Comito v. Police Board of the City of Chicago

Case Date: 11/01/2000
Court: 1st District Appellate
Docket No: 1-99-0043 Rel

                                                                                   THIRD DIVISION
                                                                                   November 1, 2000
                                                                                   (NUNC PRO TUNC September 29, 2000)

 

No. 1--99--0043

JAMES COMITO, JR. and MATTHEW THIEL,

                                     Plaintiffs-Appellants,

                                             v.

POLICE BOARD OF THE CITY OF CHICAGO,
former Superintendent MATT RODRIGUEZ,
former Interim Superintendent JOHN
TOWNSEND, and Superintendent TERRY
HILLARD,

                                      Defendants-Appellees.

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Appeal from the
Circuit Court of
Cook County.







Honorable
Lester Loreman,
Judge Presiding.

JUSTICE BURKE delivered the opinion of the court:

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

On October 20, 1997, defendants filed charges against plaintiffs, allegingviolations of various Chicago police department rules and regulations based onan altercation with Jeremiah Mearday on September 26, 1997, on North PulaskiAvenue in Chicago. Plaintiffs were charged with violating department regulationsprohibiting the following: conduct that impedes the department from achieving itspolicies and goals or that brings discredit upon the department; disrespectingany person; and making a false report. Thiel was also charged with violationsof regulations prohibiting engaging in unjustified verbal or physicalaltercations with any person and unlawful or unnecessary use or display of aweapon.

On December 15, 1997, a hearing was initiated on the charges before theBoard's hearing officer, Michael Berland. The hearing was conducted on severaldates, 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 malesstanding near a corner at 1306 North Pulaski in Chicago at approximately 10:15p.m. He recognized two of the males, Tyrice and Andrew Harkins, one of whom hehad arrested "for drugs." Thiel then stopped the car in a lane of oncomingtraffic and got out of the car. Thiel instructed the males to approach the carand one of them "strolled away." Thiel then drew his weapon and pointed it atthe individual who would not stop because he could not see the individual's handsand he was afraid for his safety, knowing that there had been prior policeshootings in the area. Thiel ordered the individual to stop and to let him seehis hands. The individual eventually stopped, turned around, and told Thiel,"You better put that fucking gun away." Thiel denied that the individualexplained that he was going to Walgreen's for medication at that time. Thiellater learned that the individual was Jeremiah Mearday.

Thiel further testified that he and Comito then approached Mearday becausehe was being evasive. Comito placed his hand on Mearday's shoulders and askedhim to come over to the car to talk for a couple of minutes, and Mearday shovedComito'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 beganpunching Comito and yelling obscenities. Thiel then assisted Comito in tryingto grab Mearday to take him into custody as Mearday continued to resist and shovethem. Thiel's flashlight was in the police car at that time. Thiel jumped ontoMearday 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 hisbaton while Mearday was lying with his back on the street, kicking and punchingat them. Thiel stated that he was standing over Mearday to his side, trying toput handcuffs on him. Comito was standing on the other side of Mearday, alsotrying to gain custody of him. They were able to flip him over and cuff hishands behind his back. They placed him in the back of their police car and drovehim to a firehouse because he was injured in the mouth and bleeding. They calledtheir sergeant to the firehouse, and the sergeant spoke with Mearday after hearrived. Comito also testified, and his testimony was substantially similar toThiel's.

Kenneth Pfoser, a forensic biologist for the Illinois State Police,testified as an expert. He stated that he examined plaintiffs' flashlights forthe presence of blood in the crime lab. He found blood near the "on/off" switchon one of the flashlights measuring 1