Appeal from Circuit Court of Sangamon County No. 10L260 Honorable Leo Zappa, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
4th District Appellate Court, IL
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Appleton and Knecht concurred in the judgment and opinion.
¶ 1 Plaintiffs, Anthony and Sharon Murray, brought suit under section 1983 of the Civil Rights Act of 1871 (Civil Rights Act) (42 U.S.C. § 1983 (2006)) against defendants, police officer Mark Poani and the Village of Chatham, for violating their constitutional due process rights. Plaintiffs allege Officer Poani, acting under color of state law, became actively involved in a vehicle repossession and violated their constitutional due process rights. In September 2011, the trial court granted defendants' motion for summary judgment.
¶ 2 Plaintiffs appeal, arguing the trial court improperly granted summary judgment on the evidentiary record. Specifically, plaintiffs assert the court improperly concluded (1) Poani did not participate or aid in the private repossession, and (2) qualified immunity applied. Because we agree with plaintiffs an issue of material fact exists, we reverse and remand for further proceedings.
¶ 4 In November 2010, plaintiffs filed a complaint against defendants alleging violations of section 1983 of the Civil Rights Act. Additionally, and not at issue in this appeal, plaintiffs asserted various claims against JPMorgan Chase and John Doe Repossession (the repossession company's actual name has not been determined).
¶ 5 On April 1, 2011, defendants filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2010)). An affidavit from Officer Poani was attached to the motion. In May 2011, plaintiffs filed a response containing counteraffidavits from both Anthony and Sharon.
¶ 6 Plaintiffs' version of the facts is as follows: On December 16, 2008, during the early hours of the morning, plaintiffs were at their home in Chatham, Illinois. Their 2004 Pontiac Grand Prix sedan sat in the driveway. Plaintiffs purchased the Pontiac in 2005 and it was financed through JPMorgan Chase. Something awoke Sharon and she went to investigate. Outside, Sharon encountered a repossession team attempting to tow her Pontiac. She protested and a confrontation ensued. Officer Poani arrived to the scene. (Poani's affidavit asserts a member of the repossession team named "Brandon" contacted the police about a "paperwork dispute" and Poani was dispatched to plaintiffs' residence.) Sharon accused the repossession team of "stealing" her car. Sharon presented Poani with "receipts" showing she was current on her monthly car payments and not in default. Poani refused to look at the "receipts." Sharon accused Poani of assisting in the "theft" of her car. Poani explained "It does not matter, they have a valid repossession order, you have to give them the keys." (Poani's affidavit states he advised Sharon "this was a civil matter" and he could not interfere.) Sharon continued her protestations and Poani told her "If you continue to interfere, I will have to detain you." (Poani's affidavit disputes he threatened to arrest Sharon.) Poani remained on the scene during the entire repossession. (Poani's affidavit concedes he left the residence after the vehicle was repossessed.)
¶ 7 Plaintiffs pleaded Poani's actions were pursuant to an established policy of the Chatham police department. Plaintiffs' counteraffidavits did not refute Poani's affidavit stating the Chatham police department does not have an official policy, custom, or plan to provide official assistance or aid in the repossession of automobiles by private parties.
¶ 8 In August 2011, the trial court held a hearing on defendants' summary judgment motion. We note no transcript or bystander's report of this hearing was made available on appeal. Ill. S. Ct. R. 323 (eff. Dec. 13, 2005).
¶ 9 In September 2011, the trial court granted defendants' motion for summary judgment finding (1) Poani "did not seize the vehicle, nor take it into custody"; (2) Poani allowed plaintiffs to remove personal property from the vehicle prior to the repossession; (3) Poani "was called to the scene merely to preserve the peace during the repossession"; and (4) Chatham did not have an official policy, ...