A federal judge will allow three Chicago police officers associated with the 2014 killing of Laquan McDonald to continue their legal action accusing the city of mistreating them in the aftermath.
In an opinion issued Feb. 4, Judge Robert Dow Jr. said Janet Mondragon, Daphne Sebastian and Richard Viramontes, as well as Fraternal Order of Police Lodge 7, may continue their lawsuit alleging a violation of due process rights.
On Aug. 30, 2016, the city police superintendent filed charges recommending the city fire those three officers for violating Chicago Police Department rules. The superintendent also recommended firing Sgt. Stephen Franko and a fourth officer who already faced criminal charges in connection with the killing. Franko is pursuing a separate claim largely mirroring the suit in question.
On that day, the CPD also sent the officers notice of 30-day unpaid suspensions. On Sept. 7, a police board hearing officer submitted a memorandum noting an unpaid suspension of more than 30 days was warranted.
The officers were suspended 285 days as criminal trials against other officers proceeded. In June 2017, the police board determined there was no longer a basis for continued suspension and reinstated the three officers. However, by the middle of July, the officers realized they wouldn’t be getting back pay and benefits.
After the union filed grievances, the city asked those grievances to be withdrawn and refused to agree to arbitration. On Nov. 14, 2017, the prosecutor said the three officers wouldn’t be indicted.
The officers were among those on the scene when McDonald was shot 16 times by Chicago Police Officer Jason Van Dyke as McDonald attempted to walk away from the officers on the night of Oct. 20, 2014. Van Dyke was recently sentenced to 6 years and 9 months in prison after he was convicted of second-degree murder and 16 counts of aggravated battery.
However, as criminal proceedings were pending against Van Dyke and other officers who were on the scene the night of McDonald's death, Officers Mondragon, Sebastian and Viramontes filed their complaint asking the court to declare the city violated their due process rights, or to at least compel arbitration. The city moved to dismiss the entire complaint.
“Although the (union contract) does allow members to first file grievances and then arbitrate certain disciplinary matters,” Dow wrote, “it explicitly excludes suspensions accompanied by a recommendation for separation from that process.”
He further explained the officers, although reinstated, still face termination by the police board, which stayed the proceedings at the request of the criminal prosecutor, presiding judge and the charged officer. The other officers opposed those stays.
“The officers have gone more than 24 months without a post-suspension hearing and there are no allegations, or evidence, before the court regarding when that hearing may occur,” Dow wrote. And while that back pay hasn’t been officially denied, he said the complaint is simply an assertion “the delay of the officers’ post-suspension hearing violated their due process rights in this specific case.”
Dow said the failure to promptly provide a post-suspension hearing can be considered a due process violation, according to “well settled” precedent established in U.S. Supreme Court and Seventh Circuit Court of Appeals opinions. He noted the delay in this instance has no benefit to the officers, nor are they challenging the suspension itself.
The city’s main interest in the delay, Dow continued, seems to be guarding against undermining the criminal complaint against the charged officer “by the possible legal ramifications of compelling officers to testify against themselves in Police Board hearings.” While that may be a sufficiently compelling argument for the city, Dow said, those questions are best addressed “on a motion for summary judgment or at trial, not on a motion to dismiss.”
Dow dismissed the call for compelled arbitration with prejudice, but allowed the due process claim to survive.
The officers and the police union are represented in the action by attorneys Pasquale A. Fioretto and others from the firm of Baum, Sigman, Auerbach & Neuman Ltd., of Chicago.