On January 13, 2021, the Illinois General Assembly passed HB 3653, a police and criminal justice reform bill, and awaits signature by the Governor. The IML provided a comprehensive summary of the bill, which can be found here. HCB is looking closely at the 764-page bill and will continue to report on portions that may impact on law enforcement and local governments.

Our third installment looks at the bill’s impact on officer liability:

Civil Liability

Importantly, although prior versions of the bill had proposals for ending qualified immunity, the approved bill does not contain any changes to the qualified immunity doctrine. Likewise, the bill does not contain any civil liability changes for individual officers, except relating to a willful and wanton failure to train on addiction and drug treatment issues (5 ILCS 820/21; 820/30).

However, the bill creates a “Task Force on Constitutional Rights and Remedies” which is charged with developing and proposing “policies and procedures to review and reform constitutional rights and remedies, including qualified immunity for peace officers” (Article 4). A report of its findings are due to the Governor by May 1, 2021.

Criminal Liability

The Criminal Code of 2012 is amended to add a new offense of “law enforcement misconduct” (720 ILCS 5/33-9), which prohibits an officer from knowingly and intentionally:

(1) misrepresenting or failing to provide facts describing an incident in any report or during any investigations regarding the law enforcement employee’s conduct;

(2) withholding any knowledge of the misrepresentations of another law enforcement officer from the law enforcement employee’s supervisor, investigator, or other person or entity tasked with holding the law enforcement officer accountable; or

(3) failing to comply with State law or their department policy requiring the use of officer-worn body cameras.

This new offense is a Class 3 felony.

The bill adds two new duties for officers under the Criminal Code: (1) a duty to render medical aid and assistance (720 ILCS 5/7-15) and (2) a duty to intervene to prevent or stop another officer from using unauthorized force (720 ILCS 5/7-16). The duty to intervene includes a duty to report the need for intervention within 5 days of the incident and includes protection against retaliation and discipline for officers intervening in preventing or stopping unconstitutional or unlawful conduct.

Use of Force Changes

The bill amends the Criminal Code’s Article 7 on the justifiable use of force, including deadly force. The amendments add the underlined language:

“A peace officer is justified in the use of any force which he reasonably believes, based on the totality of the circumstances, to be necessary to effect the arrest and any force which he reasonably believes, based on the totality of the circumstances, to be necessary to defend himself or another from bodily harm while making the arrest” (720 ILCS 5/7-5).

The section defines “totality of the circumstances” as “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.”

The new language is also inserted into provisions allowing the use of deadly force. The deadly force section now also requires that 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 may cause great bodily harm to another” (720 ILCS 5/7-5(a)(1)).

The bill also adds several requirements to the deadly force section:

• “Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify himself or herself as a peace officer and to warn that deadly force may be used, unless the officer has reasonable grounds to believe that the person is aware of those facts.”
• “A peace officer shall not use deadly force against a person based on the danger that the person poses to himself or herself if a reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.”
• “A peace officer shall not use deadly force against a person who is suspected of committing a property offense, unless that offense is terrorism or unless deadly force is otherwise authorized by law.”

The new bill adds further instructions to officers on deadly force, which mirror the current language used by the federal courts in evaluating use of force under the Fourth Amendment of the U.S. Constitution. Deadly force should only be used when “reasonably necessary in defense of human life” and, in determining whether deadly force is reasonably necessary, “officers shall evaluate each situation in light of the particular circumstances of each case and shall use other available resources and techniques, if reasonably safe and feasible to a reasonable officer.” Plus, “the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time of the decision, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.”

Finally, the bill also encourages law enforcement agencies to adopt and develop policies designed to protect individuals with physical, mental health, developmental or intellectual disabilities, who are significantly more likely to experience greater levels of physical force during police interactions.

Prohibited Use of Force by a Peace Officer

The bill amends § 5/7-535 of the Criminal Code which prohibits an officer from using “a restraint above the shoulders with risk of asphyxiation.” The amendment also prohibits the following activities:

• use of force as punishment or retaliation;
• discharge kinetic impact projectiles and all other non-or less-lethal projectiles in a manner that targets the head, pelvis, or back;
• discharge firearms or kinetic impact projectiles indiscriminately into a crowd; or
• use of 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 (720 ILCS 5/7-535).

The bill further prohibits the use of deadly force to prevent escape, unless deadly force is necessary to prevent death or great bodily harm to the officer or another person (720 ILCS 5/7-9).

Please contact us if you have any concerns regarding the new bill, or have any questions as to how your police department or jail must comply with the new standards set forth in the new bill.