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D'ACQUISTO v. WASHINGTON

November 9, 1990

SAL D'ACQUISTO, TONY DESENO, PATRICK VIVIRITO and RICHARD FILAS, individually and on behalf of all those similary situated, Plaintiffs,
v.
HAROLD WASHINGTON, Mayor of the City of Chicago, THE CITY OF CHICAGO, a municipal corporation, FRED RICE, Superintendent of the Chicago Police Department, and the POLICE BOARD OF THE CITY OF CHICAGO Corporation, Defendants


James B. Moran, Chief United States District Judge.


The opinion of the court was delivered by: MORAN

JAMES B. MORAN, UNITED STATES DISTRICT JUDGE

 In the instant case, brought pursuant to 42 U.S.C. § 1983, several officers of the Chicago Police Department challenge the constitutionality of the procedures used when officers are suspended incident to the filing of internal departmental charges, particularly when the officers suspended are the subject of an investigation that could lead to both criminal and departmental charges. Having failed in their earlier motion to dismiss the complaint, D'Acquisto v. Washington, 640 F. Supp. 594 (N.D. Ill. 1986), the defendants moved for summary judgment. Before this court could rule on defendants' motion, however, the parties entered into a joint stipulation. According to that stipulation, the sole remaining issue is whether the procedures in question, either facially or as applied, deprive officers suspended under them of their property interest in their jobs without due process under the Fourteenth Amendment, or in violation of Illinois law. With regard to this remaining issue, the parties have expressly agreed that a declaratory judgment setting forth this court's legal conclusions and the parties' respective rights thereunder shall be the only form of relief available.

 With this stipulation in place, defendants again move for summary judgment on the merits of plaintiffs' claims. In addition, defendants assert that Officers Sal D'Acquisto and Tony Deseno, the initial named plaintiffs, are no longer properly before this court as parties and that the claims of the remaining plaintiffs must be dismissed as moot. For the reasons stated below, this court concludes as a preliminary matter that Officers D'Acquisto and Deseno -- although their situations may be considered as illustrative -- are no longer parties to this litigation and that the claims of the remaining plaintiffs are not moot, despite the resolution of their underlying administrative actions. On the merits, this court grants defendants' motion for summary judgment on plaintiffs' federal claim and dismisses the remaining state law claim for lack of a federal question.

 BACKGROUND

 In light of our previous opinion, we review the procedural and factual history of this case to the extent it bears upon the issues before it. Under Ill. Rev. Stat. ch. 24, para. 10-1-18.1,

 
no officer or employee of the police department . . . whose appointment has become complete may be removed or discharged, or suspended for more than 30 days except for cause upon written charges and after an opportunity to be heard in his own defense by the Police Board . . . .
 
Upon the filing of charges for which removal or discharge, or suspension of more than 30 days is recommended a hearing before the Police Board shall be held.

 The Chicago Police Board has promulgated procedures pursuant to this provision for the suspension and/or discharge of police officers. These procedures contemplate four distinct situations, including suspension, emergency suspension, filing of departmental charges with the Police Board that may lead to suspension or discharge, and suspension incident to filing of departmental charges. Plaintiffs challenge the procedures applicable to the last of these situations.

 Initiation of formal departmental discipline falls within the discretion of the Superintendent of Police. Certain procedures accompany implementation of different disciplinary situations. Mere suspensions cannot be implemented unless the officer consents or the Police Board reviews and approves the action. Although emergency suspensions may be implemented immediately, they must receive preliminary review within seven days by a hearing officer or a Police Board member, and must be reviewed by the full Board within 30 days. If departmental charges are filed, but the officer remains on duty, the Board must hear the charges within five to 30 days after the officer is notified.

 Under Police Board Rule IV-D, however, these procedures do not apply if suspension is imposed incident to the filing of departmental charges seeking separation or suspension in excess of 30 days. Such a suspension has no time limit; rather, it continues "pending the disposition of charges." Although a hearing officer or Board member must review the suspension within seven days of its initiation, that review, as defendants concede, is ex parte, with no involvement by the suspended officer. The officer eventually receives a full evidentiary hearing before the Police Board on both the charges against him and the propriety of the suspension. There is, however, no set time by which this hearing must occur and continuances are granted to both sides; the officers, meanwhile, remain suspended.

 Pursuant to the Superintendent's General Order 82-14, officers under investigation for wrongdoing are subject to "interrogation" (Gen. Order 82-14, Add. 3, para. II(C)(3)). Investigations following a complaint apparently are conducted along one of two tracks, depending upon the probability of criminal prosecution. As a result, officers facing investigation do not necessarily have a right to remain silent. If the allegation indicates that criminal prosecution is probable, the accused officer is notified of his criminal rights, including the privilege against self-incrimination.

 If the allegation indicates that the case is likely to result in a recommendation for separation from service but criminal prosecution is not probable, however, the accused officer is notified of his administrative proceedings rights, which he must read and acknowledge prior to interrogation (Gen. Order 82-14, Add. 3, para. II(C)(4)(a)(2)). Officers whose cases are handled under administrative proceedings rights do not have a right to remain silent. Any statements made in the course of interrogation, however, may not be used against the officer in the event of future criminal prosecution. *fn1" Although past practice apparently has varied, once an officer is notified of his administrative proceedings rights, he must cooperate with the investigation and respond to questioning. Refusal to cooperate subjects the accused officer to charges before the Police Board seeking his separation from service and suspension pending disposition of those charges.

 Police officers Patrick Vivirito, Richard Filas, Thomas McGrath, Ronald Armata, Walter Boddie, Sal D'Acquisto and Tony Deseno each were suspended incident to the filing of charges with the Police Board for refusing to answer questions put to them in the course of an administrative investigation. Officers Vivirito and Filas were notified on October 29, 1985, that the Department was investigating a complaint that they had accepted a bribe in exchange for failing to issue a traffic citation. *fn2" On November 21, 1985, the two officers, represented by counsel, signed documents acknowledging the allegations against them and notification of their administrative proceedings rights. Although advised that the Department would not seek criminal prosecution, and despite a direct order to answer questions, Officers Vivirito and Filas refused to answer any questions (def. exhs. 6A, 6B; def. Madsen aff.). On March 12, 1986, the Department charged them with violation of departmental rules for refusal to cooperate with an internal investigation. They were suspended one day later, pending disposition of these charges by the Police Board. A full evidentiary hearing was held on April 29, 1986 (def. exhs. 8A, 8B). The Board found the evidence insufficient to sustain the charges and reinstated the officers with full seniority, pay and benefits for the period of their suspension (def. exhs. 8A, 8B).

 Officer McGrath also was investigated following a complaint that he had accepted a bribe. *fn3" On December 9, 1985, represented by counsel, he signed documents notifying him of the allegations and of his administrative proceeding rights (def. exh. 10). At this time, although informed that the Department was not conducting a criminal investigation and despite a direct order to answer questions, Officer McGrath refused to respond (def. exh. 10; Madsen aff.). On May 28, 1986, the Department charged him with violations of several departmental rules for his refusal to cooperate (def. exh. 11) and suspended him the next day pending disposition of the charges by the Police Board. The Board held a full evidentiary hearing on June 18-19, and on August 14, 1986, found Officer McGrath not guilty and restored him to duty (def. exh. 12).

 Officers Armata and Boddie were investigated following a complaint that they had physically and verbally abused an arrestee. On October 28, 1985, they each signed documents notifying them of the allegations and of their administrative proceeding rights (def. exhs. 5C, 5D). Although informed that the Department was not conducting a criminal investigation, and despite a direct order to answer questions, Officers Armata and Boddie refused to respond (def. exhs. 5C, 5D; def. Byrne aff.). On June 5, 1986, the Department charged them with violations of several departmental rules for their refusal to cooperate (def. exhs. 7C, 7D; Iris aff.). They were suspended two days later, pending disposition of the charges by the Police Board (def. exhs. 7E, ...


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