Opinion

Franko v. Police Board of Chicago

  • 462 Ill. Dec. 446
  • 207 N.E.3d 178
  • 2021 IL App (1st) 201362
Court
Appellate Court of Illinois
Filed
Nov 12, 2021
Status
Published
Cited by
6 cases
Authority
More cited than 52.2%

The opinion

Digitally signed

by Reporter of

Decisions

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Illinois Official Reports the accuracy and

integrity of this

document

Appellate Court Date: 2023.04.13

10:07:11 -05'00'

Franko v. Police Board of Chicago, 2021 IL App (1st) 201362

Appellate Court STEPHEN FRANKO, Plaintiff-Appellant, v. THE POLICE BOARD

Caption OF THE CITY OF CHICAGO and DAVID O. BROWN,

Superintendent of Police, Defendants-Appellees.

District & No. First District, Fourth Division

No. 1-20-1362

Filed November 12, 2021

Decision Under Appeal from the Circuit Court of Cook County, No. 19-CH-9205; the

Review Hon. Celia Gamrath, Judge, presiding.

Judgment Affirmed.

Counsel on Donna M. Dowd, of Chicago, for appellant.

Appeal

Celia Meza, Corporation Counsel, of Chicago (Myriam Zreczny

Kasper, Ellen Wight McLaughlin, and Sara K. Hornstra, Assistant

Corporation Counsel, of counsel), for appellees.

Panel JUSTICE ROCHFORD delivered the judgment of the court, with

opinion.

Justices Lampkin and Pucinski concurred in the judgment and opinion.

OPINION

¶1 On August 30, 2016, the superintendent of police (Superintendent) brought charges before

the Police Board of the City of Chicago (Police Board) against plaintiff, Sergeant Stephen

Franko, seeking his termination from the Chicago Police Department (CPD) for violations of

several rules of conduct stemming from the October 20, 2014, shooting of Laquan McDonald

by Officer Jason Van Dyke. The charges arose from plaintiff’s approval of allegedly false

reports prepared by subordinate officers about McDonald’s shooting and the failure to ensure

that his subordinate officers’ in-car audio systems were operational. After a three-day hearing,

the Police Board found plaintiff guilty of all charges and discharged him. On administrative

review, the circuit court affirmed. Plaintiff appeals, contending that (1) the Police Board erred

by consolidating his case with three other police officers who were at the scene of McDonald’s

shooting, (2) the Police Board erred by staying its proceedings against him until the completion

of the criminal trial against Van Dyke, and (3) the Police Board’s findings that he violated

CPD rules were against the manifest weight of the evidence and its decision to discharge him

was without cause. We affirm.

¶2 On October 20, 2014, plaintiff was a field sergeant whose responsibilities included

monitoring the officers assigned to him and approving their reports. Officers Dora Fontaine,

Janet Mondragon, Daphne Sebastian, Joseph McElligot, Thomas Gaffney, and Ricardo

Viramontes were under plaintiff’s supervision that night. According to McElligot, he and

Gaffney responded to a 911 call and saw McDonald, armed with a knife and walking around

near the 4100 block of Kildare Avenue. McDonald stabbed their car tire and scratched their

car window with the knife and ran away. Plaintiff heard a CPD dispatch stating that McElligot

and Gaffney were requesting a Taser. Driving to the location, plaintiff heard a transmission

about shots fired. Before plaintiff arrived at the scene, Van Dyke fired 16 shots at McDonald

and killed him.

¶3 Plaintiff went to work securing the scene after the shooting. He spoke to Van Dyke and his

partner, Officer Joseph Walsh, then drove them to the police station so they could complete

and submit reports related to the shooting. Van Dyke and Walsh each completed a tactical

response report (TRR) and an officer’s battery report (OBR) indicating that McDonald had

attacked and battered them both prior to the shooting. Specifically, both officers checked boxes

on the TRRs stating that McDonald had posed an “imminent threat of battery,” “attacked with

[a] weapon,” and used “force likely to cause death or great bodily harm.” They each checked

a box on the respective OBRs describing the “manner of attack” as “stabbed, cut” and stated

that three officers had been battered in total (although they never specifically identified the

third officer allegedly attacked and battered). In addition, Fontaine prepared a case incident

report that listed Van Dyke, Walsh, and Gaffney as “victims” and stated that Van Dyke was

“injured.” Plaintiff signed all five reports prepared by Van Dyke, Walsh, and Fontaine and

submitted them to the on-call incident commander (OCIC), Deputy Chief David McNaughton,

for review.

¶4 The CPD’s Bureau of Internal Affairs began an investigation into the shooting but the

Superintendent referred the matter to the Office of the Inspector General (OIG).

¶5 Viramontes, Mondragon, and Sebastian, who were all at the scene of the shooting, made

statements. Viramontes stated that immediately prior to the shooting, McDonald turned toward

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Van Dyke and Walsh. After McDonald was shot, he fell to the ground but then attempted to

get back up with the knife in his hand.

¶6 Mondragon stated that she and her partner, Sebastian, arrived at the scene after receiving a

radio call and saw McDonald running southbound on Pulaski while waving a knife.

Mondragon heard Van Dyke and Walsh order McDonald to drop the knife. Mondragon then

looked down while placing her vehicle transmission into park and heard multiple gunshots, but

she did not see who fired the shots.

¶7 Sebastian stated that after arriving at the scene, she saw McDonald running down Pulaski

Road while waving a knife. Van Dyke and Walsh pulled ahead of McDonald, exited their

vehicle with guns drawn, and ordered McDonald to drop the knife. McDonald ignored their

command and advanced toward the two officers while continuing to wave the knife. Sebastian

heard multiple gun shots and saw McDonald fall to the ground.

¶8 During the investigation of the incident, the CPD recovered a dashcam video of the

shooting from Mondragon and Sebastian’s police car. The dashcam video did not contain any

audio recordings. However, the video showed that at the time of the shooting, McDonald was

moving away from the officers and was not waving the knife at them, contrary to the statements

in the TRRs and OBRs made by Van Dyke and Walsh and signed off on by plaintiff, which

indicated that McDonald had posed an imminent threat of battery likely to cause death or great

bodily harm and had stabbed and cut the officers. The video also contradicted the case incident

report prepared by Fontaine and signed off by plaintiff indicating that Van Dyke, Walsh, and

Gaffney were victims of McDonald’s attack and that Van Dyke was injured by McDonald. The

video contradicted Viramontes’s statement that McDonald turned toward the officers prior to

the shooting and that he attempted to get up after the shooting, and it also contradicted

Sebastian’s statement that McDonald advanced toward the officers while waving the knife.

Finally, the video showed that Mondragon’s police car was moving for the first four seconds

of the shooting, contradicting her statement that she was putting the car into park during that

time frame and was unable to see the shooting.

¶9 On August 30, 2016, the Superintendent brought charges before the Police Board against

plaintiff, Van Dyke, Walsh, Mondragon, Sebastian, and Viramontes, recommending that all

six officers be discharged. 1 With respect to plaintiff, the Superintendent alleged that he had a

duty to ensure the accuracy of the police reports made by the officers assigned to him and that

he approved false, misleading, or inaccurate statements in Fontaine’s case incident report and

in the TRRs and OBRs prepared by Van Dyke and Walsh. The Superintendent further alleged

that plaintiff failed to monitor his subordinates to ensure they maintained a practice of using

audio in the in-car video systems, failed to ensure that the audio was operational, and did not

maintain an accurate log of the status of the in-car systems.

¶ 10 The Superintendent charged that plaintiff’s approval of the false statements made by Van

Dyke and Walsh in the TRRs and OBRs violated several CPD Rules of Conduct, specifically:

Rule 2, which prohibits conduct that “impedes the Department’s efforts to achieve its policy

and goals or brings discredit upon the Department”; Rule 3, which prohibits “[a]ny failure to

promote the Department’s efforts to implement its policy or accomplish its goals”; and Rule

14, which prohibits making “a false report, written or oral.” The Superintendent charged that

1

After Van Dyke’s conviction, the hearing officer subsequently severed his case. Walsh resigned

from the CPD.

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plaintiff’s approval of the false statements made by Fontaine in the case incident report also

violated Rules 2 and 3 (but not Rule 14). The Superintendent charged that plaintiff’s failure to

supervise the use of the in-car audio systems violated Rules 2 and 3, as well as Rule 6, which

prohibits “[d]isobedience of an order or directive,” and Rule 11, which prohibits

“[i]ncompetency or inefficiency in the performance of duty.”

¶ 11 The Superintendent also charged Viramontes, Sebastian, and Mondragon with violations

of Rules 2, 3, and 14 for making false statements about Van Dyke’s shooting of McDonald.

Sebastian and Mondragon were additionally charged with violating Rules 2, 3, 6, and 11 in

connection with their failures to use the in-car audio system on the night of the shooting.

¶ 12 On September 1, 2016, plaintiff was served with a suspension notification, informing him

that he would be suspended without pay for 30 days for the rules violations pending a

separation hearing.

¶ 13 Without objection, the assigned hearing officer consolidated the cases against plaintiff,

Van Dyke, Mondragon, Sebastian, and Viramontes for discovery and motion practice. The

parties proceeded to engage in discovery, exchanging thousands of pages of documents in

preparation for the hearing. On December 16, 2016, Joseph H. McMahon, the special

prosecutor appointed to prosecute Van Dyke, moved for a stay of the Police Board proceedings

until the completion of Van Dyke’s criminal trial. McMahon explained that, as a prosecutor,

he has “a duty to prevent those who are not under the direct supervision of the prosecutor from

making extrajudicial comments that pose a serious or immense threat of heightening public

condemnation of [Van Dyke].” McMahon further stated that reports of the Police Board

proceedings could make Van Dyke’s statements public and that the judge presiding over Van

Dyke’s criminal trial had issued a “decorum order” prohibiting the parties from releasing any

extrajudicial statement of Van Dyke or any witness relating to the criminal case.

¶ 14 On January 5, 2017, Patricia Brown Holmes, the special prosecutor appointed to investigate

whether charges should be filed against any other CPD personnel in connection with the

McDonald shooting, moved to join the request for a temporary stay of the Police Board

proceedings until the outcome of the ongoing criminal proceedings. Holmes explained that in

Garrity v. New Jersey, 385 U.S. 493 (1967), the United States Supreme Court held that the

fourteenth amendment prohibits the use in criminal proceedings of coerced statements obtained

from officers under the threat of removal from office. Holmes argued that “a stay was critical

to protecting the constitutional rights of the officers involved, and particularly their right not

to have statements they made to investigators, on pain of their discharge *** publicized in

connection with the Police Board proceedings.” Such statements “are inadmissible in criminal

court under Garrity” and, “in her criminal prosecution, [they] cannot be used, nor can

information garnered from the coerced statements be used against the officers.”

¶ 15 On May 3, 2017, McMahon withdrew his motion for a stay of the Police Board

proceedings, but at a hearing held on May 16, 2017, Holmes stated that she was still seeking a

stay. On May 17, 2017, Van Dyke filed his own motion for a stay, arguing that “the publication

of Garrity-protected statements, which the Superintendent intends to use as evidence in the

Police Board cases, would pose a serious or imminent threat of further public condemnation in

his case and prejudice him in his upcoming criminal trial.”

¶ 16 The Police Board granted the motions for a stay on June 12, 2017, explaining that the

Superintendent would “rely extensively on the Garrity-protected and coerced statements of all

five of the respondents” and that prosecutors, grand jurors, regular jurors, and/or witnesses in

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the criminal case against Van Dyke would likely be exposed to those Garrity-protected

statements through the media. The Police Board reasoned that “if a prosecutor, grand juror,

jury member, or witness is exposed to the contents of a Garrity-protected statement, through

the media or otherwise, the police officer’s criminal case [may] be tainted and the charges

against him *** dismissed.” The Police Board concluded that it would be a “disservice” to go

forward with “the Police Board discharge cases” because doing so might “prejudice or

jeopardize” the criminal case against Van Dyke and any related cases the special prosecutor

might bring.

¶ 17 The Police Board further recognized that “an administrative agency may not indefinitely

postpone its adjudication of cases” where a legitimate property interest is at stake without

offending due process. Because Illinois law provides that Chicago police officers cannot be

discharged except for cause, all the charged officers had a property interest in their jobs, which

interest was harmed by the postponement of the hearings as well as their ongoing suspensions

without pay. Accordingly, the Police Board vacated the hearing officer’s determination that

the officers’ cases warranted extended suspensions of longer than 30 days and restored plaintiff

to active duty with pay on June 16, 2017, pending resolution of the hearing. However, plaintiff

did not receive back pay for the nine months he was suspended prior to his reinstatement.

¶ 18 Meanwhile, in the criminal case, Van Dyke was found guilty of second degree murder and

16 counts of aggravated battery with a firearm on October 5, 2018. On October 10, 2018, the

Superintendent moved to vacate the stay of the Police Board proceedings, explaining that such

proceedings would no longer prejudice any criminal case because Van Dyke had been found

guilty and no criminal charges had been brought against plaintiff or the other respondents. The

Police Board vacated the stay on November 29, 2018.

¶ 19 In a prehearing order, the hearing officer determined that plaintiff’s case should be

consolidated with Mondragon’s, Sebastian’s, and Viramontes’s cases for hearing. He reasoned

that the charges against all four respondents arose out of the McDonald shooting and that there

was extensive overlap in witnesses and exhibits.

¶ 20 At the hearing, the Superintendent presented evidence about the five reports that plaintiff

approved after the shooting, namely, the TRRs and OBRs prepared by Van Dyke and Walsh

and the original case incident report prepared by Fontaine.

¶ 21 Sergeant Larry Snelling testified that the purpose of a TRR “is to accurately document the

officer’s response to a subject’s actions.” CPD General Order G03-02-05, titled “Incidents

Requiring The Completion Of A Tactical Response Report,” states that a TRR “will be used”

to document “all incidents which involve a subject fitting the definition of an assailant whose

actions are directed against a Department member or directed against another person and the

member intervenes.” CPD General Order G03-02-02, titled “Force Options,” states that an

“assailant” is “a subject who is using or threatening the imminent use of force against

himself/herself or another person.” Assailants are further divided into three categories, based

on whether their actions are “aggressively offensive without weapons,” “will likely cause

physical injury,” or “will likely cause death or serious physical injury.” Under the CPD General

Order G03-02-02, firearms and other deadly force are appropriate only when “dealing with an

assailant whose actions will likely cause death or serious physical injury to another.”

¶ 22 Snelling testified that if an officer is battered or assaulted, he also completes an OBR. CPD

Special Order S04-13-01, titled “Officer’s Battery Reporting Procedures,” requires an OBR

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when “a sworn member is the victim of *** battery, aggravated assault, or assault while

performing a police function either on-duty or off-duty.”

¶ 23 Snelling testified that field sergeants review TRRs and OBRs and check them for “accuracy

and completeness,” and then they are forwarded on for further review by the lieutenant and the

deputy chief. The sergeant’s responsibility for initially reviewing the TRRs and OBRs for

accuracy and completeness is set out in several CPD orders. CPD Special Order S03-02-04,

titled “Clear Automated Tactical Response Report,” states that a “field supervisor will ***

review any submitted A-TRRs, ensuring completeness and accuracy.” CPD Special Order 03-

03-06, titled “District Field Sergeants,” states that “Field sergeants will ensure TRRs are

properly completed and forwarded for approval.”

¶ 24 Plaintiff approved the TRRs and OBRs prepared by Van Dyke and Walsh, as well as the

initial case incident report prepared by Fontaine. Tina Skahill, commander/director of the

Bureau of Internal Affairs, testified that the initial case incident report is used to document the

preliminary incident investigation. The supervising sergeant’s signature on the case incident

report signifies that he read the report and ensured its accuracy and completeness. If the

sergeant becomes aware of evidence demonstrating that the case incident report is inaccurate,

his responsibility is to “address the issue with the individual who wrote the report and

investigate the discrepancies.” The sergeant may not ignore evidence disproving the report.

For example, Skahill testified that the sergeant would have a duty to investigate further if the

case incident report stated that an officer was injured even though the officer told the sergeant

that he was uninjured. Also, if the sergeant had access to a videotape depicting the incident, he

has an obligation to review that video before signing off on the case incident report.

¶ 25 Skahill further testified that when a sergeant reviews a report, whether a TRR, OBR, or

case incident report, he has “a duty to ensure as much as [he] can whether or not the information

contained in the report is accurate. [He] may not put [his] head in the sand and say [he] won’t

look at anything other than whether a box is filled in and whether [he] can read it. [He] must

assess the information.”

¶ 26 Plaintiff testified, contrary to Skahill, that he only reviewed the TRRs and OBRs for

“legibility and completeness” to ensure that they were completed as the instructions indicated

and to verify that the necessary boxes were checked off, but he did not check their accuracy or

approve them; instead, after signing off on their legibility and completeness, he sent the TRRs

and OBRs to the OCIC, McNaughton, for his approval.

¶ 27 The Superintendent presented evidence that plaintiff knew or should have known that the

TRRs, OBRs, and case incident report he signed contained false information. The first

inaccuracy was that the case incident report stated that Van Dyke was “injured by offender,”

when he was not. Skahill explained that such a “major discrepancy” was “apparent in the

reports” because the “original case report *** noted an injury to the officer, but on the OBR,

it said no injury.” Plaintiff also testified that when he talked with Van Dyke and Walsh at the

scene, he asked if they were “okay” and both officers said yes. Van Dyke did not verbally

complain to plaintiff that he had been physically injured, did not make any claims of being

injured at all, and was not bleeding anywhere. Plaintiff drove Van Dyke to the police station,

and during the ride, he appeared uninjured. Van Dyke also did not fill out an “Injury on Duty”

report, which was a required first step for seeking medical follow-up for an injury.

¶ 28 Van Dyke’s and Walsh’s TRRs also inaccurately checked off boxes stating that McDonald

was an “assailant” who attacked with a weapon and assaulted them with “force likely to cause

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death or great bodily harm.” Van Dyke and Walsh each filled out an OBR inaccurately stating

that McDonald had battered them (and had also battered an additional unidentified officer) and

that the manner of attack was “stabbed/cut.” Snelling testified that a reasonable officer would

not have checked the “Assailant Assault box” because after viewing the dashcam video, “the

only thing that [one] can see here is [McDonald] walking, the officers exit their vehicle, and it

appears that [McDonald] is walking on an angle away from the officers, and at some point

[Van Dyke] discharges his weapon, [McDonald] spins and hits the ground.” In Snelling’s view,

there was nothing “that could remotely be interpreted as [McDonald] committing a battery on

this video.” Snelling further testified:

“Q. Why don’t [McDonald’s] actions continuing to walk with his knife in his hand

make him an assailant?

A. Because *** a subject becomes an assailant when that subject commits an act of

furtherance other than just being armed. Police officers come in contact with people

who are armed all the time. There are three components you need for a deadly threat.

The weapon system, delivery system, and intent. So *** when you look at this video

and you see the weapon system, you see the delivery system, obviously the question

here would be the intent. If there was a movement in furtherance toward the officer that

you could actually see in the video, then it would rise to the level of deadly force, but

I can’t see it in the video.”

¶ 29 Plaintiff testified that after returning to the police station following the shooting, the

dashcam video was being viewed by detectives on a laptop computer but he only watched “bits

and pieces” of it because he did not “enjoy watching people be shot.” Plaintiff admitted that in

the portion of the video that he viewed, he did not see McDonald commit a battery nor did he

see McDonald use any force that could have caused death or great bodily harm to Van Dyke.

¶ 30 In addition to the evidence that plaintiff signed off on inaccurate reports falsely indicating

that McDonald had battered the officers and threatened deadly force, the Superintendent also

presented evidence of plaintiff’s failure to ensure that his subordinates’ in-car audio systems

were operational.

¶ 31 Plaintiff testified that, in October 2014, CPD patrol cars were equipped with dashboard-

mounted video cameras. Each patrol officer was assigned a microphone that linked to the in-

car video system. The in-car video system automatically engaged audio and video recording

when the car’s emergency roof lights were activated. Retired Sergeant Lance Becvar, who

“headed up the squad that monitored the in-car cameras’ day-to-day operations,” testified that

when the officers entered their squad cars, they were supposed to check that the in-car video

system was working and “put the microphones on their person.” CPD Special Order S03-05,

titled “In-Car Video Systems,” states that “at the beginning of a tour of duty,” officers are to

ensure the audio recorder is “securely attached to the member’s person.”

¶ 32 CPD Special Order S03-03-03, “District Field Sergeants,” states that field sergeants are

required to “monitor subordinates to ensure the in-car video system is used properly, including

*** verifying that the in-car video systems, including microphones, are operational and

subordinates are logged into the system.” CPD Special Order S03-05 states that the sergeant

assigned to supervise department members using department vehicles equipped with an in-car

video system is required to “monitor subordinates to ensure the in-car video system is used”

and “document on the Supervisor’s Management Log *** whether each vehicle has an in-car

video system and if it is functioning.”

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¶ 33 On his supervisor’s management log for the night before the shooting, plaintiff did not

check the boxes indicating whether the in-car camera system was operable for the vehicles

used by Sebastian, Mondragon, Viramontes, and Fontaine. Plaintiff testified that he sent

Sebastian and Mondragon messages over the portable data terminal system asking for the status

of their camera system, which included the audio and visual capabilities. Sebastian testified

that plaintiff never specifically asked her about the status of the microphone in her squad car

and she did not check to ensure that it was working, nor did she attach it to her body.

Mondragon similarly testified that she did not attach the microphone to her body.

¶ 34 Becvar testified that he checked the squad cars for video after the McDonald shooting and

did not recover any audio recordings. Mondragon’s and Sebastian’s microphones were in the

glove box, and the microphone batteries were installed upside down.

¶ 35 Following all the evidence, the Police Board issued a decision finding plaintiff guilty of all

the charges against him. The Police Board noted that as the first on-scene supervisor at the

scene of the shooting, plaintiff was tasked with “reviewing and approving the critical case

reports” and he “had a duty *** not merely to sign the reports, but to determine if these reports

were complete and accurate before signing them.” He “failed to do so and thus violated his

duties” because the reports he approved “contained several demonstrable and known

falsehoods, including *** that Officer Van Dyke was injured by Laquan McDonald, that

Officers Van Dyke and Walsh were victims, and that Mr. McDonald assaulted and committed

battery against them by attacking them with a weapon, using force likely to cause death or

great bodily harm.”

¶ 36 The Police Board found that plaintiff’s testimony that he did not watch the entirety of the

dashcam video “incredible” because it was “the key piece of contemporaneous evidence as to

what had happened” and was available to plaintiff “for hours.” Plaintiff had “an obligation to

view the video in order to determine if the accounts given by Officers Van Dyke and Walsh

were complete and accurate.” He could not “put his head in the sand.” Therefore, when plaintiff

approved the TRRs, OBRs, and case incident report, he should have known everything

contained in the video.

¶ 37 The Police Board rejected plaintiff’s argument that he was only required to review the

TRRs and OBRs for “legibility” and to ensure that all the boxes on the forms were completed

but that he had no responsibility to approve them for accuracy. The Police Board found that

plaintiff’s “decision to sign off on reports he knew were false represents a major and serious

failure of leadership” and constituted a violation of CPD Rules 2, 3, and 14.

¶ 38 The Police Board also found plaintiff guilty of violating CPD Rules 2, 3, 6, and 11 by

failing to ensure that his subordinates were using the audio component of the in-car video

systems.

¶ 39 The Police Board discharged plaintiff. The Police Board also discharged Viramontes,

Mondragon, and Sebastian, finding that Viramontes and Mondragon violated CPD Rules 2, 3,

and 14, and that Sebastian violated Rules 2 and 3 for making false statements to detectives

regarding the shooting. Mondragon and Sebastian were each found guilty of violating Rules 2,

3, 6, and 11 for failing to inspect the in-car video system and attach the audio recorder to their

person and audibly record McDonald’s shooting.

¶ 40 Plaintiff filed a complaint for administrative review in the circuit court, arguing that the

hearing officer’s decision to consolidate his case with those of Viramontes, Mondragon, and

Sebastian was an abuse of discretion. Plaintiff also argued that the Police Board’s findings

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against him were against the manifest weight of the evidence and that its decision to terminate

him was clearly erroneous.

¶ 41 The circuit court affirmed the Police Board. Plaintiff appeals.

¶ 42 As the reviewing court, we review the decision of the Police Board, not the circuit court.

Krocka v. Police Board of Chicago, 327 Ill. App. 3d 36, 46 (2001). We apply a two-step

analysis for reviewing the Police Board’s discharge decision. Id. First, we determine whether

the Police Board’s findings are against the manifest weight of the evidence (id.), meaning that

the opposite conclusion is clearly evident. Abrahamson v. Illinois Department of Professional

Regulation, 153 Ill. 2d 76, 88 (1992). If the record contains evidence supporting the Police

Board’s findings, they should be affirmed. Id.

¶ 43 Second, we determine whether the findings of fact provide a sufficient basis for the Police

Board’s conclusion that cause for discharge exists. Krocka, 327 Ill. App. 3d at 46. We will not

reverse the Police Board’s decision as to cause unless it was arbitrary, unreasonable, or

unrelated to the requirements of service. Id.

¶ 44 Plaintiff contends that it was against the manifest weight of the evidence for the Police

Board to find that he violated CPD Rules 2, 3, and 14 by signing off on the false statements in

the TRRs and OBRs prepared by Van Dyke and Walsh regarding how McDonald attacked

each of them (plus a third unidentified officer) with a weapon and stabbed/cut them while using

force likely to cause death or great bodily harm. Plaintiff also argues that it was against the

manifest weight of the evidence for the Police Board to find that he violated Rules 2 and 3 by

signing off on the false statement in the case incident report prepared by Fontaine regarding

how McDonald victimized Van Dyke, Walsh, and Gaffney and injured Van Dyke. Plaintiff

argues that he was not present at or near the time of the shooting and therefore he properly

relied on Van Dyke’s, Walsh’s, and Fontaine’s statements recounting McDonald’s conduct

just prior to the shooting. To his knowledge at that time, their statements were accurate and

complete when he signed off on them and he was not willfully or materially intending to

approve false reports. Plaintiff also argues that he did not view the portions of the dashcam

video refuting Van Dyke’s, Walsh’s, and Fontaine’s accounts of McDonald’s aggressive and

threatening behavior just prior to the shooting as he was not required to review “every piece of

evidence available” before approving their reports. Plaintiff contends that his role was simply

to forward Van Dyke’s, Walsh’s, and Fontaine’s reports on to the OCIC, McNaughton, who

would then complete the investigation.

¶ 45 The evidence at the hearing belies plaintiff’s arguments. Snelling testified that the field

sergeant is the first line of review of a TRR or OBR and his job is to check them for “accuracy

and completeness” before forwarding them on to his supervisors for further review. The

sergeant’s responsibility for initially reviewing the TRRs and OBRs for accuracy and

completeness is further set out in CPD Special Orders S03-02-04 and S03-03-06. Skahill

testified that the sergeant must also review the initial case incident report for accuracy and

completeness and may not ignore evidence disproving the report.

¶ 46 In the present case, the dashcam video showing McDonald walking away from the officers

was evidence that disproved Van Dyke’s and Walsh’s statements in their TRRs and OBRs

regarding how McDonald threatened and attacked them just prior to the shooting and it also

refuted Fontaine’s statement in her case incident report that McDonald victimized Van Dyke,

Walsh, and Gaffney and injured Van Dyke. Plaintiff claimed that he only watched “bits and

pieces” of the video prior to approving the officers’ reports but the Police Board found

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plaintiff’s testimony “incredible” given his access to the video and the fact that it was the “key

piece of contemporaneous evidence” regarding the circumstances surrounding the shooting.

We may not substitute our judgment for the Police Board’s credibility determinations. See

Caliendo v. Martin, 250 Ill. App. 3d 409, 416 (1993) (“The weight to be given to the evidence

and the credibility of witnesses is within the province of the Board.”).

¶ 47 In any event, Skahill testified that plaintiff may not “put his head in the sand” and simply

ignore the dashcam video; he had a duty to review the video before signing off on the TRRs,

OBRs, and case incident report. Therefore, plaintiff should have known everything contained

in the video, meaning that he should have known that the TRRs and OBRs prepared by Van

Dyke and Walsh, and the case incident report prepared by Fontaine, contained materially false

information regarding how McDonald presented a threat of deadly force and assaulted and

battered the officers and injured Van Dyke prior to the shooting. Plaintiff signed off on them

anyway.

¶ 48 In addition to the dashcam video, there was further evidence belying Fontaine’s statement

in the case incident report that McDonald injured Van Dyke. Specifically, Van Dyke and

Walsh each stated in their OBR that there was no injury, plaintiff asked Van Dyke and Walsh

at the scene if they were “okay” and both officers said yes, and Van Dyke never made any

claims of being injured and did not fill out an “Injury on Duty” report. Skahill testified that

plaintiff had the duty to investigate the discrepancy between the case incident report stating

that Van Dyke was injured and all the other evidence showing that he was uninjured, but

plaintiff failed to do so and instead signed off on the case incident report.

¶ 49 All this evidence shows that plaintiff disregarded his duty to ensure the accuracy of the

TRRs and OBRs prepared by Van Dyke and Walsh and the case incident report prepared by

Fontaine. Plaintiff signed off on all these reports while knowing they contained materially false

statements about the circumstances leading to the shooting, or he at least should have known

that they contained such materially false statements. Accordingly, it was not against the

manifest weight of the evidence for the Police Board to find that plaintiff’s approval of the

false statements in the TRRs and OBRs prepared by Van Dyke and Walsh violated Rule 2’s

prohibition on conduct impeding the CPD’s efforts to achieve its policy and goals or

discrediting the CPD, Rule 3’s prohibition on any failure to promote the CPD’s efforts to

implement its policy and goals, and Rule 14’s prohibition against making a false report. It was

also not against the manifest weight of the evidence for the Board to find that plaintiff violated

Rules 2 and 3 by approving the false statement in Fontaine’s case incident report regarding

how McDonald victimized Van Dyke, Walsh, and Gaffney and injured Van Dyke.

¶ 50 Plaintiff makes no argument that the Police Board erred by finding he violated Rules 2, 3,

6, and 11 by failing to ensure that his subordinates were using the audio component of the in-

car video systems and forfeited review thereof. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).

¶ 51 Next, plaintiff argues that the Police Board did not have cause to discharge him. An officer

may not be discharged without cause. 65 ILCS 5/10-1-18.1 (West 2020). “Cause” for discharge

has been defined as “ ‘some substantial shortcoming which renders the employee’s

continuance in office in some way detrimental to the discipline and efficiency of the service

and which the law and sound public opinion recognize as good cause for his no longer holding

the position.’ ” Department of Mental Health & Developmental Disabilities v. Civil Service

Comm’n, 85 Ill. 2d 547, 551 (1981) (quoting Kreiser v. Police Board of Chicago, 40 Ill. App.

3d 436, 441 (1976)). Because the Police Board stands in the best position to determine the

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effect of the officer’s conduct on the Department, we give “heavy deference” to its

determination of cause. Orsa v. Police Board, 2016 IL App (1st) 121709, ¶ 60. We will not

reverse the Police Board’s finding of cause unless it is arbitrary, unreasonable, or unrelated to

the requirements of service. Krocka, 327 Ill. App. 3d at 46.

¶ 52 In assessing the penalty here, the Police Board considered plaintiff’s complimentary

history, awards, and limited disciplinary record but deemed discharge appropriate because

“supervising sergeants must be vigilant in following Departmental rules and policies

themselves and in insisting that their subordinate patrol officers do so as well.” It explained,

“This case presents a glaring example of a sergeant who abdicated his responsibility to lead as

a supervisor and failed in his duties as a sworn officer by approving reports of a fatal officer-

involved shooting that he knew, or should have known, were false, and in failing to ensure that

his officers utilized the Department’s audio system.” The Police Board found that plaintiff’s

position at the hearing that he had no obligation to assess the accuracy of the TRRs and OBRs

was “particularly troubling.”

¶ 53 The Police Board concluded that plaintiff’s conduct “brought discredit upon the Chicago

Police Department” and undermined its mission. Plaintiff’s conduct also fostered “public

distrust and a lack of confidence in the integrity of the Chicago Police Department, thereby

significantly harming the Department’s efforts to achieve the important goals of preventing

crime, preserving the public peace, identifying, and arresting those who commit crimes, and

promoting respect and cooperation of all Chicagoans for the law and those sworn to enforce

it.” The Police Board noted that plaintiff’s violations of Rules 2 and 3 “are, by themselves,

sufficiently serious to warrant his discharge from the Police Department.”

¶ 54 We affirm, as the Police Board’s finding of cause for discharge was not arbitrary,

unreasonable, or unrelated to the requirements of plaintiff’s service as a sergeant in the CPD

with supervisory responsibilities.

¶ 55 Next, plaintiff argues that the Police Board erred by consolidating his case with those of

Viramontes, Sebastian, and Mondragon. Consolidation is appropriate where “the separate

causes are of the same nature, arise from the same act, event or transaction, involve the same

or like issues, and depend largely or substantially upon the same evidence, and when a joint

trial will not give one party an undue advantage or prejudice the substantial rights of any party.”

Daniels v. Police Board of Chicago, 338 Ill. App. 3d 851, 860 (2003). We will not reverse the

Police Board’s decision to consolidate cases for a hearing absent an abuse of discretion. Id.

¶ 56 The Police Board committed no abuse of discretion in consolidating the cases against

plaintiff, Viramontes, Sebastian, and Mondragon as they all arose from the same event, Van

Dyke’s shooting of McDonald. Consolidation was also appropriate because the cases involved

like issues and charges and depended largely on the same evidence. Specifically, Viramontes,

Sebastian, and Mondragon were charged with making false statements about Van Dyke’s

shooting of McDonald in violation of Rules 2, 3, and 14, and plaintiff was charged with those

same rules violations for approving Van Dyke’s, Walsh’s, and Fontaine’s false statements

about the shooting. The evidence in common was the dashcam video showing the falsity of the

statements made by Viramontes, Sebastian, Mondragon, Van Dyke, and Walsh.

¶ 57 There was also an overlap of charges and evidence relating to plaintiff’s, Sebastian’s, and

Mondragon’s failures with regard to the in-car audio equipment on the night of the shooting

that further supports the Police Board’s consolidation decision. Specifically, Sebastian and

Mondragon were charged with violating Rules 2, 3, 6, and 11 for failing to obtain the audio

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recorder from the in-car video system and ensure that it was securely attached to their person;

failing to ensure the audio component of the system was working properly; failing to audibly

record events with the in-car video system; and failing to notify their supervisor about the audio

component’s status. Plaintiff was charged with those same rules violations for failing to

monitor Sebastian and Mondragon to ensure they maintained a practice of using audio in the

in-car video systems; failing to ensure the audio portion of the in-car video systems was used

properly and that the in-car microphones were operational; failing to initiate an investigation

when notified of damaged or missing audio equipment; and failing to maintain an accurate

supervisor’s management log indicating whether the in-camera systems were operable. These

charges against plaintiff, Sebastian, and Mondragon relating to the in-car audio equipment

largely depended on the same evidence, namely: Sebastian’s testimony that plaintiff never

asked her about the status of the microphones in her squad car and she did not check to see that

they were working; Sebastian’s and Mondragon’s testimony that they did not affix the

microphones to their body; and Becvar’s testimony that no audio recordings were recovered

and that Mondragon’s and Sebastian’s microphones were in the glove box and the microphone

batteries were installed upside down.

¶ 58 Plaintiff argues that his case should not have been consolidated with those of Viramontes,

Sebastian, and Mondragon because the case against him featured a unique witness, Skahill,

who testified only about his actions on the night of the shooting and not those of the other

officers. Plaintiff’s argument is without merit as we have held that where cases are

consolidated, the Police Board is “presumed to be able to judge each case on the basis of the

evidence uniquely applicable to each case.” Id. at 861. Plaintiff has not overcome this

presumption or shown that he was prejudiced in any way by having his case consolidated with

Viramontes, Sebastian, and Mondragon. Accordingly, the Police Board committed no abuse

of discretion in its decision to consolidate the cases together.

¶ 59 Next, plaintiff argues that the Police Board violated his due process rights by staying his

hearing until the conclusion of Van Dyke’s criminal trial. Plaintiff forfeited review of this issue

by failing to raise it before the circuit court on administrative review. The circuit court’s

judgment on administrative review indicates that the only due process arguments that plaintiff

made were that the charges against him were not precise and that he was not adequately

apprised of the charges against him; he did not argue that the Police Board violated his due

process rights by staying the hearing until the conclusion of Van Dyke’s criminal trial.

Accordingly, he may not raise the issue on appeal. See Messer & Stilp, Ltd. v. Department of

Employment Security, 392 Ill. App. 3d 849, 861 (2009).

¶ 60 Forfeiture aside, the Police Board argues that plaintiff’s due process claim is precluded by

res judicata as the same argument was made and adjudicated by the federal district court in

Policemen’s Benevolent & Protective Ass’n of Illinois, Unit 156-Sergeants v. City of Chicago,

No. 17 C 8469, 2020 WL 291371 (N.D. Ill. Jan. 21, 2020). “Under the doctrine of res judicata,

a final judgment on the merits rendered by a court of competent jurisdiction acts as a bar to a

subsequent suit between the parties involving the same cause of action.” River Park, Inc. v.

City of Highland Park, 184 Ill. 2d 290, 302 (1998). Res judicata applies where “(1) there was

a final judgment on the merits rendered by a court of competent jurisdiction, (2) there is an

identity of cause of action, and (3) there is an identity of parties or their privies.” Id.

¶ 61 In Policemen’s Benevolent, plaintiff and his union filed a federal lawsuit on November 21,

2017, claiming that the City of Chicago violated his due process rights by suspending him from

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his job without pay for nine months from September 1, 2016, through June 16, 2017, and for

staying his post-suspension hearing until the conclusion of the criminal trial against Van Dyke.

The federal district court granted summary judgment for the City (see Policemen’s Benevolent,

2020 WL 291371), noting that in Cleveland Board of Education v. Loudermill, 470 U.S. 532,

546-48 (1985), the Supreme Court held that where a government employer has a strong interest

in “quickly removing an unsatisfactory employee,” and where substantial “post-termination

administrative procedures” are available, the employee may be due no more pretermination

process than “oral or written notice of the charges against him, an explanation of the

employer’s evidence, and an opportunity to present his side of the story.”

¶ 62 The district court found that the process plaintiff received in the course of the investigation

by the OIG satisfied Loudermill’s requirements for pre-deprivation due process because

months before his suspension, plaintiff had received the notice of allegations against him and

he had also received copies of the allegedly false police reports and the dashcam video.

Policemen’s Benevolent, 2020 WL 291371, at *6. Plaintiff had also sat down for multiple

interviews with an OIG investigator, during which the investigator went through each

paragraph of the allegations in detail, giving him an opportunity to respond to each one and to

make a statement for the record. Id. It was only after these interviews that plaintiff was charged

with the rules violations warranting suspension, pending a separation hearing. Id. The district

court ruled that it was clear from these facts that plaintiff had received notice of the charges

against him, an explanation of the City’s evidence, and an opportunity to present his side of

the story, which was all the due process he was required to receive prior to his suspension. Id.

¶ 63 The district court next addressed the delay in the post-suspension hearing, noting that the

determination of whether the delay offends due process requires “ ‘examin[ing] [1] the

importance of the private interest and the harm to this interest occasioned by delay; [2] the

justification offered by the Government for delay and its relation to the underlying

governmental interest; and [3] the likelihood that the interim decision may have been

mistaken.’ ” Id. at *7 (quoting Federal Deposit Insurance Corp. v. Mallen, 486 U.S. 230, 242

(1988)).

¶ 64 The district court recognized plaintiff’s important private interest in his continued

employment as a police officer and that the harm to this private interest was at its “most severe”

during the nine-month period from September 2016 to June 2017 when he was suspended

without pay. Id. However, a suspension without pay does not require an immediate post-

suspension hearing when an important government interest justifies the suspension and where

the Police Board took actions minimizing the risk that the suspension was erroneous. Id. at *8.

In this case, there was a strong governmental interest in preserving public confidence in the

police force by taking appropriately swift and severe disciplinary action, including unpaid

suspension, when plaintiff was accused of serious misconduct. Id. There was only a slight risk

that the suspension was erroneous because the OIG conducted a thorough investigation,

including two interviews with plaintiff during which it reviewed the allegations against him

and gave him the chance to respond. Id. Given the minimal risk that the suspension was

erroneous, the district court concluded that the government interest in preserving public

confidence in the police force outweighed plaintiff’s private interest in his livelihood to justify

the nine-month delay in holding his post-suspension hearing while he remained suspended

without pay. Id.

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¶ 65 The district court next considered the alleged due process violation in extending the stay

of his post-suspension hearing until the conclusion of the criminal proceedings against Van

Dyke. The justification offered for the extended stay, namely, that it would reduce the chance

that Garrity-protected statements would be released that could jeopardize the criminal case

against Van Dyke, was closely connected to the governmental interest in preserving public

confidence in its police force. Id. The district court noted that the City’s lifting of the unpaid

suspension in June 2017 removed the obstacle to plaintiff’s livelihood during the extended stay

in his disciplinary proceedings, which reduced the harm to his private interest, and concluded

that the extended delay did not offend due process. Id. at *9. Accordingly, the district court

granted the City’s motion for summary judgment. Id. at *10.

¶ 66 Plaintiff did not appeal the district court’s ruling.

¶ 67 The Police Board now argues that the district court’s summary judgment ruling for the City

in Policemen’s Benevolent acts as a res judicata bar to plaintiff’s due process claim here.

¶ 68 The first res judicata requirement is that there was a final judgment on the merits rendered

by a court of competent jurisdiction. A judgment is final if it determines the litigation on the

merits, so that, if affirmed, all that remains is to proceed with the execution of the judgment.

Dookeran v. County of Cook, 2013 IL App (1st) 111095, ¶ 18. For res judicata purposes, a

judgment is not final until the possibility of appellate review has been exhausted. Id.

¶ 69 The district court’s summary judgment order for the City in Policemen’s Benevolent was a

final judgment on the merits rendered by a court of competent jurisdiction as it addressed and

rejected plaintiff’s due process claim and plaintiff did not file an appeal therefrom, so that all

that remained was to proceed with execution of the judgment.

¶ 70 The second res judicata requirement is that there was an identity of cause of action in the

first and second suits. Under the transactional test adopted by the Illinois Supreme Court, the

court must determine whether the two actions arose from the same transaction, i.e., from a

single group of operative facts. River Park, 184 Ill. 2d at 311. Plaintiff’s first suit in

Policemen’s Benevolent in 2017 claiming a due process violation and his second suit here also

claiming a due process violation both arose from the same group of operative facts (i.e., they

both arose out of the stay of the Board proceedings until the conclusion of the criminal trial

against Van Dyke). Accordingly, there was an identity of cause of action.

¶ 71 The third and final res judicata requirement is that there be an identity of parties or their

privies in the first and second suits. That requirement was met here where plaintiff was a party

in both suits and where the defendant in Policemen’s Benevolent, the City, was in privity with

the defendants in the present suit, the Police Board and Superintendent, as they all shared the

same legal interests in defending the Board’s decision to stay the administrative proceedings

until the conclusion of Van Dyke’s criminal trial. See Agolf, LLC v. Village of Arlington

Heights, 409 Ill. App. 3d 211, 220 (2011) (privity exists between the party to the prior suit and

a nonparty when the party to the prior suit adequately represented the same legal interests of

the nonparty).

¶ 72 As all the elements of res judicata were met, plaintiff is barred from relitigating his due

process claim in this court.

¶ 73 Affirmed.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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