Murray v. Poani

                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Murray v. Poani, 2012 IL App (4th) 120059




Appellate Court            ANTHONY MURRAY and SHARON MURRAY, Plaintiffs-Appellants,
Caption                    v. MARK POANI, Individually and in His Official Capacity as Officer
                           of the Chatham Police Department; and THE VILLAGE OF CHATHAM,
                           Defendants-Appellees, and JPMORGAN CHASE, NA; and JOHN DOE
                           REPOSSESSION COMPANY, Defendants.



District & No.             Fourth District
                           Docket No. 4-12-0059


Argued                     December 5, 2012
Filed                      December 14, 2012


Held                       Summary judgment was improperly entered for defendants in an action
(Note: This syllabus       alleging that defendant police officer violated plaintiff’s constitutional
constitutes no part of     due process rights by becoming actively involved in the repossession of
the opinion of the court   plaintiffs’ vehicle, since there were factual disputes with regard to the
but has been prepared      officer’s involvement in the repossession and whether he exceeded his
by the Reporter of         role as a peacekeeper.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Sangamon County, No. 10-L-260; the
Review                     Hon. Leo Zappa, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Dmitry Feofanov (argued), of ChicagoLemonLaw.com, P.C., of Lyndon,
Appeal                     for appellants.

                           Stephen R. Kaufmann (argued) and Michael P. Murphy, both of
                           HeplerBroom, LLC, of Springfield, for appellees.


Panel                      JUSTICE POPE delivered the judgment of the court, with opinion.
                           Justices Appleton and Knecht concurred in the judgment and opinion.



                                             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.

¶3                                       I. BACKGROUND
¶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

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       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, custom, or plan for handling disputed repossession
       situations but only a policy “to preserve the peace.”

¶ 10                                      II. ANALYSIS
¶ 11       Section 2-1005 of the Code permits a defendant to move, at any time, for summary
       judgment in his favor for all or any part of the relief sought against him. 735 ILCS 5/2-
       1005(b) (West 2010). Summary judgment may be granted “if the pleadings, depositions, and
       admissions on file, together with the affidavits, if any, show that there is no genuine issue as
       to any material fact and that the moving party is entitled to a judgment as a matter of law.”
       735 ILCS 5/2-1005(c) (West 2010).

¶ 12                                    A. Standard of Review
¶ 13        “The purpose of summary judgment is not to try a question of fact but simply to
       determine if one exists.” Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280, 864 N.E.2d 227,
       232 (2007). Summary judgment should not be allowed unless the movant’s “ ‘right to
       judgment is clear and free from doubt.’ ” Id. (quoting Jackson v. TLC Associates, Inc., 185
       Ill. 2d 418, 424, 706 N.E.2d 460, 463 (1998)). “In determining whether a genuine issue as
       to any material fact exists, a court must construe the pleadings, depositions, admissions, and
       affidavits strictly against the movant and liberally in favor of the opponent.” Williams v.
       Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9 (2008). “If the undisputed material facts

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       could lead reasonable observers to divergent inferences, or where there is a dispute as to a
       material fact, summary judgment should be denied and the issue decided by the trier of fact.”
       Forsythe, 224 Ill. 2d at 280, 864 N.E.2d at 232. “If the plaintiff fails to establish any element
       of the cause of action, summary judgment for the defendant is proper.” Williams, 228 Ill. 2d
       at 417, 888 N.E.2d at 9.
¶ 14       This court reviews a trial court’s grant of a motion for summary judgment de novo.
       Garcia v. Young, 408 Ill. App. 3d 614, 616, 948 N.E.2d 1050, 1052 (2011).

¶ 15                          B. Section 1983 of the Civil Rights Act
¶ 16       Section 1983 of the Civil Rights Act is a vehicle for vindicating the deprivation of federal
       constitutional or statutory rights under the color of law. 42 U.S.C. § 1983 (2006). “To plead
       such a claim, a plaintiff must allege that a state actor deprived him of a property or liberty
       interest without due process of law.” Nelson v. Crystal Lake Park District, 342 Ill. App. 3d
       917, 921, 796 N.E.2d 646, 650 (2003). Thus, a section 1983 claim requires a showing of (1)
       a deprivation, (2) a property interest, and (3) state action.
¶ 17       Plaintiffs were deprived of their property interest in their Pontiac. As Officer Poani was
       in uniform and on duty as a Chatham police officer at the time of the incident, there is no
       issue as to whether he was a state actor during the repossession. The real question is whether
       the deprivation occurred as a result of state action.

¶ 18                                       C. State Action
¶ 19       Plaintiffs contend Officer Poani became actively involved in the repossession by
       threatening to arrest Sharon if she continued to interfere with the repossession and ordering
       her to turn over the vehicle’s keys. Plaintiffs assert when they confronted the repossession
       team, a “breach of the peace” under section 9-609(b)(2) of the Uniform Commercial Code
       (UCC) (810 ILCS 5/9-609(b)(2) (West 2008)) resulted, making the repossession illegal and
       the subsequent removal of their Pontiac–with Poani’s assistance–theft. A self-help
       repossession is only permitted under the statute if it can be accomplished without a breach
       of the peace. Id.
¶ 20       The level of a police officer’s involvement in a repossession is a fact-sensitive area of
       law. Marcus v. McCollum, 394 F.3d 813, 819 (10th Cir. 2004). “The distinction between
       maintaining neutrality and taking an active role is not to be answered in the abstract. There
       is no precise formula, and the distinction lies in the particular facts and circumstances of the
       case.” Harvey v. Plains Township Police Department, 635 F.3d 606, 610 (3d Cir. 2011).
       Courts should examine a police officer’s role in a private repossession in their “totality.” Id.
       Federal courts addressing this issue have noted a “spectrum of police involvement” in
       determining whether a police officer’s actions rise to state action during a private
       repossession. Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir. 1999). At one end of the
       spectrum, not amounting to state action, is a de minimis involvement such as mere presence.
       Id. However, when a police officer “begins to take a more active hand in the repossession,”
       the police assistance may cause a private repossession to take on the character of state action.
       Id. As the Sixth Circuit Court of Appeals recently noted, a debtor’s “objection, particularly

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       when it is accompanied by physical obstruction, is the debtor’s most powerful (and lawful)
       tool in fending off an improper repossession because it constitutes a breach of the peace
       requiring the creditor to abandon his efforts to repossess. A police officer’s arrival and close
       association with the creditor during the repossession may signal to the debtor that the weight
       of the state is behind the repossession and that the debtor should not interfere by objecting.”
       Hensley v. Gassman, 693 F.3d 681, 689-90 (6th Cir. 2012).
¶ 21       Factors that may indicate state action during a private repossession include (1) an
       officer’s arrival with the repossessor; (2) intervening in more than one step of the
       repossession process; (3) failing to depart before completion of the repossession; (4) standing
       in close proximity to the creditor; (5) unreasonably recognizing the documentation of one
       party over another; (6) telling the debtor the seizure is legal; and (7) ordering the debtor to
       stop interfering or be arrested. Marcus, 394 F.3d at 819; Harvey, 635 F.3d at 610. Federal
       courts have concluded “the crucial question is whether the police officer was (1) present
       simply to stand by in case there was a breach of the peace, or (2) taking an active role that
       either affirmatively assisted in the repossession over the debtor’s objection or intentionally
       intimidated the debtor so as to prevent him from exercising his legal right to object to the
       repossession.” Barrett, 189 F.3d at 302-03; see also Marcus, 394 F.3d at 819 (“the
       overarching lesson of the case law is that an officer may act to diffuse a volatile situation, but
       may not aid the repossessor in such a way that the repossession would not have occurred but
       for their assistance”).
¶ 22       In the instant case, the trial court relied on several cases in concluding state action did not
       occur. In its September 2011 order, the court cited Johnson v. City of Evanston, Illinois, 250
       F.3d 560 (7th Cir. 2001), provided by plaintiffs. That case involved an incident where the
       vehicle was removed by an auto mechanic and then placed in the police department’s
       custody. Id. at 561-62. Johnson did not involve a police officer at the scene of the private
       repossession and is not helpful in determining the level of police involvement during a
       private repossession that triggers state action.
¶ 23       In its January 2012 order dismissing the motion to reconsider, the trial court found
       Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir. 1980), factually similar. In that
       case, the police were called out to a disturbance resulting from an attempted repossession.
       Id. at 510. The police officer told the plaintiff the repossession was a “civil matter and that
       the only reason the police were there was to quiet a reported disturbance.” Id. The plaintiff
       was informed “that he could be arrested if he continued to use loud and abusive language and
       create a breach of the peace.” Id. The Menchaca court stated “police intervention and aid in
       this repossession by defendant Chrysler’s agents would constitute state action,” but found
       the testimony failed to show such intervention and aid. Id. at 513. The trial court also cited
       Meyers v. Redwood City, 400 F.3d 765 (9th Cir. 2005), in its January 2012 order. The
       Meyers court held the police officers were not active participants in the repossession and
       attempted to resolve a dispute between the repossession man and the plaintiff. Id. at 772.
       During the repossession, the parties became engaged in a fracas quickly escalating into a
       physical confrontation. Id. at 768. The police arrived to a “scene not of their making” where
       the repossession man threatened he would make a citizen’s arrest under California law
       against the plaintiff or he would not arrest her if she allowed him to take the vehicle. Id. at

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       772. This created a “Hobson’s choice” for the plaintiff to decide whether to allow the
       repossession man to tow her car or subject herself to a citizen’s arrest for battery on the
       repossession man. Id. at 773.
¶ 24       Both Menchaca and Meyers are distinguishable. Menchaca arose from a Federal Rule of
       Civil Procedure 12(b)(1) motion to dismiss for lack of federal subject-matter jurisdiction.
       Menchaca, 613 F.2d at 510-11; Fed. R. Civ. P. 12(b)(1). The district court held an
       evidentiary hearing to determine the officers did not intervene or aid the repossessors.
       Menchaca, 613 F.2d at 513. Here, there has been no evidentiary hearing to determine Poani’s
       involvement or aid to the repossessors. Meyers involved a citizen’s arrest and not a police
       officer threatening to arrest the debtor if she interfered with the repossession. The record
       does not indicate “Brandon” threatened to effectuate a citizen’s arrest of Sharon for
       interfering with the repossession. (Section 107-3 of the Code of Criminal Procedure of 1963
       permits a private person to “arrest another when he has reasonable grounds to believe that
       an offense other than an ordinance violation is being committed” (725 ILCS 5/107-3 (West
       2010)).) Neither Johnson, Menchaca, nor Meyers is conclusive.
¶ 25       The instant case is factually and procedurally similar to Marcus v. McCollum, 394 F.3d
       813 (10th Cir. 2004). In Marcus, the repossessor came onto the debtor’s property to reclaim
       a vehicle and a dispute ensued. Id. at 816. A police officer arrived and was soon joined by
       three additional officers. Id. The debtors asserted the repossessor had no claim to the vehicle
       and the repossessor showed the police documentation of his interest. Id. The police officers
       stated the repossession was a “civil matter in which the police could not be involved” and
       instructed the debtors to “stop their interference.” Id. Plaintiffs claimed the officers told them
       to keep their mouths shut or they would go to jail. Id. at 816-17. The Marcus court concluded
       the plaintiffs’ version raised a fact issue as to “whether the police officers were neutral in
       their efforts to keep the peace” and reversed the district court’s grant of summary judgment
       in favor of the police officers. Id. at 822-23. The Tenth Circuit noted “no single fact or
       inference is determinative of whether the officers affirmatively aided” in the repossession
       and “what exactly each of the officers did and said, to whom, in what tone, and with what
       indicia of state sanction are issues that should be determined at trial.” Id. at 822-23.
¶ 26       Also similar is Barrett, where the debtors contested the repossession of their Kenworth
       truck. Barrett, 189 F.3d at 299. The debtors presented a police officer with documentation
       and signed receipts to show they were current on their payments. Id. The officer informed
       the debtors the incident was a “civil matter” and the police could not get involved and
       recommended they get a lawyer. Id. A physical confrontation ensued between the debtor and
       repossessor and the police officer warned the debtor “ ‘[i]f you start any trouble here, you’ll
       be going in the back seat of my car.’ ” Id. The Barrett court affirmed the district court’s grant
       of summary judgment because the debtor’s “act of aggression justified the officer’s
       response” of threatening arrest and the police were a “peacekeeping presence.” Id. at 303.
¶ 27       This court is not required to follow federal court decisions but may do so if we find them
       persuasive. Better Government Ass’n v. Blagojevich, 386 Ill. App. 3d 808, 814-15, 899
       N.E.2d 382, 388 (2008). We find Marcus and Barrett instructive on the proper analysis in
       determining whether a police officer’s involvement in a private repossession arose to state
       action.

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¶ 28                                 D. State Action in This Case
¶ 29        The critical question is whether Officer Poani was simply keeping the peace (as he is
       clearly entitled to do as a police officer) or affirmatively aiding the repossessor or
       intimidating plaintiffs from exercising their legal right to object to the repossession. A
       “breach of the peace” under section 9-609 of the UCC (810 ILCS 5/9-609 (West 2008)) has
       been defined to mean “conduct which incites or is likely to incite immediate public
       turbulence, or which leads to or is likely to lead to an immediate loss of public order and
       tranquility.” Chrysler Credit Corp. v. Koontz, 277 Ill. App. 3d 1078, 1082, 661 N.E.2d 1171,
       1173 (1996). The Koontz court stated “ ‘an unequivocal oral protest,’ without more,” was not
       a breach of the peace. Id., 661 N.E.2d at 1174. Here, the facts, viewed in the light most
       favorable to plaintiffs, indicate the “confrontation” between plaintiffs and the repossession
       team led to a loss of public order and was likely a “breach of the peace” for section 9-609
       purposes as Sharon made several protestations and the repossession team contacted the
       police to resolve the dispute.
¶ 30        Several facts, viewed in the light most favorable to plaintiffs, indicate Officer Poani
       affirmatively aided the repossessor and intimidated plaintiffs from exercising their legal right
       to object to the repossession under section 9-609 of the UCC, as Poani (1) was called to the
       scene by the repossessor, (2) was present throughout the duration of the repossession, (3)
       ordered Sharon to turn the vehicle keys over, (4) threatened to arrest Sharon if she interfered
       with the repossession, and (5) recognized the “repossession order” over Sharon’s
       protestations. Accordingly, several of the factors delineated in Marcus are present to indicate
       state action. The first two facts are undisputed by Poani’s affidavit. The last three facts are
       disputed. In its September 2011 order, the trial court found Officer Poani “was called to the
       scene merely to preserve the peace during the repossession.” This implies the court found
       Officer Poani acted within his peacekeeping role for the duration of the situation. Sharon’s
       affidavit asserted Poani threatened to arrest Sharon if she continued to protest and interfere
       with the repossession and not for criminal misconduct. Viewing the events in the light most
       favorable to the nonmoving party, whether Poani acted as a peacekeeper or facilitated the
       repossession by ordering Sharon to turn over the vehicle keys and threatening to detain her
       is at the heart of the controversy and cannot be determined on the current evidentiary record.
       The evidentiary record does not support defendants’ assertion Sharon would not have
       attempted to prevent the repossession had Officer Poani not been present as Poani’s affidavit
       indicates the “paperwork dispute” preceded his arrival. It is also unclear whether Poani
       unreasonably recognized the documentation of one party over another. Poani asserted when
       “Brandon” produced the “repossession order,” Poani informed plaintiff this was a “civil
       matter” and he could not intervene. However, Sharon asserted Poani refused to look at
       payment receipts and told her “Brandon” had a “valid” repossession order. It is unclear
       whether this “repossession order” was an “order” from the creditor to repossess the vehicle
       or a court order. In sum, as factual disputes exist as to (1) Officer Poani’s level of
       involvement in the repossession and (2) whether he exceeded his role as a peacekeeper, the
       trial court improperly granted summary judgment.
¶ 31        As noted above, it is contested whether Officer Poani refused to examine receipts

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       provided by Sharon indicating payments were current and acknowledged the repossessor’s
       “repossess order” over Sharon’s protestations. Whether Poani acted as a “curbside
       courtroom” in attempting to resolve the documentation dispute is another factor in
       determining whether state action is shown. Briefly, we note a police officer must not act as
       a “curbside courtroom” in resolving a dispute between a repossessor and debtor as this is not
       the proper function of the police. See Marcus, 394 F.3d at 820 (“It stands to reason that
       police should not weigh in on the side of the repossessor and assist an illegal repossession.”).
       Proper judicial remedies exist for the creditor to reclaim the property (810 ILCS 5/9-
       609(b)(1) (West 2008)), and such a dispute should be resolved by the courts, not a police
       officer.

¶ 32                                    E. Qualified Immunity
¶ 33       Defendants contend if we conclude the trial court erred in determining no issue of
       material fact exists, we should hold plaintiffs’ claims are barred by qualified immunity.
¶ 34       The United States Supreme Court “has identified two key inquiries for qualified
       immunity assertions: (1) whether the facts, taken in the light most favorable to the plaintiffs,
       show the defendants violated a constitutional right; and (2) whether that constitutional right
       was clearly established at the time of the alleged violation.” Gonzalez v. City of Elgin, 578
       F.3d 526, 540 (7th Cir. 2009).
¶ 35       The trial court’s September 2011 order is unclear whether summary judgment was
       granted on the basis (1) no material issue of fact existed as to whether a constitutional
       violation occurred, or (2) whether the law was clearly established. The court found Officer
       Poani did not seize the vehicle or take it into custody, and plaintiff was allowed to remove
       property from the vehicle prior to repossession. The order concludes several “facts” indicate
       no constitutional violation occurred, and it does not address whether the constitutional right
       was clearly established.
¶ 36       Plaintiffs have the burden of showing the constitutional right was clearly established.
       Gonzalez, 578 F.3d at 540. “ ‘[C]learly established’ for purposes of qualified immunity
       means that ‘[t]he contours of the right must be sufficiently clear that a reasonable official
       would understand that what he is doing violates that right. This is not to say that an official
       action is protected by qualified immunity unless the very action in question has previously
       been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must
       be apparent.’ ” Wilson v. Layne, 526 U.S. 603, 614-15 (1999) (quoting Anderson v.
       Creighton, 483 U.S. 635, 640 (1987)). Earlier cases need not involve “fundamentally
       similar” or “materially similar” facts for officials to be on notice that their conduct violates
       clearly established law. (Internal quotation marks omitted.) Hope v. Pelzer, 536 U.S. 730,
       741 (2002).
¶ 37       Since Soldal v. Cook County, Illinois, 506 U.S. 56, 71-72 (1992), police officers have
       known they may act to preserve the peace but cross a constitutional line when they become
       actively involved in a private repossession. Courts addressing this same issue of police
       involvement in a private repossession consistently conclude “[s]tate law limiting self-help
       to those situations where a breach of the peace is avoided, and federal law recognizing that

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       an unlawful repossession can amount to state action and a deprivation of property under
       § 1983,” are clearly established. Marcus, 394 F.3d at 824; see also Cochran v. Gilliam, 656
       F.3d 300, 309-11 (6th Cir. 2011) (police officers’ “active involvement” in assisting seizure
       of property violated clearly established law); Hensley, 693 F.3d at 694 (following Cochran);
       Menchaca, 613 F.2d at 513 (see discussion above).
¶ 38        We conclude a reasonable officer would have understood aiding a repossessor by
       threatening the debtor with arrest and ordering her to turn over the vehicle keys was clearly
       established as constitutionally impermissible.
¶ 39        As discussed above, in the light most favorable to the plaintiffs, the facts show
       defendants may have violated plaintiffs’ constitutional rights by facilitating the unlawful
       taking of personal property. Crediting plaintiffs’ version of the facts, Officer Poani’s
       involvement in the repossession went beyond mere acquiescence to intervention on behalf
       of the repossessors. We are well aware it is important to resolve immunity questions at the
       earliest possible stage in litigation (Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting
       Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam))), but as an issue of fact still exists
       as to Poani’s involvement in the repossession, we cannot say defendants are entitled to
       qualified immunity at this juncture. See Pruitt v. Pernell, 360 F. Supp. 2d 738, 746
       (E.D.N.C. 2005) (unable to conclude if police officers were acting within scope of law
       enforcement function for qualified immunity); Poteet v. Sullivan, 218 S.W.3d 780, 791-92
       (Tex. Ct. App. 2007) (holding officers not entitled to summary judgment on qualified
       immunity claim where factual dispute existed about officers’ involvement in repossession).
       Upon further factual development, defendants may certainly prevail but as there has been
       little to no discovery, it is too early to make a determination about Poani’s level of
       involvement.
¶ 40        As we conclude the facts, in the light most favorable to plaintiffs, show Officer Poani
       may have engaged in unconstitutional conduct and would not be entitled to qualified
       immunity, on the current record, we need not address Chatham’s contention it is not liable
       under Monell v. Department of Social Services, 436 U.S. 658, 690 (1978).
¶ 41        We note the trial court’s September 2011 order found Chatham did not have an official
       policy, custom, or plan concerning aid in private repossessions; rather, according to the court,
       Chatham had a policy “to preserve the peace.” Poani’s affidavit stated the Chatham police
       department has no official policy, custom, or plan to provide official assistance or aid in the
       repossession of automobiles by private parties. First, Poani’s affidavit does not provide a
       foundational basis–such as his prior experience responding to similar situations or
       involvement in the policy-making process–to support his personal knowledge of official
       Chatham police department policies, customs, or plans as required by Illinois Supreme Court
       Rule 191(a) (eff. July 1, 2002). See Jones v. Dettro, 308 Ill. App. 3d 494, 499, 720 N.E.2d
       343, 347 (1999) (“Unsupported assertions, opinions, and self-serving or conclusory
       statements do not comply with Rule 191(a).”). As such, Poani’s affidavit should be limited
       to stating there is no official policy, custom, or plan of which he, as a police officer, is aware.
       His affidavit does not conclusively show Chatham has no such official policy, custom, or
       plan. Second, while plaintiffs’ counteraffidavits did not directly refute Poani’s statement,
       plaintiffs have not had an adequate opportunity to conduct discovery to acquire sufficient

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       evidence to counter this factual averment. See Willett v. Cessna Aircraft Co., 366 Ill. App.
       3d 360, 368-69, 851 N.E.2d 626, 633-34 (2006) (where defendant points out absence of
       evidence supporting plaintiff’s position, summary judgment appropriate only when the
       nonmovant has had adequate opportunity to conduct discovery).

¶ 42                                   III. CONCLUSION
¶ 43       For the foregoing reasons, we reverse the trial court’s judgment and remand the cause for
       further proceedings.

¶ 44      Reversed and remanded.




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