Chisem v. McCarthy , 2014 IL App (1st) 132389 ( 2015 )

Illinois Official Reports
Appellate Court
Chisem v. McCarthy, 2014 IL App (1st) 132389
Appellate Court JAMIE CHISEM, Plaintiff-Appellant, v. GARRY M. McCARTHY,
Caption Superintendent of Police of the Chicago Police Department, and THE
POLICE BOARD OF THE CITY OF CHICAGO, Defendants-
Appellees.
District & No. First District, Third Division
Docket No. 1-13-2389
Filed December 23, 2014
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CH-21729; the
Review Hon. Thomas R. Allen, Judge, presiding.
Judgment Affirmed.
Counsel on Colleen R. Daly, of Colleen R. Daly Attorney at Law, LLC, of
Appeal Chicago, for appellant.
Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant
Corporation Counsel, of counsel), for appellees.
Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Mason concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff Jamie Chisem appeals from an order of the circuit court of Cook County affirming
his five-year suspension from the Chicago police department (CPD) imposed by defendant the
Police Board of the City of Chicago (Board). On appeal, plaintiff contends that defendant
Garry M. McCarthy, the superintendent of the CPD, and the Independent Police Review
Authority (IPRA) filed untimely charges in violation of plaintiff’s right to due process, the City
of Chicago’s municipal code (City’s Code), Chicago Police Department General Order 93-03
(eff. Apr. 15, 2011), and the doctrine of laches. In addition, plaintiff contends that his five-year
suspension was against the manifest weight of the evidence. We affirm.
¶2 BACKGROUND
¶3 On February 25, 2009, an incident occurred involving a possible curfew violation at a
Chicago Walgreens located at 3405 South King Drive, between plaintiff, a CPD officer since
2003, and twin sisters Ashley and Tiffany Magby. Immediately following the encounter, the
Magbys filed a formal complaint against plaintiff alleging unprofessional conduct. The IPRA
conducted an investigation, and on December 2, 2011, the Superintendent filed charges
alleging that plaintiff had violated five CPD Rules of Conduct (rules), including:
Rule 2: “Any action or conduct which impedes the Department’s efforts to achieve
its policy and goals or brings discredit upon the Department.”
Rule 6: “Disobedience of an order or directive, whether written or oral.”
Rule 8: “Disrespect to or maltreatment of any person, while on or off duty.”
Rule 9: “Engaging in any unjustified verbal or physical altercation with any person,
while on or off duty.”
Rule 14: “Making a false report, written or oral.”
¶4 In March 2012, the Board held a three-day departmental hearing. Ashley Magby, an
emergency room nurse, testified that at approximately 10 p.m. on the night of the incident, she
and her twin sister Tiffany encountered plaintiff and another officer outside the entrance to the
Walgreens. Plaintiff asked to see their identification (IDs) for a possible curfew violation.
Being a 21-year-old woman at the time, Ashley told plaintiff that she was an adult and walked
into the store. Plaintiff then approached the Magbys by the cosmetic section and asked again to
see their IDs. Ashley complied and explained that her twin sister did not have any
identification on her. Plaintiff commented that they looked significantly younger and returned
Ashley’s ID. Ashley told plaintiff that he was trying to take advantage of the situation and
proceeded with Tiffany to the opposite end of the store to buy groceries. Plaintiff continued to
follow the Magbys into the milk aisle and asked which one of them was the oldest. The
Magbys just ignored plaintiff, selected their groceries, and walked toward the front of the store
near the cashier where plaintiff’s partner stood.
¶5 At this point, a physical altercation ensued. Plaintiff first approached Tiffany and asked her
something about her headscarf. He then “grabbed [Ashley’s] arms behind [her] back and
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pushed her towards his partner, like in a position like he was going to arrest [her], and then like
kind of got up close towards [her] back to the point where [she could] feel his stomach near
[her].” Plaintiff then said something like “we got us one” directed at his partner, who just
shook his head. Tiffany verbally tried to get plaintiff to let Ashley go and even nudged him.
After plaintiff released her, Tiffany told plaintiff he was messing with them because he had
nothing to do and he agreed. Ashley then told plaintiff that he messed with the wrong person
and she was going to inform his superintendent. He arrogantly showed her his badge number
and said something like “I was only joking with you.” He left the store and the Magbys
purchased their items at the register. Overall, Ashley felt humiliated. She believed police
officers were supposed to serve and protect, not take advantage of their authority. As soon as
she got home, she immediately called to make a police report and a sergeant came out to
document the occurrence.
¶6 Tiffany Magby, an associate producer on the Judge Mathis show, substantially
corroborated Ashley’s testimony. She also testified that when plaintiff asked about her
headscarf he reached toward the top of her head to touch it. She instinctively moved back and
told him it made her uncomfortable, but plaintiff simply laughed.
¶7 Debra King, a photo specialist at Walgreens, worked the cashier on the night of the
incident. Plaintiff’s partner was a regular customer, but she did not recognize plaintiff. She first
noticed the Magbys arguing with plaintiff as they approached the register. She heard them say
they were going to report plaintiff because he was harassing them even after he saw an ID. He
kept saying “are you serious” and apologized. The conversation lasted a few minutes and the
Magbys appeared upset.
¶8 On cross-examination, King testified that she did know the Magbys’ age, but they arguably
looked younger. No store patrons complained about an officer acting inappropriately. She also
did not see plaintiff make physical contact with the Magbys or hear plaintiff verbally remark to
his partner. She did not recognize plaintiff at the time of the incident, but did encounter him a
year prior when he gave her a traffic citation for driving without a headlight. She recalled him
being professional. Prior to the Magbys’ arrival, however, she noticed plaintiff watching a
teenage girl in a White Castle uniform. When the teenager went to exit, he inappropriately
patted her down and followed her out. On redirect examination, she did admit that plaintiff did
not pat the teenager under her clothing, and although she complained about this incident to a
Walgreens security guard, she did not make a formal complaint to the CPD.
¶9 On adverse examination, plaintiff testified that he questioned the Magbys at the Walgreens
for a possible curfew violation. One of the Magbys showed him her identification, and after he
established that there was no violation, he tried to talk to the Magbys. He did not follow them
around the store, try to flirt with them, touch one twin’s headscarf, or pull one twin’s hands
behind her back and push her toward his partner. One of the Magbys did say that she was going
to report his conduct.
¶ 10 Several character witnesses briefly testified on plaintiff’s behalf, attesting to his
professionalism, work ethic, and innate ability to defuse hostile situations. Plaintiff then retook
the stand on his own behalf and testified that he arrived at the Walgreens around 10 p.m. and
saw the Magbys, who appeared to look like young teenagers. Plaintiff asked them several
times for identification while in the candy aisle and one of the twins gave him her ID. He
recalled the Magbys being smart, sarcastic and uncooperative. He gave them the benefit of the
doubt that they were twins because he did not think they looked alike. The twin who did not
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give her ID tried to walk away and he may have grabbed her arms. He made contact with her
because he wanted to maintain the situation and continue his investigation. He explained to the
Magbys that citizens cannot walk away from police, but they did not seem to care. Plaintiff did
not follow the Magbys after this incident, but did recall having a brief conversation with them
around the checkout counter. He recalled the Magbys being upset and was thus apologetic. He
gave his badge number to one of the twins because it was customary. Overall, he believed he
was professional and did his job. He also did not inappropriately pat down a teenager in a
White Castle uniform and was not even in the Walgreens 20 minutes prior to the Magbys’
arrival.
¶ 11 On April 19, 2012, the Board concluded that plaintiff violated all five rules and discharged
him from the CPD “due to the serious nature of his conduct.” Specifically, the Board
determined that plaintiff engaged in unnecessary and inappropriate physical contact with the
Magbys, detained them in violation of CPD policy, failed to document the encounter, and
made material false official statements to the IPRA in an attempt to cover up his misconduct.
The Board also denied plaintiff’s prehearing motion to dismiss the case based on the IPRA and
superintendent’s failure to file charges in a timely manner. The court concluded that the case
was not barred by the doctrine of laches and plaintiff failed to show a violation of his right to
due process.
¶ 12 Subsequently, plaintiff filed for administrative review. In his complaint, plaintiff
contended that the case should be dismissed based on the lapse of time between the incident
and the filing of charges, and that the Board’s determination was against the manifest weight of
the evidence. On January 17, 2013, the circuit court reversed the discharge decision and
remanded for an alternative sanction. After review, the Board suspended plaintiff for five years
while noting that it believed discharge was the appropriate sanction. In response, plaintiff
challenged the suspension by filing a motion for further proceedings and judicial review, in
which he argued that the five-year suspension was against the manifest weigh of the evidence
and served as a de facto discharge. The trial court disagreed and affirmed the five-year
suspension.
¶ 13 ANALYSIS
¶ 14 Plaintiff initially contends that the superintendant and IPRA filed untimely charges in
violation of plaintiff’s right to due process, the City’s Code and CPD General Order 93-03. The
due process clause protects fundamental fairness and justice. Lyon v. Department of Children
& Family Services, 209 Ill. 2d 264, 272 (2004). Procedural due process claims question the
constitutionality of the procedures used to deny a person of life, liberty or property. Id. While
the core of due process is the right to notice and a meaningful opportunity to be heard, it is a
flexible concept and requires only such procedural protections as fundamental principles of
justice and the particular situation demand. Callahan v. Sledge, 2012 IL App (4th) 110819,
¶ 27. It is a well-established constitutional principle that every citizen has the right to pursue a
trade, occupation, business or profession. Morgan v. Department of Financial & Professional
Regulation, 374 Ill. App. 3d 275, 300 (2007). Whether a party’s constitutional rights have been
violated is reviewed de novo. Hayashi v. Illinois Department of Financial & Professional
Regulation, 2014 IL 116023, ¶ 22.
¶ 15 In the case sub judice, plaintiff’s right to due process was not violated. We first note that
plaintiff’s reliance on Morgan and Lyon is misplaced. Morgan and Lyon both involved a delay
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in the adjudication of allegations of misconduct after the respective plaintiffs had been
suspended from employment, not a delay in the investigation leading to an initial suspension.
See Morgan, 374 Ill. App. 3d at 303 (where this appellate court determined that the State
violated a clinical psychologist’s right to due process when the State took 15 months to decide
the case after the issuance of suspension); Lyon, 209 Ill. 2d at 282 (where the supreme court
determined that the director of the Department for Children and Family Services (DCFS) failed
to abide by specific regulatory time limits for decision-making after a teacher was suspended
for allegedly abusing his students). While we agree that plaintiff does have a property interest
in his employment, plaintiff was working as a paid CPD officer throughout the entire
investigation and was only suspended after charges were officially filed. In addition, he was
immediately given notice of the pending investigation and a meaningful opportunity to be
heard. Accordingly, there was no violation of plaintiff’s right to due process in this particular
situation.
¶ 16 The record before us also suggests that the IPRA did substantially comply with the City’s
Code. The City’s Code requires:
“If the chief administrator does not conclude an investigation within six months
after its initiation, the chief administrator shall notify the mayor’s office, the city
council committee on public safety, the complainant, and the employee named in the
complaint or his or her counsel of the general nature of the complaint or information
giving rise to the investigation and the reasons for failure to complete the investigation
within six months.” Chicago Municipal Code § 2-57-070 (added July 19, 2007).
Here, the IPRA notified plaintiff in a letter approximately six months after the investigation
began that it was still ongoing because witness cooperation was needed. Nothing in the specific
ordinance requires continued notification on the IPRA’s part as plaintiff suggests or that failure
to strictly comply results in the automatic dismissal of a complainant’s case. See City of
Marengo v. Pollack, 335 Ill. App. 3d 981, 986 (2002) (municipal ordinances are interpreted
under the rules of statutory construction and the best evidence of the drafter’s intent is the
language of the ordinance, which must be given its plain and ordinary meaning). Plaintiff cites
no authority to support either of these contentions as required by Illinois Supreme Court Rule
341(h)(7) (eff. Feb. 6, 2013), and we will not consider this matter further. See Bartlow v.
Costigan, 2014 IL 115152, ¶ 52 (it is well settled that a reviewing court is entitled to clearly
defined issues and citations to pertinent authority).
¶ 17 We also observe no direct violation of General Order 93-03, which requires a prompt and
thorough investigation. Although the investigation took a substantial amount of time, this
directive does not set an absolute deadline within which investigations must be completed, but
provides that if the investigation lasts more than 30 days, the investigator must seek and obtain
an extension of time within which to complete the investigation. See Chicago Police
Department General Order 93-03 (eff. Apr. 15, 2011). The IPRA regularly sought and was
granted extensions of time to complete its investigation. Once completed, CPD directives
required the matter to be further reviewed at several levels. And even if a violation occurred,
nothing in the directive suggests, and plaintiff provides no support for, the presumption that
automatic dismissal is the sanction. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Thus, there
was no due process violation.
¶ 18 In the alternative, plaintiff contends that his charges are barred by the doctrine of laches.
On the merits, laches is an equitable doctrine that precludes the assertion of a claim by a
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litigant whose unreasonable delay in raising that claim has prejudiced the opposing party. City
of Chicago v. Alessia, 348 Ill. App. 3d 218, 228 (2004). The doctrine is grounded in the
equitable notion that courts are reluctant to aid a party who has knowingly slept on his rights to
the detriment of the opposing party. Id. Two elements are necessary to find laches: (1) lack of
diligence by the party asserting the claim; and (2) prejudice to the opposing party resulting
from the delay. In re Sharena H., 366 Ill. App. 3d 405, 413 (2006). A mere lapse in time from
the accrual of a cause of action to the filing of a lawsuit is insufficient to support a laches
defense. Madigan ex rel. Department of Healthcare & Family Services v. Yballe, 397 Ill. App.
3d 481, 493 (2009). Moreover, as a general rule, the doctrine of laches does not apply to
governmental entities absent extraordinary circumstances because laches could impair the
functioning of the government, which, in turn, would adversely affect the public. Id. at 493-94.
The decision with respect to whether laches should be invoked is generally a discretionary
matter. Van Milligan v. Board of Fire & Police Commissioners, 158 Ill. 2d 85, 91 (1994). We
will not disturb the Board’s determination “unless that determination is so clearly wrong as to
constitute an abuse of discretion.” (Internal quotation marks omitted.) Lozman v. Putnam, 379
Ill. App. 3d 807, 822 (2008).
¶ 19 In the instant case, plaintiff fails to establish prejudice resulting from the delay in filing.
We have already discussed above that plaintiff was not prejudiced by losing his employment
because he was gainfully employed until charges were filed and was only denied employment
after a fair hearing. Plaintiff’s blanket statement that he was prejudiced by his inability to find
counterevidence does not alone constitute an extraordinary circumstance. The record does not
demonstrate that any material witness was unavailable to testify or that the Magbys had trouble
with their overall recollection of events. See Bultas v. Board of Fire & Police Commissioners,
171 Ill. App. 3d 189, 195 (1988) (the court concluded that the plaintiff was not prejudiced by
the filing delay when the plaintiff presented only evidence of conflicting testimony without
any evidence of witnesses testifying doubtfully or material witnesses being unavailable to
testify); cf. Mank v. Board of Fire & Police Commissioners, 7 Ill. App. 3d 478, 485 (1972) (the
court found the delay prejudiced the plaintiff when several witnesses were not available to
testify). Therefore, we cannot say that the Board abused its discretion in concluding that no
extraordinary circumstances existed to warrant triggering the invocation of laches. See Van
Milligan, 158 Ill. 2d at 91 (where the supreme court did not find a valid basis to disturb the
discretionary determination of the police board when the plaintiff failed to establish prejudice
by the approximate five-year delay in filing disciplinary charges against him).
¶ 20 Plaintiff further contends that the trial court erred in affirming his five-year suspension
because it was against the manifest weight of the evidence based on major inconsistencies in
trial testimony and his reputation as a decorated officer. In an appeal from the judgment of an
administrative review proceeding, this court reviews the decision of the administrative agency
and not the decision of the circuit court. Krocka v. Police Board, 327 Ill. App. 3d 36, 46
(2001). The scope of review of an administrative agency’s decision regarding discharge
requires a two-step analysis. Department of Mental Health & Developmental Disabilities v.
Civil Service Comm’n, 85 Ill. 2d 547, 550 (1981). First, the court must determine whether the
administrative agency’s findings of fact are against the manifest weight of the evidence. Id.
Second, the court must determine if the findings of fact provide a sufficient basis for the
Board’s conclusion that cause for discharge exists. Crowley v. Board of Education of the City
of Chicago, 2014 IL App (1st) 130727, ¶ 29. Because the Board is in the best position to
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determine the effect of an officer’s conduct on the operations of the department, its
determination of cause is given considerable deference. Robbins v. Department of State Police
Merit Board, 2014 IL App (4th) 130041, ¶ 39. Thus, we may not consider whether we would
have imposed a more lenient sentence. Krocka, 327 Ill. App. 3d at 48. Accordingly, the
Board’s decision is to be overturned only if it is arbitrary and unreasonable, or unrelated to the
requirements of the service. Siwek v. Police Board, 374 Ill. App. 3d 735, 738 (2007).
¶ 21 Based on our review of the record, we cannot say that the Board’s findings were
unreasonable. Testimony supported the Board’s determination that plaintiff engaged in
unnecessary and inappropriate physical contact with the Magbys when plaintiff unjustifiably
restrained Ashley as if to arrest her and proceeded to touch Tiffany’s headscarf. Plaintiff
himself admitted he may have grabbed one of the Magbys’ arms. It was also undisputed that
plaintiff followed and detained the Magbys longer than was required to determine if there was
probable cause to arrest. Plaintiff further failed to document the encounter, complete a
“Contact Information Card,” and made a false official statement to the IPRA. In addition,
plaintiff and King corroborated the Magbys’ testimony that they became upset after the
encounter, that they informed plaintiff of their intention to report him, and that plaintiff
apologized. While we agree with plaintiff that there is conflicting testimony in terms of his
version of events and the Magbys, plaintiff is in fact asking us to reweigh the evidence and
make credibility determinations, which we will not do upon our review. See Edwards v.
Addison Fire Protection District Firefighters’ Pension Fund, 2013 IL App (2d) 121262, ¶ 34
(the board, as the finder of fact, makes credibility determinations and assigns weight to
testimony and other evidence; we do not weigh the evidence or substitute our judgment for that
of the board).
¶ 22 Furthermore, the record does not substantiate that King held any bias toward plaintiff for
issuing her a prior traffic violation. King initially did not even recognize plaintiff, testified that
plaintiff behaved professionally, and paid no fines. We also find plaintiff’s contention that he
should have been allowed to introduce a surveillance video into evidence to rebut King’s
testimony that she witnessed plaintiff inappropriately search a teenage girl immaterial. Even if
the surveillance video verified plaintiff’s contention and King was mistaken about the identity
of the officer, the Board still had ample evidence as discussed above to find that plaintiff
violated five rules. Accordingly, we cannot conclude that the Board’s findings of fact were
against the manifest weight of the evidence.
¶ 23 We next consider whether the findings of fact provide a sufficient basis for the Board’s
conclusion that cause for a suspension exists. “Cause” has been defined as “some substantial
shortcoming which renders [the employee’s] continuance in his office or employment in some
way detrimental to the discipline and efficiency of the service and something which the law
and a sound public opinion recognize as a good cause for his [discharge].” (Internal quotation
marks omitted.) Launius v. Board of Fire & Police Commissioners, 151 Ill. 2d 419, 435
(1992). Illinois courts have recognized that “police departments, as paramilitary organizations,
require disciplined officers to function effectively and have accordingly held that the
promotion of discipline through sanctions for disobedience of rules, regulations and orders is
neither inappropriate nor unrelated to the needs of a police force.” Siwek, 374 Ill. App. 3d at
738. Consequently, even an officer’s violation of a single rule has long been held to be a
sufficient basis for termination. Kinter v. Board of Fire & Police Commissioners, 194 Ill. App.
3d 126, 134 (1990).
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¶ 24 Here, competent evidence supported the Board’s finding that sufficient cause to issue
plaintiff a five-year suspension existed because plaintiff’s conduct was unprofessional and
unbecoming of a CPD officer. As discussed above, plaintiff engaged in unnecessary and
inappropriate physical contact with two young women and unlawfully detained them. He also
failed to document the encounter and made a false official statement. There is no question that
such disregard of the rules is detrimental to the discipline and efficiency of the CPD. See
Krocka, 327 Ill. App. 3d at 48-49 (“[i]t is apparent that a police officer who does not abide by
the laws that he has a duty to enforce will impair the discipline and efficiency of the police
force” (internal quotation marks omitted)). Plaintiff’s overall conduct also directly related to
his service as a CPD officer. Even Ashley testified that she believed police officers were
supposed to serve and protect, not intimidate and take advantage of their authority. See Remus
v. Sheahan, 387 Ill. App. 3d 899, 904 (2009) (a law-enforcement officer is in a unique position
of public trust and responsibility, thus he must at all times exercise sound judgment and uphold
his responsibilities to the public and the department). Therefore, it was not unreasonable for
the Board to find that a five-year suspension was warranted to deter similar acts of misconduct
and protect the CPD’s morale with the public. See Kappel v. Police Board, 220 Ill. App. 3d
580, 594 (1991) (it is important to effectively deter similar acts of misconduct by other officers
to maintain the public’s confidence in the department).
¶ 25 We also reject plaintiff’s contention that a five-year suspension was too harsh. It is only our
purview to consider whether the Board’s punishment was unreasonable given the
circumstances, not whether we would have imposed a more lenient sentence. See id. at 590 (it
is the Board, rather than the court, which is best able to determine the effect of the officer’s
conduct on the proper operation of the department and issue an appropriate sanction).
Plaintiff’s reliance on cases where the Board issued a lighter suspension is misplaced, as this
argument is only persuasive where an agency has given different treatment to two respondents
in identical situations. See Launius, 151 Ill. 2d at 441-42 (the fact that different individuals had
been disciplined disparately was not a basis for concluding that the board’s disciplinary
decision was unreasonable; such conclusions were only appropriate when individuals received
different discipline in a single, identical, “completely related” case); cf. Washington v. Civil
Service Comm’n, 98 Ill. App. 3d 49, 57 (1981) (where the reviewing court found the 29-day
suspension unduly harsh when the plaintiff was accused of allegedly propositioning a female
civilian for sex in exchange for leniency); Keen v. Police Board, 73 Ill. App. 3d 65, 74 (1979)
(where the reviewing court affirmed the Board’s one-year suspension when the plaintiff
allegedly made unwanted sexual advances toward a female civilian). The record also
substantiates that the Board fully complied with the circuit court’s order on remand and
plaintiff’s suspension did not serve as a de facto discharge as he can return to active duty in the
future. Consequently, based on the record as a whole, we cannot say that the Board’s decision
to issue plaintiff a five-year suspension was arbitrary, unreasonable, or unrelated to the
requirements of service.
¶ 26 CONCLUSION
¶ 27 Based on the foregoing, we affirm the decision of the Board.
¶ 28 Affirmed.
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