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08/31/95 JAMES SERIO AND KATHLEEN MOORE v. POLICE

August 31, 1995

JAMES SERIO AND KATHLEEN MOORE, PETITIONERS-APPELLANTS,
v.
POLICE BOARD OF THE CITY OF CHICAGO, ALBERT C. MAULE, BRIAN L. CROWE, VICTOR P. ARMENDARIZ, SCOTT J. DAVIS, EDNA SELAN EPSTEIN, RUSSELL H. EWART, NANCY B. JEFFERSON, MAXINE C. LEFTWICH, ART SMITH, MICHAEL G. BERLAND, MARK IRIS, SECRETARY OF THE POLICE BOARD OF THE CITY OF CHICAGO AND LEROY MARTIN, THE SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Richard Curry, Judge Presiding.

Rehearing Denied September 27, 1995. Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Cahill delivered the opinion of the court: Hoffman, P.j., and Theis, J., concur.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

Petitioners James Serio and Kathleen Moore appeal their discharge as Chicago police officers. The circuit court affirmed the decision of the Police Board of the City of Chicago to discharge Serio and Moore. We affirm.

On the night of August 15, 1989, sometime after 10:30 p.m., Calvin McLin and Joseph Weaver were detained near White Sox Park by two white Chicago police officers for a curfew violation. McLin and Weaver were black male juveniles. The boys were directed to sit in the rear of the police car and then driven to 45th and Union Streets. The female officer sitting in the front passenger seat then let McLin and Weaver out of the police car and hit them. The officers then drove away. A group of white youths chased McLin and Weaver, caught McLin, and beat him. Weaver escaped. McLin was taken to a hospital where he was treated and released. McLin and Weaver went to the 9th district police station the next day, made a report, and a Chicago police department investigation followed.

The superintendent of the Chicago police department subsequently filed charges before the Chicago Police Board against Serio and Moore, alleging they violated seven department rules. The superintendent charged, in part, that on August 15, 1989, Moore and Serio: "detained youths Calvin McLin and Joseph Weaver at or near 35th and Wallace, Chicago, Illinois, and transported them to 45th and Union after 10:30 p.m., and failed to process the youths as curfew violators, thereby failing to perform a duty and/or that as a direct result of their failing to process them as curfew violators, the two youths were the victims of racial harassment and McLin was the victim of a physical attack."

An evidentiary hearing followed.

Joseph Weaver and Calvin McLin testified that they went to a White Sox game on August 15, 1989. They left in the seventh inning, got change for bus fare, then sat down on a bench at the bus stop at 35th and Wallace. Two uniformed Chicago police officers in a marked police car pulled up to the bus stop.

The police officer in the passenger seat was a white female - tall, blond, and heavyset. McLin stated that she was about six feet tall. She asked the boys if they knew what time it was and told them to walk over and get in the car. She asked them their names, addresses, and phone numbers. She asked if they had any weapons and whether they had ever gotten their ass kicked by a fat white lady.

The police car had a plastic and mesh shield between the front and back seats. Weaver was seated behind the driver. He heard the driver say, "Let's take them to 48th, it's kind of rough around there." Weaver stated that the driver was male, had a strong voice, short blond hair, and a mustache. He was not wearing a hat. McLin stated that the driver was a white male with a husky deep voice, blond hair, a mustache, and fat face. They did not know where the police were driving them. The male driver told the female officer to hit the boys when she let them out of the car. She opened the back car door and hit McLin in the face and Weaver in the head with a closed fist as they got out of the car. McLin testified that he was five feet, six inches tall, and that the female officer was taller than he was.

Weaver and McLin began to walk along Union Street toward 43rd Street. The female officer told them they were going the wrong way. They turned and started to walk the other away. Six white males appeared, threw bottles, yelled, and chased them. Weaver ran. McLin was caught and beaten. Weaver was 14 years old. McLin was 15.

Weaver and McLin viewed a book of photographs of the officers assigned to the 9th district on August 16, 1989. The photographs are two and a half by three inches. Weaver and McLin told the officer who showed them the photograph book that they did not want to pick a photograph of anybody because they could not be sure of the identification based on the photographs. Officers present told them to identify officers who looked similar to the two officers who picked them up the night before. Weaver picked Joseph Barra as the male police officer based upon his light colored hair. He picked Renetta Wiesniewski as the female. McLin selected the photographs of Daniel Albano as the male driver and Vita Baronaitis as the female passenger.

Weaver and McLin both asked to see a lineup. They viewed a lineup on August 16, 1989, and each identified petitioner Moore asthe female. They had no doubt about the identifications. Wiesniewski and Baronaitis were not in the lineup. Weaver and McLin also viewed a lineup of male police officers, but identified no one.

Weaver and McLin viewed another lineup at the State's Attorney's Office on October 11, 1989, and each again identified Moore. Officers Baronaitis and Wiesniewski were present in this lineup. Weaver was sure about his identification. McLin admitted that when he testified at the criminal trial arising out of this case, he said that he was not positive when he identified Moore at the State's Attorney's lineup on October 11, 1989. McLin also testified that, a few days before the criminal trial, he identified Gail O'Connor from a photograph as the female officer. ...


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