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
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.
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
15-125 OFFENSES: acts subject to penalty are:
15-125-13 Insubordination or disrespect toward a
superior officer, or toward any official of the
15-125-14 Using coarse, profane or insolent
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 ...