According to prevailing State and Federal case law, the Illinois Tort Immunity Act immunizes police officers against liability for a variety of tort offenses. Upper level courts have painted with too broad a brush in construing the Act, allowing defendant-officers to assert immunity as an affirmative defense to intentional torts. In practice the effect is both confusing and burdensome to plaintiffs and juries. In many intentional tort cases the misconstruction requires the unauthorized revision of jury instructions and an unjustified heightening of the mental state to be proved by plaintiffs.
While there are many variations, the prevailing approach of upper-level courts has been to divine a duty for officers to not act recklessly out of the affirmative defense provided by the Act and require plaintiffs to prove the heightened “willful and wanton” mental state in addition to the traditional elements of an intentional tort. These constructions ignore existing Illinois statutes providing for officer liability in the case of intentional tort-like offenses and misinterpret the purpose of the Act. Upper-level State and Federal courts must address this issue and re-confine the scope of the Act to its original purpose, which was to only immunize officers against liability for ordinary negligence.
- Sovereign Immunity,
- Tort Immunity,
- Illinois Tort Immmunity Act