Monthly Archives: August 2010

An analysis of how a private individual may swear a complaint in Illinois.

An analysis of how a private individual may swear a complaint in Illinois

By Mark McCoy – mark@markmccoy.com

What do you do when you when you wish to have someone charged with an offense but are reluctant to  call the police, or have called the police and they refuse to act? Often times, the police will begin an inquiry or investigation into the person bringing the complaint as well. The more charges they can bring the better. So, in order to protect your privacy from the police you instead choose to bring charges on your own.

In Illinois, it is possible for a private individual to bring criminal charges against someone, and even then, against a the police. I was subject to criminal act committed by police and when I tried to press charges I was met with obfuscation, confusion, uncertainty, and reluctance from various agencies in pursuing a complaint. I contacted the Illinois State Police who referred me to the FBI. I called the FBI who only wanted to pursue civil rights violations, rights of which I do not claim.  I then went to the State’s Attorney who told me by way of a receptionist screening visitors that the State’s Attorney works for the police and I would have to go talk to the police. Really? The State’s Attorney is  elected by the electors and does not work for the police. I contacted the St. Clair County Sheriff’s department who referred me back to  the State Police. I tired quickly of the runaround. I even approached the St. Clair County

Circuit Clerk about filing the charges and they told me they had to file it along with my criminal charges which I was fighting at that time. During a court appearance in front of an associate judge I was told that any citizen can bring charges against someone else if they swear to a crime being alleged. How to exactly effect this was not clear, but I was told to file the complaints with the Circuit Clerk’s office. When going to the Circuit Clerk’s office the clerks did everything possible to avoid the issue and eventually brought the actual Circuit Clerk out to greet me. He eventually took possession of my complaints and promised to file the complaints, but first needed to speak to the chief judge.  It appears no one knew how to prosecute police.

I turned to the Illinois Compiled Statutes for guidance. I drafted the criminal complaints based upon the requirements identified in the statutes and had them notarized. The statute I refer to is Chapter 725 and is cited as 725 ILCS 5/107-9 (Criminal Procedure – Apprehension and Investigation – Arrest- Issuance of arrest warrant upon complaint).

I will reference the salient parts from the Illinois Compiled Statutes Annotated and then comment on supporting case law. I want to stress the importance of paying particular attention to words such as “shall” and “may”. The language of the law is intended to be very precise and where ambiguity is found then legislative intent is consulted.

725 ILCS § 107-9. Issuance of arrest warrant upon complaint. (a) When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.

Notice the statute does not limit who may make the complaint. It is not reserved for State’s Attorneys or police. A complaint is also presented to a court. That means a judge who has authority to issue a warrant. Most municipal judges are not even attorneys. This statute is referring to an associate judge or higher.

725 ILCS § 107-9(b)(3),(4) State the time and place of the offense as definitely as can be done by the complainant; and Be subscribed and sworn to by the complainant.

The complainant is the person who was injured by the accused. It is not a cop and it is not the People of the State of Illinois. It is a flesh-and-blood individual who was subject to the alleged criminal act. The complainant must be examined by the court and under oath. This is important because not everyone can administer oaths. A ticket signed by a cop where it says under penalty of perjury is not a legally binding oath or affirmation because it is not made before someone lawfully empowered to administer oaths. In Illinois, the authority to administer oaths is found at 5 ILCS 255 (Oaths and Affirmations Act).

So you go into court before a judge and have in your possession a written complaint which states the name of the accused and/or any way of identifying the accused and the offense with which the accused is charged, as well as the time and place of the offense. The complaint must be subscribed and sworn to by the complainant, which means before a notary or other persons indentified in the Oaths and Affirmations Act. The court “shall” examine the complaint, the complainant, and any witnesses. If, after reviewing the foregoing, the court determines that an offense has in-fact been committed it a warrant “shall be issued” for the arrest of the person complained against. This means no discretion. It “shall” issue a warrant, shall being equated with “must”.

Key points to bear in mind:

Examination of complainants and witnesses

Although an arrest warrant may be issued only upon a showing of probable cause, it does not necessarily follow that a demonstration of probable cause must be made in complaint upon which arrest warrant is issued; in issuing arrest warrant, judge is not bound by four corners of complaint, but may base a determination of probable cause upon his required examination of complainant or witnesses. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.

  • What is being said here is that probable cause does not rest solely with the complaint. It is required that the judge examine the complainant or witness, and upon that testimony he may find probable cause. This is because not everyone may possess the faculties required to pen a proper complaint and what may be lacking in the complaint is supplemented by the testimony of the complainant.

In compliance with this paragraph, judge issuing arrest warrants properly examined complainant to determine probable cause prior to issuing warrants over his signature. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.

Where complaint was signed by complainant and was acknowledged before notary public, who was not an associate circuit judge or magistrate, and after complaint was signed and sworn to, it was presented to associate circuit judge, who heard no testimony, and solely on basis of examination of complaint, ordered warrant of arrest to issue, warrant was properly quashed because of failure of associate circuit judge to examine complainant or other witnesses as required by this paragraph. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241.

  • What is being said here is what illustrates the necessity for the judge to examine the complainant or witness. It is important to keep this in mind when making your complaint because if the judge does not examine the complainant or witness it will prove fatal to your case. I can envision a situation where a judge will sabotage a case by failing to examine the complainant or witness, as in what took place in the above case. I would recommend being adamant about the judge examining you or the witness to ensure no defect in the warrant ensues which would result in a dismissal.

Complaint–In general

Citizen who has knowledge that crime has been committed should go before a magistrate and make a complaint stating that particular crime has been committed and, on information and belief, that the person named is the offender, and magistrate should thereupon issue his warrant for arrest of person named. Lindquist v. Friedman’s, Inc., 1937, 8 N.E.2d 625, 366 Ill. 232.

  • The court doesn’t make it any clearer than this.

Arrest by warrant is unlawful until complaint charging crime has been filed. Housh v. People, 1874, 75 Ill. 487.

Verification of complaint

Defective verification of complaint may be waived. People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161.

  • A  person waives a defective verification or complaint when they appear in court and plea to charges without demanding a verified complaint. This includes traffic and misdemeanor tickets signed by the police. The policeman’s signature is not a verification since it is not signed and sworn to in front of someone empowered to administer oaths by way of the Oaths and Affirmations Act. Does this mean some possible inconvenience? Yes, but I would posit that a majority of cases would not proceed if the State had to actually follow the law as-written. Remember, if you plea to a ticket you waive any defect in the complaint, which is certain if it had not been sworn to.

Where defendant had not moved to quash complaint until after state had rested its case in prosecution for theft and at time of motion complainant had already sworn in open court to all facts alleged therein, defects, if any, existing in verification of complaint had been waived. People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161.

  • Basically, in this case, it was too late to challenge any defects in the complaint. The individual in this case waited until after the State had rested in prosecution. It is best to challenge the complaint at the outset.

Complaint subscribed by complainant and sworn to before notary public is sufficient to meet requirement of this paragraph. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. Criminal Law  211(2)

  • Basically, a complaint subscribed and sworn to before a notary public satisfies the requirements for having the complaint sworn to.

Paragraph 111-3 of former chapter 38 providing that complaint shall be sworn to and signed by complainant does not limit or qualify person or officer before whom complaint is to be sworn and signed and allows verification before any officer empowered to administer oaths. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.

  • What is being said here is that a complaint shall (must) be sworn to and signed by complainant. It also does not attempt to limit who the complainant may swear and sign before as long as they are empowered to administer oaths, which refers to the Oaths and Affirmations Act.

Where want of verification was appropriately raised, unverified complaint charging reckless and careless driving on residential street in violation of village ordinance could not sustain guilty judgment and judgment must be reversed. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.

  • What happened in this case is the defendant raised the issue of demanding a verified complaint, but the State refused to comply and proceeded on with a trial. Upon finding the defendant guilty, the judgment was reversed because he was never provided with the verified complaint. Once the issue is raised, and not complied with, everything after that point is a nullity and must be reversed.

Complaint verified before notary public satisfies requirement of ¶111-3 of former chapter 38 that complaint shall be sworn to and signed by complainant and is sufficient to sustain criminal prosecution. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.

  • This confirms and clarifies the requirement that a complaint must be sworn to and signed by the complainant in order to sustain a criminal prosecution. As mentioned above, a complaint not sworn to by a person empowered to administer oaths will not sustain a finding of guilt and must be reversed.

A sworn information or complaint, or an indictment, is a prerequisite to issuance of an arrest warrant. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147.

  • This does not mean an individual can’t be arrested without an arrest warrant, but it means that in order for there to be an arrest warrant a complaint, or information or indictment, must be sworn to. Again, by appearing in court upon receiving a ticket signed by the policeman waives your right to a verified complaint. If there is no sworn complaint before a person empowered to administer oaths then the warrant is not lawful.

Constitutional provisions relating to searches and seizures should not be extended to require a sworn complaint as a jurisdictional prerequisite to prosecution of a criminal offense. People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147.

An information cannot be verified on information and belief, but the affidavit in support thereof must be sworn to positively so that a charge of perjury would lie in the event of its falsity. People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.

  • An information is different from a complaint. An information is signed by the State’s Attorney and a complaint is signed by the complainant. What the court said in this case is that for the State to bring a charge by way of information, it must be supported by affidavit which is sworn to the same as with a complaint so that if false, a charge or perjury could be brought against the person if not true.

Form and contents of complaint

Fact that complaint itself may not have stated facts supporting probable cause did not make arrest warrant invalid, where trial court examined complainant under oath and determined that probable cause existed. People v. Hayes, 1990, 151 Ill.Dec. 348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664.

  • The court is saying that even if the complaint itself does not contain information to support probable cause, by the court examining the complainant under oath, it determined that probable cause was sufficient for the issuance of an arrest warrant. This illustrates the importance of the court examining the complainant or witness. It is not the written complaint which is important, but that there is a flesh-and-blood individual before the court swearing under oath and penalty of perjury that there has been a crime committed, and the complaint serves as the written instrument for the record which the court will refer to in prosecuting the crime.

Officer seeking arrest warrant is not required to present issuing judge any and all circumstances which may affect finding of probable cause. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142.

Complaints for arrest warrants, which complaints contained names of accused, offense charged, time and place of offense, and signature and oath of complainant, were sufficient under this paragraph. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995.

Probable cause necessary for issuance of arrest warrant cannot be made out by mere conclusory statements in affidavit in support of warrant that probable cause exists. People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723.

Where arrest warrant was issued on basis of a complaint which merely stated that police officer had just and reasonable grounds to believe that defendant had sold a narcotic drug, warrant was defective under Const. 1870, Art. 2, § 6 (see, now, Const. Art. 1, § 6), and evidence obtained as a result of defendant’s arrest was inadmissible. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257.

Complaint which charged offense of disorderly conduct and which was verified before notary public and presented to court by complainant, who was thereupon examined under oath by court, was sufficient as basis for issuance of warrant of arrest. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809.

A complaint in writing subscribed and sworn to, containing a concise statement of the offense charged, the name of the person accused, and averring that the complainant has just and reasonable grounds to believe that the accused committed the offense, is sufficient. People v. United States Fidelity & Guaranty Co., 1925, 238 Ill.App. 112.

Illinois courts may issue an arrest warrant only if complaint shows that probable cause exists to believe proposed arrestee has committed crime in question. Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101.

Information, complaint as

Signature of assistant state’s attorney on complaint for arrest warrant did not automatically convert that instrument into an information. People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35.

Same instrument which was used as complaint for arrest warrant was properly used the following day as information charging defendant with offenses. People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35.

Warrant–In general

Issuance of an arrest warrant does not, of itself, formally charge individual with a crime. People v. Dockery, App.1966, 72 Ill.App.2d 345, 219 N.E.2d 687. Criminal Law  216 for arrest should not issue except upon information supported by affidavit. Myers v. People, 1873, 67 Ill. 503

Grounds for insurance, warrant

Trial court had authority to issue warrant for defendant’s arrest when he failed to appear personally on hearing date for traffic offenses. People v. Kaeding, App. 2 Dist.1988, 116 Ill.Dec. 237, 165 Ill.App.3d 188, 518 N.E.2d 1058.

Probable cause, warrant

This paragraph did not require that complaint or warrant articulate probable cause for arrest but rather that court, in making determination of probable cause for issuance of arrest warrant, examine complainant or any witness under oath. People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239.

Motion to quash, warrant

With respect to one statement used by police to procure arrest warrant, affiant’s deliberate omission of material fact can be reckless disregard for the truth such as to justify attack on veracity of affiant’s statement. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142.

Where motion to quash an arrest warrant is filed, judge hearing that motion must have before him the same knowledge the judge who issued that arrest warrant had, in order to make a proper and intelligent judgment as to whether probable cause existed, and trial judge must look at the same things the judge who issued the arrest warrant looked at, i.e., both the complaint and the oral testimony heard under oath at that time. People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183.

On motion to quash arrest warrant, trial judge erred in ruling that he could not go beyond four corners of the warrant and in refusing to consider what officer who had signed warrant had testified to under oath before the issuing judge; thus motion should not have been granted on basis that warrant did not state how the officer acquired his knowledge.  People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183.

As one allegedly aggrieved by a claimed unlawful seizure of his person, defendant, by motion to quash arrest, had right to show that arrest, although with a warrant, was illegal because warrant was insufficient on its face, was issued without probable cause or was illegally executed. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.

On motion to quash arrest, burden was on defendant to prove that warrant was invalid. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.

Absent evidence that arrest warrant was illegally obtained or unlawfully executed, trial court did not err in refusing to grant defendant’s motion to quash his arrest. People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69.

Search and seizure

The right of search without a warrant, as an incident to a lawful arrest, may, in proper cases, extend beyond the person to an area in immediate physical relation to him, although extent is limited by the reasons for its existence, namely, to protect the arresting officer and deprive the prisoner of potential means of escape. People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414.

An officer has the right, as an incident of arrest, to search a prisoner without a search warrant, and evidence taken from the person as a result of that search is admissible against him. People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414.

Abuse of process

The holding of accused incommunicado by officers of the state before complying with warrant for accused’s arrest which required accused to be taken before magistrate constituted “abuse of process.” People v. Crabb, 1939, 24 N.E.2d 46, 372 Ill. 347.

Review

In passing on validity of warrant, reviewing court may consider only information brought to attention of judicial officer issuing warrant. People v. Lindner, App. 2 Dist.1980, 36 Ill.Dec. 512, 81 Ill.App.3d 15, 400 N.E.2d 1092.

Reviewing courts must interfere with discretional determinations of magistrates with regard to issuing warrants when no basis for probable cause appears on the face of the complaint. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257.

Where no motions to quash or in arrest of judgment were filed or ruled upon prior to the filing of the notices of appeal, the question of the sufficiency of the complaints could not be raised on appeal. People v. DeMarino, App.1966, 72 Ill.App.2d 38, 219 N.E.2d 132.

Interesting

Police officers did not make lawful arrest based on probable cause, accompanied by lawful search incident to such arrest, where defendant was not informed that he was under arrest until after second search was conducted and he was handcuffed, approximately 15 minutes after initial pat-down which produced switchblade knife, and where, throughout this period of time, nothing was said to defendant who remained standing 10 to 15 feet away from squad cars, unrestrained in any way. People v. Vollrath, App. 3 Dist.1981, 51 Ill.Dec. 346, 95 Ill.App.3d 866, 420 N.E.2d 760.

Where defendant, who was stopped by police for driving with a bent license plate, was asked to step out of the car and was subsequently arrested for driving under a suspended driver’s license, search of bag in the back seat of his car was unreasonable as a search incident to arrest, as the bag was not within the immediate control of the defendant once he stepped from the car, and there was no showing that the officer had reason to believe that the incident was anything more than a traffic matter, nor that the search was necessary to insure the safety of the police officer or to prevent the defendant from escaping. People v. Salter, App. 1 Dist.1980, 47 Ill.Dec. 136, 91 Ill.App.3d 831, 414 N.E.2d 1252.

Arrest for minor traffic violation does not justify search of violator. People v. Holze, App. 2 Dist.1977, 13 Ill.Dec. 144, 55 Ill.App.3d 155, 370 N.E.2d 1171.

State Police officer’s uncontradicted testimony that State Police department had standard policy of checking passenger compartment and trunk for valuables and of listing any valuables on tow inventory sheet established that State Police department’s standard policy for conducting an inventory search before towing the vehicle of a motorist arrested for driving on a revoked license included a policy of opening closed containers in which valuables might be found. People v. Gipson, 2003, 272 Ill.Dec. 1, 203 Ill.2d 298, 786 N.E.2d 540, certiorari denied 124 S.Ct. 116, 540 U.S. 844, 157 L.Ed.2d 80.

Roadblock to check for valid driver’s license, insurance and registration was unreasonable “seizure” under Fourth Amendment, even though checkpoint served valid public safety purpose, where police sergeant, rather than policy-making level official, made decision to institute roadblock, no written guidelines governed operation of roadblock, and there was no evidence that roadblock was publicized or that it was effective in advancing public interest. People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098.

In measuring the level of subjective intrusion produced by a roadblock, courts consider whether (1) the decision to institute the roadblock and to select the site is made by supervisory personnel; (2) the method employed to stop the vehicles is preestablished and systematic; (3) the roadblock is operated in accordance with preexisting guidelines; (4) the official nature of the operation is sufficiently apparent, and it is obvious that the roadblock does not in fact pose a safety risk; and (5) the police’s intent to establish the roadblock is publicized in advance. People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098.

Cases cited herein:

  • Housh v. People, 1874, 75 Ill. 487

Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101

  • Lindquist v. Friedman’s, Inc., 1937, 8 N.E.2d 625, 366 Ill. 232
  • Myers v. People, 1873, 67 Ill. 503
  • People v. Crabb, 1939, 24 N.E.2d 46, 372 Ill. 347
  • People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995
  • People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723
  • People v. DeMarino, App.1966, 72 Ill.App.2d 38, 219 N.E.2d 132
  • People v. Dockery, App.1966, 72 Ill.App.2d 345, 219 N.E.2d 687
  • People v. Fullwiley, App. 2 Dist.1999, 237 Ill.Dec. 861, 304 Ill.App.3d 44, 710 N.E.2d 491, appeal denied 242 Ill.Dec. 143, 185 Ill.2d 642, 720 N.E.2d 1098
  • People v. Gipson, 2003, 272 Ill.Dec. 1, 203 Ill.2d 298, 786 N.E.2d 540, certiorari denied 124 S.Ct. 116, 540 U.S. 844, 157 L.Ed.2d 80
  • People v. Harding, 1966, 34 Ill.2d 475, 216 N.E.2d 147
  • People v. Hayes, 1990, 151 Ill.Dec. 348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664
  • People v. Heidman, 1957, 11 Ill.2d 501, 144 N.E.2d 580, certiorari denied 78 S.Ct. 412, 355 U.S. 931, 2 L.Ed.2d 414
  • People v. Helton, App. 1 Dist.1974, 18 Ill.App.3d 1077, 311 N.E.2d 183
  • People v. Holze, App. 2 Dist.1977, 13 Ill.Dec. 144, 55 Ill.App.3d 155, 370 N.E.2d 1171
  • People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239
  • People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142
  • People v. Johnson, App. 5 Dist.1989, 135 Ill.Dec. 678, 188 Ill.App.3d 147, 544 N.E.2d 35
  • People v. Kaeding, App. 2 Dist.1988, 116 Ill.Dec. 237, 165 Ill.App.3d 188, 518 N.E.2d 1058
  • People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241
  • People v. Lindner, App. 2 Dist.1980, 36 Ill.Dec. 512, 81 Ill.App.3d 15, 400 N.E.2d 1092
  • People v. McDonald, App. 1 Dist.1973, 15 Ill.App.3d 620, 305 N.E.2d 69
  • People v. Salter, App. 1 Dist.1980, 47 Ill.Dec. 136, 91 Ill.App.3d 831, 414 N.E.2d 1252
  • People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657
  • People v. Smith, App.1967, 90 Ill.App.2d 388, 234 N.E.2d 161
  • People v. United States Fidelity & Guaranty Co., 1925, 238 Ill.App. 112
  • People v. Vollrath, App. 3 Dist.1981, 51 Ill.Dec. 346, 95 Ill.App.3d 866, 420 N.E.2d 760
  • People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257
  • Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809

Table of Authorities:

725 ILCS 5/107-9 (Criminal Procedure – Apprehension and Investigation – Arrest- Issuance of arrest warrant upon complaint)

SAMPLE CRIMINAL COMPLAINT:

Criminal Complaint and Affidavit in Support Thereof

NOW comes (Name of complaining party), a free and independent American and an inhabitant of the state of Illinois, and hereby states the following under oath and in demand to be examined by a sitting Judge of the County where this complaint is sworn to under penalty of perjury pursuant to authority found at 725 ILCS 5/107-9:

That on February 17, 2009, I, (Name of complaining party),, was witness to and possess first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Disorderly Conduct

Statutory provisions violated: 720 ILCS 5/26-1

Nature and elements of the offense (try to use as much of the language found in the statute and include the particular elements of the offense you are alleging): Transmitted or caused to be transmitted in any manner to any peace officer, public officer or public employee a report to the effect that an offense will be committed, is being committed, or has been committed, knowing at the time of such transmission that there is no reasonable ground for believing that such an offense will be committed, is being committed, or has been committed by way of a Fairview Heights Police Department Crime/Incident Report dated 2/17/09, Non-Traffic Complaint 1115419, Illinois Citation and Complaint(s) 1159155, and 1159154,  which transmitted to the Illinois State’s Attorney, a public officer, that the offenses of Fleeing and Eluding and Resisting a Peace Officer, and Improper Lane Usage, had been committed while knowing that there was no reasonable ground for believing that such offense(s) will be committed, were being committed, or had been committed.

Date and County were offense occurred: This offense occurred on February 17, 2009 in St. Clair County, Illinois.

Name of the Accused (If you know the name and address or place of business you should use that as well. You need to provide enough information so the individual may be identified by the arresting officer): Joshua Alemond, known to Mark McCoy as a policeman for the City of Fairview Heights, Illinois


AFFIDAVIT

I, (Your Name), do hereby swear that the information contained in this Criminal Complaint is true and accurate to the best of my knowledge, and it is my true belief that the person(s) named herein are guilty of having committed the aforementioned offenses/criminal acts.

Subscribed and affirmed, under penalty of perjury, to the aforementioned material herein, in Madison County, in State of Illinois, on this 24th day of July, 2010.

_____________________________________

Affiant, (Your Name)

(SIGNATURE)

The undersigned, a notary public in and for the above county and state, certifies that ________________________, known to me to be the same person whose name is subscribed to the foregoing Criminal Complaint and Affidavit in Support Thereof, appeared before me in person and acknowledged signing and delivering the instrument as a free and voluntary act.

Dated: ___________________

(SEAL)

__________________________

Notary Public

My commission expires ______________________________

Corruption in St. Clair County, Illinois. Officials Refuse to Prosecute Police for Misconduct.

For ongoing emails between myself and the Clerk of the Court, Brendan Kelly, click here.

For an analysis of how a private individual can bring charges without police, click here.

This letter is part of the ongoing saga with my attempt to bring criminal charges against two Fairview Heights, Illinois policemen who, on February 17, 2009, illegally detained, arrested, beat, Tasered, charged, and confined me. Foregoing many details, this issue relates to criminal charges against the police. I have inquired with the St. Clair County Sheriff, Illinois State Police, State’s Attorney Bill Haida, Chief Judge of the Twentieth Judicial Circuit, John Baricevic, St. Clair County Circuit Clerk, Brendan Kelly, the FBI, as well as filing a report with the Fairview Heights Police Department. I have brought the matter to the attention of the clerks working in the Circuit Clerk’s office, as well as a couple of judges, one of which confirmed that a private individual can bring a complaint without first going through the police; even though his direction for doing so was in error.

I had initially written and swore to a number of complaints which identified misdemeanors and felonies involving the actions by the policemen Joshua Alemond and Aaron Nyman. Copies of these complaints were tendered to the clerks of the Circuit Court who said they would investigate on how to have them filed. They were eventually returned to me via US Mail after the determination was made that there was nothing for the Clerk’s office to do. Believing that this was the proper venue for filing complaints, I persisted in visiting the Clerk’s office a number of times who referred me to the State’s Attorney who then referred me to another police agency or the Circuit Clerk. Finally, I was met personally by Brendan Kelly, the Clerk of the Circuit Court, who took personal possession of my original wet-ink signature complaints under the promise they would be filed and assigned case numbers. I attempted to contact Mr. Kelly via email and phone after some time to determine the status of my complaints. I even contacted Chief Judge John Baricevic, since Mr. Kelly said he too would inquire with the Chief Judge. Mr. Baricevic informed me that a private individual could not bring any kind of charges without first going through a police agency.

Now, bear in mind that during this time I was operating on information from “officials” that the Circuit Clerk was the proper person to receive these complaints. Upon further inquiry, I discovered that the Illinois Statutes provide for the process by which anybody can bring a criminal complaint. There is NO requirement that anybody must proceed through a police agency. People have direct access to the courts, the State’s Attorney, and even the Grand Jury. The police have broad discretion in whether to prosecute. However, the police are not a constitutional body. There are even questions about whether the police are constitutional. Police officers are not actual officers, as the word is used in-general. They take no legally binding oath nor are elected by the people. They are, for the most part, private code enforcement officers of municipalities and the State, with authority only applicable to the “Police Powers” of the State, which does not include actions against individuals for non-violent acts.

My research ultimately led me to the irrefutable conclusion that people who are victims of a criminal act can bring before the courts a sworn complaint which also required the judge to examine the complainant under oath and, if it is found that a crime has occurred, must issue a warrant for the arrest of the person so alleged to have committed the crime. It appears that approaching the police is a matter of convenience, but which does not hold them to a constitutional duty, as such is imposed upon the State’s Attorney and judges.

After being met with deceit, misinformation, incompetence, and mischief by the judicial and executive branches of government in St. Clair County, Illinois, I chose to write the following letter to the responsible individuals, thereby putting them on notice that I intend to bring my complaints against the police.

I will NOT approach any police agency or defer to administrative review for their actions. This is not a matter of policy violation, but of criminal acts. I will not accept the lesser-course of action, but instead press the issue of criminal prosecution. Since Brendan Kelly has delayed so long in addressing my complaints, I have foregone the misdemeanor complaints and instead have re-framed them as official misconduct, which is a felony. The statute of limitations has expired on August 17, 2010 regarding the misdemeanors, but pursuing felonies give me a 3 year window.

UPDATE: On August 20, 2010, I received a voice mail from Brendan Kelly regarding my complaints. He informed me that they have been assigned a miscellaneous case number and further discussion with the court will determine how to proceed. Mr. Kelly, I regret to inform you that your services in this matter are no longer required or desired. You do not have the capacity or authority to act in any way regarding these charges. The charges you so graciously decided to file AFTER the statute of limitations expired is most disingenuous and insulting. I spoke with Mr. Kelly’s assistant a couple of weeks ago and asked her to instruct Mr. Kelly that I would not be pursuing complaints through his office as he is not empowered to respond. Apparently, either his assistant failed to inform him, he failed to listen, or is under the belief that I will be placated by  his feigned attempt to address my concerns. The case number assigned is 10-MR-212, which a miscellaneous remedy and NOT criminal. This is filed under civil cases. Mr. Kelly, thanks, but no thanks.

If you may be so inclined to contact Mr. Brendan Kelly, Clerk of the Circuit Court, and inquire as to why “criminal complaints” were personally received by him under the promise of having them filed (which, by the way, he had not the authority to do) and said or did nothing before contacting me on August 20, 2010, 3 days after the statute of limitation expired on the misdemeanor complaints; and then, filing them under a civil “miscellaneous remedy” number, feel free to call his direct number and leave a message. The number is 618-825-2323.

It is also curious that Mr. Haida, the State’s Attorney, is running for judgeship and Mr. Baricevic is up for re-election as well. At the present, these men represent the prosecutorial and judicial crem de la creme of St. Clair County. I think it prudent for the voters to ask themselves if either of these men deserve such positions if they either fail to follow the law, or are unaware of it. Their election information is:

GENERAL ELECTION – 11/2/2010
Name    Status
Status Date    Office
BARICEVIC, C. JOHN
27 MARILYN CIRCLE
FAIRVIEW HEIGHTS, IL 62208     Active
9/29/2009 1:00 PM     20TH CIRCUIT – RETAIN BARICEVIC

GENERAL ELECTION – 11/2/2010
Name    Status
Status Date    Office
HAIDA, ROBERT B.
100 SOUTH FAIRWAY DRIVE
BELLEVILLE, IL 62223     Active
10/26/2009 8:00 AM     20TH CIRCUIT- YOUNG VACANCY
DEMOCRATIC

My letter follows:

August 11, 2010

Brendan Kelly
Clerk of the Circuit Court
Saint Clair County Courthouse
10 Public Square
————————————-
Belleville, Illinois 62220
Robert Haida
St. Clair County State’s Attorney
Saint Clair County Courthouse
10 Public Square
Belleville, Illinois 62220
————————————-
John Baricevic
Chief Judge
Twentieth Judicial Circuit
Saint Clair County Courthouse
10 Public Square
Belleville, Illinois 62220
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Re:  Notice of actions giving rise to Official Misconduct and other Offenses

Dear Sirs:

May this letter serve as formal notice of my intentions in bringing charges of Official Misconduct and other offenses before the State’s Attorney and/or Court in St. Clair County, Illinois. I have made a number of attempts to contact all of you to whom this letter is addressed in hopes of invoking your constitutional duty. Unfortunately, I have met with delays, obfuscation, inaccuracies, incompetence, and lies when seeking your counsel in regards to this matter. As a result, I am serving you with this letter and with copies of the allegations to which I have sworn and been verified under penalty of perjury.

I had previously attempted to contacted Mr. Baricevic by telephone where I spoke briefly with him in regards to the matter. Mr. Baricevic informed me that I, as an individual, could not bring complaints before a court or State’s Attorney, but rather was required to present them to a police agency. I believe this statement is either in error, or misleading. While a police officer has considerable latitude in charging an individual, the ultimate responsibility of filing a charge and prosecuting it lies with the State’s Attorney. (Ill.Rev.Stat.1973, ch. 14, par. 5.) Thus, the actions of the police officer in the first instance yield to the judgment and discretion of the constitutional officer empowered to take final action. People v. Woollums, 63 Ill.App.3d 602, 379 N.E.2d 1385, 20 (Ill.Dec. 317). My intention was to appear before a court and present my sworn complaints where I would then be examined by a judge under oath in accordance with 725 ILCS § 107-9 which reads, “When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.” Notice that the statute does not distinguish between police, attorney, or private individual when addressing who may make the complaint. If the citizen knows a crime has been committed, it is his duty to appear before a magistrate and make a complaint, in which he states that the crime has been committed, and in which he may state, upon reasonable information and belief, that the party named is the guilty party, whereupon the magistrate will issue his warrant, directed to all sheriffs, coroners, and constables in the state, or, in case of emergency or in the absence of such officer, may direct the same to a private individual. Enright v. Gibson, 219 Ill. 550, 76 N.E. 689.

Of course, my original complaints consisted primarily of misdemeanors, which appearance before a judge when making a complaint would be proper. However, realizing the time in which misdemeanors may be charged would soon expire, I came to discover that the same actions, although misdemeanors, can be used to frame a charge of Official Misconduct. I understand that appearance before a judge in presenting a complaint is not proper for alleging charges of Official Misconduct, which is a Class 3 Felony and therefore governed by 725 ILCS 5/111-s2(a), “All prosecutions of felonies shall be by information of by indictment.”  It is the duty of the State’s Attorney in misdemeanor cases, and the State’s Attorney or Grand Jury in felony cases, to determine the charge which will be placed against a person. People v. Baron, 130 Ill.App.2d 588, 264 N.E.2d 423.

I wish to remind you that if an individual possess any information justifying the accusation of the person against whom they complain, they should impart it to the district attorney, who will seldom fail to act in a proper case. But if the district attorney should refuse to act, they can make their complaint to a committing magistrate, before whom the matter can be investigated, and if sufficient evidence be produced of the commission of a public offense by the accused, he can be held to bail to answer to the action of the grand jury. People v. Parker, 374 Ill. 524, 30 N.E.2d 11. Therefore, this letter should put both the State’s Attorney and the Court on notice and charged with reconciling how the allegations will be addressed, whether the State’s Attorney will act directly or otherwise appoint, or have appointed, a special prosecutor if he believes he is either unwilling or incapable of acting accordingly.

I made several attempts to contact the State’s Attorney where I was told I likewise had to meet with a police agency as the State’s Attorney “works for the police”. I am not sure as to the name or position of the woman with whom I spoke and voiced that fallacy, but I believe it is inconsistent with the beliefs held by the Courts of Illinois, which affirm the State’s Attorney has a duty to the People. State’s attorney was a constitutional officer, his office was part of executive branch of state government, and powers exercised by that office were executive powers. People v. Thompson, 1980, 43 Ill.Dec. 600, 88 Ill.App.3d 375, 410 N.E.2d 600; People v. Vaughn, 1977, 6 Ill.Dec. 932, 49 Ill.App.3d 37, 363 N.E.2d 879. It is presumed that state’s attorney will act under such heavy sense of public duty and obligation for enforcement of all laws that he will commit no wrongful act. Suburban Cook County Regional Office of Educ. v. Cook County Bd., App. 1 Dist.1996, 217 Ill.Dec. 671, 282 Ill.App.3d 560, 667 N.E.2d 1064, modified on denial of rehearing, rehearing denied , appeal denied 219 Ill.Dec. 577, 168 Ill.2d 627, 671 N.E.2d 744. The state’s attorney represented all the people including the defendant and his duty was not only to secure convictions but to see that justice was done and he was a public servant whose sole allegiance was to the People. In re Guardianship of Angell, App.1960, 26 Ill.App.2d 239, 167 N.E.2d 711. Any citizen has a right to call upon the state’s attorney to redress a public wrong. The fact that private rights may also be involved and that through the acts of the state’s attorney in the interests of the public, private wrongs, as well, may directly or indirectly be redressed, is immaterial. The People, ex rel. James M. Mahoney v. Decatur, Springfield & St. Louis Railway Company, et al.120 Ill.App. 229, 1905 WL 1987 (Ill.App. 3 Dist.)

I also believe, and will pursue if need-be, that I have a right to approach the Grand Jury with my accusations should the State’s Attorney refuse to perform his constitutional duty and receive them. Quoting Vogel v. Gruaz, “The avenue to the grand jury should always be free and unobstructed.” “Any person who desires to pursue the same course should not be deterred by the fear of having what he may say in the confidence of a consultation with a professional adviser, supposed to be the best qualified for the purpose, disclosed afterwards in a civil suit against his objection.” Oliver v. Pate, 43 Ind. 132. By the statute of Illinois in force at the time of this occurrence, it was made the duty of each state’s attorney to ‘commence and prosecute’ all criminal actions, suits, indictments, and prosecutions in any court of record in his county, in which the people of the state or county might be concerned. (Rev. St. 1874, c. 14, § 5, subd. 1.) Under this provision it was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime.” Vogel v. Gruaz, 10 U.S. 311, 4 S.Ct. 12

Taking into consideration the events which brings us all to this juncture, I feel it is reasonable to assume that there has been instances of malfeasance, misfeasance, incompetence, and deceit throughout the judicial, administrative, and executive offices in St. Clair County. I am not levying personal attacks against any one person’s character or motives.

Let this letter serve notice upon you gentlemen, who have so chose to encumber yourselves with the demands of public service and constitutional duty. That employees and officers serving the Leviathan have used their position to the detriment of an otherwise peaceable man and other non-violent, unwary People; spilling blood, trampling rights, and instilling fear by doing injustice in the name of protecting liberty. I will pursue all means of redress in having my complaints recognized until it can be shown that such redress is either unavailable or otherwise non-existent. Quoting People v. Scalisi, “We are reminded by the Declaration of Independence that all men have been endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these ends governments were instituted among men. Our youth are familiarized in school with these fervent words of Patrick Henry: ‘Give me liberty or give me death.’ To most citizens the right of liberty is as sacred as life itself.  To such an extent is this sentiment recognized that the Constitutions of the United States and Illinois have attempted to safeguard the liberty of the citizen.” People v. Scalisi, 324 Ill. 131, 154 N.E. 715

Before I was a Citizen, I was a man. Coming to realize the folly and harm in supporting a system which ultimately relies upon force instead of reason, I have abandoned such foolishness. I will not take violent justice upon myself, but reserve my right to defend my independence. In the issues brought by way of this letter, I have chosen to cast at your feet the facts which allege violations, not only of your Legislature and their laws, but of Nature and her laws as well, the former being within your jurisdiction to remedy and the latter being within my right to defend against. The imminent threat no longer confronts me, so my recourse is to let you gentlemen, and the rest of society, know of the threat facing all by way of the failed institution of government, and hope that for some, the actors serving in such a capacity may bring a sense of justice and peace to those who have yet failed to find greener pastures for living their lives in peace. I would hope you take appropriate action and restore some honor to your positions, which originate with an otherwise Sovereign People in hopes of their securing liberty through your trust.

Enclosed are complaints that state facts I believe support charges of Official Misconduct, in violation of the laws of Illinois and being properly binding upon those alleged in the complaints and subject to just punishment. I will not tender originals at this time, as it cannot be relied upon to have them treated in the manner required, but I will, upon request, present them to the State’s Attorney or Grand Jury, signed and verified.

Thank you for your attention,

Sincerely,

Mark McCoy

Encl.

cc:        Belleville News Democrat

Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Disorderly Conduct

Statutory provisions violated: 720 ILCS 5/26-1(a)(4)

Nature and elements of the offense: Joshua Alemond did knowingly transmit or caused to be transmitted in any manner to any peace officer, public officer or public employee a report to the effect that an offense will be committed, is being committed, or has been committed, knowing at the time of such transmission that there is no reasonable ground for believing that such an offense will be committed, is being committed, or has been committed by transmitting or causing to be transmitted a Fairview Heights Police Department Crime/Incident Report dated 2/17/09, Non-Traffic Notice of Complaint 1115419, Illinois Citation and Notice of Complaint(s) 1159155, and 1159154,  which transmitted to the Illinois State’s Attorney, a public officer, and the Circuit Clerk of St. Clair County, a public officer, that the offenses of Fleeing and Eluding and Resisting a Peace Officer, and Improper Lane Usage, had been committed while knowing that there was no reasonable ground for believing that such offense(s) will be committed, were being committed, or had been committed.

Date and County were offense occurred: This offense occurred on, about, or shortly after February 17, 2009 in St. Clair County, Illinois at the time Joshua Alemond did file or tender to said public officers said Notice of Complaints and report.

Name of the Accused: Joshua Alemond, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 170.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct

Statutory provisions violated: 720 ILCS 5/33‑3(a)

Nature and elements of the offense: Joshua Alemond did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did intentionally or recklessly fail to perform a mandatory duty required by 725 ILCS 5/103-1(a) which confers to the person arrested, in this case, Mark McCoy, the complainant, the right to know that a warrant had been issued and the nature of the offense specified in the warrant, in violation of 725 ILCS 5/103-8 which reads:

Mandatory duty of officers.

Any peace officer who intentionally prevents the exercise by an accused of any right conferred by this Article or who intentionally fails to perform any act required of him by this Article shall be guilty of official misconduct and may be punished in accordance with Section 33‑3 of the “Criminal Code of 1961” approved July 28, 1961, as heretofore and hereafter amended.

Joshua Alemond did affect an arrest of Mark McCoy with a warrant on February 17, 2009 and in violation of 725 ILCS 5/103-8(a), did knowingly or intentionally fail to inform Mark McCoy that a warrant had been issued and the nature of the offense specified in the warrant.

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Joshua Alemond, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 170.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct

Statutory provisions violated: 720 ILCS 5/33‑3(a)

Nature and elements of the offense: Joshua Alemond did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did intentionally or recklessly fail to perform a mandatory duty required by 725 ILCS 5/103-1(b) which confers to the person arrested, in this case, Mark McCoy, the complainant, the right to know the nature of the offense on which an arrest is made without a warrant, in violation of 725 ILCS 5/103-8 which reads:

Mandatory duty of officers.

Any peace officer who intentionally prevents the exercise by an accused of any right conferred by this Article or who intentionally fails to perform any act required of him by this Article shall be guilty of official misconduct and may be punished in accordance with Section 33‑3 of the “Criminal Code of 1961” approved July 28, 1961, as heretofore and hereafter amended.

Joshua Alemond did affect a warrantless arrest of Mark McCoy on February 17, 2009 and in violation of 725 ILCS 5/103-8(b), knowingly or intentionally fail to inform Mark McCoy of the nature of the offense on which the arrest was based.

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Joshua Alemond, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 170.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct

Statutory provisions violated: 720 ILCS 5/33‑3(a)

Nature and elements of the offense: Joshua Alemond did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did intentionally or recklessly fail to perform a mandatory duty required by law when he did fail to treat humanely and provide required medical treatment pursuant to 725 ILCS 5/103-2(c), in this case for, Mark McCoy, the complainant, in violation of 725 ILCS 5/103-8 which reads:

Mandatory duty of officers.

Any peace officer who intentionally prevents the exercise by an accused of any right conferred by this Article or who intentionally fails to perform any act required of him by this Article shall be guilty of official misconduct and may be punished in accordance with Section 33‑3 of the “Criminal Code of 1961” approved July 28, 1961, as heretofore and hereafter amended.

Joshua Alemond did intentionally fail to treat Mark McCoy in a humane fashion and provide required medical treatment following the arrest of Mark McCoy on February 17, 2009, in violation of 725 ILCS 5/103-2(c) by placing Mark McCoy in custody and leaving him hand-cuffed and unattended for a period of time in the back seat of the police cruiser, after having sustained injuries consisting of lacerations, bruising, and chipped teeth, resulting from blows to the head and back, as well as electric shock, during which time Mark McCoy was in need of medical attention and, when asked by Joshua Alemond if medical attention was requested at the scene, and upon receiving an affirmative response from  Mark McCoy, further denied treatment in lieu of transporting Mark McCoy back to the Fairview Heights Police station to be examined by EMS personnel after some further delay, all the while Mark McCoy exhibiting signs of bruising and bleeding and suffering; thereby being incarcerated in the jail located at the Fairview Heights Police Department where Mark McCoy was provided with no medical treatment for his injuries, notwithstanding two EMS workers who wiped his bloody face with gauze, and thereby left to wait for almost 3 hours with no further medical treatment and having to request a plastic bag upon which he spat blood from a lacerated lip for the duration of his confinement..

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Joshua Alemond, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 170.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct

Statutory provisions violated: 720 ILCS 5/33‑3(a)

Nature and elements of the offense: Joshua Alemond did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did intentionally or recklessly fail to perform a mandatory duty as required by law by failing to allow communication with a family member in a reasonable manner and within reasonable time upon arriving at the first place of custody as required by 725 ILCS 5/103-3(a), in this case for, Mark McCoy, the complainant, in violation of 725 ILCS 5/103-8 which reads:

Mandatory duty of officers.

Any peace officer who intentionally prevents the exercise by an accused of any right conferred by this Article or who intentionally fails to perform any act required of him by this Article shall be guilty of official misconduct and may be punished in accordance with Section 33‑3 of the “Criminal Code of 1961” approved July 28, 1961, as heretofore and hereafter amended.

Joshua Alemond did intentionally fail to allow Mark McCoy to communicate with his wife, a family member of his choice, in a reasonable manner and within a reasonable time; the wife, Nancy McCoy, of whom was present at the Fairview Heights Police Department, his first and only place of custody, and her presence there known to Joshua Alemond, during the entirety of Mark McCoy’s confinement and available to speak to Mark McCoy, but of which Mark McCoy was never afforded the opportunity to contact in any way whatsoever during the entirety of his confinement until his release upon Nancy McCoy posting bond, the duration of which consisted of almost 3 hours. Mark McCoy was also not permitted to make a phone call to contact a family member or attorney within a reasonable amount of time during his confinement, even though his request to speak with an attorney was invoked during questioning by Joshua Alemond and Aaron Nyman, a fellow police officer, at the scene of the arrest.

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Joshua Alemond, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 170.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct

Statutory provisions violated: 720 ILCS 5/33‑3(a)

Nature and elements of the offense: Joshua Alemond did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did intentionally or recklessly fail to perform a mandatory duty as required by law when he did fail to allow Mark McCoy, the complainant and person restrained of his liberty, where no imminent danger of escape existed, to consult with a licensed attorney at law of this state, whom Mark McCoy may desire to see or consult, alone and in private at the place of custody, being the Fairview Heights Police Department, as many times and for such period each time as is reasonable, as required by 725 ILCS 5/103-4, and in violation of 725 ILCS 5/103-8 which reads:

Mandatory duty of officers.

Any peace officer who intentionally prevents the exercise by an accused of any right conferred by this Article or who intentionally fails to perform any act required of him by this Article shall be guilty of official misconduct and may be punished in accordance with Section 33‑3 of the “Criminal Code of 1961” approved July 28, 1961, as heretofore and hereafter amended.

Joshua Alemond did restrain Mark McCoy of his liberty by arrest and confinement in a cell at the Fairview Heights Police Department and intentionally fail to allow Mark McCoy to consult with a licensed attorney of this state at the place of custody and in a reasonable time, alone and in private. There existed no imminent danger of escape. Mark McCoy had invoked his request to speak with an attorney during questioning by Joshua Alemond and Aaron Nyman, a fellow police officer, at the scene of the arrest.

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Joshua Alemond, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 170.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct – (Battery)

Statutory provisions violated: 720 ILCS 5/33‑3(b)

Nature and elements of the offense: Joshua Alemond did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did knowingly perform the following act which he knows is forbidden by law for him to perform by knowingly and intentionally, without legal justification, cause bodily harm to Mark McCoy, the complainant, by unlawfully making forceful contact with the back, neck and head of Mark McCoy, thereby forcibly driving Mark McCoy to the ground which caused abrasions, cuts, and bruising, and further, while Mark McCoy was lying injured and defenseless on the ground maintained unlawful contact in such fashion to as to aggravate Mark McCoy’s injuries and did cause further harm by way of bleeding and bruising, in violation of 720 ILCS 5/12‑3 (Battery); all while Mark McCoy presented himself in a neutral, submissive, non-threatening, and defenseless position.

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Joshua Alemond, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 170.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct – (Assault)

Statutory provisions violated: 720 ILCS 5/33‑3(b)

Nature and elements of the offense: Aaron Nyman did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did knowingly perform the following act which he knows is forbidden by law for him to perform by knowingly placing Mark McCoy, the complainant, in apprehension of receiving a battery by telling Mark McCoy that he would be “Tased” if he did not stop moving his leg after Mark McCoy had received an electric shock by Aaron Nyman, while in violation of 720 ILCS 5/12-1 (Assault).

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Aaron Nyman, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN 171.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct – (Disorderly Conduct)

Statutory provisions violated: 720 ILCS 5/33‑3(b)

Nature and elements of the offense: Joshua Alemond did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did knowingly perform the following act which he knows is forbidden by law for him to perform by knowingly transmitting or cause to be transmitted in any manner to any peace officer, public officer or public employee a report to the effect that an offense will be committed, is being committed, or has been committed, knowing at the time of such transmission that there is no reasonable ground for believing that such an offense will be committed, is being committed, or has been committed by way of transmitting or causing to be transmitted a  Fairview Heights Police Department Crime/Incident Report dated 2/17/09, Non-Traffic Notice of Complaint 1115419, Illinois Citation and Notice of Complaint(s) 1159155, and 1159154,  which transmitted to the Illinois State’s Attorney, a public officer, and the Circuit Clerk of St. Clair County, a public officer, that the offenses of Fleeing and Eluding and Resisting a Peace Officer, and Improper Lane Usage, had been committed while knowing that there was no reasonable ground for believing that such offense(s) will be committed, were being committed, or had been committed, in violation of 720 ILCS 5/26-1(a)(4) (Disorderly Conduct).

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Joshua Alemond, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 170.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct – (Criminal Trespass to Vehicles)

Statutory provisions violated: 720 ILCS 5/33‑3(b)

Nature and elements of the offense: Joshua Alemond did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did knowingly perform the following act which he knows is forbidden by law for him to perform by knowingly and without authority, enter a locked, passenger-side rear compartment which is part of Mark McCoy’s, the complainant, 1986 Chevrolet Pickup Truck by forcing the locking mechanism off the compartment and opening the compartment, without Mark McCoy’s permission, in violation of 720 ILCS 5/21-2 (Criminal Trespass to Vehicles), while Mark McCoy was confined in the police cruiser following his arrest.

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Joshua Alemond, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 170.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct – (Battery)

Statutory provisions violated: 720 ILCS 5/33‑3(b)

Nature and elements of the offense: Aaron Nyman did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did knowingly perform the following act which he knows is forbidden by law for him to perform when he did commit the offense of Battery, in violation of 720 ILCS 5/12-3, by knowingly and intentionally, and without legal justification, cause bodily harm to Mark McCoy, the complainant, by applying electric shock to the neck and head of Mark McCoy as well as striking Mark McCoy with his knee to the head and neck of Mark McCoy,  while Mark McCoy was lying injured on the ground in a neutral, submissive, non-threatening, and defenseless position, which resulted in pain, cuts, and bruising to mark McCoy.

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Aaron Nyman, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN 171.

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Notice of Complaint

NOW comes Mark McCoy, a free and independent American and an inhabitant of the state of Illinois, and for his Notice of Complaint, subscribed and sworn to in conformance with 725 ILCS 5/107-9, for acts by persons herein named in having committed violations of the laws and statutes of the state of Illinois, hereby states the following:

That on February 17, 2009, I, Mark McCoy, was victim/witness to and possesses first-hand knowledge of the following offenses/criminal acts committed by the following person(s):

Name of the offense: Official Misconduct – (Criminal Trespass to Vehicles)

Statutory provisions violated: 720 ILCS 5/33‑3(b)

Nature and elements of the offense: Aaron Nyman did commit the offense of Official Misconduct while acting in his official capacity as a peace officer or employee for the City of Fairview Heights, Illinois when he did knowingly perform the following act which he knows is forbidden by law for him to perform by knowingly and without authority, enter a locked, passenger-side rear compartment which is part of Mark McCoy’s, the complainant, 1986 Chevrolet Pickup Truck by forcing the locking mechanism off the compartment and opening the compartment, without Mark McCoy’s permission, in violation of 720 ILCS 5/21-2 (Criminal Trespass to Vehicles), while Mark McCoy was confined in the police cruiser following his arrest.

Date and County were offense occurred: This offense occurred on February 17, 2009 in the City of Fairview Heights, County of St. Clair, Illinois.

Name of the Accused: Aaron Nym,an, known to Mark McCoy as a police officer for the City of Fairview Heights, Illinois, with DSN Number 171.

Sworn complaints and affidavits for official misconduct