Grabinger v. Conlisk

• Court: U.S. District Court — Northern District of Illinois
• Writing for the Court: Richard L. Curry, Corporation Counsel City of Chicago, Chicago, Ill., for defendants
• Citation: Grabinger v. Conlisk, 320 F.Supp. 1213 (N.D. Ill. 1970)
• Decision Date: 29 December 1970
• Docket Number: No. 70 C 2066.,70 C 2066.
• Parties: John GRABINGER and Robert Tovar, Plaintiffs, v. James B. CONLISK, Richard Sullivan and Earle Zuelke, Defendants.

320 F. Supp. 1213

John GRABINGER and Robert Tovar, Plaintiffs, v. James B. CONLISK, Richard Sullivan and Earle Zuelke, Defendants.

No. 70 C 2066.

United States District Court, N. D. Illinois, E. D.

December 29, 1970.

COPYRIGHT MATERIAL OMITTED

James G. Demopoulos, Chicago, Ill., for plaintiffs.

Richard L. Curry, Corporation Counsel City of Chicago, Chicago, Ill., for defendants.

OPINION

WILL, District Judge.

The plaintiffs in this litigation are two police officers who were each suspended for a period of fifteen days without salary by the defendant Conlisk, Superintendent of Police of the City of Chicago, upon the recommendation of the Complaint Review Panel, a disciplinary panel comprised of superior officers of the Chicago Police Department. The plaintiffs, asking for money damages and the expunging from their official records of reference to the disciplinary action, contend that rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and protected by 42 U.S.C. §§ 1983, 1985 and 1986 were violated 1) by the defendants' attempt to force plaintiffs to submit, without the presence of an attorney, to a polygraph examination relative to a citizen's complaint of police brutality lodged against them, 2) by the defendants' refusal to allow an attorney to be present at the hearing of the Complaint Review Panel, and 3) by the fact that their suspension was based in part on their refusal to obey the direct order from their superior officer to submit to the polygraph examination without the benefit of counsel. The defendants have moved for summary judgment based upon this Court's alleged lack of jurisdiction over the subject matter and upon the plaintiffs' failure to state a cause of action upon which relief can be granted. For the reasons stated below, we grant the defendants' motion for summary judgment.

The proceedings from which this suit arose involved an investigation being conducted by the Excessive Force Division of the Internal Inspection Division of the Chicago Police Department, which investigation grew out of a complaint lodged against the plaintiffs by a citizen to the effect that he had been struck on the forehead with a blackjack and kicked and beaten by the plaintiff Grabinger and in the presence of the plaintiff Tovar.¹

On April 8, 1970, during the course of this investigation, plaintiffs were ordered by the defendant Sullivan to submit to a polygraph test without the presence of an attorney. The plaintiffs contend that they were willing to submit to the examination, but only if it were in the presence of counsel, and refused to take such examination without the presence of counsel.

After the refusal of the plaintiffs to take the polygraph examination, the investigation was completed by the Internal Inspection Division and a recommendation was made to the Superintendent of Police that the plaintiffs be suspended for a period of thirty days. Both plaintiffs refused to accept this recommendation and properly requested a hearing before the Complaint Review Panel. On May 14, 1970, both plaintiffs appeared before the Complaint Review Panel and requested that their attorney be present. Defendant Zuelke, acting as Department Advocate for the hearing, informed the Panel members that whether or not the attorney would be allowed to appear with the plaintiffs would be a matter for the Panel members to decide, but that in his opinion, the only persons that should appear before the Panel would be the department members requesting the Panel hearing (i. e., the plaintiffs).

The full Review Panel concluded that the attorney would not be allowed to be present. A full hearing was then conducted before the Panel, presented by the Department Advocate, in which the investigation file was reviewed, the plaintiffs were afforded an opportunity to make whatever statements they wished to make to the Panel, and were interrogated by the Panel. After closed deliberations, the Panel recommended to the Superintendent of Police, which recommendation he followed, that the plaintiffs be suspended for fifteen days without pay. Part of this decision was based upon the plaintiffs' failure to obey an order to fully cooperate with the investigation, i. e., the order to submit to a polygraph examination without the presence of counsel.

The plaintiffs contend that the actions of the defendant Sullivan in ordering them to take the polygraph test without the presence of counsel, the actions of the Complaint Review Panel in refusing to allow counsel to be present at the hearing, and the actions of the Panel in its basing the recommended suspension partially on the plaintiffs' refusal to take the polygraph examination all violated their rights under the Fifth, Sixth and Fourteenth Amendments and were part of a conspiracy of the defendants to deny plaintiffs the equal protection of the laws. Jurisdiction is allegedly founded on the Federal Civil Rights Act, 42 U.S. C. §§ 1983, 1985 and 1986.

A perusal of the papers presented by the parties in support of and in opposition to the defendants' motion for summary judgment indicates that the issues here presented for resolution have not been clearly delineated. Although their complaint alleges that their Fifth and Sixth Amendment rights have been violated, the plaintiffs do not specifically complain of any denial to them of the protection afforded by the Fifth Amendment against self-incrimination (although they discuss numerous decisions relevant to this issue) and in fact acknowledge in the complaint itself that they were willing to submit fully to the polygraph examination. Although they do not cite any right-to-counsel decisions, the plaintiffs do generally allege that under the Sixth Amendment they are Constitutionally guaranteed the right to have counsel at the polygraph examination and at the hearing of the Complaint Review Panel even though these were clearly not criminal proceedings. The heart of the plaintiffs' complaint apparently rests upon a Fourteenth Amendment claim of a denial of due process in their suspension in that 1) a polygraph examination is so unreliable as to make its use or requirement arbitrary, 2) their suspension for refusing to submit to such examination without the presence of counsel was in itself arbitrary, and 3) the refusal to allow an attorney in the hearing of the Complaint Review Panel was likewise arbitrary (although this latter contention also hints of their contention of a denial of their alleged right to counsel). The plaintiffs frame the issue as whether a police officer may be compelled to waive his constitutional rights as a condition of continued employment by a public employer. This question, however, presupposes the very issue that presently requires resolution, i. e., whether there has occurred any abrogation of the plaintiffs' constitutional rights.

The specific issues which we must decide, then, are (A) whether this Court possesses jurisdiction over the subject matter; (B) whether the requirement of submission by the plaintiffs to a polygraph examination violated their Fifth Amendment rights against self-incrimination; (C) whether the refusal to allow an attorney to be present during the polygraph examination and the Complaint Review Panel hearing violated the Sixth Amendment guarantee of right to counsel or the Fourteenth Amendment prohibition against lack of due process of law; and (D) whether a suspension of a police officer partially predicated upon his refusal to take a polygraph examination is so arbitrary as to deny fundamental due process.

A. The initial issue of jurisdiction is easily resolved. When a claim is alleged to arise under the Constitution or laws of the United States, the federal district court must entertain the suit except when the alleged claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where it is wholly insubstantial and frivolous. A claim must not be dismissed for lack of jurisdiction unless it appears, to a legal certainty, that the claim is wholly insubstantial and frivolous so far as the Constitution and the laws of the United States are concerned. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). A district court has jurisdiction when the right of a plaintiff to recover under his complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another. Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963). As plaintiffs' claims are clearly not frivolous, this Court has jurisdiction. "Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy." Bell v. Hood, supra.

B. If, as we interpret the complaint, the plaintiffs are suggesting that the requirement of submission to a polygraph examination concerning the alleged charge of police brutality would violate their rights against self-incrimination guaranteed by the Fifth Amendment and made applicable to the states through the Fourteenth Amendment, that issue must be resolved against them. In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), the Supreme Court held that when a policeman is compelled to testify by the threat that if he does not he will be removed from office, the testimony that he gives cannot be used in a subsequent criminal prosecution. Under Garrity, then, nothing that the plaintiffs could have stated at the polygraph examination or at the Review Panel hearing in response to even very broad questions, or the fruits of any such statements, could have been used against them in a later criminal proceeding.

The plaintiffs' partial reliance on Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) and Uniformed Sanitation Men Association, Inc....