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03/22/95 KENNETH CULLEN v. RETIREMENT BOARD

March 22, 1995

KENNETH CULLEN, PLAINTIFF-APPELLANT,
v.
THE RETIREMENT BOARD OF THE POLICEMAN'S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Edwin Berman, Judge Presiding.

Rehearing Denied May 5, 1995. Released for Publication May 26, 1995.

The Honorable Justice Tully delivered the opinion of the court: Greiman, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Tully

JUSTICE TULLY delivered the opinion of the court:

This action was initially brought by plaintiff, Kenneth Cullen, in the circuit court of Cook County pursuant to section 3-101 of the Code of Civil Procedure (section 3-101) (735 ILCS 5/3-101 (West 1992)) seeking the circuit court's administrative review of a decision by defendant, the Retirement Board of the Policeman's Annuity and Benefit Fund of the City of Chicago (hereinafter the Board), denying his request to reinstate his retirement benefits. The circuit court affirmed the Board's ruling. It is from the order affirming the Board's decision that plaintiff appeals to this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

For the reasons which follow, we reverse and remand.

FACTUAL BACKGROUND

The following facts are undisputed by the parties. Plaintiff was appointed a Chicago police officer on September 19, 1966, and served continuously in that capacity until he retired on February 13, 1989, and began to receive his retirement annuity from the Board.

On September 10, 1990, after a jury trial, plaintiff was found guilty of first degree murder in violation of section 9-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1 (a)(1) (now 720 ILCS 5/9-1(a)(1) (West 1992))) and sentenced to serve 25 years' imprisonment for that crime.

The following pertinent facts were adduced at the criminal trial. On February 18, 1984, at about 2:30 a.m., plaintiff, who was off-duty, was involved in a traffic altercation with three youths, Raymond McCaffrey (hereinafter Raymond), Martin McCaffrey (hereinafter Martin) and Don Starzynski. Plaintiff and Carol Brown, described as plaintiff's "pregnant common law wife," were driving southbound on Central Avenue near the intersection of Belmont Avenue in Chicago.

Plaintiff's vehicle was cut off by the car Starzynski was driving and in which Raymond and Martin were passengers. Both automobiles proceeded southbound on Central Avenue. Starzynski continued to cut off plaintiff with his car; at one time almost forcing plaintiff's car into another vehicle. During this time the youths made obscene gestures and yelled obscenities at plaintiff and Brown.

Starzynski turned left off of Belmont Avenue onto Wellington Avenue and proceeded some four blocks to his home and parked. Plaintiff followed the youths and stopped his car behind the Starzynski vehicle.

Raymond exited Starzynski's car and walked towards plaintiff and said "what the hell's your problem". Plaintiff got out of his car and said "I got a pregnant lady - a pregnant woman in the car". Raymond continued to walk towards plaintiff. Plaintiff then pulled out a pistol and fired one shot, striking Raymond between the eyes and killing him. At no point during the altercation did plaintiff, who was dressed in street clothes, identify himself as a police officer or place any of the youths under arrest. The pistol plaintiff used to kill Raymond was not his official service revolver.

Plaintiff then re-entered his vehicle, in which Brown remained seated, and drove away. Later, plaintiff returned to the crime scene, saw that the police were ...


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