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Kirsch v. Rochford

OPINION FILED DECEMBER 21, 1977.

CHARLES R. KIRSCH, DECEASED, BY RUTH KIRSCH, SPECIAL ADM'X FOR PURPOSES OF APPEAL, PLAINTIFF-APPELLANT,

v.

JAMES M. ROCHFORD, SUPERINTENDENT OF POLICE OF CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

On February 21, 1974, the Chicago superintendent of police filed charges with the Police Board of Chicago against Charles R. Kirsch. The charges stem from an incident at O'Hare International Airport on May 30, 1973. Following a hearing, the Board ordered Kirsch discharged from the police force. On review of the administrative proceeding, the circuit court of Cook County affirmed the Board's decision. As a result of Kirsch's death subsequent to the filing of this appeal, Ruth Kirsch, his widow, has been named as special administratrix for the purpose of appeal.

Plaintiff was charged with violating the following three rules of the Chicago Police Department:

"Rule 2 — Any action or conduct which impedes the Department's efforts to achieve its goals, or brings discredit upon the Department.

Rule 6 — Disobedience of an order or directive, written or oral.

Rule 4 — Intoxication on or off duty."

The superintendent additionally filed a number of specifications regarding the allegations that Kirsch's conduct had been in violation of the rules. The specifications included a charge that Kirsch had refused direct orders to take a breathalizer test and to submit to performance tests. They also claimed that when Kirsch was refused admittance to an airlines gate because of his apparent intoxication he created a disturbance.

At the hearing on these charges, Kirsch advised the hearing officer that he would represent himself. He pleaded not guilty to the charges.

Walter Bennin, supervisor of passenger services for United Airlines, testified that he was summoned to an airlines gate on the afternoon in question by the agent in charge of the gate. The agent informed him that he believed one of the passengers was intoxicated. The witness observed Kirsch and, on the basis of his observation and his experience, believed that Kirsch was under the influence of alcohol. Kirsch informed the witness that he was a police officer and initially agreed to board a later flight. He changed his mind and announced that there was no way anyone could keep him from boarding the aircraft. Bennin called the police.

Sergeant John E. Coughlin of the airport detail responded to Bennin's call. He testified that as he approached the gate he could hear Kirsch shouting profanely that he would not be kept off the aircraft. Coughlin ordered Kirsch to leave the boarding area. After initially refusing, Kirsch accompanied Coughlin to the airport police facility. Coughlin ordered Kirsch to submit to an alcohol influence test. Kirsch refused. In Coughlin's opinion Kirsch was intoxicated. He based this opinion on the fact that his speech was slurred, his walk was unsteady, and his breath smelled of alcohol. Kirsch was transported from the airport to the district police station. Sergeant Frank J. Kracher of the airport detail corroborated Coughlin's testimony that Kirsch was intoxicated.

Captain William L. Olson of the Chicago Police Department testified that he saw Kirsch at the district police station approximately 90 minutes after the incident. Kirsch was uncommunicative, belligerent, and appeared to be under the influence of alcohol or drugs. Kirsch refused Olson's order to submit to a breathalizer test. Olson also testified that at no time was Kirsch placed under arrest.

Walter Vallee, assistant deputy superintendent of the Chicago Police Department, testified that he saw Kirsch some time after the incident. Kirsch was belligerent, upset, and obviously had been drinking. Kirsch gave Vallee his star and orally resigned from the police force. The witness stated that no written resignation was given.

The Board found Kirsch guilty of violation of all three Department rules as charged. The Board found that he had been intoxicated, that his behavior had precipitated the trouble, and that he had disobeyed a direct order from a superior officer.

Plaintiff's initial contention is that the Board lacked jurisdiction and failed to establish a prima facie case at the hearing because of its failure to establish Kirsch's status ...


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