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Onesto v. Police Bd. of City of Chicago





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


Plaintiff, Philip Onesto, filed a complaint for administrative review of the action of defendant, Police Board of the City of Chicago (Board), discharging him from the Chicago Police Department. The circuit court affirmed the findings of the Board and remanded the case to the Board to review the penalty of discharge. Upon remandment, the Board maintained the original penalty of discharge, which was affirmed by the circuit court. We reverse.

On June 11, 1977, Chicago police officers Philip Onesto and William Sims were on patrol duty. At approximately 10:40 p.m., they received a call regarding a burglary in progress. They proceeded to the address of the reported burglary and were met by a girl who directed them to a garage which someone had broken into. After arriving at the garage, Onesto ordered the person in the garage to come out. Onesto then heard the sound of breaking glass and observed the suspect attempting to escape through a window on the side of the garage. Onesto told the suspect to go back into the garage and come out the front door. The suspect lifted the front door and was handcuffed by Sims. Sims then escorted him to the police car.

Shortly after going to the police car, Sims heard the sound of breaking glass and returned to the garage with the suspect to assist Onesto. After Sims discovered that there was no further trouble, the suspect told the officers that he had broken into the garage to retrieve a motorcycle which he had sold. He explained that he wanted to retrieve the motorcycle because he had not been paid for it. The suspect and the officers proceeded to the motorcycle which was parked inside the garage. Sims bent down to get the serial number on the motorcycle. A tenant of the building approached Onesto, and Onesto spoke to him about signing a complaint. Sims and the suspect were behind him. At this point, a woman standing near the garage began screaming that the suspect was running away.

The officers looked around and saw the suspect running down the alley. Onesto started running after the suspect and screamed at him to stop or he would have to shoot. Sims was running behind Onesto. When the suspect continued running despite the warnings, Onesto fired a shot in the air. After this warning shot, the suspect "picked up speed." Onesto then fired a second shot downward as the suspect was a few steps from an intersecting alley. The second shot apparently ricocheted off the ground and struck the suspect. The suspect later died at the hospital.

Onesto testified that he would not have been able to apprehend the suspect. Onesto also stated that he did not call for help because he did not have a radio and because he knew there were no cars in the immediate area that could quickly respond to his call.

At the time of this incident, Onesto had been a Chicago police officer for 15 years. During this period, he received approximately 50 honorable mentions and two department commendations. He was never the subject of any disciplinary action; he has one written reprimand on his record. A number of witnesses testified regarding Onesto's good reputation in the police force and in the community.

As a result of the incident in question, Onesto was charged with the violation of the following police department rules: (1) Rule 2, which prohibits any action which impedes the department's efforts to achieve its policy and goals or brings discredit upon the department; (2) Rule 6, which prohibits disobedience of an order or directive, whether written or oral; and (3) Rule 10, which prohibits inattention to duty. After a hearing, the Board found that Onesto violated all three rules and ordered that Onesto be discharged from his position. The circuit court affirmed.

Onesto contends that the findings and the decision of the Board are against the manifest weight of the evidence. In reviewing an administrative decision, the findings and conclusions of the agency on questions of fact are to be considered prima facie true and correct. (Ill. Rev. Stat. 1977, ch. 110, par. 274; Tinner v. Police Board (1978), 62 Ill. App.3d 204, 208, 378 N.E.2d 1166, 1169; Taylor v. Police Board (1978), 62 Ill. App.3d 486, 491, 378 N.E.2d 1160, 1165.) However, if the findings are contrary to the manifest weight of the evidence, we will not hesitate to reverse them. Basketfield v. Police Board (1974), 56 Ill.2d 351, 358-59, 307 N.E.2d 371, 375; Fornuto v. Police Board (1976), 38 Ill. App.3d 950, 957, 349 N.E.2d 521, 527; Tinner, 62 Ill. App.3d 204, 208, 378 N.E.2d 1160, 1169.

The Board found that Onesto violated Rule 2 in that he shot the suspect without first exhausting all available alternative means of apprehending him. It also found that he violated Rule 6 because he disobeyed a general order of the police department which provides:

"A. Members will not resort to the lawful use of firearms until all other reasonable means at their disposal to effect apprehension and control have been attempted without success. The essence of this policy is that the use of firearms in any case is a last resort measure. Members will not unnecessarily or unreasonably endanger themselves to conform to this policy."

The following section of the same order provides:

"B. The following acts are forbidden

3. Firing warning shots to apprehend and control an individual against whom the use of deadly force ...

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