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Gasparas v. Leack

MARCH 12, 1968.

MIRKO GASPARAS, PLAINTIFF-APPELLEE,

v.

WALLACE LEACK, ET AL., BEING AND CONSTITUTING THE BOARD OF FIRE & POLICE COMMISSIONERS OF THE VILLAGE OF JUSTICE, COOK COUNTY, ILLINOIS, AND EDWARD NAYDECK, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

After a hearing before the Village Board of Fire and Police Commissioners, plaintiff Captain Mirko Gasparas was found guilty of conduct unbecoming a police officer and of insubordination, and was ordered discharged from his position with the Police Department of the Village of Justice. Plaintiff appealed the decision of the Board to the Circuit Court of Cook County pursuant to the provisions of the Administrative Review Act, and the Circuit Court held the findings of the Board to be against the manifest weight of the evidence, reversed the Board's order of discharge and reinstated plaintiff to his former position with the Police Department. Defendants appeal.

On October 27, 1966, four charges were filed against plaintiff by defendant Edward Naydeck, Chief of Police of the Village of Justice. The first charge alleged plaintiff was guilty of conduct unbecoming a police officer in violation of the rules of the Police Department, in that on the date of June 16, 1966, he made certain statements derogatory to the other members of the Justice Police Department, used profanity before a group of citizens, and interfered with officers of the Village Police Department while they were in the process of arresting Wayne Gasparas, plaintiff's son. The three remaining charges related to allegations of insubordination on plaintiff's part: that on October 13, 1966, plaintiff refused to obey an order given by Chief Naydeck that plaintiff turn over books, records and equipment belonging to the Village Police Department which plaintiff allegedly had in his possession during the six-year period plaintiff was the Chief of Police of the Village of Justice; that on the same date plaintiff refused to obey an order given by Chief Naydeck that plaintiff resign his position with the Fire Department of the Village of Justice in that the rules of the Police Department prohibited a police officer from also holding a position on the volunteer Fire Department of the Village; and that on the same date plaintiff further refused to obey Chief Naydeck's order that he submit to a fingerprint examination.

The first charge against plaintiff, that of his having engaged in conduct unbecoming a police officer, arose out of an incident which occurred on June 16, 1966, in the front yard of the home of Wayne Gasparas, plaintiff's son. Andrew Tomi testified that he was a Village of Justice patrolman and that at approximately 3:30 p.m. he had stopped an automobile for a traffic infraction on a two-lane road in the Village and had pulled his marked squad car alongside the other vehicle in order to speak to the driver. The squad car and the vehicle Tomi had stopped were standing two abreast on the road and as Tomi engaged the driver in conversation, Wayne Gasparas stopped his automobile behind the vehicle Tomi had stopped and began blowing the horn of his automobile, telling the drivers of the vehicles in front to move on and shouting obscenities. Tomi told the other driver to proceed, alighted from his squad car and told Gasparas he was under arrest for disorderly conduct. Tomi testified that Gasparas then drove off and that he, Tomi, gave chase and radioed for assistance in order to effect an arrest.

As Gasparas turned his automobile onto the road running in front of his home, he was forced to stop due to a roadblock formed by a squad car operated by Village of Justice Police Officers Britton and Muscato. Other officers from the neighboring municipalities of Willow Springs, Hickory Hills and Bridgeview also appeared on the scene in marked squad cars, apparently in response to Tomi's radio request for assistance. Tomi testified that Gasparas alighted from his automobile and began walking toward his property, and that he and an officer from Willow Springs stopped Gasparas and informed him he was under arrest for disorderly conduct and reckless driving. Some words were exchanged between the officers and Gasparas, a struggle ensued and the officers attempted to place handcuffs on Gasparas in order to take him to the police station. Tomi stated that a large crowd of local residents had by then gathered at the scene. At this point plaintiff arrived dressed in civilian attire and driving his private automobile.

Tomi testified that plaintiff alighted from his automobile and began hollering, "Get your damn hands off my boy. What are you doing to him?" At another point in his testimony Tomi stated the plaintiff's comments at this point were, "Get your goddamn hands off my boy. What the hell is going on here?" However, Tomi later testified that he was uncertain whether plaintiff used the term "goddamn" when he arrived on the scene and it was further brought out that Tomi, in his testimony at the trial of Wayne Gasparas on the charges of reckless driving, disorderly conduct and resisting arrest, made no mention of profanity having been used by plaintiff during the incident. Plaintiff also ordered that the single handcuff which the officers had succeeded in placing on Wayne Gasparas be removed.

Tomi also testified that plaintiff stated, after he had alighted from his automobile, that plaintiff was the only police officer at the scene and that he had papers in his automobile to prove it. It appears that Captain Gasparas and six other Village of Justice police officers were discharged from their respective positions on the force and that six other persons were appointed in their stead, the latter group apparently including witness Tomi. Captain Gasparas and the six other discharged police officers filed an action in the Circuit Court of Cook County for, among other relief, a writ of mandamus to require reinstatement of the seven men. It was stipulated at the trial that Gasparas was entitled to certification to civil service status with the rank of captain. The Circuit Court, on the day prior to the incident of June 16, 1966, ruled that the appointment as police officers of the second group of men (that group which apparently included Tomi) was null and void for failure on the part of the Village to conform to the statute relating to the appointment of policemen in municipalities having a population of over 5,000 persons. The Circuit Court's action in this regard was upheld by this Court in the recent case of People ex rel. Gasparas v. Gualano, 88 Ill. App.2d 227, 231 N.E.2d 669. Plaintiff thereafter stated that if an arrest were to be made that he, plaintiff, would drive Wayne Gasparas to the police station, which in fact was done.

Officer Britton of the Village of Justice Police Department testified at one point in the hearing that plaintiff stated, as he came onto the scene, "Take your hands off my son," but testified at another point that plaintiff stated, "Take your goddamn hands off my son." The officer further testified that a large crowd had gathered at the scene while the officers were attempting to arrest Wayne Gasparas and were hollering such things as "police brutality" and the like.

Officer Burda of the Willow Springs Police Department, one of the officers who responded to Tomi's radio request for assistance, testified that after the officers arrived at the home of Wayne Gasparas a crowd of some 100 persons had gathered nearby and that an "explosive situation" had developed; the people were attempting to interfere with the arrest of Gasparas and were accusing the officers of "running down their children." The officer stated that after plaintiff arrived he heard plaintiff say to Tomi that he, plaintiff, was the only police officer at the scene and had papers to prove it; the words were directed to Tomi and not to the crowd. Officer Burda did not testify that he heard plaintiff use profanity.

Officer Marcoline testified that he was a police officer of the Village of Hickory Hills and that he was one of the officers who responded to Tomi's radio request for assistance. He testified that when plaintiff arrived on the scene, plaintiff stepped between an officer present at the scene and Wayne Gasparas, stated he would take care of the matter and "said something to the effect that . . . the rest of the fellows there were not police officers, and he had papers in his car to prove it." The officer further testified that no one at the scene disputed plaintiff's authority at the time he said he would handle matters.

Joseph Kresser, Chief of Police with the Willow Springs Police Department, also responded to Tomi's radio request for assistance. Chief Kresser testified that he knew plaintiff to be the Captain of Police with the Justice Police Department. Chief Kresser left shortly after plaintiff arrived because, he testified, plaintiff was "superior officer at the scene."

William Jones testified that he lived next door to Wayne Gasparas and that he was present at the scene from the time Gasparas and the officers first arrived until Gasparas was taken to the police station by plaintiff. He stated he observed Tomi's squad car pursuing Wayne Gasparas' automobile and that the latter was forced to come to a stop due to a roadblock created by the squad car of Officer Britton. Several officers then dragged Gasparas from his automobile and threw him against the rear portion of the vehicle, and one of the officers "began kneeing him." The witness approached to within 10 feet of the officers and Gasparas, and shouted to them to stop. Plaintiff then arrived and told the officers present to remove the handcuffs from his son. By this time, Mr. Jones testified, a crowd of some 100 persons had gathered at the scene. Plaintiff then placed his son in his own automobile and drove him to the police station. The witness further testified that he heard plaintiff use no profanity at any time during the incident.

Wayne Gasparas testified that as he arrived at his home on the date in question he was unable to enter his driveway because Officer Britton's squad car was blocking it. Gasparas alighted from his automobile in the road, and Tomi told him he was under arrest but would not give a reason therefor. Officer Burda then told Gasparas to go to the police station to get the matter cleared up, which Gasparas agreed to do. The officers wanted Gasparas to ride to the station in a squad car, but Gasparas stated he would drive his own automobile. As he entered his vehicle, Gasparas testified, he was dragged from and pushed against the rear of the vehicle, and the officers attempted to handcuff him. One of the officers was "kneeing" the witness. Plaintiff then arrived, ordered the handcuffs removed from the witness and took him to the police station. The testimony of Mrs. Nadine Gasparas, wife of Wayne Gasparas, was much the same as that of her husband and William Jones. She stated she did not hear plaintiff use profanity at the time he ordered the handcuffs removed from her husband and that plaintiff directed the remark that he was the only officer in the Justice Police Department to Tomi.

Plaintiff testified with regard to the June 16th incident that he was on his way to his son's home to check on some repair material he had ordered for the house and that when he arrived at his son's home he observed several squad cars nearby and his son standing near his automobile surrounded by several policemen. Plaintiff attempted to ascertain what was the matter, told one of the officers to remove the handcuffs from his son, and stated that if an arrest were to be made he, plaintiff, would drive his son to the station where the proper charges would be made. Plaintiff further stated he used no profanity during the incident and that he stated to Tomi and the officers from ...


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