Whiteside deputy not off the hook yet

July 31, 2018

OTTAWA – The state is appealing the dismissal of traffic charges filed against a Whiteside County deputy involved in a fatal collision with a motorcyclist more than 2 years ago.

William G. Damhoff, 58, of Morrison, died July 25, 2016, when his motorcycle struck Deputy Jeffrey Wunderlich’s squad car as the deputy was making a left turn off U.S. Route 30 on to Emerson Road shortly before 10:30 p.m., using the turn lane for traffic going in the other direction. He was not using his emergency lights or siren.

Wunderlich, 35, was charged with making an improper left turn, turning the wrong way on a one-way, and improper lane usage.

To avoid conflicts of interest with local court officers who work closely with the sheriff’s office, Thomas J. Brown with the Illinois Office of the State’s Attorney Appellate Prosecutor is trying the case. Rock Island-based 14th Judicial Circuit Court Judge Ted Kutsunis presided.

Kutsunis dismissed the charges on May 23, ruling that because Wunderlich was on duty responding to an emergency, he was immune to prosecution under state law.

Brown is appealing the dismissal with the state’s Third District Appellate Court in Ottawa. The first set of documents are due Aug. 14 and the final briefs by Nov. 6.

Wunderlich, who is represented in the traffic case by Sterling attorneys James Mertes and Gary Spencer, was off duty at his home in Fenton when sheriff’s Lt. John Booker called him in to Sterling to help in the search for a missing mental patient.

According to the State Police crash reconstruction report, his decision to turn the wrong way into the one-way lane was “the contributing factor” in Damhoff’s death.

Kutsunis noted in his ruling that the Illinois Motor Vehicle Code “requires public employees to obey the traffic laws while on duty, except under certain circumstances, [when it] grants the driver of an emergency vehicle, when responding to an emergency call, an exemption for certain violations.”

Regulations governing direction of movement or turning are among those exemptions.

Brown had argued that the situation to which Wunderlich was responding – a search for a missing mental patient – should not be characterized as an emergency, given, among other things, that multiple agencies and officers were already on scene, and that there was no evidence that the man was a danger to himself or others.

And even if the judge were to rule the incident an emergency – which he did – Brown argued that a subparagraph of the act also should apply.

It states that the act’s provisions “do not relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, nor do such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

That argument did not sway the judge.

In addition, attorneys representing Wunderlich and Whiteside County in a wrongful death suit filed by Damhoff’s widow, Lynette, are asking that the civil case be put on hold until the traffic case is resolved.

Kutsunis also is hearing that case.

Wunderlich and the county are represented in that case by Gerard W. Cook of the Chicago law firm O’Halloran, Kosoff, Geitner and Cook.

Wunderlich did not respond to questions submitted March 2 by Damhoff’s attorneys as part of the discovery process, and filed the motion for a stay instead.

By providing the requested information and explaining his side of the story, his client could compromise his right not to incriminate himself, “jeopardize his traffic case, and could result in the filing of additional charges,” Gerard Cook argues in the motion, which was filed July 5.

Even though Wunderlich “is innocent of the traffic violations,” he “must assert his Fifth Amendment privilege, and so cannot meaningfully defend this lawsuit ... [and] cannot meaningfully participate in discovery, ” Cook argues.

If the judge decides to allow the civil case to proceed, Cook requests that Wunderlich’s participation in discovery be stayed.

He also asserts that a delay will not damage Damhoff’s case, nor the public’s interest in a resolution.

Damhoff, who is represented by Trent Bush and Tom Sanders of Ward, Murray, Pace & Johnson in Sterling, filed the wrongful death suit on March 24, 2017.

In his argument against the stay, Bush notes that Wunderlich did not assert his Fifth Amendment rights in declining to answer the questions submitted, and there’s no way for the judge to know if, or assume, he will do so in the future.

In addition, not only would further delay “unfairly deprive” Damhoff of her timely day in court, but also, “as a matter of public interest, nothing seems more important or of greater interest to the public than the timely resolution of civil proceedings where a law enforcement officer is alleged to have wrongfully caused the death of one of the citizens he is duty-bound to protect,” Bush argued.

Therefore, Wunderlich has not demonstrated “clear and convincing circumstances” to justify a stay, which is his burden, he concluded.

A hearing on the motions is Aug. 8.

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