school zone”. That being said, it is my belief, and the belief of some other Illinois criminal defense attorneys that you are safe to use your cell phone in a “school zone” provided there are “no school children present and so close thereto that a potential hazard exists because of the close proximity of the motorized traffic.” Why else would 625 ILCS 5/12-610.1 reference “school speed zones,” instead of “school zones”, and 625 ILCS 5/11-605. If it were not so, would it mean that I couldn’t use my cell phone in a school zone at 9:00 p.m. throughout the week or on the weekend? If that’s the case, the statute is rather ridiculous. That being said, I think until the statute is redrafted or one of our appellate courts is asked to interpret it that Illinois drivers run the risk of being ticketed and having to hire an Illinois attorney who practices in criminal law to advocate on their behalf as to why it was okay for them to be using their cell phone in a school zone (not very cost effective I don’t think).
Why run the risk? In all fairness, and for the safety of our children, why not hang up the cell phone while in a school zone between the hours of 7:00 a.m. to 4:00 p.m.? Why not reduce your speed to 20 mph whether or not you see children in the area. Personally, I try to never drive above 20 mph in a school zone during those hours, no matter how bad it upsets the other drivers behind me or whether or not school children are present. Why? For one, I don’t want to be ticketed by an officer that wants to have a philosophical debate with me about whether or not there were school children present. For another, I don’t want to run the risk of some child darting out in front of my car and wind up on the front page of the newspaper for being the one who struck him. How bad would I feel? How bad would you feel?
The statute allows for the use of wireless devices, so you are alright in that regard; buy a Bluetooth if you always want to be able to speak to whoever you are talking to or need to speak with.
While not a proponent of the passage of some of the overwhelming number of laws that now fill up eight very large volumes of what is the Illinois Compiled Statutes, I would not be opposed to both statutes reading that you are in violation of them if you are doing either between the hours of 7:00 a.m. and 4:00 p.m. while school is in session. That being said, I still believe that the current and correct interpretation is that those laws are only applicable when there are “school children present and so close thereto that a potential hazard exists because of the close proximity of the motorized traffic.”
Construction zones are a different beast altogether. No speeding or cell phone usage at any time. This is true whether or not workers are present, which used to be the way the law read.
Fines are steep indeed for violating any of the statutes discussed herein, so just be prepared if you are in a hurry or just have to take that call; prosecutors are also very unforgiving when you’re caught, so there’s the warning you absolutely will not get from the officer who pulls you over.
Filed under: Criminal by Terry Dodds
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Joe Mahr, wrote in an interesting article today in the Chicago Tribune (i) that some Cook, Dupage, and Lake County judges are under close scrutiny following an investigation by the newspaper for handing out what it believes are excessive amounts of supervision for Illinois drivers caught speeding in excess of 40 MPH over the speed limit.
I can assure you that this is not a likely outcome here in Bloomington, McLean County, Illinois. However, according to the article, it’s soon not likely to be an outcome available to any Illinois drivers if new legislation that has passed both houses of the Illinois General Assembly is signed by Governor Quinn.
SB3796 (ii) would eliminate Supervision as a possible sentence for Illinois motorists driving in excess of 40 MPH over the posted speed limit. The same legislation would also make speeding 30-40 MPH over the posted speed limit a Class B Misdemeanor.
(i) http://www.chicagotribune.com/classified/automotive/ct-met-100-mph-judges-main-20100502,0,7866510.story
(ii) http://www.ilga.gov/legislation/BillStatus.asp?DocNum=3796&GAID=10&DocTypeID=SB&LegID=51998&SessionID=76&GA=96&SpecSess=0
Filed under: Criminal by Terry Dodds
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The Illinois Legislature is considering making “SEXTING” a crime. What is it “SEXTING” you ask?
“Sexting” as the act has been termed is teens sending other teens pornographic or lewd pictures of themselves to one another.
According to another blog written by Kevin McDermott I found on stltoday.com[i] after having done a Google search, the law “would outlaw the practice [of “sexting”] (it isn’t clearly illegal right now, if there aren’t any adults involved). It would effectively declare the kid who does this to be both the perpetrator and the victim.
Under the bill, a minor caught using a computer or cell phone “to transmit an indecent visual depiction of himself or herself to another person . . . shall be adjudicated a delinquent minor” — the same thing that happens to teens who steal or vandalize.”
The synopsis of the originally proposed bill, SB 2513, found on the Illinois Legislature’s website[ii] and sponsored by Senator Ira I. Silverstein[iii] of the 8th Dist in Chicago reads as follows:
Amends the Juvenile Court Act of 1987 and the Criminal Code of 1961. Provides that a minor shall not knowingly and voluntarily and without threat or coercion use a computer or electronic communication device to transmit an indecent visual depiction of himself or herself to another person. Provides that a person shall not possess a visual depiction transmitted to the person in violation of this provision. Provides that it is not a violation if the person who receives the depiction took reasonable steps, whether successful or not, to destroy or eliminate the visual depiction within a reasonable time after discovering the depiction. Provides that a person 18 years of age or older who violates the provision is guilty of a Class B misdemeanor. Provides that a minor who transmits the indecent visual depiction shall be adjudicated a delinquent minor under the Juvenile Court Act of 1987. Provides that a minor who transmits the indecent visual depiction who has previously been adjudicated for such violation may be either adjudicated a delinquent minor under the Juvenile Court Act of 1987 or subject to discretionary transfer for prosecution under the criminal laws of the State in accordance with the Juvenile Court Act of 1987. Provides for the automatic expungement of the juvenile law enforcement and court records of a minor charged with or adjudicated delinquent for the violation.
After some amendments made by the Criminal Law committee, the proposed bill appears to have passed the Senate after its third reading on March 18, 2010, and arrived at the house on the same day. The house sponsor is Representative Darlene J. Senger (R)[iv] of the 96th District in Napperville. The bill as amended appears to now be in the Rules Committee of the House.
According to an article online at the Chicago Sun-Times[v], the bill as amended by the house would not require the minor to register as a sex-offender, which concerned a large portion of the Illinois lawyers following the bill who practice criminal law. According to the article at the Sun-Times’ website Senger was quoted as saying that “The goal of this legislation is creating awareness. . . .parents are very concerned with what’s going on with cell phone cameras. Kids are being bullied. Girls are committing suicide because of what’s going on.”
Is the proposed bill too harsh on our youth? A second time and you could be tried as an adult?
Is it something needed or is just another act made criminal by our government in its position as in loco parentis (Latin for “in the place of a parent” or “instead of a parent,”); or Is it something that should simply be left to the parents of the minors? I am not sure I have a position on whether or not it should be made criminal, but instead will let you be the judge. You’re free to voice your opinion here, but your voice would be better heard by writing your representative – and quickly I suspect. While many of us express our likes and dislikes of our government in different forums (at work, at school, in the coffee house, over breakfast, or in our favorite watering hole), how many of us actually take the time to let our opinions be known to those who actually make the laws affecting us? I know I’m guilty of not expressing my opinions on what really matter. In fact, I have been more inclined to take the time to write a corporation that sparked an emotional response over a far less trivial matter than actually take the time to write my congressman about a tax or other act of Congress that would have far more reaching affects on my life.
I am glad to see though that this will likely not be a registerable offense; at least not for now. On another, yet similar note, I was glad to see the Illinois Legislature make misdemeanors punishable under the Juvenile Court Act for our youth who are 17 years of age.
Anyway, what say you? Say it quickly though, because I am quite confident this will be a law in the Illinois Compiled Statutes soon enough.
[i] http://interact.stltoday.com/blogzone/political-fix/political-fix/2010/02/illinois-legislature-taking-on-teen-sexting-controversy/
[ii] http://www.ilga.gov/legislation/BillStatus.asp?DocNum=2513&GAID=10&DocTypeID=SB&LegId=49124&SessionID=76&GA=96#actions
[iii] http://www.ilga.gov/senate/senator.asp?GA=96&MemberID=1438
[iv] http://www.ilga.gov/house/rep.asp?GA=96&MemberID=1544
[v] http://www.suntimes.com/news/politics/2098412,CST-NWS-sexting12web.article
Filed under: Criminal by Terry Dodds
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Supreme Court of Illinois Weighs in on Bars with BYOB Policies and Discusses Common Law Theories of Liability Outside the Scope of Illinois Dramshop Act
Did you know that pursuant to the Illinois Dramshop Act that each bar, liquor store, or liquor establishment who contributed to the intoxication of someone who later causes personal injury to another might be liable to reimburse the injured party or their loved ones for losses they may have incurred? Probably not, and a majority of people do not. This is certainly something you should know if you have been involved in an accident or have been injured by someone who was intoxicated at the time of the accident or injury; it is certainly something your attorney should know and immediately investigate the possibility of if there has been such a travesty, because recovery pursuant to the Act is only allowed for one year; in other words, a one year statute of limitations.
Due to the Illinois Legislature’s enactment of the Dramshop Act, the general rule is that an injured person cannot bring suit under common law theories of liability, including negligence, against individuals or entities who merely furnish alcohol to another person when that person or entity is not engaged in the liquor trade. This is also known as “social host” liability exclusion, which is not allowed. Remedy against those who are engaged in the liquor trade and profit from its sale are generally limited only to the remedies provided in the Dramshop Act, which sets statutory thresholds of recovery.
Why is the bar that served the drunk (Alleged Intoxicated Person or AIP in legal terminology) liable you may ask? According to judicial precedence, the purpose of “the Dram Shop Act is designed to fulfill a need for discipline of traffic in liquor and to provide a remedy for evils and dangers which flow from such traffic”, and “to place the burden of the evils of the liquor traffic on those who profit therefrom”. Wendt v. Richter, 17 Ill.App.3d 230, 307 N.E.2d 756 (Ill. App. Ct. 1st Dist. 1974); Tresch v. Nielson, 57 Ill.App.2d 469, 207 N.E.2d 109 (Ill. App. Ct. 1st Dist. 1965).
On March 18, 2010, the Illinois Supreme Court ruled in the case of Ryan Simmons v. John D. Homatas, On Stage Productions Inc., d/b/a “Diamonds Gentlemen’s Club, et al. This was a unique case in which the Court allowed the estates of the decedents to recover under common law theories of negligence, a very uncommon occurrence, which is why I have chosen to blog about it. One unique aspect about the case is that Diamonds is located in Du Page County, Illinois, which apparently prohibits clubs featuring nude dancing from receiving a liquor license. However, according to the Court’s opinion, Diamonds does sell “glasses, ice, soft drinks and other mixers for making alcoholic drinks”.
Due to the fact that Diamonds could not obtain a liquor license the club allowed patrons to bring their own alcohol (BYOB). The plaintiffs, who were the special administrators of the estates of the decedents fatally injured in an automobile collision alleged that the club “encouraged a patron to consume alcoholic beverages until he became intoxicated and then required him to drive off the premises, which resulted in the collision that killed plaintiffs’ decedents”.
According to the Court’s opinion, defendant John Homatas arrived at the club on January 4, 2006, at approximately 9 p.m. and left his vehicle with the club’s valet service, as the club required. Hamatas and his friend John Chiariello brought with them a fifth of rum and a fifth of vodka. They mixed their alcohol with the glasses, ice, and mixers purchased from the club. Homatas apparently drank so much that he was found by one of the Diamonds’ employees vomiting in the restroom at around 11 p.m. As a result, the club ejected Homatas and Chiariello. Employees then instructed the valet service to start Homatas’s car and bring it to the front door so that he and Chiariello would leave. They then opened the driver-side front door and directed Homatas to leave the premises.
Minutes later, Homatas collided with a vehicle driven by April Simmons. Unfortunately several people died, including Ms. Simmons, her unborn daughter, and Mr. Chiariello; Homatas survived, and cases were filed as a result of the deaths of Simmons, her unborn child, and Chiariello.
The legal theories alleged in the Complaints were common law theories of negligence and liability under the Dramshop Act. On Stage (Diamonds) apparently filed a Motion to Dismiss “asserting that both plaintiffs’ complaints fail to state a cause of action upon which relief can be granted. First, On Stage argued that the Dramshop Act is the sole remedy for actions involving liability from alcohol-related injuries, thereby precluding plaintiffs’ common law claims. Second, On Stage argued that because the Dramshop Act applies only to businesses engaged in the sale or gift of alcohol, the Dramshop Act does not extend liability to On Stage as a result of its policy of not selling or serving alcohol to its patrons.”
The issue the Illinois Supreme Court was asked to rule on was whether or not the affirmative acts of Diamonds, by way of its employees, could be found liable under common law theories of negligence, despite the Dramshop Act’s preemption of alcohol-related liability. According to the Court’s opinion, these acts included:
- Diamonds’ valet service taking control of Homatas’ vehicle upon his entering defendant’s place of business;
- Having a business plan that encouraged its invitee Homatas to bring and consume alcoholic beverages to and beyond the point of intoxication upon its premises;
- removing its invitee Homatas from its premises due to his intoxication;
- ordering and assisting its invitee Homatas into the driver’s seat of his vehicle;
- ordering its invitee Chiariello off the premises and into the intoxicated Homatas’ vehicle;
- allowing its intoxicated invitee Homatas to drive the vehicle away from the premises and onto the public highway;
- knowledge that its business invitee Chiariello was a passenger in said vehicle and the driver invitee Homatas had a level of intoxication which was obvious enough that a reasonable person would have determined that he was unable to operate a motor vehicle.
In its ruling, the Supreme Court of Illinois distinguished this case from other cases cited by On Stage, including Charles v. Seigfried, 165 Ill.2d 482 (1995), and Cruse v. Aden, 127 Ill. 231, 249 (1889), cases involving issues of “social hosts”, in that those cases primarily focused on the liability of those persons providing alcohol to a patron or guest who ultimately caused injuries to a third party. This case was different in the eyes of the court in that liability arose not as a result of the provision of alcohol, but as a result of the encouragement of, or assistance in, tortious conduct, including the aforementioned activities. Prior decisions by the Court, and other cases cited by defendants did not address whether actions of the defendants, aside from the provision of alcohol, led to third party injuries. The Court cited Wakulich v. Mraz, 203 Ill.2d 223 (2003) and Lessner v. Hurtt, 55 Ill.App.3d 195, 197, and Harris v. Gower, Inc., 153 Ill.App.3d 1035, 1037 (1987) in support of this distinction. The Court also distinguished its ruling from prior precedence in Wienke v. Champaign County Grain Ass’n, 113 Ill.App.3d 1005 (1983), and Gustafson v. Mathews, 109 Ill.App.3d 884 (1982), cases which held that a defendant should not bear the burden of having to ascertain the level of intoxication of an individual, in that in this case, it believed On Stage knew that Homatas was dangerously intoxicated when club employees discovered him vomiting in the restroom. The affirmative act of Diamonds’ employees in assisting Homatas leave the establishment in the manner it did appeared to seal the deal in the mind of the Court, because the Court wrote in its opinion that, “Indeed, had Homatas left on his own, and On Stage was alleged to have merely failed to prevent him from leaving the club and driving away intoxicated, sections 314 and 314A of the Restatement may have applied.” In light of the affirmative acts of On Stage, Section 876 became applicable and imposes liability.
The careful words chosen by the Illinois Supreme Court in this case and the facts accompanying it appear to limit its applicability for such future causes of actions. It appeared the case was very fact specific. In fact, at the conclusion of the Court’s opinion, the Court wrote: “this case presents a set of special circumstances. We do not hold today that restaurants, parking lot attendants or social hosts are required to monitor their patrons and guests to determine whether they are intoxicated.”
While the court in this case found the Illinois Dramshop Act inapplicable in this case, it does discuss liability relating to the consumption of alcohol, and the history and public policy concerns implicated by the Dramshop Act.
At the Dodds Law Office, we have successfully prosecuted cases involving dramshop liability, as well as, cases involving a defendant’s duty to protect someone from criminal acts of a third party causing injury. A lawyer should be consulted in such cases that has experience in handling such matters, because the legal theories are complex, very litigious, and must be prosecuted by someone willing to invest the time required to bring the case to resolution.
Filed under: Personal Injury by Terry Dodds
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In the recent Third District Appellate Court of Illinois decision of People v. Roa, the third district again addressed an issue that seems to surface more regularly than one would think in criminal cases: that issue being how long of a detention is too long by officers when making a routine traffic stop. Obviously, the only reason these cases become controversial and of any constitutional significance is because the search leads to the detection of contraband, ordinarily drugs or weapons. The reason I have chosen this case for the subject of one of my blogs is because of a recent case handled by my office wherein we filed a Motion to Suppress believing that a detention of one of our clients lasting for more than 20 minutes was an unreasonable search and seizure in violation of both the U.S. and Illinois Constitutions.
The facts in Roa do not appear to be as supportive of a motion to suppress as some other cases recently argued before reviewing courts asked to decide such issues, nor the case recently handled by my office, but it does touch upon issues in controversy in such cases.
In Roa, Andres Roa was stopped by an Illinois State Trooper for speeding 71 miles per hour in a 65 mph speed zone; obviously making it a valid stop. The State Trooper making the stop in this particular case was also a certified drug interdiction instructor and the drug interdiction coordinator for his district.
After the trooper stopped Roa’s vehicle and approached, he advised Roa that he was merely going to issue him a written warning and asked Roa for his license and registration. After advising Roa that he was going to issue the warning, the trooper, Sergeant Floyd Blanks, struck up a conversation with Roa, including asking him where he was traveling from and to. Sergeant Blanks testified that Roa exhibited more physical stress than most people, appeared unusually nervous, and “out of sorts”, avoiding eye contact when being questioned by the trooper.
As is ordinarily the case, at some point, Sergeant Blanks asked for consent to search Roa’s vehicle, which Roa agreed to.
One of the things that raised the level of suspicion of Sergeant Blanks and Trooper Thulen, who later arrived on the scene to assist, was that after Roa had consented to the search, Roa had claimed that he was an antiques dealer and was transporting antiques in the trunk. Despite this, no antiques were discovered by the troopers in the trunk. It also appeared to the officers that the air bag area had been tampered with or modified in some way.
The search by Sergeant Blanks and Trooper Thulen lasted 20 minutes, which included a fiberoptic scope. Surprise, surprise, during the course of their search, they located a total of 24.2 pounds of cocaine, packaged in 11 separate packages.
Roa’s defense counsel filed a motion to suppress the cocaine, alleging that the police had expanded the scope of the traffic stop into a drug investigation without enough probable cause to do so. Obviously the problem with such an argument in this particular case is that Roa appears to have consented to the search ultimately leading to the discovery of the drugs within a relatively short period of time after having been stopped.
Relying on the Supreme Court of the United State’s recent decision of Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, which the Illinois Supreme Court held overruled portions of People v. Gonzalez, 204 Ill.2d 220 (2003), and the Illinois Supreme Court case of People v. Cosby, 231 Ill.2d 262 (2008), the third district ruled the alteration of the nature of the stop argument no longer valid when determining whether or not a lawful stop has converted to a constitutionally impermissible one. According to the Roa court, the duration of the stop prong previously employed by the courts in their previous decisions is now the only basis for challenging the constitutionality of such stops. The third district also held that based on its readings of Mendenhall and Cosby that the holding in People v. Brownlee, 186 Ill.2d 501 (1999), that an officer is always free to request permission to search, is still good law.
To determine when someone has been impermissibly detained, the Roa court held that the reviewing court should look to the Mendenhall factors including (1) whether there was a threatening presence by several officers; (2) whether the officer displayed a weapon; (3) whether there was some physical touching by the officer; and (4) whether the language or tone of voice used by the officer indicated that compliance with the officer’s request was compelled. Roa (citing Mendenhall, 446 U.S. at 544, 64 L. Ed. 2d at 509.
But hold on just a moment? Surely the third district wasn’t saying that these four factors alone from the Mendenhall decision are the sole exclusive factors the trial courts should look at when determining whether or not the detention of a motorist has become an unreasonable seizure for constitutional purposes. As Justice McDade, dissenting in the case, suggested, Cosby itself states that “It is true that the Mendenhall factors are not exhaustive.” Cosby, 231 Ill.2d at 281, 898 N.E.2d at 615. (emphasis added).
Obviously dissents don’t carry the day, but nevertheless, this is merely one district’s analysis of prolonged detentions, and I believe a poor one at that. Can we really pigeonhole each detention to decide whether a prolonged stop becomes an unlawful detention for constitutional purposes merely by looking at the Mendenhall factors? Is it even possible?
As previously stated, our office filed a Motion to Suppress based on a stop that lasted more than 20 minutes in duration, after the officer advised our client that she was merely giving him a warning. It is a case we likely will appeal, and which I believe, has far better facts than those in Roa. However, with the courts routinely chipping more and more of our constitutional rights away, do we really have a shot at winning? We’ll see.
As an Illinois Criminal Defense Attorney, handling misdemeanors, felonies, DUI’s, and traffic cases in Mclean and surrounding counties, I cannot stress enough the importance of hiring an attorney knowledgeable of such issues if you are looking to hire someone to represent you or a loved one. Obviously, there is so much at stake, including each of our constitutional rights.
Filed under: Criminal by Terry Dodds
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