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Wilson v. Hunk

OPINION FILED AUGUST 31, 1977.

CLIFFORD H. WILSON, PLAINTIFF-APPELLANT,

v.

GERALD W. HUNK ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from the order of the trial court which dismissed his complaint with prejudice after oral argument upon defendant's motion to dismiss.

The complaint is in five counts. Counts I and II assert a liability of defendant, Hunk, for false arrest. Count III asserts a liability of the city for a false arrest by its officer, Hunk. Counts IV and V appear to assert a claim of slander by defendant, Hunk.

Each count alleges the date and place of the occurrence and plaintiff's place of residence and contains the following common allegations:

"3. That the Defendant, Gerald W. Hunk, was, and is now, a duly appointed officer and member of the police force of the City of Decatur, Macon County, Illinois, a municipal corporation, acting in his official capacity and in the pursuance of his official duties.

4. That in the evening of the date aforesaid, the Defendant, Gerald W. Hunk, came to the aforesaid place of residence of the Plaintiff in the company of another police officer, whose name is unknown to the Plaintiff at this time, and, without warrant, a judicial order or other authority of law, wrongfully and unlawfully arrested the Plaintiff in his home on the sole charge of pimping, a misdemeanor, and compelled Plaintiff against his will to go with the Defendant and the other officer to the police station in the City of Decatur, Macon County, Illinois, and thereupon wrongfully and unlawfully imprisoned, confined and restrained the Plaintiff of his liberty against his will for a period of approximately eight hours in the City Jail of the City of Decatur, Macon County, Illinois.

5. That at the time of Plaintiff's arrest, Plaintiff was acting in a peaceful, quiet and law abiding manner in his home and had not committed, nor was he then committing, any offense."

Count I seeks compensatory damages. It alleges that Hunk was a police officer "acting in his official capacity in pursuance of his official duties" and alleges that such officer "unlawfully arrested the plaintiff on the sole charge of pimping, a misdemeanor * * *."

Defendant's motion to dismiss raised the issue of statutory immunity. Section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 2-202), provides:

"A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence."

The plaintiff argues that he had pleaded as a fact that Hunk was not engaged in the "enforcement of any law" and that it is not necessary that he plead that Hunk's conduct was willful and wanton. Such position is founded upon a premise that an arrest without a warrant is unlawful when the offense is not committed in the presence of the arresting officer. Thus, since the arrest was not lawful, the defendant, Hunk, was not engaged in the enforcement of any law within the terms of the immunity statute.

Plaintiff cites Levin v. Costello (1919), 214 Ill. App. 505. At that date the statute authorized an officer to arrest without a warrant "`* * * when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it.' * * *" 214 Ill. App. 505, 510.

The Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 107-2(c)) provides that a ...


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