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Orsa v. Police Board of City of Chicago

Court of Appeals of Illinois, First District, Second Division

August 16, 2016


         Appeal from the Circuit Court of Cook County, Nos. 11-CH-19551, 11-CH-8166, 11-CH-8424 cons.; the Hon. Kathleen M. Pantle, Judge, presiding.


          Stephen R. Patton, Corporation Counsel, of Chicago (Myriam Zreczny Kasper, Assistant Corporation Counsel, of counsel), and Ruth F. Masters, Special Assistant Corporation Counsel, of Masters Law, of Oak Park, for appellants.

          Terence P. Gillespie and James P. Nally, both of Chicago, for appellees.

          HYMAN JUSTIC Edelivered the judgment of the court, with opinion.[*] Justices Neville and Simon concurred in the judgment and opinion.



         ¶ 1 This case arises out of an assault by three off-duty Chicago police officers on a civilian. The incident, which happened over 10 years ago, took place inside a fast food restaurant and was captured on videotape. One of the officers pointed his service weapon at the head of the victim, Obed DeLeon, and shoved him against a wall. The two other officers, along with a friend, then punched and kicked DeLeon until Chicago police officers arrived and took DeLeon into custody. Because the video has no audio, what provoked the assault is in dispute. The officers contend DeLeon shouted gang slogans and threatened to kill a cop; eyewitnesses contend DeLeon made no threats.

         ¶ 2 The superintendent of police charged the three officers with violating multiple Chicago police department (CPD) rules. After a hearing, the Police Board of the City of Chicago (Board) found two of the officers guilty and discharged them. The third was suspended for 18 months. On administrative review of the discharged officers' cases, the circuit court held that the Board violated the officers' due process rights and the charges were barred by laches, as the superintendent waited more than four years after the assault to bring the charges. Although not citing it as a basis for reversal, the court also stated that the Board's findings of fact were against the manifest weight of the evidence because the videotape supports the officers' claims that DeLeon threatened to kill a cop and "generally ma[de] statements designed to provoke and inflame the officers." The court ordered the superintendent to reinstate the officers who appealed. The superintendent filed a motion to reconsider, which the court denied. This appeal followed.

         ¶ 3 We reverse. The Board correctly found the charges were not barred by due process, laches, the Chicago Municipal Code, or the CPD's general orders. The Board's findings of fact should have been, but were not, treated as prima facie true and correct (735 ILCS 5/3-110 (West 2014)). Its determination that the attack on DeLeon was unprovoked was not against the manifest weight of the evidence; its decision to discharge was not arbitrary, unreasonable, or unrelated to the requirements of service.

         ¶ 4 Although we review the decision of the administrative agency and not the decision of the circuit court, our careful and close review of the video leaves us puzzled by the circuit court's rejection of the Board's prima facie true and correct findings.

         ¶ 5 We cannot ignore an even more troubling aspect of this case-the inherently improbable character of the officers' defense, which largely relied on stirring prejudices by suggesting that DeLeon's conduct was gang-related. The Board categorically rejected the officers' version of the events, with its scrambled chronology, as inconsistent with and contrary to the surveillance video and the testimony of the two witnesses. Misconduct and manipulation of the sort that occurred here leaves a stain on the good honor of the vast majority of police officers in the department who comport themselves with integrity, dignity, decency, and discipline.

         ¶ 6 BACKGROUND

         ¶ 7 In the early morning hours of March 24, 2006, off-duty Chicago police officers assaulted a patron, Obed DeLeon, at a Taco and Burrito King (TBK) restaurant on the northwest side of Chicago. The restaurant's surveillance video shows plaintiff Officer Brian Murphy pointing his gun at DeLeon and pushing him against a wall. Fellow officers Jason Orsa and Daniel McNamara, and Murphy's friend, Mathew Walsh, pushed, punched, and kicked DeLeon until uniformed, on-duty police officers arrived. Murphy, Orsa, and McNamara then left the restaurant through the back door and did not file a tactical response report (TRR), as required by the CPD's General Order No. 02-08-05, or report the incident to a supervisor.

         ¶ 8 A few days later, DeLeon filed a complaint with the Office of Professional Standards (OPS), which began an investigation. The Independent Police Review Authority (IPRA), which replaced OPS in 2007, completed the investigation in October 2009, and on July 2, 2010, the superintendent filed charges with the Board recommending discharge of Murphy and Orsa.

         ¶ 9 The superintendent charged Murphy and Orsa with violating Rules 2, 6, 8, 10, 14, and 22 of the CPD by bringing discredit on the department, disobeying an order or directive, disrespecting or maltreating a person while off duty, inattention to duty, making a false report, and failing to report improper conduct to the department. Murphy was additionally charged with violating Rules 9 and 38 for unjustified verbal or physical altercation with a person while on or off duty and unlawful or unnecessary use or display of a weapon. (The superintendent also charged McNamara and Sergeant Louis Danielson, one of the responding police officers, with rules violations. Neither is a party to this case and only those facts necessary for a complete understanding of plaintiffs' appeal are addressed.)

         ¶ 10 Before the Board hearing, Murphy and Orsa filed a motion to strike and dismiss, arguing the charges were not timely and were barred by due process, laches, the Chicago Municipal Code, and the CPD's general orders because they were not filed until four years and three months after the incident. The Board took the motion with the case. At the Board hearing, the superintendent called Shawn Nelson and Joseph Mularczyk as witnesses, and they testified to substantially the same events. On March 24, 2006, Nelson and Mularczyk were driving home from Nelson's girlfriend's house. At about 3:30 a.m., they stopped to eat at TBK and Nelson parked on the street because the entrance to TBK's lot was blocked by a late nineties Camaro parked perpendicular to the driveway so that no one could get in or out. They entered TBK through the back door; Mularczyk went into the bathroom, and Nelson got in line to order. As Mularczyk left the bathroom, DeLeon, whom neither man knew, walked into the restaurant through the back door. Nelson and Mularczyk heard DeLeon make a general announcement asking TBK customers if anyone knew whose car had blocked the driveway. Nelson said that DeLeon appeared relaxed; his voice was loud, but he was not being obnoxious. Nelson and Mularczyk testified that DeLeon's finger was pointing forward and his thumb was pointing backward toward the back entrance. The video shows DeLeon motioning with his hand toward the back entrance.

         ¶ 11 No one responded to DeLeon's question. DeLeon then approached Nelson and Mularczyk, who were in line, and asked if they knew to whom the car belonged. Nelson testified he said no but told DeLeon that he was "kind of thinking the same thing [DeLeon] was." DeLeon then responded, "Yeah, that guy's an asshole for parking like that." Nelson said a man, later identified as Orsa, who was sitting with Murphy and McNamara, at a table closest to the counter said, " 'What if I'm that asshole?' " DeLeon responded, " 'Is that your car?' " and Orsa said, " 'What if it is my car?' "

         ¶ 12 As shown on the video, DeLeon then leaned toward the table and according to Nelson said, " 'You need to quit acting like an asshole and go move your car.' " Next, Murphy stood up, turned around, swept his gun in front of Nelson and Mularczyk, and pointed it at DeLeon's head. Nelson said he was close enough to see down the barrel of the gun. The other three men at the table, Orsa, McNamara, and Walsh, got up and surrounded DeLeon.

         ¶ 13 Nelson said he couldn't believe what was happening and thought "I could die here." He grabbed Mularczyk and pushed him into the kitchen, a few feet away. The kitchen's entrance was an open archway without a door. Nelson said he leaned out to see the four men, including Murphy and Orsa, throw DeLeon to the ground and kick and hit him. Nelson acknowledged his view was partially blocked by people standing in front of him. Nelson testified that DeLeon tried to defend himself by covering up and tried to get up a couple of times but that the men held him down and continued to kick, hit, and knee him. Mularczyk testified that from the kitchen, he saw Orsa kick DeLeon twice in the torso.

         ¶ 14 When the men had DeLeon under control, Nelson and Mularczyk left the kitchen and walked out of the front door of the restaurant. They said they went one at a time to avoid looking as if they were involved in the fight. Nelson said that just before he and Mularczyk left the kitchen, he heard someone say that the men were police officers, although he did not know who said that. Nelson and Mularczyk never heard DeLeon say "cop killer, " "Cobra love, " or "Spanish Cobra, " or anything to the effect of "I just ran into your car." Nor did they feel threatened by DeLeon.

         ¶ 15 Nelson and Mularczyk met outside in front of the restaurant and decided to stay to talk to the police. Nelson and Mularczyk tried to tell a responding female police officer and a male sergeant what happened, but the officers told them to wait and went into the restaurant. The officers then left the restaurant with DeLeon in handcuffs. Nelson said he tried to explain that DeLeon was "not the guy that did it. It was the four white guys." Nelson said "one of the sergeants asked us what our story was and we re-explained everything from the point where we walked in." The sergeant asked Nelson, " 'That's the story you're sticking to?' " Nelson said it was, and he and Mularczyk were placed under arrest. Nelson said he heard Lieutenant Danielson say, " 'Put this gangbanger in the paddy wagon, ' " referring to DeLeon, and " 'arrest these two for being in the wrong place at the wrong time.' " Nelson, Mularczyk, and DeLeon were put in the back of a paddy wagon. Nelson said he noticed DeLeon had a bruise above his left eye and that his shirt and hat were missing. Nelson and Mularczyk were taken to jail and charged with assaulting Matthew Walsh. They appeared in court but the case was dismissed because Walsh, the complaining witness, did not appear.

         ¶ 16 DeLeon testified that he went to TBK at about 4 a.m. on March 24, 2006, to get food for his pregnant fiancée. He wore a blue shirt, jeans, and a white hat. He had to park on a side street because two cars were blocking TBK's parking lot. DeLeon entered through the back door and asked in a loud voice, "Who's the asshole blocking the entrance to the parking lot?" He said he then got in line to order food and asked two men in front of him, Nelson and Mularczyk, if they knew "Who's the asshole blocking the entrance." A man sitting at a table to DeLeon's right said, " 'What if I'm the asshole blocking the entrance?' " DeLeon replied "Move your car then, asshole." DeLeon said Murphy, who was at the table with his back to him, jumped up, pulled out a gun from his waistband, put the gun to his face, and pushed him into the wall. DeLeon tried to smack the gun away and started to fight back. DeLeon saw Murphy reholster his gun. Three men who were sitting with Murphy also jumped up, grabbed DeLeon, and pinned him against the wall. DeLeon ...

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