Chisem v. McCarthy, 1–13–2389.

• Decision Date: 23 December 2014
• Docket Number: No. 1–13–2389.,1–13–2389.
• Citation: 24 N.E.3d 877
• Parties: Jamie CHISEM, Plaintiff–Appellant, v. Garry M. McCARTHY, Superintendent of Police of the Chicago Police Department, and The Police Board of the City of Chicago, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

24 N.E.3d 877

Jamie CHISEM, Plaintiff–Appellant

v.Garry M. McCARTHY, Superintendent of Police of the Chicago Police Department, and The Police Board of the City of Chicago, Defendants–Appellees.

No. 1–13–2389.

Appellate Court of Illinois, First District, Third Division.

Dec. 23, 2014.

Colleen R. Daly, Colleen R. Daly Attorney at Law, LLC, Chicago, for Appellant.

Stephen R. Patton, Corporation Counsel, Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, Sara K. Hornstra, Assistant Corporation Counsel, of counsel), for Appellees.

OPINION

Justice LAVIN

delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Jamie Chisem appeals from an order of the circuit court of Cook County affirming his five-year suspension from the Chicago police department (CPD) imposed by defendant the Police Board of the City of Chicago (Board). On appeal, plaintiff contends that defendant Garry M. McCarthy, the superintendent of the CPD, and the Independent Police Review Authority (IPRA) filed untimely charges in violation of plaintiff's right to due process, the City of Chicago's municipal code (City's Code), Chicago Police Department General Order 93–03 (eff. Apr. 15, 2011), and the doctrine of laches. In addition, plaintiff contends that his five-year suspension was against the manifest weight of the evidence. We affirm.

¶ 2 BACKGROUND

¶ 3 On February 25, 2009, an incident occurred involving a possible curfew violation at a Chicago Walgreens located at 3405 South King Drive, between plaintiff, a CPD officer since 2003, and twin sisters Ashley and Tiffany Magby. Immediately following the encounter, the Magbys filed a formal complaint against plaintiff alleging unprofessional conduct. The IPRA conducted an investigation, and on December 2, 2011, the Superintendent filed charges alleging that plaintiff had violated five CPD Rules of Conduct (rules), including:

Rule 2: “Any action or conduct which impedes the Department's efforts to achieve its policy and goals or brings discredit upon the Department.”

Rule 6: “Disobedience of an order or directive, whether written or oral.”

Rule 8: “Disrespect to or maltreatment of any person, while on or off duty.”

Rule 9: “Engaging in any unjustified verbal or physical altercation with any person, while on or off duty.”

Rule 14: “Making a false report, written or oral.”

¶ 4 In March 2012, the Board held a three-day departmental hearing. Ashley Magby, an emergency room nurse, testified that at approximately 10 p.m. on the night of the incident, she and her twin sister Tiffany encountered plaintiff and another officer outside the entrance to the Walgreens. Plaintiff asked to see their identification (IDs) for a possible curfew violation. Being a 21–year–old woman at the time, Ashley told plaintiff that she was an adult and walked into the store. Plaintiff then approached the Magbys by the cosmetic section and asked again to see their IDs. Ashley complied and explained that her twin sister did not have any identification on her. Plaintiff commented that they looked significantly younger and returned Ashley's ID. Ashley told plaintiff that he was trying to take advantage of the situation and proceeded with Tiffany to the opposite end of the store to buy groceries. Plaintiff continued to follow the Magbys into the milk aisle and asked which one of them was the oldest. The Magbys just ignored plaintiff, selected their groceries, and walked toward the front of the store near the cashier where plaintiff's partner stood.

¶ 5 At this point, a physical altercation ensued. Plaintiff first approached Tiffany and asked her something about her headscarf. He then “grabbed [Ashley's] arms behind [her] back and pushed her towards his partner, like in a position like he was going to arrest [her], and then like kind of got up close towards [her] back to the point where [she could] feel his stomach near [her].” Plaintiff then said something like “we got us one” directed at his partner, who just shook his head. Tiffany verbally tried to get plaintiff to let Ashley go and even nudged him. After plaintiff released her, Tiffany told plaintiff he was messing with them because he had nothing to do and he agreed. Ashley then told plaintiff that he messed with the wrong person and she was going to inform his superintendent. He arrogantly showed her his badge number and said something like “I was only joking with you.” He left the store and the Magbys purchased their items at the register. Overall, Ashley felt humiliated. She believed police officers were supposed to serve and protect, not take advantage of their authority. As soon as she got home, she immediately called to make a police report and a sergeant came out to document the occurrence.

¶ 6 Tiffany Magby, an associate producer on the Judge Mathis show, substantially corroborated Ashley's testimony. She also testified that when plaintiff asked about her headscarf he reached toward the top of her head to touch it. She instinctively moved back and told him it made her uncomfortable, but plaintiff simply laughed.

¶ 7 Debra King, a photo specialist at Walgreens, worked the cashier on the night of the incident. Plaintiff's partner was a regular customer, but she did not recognize plaintiff. She first noticed the Magbys arguing with plaintiff as they approached the register. She heard them say they were going to report plaintiff because he was harassing them even after he saw an ID. He kept saying “are you serious” and apologized. The conversation lasted a few minutes and the Magbys appeared upset.

¶ 8 On cross-examination, King testified that she did know the Magbys' age, but they arguably looked younger. No store patrons complained about an officer acting inappropriately. She also did not see plaintiff make physical contact with the Magbys or hear plaintiff verbally remark to his partner. She did not recognize plaintiff at the time of the incident, but did encounter him a year prior when he gave her a traffic citation for driving without a headlight. She recalled him being professional. Prior to the Magbys' arrival, however, she noticed plaintiff watching a teenage girl in a White Castle uniform. When the teenager went to exit, he inappropriately patted her down and followed her out. On redirect examination, she did admit that plaintiff did not pat the teenager under her clothing, and although she complained about this incident to a Walgreens security guard, she did not make a formal complaint to the CPD.

¶ 9 On adverse examination, plaintiff testified that he questioned the Magbys at the Walgreens for a possible curfew violation. One of the Magbys showed him her identification, and after he established that there was no violation, he tried to talk to the Magbys. He did not follow them around the store, try to flirt with them, touch one twin's headscarf, or pull one twin's hands behind her back and push her toward his partner. One of the Magbys did say that she was going to report his conduct.

¶ 10 Several character witnesses briefly testified on plaintiff's behalf, attesting to his professionalism, work ethic, and innate ability to defuse hostile situations. Plaintiff then retook the stand on his own behalf and testified that he arrived at the Walgreens around 10 p.m. and saw the Magbys, who appeared to look like young teenagers. Plaintiff asked them several times for identification while in the candy aisle and one of the twins gave him her ID. He recalled the Magbys being smart, sarcastic and uncooperative. He gave them the benefit of the doubt that they were twins because he did not think they looked alike. The twin who did not give her ID tried to walk away and he may have grabbed her arms. He made contact with her because he wanted to maintain the situation and continue his investigation. He explained to the Magbys that citizens cannot walk away from police, but they did not seem to care. Plaintiff did not follow the Magbys after this incident, but did recall having a brief conversation with them around the checkout counter. He recalled the Magbys being upset and was thus apologetic. He gave his badge number to one of the twins because it was customary. Overall, he believed he was professional and did his job. He also did not inappropriately pat down a teenager in a White Castle uniform and was not even in the Walgreens 20 minutes prior to the Magbys' arrival.

¶ 11 On April 19, 2012, the Board concluded that plaintiff violated all five rules and discharged him from the CPD “due to the serious nature of his conduct.” Specifically, the Board determined that plaintiff engaged in unnecessary and inappropriate physical contact with the Magbys, detained them in violation of CPD policy, failed to document the encounter, and made material false official statements to the IPRA in an attempt to cover up his misconduct. The Board also denied plaintiff's prehearing motion to dismiss the case based on the IPRA and superintendent's failure to file charges in a timely manner. The court concluded that the case was not barred by the doctrine of laches and plaintiff failed to show a violation of his right to due process.

¶ 12 Subsequently, plaintiff filed for administrative review. In his complaint, plaintiff contended that the case should be dismissed based on the lapse of time between the incident and the filing of charges, and that the Board's determination was against the manifest weight of the evidence. On January 17, 2013, the circuit court reversed the discharge decision and remanded for an alternative sanction. After review, the Board suspended plaintiff for five years while noting that it believed discharge was the appropriate sanction. In response, plaintiff challenged the suspension by filing a motion for further proceedings and judicial review, in which he argued that the five-year suspension was against the manifest weigh of the evidence and served as a de facto discharge. The trial court disagreed and affirmed the five-year suspension.

¶ 13 ANALYSIS

¶ 14 Plaintiff initially contends...