The opinion
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by Reporter of
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Illinois Official Reports the accuracy and
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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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