Firing of officers upheld; police board found
they violated policy after street confrontation

(CHICAGO) -- The Illinois Appellate Court, 1st Division, 3d Division, has affirmed a ruling by Judge Lester Foreman. In October 1997, the Police Board of the City of Chicago filed charges against plaintiffs James Comito Jr. and Matthew Thiel, both Chicago police officers. The two were accused of violating various departmental rules based on an altercation they had with Jeremiah Mearday on Sept. 26, 1997, on North Pulaski Avenue in Chicago.

The plaintiffs were charged with violating rules prohibiting conduct that impedes the department from achieving its policies and goals or that brings discredit on the department, disrespecting any person, and making a false report. Thiel also was charged with violations prohibiting unjustified verbal or physical altercations with any person and unlawful or unnecessary use or display of a weapon.

The charges were based on an incident in which the plaintiffs saw four black males standing near a corner on North Pulaski.

Thiel testified that he got out of the squad car because he recognized two of the men based on a previous drug arrest. Mearday began walking away, and Thiel pointed his gun at him because he could not see his hands and knew there had been shootings in the area.

Thiel said he and Comito approached Mearday because he was being evasive. Comito placed his hand on Mearday's shoulders and asked him to come over to the police car for a few minutes. Mearday allegedly shoved Comito's hand away, saying that the officers had no reason to stop him. Thiel said Comito told Mearday that he was under arrest and grabbed him. Mearday then allegedly began punching Comito and yelling obscenities.

Thiel said he assisted Comito in trying to grab Mearday to take him into custody as Mearday continued to resist and shove them. Thiel jumped on Mearday and when they fell, Mearday's face struck the pavement. Thiel said he saw Comito give Mearday two whacks" on the head with his baton while Mearday was lying on the street but continuing to kick and punch at the officers.

Mearday testified that the day he was injured, he was on his way to a drug store to buy medication for an allergic reaction he was having from eating fried rice with shrimp. He said when the officers stopped him and his companions, he began to drop to his knees with his hands in the air when one of the officers struck him on the head with a flashlight. He said the officers continued to strike him after the first blow. He said the officers never said why they were stopping the men.

A physician testified that Mearday's injuries were inconsistent with a fall onto the street or a flat surface and that they probably were caused by blows from a blunt object, such as a flashlight or police baton.

The Police Board found that the plaintiffs were guilty of the charges and discharged both from duty.

The plaintiffs then sought administrative review in the Circuit Court, which upheld the firings.

On appeal, the plaintiffs argued that they were denied a fair hearing because the hearing officer was biased against them. They cited the hearing officer's continued insistence" on interrupting counsel, questioning every witness, advising counsel and witnesses for the department and commenting on the evidence. The plaintiffs also argued that the hearing officer's conduct in questioning nearly every witness at the administrative hearing exceeded his authority.

The appeals court rejected those arguments and affirmed. The court said the Chicago Municipal Code does not explicitly grant the hearing officer the authority to pose direct questions to witnesses, although it does not explicitly prohibit such questions. The court also cited cases in which judges were permitted to pose questions to witnesses in conjunction with performing their judicial functions, especially when the judge is the trier of fact, not a jury.

The code gives the hearing officer broad powers to conduct the hearing, and we find that asking questions of witnesses to clarify issues is consistent with this power," the appeals court said.

In addition, the court said, the plaintiffs failed to show how questions by the hearing officer showed any bias against them. The court said its review of the 105 instances of alleged bias indicated that the hearing officer's questions, comments and rulings did not reveal that the hearing officer had already adjudicated the facts or the law before the proceedings began.

The appeals court also rejected the plaintiffs' argument that the hearing officer wrongly denied their motion to bar the defendants' physician's testimony regarding the results of DNA tests.

November 28, 2000, Tuesday Copyright 2000 Law Bulletin Publishing Company Chicago Daily Law Bulletin November 28, 2000, Tuesday Terms and Conditions Copyright(c) 2000 LEXIS-NEXIS, a division of Reed Elsevier Inc. All rights Reserved.

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