Nobody is at fault

COOK COUNTY RECORD

Monday, October 3, 2022Lawsuits
Hot Topics
Campaigns & Elections
Legislation
Asbestos
State Court
Federal Court
Reform
Discipline
Legal Roundup
Opinion
Directory
Home
»
Stories
»
2022
»
September

From left: Cook County Chief Judge Tim Evans and Cook County Sheriff Tom Dart


By Jonathan Bilyk
Sep 29, 2022


Cook County’s chief judge and the county’s sheriff have each asked a Cook County judge to end a lawsuit seeking to hold them liable for the death of a Vietnam veteran, who was killed during a carjacking allegedly committed by two men while they were on court-ordered electronic home monitoring while they awaited trial on charges for other crimes.

In their separate motions to dismiss, both Cook County Chief Judge Timothy Evans and Cook County Sheriff Tom Dart argued that, under state law, they can’t be sued for the incident, because they had no duty under the law to prevent the men from committing the crimes.

Further, the sheriff’s office said it can prove neither of the two men were ever in an electronic home monitoring program administered by Dart’s personnel.

And Evans asserts, because he acted in his capacity as chief judge, he is absolutely immune from any lawsuits for any actions he takes as judge, including administering an electronic home monitoring system that allegedly allowed people in the program to venture out into the community and commit violent crimes.

In July, the family of Keith Cooper filed suit against the chief judge and Sheriff Dart’s office.

Cooper, 73, a Vietnam veteran, was killed during a carjacking committed by two men on Chicago’s South Side. According to published accounts, Cooper died after he was struck in the head during the attempted theft of his car in Chicago’s Hyde Park neighborhood on July 14, 2021.

The lawsuit was filed by Cooper’s daughter, Kenika Carlton.

According to published reports, the attackers did not succeed in taking his car, and attempted to flee on foot. They were captured by police a few blocks away from the attack, and were identified by witnesses as the alleged attackers.

The lawsuit asserts the two men charged in Cooper’s death, Frank Harris, then 18, and Dushawn Williams, then 17, were improperly allowed to leave their homes, even though both men previously had been charged with carjacking and possession of a stolen vehicle, and were supposedly being monitored by law enforcement using electronic home monitoring while the men awaited trial on their previous charges.

The lawsuit comes as Chicago and other communities in lllinois grapple with a sharp rise in crime since 2020. Critics of the Chicago Democrats overseeing the criminal justice system in Cook County have laid blame on new policies and practices, allowing those charged with crimes to remain out in the community, even though they are ostensibly being monitored by various law enforcement agencies.

The complaint accuses the chief judge and the sheriff of failing to properly staff and run their electronic monitoring programs, allegedly allowing the two man accused in Cooper’s death to roam free, without intervention from law enforcement. Further, the complaint asserts Harris and Williams should have never been placed in the monitoring program, given their prior criminal histories.

On Jan. 1, the law in Illinois is set to change further, as the cash bond system would be abolished under the so-called SAFE-T Act. Under that law, most people charged with a crime would be presumed to be allowed to be free until they stand trial, unless prosecutors can prove to a judge within 48 hours of charges being filed that the accused is an actual threat to a specific, identifiable person, or is a flight risk.

Many prosecutors across Illinois have said the changes to the law will make it very difficult to hold people charged with even violent crimes in jail and away from the community, to ensure they show up for trial and don’t commit more crimes in the meantime.

At the time of Cooper’s murder, however, Cook County court and law enforcement system had fitted more than 3,500 people with electronic ankle bracelets, purportedly to restrict and monitor their movements as they awaited trial on criminal charges, according to the complaint. That number included more than 500 people who had been accused of unlawful use of a weapon, and who, before the monitoring program had been created, would have been in jail.

However, the complaint notes only 110 people were assigned to monitor those people, and to potentially respond to the hundreds of alerts each day. Further, the complaint notes Sheriff Dart had said the home monitoring program was never intended for violent criminals.

The plaintiffs assert this meant county officials had shirked their duties to monitor the men on the program to ensure they could not further harm the community and commit more crimes, like the alleged carjacking and assault that claimed Cooper’s life.

However, in response, Judge Evans and Sheriff Dart said the lawsuit is misplaced, and they bear no responsibility for Cooper’s death.

From the moment the lawsuit was filed, Dart’s office has maintained the men were not on a monitoring program administered by the sheriff’s office.

In a motion to dismiss filed Sept. 9, Dart argued that, even if the men were in a program overseen by the sheriff, the sheriff’s office owed no special duty to prevent Cooper’s death.

“In this case, Plaintiff fails to allege that Defendants were uniquely aware of the danger Harris and Williams presented to the decedent (Cooper) specifically should they successfully escape from EM (electronic monitoring),” Dart’s attorneys wrote in the motion.

“In fact, Plaintiff pleads no facts indicating that Defendants were aware of (Cooper) at all, nor do they allege the existence of any relationship between Harris and Williams and (Cooper) which could theoretically create a particular risk to Keith Cooper should Harris and Williams escape home confinement while on EM.”

Further, the sheriff’s office argued it is shielded from lawsuits by immunity granted by state law to government officials for liability for injuries, deaths and other harms resulting from their official actions, and by legal precedent holding police agencies and officials cannot be sued for injuries, death and mayhem caused by escaped prisoners.

Chief Judge Evans similarly argued he owed no duty to Cooper or anyone other specific people in the community, to protect them from the criminal acts of others, beyond the duty he owed as a judge to the public, in general.

“Generally, under Illinois law, one does not owe a duty of care to protect another from the criminal acts of third persons,” Evans’ lawyer wrote in his motion to dismiss, filed Sept. 23.

They noted there are several exceptions to this “general rule,” but these are limited to cases in which “a special relationship exists between the parties and the harm is foreseeable;” “when an employee faces imminent danger” and their employer knows about it; when someone fails to warn someone else acting as their agent of “an unreasonable risk of harm” while acting as their agent; and when someone either volunteers or signs a contract agreeing to assume a duty of protection for another person.

“Even if this court is inclined to find Judge Evans had a duty, that duty is not owed specifically to (Cooper),” Evans’ attorney wrote.

“… The facts as alleged show Frank Harris and Dushawn Williams committed multiple criminal acts in this case: not only killing (Cooper), but also escaping from electronic home monitoring.

“None of the exceptions to the general rule apply in this case.”

Further, Judge Evans argued he is protected from such lawsuits by immunity granted to him by state law as a judge and as a state official, acting in his official capacity.

Both Evans and Dart asked the court to dismiss the allegations against them in Cooper’s lawsuit.

Evans is represented in the matter by the Illinois Attorney General’s office.

Dart is represented by the Cook County State’s Attorney’s office.

Cooper is represented by attorney Robert J. Bingle, of the firm of Wise Morrissey, of Chicago.