Month: January 2016

The Levee District Logo

MHT Assists City Redevelop a Vibrant New Downtown

Led by Dennis R. Triggs, a team of attorneys that included Michael J. Tibbs, Scott A. Brunton, Mark D. Walton, Christopher D. Oswald, and Joshua D. Herman of Miller, Hall & Triggs, LLC, Peoria Illinois, represented the City of East Peoria and assisted the City with redeveloping an 86-acre brownfield and former manufacturing site into a vibrant new downtown area, which has been designated as “The Levee District” of East Peoria. Miller, Hall & Triggs assisted the City with nearly every aspect of this new downtown project, including the acquisition of property, public financing through bond issues and related financing, establishing a Tax Increment Financing District encompassing the project area, establishing Business Service Districts within the project area for servicing the public debt obligations related to the infrastructure improvements, overseeing the bid letting and contracting stages of numerous infrastructure projects that totaled approximately $36 million, negotiating and completing numerous property acquisitions, and negotiating several development agreements with private developers, and an intergovernmental agreement with other local governmental units for the redevelopment of the project area.

While this project is ongoing, The Levee District formally opened for business in the Spring of 2013. Public investment in this project has exceeded $80 million, and private investment has exceeded $100 million. This project has brought Costco and Target to the retail portions of the project area, along with numerous additional restaurants, retailers, and businesses. Further, Morton Community Bank has constructed an impressive downtown banking center and office building, which is located near a new Holiday Inn & Suites. The project area also includes a state-of-the-art public library as a part of a new civic complex and outdoor plaza site, and an open concept allowing for easy pedestrian connection along with biking trails.

Besides working with the East Peoria City officials and staff, the Miller, Hall & Triggs team has worked with the State of Illinois, the U.S. Army Corps of Engineers, the Illinois Department of Transportation, the Illinois Department of Nature Resources, the Illinois Department of Revenue, the Fondulac Library District, the East Peoria Sanitary District, the East Peoria Levee and Draining District, private developers, and public and private lenders in the course of working on this broad and complex project.

New Laws for Law Enforcement Agencies in 2016

Officer-Involved Deaths, Body Cameras, Terry Stops, Towing of Vehicles, and More

By Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

On January 1, 2016 several new laws regulating law enforcement agencies and their activities went into effect.  A brief summary of each law is provided below.

Public Act 99-352

Law Enforcement Officer-Worn Body Camera ActThe Act provides that any agency that elects to use body cameras must adopt a written policy relating to their use, provide training to those officers that use the cameras, and provide an annual report to the Illinois Law Enforcement Training Standards Board (the “Board”).  Note that the Act only applies to law enforcement agencies that elect to use body cameras; it does not require agencies to use body cameras.

The annual report required by the Act must be submitted to the Board on or before May 1st of each year, and include (1) a brief overview of the agency’s composition; (2) the number of officers using body cameras; (3) the number of body cameras being used; (4) any technical issues with equipment and how they are fixed; (5) a brief description of the review process used by supervisors; and (6) the time, date, precinct, offense charged, date charges filed, and any other relevant information for each recording that is used in the prosecution of an offense.

The Act also provides that the body camera recordings are generally exempt from disclosure under FOIA.  However, such recordings must be disclosed in accordance with FOIA in any of the following situations: (1) the subject is a victim or witness and the agency obtains written permission from the subject or his legal representative; (2) the recording is flagged due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm; or (3) the subject of the recording, his attorney or his legal representative requests it.

Additionally, the Law Enforcement Camera Grant Act (50 ILCS 707/5) provides financial assistance to municipalities for the purpose of purchasing body cameras.

Terry StopsSection 11-212 of the Illinois Vehicle Code has been amended to include that officers complete a “uniform pedestrian stop card” (“Stop Card”) for a pedestrian that is frisked, searched, or arrested.  A Stop Card must include the date; time; location; gender of the pedestrian; alleged reasons for the stop; whether a frisk was conducted; reasons for the frisk; whether the frisk was by consent or other means; whether contraband was found during the frisk; type and amount of contraband seized; whether a search was conducted; reasons for the search; whether the search was by consent or other means; whether the stop resulted in a warning, ticket or arrest; and the name and badge number of the officer.

The forms currently used by a majority of law enforcement agencies do not contain all of the required information.  Therefore, it is recommended that an agency prepare or obtain new forms or modify existing forms to comply with the law.

Additionally, Section 107-14 of the Illinois Code of Criminal Procedure was amended to include a requirement for officers to issue a “stop receipt” when a person is stopped in a public place, the officer reasonably believes the person is committing, about to commit, or has committed a crime (excluding traffic offenses and ordinance violations), and the officer conducts a frisk or search.  The stop receipt must contain the officer’s name, badge number, and reason for the stop.  However, the officer is not required to issue a stop receipt if it is impractical, impossible or exigent circumstances exist.

The key difference between a “stop card” and “stop receipt” is the nature of the violation.  A stop card is issued to pedestrians that are stopped based upon a violation of the Illinois Vehicle Code, while a stop receipt is issued to any individual that is temporarily stopped for questioning in relation to criminal activity and not subject to arrest.

Police and Community Relations Improvement ActThe Act requires all law enforcement agencies to have a written policy regarding the investigation of officer-involved deaths.  An officer-involved death is the death of any individual caused by an act or intentional omission of a law enforcement officer while acting within the scope of his employment.

The policy must provide that the investigation shall be conducted by at least 2 investigators who are not employed by the agency involved in the death, and the lead investigator must be certified by the Illinois Law Enforcement Training Standards Board (the “Board”) as a Lead Homicide Investigator.  If the death involves a motor vehicle accident, the policy must provide that at least one investigator shall be certified by the Board as a Crash Reconstruction Specialist.  Finally, the policy must require the investigators to provide a report to the State’s Attorney or to publicly release it if the State’s Attorney declines to prosecute.

The Act permits an agency to conduct an internal investigation into an officer-involved death as long as it does not interfere with the outside investigation required by the Act.

Uniform Crime Reporting ActThe Act requires all law enforcement agencies to submit the following information to the Illinois State Police (ISP) on a monthly basis: a report for any arrest-related death (not including death of an officer), discharge of a firearm by an officer causing a non-fatal injury (beginning January 1, 2017), a report on hate crimes, a report on any alleged commission of a domestic crime, data on specific offenses selected by ISP, and data on offenses and incidents reported by schools.

In addition to the monthly reports, beginning July 1, 2016, all agencies must submit information regarding a criminal homicide as required by ISP rules and regulations on a quarterly basis.

Officer Professional Conduct Database:  The Illinois Police Training Act was amended to now require that all law enforcement agencies notify the Illinois Law Enforcement Training Standards Board (the “Board”) when there has been a final determination of a willful violation of agency policy, official misconduct, or violation of law if an officer is discharged as a result of the violation or resigns during the course of an investigation.  The agency must notify the Board of the nature of the violation within 30 days of the final determination.

Use of ForceThe Illinois Criminal Code was amended to prohibit peace officers from using chokeholds in the performance of their duties, unless deadly force is justified under the Criminal Code.  A chokehold is defined as “applying any direct pressure to the throat, windpipe, or airway of another with the intent to reduce or prevent the intake of air.”

Public Act 99-438

Tow Rotation ListThe Act amends the Illinois Vehicle Code by requiring any law enforcement agency whose duties include the patrol of highways to maintain a tow rotation list.  The list must be used by officers when authorizing any vehicle tow within its jurisdiction.  The agency is allowed to maintain multiple lists covering different geographic locations within its jurisdiction; a towing service may be included on more than one list.

Any towing service may apply for inclusion on the rotation list by submitting an application in the form and manner provided by the law enforcement agency.  In order to be included on the rotation list, a towing service must meet the requirements set forth in the Act (see 625 ILCS 5/4-203.5).  An agency may select which towing service(s) meeting these requirements will be included on the rotation list.  Complaints regarding inclusion on the list should be referred in writing to the head of the agency; however, an agency cannot be held liable for excluding a service from the list.

When an officer initiates a vehicle tow, he must inform his agency that a tow has been authorized.  The agency must then select a towing service from the list and contact the service directly.  Towing services must be contacted in the order listed; however, in the event a service is unavailable, the next service on the list should be contacted.  An agency may also deviate from the order listed in the event of an emergency, or if the officer or agency determines the service is not properly equipped to handle the tow.  Whenever a towing service that has not been requested arrives on scene, the officer is obligated to tell that service to leave.

 

Municipal Tow Fees

Recent Guidance from Illinois Courts May Limit the Amount that May be Collected

By Katherine Swise

katherine.swise@mhtlaw.com

The Illinois Vehicle Code authorizes municipalities to impose an administrative fee for the processing and release of lawfully impounded vehicles.  However, a recent Illinois appellate court decision has brought into question the amount of such fees that can lawfully be imposed.  As a result, municipalities should review any existing ordinance imposing such a fee to ensure that the fees can be justified under the Vehicle Code and in accordance with recent guidance from the courts.

The Vehicle Code authorizes all municipalities to pass an ordinance providing “procedures for the release of properly impounded vehicles and for the imposition of a reasonable administrative fee related to its administrative and processing costs associated with the investigation, arrest, and detention of an offender or the removal, impoundment, storage, and release of the vehicle.”  625 ILCS 5/11-208.7(a) (emphasis added).  This fee may be imposed for vehicles that have been lawfully impounded for those specific violations listed in the statute, and is imposed against the registered owner of the vehicle or such owner’s agent.  The Vehicle Code does not set a maximum fee that may be imposed by a municipality for the release of impounded vehicles; it merely provides that the fee be “reasonable” and “related to” the municipality’s administrative costs associated with the tow and impound.  However, in the case of Carter v. City of Alton, decided in May of 2015 (Carter v. City of Alton, 2015 IL App (5th) 130544), the Illinois Appellate Court set forth  guidelines for determining whether a fee imposed by a municipality is reasonable.

In Carter, the court addressed whether the dismissal of challenges to the administrative tow fee of four separate municipalities was proper, based on the amount of the fee charged.  The court first noted that fees imposed by a municipality must be rationally related to their stated purpose, which means that the amount charged must bear “some reasonable relationship to the actual costs it is intended to recoup.”  While the fee need not represent the municipality’s precise costs, it must “at least relate” to the actual costs incurred in association with the impound.  The court also noted that many of the costs the cities were using to justify their tow fees were costs that would be associated with any arrest, even though they were only charged in arrests involving vehicles.  The court found this practice to be improper, and stated that, if a fee was to be charged because of the involvement of a vehicle in the crime, then it was inappropriate to consider costs that were not unique to those vehicle offenses for which a fee may be imposed.

It is important to note that the Carter court did not render an opinion as to whether the fees charged by the cities involved in that case were reasonable and related to the cities’ actual administrative costs.  The court only addressed whether it was proper for the trial court to grant the cities’ motion to dismiss the challenges to their respective ordinances without first making a factual determination as to whether the fees charged were reasonably related to the cities’ costs.  The court ultimately held that such dismissal was improper.

Based on the court’s decision in Carter, municipalities should review any ordinance imposing an administrative fee for towing and impounding of vehicles in order to ensure that the fee imposed is representative of the municipality’s actual costs related to administration and processing of such vehicles.  A municipality should be prepared to demonstrate that the fee imposed bears a reasonable relationship to these costs.  Pursuant to the statute, a municipality can consider the costs associated with the investigation, arrest, and detention of an individual, as well as the removal, impoundment, storage, and release of the vehicle.  However, the court’s guidance in Carter suggests that only those costs unique to vehicle offenses should be considered when calculating the actual administrative cost to the municipality in processing these offenses.   Municipalities with questions about the validity of their administrative tow fees or the costs that can be recouped following a tow and impound in light of the Carter decision should consult with their municipal attorneys.