D'ACQUISTO v. Washington

Decision Date16 June 1986
Docket NumberNo. 85 C 1101,85 C 1296.,85 C 1101
Citation640 F. Supp. 594
PartiesSal D'ACQUISTO, Tony Deseno, Patrick Vivirito and Richard Filas, individually and on behalf of all those similarly situated, Plaintiffs, v. Harold WASHINGTON, Mayor of the City of Chicago, the City of Chicago, a Municipal Corporation, Fred Rice, Superintendent of the Chicago Police Department, and the Police Board of the City of Chicago, Defendants. Ronald J. GREEN, Plaintiff, v. The CITY OF CHICAGO, a municipal corporation, the Chicago Police Department, and Fred Rice, as Superintendent of Police, Defendants.
CourtU.S. District Court — Northern District of Illinois








Michael J. Madden, Thomas G. Draths, Thomas J. Pleines, Joseph V. Roddy, Law Offices of Joseph V. Roddy, Chicago, Ill., for plaintiffs D'Acquisto, Deseno, Vivirito, and Filas.

David M. Mattenson, Kanter & Mattenson, Ltd., Chicago, Ill., for plaintiff Green.

James J. Convery, David Cassorla, Patricia M. Carroll, Asst. Corp. Counsels, City of Chicago, Chicago, Ill., for defendants.


MORAN, District Judge.

These consolidated cases challenge the constitutionality of the suspension procedures used when Chicago police officers are accused of offenses which make them subject both to criminal charges and to internal department charges which could lead to their termination. Plaintiffs D'Acquisto, Deseno, Vivirito and Filas have filed a putative class action suit on behalf of themselves and other officers who are suspended without pay or benefits while awaiting a formal hearing before the Chicago Police Board on whether or not they will be discharged. Plaintiff Green brings an individual action on the same general grounds. Currently before this court are plaintiffs' motions for preliminary injunctions and defendants' motions to dismiss for failure to state a claim.

The parties have generated a small mountain of paper and raised a basketful of legal issues. The problem of what process is due when a public employee is suspended is a frequently recurring one both here and elsewhere.1 This court therefore thinks it worthwhile to go into these issues in some detail, in the hopes of limiting and focusing both the current and future litigations. We will deny a preliminary injunction and dismiss those claims which are grounded on equal protection, vagueness and ex parte communication theories. However, we find that the suspension procedures may unconstitutionally deprive plaintiffs of property and liberty without due process of law and may unconstitutionally burden their privilege against self-incrimination. We will deny the motion to dismiss as it relates to those claims.


Plaintiffs D'Acquisto, Deseno and Green were indicted on charges of accepting bribes in return for altering the course of investigations of hit and run accidents. Immediately upon their indictment defendant Rice, Chicago's Superintendent of Police, suspended them from active duty without pay and filed departmental charges seeking their removal from the force. Plaintiffs Vivirito and Filas are accused of taking $20 from a driver in lieu of issuing a traffic citation. They also submit the case of Officer Thomas McGrath, who is similarly accused. When interrogated by the Police Department's Internal Affairs Division, all three declined to give statements until assured by the State's Attorney's office that they would not be prosecuted. They were suspended, with departmental charges filed, for disobeying an order to speak and failure to cooperate with an investigation.

The Chicago Police Board has promulgated procedures for the suspension or discharge of a police officer pursuant to its authority granted by Ill.Rev.Stat. ch. 24, ¶ 10-1-18.1. These procedures contemplate four distinct situations: suspension, emergency suspension, the filing of departmental charges with the Police Board which could lead to long term suspension or discharge, and emergency suspension plus the filing of departmental charges. It is the procedures applicable to the last of these situations which plaintiffs challenge.

In all cases, initiating formal discipline of an officer is within the discretion of the superintendent, who issues an appropriate order. A mere suspension cannot be implemented, however, unless either the officer consents to it or the Police Board has reviewed and approved it. If the superintendent finds "that the public safety, or the good of the Department or both" require it (rule IV-C), he may order an emergency suspension. An emergency suspension can be implemented immediately, but it must receive preliminary review within seven days by the hearing officer or a member of the Police Board, and be reviewed by the full Board within 30 days. If departmental charges are filed, but the officer remains on duty, a hearing before the Board on those charges must be set for within five to 30 days after the charges are served on the officer. An officer cannot be suspended for more than 30 days unless the suspension is accompanied by the filing of charges.

However, rule IV-D of the procedures expressly states that none of the above protections apply when an officer is both suspended and charged. The officer is suspended without pay or benefits on the superintendent's order, effective immediately. The suspension runs for no set time, merely "pending the disposition of charges." A hearing officer or member of the Board must review the order within seven days, but the suspended officer has no right to either appear at or file a statement for that review. The suspension is not reviewed independently, but rather at the same time the charges are reviewed. Eventually, the officer does receive a full evidentiary hearing before the Board, with the right to be heard, to be represented by counsel, to call witnesses, to cross-examine other witnesses, and to make arguments. However, there is no set time for the hearing, and since both sides have rights of discovery and to request continuances the hearings rarely occur promptly.2 Defendants argue in their briefs that they can supply evidence showing that the average delay is four to five months; plaintiffs, however, cite individual cases where officers were suspended allegedly for up to two years awaiting hearings.

The procedures do not state whether or not an officer facing investigation has a right to remain silent. According to the allegations of plaintiffs Vivirito and Filas, until recently superior officers did not order officers facing possible criminal charges to give statements until the appropriate prosecuting authority had stated in writing that he declined to prosecute. This practice, they allege, has been memorialized in both the policy directives for investigators of the Internal Affairs Division and in part in the collective bargaining agreement between the City and the Fraternal Order of Police. However, the current approach apparently is that the Department, once it has assured the officer that it will not seek criminal prosecution, expects cooperation with internal investigations, whether or not the prosecuting authority has reached a decision. Officers who do not cooperate are suspended at once. These plaintiffs further allege that Superintendent Rice is attempting to persuade the Police Board of the correctness of this approach through what they describe as ex parte communications.

Officer McGrath's case has an additional twist. He passed the Illinois bar examination in February 1986. Others who passed on that date have been sworn in as attorneys, but he has not; the Committee on Character and Fitness of the Illinois Supreme Court has so far declined to approve his application. McGrath knows of no other blot on his character and believes that the suspension is keeping him from becoming a licensed attorney.


The plaintiffs in both of these cases bring their actions under 42 U.S.C. § 1983. Taken together, these plaintiffs argue that the existing Chicago Police Department practices and procedures when officers are suspended with departmental charges filed against them infringe upon the officer's rights under the United States Constitution in some five different ways, and also violate Illinois law.

I. Nature of the Claims
A. The Arguments

Specifically, the class action plaintiffs assert that: (1) a suspension for more than 30 days under rule IV-D without a meaningful opportunity for a hearing deprives the suspended officer of property without due process; (2) since the suspension goes into the officer's personnel records, the stigma which attaches also deprives the officer of a liberty interest; (3) requiring officers to give statements to internal investigators while criminal charges are still possible infringes their Fifth Amendment right against self-incrimination. They also claim that under Ill.Rev.Stat. ch. 24, ¶ 10-1-18.1 an officer cannot be suspended for more than 30 days without a hearing. They seek: (1) a declaratory judgment that rule IV-D of the Police Board procedures violates both the federal Constitution and the state statute; (2) backpay and benefits retroactive to the dates of their suspensions; and (3) both preliminary and permanent injunctions which would (a) reinstate them either to duty or to the status of suspension with full pay and benefits, pending their hearings, (b) prohibit any suspensions over 30 days in the future without a full evidentiary hearing, (c) prohibit any attempt to evade the above restriction by using consecutive 30-day suspensions, and (d) prohibit any ex parte communications between Superintendent Rice and the Police Board.

Plaintiff Green complains that suspensions under rule IV-C "for the good of the Department" are suspensions on an unconstitutionally vague standard, and that the arbitrary and capricious way in which the...

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