Kappel v. Police Bd. of City of Chicago

• Decision Date: 30 September 1991
• Docket Number: No. 1-89-0975,1-89-0975
• Citation: 220 Ill.App.3d 580,162 Ill.Dec. 895,580 N.E.2d 1314
• Parties: , 162 Ill.Dec. 895 Raymond KAPPEL, Petitioner-Appellee, v. POLICE BOARD of the CITY of CHICAGO, Respondent-Appellant. Fred RICE, Leroy Martin, Plaintiffs-Appellants, v. Raymond KAPPEL, Police Board of the City of Chicago, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1314

580 N.E.2d 1314

220 Ill.App.3d 580, 162 Ill.Dec. 895

Raymond KAPPEL, Petitioner-Appellee, v. POLICE BOARD of the CITY of CHICAGO, Respondent-Appellant.

Fred RICE, Leroy Martin, Plaintiffs-Appellants, v. Raymond KAPPEL, Police Board of the City of Chicago,

Defendants-Appellees.

No. 1-89-0975.

Appellate Court of Illinois,

First District, Fifth Division.

Sept. 30, 1991.

[162 Ill.Dec. 897] William J. Harte, Ltd. (William J. Harte, Chicago, of counsel), for petitioner-appellee

Kelly R. Welsh, Corp. Counsel of City of Chicago (Ruth M. Moscovitch, Nina Puglia, of counsel), for respondent-appellant.

Justice GORDON delivered the opinion of the court:

In March 1985, defendant, the Police Board of the City of Chicago (the Board) discharged defendant Raymond Kappel, a Chicago police officer, for possession and sale of unregistered weapons. After a lengthy process of administrative review, in June 1987 the Board "with great reluctance" complied with a circuit court order by vacating the discharge and instead suspending Kappel for 3 1/2 years, but only after the Board had resisted two prior remand orders to reduce the sanction. The procedural history is relatively complicated and is set forth in more detail below.

FACTS

On July 30, 1984, the superintendent of police suspended Kappel and filed charges against Kappel with the Board. On December 21, 1984, the date set for hearing, amended charges were filed. He was charged with violation of several rules and regulations of the police department, 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."

The basis of these charges, each pertaining to Kappel's conduct during the Spring of 1981, included: (1) possession of an unregistered automatic rifle; (2) possession of an unregistered semi-automatic rifle; (3) selling a handgun from which the serial number had been removed; (4) firing a gun within the city limits; and (5) lying regarding his knowledge of the rifle being automatic.

A two-day hearing took place on December 21, 1984, and January 9, 1985. The parties entered into stipulations regarding certain facts, including the following: On April 16, 1981, Kappel sold a .25 caliber Berretta automatic handgun without a serial number on it to a federal undercover agent. On May 13, 1981, at 1:00 a.m., he discharged an automatic rifle at I-55 and Pulaski which is within the corporate limits of the city of Chicago. On May 15, 1981, Kappel was in possession of an AR-15 rifle (serial no. 133842) which had been converted to a fully automatic weapon, and was also in possession of an AR-15 semi-automatic rifle (serial no. 46995).

Morris Steward, of the Internal Affairs Division (IAD) of the Chicago police department, testified for the department. He believed the department received "federal documents" regarding Kappel in late 1983 Francisco Guerrero, a Chicago police officer, testified for the Department that he sold a semi-automatic rifle (serial no. 46995) to Kappel 3 or 4 years earlier (which would have been 1980 or 1981).

[162 Ill.Dec. 898] or early 1984, which triggered an IAD investigation. To Steward's knowledge, Kappel later cooperated with state and federal authorities. The federal government granted Kappel immunity from prosecution.

Michael Van Amburgh testified for the Department that he is a special investigator, criminal, for the United States Treasury Department, Department of Alcohol, Tobacco and Firearms (ATF). In June 1980, he was assigned to investigate Chicago police officer Michael Gallagher. Van Amburgh testified that the Gallagher investigation began "[d]ue to allegations that Michael Gallagher was a federal firearms dealer [who] was illegally obtaining and selling firearms * * *." Federal charges were subsequently brought against Gallagher through a government information and Gallagher pleaded guilty and was imprisoned as a result of that plea.

Kappel himself was not under investigation when Gallagher introduced Van Amburgh to Kappel. On April 1, 1981, Kappel telephoned Van Amburgh and identified himself as "Ray." Van Amburgh testified that "Ray told me that he understood I was interested in purchasing a .25 * * * caliber Berretta, that I had previously spoken to Michael Gallagher about." Kappel also remarked that "he was not crazy about talking over the phone because he did not know who he was talking to. He felt that he had phone problems." They agreed on a price of $100 for the handgun.

On April 16, 1981 at 10:30 p.m., Van Amburgh met at a restaurant parking lot with Kappel, Gallagher and an unidentified Chicago police officer. Gallagher produced the .25 caliber Berretta, and handed it to Van Amburgh. There was evidence indicating that the serial number had been removed. Van Amburgh testified further that he "turned to [Kappel] and asked him if we still agreed upon the price of $100. He said, 'Yes, that's right,' at which time I gave him $100."

Several weeks later, Van Amburgh arranged to meet Kappel at a restaurant in the company of Gallagher and his nephew. They discussed "different types of weapons." Kappel told Van Amburgh "as we were talking about different rifles [he said] that he did possess an AR-15 rifle that * * * was converted."

On May 12, 1981, Van Amburgh and Reggie Humphries, a friend of Kappel, were at Kappel's home with Kappel. Two women were also in and out of the house. Kappel showed Van Amburgh a converted AR-15 rifle. Van Amburgh performed a standard field test and determined it could fire in a fully automatic mode. Kappel, Humphries and Van Amburgh later went to a restaurant, then drove to I-55 and Pulaski at about 12:15 a.m. Kappel "produced an AR-15 rifle along with ammunition," and Van Amburgh produced a 9 millimeter machine gun. They took turns firing the weapons into the water and into the land next to the water. The only people in the vicinity were several ATF agents.

On May 15, 1981, Van Amburgh, along with several other ATF agents and Sergeant Morris Steward of the Chicago police department, executed a search warrant at Kappel's apartment. They found an AR-15 rifle (serial no. 133842) which was fully automatic, and a second AR-15 rifle (serial no. 46995) which was semi-automatic.

Kappel, in exchange for a promise of immunity, then cooperated with ATF in the investigation of Gallagher. Kappel also cooperated subsequently in a second investigation in which he wore an electronic surveillance device.

On cross-examination, Van Amburgh agreed that he told Kappel he was a good police officer, and that he felt Kappel had been "caught up in a bad situation because he was a gun buff."

Captain Matthias Casey testified for petitioner that he worked with Kappel for eight years as his watch commander. Kappel's quality of work was excellent, and he was an asset to the police department. On cross-examination Casey testified that the Sergeant Jesse Acosta testified for Kappel that he worked with Kappel for 4 1/2 years as his immediate supervisor. Kappel had a very good reputation as a police officer. The stipulated facts did not change his opinion. "[H]e's still a good officer as far as I'm concerned."

[162 Ill.Dec. 899] stipulated facts did not change his opinion as to Kappel's "capacity as I know him as a police officer."

Sergeant Charles Hensley testified for Kappel that he worked with Kappel for seven years as his immediate supervisor. His performance, efficiency ratings and reputation were good. He considered Kappel "absolutely" to be an asset to the police department. Hensley specified that he was Kappel's immediate supervisor in April and May of 1981 and noticed nothing unusual or problematic about Kappel's performance as a police officer during that time. On cross-examination, Hensley testified that the stipulated facts did not change his opinion of Kappel.

Kappel testified on his own behalf that he became a police officer on October 25, 1971. From 1971 to 1985, he received approximately 115 honorable mentions and one department commendation. He was never told that his performance during this period was substandard or insufficient. He had never been disciplined. His average efficiency grades were 85 to 90 percent. From May 15, 1981 to July 30, 1984, he received one department commendation and 20 to 30 honorable mentions.

In 1978, Kappel and his wife were divorced. In 1979, his father committed suicide. In 1981, his mother died. During this period, Kappel began to drink. In late 1981, he sought help through the police department and entered the alcoholism treatment program recommended by the police department. He was hospitalized for the minimum time--seven days--and then released by attending physicians. "They felt that I was capable at that time. I wasn't a confirmed alcoholic and I went to almost a year of AA meetings." He stated that he experienced no problems with alcohol after December 1981. On cross-examination, Kappel agreed that between 1978 and 1981 he drank excessively.

Kappel testified that on April 16, 1981 at 10:30 p.m., he sold a .25 caliber Berretta automatic handgun to Van Amburgh. They met in the parking lot of a restaurant. Gallagher had possession of the gun, and handed it to Van Amburgh. The gun had no serial number and Kappel had no permit to sell the gun.

On May 13, 1981 at 1:30 a.m., Kappel fired an AR-15 fully automatic rifle at I-55 and Pulaski while Van Amburgh was present. Kappel described the vicinity of I-55 and Pulaski as private land owned by the City of Chicago Sanitary District, covering an area of one-half by three miles located along the canal. It was a "desolate" area which was unoccupied. "It's mainly used as a road from Pulaski up into Cicero where the City stores piping and sewage [sic]."

Kappel testified that on May 15, 1981, a search warrant was executed and two AR-15 rifles were found...