specially concurring:
In this cause, decedent, Ronyale White, obtained an emergency order of protection against her husband. When her husband subsequently entered her home in violation of this protection order, decedent contacted “911” to report this violation and request police assistance. Although two Chicago police officers responded to the call, these officers inexplicably failed to enter decedent’s home and drove away without investigating the call or assisting decedent. Within minutes of the officers’ departure, decedent was shot and killed by her husband. Plaintiff’s complaint alleged that defendants’ willful and wanton conduct in failing to investigate decedent’s 911 call and in failing to assist her in this matter resulted in decedent’s death. I am in agreement with the majority’s ultimate holding in this cause which allows plaintiffs complaint to proceed forward past the dismissal stage.
The majority arrives at this ultimate holding by reasoning that the provisions of the Domestic Violence Act mandate this result. I agree with the majority that the unmistakable intent of the General Assembly in enacting the Domestic Violence Act was to implement a comprehensive restructuring “of the legal system’s historically inadequate response to domestic violence.” 219 Ill. 2d at 489. To that end, in section 304 of the Domestic Violence Act (750 ILCS 60/304 (West 2002)) the legislature set forth with specificity the duties and responsibilities of law enforcement officers when they are called to respond to incidents of domestic violence. The importance of law enforcement officers fulfilling these responsibilities and duties was underscored by the legislature in section 305 of the Domestic Violence Act (750 ILCS 60/305 (West 2002)), which provides that a law enforcement officer is hable for any act of omission or commission which is the result of willful and wanton misconduct. Thus, these provisions of the Domestic Violence Act underscore that law enforcement officials must be held accountable for their willful and wanton failures to enforce orders of protection; otherwise the legislature’s purpose in enacting the Domestic Violence Act would be thwarted. Accordingly, I have no disagreement with the majority’s analysis with respect to the application of the Domestic Violence Act to this cause, and the ultimate result that plaintiff’s complaint alleging deliberate misconduct on the part of defendants should not be dismissed at this preliminary stage.
I write separately, however, due to my disagreement with the majority’s interpretation of sections 4—102 and 4—107 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4—102, 4—107 (West 2002)). Section 4—102 of the Tort Immunity Act provides:
“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals.” 745 ILCS 10/ 4—102 (West 2002).
Similarly, section 4—107 of the Tort Immunity Act provides:
“Neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody.” 745 ILCS 10/4—107 (West 2002).
The majority finds that defendants in this action are absolutely immune from liability based upon sections 4—102 and 4—107 of the Tort Immunity Act. Therefore, absent the application in this case of the saving provision in section 305 of the Domestic Violence Act providing for the liability of defendants for willful and wanton misconduct, the majority would hold that plaintiff’s complaint alleging intentional bad acts on the part of defendants— deliberate misconduct which allegedly proximately caused decedent’s tragic death—is subject to dismissal because such intentional misconduct is completely immunized under these two provisions of the Tort Immunity Act. 745 ILCS 10/4—102, 4—107 (West 2002). It has long been my position that there “are strong reasons why the policies underlying grants of immunity for simple negligence should not be impliedly expanded to reach willful and wanton or intentional misconduct.” Barnett v. Zion Park District, 171 Ill. 2d 378, 403 (1996) (McMorrow, J., dissenting).
In my dissenting opinion in Barnett, I explained that the public policy of granting immunity to government entities and/or government employees against claims of negligent conduct is animated by the rationale that significant expense and burdens are placed upon the government when negligence on the part of local public entities or officials carrying out their government duties results in injuries to the public and such negligence lawsuits “are permitted to flourish unchecked.” Barnett, 171 Ill. 2d at 403-04 (McMorrow, J., dissenting). It was my view, however, that the “rationale underlying a grant of immunity for simple negligence is different in kind from any justification for immunizing tortious conduct that is intentionally harmful or willful and wanton,” and if the legislature actually intended to completely shield all willful and wanton misconduct from liability, the immunity statute should positively and unequivocally state such an intention. Barnett, 171 Ill. 2d at 404 (McMorrow, J., dissenting).
Since Barnett, I have adhered to my belief that the policies supporting blanket immunity for simple negligence are distinguishable from any justification for shielding deliberate governmental misconduct from liability. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J., concurring in part and dissenting in part); Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and dissenting in part); Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02 (1998) (McMorrow, J., dissenting); Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 501-10 (2001) (McMorrow, J., concurring in part and dissenting in part); Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 488-90 (2002) (McMorrow, J., concurring in part and dissenting in part); DeSmet v. County of Rock Island, 219 Ill. 2d 497, 522-26 (2006) (McMorrow, J., dissenting). I remain steadfast in my conviction that deliberate acts of governmental misconduct are not shielded under the Tort Immunity Act by provisions which remain silent with respect to an express exemption for intentional harmful acts.
In the matter at bar, the majority interprets sections 4—102 and 4—107 of the Tort Immunity Act (745 ILCS 10/4—102, 4—107 (West 2002)) as affording a local governmental entity and its employees “absolute immunity” and notes that “[i]n a typical case, when the applicable provisions of the Tort Immunity Act provide absolute immunity, the plaintiffs claim is barred.” 219 Ill. 2d at 478. In support of this proposition, the majority makes citation to two decisions from our appellate court. Prior to the majority opinion in the instant cause, and to the majority opinion in Desmet v. County of Rock Island, which was under advisement at the same time as the instant matter, this court had not interpreted sections 4—102 and 4—107 of the Tort Immunity Act as affording absolute immunity to governmental defendants.
Under the majority’s analysis of these two provisions of the Tort Immunity Act, local government entities and/or their employees will be totally immune against liability for all injuries caused to citizens as a result of a “failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals” (745 ILCS 10/4—102 (West 2002)), even if a citizen is gravely injured or killed as a result of intentional and knowing misconduct on the part of defendants. The same is true of section 4—107 of the Tort Immunity Act: under the majority’s analysis, a citizen is unable to successfully prosecute a suit against a governmental entity and/or employee for an injury “caused by the failure to make an arrest” (745 ILCS 10/ 4—107 (West 2002)), even if that injury directly results from intentional bad acts on the part of the government and/or government employee. The majority arrives at this result on the basis that neither section 4—102 nor section 4—107 contains an express exemption for willful and wanton misconduct. Even though the majority allows plaintiffs case to proceed forward under the specific facts presented in the cause at bar and withstand dismissal on the basis of the application of the Domestic Violence Act, this limited exception does not remedy the difficulties which arise as a result of the majority’s holding. In the vast majority of other cases—many which may be equally as serious but where the provisions of another statute such as the Domestic Violence Act do not apply to save a plaintiffs complaint—government entities and their employees will be completely insulated from liability for deliberate misconduct.
It is my view that absolute immunity should not shield from liability acts performed by local governmental entities or government officials in bad faith, especially where the provision of life-saving police protection services are involved. It has long been my position that it is not necessary to legislatively bestow absolute immunity upon governmental entities and/or governmental employees in order to protect public entities from liability arising from “the operation of government,” which is the stated purpose of the Tort Immunity Act (745 ILCS 10/ 1—101.1 (West 2002)). Rather, it is my view that construing section 4—102 and section 4—107 of the Tort Immunity Act to immunize only negligent conduct would completely satisfy this legislative goal.
Accordingly, I respectfully dissent from the majority’s conclusion that willful and wanton misconduct by a local public entity and/or employee is immunized from liability by the provisions contained within sections 4—102 and 4—107 of the Tort Immunity Act (745 ILCS 10/4—102, 4—107 (West 2002)). It remains my position that where the Tort Immunity Act is silent on the question of whether deliberate government misconduct is exempt from immunity, it should not be concluded that such silence equates with a positive intent on the part of the legislature to shield local governmental entities and their employees with unconditional and absolute immunity.