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11/06/87 Roger Shamley Et Al., v. the City of Chicago Et Al.

November 6, 1987

ROGER SHAMLEY ET AL., PLAINTIFFS-APPELLANTS

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

516 N.E.2d 646, 163 Ill. App. 3d 375, 114 Ill. Dec. 491 1987.IL.1651

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. PINCHAM and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

In this appeal from an order dismissing their amended complaint plaintiffs contend that violations of their constitutional rights were alleged in the complaint.

As part of a routine departmental physical examination, plaintiffs, three Chicago police officers, were required to submit urine specimens for analysis, including drug testing. At the time the samples were taken, plaintiffs were not advised that the drug testing would be performed, but subsequently, each was informed that his urine specimen had tested positive for tetrahydrocannabinol , the pharmacologically active component of marijuana. A complaint was filed against each plaintiff, charging him with violating police regulations. Their powers of arrest were suspended, they were ordered not to carry their firearms and they were temporarily reassigned to the radio room to inventory radios.

Plaintiff Rivera was suspended from active duty for 30 days pending a police board hearing into the charges against him, but at the Conclusion of that hearing, the board determined that the charges had not been sustained and ordered his reinstatement. No disciplinary action was taken or contemplated against plaintiffs Shamley and Grandy and, as stated in an affidavit of defendant Beazley, the complaint register investigations as to all three plaintiffs were "completed, closed, and classified as 'not sustained.'" Plaintiffs' powers of arrest were restored and they have returned to active duty without loss of pay or change in rank.

In their amended complaint for injunctive and other relief, which was filed before the departmental complaints were disposed of, plaintiffs alleged that the accusations against them were false and resulted from "improper, arbitrary and capricious acts" of defendants. They specifically complained of the manner in which the urine specimens had been handled and processed.

Plaintiffs alleged also that "[the] tests were . . . accomplished in a manner so as to deprive [them] of their rights in regard to the allegations made against them." Although it is not apparent from an examination of the amended complaint exactly what rights were violated, plaintiffs made the following claims: the urine specimens were not preserved or made available to them for their own tests; defendants had no cause to believe that plaintiffs had used any controlled substances; plaintiffs were not notified in advance that their urine specimens would be tested for drugs; the department has not promulgated any rules for drug testing or to insure the integrity of the testing process; the test used was not the most accurate one available; the standards defendants apply in ordering police officers to undergo physical examinations are arbitrary, capricious and unreasonable; plaintiffs were not informed of the basis of the charges against them; defendants allowed the complaint registers against plaintiffs to remain open without attempting to resolve the charges or proceed with a hearing; and plaintiffs were subjected to administrative discipline without due process or an opportunity to defend themselves.

Plaintiff Rivera alleged further that departmental Rule 2, which he was charged with violating, is unconstitutional on its face and as applied *fn1 and that he was deprived of due process in connection with the charges placed against him, because defendants refused to provide him with any information regarding the alleged testing done upon his urine specimen except a conclusory statement that the test disclosed the presence of THC in the sample provided.

All of the plaintiffs alleged that, as a result of defendants' actions, they had suffered mental anguish, suffering and uncertainty which interfered with their family lives and damaged their health. Asserting that they had no adequate remedy at law, they asked the court to enjoin defendants from using the results of any tests conducted on their urine samples for any purpose; to declare the complaint registers filed by defendant Beazley against all plaintiffs and the charges requesting discipline against plaintiff Rivera to be void; to require defendants to expunge all references to the complaint registers and charges from departmental files; to enjoin defendants from conducting any drug screening analysis without first promulgating procedures to ensure that any such analysis would be accurate; to declare Rule 2 of the rules of conduct of the rules and regulations of the Chicago police department to be unconstitutional and unenforceable; and to require the department to transfer plaintiffs to their former assignments, restore their powers of arrest, and return their firearms. Plaintiffs also sought damages.

After the police board determined that there was insufficient evidence to sustain the charges brought against plaintiff Rivera and the complaint register investigations as to all three plaintiffs had been completed, closed, and classified as "not sustained," defendants filed a motion under section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), to dismiss the amended complaint. They argued that the case was moot and that plaintiffs lacked standing to seek injunctive or declaratory relief. They also asserted that they were immune under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). Ill. Rev. Stat. 1985, ch. 85, pars. 2-201, 2-208.

On August 15, 1986, the circuit court dismissed the claims for injunctive and declaratory relief as moot, ordered defendants to impound all records arising out of their drug testing of plaintiffs and transferred the case to the law division for consideration of plaintiffs' claims for damages. On defendants' motion for partial reconsideration, the court ...


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