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REICH v. CITY OF FREEPORT

November 14, 1974

ALBERT REICH, PLAINTIFF,
v.
CITY OF FREEPORT, AN ILLINOIS MUNICIPAL CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes before the Court on the motions of defendants to dismiss.

Albert Reich, plaintiff, was discharged as a patrolman from the Freeport Police Department by the Board of Fire and Police Commissioners of the City of Freeport pursuant to the provisions of Section 10-2.1-17 of the Illinois Municipal Code (Ill.Rev.Stat. Ch. 24, Sec. 10-2.1-17 (1971)). The Circuit Court of Stephenson County entered an order affirming the decision of the administrative agency.

Plaintiff then appealed to the Appellate Court of Illinois, Second Judicial Circuit, under various legal theories, including the allegations: (1) that the Ordinances and Statutes under which Reich was charged were unconstitutional and (2) that Reich was denied due process of law during the proceedings before the Board of Fire and Police Commissioners. The Appellate Court upheld the actions of the Board and the decision of the Circuit Court. See Reich v. Bd. of Fire and Police Commissioners, 13 Ill. App.3d 1031, 301 N.E.2d 501 (1973).

Reich's petition for leave to appeal to the Supreme Court of Illinois was denied. No appeal or petition for writ of certiorari was taken to the Supreme Court of the United States.

Subsequently plaintiff filed this suit in Federal District Court alleging violation of his constitutional rights. Plaintiff's complaint has four separate counts. Count one alleges that certain ordinances of the City of Freeport are unconstitutional on their face and asks by way of relief, in part, that they be declared unconstitutional and the defendants enjoined from enforcing them. Count two is similar to Count one, differing only in that it alleges the ordinances are unconstitutional as applied to plaintiff and asks for similar relief. Count three alleges that a certain state statute, Illinois Revised Statutes Chapter 38, Sections 22-23 (1969) is unconstitutional on its face and as applied to the plaintiff. Count four is a cause of action under 42 U.S.C. § 1983, a civil rights action, and under state law alleging arbitrary and unlawful actions by the defendants (except David Stearns, during the time January 1971 through April 1971), which resulted in the plaintiff's discharge from his position as a policeman. The fourth count asks for money damages.

The Court has reviewed plaintiff's complaint and the history of this litigation in the state courts. It is the Court's opinion that there may be merit to a portion of the plaintiff's claim which alleges that certain ordinances of the City of Freeport governing the conduct of policemen infringe the right of free speech guaranteed by the First and Fourteenth Amendments to the United States Constitution. The ordinances state as follows:

  15-114 GENERAL RIGHTS AND DUTIES: a member of the
  police department shall:
    15-114-3 Not give information relating to
    department business to a noncity official without
    the approval of a superior officer.
    15-114-7 Not discuss or criticize other members, or
    any official of the City, except when required by a
    superior officer.

15-125 OFFENSES: acts subject to penalty are:

    15-125-13 Insubordination or disrespect toward a
    superior officer, or toward any official of the
    city.
    15-125-14 Using coarse, profane or insolent
    language.

These ordinances appear to be unconstitutional on their face. Nevertheless the Court is reluctant to allow the plaintiff to challenge these ordinances as a guise to establish jurisdiction in order to challenge his dismissal from the Freeport police force. It is quite clear that the plaintiff's dismissal is not really based on his verbal criticism of other officers and public officials; but, rather, his dismissal stems from his actual misconduct in possessing marijuana in violation ...


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