The Statewide Use of Force Standardization Act, Public Act 101-0652, (the “Act”) became law on February 22, 2021. This 764 page Criminal Justice Reform Omnibus Act will have an incredible effect upon law enforcement procedures, as well as criminal justice itself. Since it is so expansive, we have decided to highlight the most impactful provisions in this article.
I. PROVISIONS DIRECTLY AFFECTING THE LAW ENFORCEMENT OFFICER.
Qualified Immunity: The Act does not alter qualified immunity for peace officers, as was anticipated. However, it does establish a Task Force on Constitutional Rights and Remedies to “develop and propose policies and procedures to review and reform constitutional rights and remedies, including immunity for peace officers.” This opens the door for future statutory changes regarding such immunity (Art. 4). In fact, if qualified immunity is significantly modified in the future, it will impact only police officers but not judges, prosecutors, legislators and some other government officials, who benefit from similar immunity and lead to significantly increased litigation costs for municipalities. The results are yet to be seen. (Effective July 1, 2021)
Affidavit for Complaint/Anonymous Complaints: A significant change under the Act is the elimination of the affidavit requirement previously required for a person to file a complaint against a police officer (20 ILCS 2610/14, 50 ILS 725/3.8), effective July 1, 2021. Such affidavits were first required in 2004 for local government officers, Public Act 93-592, and in 2006 for State Police officers, Public Act 94-217. They were intended to deter false and frivolous complaints, allowing prosecution for false statements. As a result, there is the likelihood that such complaints will grow significantly.
The Police and Community Relations Improvement Act is also amended to permit anonymous complaints to the Illinois Law Enforcement Training Standards Board (the “Training Board”) regarding “conduct the person believes a law enforcement officer has committed as described in subsection (b) of Section 6.3 of the Illinois Police Training Act,” 50 ILCS 727/1-35, effective January 1, 2023. Such conduct under the new Section 6.3, which is effective January 1, 2022, includes the commission of certain felonies and misdemeanors, the failure to intervene, tampering with a dash or body-worn camera, perjury, making a false statement or knowingly tampering or fabricating evidence, and engaging in “any unprofessional, unethical, deceptive, or deleterious conduct or practice harmful to the public.” 50 ILCS 705/6.3(b). A governmental agency, including, among others, its legal counsel, are required to notify the Board within 7 days of becoming aware of such a violation. The Board and the governmental agency are required to conduct a review of the allegations, 705/6.3(e), (f), with certain exceptions. In addition, governmental agencies are required to adopt a written policy for such investigations.
Civil Suit Enforcement by Attorney General: The Attorney General Act now includes the following offense:
No governmental authority, or agent of a governmental authority, or person acting on behalf of a governmental authority, shall engage in a pattern or practice of conduct by officers that deprives any person of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States or by the Constitution or laws of Illinois. 15 ILCS 205(b). (Effective July 1, 2021)
As a result, the Attorney General is authorized to conduct a preliminary investigation and file a civil action, seeking equitable and declaratory relief, including civil penalties of $25,000 per violation, or not to exceed $50,000 if the defendant is adjudged to have committed one of the civil rights violations under this Section within 5 years. Significantly, these penalties can be imposed upon a police officer, not just his/her agency. In fact, this Section also applies broadly to “governmental authority” and “officers” as broadly defined and the “pattern or practice of conduct” offense is extremely broad to permit enforcement over a wide variety of conduct.
Body Cameras: Effective July 1, 2021, the Act requires law enforcement agencies to implement body cameras, as follows:
- Municipalities with populations of 500,000 or more — January 1, 2022;
- Municipalities with populations of 100,000 or more but under 500,000 —Jan. 1, 2023;
- Municipalities with populations of 50,000 or more but under 100,000 — January 1, 2024;
- Municipalities under 50,000 — January 1, 2025 (50 ILCS 706/10-15(b).
While grant funding is addressed, no State funding is required. In addition, the Act prohibits (or at least does not permit) the recording officer from accessing and reviewing recordings prior to completing incident reports, 50 ILCS 706/10-20(a)(6A), 6(B) despite the fact, as noted below, that a Class 3 felony has been created for Law Enforcement Misconduct, which includes “knowingly and intentionally… (1) misrepresent(ing) or fail(ing) to provide facts describing an incident in any report…” 720 ILCS 5/33-9(a)(1).
Law Enforcement Misconduct: Effective July 1, 2021, a class 3 felony offense has been created for an officer or person acting on his/her behalf, acting in the line of duty, to knowingly and intentionally:
1) misrepresent or fail to provide facts describing an incident in a report or during an investigation;
2) withhold knowledge of the misrepresentation of another officer, or
3) fail to comply with state law or department policy requiring the use of officer-worn body cameras. 720 ILCS 5/33-9.
Investigation of officers: Effective July 1, 2021, the Uniform Peace Officers’ Disciplinary Act is amended, such that an officer is no longer required to be informed of the names of complainants prior to interrogation, 50 ILCS 725/3.2, or of the name, rank and unit or command of the officer in charge of the investigation. /3.4.
Use of Force: Effective July 1, 2021, an officer’s use of force will be based upon “the totality of the circumstances, 20 ILCS 5/7-5, which is defined to mean “all facts known to the peace officer at the time, or that would be known to a reasonable officer in the same situation, including the conduct of the officer and the subject leading up to the use of deadly force.” 5/7-5(h)(3).
Force likely to cause death or great bodily harm requires, based upon the totality of the circumstances, that:
- it is necessary to prevent death or great bodily harm to the officer or other person; or
- a reasonable belief that it is necessary to prevent the arrest from being defeated by resistance or escape, and the officer reasonably believes that the person to be arrested cannot be apprehended at a later date, and the officer reasonably believes that the person to be arrested is likely to cause great bodily harm to another. 5/7-5(a).
Note: the inability to apprehend a person at a later date appears to significantly limit the ability to use such force.
Deadly force is not permitted based upon danger that the person poses to him/herself if a reasonable officer would believe that the person does not pose an imminent threat of death or serious bodily harm to the officer or another. 5/7-5(a-10). “Imminent threat” is “not merely a fear of future harm, but “the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury” to the officer or another. 5/7-5(h)(2).
Restraints: In addition to the prior prohibition of chokeholds, “restraining above the shoulders with risk of asphyxiation” is also prohibited unless deadly force is justified. (5/7-5.5) Such restraints include “a technique used to restrain a person above the shoulders, including the neck or head, in a position which interferes with the person’s ability to breathe after the person no longer poses a threat to the officer or any other person.” (5/7-5.5(d).
Force prohibitions: An officer, or person acting on his/her behalf, may not:
(i) use force as punishment or retaliation;
(ii) discharge kinetic impact projectiles and all other non- or less-lethal projectiles in a manner that targets the head, pelvis, or back;
(iii) discharge firearms or kinetic impact projectiles indiscriminately into crowds, or
(iv) use chemical agents or irritants, including pepper spray and tear gas, prior to issuing an order to disperse in a sufficient manner to ensure the order is heard and repeated if necessary, followed by sufficient time and space to allow compliance with the order. (5/7-5.5(e))
Escape: Use of force to prevent escape is limited to non-deadly force, 720 ILCS 5/7-9(a), unless, based upon the totality of the circumstances, deadly force is necessary to prevent death or great bodily harm to himself (the officer?) or such other person.” (5/7-9(c))
Aid: An officer has a duty, “as soon as reasonably practical”, to determine if a person is injured, to render medical aid, and to request emergency medical assistance. (5/7-15)
Intervention: An officer has an affirmative duty to intervene to prevent or stop another officer from using unauthorized force or excessive force without regard for the chain of command. (5/7-16). The intervening officer has certain requirements in such event and cannot be disciplined or retaliated for intervening. (5/7-16)
II. PROVISIONS APPLICABLE TO PERSONS:
Right to phone calls upon arrest: Effective July 1, 2021, persons in police custody have a right to communicate – free of charge – with an attorney and members of their family as soon as possible upon being taken into police custody, but no later than 3 hours after arrival. They must be given access to a telephone with a land line or cellular phone to make 3 phone calls and have the ability to retrieve phone numbers on their cell phone’s contact list. Specific signage is required at the place of custody. 725 ILCS 5/103-3(a-5).
Medical treatment while in custody: Effective July 1, 2021, in addition to being treated humanely and provided with food and shelter, a person in custody must be provided with medical treatment “without unreasonable delay if the need for the treatment is apparent.” 725 ILCS 5/103-2(c)
Monetary bail is abolished: Effective January 1, 2023, monetary bail is abolished, except under the Uniform Criminal Extradition Act, the Drivers License Compact, and the Nonresident Violator Compact. “It is presumed that a defendant is entitled to release on personal recognizance” on condition of attending required court proceedings, not committing any criminal offenses and complying with terms of pretrial release. 725 ILCS 5/110-2.
Resisting or obstruction charge: Effective January 1, 2023, a person is not subject to arrest for resisting or obstructing a police officer unless there is an underlying offense for which the person was initially subject to arrest. 720 ILCS 5/31-1(d).
Citation to be issued/no arrest: Effective January 1, 2023, a citation must be issued in lieu of a custodial arrest, “upon proper identification”, for traffic and Class B/C criminal misdemeanor offenses, and petty and business offenses. Such action applies to those who “pose no obvious threat to the community or any person or who have no obvious medical or mental health issues that pose a risk to their own safety. “725 ILCS 5/109-1(a-1). A citation or summons shall be issued for appearance within 21 days. 5/109(a-1), (a-3). Upon arrest with or without a warrant for an offense for which pretrial release may not be denied, the officer may issue a summons and release the person without appearing before a judge. “A presumption in favor of pretrial release shall be applied by an arresting officer in the exercise of his or her discretion,” 5/109-1(a-3), though the Court may deny pretrial release for certain offenses upon a verified petition by the State. 725 ILCS 5/110-6.1(a)(1-6).
While this summary addresses only a portion of the requirements of the Act, it provides an overview of some of the more significant provisions affecting law enforcement activities and the rights of persons. Law enforcement leaders and their legal counsel need to thoroughly review the requirements of the entire Act to ensure that their respective officers are prepared and properly trained to comply.