pace's case number four eighteen zero six three four this is the charleston versus the system administrator hearing of the city of charleston for the appellant we have mr i sleep in that yes is that how you pronounce your last name claims he is eligible for health insurance benefits under the public safety employee benefit act and i want to stress that that word eligibility that he's had that he claims to be eligible this is not an entitlement  in other words a police officer or a firefighter e m t who gets injured on the job is not entitled to life insurance afterwards even one who gets a line of duty pension as police officer england did does not entitle him to look at health insurance nor even in the tragic case of a of the deaths of a firefighter or police officer does that mean entitlement there are certain obvious elements think there was i didn't defend it on appeal but i could ask what it was not on i don't have a personal knowledge of that or i do know that there was litigation regarding his line of duty pension and we're here kind of a second time on this case the first time having to do with whether a non home rule unit can create its own administrative process to go through this kind of a hearing but we're back here on the really the substantive issue that and to make a decision i think there's a bright line test that we follow although i hate i use that name myself bright line test from gaffney that has been followed through these appellate court cases officer for public safety officer the injury must occur in response to what is reasonably believed to be an unforeseen circumstances in involving imminent danger to a person or property requiring an urgent response the this is the phrase that that that kathy has used to define emergency and it has been used time and time again in order to determine whether there was truly an emergency or is the court and wills act puts it t sievers to cover life threatening or dangerous situations in quote in an officer's employment so it's not just you know that the officer is out on duty or that the officer is responding to a call it is a life threatening or dangerous situation that the officer is at that's what makes a person eligible for the see the benefits but in this case our contention is that there was no imminent danger in the find on c com whether there was more information he couldn't so he went on to the police department and that whole investigation period of sixteen seventeen minutes there was never circumstances involving imminent danger requiring an urgent response that he had to attend to and we have examples of those kinds of cases from gaffney to beginning with gaffney where we have a firefighter dealing with a live fire and real smoke that has to get back to his fellow firefighters before they run out of oxygen that's a response to an imminent danger to people that requires his urgent response same with the the officers and spring board one officer comes across a field of of asphalt chunks and finds that it's a hazard has to park his car in the roadway making it imminent danger to himself and othe while he has an urgent response or the other officer in spring born to kill you who finds an electric pole in the roadway and has to move it or has to deal with it these are all examples showing an imminent danger to the person or property requiring an urgent response and on december seventh two thousand and eight and on just did not face this kind of imminent danger in any way requiring an urgent response now i know that angle i'm and this was picked up on by both the administrative law judge in the trial court judge that angle him had a quote heightened concern and quote in his in his mind that he was proceeding cautiously two cases that he was using his training because he didn't know what to expect but again i don't think that reaches the bright line test of gaffney of an eminent danger or sp requiring an urgent response in fact he dropped the investigation in my opinion in trying to go back to the police department to see what was going on and the investigation continued with another officer who was then put out  after england had injured himself it's not what's happening in the officers mine it's from the circumstances that surround the the call that makes it an imminent danger requiring an urgent response and we also don't want a slippery slope of police officers having lots of emergencies going through their minds but but not based on the circumstances or the factual the factual world because every single case could then become up to ceiba eligibility i also like to point out that in the underlying cases i believe there was the law was misinterpreted by both judge highly and more by the trial court judge in saying that there was in addition to the the emergency that he had a reasonable belief of a unlawful act perpetrated by another that he had a reasonable belief of the investigation of a criminal act again there were no facts of unlawful acts in this case there were no facts and that sixteen to seventeen minute  c com call that he was investigating it from and although anyone testifies during the administrative hearing that in his mind there was a criminal act until he proved otherwise  an unlawful act until he could prove otherwise that that obviously isn't the the standard that's not the rule so it wasn't wrong for the trial court judge to modify these phrases saying that he reasonably believed that he was responding to unlawful act reasonably believed he was investigating a criminal act when in fact that the statute requires strictly that he's responding to an unlawful act or that he's investigating a criminal act and in terms of the test of an imminent danger to people or property requiring an urgent response instead the way he puts it there's a three page decision and  the way he puts it is that it based on is based on his heightened concern he believed that there was an emergency he was demonstrating caution and on heightened alert is the way he put it lacking any specific information regarding the reason for the call he acted reasonably and investigating the matter he testified quote assuming the worst and hoping for the best and quote that's really that's really the rule he used and i don't think that's the rule that's given to us by gap  again i would i would caution that if we use this kind of rule from the from the administrative judge then any police officer or firefighter who feels heightened concern or not it's part of the job i know to have this heightened concern and hypersensitivity of caution but that alone would be enough failing everything else just to get eligibility for health insurance but so does it really ball down to that because of course section b we have to take a look at whether or not this belief was reasonable right that's right it's a subjective reasonable belief it's not just it's not just a belief it's a subject right that he didn't take the next step to find that him or what an emergency is in other words circumstances involving imminent danger to a person or property that required an urgent response that's what an emergency was according to gaffney and i don't think the hearing judge the hearing officer went that extra bit to define what an emergency was like it was so i take it in the officers testimony about you know receiving this current thinking that the police chief needed someone there and then you go and that person is not there in the concerns that he expressed regarding the whole situation how things played out that was not adequate was wrong wrong something had happened that he got two cases and didn't find his police chiefs car he thought something was wrong but i think we have to look at the the the totality of the circumstances his seat was there in eminent danger the officer overreacted i would say yes the officer overreacted i mean if and if we interpret his reaction to be a reaction to a true emergency then we're going too far we're going too far and saying that that a belief like his should be considered an emergency so is that the question should it be considered an emergency o lances belief reasonable what should i be it should be based on that definition of emergency from gaffney i i respectfully believe that that's the bright line test and and i can't get beyond that the definition of imminent danger to a person or property requiring an urgent response i can't seem to fit that in with the way anglo i'm dealt with those sixteen or seventeen minutes  and there are cases like with will's act where they are dispatched this is an e m t dispatched to a patient who is in stress they know that patient they know it's a diabetic patient very overweight needs help and thought it was an emergency and then eventually that emergency abated when they got there and found this person had just fallen off the bed and needed to be moved so the there was no longer an emergency but but but the thinking the circumstances were that there an imminent danger to this patient requiring an urgent response and i just can't i don't see that in the sixteen or seventeen minutes that that angle him was responding although we is still left to this day wondering what happened i think i think for this extra element of eligibility you have to show circumstances involving imminent danger to a person or property officer and his decision at the bottom of towards the end of page three so as based on the evidence presented the titian or could not this calum that he reasonably could be investigating perpetrated by another or possible criminal right i'd have little trouble the cipher that that petitioner could not discount that he reasonably could be investigating  during the investigation of a criminal act in fact have you read it that's how i read it but i am troubled to your honor by the phrase he could not discount that it's almost as if he because officer engle  so many words said the same thing until proven otherwise he said in so many words until proven otherwise i was in fresh pursuit i was investigating a criminal act i was you know i was  looking for an unlawful act perpetrated by another until i you know until you guys could someone else could prove otherwise those are the things i was doing but that's not the test it's not you know that he could couldn't discount he's actually got to prove i think that there was a criminal act can should we walk in his actions in the circumstances i'm putting side maybe because we're joyous look at what it was that he was doing d the only facts that are well i should i will say the only salient facts with the facts that are seem important to me are were that he was dispatched to casey's by his superior officer that he went there with the dispatch cautiously parked and looked inside and didn't see anything wrong and by the time he got inside talking to the manager of casey's they didn't know why he was there that he talked to an employee of casey's again they didn't know why he was there he still he searched the places searched the bathroom and left casey's not knowing what to think so i don't think the facts at any time i mean perhaps he he he started in and investigate what he believed was an investigation of something unlawful something criminal but it didn't end up that way after he got to cases if we know a lot of police activity involves investigation into certain circumstances and ultimately it may not be a criminal act or may be found to be a criminal act you don't know that until later that's true lot of it you don't know until it actually goes to trial i for a judge or a jury to determine was there the intent to do something and now the police activity that led to that was and pacification of a possible criminal  very initial investigation and along the way we find circumstances or no circumstances that there were there appears to be a crime in progress or an alleged crime here i i don't even think that we can call  pugh the the dispatcher said that you know with her dispatches she will you know append some kind of modifier like a robbery in progress you know suspect you know on the loose here she didn't have any information she says she just put it down as information for the chief said he didn't make that call right and then there's the chief who doesn't know anything about it well he said he did make the call that's right and there is it absolutely it was a crank call but and i imagine there are crank calls to nine one one you know that happens to i just don't believe that there are some i'm sorry we're out of time you will have additional time  your honor sat on that appeal subsequently i requested civil benefits for the city of the city of charleston who did night it that request was my approach at that time to file a complaint with the circuit court and fork over in ministry appearing at city of charleston not recognising the ordinance that was then brought up here after judge will brian ruled in our favor on the facts of the bench trial we brought up here on two issues one whether or not i have to go to the ministry of hearing the second point whether or not he was entitled steve this court ruled that i needed to go to the charleston hearing so it was remanded arose dismissed and i had to go to the charleston ministry perceive i didn't choose to appeal that's the supreme court decision this was the charleston hearing your honor said on that particular hearing as well i think that it wrote the opinion but he wasn't present that his wife was ill and so he listened to your record went through the city of charleston hearing judge highly wrote his over a ten year period that's where we stand a day or so we don't we don't have any way street car stop all issues not on this judge i think the issue before the court last time disposed of this one basically saying that like you indicated about a reasonable belief and i'm glad you brought that up ok because i think that's the crux of the matter the state has this right one or the city has a bright line test which is the catholic decision and i understand what that reason belief becomes the test and how do we determine what reasonable leaf as well on this dr lee points out is subjective reasonable what that means in my opinion is the way it's been documented through the cases is the officer first subjectively has to believe he's facing an emergency once that's determined then is that subjective belief reason so in this case if you look at it officer even testified he believe he was was in an emergency situation he received a dispatch call from nine one one dispatch operator out at nine one one i don't want to mislead anybody that c com dispatch nine one one so it's not the the they don't disappear with nine one one calls but he did receive a call from the nine one one dispatch center saying that the chief of police needed an officer to casey's media now but that's what he so the discrepancy is there is a with the second first and reeling to england after pass if you receive the information so both of them could be testifying correctly so but also in one that's all the information in you at that time so he's believe me operating on emergency his actions support that belief he strategically parks to where no one in cases can see him he cautiously approach cases to see what's in there nothing appears to be out of the didn't notice that cheap drink it was there he walks up to the k c store street and looks in doesn't seem to be to be anything out of the ordinary looks around talks to the people inside they don't know why it's there those are all unexpected circumstance when you receive an officer receives a dispatch call or go to a place mediately you expect to find something all right when you don't find something that's as much as a red flag as anything so he's sitting there saying wot is going on what's running through his mind whether it's a crank call that somebodies playing on him like just as harris indicated it could have been a prank call that they're getting him to go to or casey's why they rob a sicko down the street he testified that that was going through the mind and he heightened concerns about that and then you add into the additional interesting circumstances is after he tells the contour get back in contact with with cheap ink and they can't find they can't even get in contact with they can't calling it can't find it so what the world's going on you just talk to him and you can't get back home i'm telling what's what's happening this cheap jenkins hurt is he in danger what's happening here in my at the wrong location leadership now he has no information why is there nobody known of disappears or available or can be contacted that's completely out of the ordinary and expected there's where he was sent there is no one knows why he's there that's completely unexpected so com i'm changing locations i'm going back to charleston police department try to get these answers on his way back there parked his car and use her around the back of the squad car he falls gets is dominant hand on the head which fractures and he can't hold investigation do you read anything into that all that saying is it all i'm telling you with that information justice is that the city made some comment or the city's made some comment they believe in this this drive where they believe that he this continued the call but he ended the call when he went back to the police station the fact that justin peterson testified that he placed another officer on the call just demonstrates that the call wasn't included it doesn't mean that his actions were any more reasonable or that that officer blevins interpretation of the events leads any credence one way or the other to the facts  they're not same as deeds and it always is like that but the biggest difference here between those cases these cases the information that the emergency personnel person knew at that time suffered is catastrophic injury and spring borne who were to information they kept a part of that decision of course became compensable when the unforseen circumstances the host being wrapped around the love seat caused an immediate response to that imminent danger the other  decision the other decision was un compensable because it was no one seems circumstances he was injured in a training exercise with no unforseen circumstances occurred so that was that decision was was denied for those reasons in the spring borne decision those were two police officers of both were dispatched in springboard to think he was dispatched i was told that an off duty officer was trying to pull over a paved truck that was spreading was paving materials was coming off the truck and preventing hazards in the roadway and that's the officer approached those he in two different occasions stopped and removed the debris from the highway and on the last time he did that he slipped and fell and hurt his back in an imminent danger to traffic and they just moved it in a moving it for the second time he injured himself the last case will check case e m t was told that it was the overall heavier say overweight but of the two hundred plus pound individual in mass that needed help he had been there multiple occasions and knew what the situation was he got there views able to identify what it was and that it was an emergency situation  to the person that called in which was cheap dinkins or someone reporting to be cheap jenkins she believed it through the testimony that it was an emergency and she testified in cross examination that some of that was speculation based on she didn't have any facts but based on in her state of mind what she heard from the officer of her of the person talking is dziedzic and she thought it was an emergency situation struggled with the same question and that the reading of the statute says reasonably believed to be an emergency responding what is reasonably believed emergency a criminal act or investigation of it i can read the exact language but my problem was always i thought the reasonable belief included a criminal act in the investigation but if you read it i don't necessarily believe that's the case ok now that i don't know opinion i didn't spend a lot of time in my brief on it or arguing with it because i don't think those are very strong arguments based on the point in the statute so you're basically saying that at least the way it's written if you read it literally it doesn't look like they're referring to a reasonable belief that there was a criminal act i would concede that i believe that's accurate i would hope that the legislature or someone would look at that act or is that a nuisance or is violent what what is that so i think there is i think reasonably needs to be added to those or reasonably see to be stricken completely out it looks like the city of charleston arguing in a bright line test here that it has to be an actual emergency which is clearly not the case according to spring to the gap decision but i can't sit here and argue on the other hand the reason we need to be included on the last two i think it causes some problems and you den of vipers problems but i can't based on the plain meaning of the statute indicate that you should decide otherwise i think there may be some that it hits on one part of the definition in gaffney that is whether there were unforseen circumstances and i grant there were that night there were unforseen circumstances that he ran into including not seeing his police chief's car w casey's including not seeing any thing stranger cases when he expected to see something wrong but but every single case the deals with emergencies which in this perceive of contacts here in illinois talks about japanese full definition which also involves whether there was an imminent danger requiring an urgent response now i understand there there may not have been any emergency here and and he could still win his benefits even if he had a reasonable belief of an emergency but i think we have to go that second to that second part of the definition and see if there were circumstances involving any eminent danger requiring an urgent response to do we have to ask ourselves are there circumstances involving him imminent danger or do we have to ask ourselves was the officer reasonable and believing that there  circumstances involving imminent danger more specifically what i'm saying is if based on what he sounded didn't see would it have been reasonable for him to conclude that that she is in the police chief is being held at gunpoint please respond to cases that's obviously circumstances that show a reasonable belief of an emergency because there's an imminent danger to another person requiring an urgent response but for him to just believe in his own mind that something was wrong with the sheep that that he was being held up somewhere i think that requires him to speculate it's not based on in other words  can we cannot we can almost summon anything from from the absence of something there but there was nothing positive there are cases that we can draw from to say that there was an imminent danger requiring an urgent response and you know i would i would mention again these cases were perceived as being granted involve life threatening or dangerous situations or i guess the reasonable belief of a life threatening or dangerous situation but i don't think that there's sufficient facts in this case and i think that's why again i'm asking for you to reverse the underlying