Fulk v. Roberts

517 N.E.2d 1098, 164 Ill. App. 3d 194, 115 Ill. Dec. 412, 1987 Ill. App. LEXIS 3781
CourtAppellate Court of Illinois
DecidedNovember 9, 1987
Docket5-86-0596
StatusPublished
Cited by9 cases

This text of 517 N.E.2d 1098 (Fulk v. Roberts) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fulk v. Roberts, 517 N.E.2d 1098, 164 Ill. App. 3d 194, 115 Ill. Dec. 412, 1987 Ill. App. LEXIS 3781 (Ill. Ct. App. 1987).

Opinion

JUSTICE LEWIS

delivered the opinion of the court:

Plaintiff, Delmar Fulk, filed a two-count complaint in the circuit court of Perry County seeking compensatory and punitive damages for an alleged violation of his constitutional rights. Count I of the complaint purported to be at common law on a theory of unlawful detention. Count II was brought pursuant to 42 U.S.C. §1983 (1982). In both counts, plaintiff claimed defendants, Wayne Roberts and Michael O’Neill, acting in their capacity as game wardens, unlawfully detained him and, as a result, he suffered humiliation and emotional distress as well as harm to his reputation in the community.

In answer, defendants denied, inter alia, that they unlawfully detained plaintiff or that he was damaged as a result of the detention. Defendants raised good faith and immunity as affirmative defenses to the action.

On April 19, 1984, defendants filed a motion for summary judgment alleging that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law. In their motion, defendants stated, “the only genuine issue of material fact to be decided is whether Defendants had probable cause to detain the Plaintiff.” On July 6, 1984, the trial court entered an order granting defendants’ motion for summary judgment and finding that probable cause existed to investigate whether plaintiff was violating a provision of the Wildlife Code of 1971 (Ill. Rev. Stat. 1983, ch. 61, par. 1.1 et seq.).

Plaintiff filed notice of appeal on November 9, 1984. Subsequently, the parties joined in a motion to vacate summary judgment and to remand the cause for further proceedings. On June 17, 1985, we granted the motion and remanded the cause to the circuit court.

A bench trial was conducted on May 16, 1986. The testimony at trial was as follows.

Plaintiff, Delmar Fulk, an employee of Freeman United Coal Company, testified that on November 25, 1983, he was on his way to work. En route to the mine, he drove his truck in on the main road, referred to as Green Market Road, passed through a gate identifying the mine property as a restricted area, and drove at most another quarter of a mile to Number Two Lateral Road. Before turning onto Number Two Lateral Road, Fulk turned on his spotlight, which was mounted on his vehicle. He said he activated the spotlight for two reasons. First, he saw lights down the road which he assumed was the foreman and he used his spotlight to signal him. Second, he had to locate the drill machine and high wall area which moved continuously as the mining process progressed. Fulk left the spotlight on, shining it back and forth, as he drove toward his worksite. When he reached the worksite, Fulk backed in to turn around and noticed a vehicle approaching with its high beams on. It stopped in front of Fulk’s truck.

Fulk testified that two conservation officers, the defendants, emerged from the vehicle. He thought they were checking because there had been deer poachers in the vicinity. The officers approached Fulk and asked him what he was doing shining the spotlight. Fulk explained that he used the light because he worked on the drill at the mine site. Fulk testified that the officers then ordered him out of his vehicle and he swore at them after they “got smart.” Officer Roberts checked the cab of Fulk’s truck for guns while Officer O’Neill examined Fulk’s driver’s license. After the officers were satisfied that Fulk did not have a gun, they returned his license and drove away.

Fulk testified that the incident had not affected his relationship •with his family other than making him irritable. He had also been subjected to good-natured ribbing by members of the community.

Rod Rummler, an employee of Freeman United, testified that the area where Fulk was stopped had been stripped of top soil and vegetation. The stripped area varied in size, but was approximately half a mile in width to two miles in length. Rummler said he had never seen wildlife in the high wall area, but admitted that it could be present and he not know of it. Rummler testified that there were wooded areas and farmland 200 or 300 feet from the spot where Fulk was stopped. He said the Department of Conservation is authorized to patrol Freeman’s inactive mining areas.

Conservation Sergeant Monte Burnham testified that November 25, 1983, was the opening day of hunting season for furbearing animals. The Conservation Department’s personnel in the Perry County area were particularly alert for “shining” activities, whereby hunters illegally use a spotlight to transfix game, making it easier to shoot. The Department was using aerial surveillance to locate shining activities and had transferred Officers Roberts and O’Neill from another district to help locate potential violators on the ground.

Burnham was familiar with Freeman United property in Perry County because Freeman personnel had requested that the Department patrol company property and had reported numerous incidents of poaching on Freeman’s property. Burnham said he and other officers had issued citations for wildlife infractions on Freeman property, somé involving Freeman employees.

Defendants, conservation officers Wayne Roberts and Michael O’Neill, testified that they were working'in Perry County on November 25, 1983, and were in communication with an airplane in a concerted departmental effort to curtail shining activities. Neither officer was familiar with the area. Prior to stopping Fulk, the officers had issued a ticket to Dennis Hottes on the main east-west road which Fulk mentioned in his testimony. Hottes had also been shining a light from his vehicle and had been in possession of a loaded firearm when stopped. The officers had just finished with Hottes when they observed Fulk’s vehicle turn off the main gravel road and a spotlight come on. Fulk had gone about 200 yards up the aforementioned side road \yhen the officers started after him, activating their red lights.

The officers entered the mining area from the east, traveling on the main gravel road. The terrain was flat to rolling, a strip mine area with sparse vegetation. The officers said they would have expected certain types of wildlife to be found there. Roberts and O’Neill followed Fulk for approximately three minutes. Fulk was shining his light to the left of his vehicle and ahead of it.

Eventually Fulk stopped and turned around. The officers did not know what he was doing so they stopped in the roadway. Fulk pulled up very close to their vehicle and stopped his truck. The officers then conducted a brief investigation and, after they were satisfied Fulk was not in violation of the Wildlife Code, they left.

Michael Carter, wildlife biologist for the Department of Conservation, testified that he monitors game populations and habitat and had analyzed game populations in Perry County on two separate occasions. Carter was familiar with the area where Fulk was stopped. It is an unusual area because it contains previously mined areas, private cropland and pieces of bottomland timber. The location where Fulk was stopped could contain any of the native species: raccoon, coyote, mink, weasel or deer.

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Cite This Page — Counsel Stack

Bluebook (online)
517 N.E.2d 1098, 164 Ill. App. 3d 194, 115 Ill. Dec. 412, 1987 Ill. App. LEXIS 3781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulk-v-roberts-illappct-1987.