A state appeals panel on Tuesday upheld the firing of two Chicago police officers who assaulted a man inside a Northwest Side restaurant more than 10 years ago while off-duty.
But the 1st District Appellate Court took the extra step of criticizing Cook County Circuit Judge Kathleen M. Pantle, who ruled in favor of officers Jason Orsa and Brian Murphy, finding their version of events credible despite contrary video evidence.
“Not only does the circuit court disregard the board’s determination that the testimony of the two witnesses was particularly credible and the testimony of the police officers was not worthy of belief, but it also interprets what occurs on the surveillance video in ways that twist the facts and defy reason,” Justice Michael B. Hyman wrote.
“Our careful and close review of the video leaves us dumbfounded by the circuit court’s rejection of the [b]oard’s prima facie true and correct findings,” Hyman added.
The 1st District panel agreed with the Chicago Police Board that Orsa and Murphy — along with their compatriots, Daniel McNamara and Louis Danielson, who are not a party to this case — were not prejudiced by the amount of time it took for police Superintendent Garry McCarthy to bring charges against them.
Additionally, the panel found that the officers’ version of events were not credible in light of witness statements and a videotape of the incident. The video does not feature audio.
But the panel also accused the officers of “stirring prejudices” with their false depiction of Obed DeLeon, the victim of their assault, as flashing gang signs and saying he wants to kill the police.
“Misconduct and manipulation of the sort that occurred here leaves a stain on the good honor of the vast majority of police officers in the department who comport themselves with integrity, dignity, decency and discipline,” Hyman wrote.
The events that occurred at Taco Burrito King during the early morning hours of March 24, 2006, are disputed by DeLeon, witnesses and the videotape, on one hand, and the police officers on the other.
The three police officers were eating their meal with a friend, Matthew Walsh. DeLeon entered the restaurant, asking who had parked a late model Chevrolet Camero in the restaurant’s parking lot in a way that prevented people from entering or leaving the lot.
DeLeon spoke with Shawn Nelson and Joseph Mularczyk, two men whom he didn’t know and were waiting in line for food. DeLeon at one point said, “Yeah, that guy’s an a--hole for parking like that.”
Orsa, Murphy and McNamara were sitting at a table near the counter and near the three other men. Overhearing DeLeon’s comment, DeLeon testified that Orsa replied, “What if I’m that a--hole?” DeLeon and Orsa exchanged words with DeLeon saying, “You need to quit acting like an a--hole and go move your car.”
According to DeLeon and the two other men, Murphy pulled out his gun and aimed it at DeLeon. Orsa, McNamara and Walsh surrounded DeLeon and began beating him while Nelson and Mularczyk took refuge in the restaurant’s kitchen, where they watched the encounter.
Witnesses said that at no point did the officers identify themselves as police officers.
When other on-duty police officers arrived, they arrested DeLeon. Nelson and Mularczyk testified that they tried to tell the officers what happened, but Danielson ordered the men arrested, saying “[A]rrest these two for being in the wrong place at the wrong time.”
Nelson and Mularczyk were charged with assaulting Walsh, even though the video shows the two men were not involved in the fight. Those charges were dropped when Walsh did not appear in court for Nelson and Mularczyk.
Orsa, Murphy and McNamara left the restaurant that night without giving a statement to their fellow officers and never filed a report about the incident, a violation of department policy. The only interaction that occurred was a brief conversation between the group and one of the responding officers.
The police officers alleged that DeLeon walked in the restaurant, flashing gang signs, saying he was a gangster and talked about wanting to kill police officers.
DeLeon threatened the officers, who described themselves as jumping into action to restrain DeLeon and prevent him from attacking others.
DeLeon filed a complaint a few days later; the Independent Police Review Authority completed its investigation in 2009. In July 2010, the superintendent recommended the firing of Murphy and Orsa to the police board.
Murphy and Orsa were charged with violating a host of rules, including discrediting the department, maltreating a person while off duty and failing to report improper conduct.
The panel mentioned that charges were also brought against McNamara and Danielson, but it does not go into detail what happened with their cases. Although not a police officer, Walsh participated in the proceedings.
Before the police board, Murphy and Orsa argued the superintendent’s filing of charges were time-barred, and they were prejudiced by the late filing.
The board weighed the testimony of the officers versus the testimony of DeLeon, Nelson and Mularczyk. Reinforcing DeLeon’s version of events was a restaurant security guard who said DeLeon never threatened the police officers as well as a video that showed the officers assaulting DeLeon.
In January 2011, the board found Murphy and Orsa guilty of breaking department rules and fired them. They determined DeLeon and the other witnesses were more credible than the officers, whose testimony they described as “false and unbelievable.”
In particular, the board found the decision of the officers to not report what had happened to the department or give a statement as “ ‘seriously undermin[ing] the credibility of their testimony.’ ”
The board also described Walsh as an “incredible” witness; he testified that he was attacked by Nelson Mularczyk when in fact the video showed no one touched him.
In March 2011, Murphy and Orsa sought an administrative review in Cook County Circuit Court.
Pantle in March 2012 reversed the board’s decision, finding that they were prejudiced by the superintendent’s delayed finding.
She also credited the officers’ testimony over the others — she noted that DeLeon was a four-time convicted felon. Pantle also found that the video corroborated the officers’ testimony.
Pantle ordered the officers be reinstated. Up until the 1st District panel’s ruling, Orsa and Murphy were still with the Chicago Police Department.
The 1st District panel reversed Pantle. The justices noted there is nothing in municipal and state law that time-barred the superintendent’s filings.
In particular, the panel found, that despite their claim, Murphy and Orsa did not prove how they were prejudiced by the delayed filing of the charges.
Murphy and Orsa claimed that Nelson’s and Mularczyk’s testimony was biased because they were upset over their arrest, but the panel found that the video and the testimony of the security verified Nelson and Mularczyk’s version of events.
The panel also agreed with all of the police board’s findings. In particular, the panel pointed to the videotape; if DeLeon was really making these threats out loud, no one in the restaurant heard it.
“The officers’ reactions and the reactions of other patrons are inconsistent with their contention that DeLeon threatened them or they feared he might have a gun and harm them,” Hyman wrote.
The panel found that, based on the rule violations, the board had the authority to fire Murphy and Orsa.
Orsa was represented by James P. Nally of James P. Nally P.C. He declined to comment.
Murphy was represented by Terence P. Gillespie and Michael P. Gillespie of Gillespie & Gillespie. They did not return a request for comment.
The police board and the Chicago police superintendent were represented by Deputy Corporation Counsel Benna Ruth Solomon and Chief Assistant Corporation Counsel Myriam Zreczny Kasper.
They were also represented by Ruth F. Masters, of the Oak Park-based Masters Law. She was appointed special assistant corporation counsel for this case. Masters declined to comment, deferring any questions to a city Law Department spokesman.
A city Law Department spokesman did not return a request for comment on the current employment status of Orsa and Murphy.
Justices P. Scott Neville Jr. and John B. Simon concurred with the opinion.
The case is Jason Orsa, et al. v. The Police Board of the City of Chicago, et al., 2016 IL App (1st) 121709.