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Yang v. City of Chicago

February 16, 2001

MIKE YANG, APPELLEE,
v.
THE CITY OF CHICAGO, APPELLANT.



The opinion of the court was delivered by: Justice McMORROW

20-September 2000.

This case is before us on a question of Illinois law certified by the United States Court of Appeals for the Seventh Circuit. 145 Ill. 2d R. 20. The certified question is:

"Does section 9-102 of the Illinois Tort Immunity Act provide for attorneys' fees against municipalities within its definition of compensatory damages?"

For the reasons that follow, we answer the certified question in the negative.

BACKGROUND

We take the following facts from the Seventh Circuit's opinion in Yang v. City of Chicago, 198 F.3d 630 (7th Cir. 1999).

"On January 8, 1991, at approximately 11:00 p.m., Mike Yang (`Yang'), co-owner of a south-side shoe store, received a call from his alarm company notifying him that the store had been burglarized. Yang called his brother, Myung and an employee, Bob. The defendants, uniformed police officers employed by the Chicago Police Department, had already arrived at the store when Yang got there. While Yang and his employee and brother busied themselves with repairing the shattered front display window, Officer Hardin prepared a police report by the front door of the store, adjacent to the broken window. Officer Brown entered the store to investigate. While inside the store looking for a board to repair the window, employee Bob noticed that Officer Brown was perusing the store in the manner of a shoplifter. Bob alerted Yang to this. As Officers Brown and Hardin began to leave, Yang noticed a bulge in Officer Brown's jacket. Believing that Officer Brown had stolen some merchandise, Yang approached the officer and requested that the merchandise be returned. At first, Officer Brown denied that he had taken any merchandise. But after a discussion that escalated into an argument, Officer Brown reached into his jacket and pulled out a pair of `L.A. Raiders' shorts and threw them at Yang. Officers Brown and Hardin then proceeded to enter their police car and drive away. When Yang followed, Officer Brown shoved Yang. Throughout the confrontation, Officer Hardin stood by the passenger door of the squad car. He did not speak or intervene in any manner despite Yang's repeated requests for Officer Hardin to call the police sergeant.

In an attempt to prevent Officer Brown from leaving, Yang held onto the driver's side door of the squad car to keep it open so that Officer Brown could not drive off. However, Officer Brown drove anyway, with the driver's side door ajar and Yang hanging onto the car. Officer Brown drove fast and recklessly in a zigzagging pattern, braking and accelerating, in an attempt to throw Yang off. Officer Brown also repeatedly struck Yang in the ribs with his elbow. Yang asserts that he was unable to let go of the car without being run over. Throughout the drive, Officer Hardin sat in the passenger seat. Officer Hardin did not say anything or in any way attempt to intervene. The squad car traveled, with Yang hanging on[,] more than two full city blocks until two men on the sidewalk saw what was happening and ran out to the street to stop the police car. Yang let go when the car stopped. Officer Brown then got out of the car and punched Yang in the face, knocking him to the ground. Meanwhile, Yang's brother, who had run after the squad car, arrived at the scene. Officer Brown knocked Myung Yang to the ground.

Throughout these events, Officer Hardin did not call the sergeant or attempt to stop Officer Brown in any way. However, as the Yang brothers lay in the street, Officer Hardin got out of the passenger seat of the squad car, drew his gun, pointed it at the brothers and shouted obscenities at them. The Yangs froze. Officers Hardin and Brown got back in the police car and drove away. Yang v. Hardin, 37 F.3d 282, 283-84 (7th Cir. 1994) (Bauer, J.)." Yang, 198 F.3d at 631-32.

Yang subsequently sued Brown and Hardin under 42 U.S.C. section 1983 for civil rights violations. Yang v. Hardin, 37 F.3d 282, 283 (7th Cir. 1994). The federal district court found against Brown and awarded Yang damages plus attorney fees, pursuant to 42 U.S.C. section 1988. Yang, 37 F.3d at 283. The district court further found that both officers "acted under the color of state law"; however, it determined that Hardin was not liable under section 1983. Yang, 37 F.3d at 283. The Seventh Circuit reversed and held that Hardin was liable under section 1983 because he was acting within the scope of his employment, and he violated Yang's civil rights. Yang v. City of Chicago, 137 F.3d 522, 523 (7th Cir. 1998). On remand, the district court entered a judgment against Hardin. Yang, 137 F.3d at 523. Yang then requested that the City of Chicago indemnify the judgment against either Brown or Hardin, pursuant to section 9-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act. 745 ILCS 10/9-102 (West 1998). The Seventh Circuit determined that the City was derivatively liable for the judgment against Hardin. Yang, 198 F.3d at 632. The district court subsequently entered a judgment in favor of Yang and against the City for $234,671.56 plus $191,628.75 in attorney fees and $10,774.42 in costs. Yang, 198 F.3d at 632.

On appeal, the Seventh Circuit was required to determine whether section 9-102 of the Illinois Tort Immunity Act provides for recovery of attorney fees against a municipality. The Seventh Circuit found that no controlling Illinois law exists on this issue and, therefore, that "this case presents a question of state law best left to the Illinois Supreme Court to answer." Yang, 198 F.3d at 632. The Seventh Circuit then certified the question to this court pursuant to Supreme Court Rule 20 (145 Ill. 2d R. 20).

This court agreed to answer the certified question. We granted leave to file an amicus curiae brief in support of Yang to the Chicago Lawyers' Committee for Civil Rights Under Law, Inc., together with the Mexican-American Legal Defense and Educational Fund.

ANALYSIS

I. Scope of ...


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