Daniels v. Police Bd. of Chicago, 61379

• Decision Date: 25 May 1976
• Docket Number: No. 61379,61379
• Citation: 349 N.E.2d 504,37 Ill.App.3d 1018
• Parties: Dan DANIELS et al., Plaintiffs-Appellants, v. POLICE BOARD OF CHICAGO et al., Defendants-Appellees. . Modified Opinion on Denial of Rehearing
• Court: United States Appellate Court of Illinois

Page 504

349 N.E.2d 504

37 Ill.App.3d 1018

Dan DANIELS et al., Plaintiffs-Appellants, v. POLICE BOARD OF CHICAGO et al., Defendants-Appellees.

No. 61379.

Appellate Court of Illinois, First District, Second Division.

Modified Opinion on Denial of Rehearing May 25, 1976.

Gus P. Giannis, Chicago, for plaintiffs-appellants.

William R. Quinlan, Chicago (Daniel R. Pascale, Marsile J. Hughes, Chicago, of counsel), for defendants-appellees.

DOWNING, Justice:

Plaintiffs, found guilty, after a hearing by defendant, of extorting money in violation of the defendant's department regulations and dismissed as City of Chicago police officers, filed an administrative review action in the circuit court of Cook County. Upon the affirmance of the defendant's decision, they appeal to this court.

The sole issue presented for review is whether plaintiffs were sufficiently and positively identified so as to support the conclusion that the findings and decision of the defendant were not against the manifest weight of the evidence. Due to discrepancies and contradictions in the identifications and supporting evidence, as well as suspect identification procedures, in our opinion the findings and decisions are against the manifest weight of the evidence. Our recitation of the facts adduced at the hearing are limited so as to make this conclusion apparent.

Plaintiffs were charged with and found guilty of violating Rules 2, 4, 5, 21, and 45 of the Rules and Regulations of the Chicago Police Department, except that plaintiff Daniels was found not to have violated Rule 21. These rules need not be separately stated since the validity of the findings rests solely on whether it was shown that plaintiffs were sufficiently and positively identified as the persons who committed the acts alleged. It is enough to note that these rules relate to the solicitation or acceptance of bribes and the attendant violations a Chicago police officer commits by doing so.

Eleacer Arroyo testified that two 'police cars,' which he later twice characterized as 'blue and white' pulled up in front of his liquor store between 10:30 and 11:00 p.m. on October 2, 1970. His wife, the only other eyewitness to the occurrences on October 2, also asserted they were 'policemen's cars,' although she couldn't recall the color. Documentary evidence established that plaintiffs Daniels and Herman, who were partners that evening, were driving a gray unmarked Chevrolet and that plaintiff Kane and his partner, Officer McGarry, were driving a gold, bronze or tan unmarked Chevrolet.

The Arroyos both testified that three policemen, all dressed in civilian clothes, entered the store, leaving one minor in the front car by himself and another minor in the second car with a fourth officer. Documentary and independent testimonial evidence showed that plaintiff Kane and his partner McGarry were dressed in uniform that evening.

The Arroyos testified that 'the Sergeant,' whom they identified at trial as Daniels, spoke to Arroyo and told him the two minors in the cars had illegally purchased liquor at his store. Arroyo asserted the minors had not identified him when he went outside to look at them. He admitted, however, after being confronted with a prior statement, that one of the minors had identified him by pointing at him. Mrs. Arroyo testified that the minor in the car with a fourth policeman had identified her husband both verbally and by pointing at him. The Arroyos asserted Mr. Arroyo was then taken into the front police car after the minor in that car was transferred to the second car. There the sergeant threatened that Arroyo's store would be closed unless he paid them $300. An arrangement was made for $150 to be paid immediately and $150 the following week. The 'youngest officer,' identified at trial as plaintiff Kane, then went into the store with Mr. Arroyo and received the initial $150. At trial, Arroyo admitted, when confronted with the statement, that he had told the police on October 9, 1970 that the money had been given to the sergeant rather than to the 'youngest officer.' Additionally, Mr. Arroyo asserted the policemen had not shown them any identification for the minors, whereas Mrs. Arroyo testified the sergeant showed her the minors' identification. Neither of the Arroyos gave any description of the officers or their attire beyond 'civilian' clothing, and both asserted the officers showed them no stars, badges, credentials or other identification.

Both Arroyos testified the incident occurred between 10:30 and 11:00 p.m. Plaintiffs presented evidence intended to establish alibis for that time period. The only uninvolved witness testified that he saw plaintiff Kane, at the police station to which Kane was assigned, sometime between twenty minutes before and twenty minutes after 10:30 p.m. Plaintiffs themselves testified to meeting on a corner at various times between 10:30 and 10:45 to transfer to Daniels an informer who had waved down Kane and his partner McGarry to request a meeting with Daniels. McGarry testified the corner meeting occurred between 10:00 and 10:30. Though Daniels and Herman both asserted that they then spent an hour with the informer at a 'stake-out,' neither the informer nor any other corroborative evidence of this allegation was produced.

On October 8, 1970 the Arroyos, having filed a complaint with the Internal Investigative Division of the Department, viewed photographs of the personnel of the police district where plaintiffs were stationed. Mrs. Arroyo testified she and her husband viewed the photographs together and both asserted they identified three photographs. Officer Donlon, who conducted the viewings, asserted that the Arroyos looked at the photographs in the same room, but that they viewed them separately with Mrs. Arroyo about four feet away from the books Mr. Arroyo was looking at. Donlon also testified the Arroyos only identified Daniels and Kane.

The Arroyos testified that, on the evening of October 8, two officers they identified as Herman and Daniels walked into the store. The plaintiffs do not dispute that Herman and Daniels were, in fact, in the store. Mr. Arroyo testified he, Daniels, and Herman went into the back room of the store where Daniels offered to give back the money, which offer Arroyo refused, and asked Arroyo if he had signed a complaint, which Arroyo denied. Mrs. Arroyo asserted Herman had asked, when the two entered the store, if they had made a complaint. They then went into the back room where she heard her husband ask for his money back which the officers refused to do. Daniels asserted he was checking out a harrassment complaint for an Officer Muntaner; that he, rather than Herman, talked to the Arroyos; and that he was confused by the apparent inability of the Arroyos to make themselves understood in English. Herman testified he and Daniels were checking a complaint for Officer Muntaner, and that he could not understand what Mr. Arroyo was saying beyond something about minors purchasing liquor and policemen being involved. Officer Muntaner testified he had asked Daniels to check out a complaint made by a person whose statement was introduced...