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SHERROD v. BERRY

June 15, 1984

LUCIEN SHERROD, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF RONALD SHERROD, DECEASED, PLAINTIFF,
v.
WILLIE BERRY, FRED BREEN AND THE CITY OF JOLIET, DEFENDANTS.



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

Memorandum

This civil rights suit, in which the lawyers have been hurling litigation venom at each other, has digressed to a motion by the plaintiff asking this court to disqualify the law firm that now represents the defendants. It is alleged that one defendant is a police officer who shot and killed plaintiff's son; another is the chief of police who was the officer's superior; and the third is the Illinois municipality, employer of the other defendants. Plaintiff argues that the same lawyers cannot represent the three defendants because there are inherent conflicts of interest among them.

Defendants oppose plaintiff's motion, arguing that what potential conflict of interest may exist has been explained to each defendant and they have waived their right to being represented by separate counsel. Further, defendants contend that there are, in fact, no conflicts of interest among them because they are asserting a common defense against plaintiff's claims; and that, in any event, the municipality has an ordinance which requires it to indemnify a police officer who suffers a judgment for an act committed in the discharge of official duties. Therefore, defendants insist that the same lawyers can represent all of them. Having heard the parties and considered the applicable principles of law, the court agrees with defendants; it decides that plaintiff's motion must be denied. This memorandum is extended to include a statement of the facts of this controversy, necessary to understanding the reasons for this court's decision.

I

On Saturday, December 9, 1979 in the City of Joliet, Illinois, Willie Berry, a policeman, shot and killed Ronald Sherrod, the plaintiff's nineteen-year-old son. Sherrod was unarmed; and when his body was examined, the only item found in his shirt pocket was a driver's license. No weapon of any kind was either on Sherrod or on the person of Gary Duckworth, a passenger in the Sherrod vehicle at the time of the killing. Because of these circumstances and others that were later disclosed, plaintiff and members of his family demanded of Fred Breen, Joliet's police chief, that he investigate Ronald Sherrod's killing and see that Berry be disciplined. Breen, after conducting what he said was an adequate investigation of the incident, refused to institute any disciplinary proceedings against Berry. As a result, Lucien Sherrod filed a complaint before the Board of Fire and Police Commissioners of the City of Joliet.

In the hearing that followed, evidence in support of the charges against Berry was presented by Nicholas E. Sakellariou, the corporation counsel of the City of Joliet. Berry was represented by a lawyer of his choice; Sakellariou waived an opening statement after being invited to make one by the hearing officer; he did not call witnesses who were available; and he declined making any closing argument, even though he was invited to do so by the Board. The charges were dismissed; and on August 5, 1980, this suit asserting claims under 42 U.S.C. § 1983 in three counts, was filed against Berry and the City of Joliet, alleging that when Ronald Sherrod was killed, the actions of Berry, together with the policies and customs of the City of Joliet, deprived him of rights secured by the constitution and laws of the United States.

When counsel appeared for the defendants, it was Nicholas E. Sakellariou, the same lawyer who presented evidence against Berry when Joliet's Board of Fire and Police Commissioners heard Lucien Sherrod's complaint against him. Later, the original complaint was amended adding Fred Breen, the Joliet police chief, as a defendant on allegations that his failure to adequately train and supervise Berry was an unconstitutional force in the killing of Ronald Sherrod. The answer Sakellariou filed for Berry admitted he was a City of Joliet police officer when he shot Sherrod, denied the police conduct involved was illegal or unconstitutional; and pled affirmatively that Berry, at the time in question, "acted in good faith and reasonably believed that his actions or omissions were constitutional." In the answers to the amended complaints, Sakellariou retained Berry's claim that at the time he killed Sherrod, he acted in good faith and reasonable belief that his acts were constitutional. The answers filed for Breen and the City of Joliet were consistent with Berry's admission that on December 9, 1979, he was a Joliet policeman, his denials and his defense of good faith and reasonable belief. In later stages of pretrial proceedings, Sakellariou was joined in the defense of the case by two of his assistants, Robert Lorz and Thomas A. Thanas, who, because Sakellariou's staff was relatively small, knew of the Sherrod killing and the presentation of evidence against Berry by Sakellariou before the Board. This cause came for trial before a jury on January 23, 1984.

In presenting his case, plaintiff called as adverse witnesses Willie Berry and Fred Breen. Both testified that Berry was acting as a Joliet policeman when he shot and killed Ronald Sherrod; and both insisted that Berry had been properly trained as a city policeman; and that, at the time in question, he was discharging his duties consistent with the policies and customs of the City of Joliet Police Department. Berry, as well as Breen, admitted a number of alleged police brutality incidents in which citizens claimed they were the victims of police misconduct. Breen testified to the same incidents; and while denying they were constitutional deprivations, admitted that some of the incidents had actually occurred, as claimed by the plaintiff. Breen as well as Berry denied that the City of Joliet Police Department had a policy of not training police officers and subborning acts of police brutalities, including the conduct of Berry.

One of plaintiff's claims was that the City of Joliet, and its police department, had a long-standing policy and custom of condoning acts of policemen that either injured or killed Joliet citizens. He had insisted, and his counsel argued, that actions concerning police brutalities by Breen were, to use a colloquialism, "whitewashes," through investigations that were not conducted in good faith. Somewhat unexpectedly during a discussion of the issue outside the presence of the jury, Robert Lorz stated that in Joliet there were two ways in which a police officer was brought before the Board of Fire and Police Commissioners of the city: (1) where the chief of police filed charges; or (2) where a private citizen did so in accordance with rules of the Board. Lorz said that when the chief filed charges against a police officer, the corporation counsel acted as a prosecutor and advocated particular disciplinary action by the Board; but when a citizen filed a complaint charging a police officer with brutality, the corporation counsel merely presented the matter and left the Board to decide the matter as it saw fit. The transcript of the proceedings in Lucien Sherrod's complaint shows that Sakellariou acted as Lorz described was the policy of the corporation counsel's office.

Upon hearing Lorz' statement, plaintiff's counsel insisted on calling him and Sakellariou as witnesses before jury in order to prove that Board proceedings were, ordinarily, part of the "whitewash" in which the City of Joliet engaged when citizens complained of police brutality. The issue, however, was resolved by this court ruling that the transcript of the Sherrod proceedings before the Board was admissible as evidence of admissions by defendants; and that Lorz' statement concerning Joliet's policy through its corporation counsel's office could be read to the jury as containing an admission made by a lawyer for an opposing party in this case.

II

Despite plaintiff's insistence that these lawyers should not be permitted to represent any of the defendants, he does not allege any conduct by them that causes the potential conflicts of interest he says requires their disqualification in this case. In fact, plaintiff assures the court that he is not accusing Kurnik and Barasha of any breach of ethics or wrongdoing in connection with these proceedings. Plaintiff relies entirely on the factual background of the case; particularly, the conduct of Sakellariou, which he says adversely affected his rights in the trial that ended with the jury unable to agree on a verdict. He rests the disqualification of the two lawyers on the nature of his claim against defendants: the fact that he has a Section 1983 suit against a police officer who unconstitutionally took the life of his son; and the fact that joined as co-defendants are the police chief and the municipality that employs the other two defendants.

Plaintiff argues that there are inherent and potential conflicts of interest among defendants relating to matters of trial strategies, assertable defenses, and confidentiality of client communications which would force attorneys representing them jointly to make choices necessarily adverse to one or other of them. Plaintiff claims that this situation would create a real possibility for infusing the record of this case with potential reversible error regardless of other considerations. Therefore, he insists that allowing Kurnik and Barasha to represent any of the defendants would create the opportunity for them to argue on appeal, in case of a judgment against any of them, that this was a result of the conflicts perceived by the plaintiff. And as he sees it, defendants can assert that any judgment against them was a consequence of the ...


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