by Joshua B. Rosenzweig (Fall 2016)

A recent decision by the First District Appellate Court confirmed that  police departments are given wide latitude to determine appropriate punishments of officers, not only to punish but to deter future conduct in McDermott v. City of Chicago Police Board, 2016 IL App (1st) 151979.

Timothy McDermott was a member of the Chicago Police Department (“CPD”) for nearly 20 years. During his time as a member of the CPD, McDermott received 74 awards and 11 department commendations for his police work. One of his former partners characterized McDermott’s work as “exemplary,” and the former deputy superintendent of the CPD said that McDermott was a “great guy.”

However, during McDermott’s tenure with the CPD, he was photographed in a picture depicting him and another officer of the CPD “holding long guns and crouching next to an African-American male who was lying on the ground with his tongue sticking out. Plaintiff’s hand was around the man’s throat and the other officer was holding a pair of deer antlers against the back of the man’s head.”

On March 24, 2014, Eddie Johnson, the Chicago Police Superintendent, filed charges against McDermott alleging McDermott’s appearance in the picture violated four CPD rules: (1) Rule 2 – any action or conduct which impedes the CPD’s efforts to achieve its policy and goals or brings discredit upon the CPD; (2) Rule 6 – disobedience of an order or directive, whether written or oral; (3) Rule 8 – disrespect or maltreatment of any person, while on duty or off; and (4) Rule 38 – unlawful or unnecessary use or display of a weapon. The picture was believed to have been taken between October 14, 1999 and July 1, 2003 – over a decade prior to the charges being brought.

Prior to the hearing on the charges filed by the Superintendent, McDermott requested that the hearing officer conducting the hearing before the City of Chicago Police Board (“Board”) take administrative notice of two complaint register investigative files (“CR file(s)”). The first CR file involved the appearance of two officers in a photograph standing in front of an airplane crash at Midway airport in 2005. The photograph was unauthorized and unrelated to the ongoing investigation, and it was disseminated through the officers’ personal email accounts. The photograph received media attention, and the officers were found in violation of Rule 2.

The second CR file concerned a photograph of a group of officers standing behind a kneeling arrestee at the G-20 summit in Pittsburgh in 2009. One officer in the photograph and the photographer were members of the CPD. Both officers were found in violation of Rule 3 (failure to promote the CPD’s efforts to implement its policy or accomplish its goals). d upon the Board’s finding that McDermott violated three of the CPD’s rules, the “Board’s decision to discharge him was not arbitrary or unreasonable.” Id. at ¶37.

Neither CR file was related to McDermott’s case, and neither of the CR files resulted in the discharge of the subject officers. The hearing officer refused to take administrative notice of the CR files based on the Supreme Court’s decision in Launius v. Board of Fire & Police Commissioners, 151 Ill.2d 419 (1992), which provided “that one body should not be permitted to take administrative notice of another body’s decision when the cases involve different individuals.” The hearing officer further noted that the discipline in the CR files was handed out by the Superintendent of the CPD and neither matter came before the Board.

The Board found that McDermott’s appearance in the photograph constituted violations of Rules 2, 8 and 38. The Board found that McDermott “could not be allowed to remain an employee of the [CPD] when he appeared in an extremely offensive and demeaning photograph.”   The Board concluded McDermott should be discharged. McDermott sought administrative review of the Board’s decision in the Circuit Court of Cook County, but the Circuit Court dismissed his petition.

McDermott appealed to the First District Appellate Court, wherein he argued that the (1) hearing officer erred in denying his prehearing request to take administrative notice of the CR files; and (2) that the Board’s decision to discharge him was arbitrary, unreasonable and unrelated to the requirements of service.

The appellate court noted that the determination of relevant evidence is within the discretion of the hearing officer, and “we will not disturb that determination absent an abuse of discretion.” With respect to the hearing officer’s determination concerning the CR files, the appellate court noted that the CR files involved officers in “completely unrelated” cases and neither incident was brought before the Board. Further, the appellate court noted that the charges against McDermott did not arise out of the incidents described in the CR files. The appellate court stated that the “fact that different individuals have been disciplined differently is not a basis for concluding that an agency’s disciplinary decision is unreasonable; such conclusions are appropriate when individuals receive different disciplines in a single, identical ‘completely related’ case.” (citing Siwek v. Police Board, 374 Ill.App.3d 735, 738 (1st Dist. 2007)). The appellate court concluded that the hearing officer’s decision to refuse to take administrative notice of the CR files was not an abuse of discretion.

The second ground for McDermott’s appeal – that the Board’s decision was arbitrary, unreasonable and unrelated to the requirements of service – met a similar fate. The appellate court noted that the Board’s findings will be deemed contrary to the manifest weight of the evidence only where the opposite conclusion is clearly apparent. In confirming violations of Rules 2 and 8 occurred, the appellate court pointed out that the Board found McDermott’s appearance in a photograph depicting an African-American male as a “hunted animal” was sufficiently serious to constitute a violation of Rule 2 because it brought discredit upon the CPD, and that Rule 8 was also violated because the photograph demonstrated disrespect or maltreatment of a person. The appellate court also agreed with the Board that McDermott violated Rule 38 because McDermott was unnecessarily using or displaying his weapon.

The appellate court stated that the Board is given “wide latitude to determine the appropriate punishments that not only punish the conduct of the officer, but also deter future conduct by other officers. (citing Kappel v. Police Bd. of City of Chicago, 220 Ill.App.3d 580, 590 (1st Dist. 1991)). The appellate court noted that violation of one rule has long been a sufficient basis for termination. (citing Siwek, 374 Ill.App.3d at 738). Based upon the Board’s finding that McDermott violated three of the CPD’s rules, the “Board’s decision to discharge him was not arbitrary or unreasonable.”