Category: Kateah McMasters

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New Law Decriminalizing Marijuana and Drug Paraphernalia

Ordinances Enacted by Units of Local Government Not Affected by New Law Decriminalizing Marijuana and Drug Paraphernalia.

By:  Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

Effective July 29, 2016, the possession of certain small amounts of cannabis and drug paraphernalia are no longer criminal offenses.  The bill that was signed into law by Governor Bruce Rauner on July 29, 2016 decriminalizes the possession of small amounts of cannabis and drug paraphernalia by amending the portions of the Illinois Criminal Code pertaining to possession of cannabis and possession of drug paraphernalia.  Under the amended Cannabis Control Act (720 ILCS 550/1 et seq.), a person in possession of less than 10 grams of any substance containing cannabis is guilty of a civil law violation.  Such civil violation is punishable by a minimum fine of $100 and a maximum fine of $200.  Similarly, under the amended Drug Paraphernalia Control Act (720 ILCS 600/1 et seq.), any person who is also in possession of drug paraphernalia [during the civil cannabis violation] is guilty of a civil violation and subject to the same $100 minimum fine and $200 maximum fine.

The proceeds of the fines for these civil violations are distributed as follows:

  1. $10.00 to the Circuit Clerk;
  2. $10.00 to the law enforcement agency that issued the violation;
  3. $15.00 to the County;
  4. $10.00 to the Appellate Prosecutor;
  5. $10.00 to the State’s Attorney; and
  6. The remainder to the law enforcement agency that issued the citation ($45 to $145).

The Cannabis Control Act was also amended by adding a new section which addresses the impact of the changes upon local ordinances.  Section 17.5 of the Act explicitly states: “The provisions of any ordinance enacted by any municipality or unit of local government which impose fines upon cannabis other than as defined in this Act are not invalidated or affected by this Act.”

Therefore, municipalities and park districts are not required to change their ordinances in order to comply with the new law.  Municipalities and park districts may still issue ordinance citations for possession of less than 10 grams of cannabis and possession of drug paraphernalia, as well as impose fines for such possession in excess of $200.  However, because the law is already in effect, municipal and park district police departments should immediately review department policies and procedures with regard to processing violations for possession of cannabis and drug paraphernalia as either ordinance violations, civil violations, misdemeanors, and/or felonies.

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.

 

Crucial Rule for Processing Traffic Tickets

Court dismisses ticket because it was not transmitted to circuit clerk within 48-hour deadline

By Kateah M. McMasters

Supreme Court Rule 552 requires municipal police officers and police departments to transmit traffic citations to the circuit clerk within 48 hours of issuance.

In 1989, the Illinois Appellate Court held that this Rule is directory rather than mandatory, and that the dismissal of a traffic citation for a violation of this Rule is only appropriate where the procedure used by an officer or police department was part of a pattern that clearly and consistently violated the Rule.  However, the Court did not define what constitutes such a pattern.

Through its recent decision in People v. Geiler, the Illinois Appellate Court shed further light on this issue when it upheld a dismissal of a traffic citation based upon a police department’s practice of delivering citations to the circuit clerk on Mondays and Fridays.

People v. Geiler

People v. Geiler arises from a speeding ticket issued to Christopher Geiler on Monday, May 5, 2014, by a City of Troy police officer.  Troy police department usually hand-delivered tickets issued over the weekend on Monday and delivered citations issued during the week on Friday. Thus, Geiler’s Monday ticket was not filed with the Madison County circuit clerk until Friday, May 9, 2014 (four days later).

The Geiler Court found that, under this procedure, citations issued on Mondays, Tuesdays and Fridays were consistently transported to the circuit clerk beyond the 48-hour deadline.  Thus, the Court upheld the dismissal of Mr. Geiler’s citation because the delay he suffered was a clear and consistent violation of Rule 552.  Moreover, the Court upheld the dismissal despite the testimony of an officer with 11 years of experience that it was impossible to transport citations to the courthouse every day.

While the dismissal of one traffic citation may seem inconsequential, the regular dismissal of traffic citations for regular delays could significantly impact a public body’s ability to consistently enforce the law or to generate revenue from the issuance and prosecution of traffic citations.

Lessons learned: review ticket procedures immediately

Public bodies should review their police departments’ procedures for processing traffic citations to ensure compliance with Rule 522 and to avoid the routine dismissal of citations.   One effective way to comply with the Rule is to have an officer hand-deliver the citations to the circuit clerk every Monday, Wednesday and Friday.  Upon delivery, the officer should have the clerk sign a receipt that lists which citations   were delivered and the date of delivery.

Hand delivery three times a week may be a substantial burden for small or rural public bodies.  If so, police departments should mail the citations every Monday, Wednesday and Friday using certified mail, or some other method that provides proof of mailing.  A record should be kept  of the mailed citations that includes the date on which the citations were mailed.

Please note that the Geiler Court held Friday citations that were not delivered until Monday violated Rule 522’s the 48-hour rule. Thus, in light of Geiler, police departments should also consider mailing  on Saturday any citations issued on Friday, in addition to either hand-delivering or mailing citations every Monday, Wednesday and Friday.

With receipts and records of mailing in-hand, public bodies can prevent future ticket dismissals for alleged violations of Rule 522.

Ban the Box

New Law Prohibits Asking About Job Applicant’s Criminal History

By Kateah M. McMasters

Beginning January 1, 2015, the Job Opportunities for Qualified Applicants Act (the “Act”), P.A. 98-774, prohibits employers from asking potential employees to “check a box” or to otherwise provide detailed information about his or her criminal history on a job application.
The General Assembly’s purpose in passing the Act is “to do more to give Illinois employers access to the broadest pool of qualified applicants possible, protect the civil rights of those seeking employment, and ensure that all qualified applicants are properly considered for employment opportunities and are not pre-screened or denied an employment opportunity unnecessarily or unjustly.”
Despite the Act’s prohibition, employers may notify applicants in writing that certain offenses will disqualify the applicant from ultimately securing employment due to Federal law, State law, or the employer’s policy. Further, the Act does permit employers to inquire about an applicant’s criminal history if the applicant is determined to be qualified for the position and selected for an interview or, if there is no interview, until after a conditional offer of employment has been made.
Importantly, the Act does not apply to positions where (i) an employer is required by federal or state law to exclude an applicant with certain criminal convictions; (ii) a standard fidelity bond or similar bond is required and an applicant would be disqualified from obtaining a bond because of one or more specific criminal convictions; and (iii) individuals are licensed under the Emergency Medical Services (EMS) Systems Act.
The Act does not provide applicants a private cause of action; instead, the Department of Labor enforces the Act. An employer’s first violation of the Act will result in a written warning giving the employer 30 days to remedy the violation. If the violation is not remedied within 30 days or a second violation occurs, the employer will be subject to a civil penalty of up to $500. If the first violation is not remedied within 60 days or a third violation occurs, the employer will be subject to a civil penalty of up to $1,500. A fourth or subsequent violation, and any violation persisting for more than 90 days, is subject to a civil penalty of up to $1,500 for every 30 days of noncompliance.
It is important to note the Act defines an “employer” as “any person or private entity that has 15 or more employees in the current or preceding calendar year, and any agent of such an entity or person.” It appears from the plain language of the Act that it does not apply to public bodies such as school districts and municipalities. However, the Department of Labor (DOL) has not provided a definition of the terms “person” and “private entity,” thus it is unclear whether the Act does in fact apply to public bodies. Until the DOL provides clarification, public bodies should consult with legal counsel to ensure their hiring process conforms with the Act’s requirements.

New Law for Pregnant Employees and Working Mothers

Illinois Human Rights Act Amended to Increase Pregnancy-Related Protection

By Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

Effective January 1, 2015, a recent amendment to the Illinois Human Rights Act (the “Act”) adds pregnancy to the list of characteristics protected from discrimination.  “Pregnancy” includes pregnancy, childbirth, and conditions related to pregnancy or childbirth, expanding the Act to apply to pregnancy, childbirth, and postpartum conditions.

The Act currently prohibits employers from refusing to hire, promote, renew employment, discharge, or discipline employees on the basis of pregnancy.  The amended Act will also prohibit employers from denying “reasonable accommodations” to employees (including part-time, full-time, or probationary employees) and job applicants that are new or expectant mothers.  The Act requires employers provide pregnant employees the already-familiar “reasonable accommodation”, which requires employers to make reasonable modifications or adjustments to the job application process, the work environment, or a position to enable “an applicant or employee affected by pregnancy . . . to be considered for the position . . . or to perform the essential functions of that position.”  The amended Act provides a non-exhaustive list of typical accommodations, which includes: more frequent or longer bathroom breaks, providing private non-bathroom space for expressing breast milk, assistance with manual labor, light-duty, job restructuring, and modified work schedules.

Employers must participate in a timely, good faith and meaningful exchange with an employee in order to evaluate and implement reasonable accommodations.  An employer cannot force an employee to accept a reasonable accommodation or to take leave if another reasonable accommodation can be provided.  Additionally, employers are not required to create new or additional employment opportunities to accommodate pregnancy, unless the employer would do so for other employees who need accommodations.

Despite the general prohibitions contained in the Act, employers are allowed to require medical certification for the requested accommodation(s) but they may only require the following information: (i) the medical reason for the accommodation, (ii) a description of the accommodation, (iii) the date the accommodation became medically necessary, and (iv) the approximate time the accommodation will be required.

An employer may also refuse to provide accommodations if such accommodations would impose an “undue hardship” on the ordinary operation of business.  An accommodation causes “undue hardship” when it is “prohibitively expensive or disruptive.”  To determine whether an accommodation constitutes an undue hardship, the following factors will be considered:

  • the nature and cost of the accommodation;
  • the financial resources of the facility, the number of employees at the facility, and the financial impact on the operation of the facility;
  • the financial resources of the employer, the size of the business, and the number, type and location of the facilities; and
  • the composition, structure, and functions of the employer.

The employer bears the burden of proving a requested accommodation constitutes an undue hardship. Further, the fact an employer has provided or would be required to provide a similar accommodation to a similarly situated employee creates a presumption that an accommodation is not an undue hardship.

As a final matter, the Act requires employers to post a notice of the employee’s rights prepared by the Illinois Department of Human Rights in a conspicuous location, as well as include such rights in an employee handbook.

While the amendments aim to increase the protections afforded to pregnant employees and new working mothers, the Act does not require employers to take extraordinary measures to accommodate employees.  The key to the new law is reasonableness, and there are numerous ways in which an employer can accommodate new and expectant mothers with minimal workplace disruption.  In light of the changes to the Act, employers should evaluate whether any employee requires reasonable accommodation and begin a dialogue regarding the provision of the same.