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Comito v. Police Board of the City of Chicago

November 01, 2000


The opinion of the court was delivered by: Justice Burke

(NUNC PRO TUNC September 29, 2000)

Appeal from the Circuit Court of Cook County. Honorable Lester Foreman, Judge Presiding.

Plaintiffs James Comito and Matthew Thiel appeal from an order of the circuit court denying their petition for administrative review of a decision by defendant Police Board of the City of Chicago (Board) terminating their employment as Chicago police officers for violating various department regulations. On appeal, plaintiffs contend that the dismissal of their petition for administrative review and the Board's decision should be reversed because: (1) the hearing officer was biased or prejudiced against plaintiffs, denying them due process at the initial administrative hearing; (2) the hearing officer exceeded his statutory authority in posing questions to numerous witnesses; (3) the hearing officer erred in allowing defendants to call an expert witness and introduce scientific (DNA) evidence since the witness and evidence had not been disclosed until after the start of the hearing; (4) the Board's decision was against the manifest weight of the evidence; and (5) the trial court erred in denying plaintiffs' motion to take the depositions of certain Board members to determine whether they received and reviewed documents prejudicial to plaintiffs, prior to rendering their decision, which should not have been included in the record. For the reasons set forth below, we affirm.

On October 20, 1997, defendants filed charges against plaintiffs, alleging violations of various Chicago police department rules and regulations based on an altercation with Jeremiah Mearday on September 26, 1997, on North Pulaski Avenue in Chicago. Plaintiffs were charged with violating department regulations prohibiting the following: conduct that impedes the department from achieving its policies and goals or that brings discredit upon the department; disrespecting any person; and making a false report. Thiel was also charged with violations of regulations prohibiting engaging in unjustified verbal or physical altercations with any person and unlawful or unnecessary use or display of a weapon.

On December 15, 1997, a hearing was initiated on the charges before the Board's hearing officer, Michael Berland. The hearing was conducted on several dates, ending on January 20, 1998. Thiel testified that on September 26, 1997, he and Comito were driving in a marked police car when they saw four black males standing near a corner at 1306 North Pulaski in Chicago at approximately 10:15 p.m. He recognized two of the males, Tyrice and Andrew Harkins, one of whom he had arrested "for drugs." Thiel then stopped the car in a lane of oncoming traffic and got out of the car. Thiel instructed the males to approach the car and one of them "strolled away." Thiel then drew his weapon and pointed it at the individual who would not stop because he could not see the individual's hands and he was afraid for his safety, knowing that there had been prior police shootings in the area. Thiel ordered the individual to stop and to let him see his hands. The individual eventually stopped, turned around, and told Thiel, "You better put that fucking gun away." Thiel denied that the individual explained that he was going to Walgreen's for medication at that time. Thiel later learned that the individual was Jeremiah Mearday.

Thiel further testified that he and Comito then approached Mearday because he was being evasive. Comito placed his hand on Mearday's shoulders and asked him to come over to the car to talk for a couple of minutes, and Mearday shoved Comito's hand away from him and stated, "You got no fucking reason to stop me." Comito told Mearday he was under arrest and grabbed him. Mearday then began punching Comito and yelling obscenities. Thiel then assisted Comito in trying to grab Mearday to take him into custody as Mearday continued to resist and shove them. Thiel's flashlight was in the police car at that time. Thiel jumped onto Mearday and, when they fell, Mearday's face struck the pavement, making a loud "snapping noise." Thiel saw Comito give "two whacks" on Mearday's head with his baton while Mearday was lying with his back on the street, kicking and punching at them. Thiel stated that he was standing over Mearday to his side, trying to put handcuffs on him. Comito was standing on the other side of Mearday, also trying to gain custody of him. They were able to flip him over and cuff his hands behind his back. They placed him in the back of their police car and drove him to a firehouse because he was injured in the mouth and bleeding. They called their sergeant to the firehouse, and the sergeant spoke with Mearday after he arrived. Comito also testified, and his testimony was substantially similar to Thiel's.

Kenneth Pfoser, a forensic biologist for the Illinois State Police, testified as an expert. He stated that he examined plaintiffs' flashlights for the presence of blood in the crime lab. He found blood near the "on/off" switch on one of the flashlights measuring 1½" by 1½". He did not perform any test to determine to whom the blood belonged, and although he did not believe the blood came from a "splatter," he could not determine how the blood came in contact with the flashlight. [Nonpublishable material removed under Supreme Court Rule 23].

Jose Alicea, testified that shortly after he returned to his home at 1314 North Pulaski on September 26, 1997, at approximately 10 p.m., he heard someone scream from outside. When he looked out his window, he saw a person, whom he later learned was Mearday, lying on the ground with his head over the sidewalk and the rest of his body in the street. He saw a police officer with dark hair on top of Mearday with the officer's hand over Mearday's neck. He also saw a blond-haired officer then strike Mearday twice on the back of his head with either a baton or a flashlight. He did not personally know Mearday at the time of this incident. His window was closed and approximately 10 feet from the officers' location on the street. Two other black youths were also standing near the scene. The officers placed Mearday in the police car and drove north on Pulaski. After the incident, Alicea noticed blood on the ground. The following morning he also noticed that the right turn signal of his car, which had been parked in front of his house, was broken and there was a scratch on the car. He was aware that his block was a drug dealing location and that it is a border between the Disciples and Vice Lords street gangs.

Alicea admitted on cross-examination that he had previously told an "OPS" investigator that he saw the blond-haired officer strike Mearday twice with half-swings with the light end of a flashlight. He also stated that Mearday was struck on the back of his head at an area about level with the ear.

[Nonpublishable material removed under Supreme Court Rule 23].

Pedro Delostrinos, a physician, testified that he treated Mearday on September 26, 1997, in the emergency room at Norwegian Hospital at 10:45 p.m. Mearday told him that a police officer beat him and hit him in the face with a flashlight. Delostrinos examined the scalp lacerations on Mearday and tried to see the bleeding in his mouth. Mearday tested negative for alcohol, but his blood did reveal evidence of marijuana use. Delostrinos contacted the Cook County Trauma Unit to see if they would accept Mearday because Norwegian Hospital did not have doctors available to treat Mearday's maxilla (mouth) injuries. Delostrinos further testified that he believed that Mearday's injuries were consistent with being hit by a flashlight or any hard object. He did not observe any dirt on Mearday's nose or mouth. Mearday never mentioned to Delostrinos that he was suffering from an allergic reaction, and the doctor did not notice any evidence of a rash or skin discoloration. He also saw that five of Mearday's teeth were hanging loose from the alveolar socket. He further stated that such an injury could be caused by contact with the street. Reading from the medical history of Mearday listed on one of his medical records, Delostrinos noted that "shrimps" were listed under allergies.

Jeremiah Mearday testified that at approximately 9:15 p.m on September 26, 1997, he began having an allergic reaction after waking up and eating some shrimp fried rice at his father's house. He saw a group of his friends and asked them to walk to Walgreen's with him to purchase some medication because he did not feel safe walking in the area alone. Betts, Moore, and Harkins began to walk with him north on Pulaski. Mearday was walking 10 to 20 yards ahead of his friends because his neck was "itching real bad." The group saw a police car pull onto Pulaski, and two police officers "jumped" out of the car and "onto" his three friends. Mearday continued walking and then heard a voice say, "You run I'm going to shoot your ass." When he turned around, he saw a white, "gold-haired" officer pointing a gun at him. He then began to drop to his knees with his hands in the air when the first officer's partner with dark hair began running toward him and struck him on the top of his head with a flashlight. Mearday claimed that he balled-up, fell to his side, and tried to "cover up." He stated that he was struck by both officers, but he did not know the number of times they hit him.

Mearday further testified that each officer took one of his hands and began to lift him up to a standing position until he was leaning against a car, and they continued to hit him with their flashlights. After he screamed for his father, Thiel hit him across his mouth with a flashlight knocking his teeth back into his mouth. He then fell over the car, landing on his hands and knees, and the officers began hitting him on the head again. The officers then handcuffed him and started kicking him again before putting him in the back of the police car. The officers never informed him of the reason they stopped him. Mearday then described the injuries he suffered.

Mearday also testified that while he was sitting in the police car at the firehouse, he heard plaintiffs indicating that they were going to report that he was "resisting arrest and trying to get tough." When a sergeant questioned him at the firehouse, he stated that plaintiffs had beaten him for no reason with their flashlights. The sergeant then closed the police car door in his face and told him that he was going to jail. Mearday also offered explanations for two portions of a prior statement he had made to the OPS investigator. First, he indicated that the reference to a "stick," rather than a flashlight, in the statement was a misunderstanding on the part of the investigator because of the condition of his mouth at the time he gave the statement. He also stated that he mistakenly mentioned his friend "Boo," Joseph Eistman, as one of his friends present during the beating when he should have added Harkins. Mearday further stated that he never struck nor resisted the officers. On cross-examination, Mearday admitted that his friend Harkins had an outstanding warrant for his arrest on the night of the incident.

On January 8, 1998, approximately three weeks after the hearing had begun, defendants called Dr. John Flaherty, who was board certified in internal and emergency medicine, as a witness. Plaintiffs had filed a motion to bar Flaherty from testifying because he and his opinions had not been timely disclosed as a witness. The hearing officer denied plaintiffs' motion, and plaintiffs rejected the offer of a continuance in order to prepare for Dr. Flaherty's testimony. After Flaherty was qualified as an expert, he testified that the two injuries to the top of Mearday's head were caused by one or two blows from a blunt object consistent with a police baton and the injury to Mearday's face between his nose and lip was also caused by a blow from a blunt object such as a flashlight or gun. It was also Flaherty's opinion that the injuries were ...

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