Category Archives: St. Clair County Corruption

Appeal to Public Access Counselor for Fairview Heights FOIA Denial – McCoy v. Fairview Heights

This is an appeal I filed with the Illinois Attorney General over a series of Freedom of Information acts to the Fairview Heights, Illinois Police Department which were denied, in large-part. I previously had not submitted a FOIA request to Fairview Heights Police until after I was beaten and Tased by two of their patrolmen during a traffic stop on February 17, 2009. I subsequently filed a civil suit in February, 2010 against the Fairview Heights Police Department and patrolmen Joshua Alemond and Aaron Nyman in St. Clair County, Illinois. There were documents provided by way of discovery which are referenced herein.

Discovery in Illinois civil cases is limited to 30 items without leave of the court. St. Clair County is one of the more corrupt counties in Illinois and its judges known to be largely anti-pro se. In an effort to circumvent discovery limitations and gather the information for my own edification.

My first submission for documents was on March 3, 2009. This was a couple of weeks after my beating and arrest. That request was denied for a number of reasons which are detailed below. One of the claimed exemptions under the Illinois Freedom of Information Act was 5 ILCS 140/7(d)(i) and 5 ILCS 140/7(d)(vii) which relate to records pertaining to an a pending or contemplated law enforcement proceeding and an ongoing criminal investigation. As I had been recently arrested, all charges of which were dropped, I did not press the issue and instead sought my documents through civil discovery per my case. Having not received the information through discovery, another long story, I again turned to the Freedom of Information Act.

My second submission was in April of 2009 and denied on largely the same grounds. I waited again until May of 2012 to re-submit a fairly comprehensive request which was again largely denied based on the “properly claimed exemptions” from the previous request. I appealed to the Illinois Attorney General, as provided by the Act at 5 ILCS 140/9.5. This request was an amalgamation of all my previous requests, omitting those already obtained or otherwise irrelevant, and again was subsequently denied on similar grounds as prior requests, basing the denial on the corresponding original request as having been “properly denied”, and then referencing my repeated request as “unduly burdensome” pursuant to 5 ILCS 140/3(g).

The main issues here are whether or not a record “properly denied” under 5 ILCS 140/3(g) based on an “actually or reasonably contemplated law enforcement proceeding” under 5 ILCS 140/7(d)(i) is precluded from ever being requested again if the “law enforcement proceeding” is no-longer in effect. If I submit a request for documents and there is an ongoing criminal investigation for a suspected offense and that investigation concludes, then is a subsequent request barred for the prior request having been properly denied?

In the responses from the Fairview Heights Police Department, there are references to 5 ILCS 140/7(c) that include subsections (vi) or (vii). There are no subsections under 5 ILCS 140/7(c) and where you see a reference to any subsection under 140/7(c) they mean to say 140/7(d). I did not press this “technicality” in my appeal because the reference did quote the text from the Act which is more specific than the statutory reference.

The Illinois Attorney General has issued a FOIA Guide for Law Enforcement which can be viewed here and has addressed the exemptions relating to “pending law enforcement proceedings“, “danger to life or safety“, and “ongoing criminal investigation“.

Mark McCoy

 October 7, 2012

Sarah Pratt Acting Public Access Counselor Office of the Attorney General 500 S. 2nd ST. Springfield, Illinois 62706

Re: McCoy v. Fairview Heights Police – Appeal of FOIA Denial by Fairview Heights Police Dept.

I am writing to appeal the denial of the certain requests for records pursuant to a FOIA submitted to Fairview Heights Police Department which I submitted on Sept. 17, 2012 and ultimately denied on Oct. 1, 2012. That request is enclosed as Exhibit A and the corresponding response Exhibit B.

Fairview Heights’ denial is based on several factors, some of which are due to similar requests having been submitted on or around March 3, 2009. At that time, their denials were based on 5 exemptions (SEE TABLE OF 4/22/09 EXEMPTIONS). Since that time, there has been no action taken pursuant to any ongoing criminal investigation, and in their response for my recent re-submission they make no mention of any such exemption, but rather cite the previously denied request.

I make this appeal following a conversation with Mary Jo of the Public Access Counselor’s Office. I had filed a FOIA request on May 17, 2012, with the Fairview Heights Police Department which was denied on May 31, 2012. I had emailed an appeal to the Public Access Counselor which did not arrive, possibly due to the size of the email attachment.  During the course of writing the appeal and not knowing if the email had arrived, the time allowed for filing an appeal expired. Following Mary Jo’s direction, I filed another FOIA request in order to procure a denial so another appeal could be made in a timely manner. Therefore, the Sept. 17, 2012 request has a majority of denials predicated upon the previous request made on May 17, 2012 being denied. The denials in the May 31, 2012 response were predicated upon responses from a request made in March, 2009. The response to that FOIA contains the exemptions upon which most of the subsequent denials are based. I have included copies of all of the FOIA requests and corresponding responses. There are denials based upon a prior request being denied and the subsequent similar request being burdensome. The heart of my argument is that some of the original denials, based upon a particular exemption in 2009 were no longer applicable and therefore subject to consideration in another FOIA request.

It is my contention that if a request was denied due to an ongoing criminal investigation pursuant to 5 ILCS 140/7(c)(i) and 5 ILCS 140/7(c)(vii), as was the case in 2009, and that investigation is no longer in progress or has not borne any fruit subsequent to that  investigation which would be further exempt, then a resubmission is proper and the records must be provided. Note: There actually is no 5 ILCS 140/7(c)(vii), as referenced in Fairview Heights denial of March 2009, but rather 5 ILCS 140/7(d)(vii).

Moving under the assumption the “ongoing criminal investigation” exemption was no longer applicable I submitted another request on or around May 17, 2012. Many of those requests were identical or similar to the original request from 2009. Most of the May 17, 2012 requests were then denied, not upon the original exemption under 5 ILCS 140/7(c)(i) and 5 ILCS 140/7(c)(viii), but this time by invoking 5 ILCS 140/3(g) as “repeated requests from the same person for the same records that are unchanged or identical” (SEE TABLE OF 5/31/12 EXEMPTIONS).

Concordantly, I filed a civil suit against Fairview Heights Police where requests for certain records were made pursuant to discovery. Some of the discovery requests were similar in nature to the FOIA requests. Most of the denials from 5/31/12 (Exhibit D) were based on documents previously provided through discovery in the civil suit. These FOIA responses bear notations such as “FH” or “RP” (SEE REGARDING EXHIBITS). I fail to see any correlation between a FOIA request and a similar request made in an unrelated matter even though the party making the request in each instance is the same and the type of record requested is similar. If an individual is willing to avail themselves to the FOIA process for procuring records and submit to paying for those records then the FOIA request should be viewed in its own light as separate and distinct from the other unrelated request.

Fairview Heights also makes the claim that the request is “unduly Burdensome”, but has not extended any opportunity to confer in order to reduce the request to manageable portions before invoking that exemption pursuant to 5 ILCS 140/3(g). My resubmitting the same request from 2009 was because I believed any claimed investigation had ceased, thereby making the records available. Despite similar or exact wording as a previous request, I fail to find any provision in the Act which prohibits a request based on similar or identical wording of a previous request, or exempts records in perpetuity which were previously exempt for a specific reason, of which said reason no longer applies.

I am enclosing the requests I made, as well as the corresponding denials, from 2009, and 2012. The most recent request from Sept. 18, 2012 included exhibits for clarity so the public body could accurately correlate the response to the request. The requests made, in reverse-chronological order are as follows:

Request made 9/17/12 and denied per response dated 10/01/12. Exhibit A. Contains Exhibits 1 through 6 with notations.

Response dated 10/01/12 is attached as Exhibit B

Request made 5/17/12 and denied per response dated 5/31/12. Exhibit C

Response dated 5/31/12 is attached as Exhibit D

Request made 3/3/09 and denied per response dated 4/22/09. Exhibit E

Response dated 4/22/09 is attached as Exhibit F

Requests to Produce pursuant to discovery for Case 10-L-75 is attached as Exhibit G

I do not have the original request from 2009 available, but it was returned to me as part of the denial with mark-ups made by the FOIA Officer where he numbered my requests in pencil. That request bears the year “2009” at the top and is labeled as “ATTACHMENT”. I had submitted a form provided by the Fairview Heights Police Department for FOI requests and attached my list to that, which is why it is listed as an attachment. I was not provided with a copy of the form I tendered to them pursuant to that request. Also, their denial dated April 22, 2009 makes reference to a request dated April 1, 2009, but which is essentially the request made per the attachment. This request is not at issue, but merely provided for reference purposes in establishing the reasons for denial in 2009, and subsequently resubmitted in May and Sept. of 2012. I have penciled in numbers on denial Exhibit C to correspond to the ATTACHMENT of the request.

For the request made 9/17/12 I provided the request, the reply, and “APPEAL NOTES” in italics to clarify my reason for appeal and why the request should be fulfilled. In those notes are links to the preceding requests and denials which link to the request from the previous year. This is to be used as a guide when referring to the provided exhibits.

RELIEF

I would ask that any denial based on documents provided by way of discovery in the civil action be disregarded as non-responsive since that action should not have any bearing on a FOIA request and that the most recent request be fulfilled. I would also ask that any request which relied upon the 2009 response of denied pursuant to 140/7(c)(i) and 5 ILCS 140/7(c)(vii), be fulfilled since there was no invocation of that exemption provision in the 10/1/12 response except to say that the request was exempt pursuant to 5 ILCS 140/3(g) as the subsequent requests are being construed as repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act, and thereby deemed unduly burdensome. All other denials from the 9/17/12 request should be reviewed in the light under which they were denied.

REGARDING EXHIBITS

I am enclosing copies of the actual requests and denials and labeling such as Exhibits with letters, (Exhibit A, Exhibit B.). The request I sent on 9/17/12 had exhibits for the Fairview Heights Police to accurately define the request with the corresponding response and those Exhibits are labeled numerically with notations, (Exhibit 1, Exhibit 2, Notation1). They are actually exhibits within exhibits, the main exhibit bearing a letter and enclosed exhibit bearing a number and notation.

In some of the replies from the public body, there are references made to things similar to, “response was provided as first RP #17 “” Response: FH70.” This is in reference to a civil suit filed by me against the Fairview Heights Police Department (Case 10-L-75) in St. Clair County. (SEE “TABLE OF EXEMPTIONS BASED ON PRIOR DISCLOSURE THROUGH CIVIL DISCOVERY”) and corresponding Exhibit G. The notation, “RP” apparently stand for “Request to Produce” pursuant to discovery requests, and the # relates to the corresponding request made in the Request to Produce. The public body did provide a CD with information labeled “FH 70″, which contains some of the material requested via FOIA, but that was not in response to a FOIA request and should be considered a separate issue. Also provided were hard copy documents pursuant to the discovery Request to Produce. I fail to see the relevance between a response pursuant to a civil matter and a request made pursuant Freedom of Information. Nevertheless, there is request made for a dashboard video from a Sgt. Krummrich’s car that was not made in discovery and covered in the FOIA. I am attaching the Request to Produce for all Defendants as Exhibit G. (SEE ALSO “TABLE OF EXEMPTIONS BASED ON PRIOR DISCLOSURE THROUGH CIVIL DISCOVERY”)

FOIA REQUEST 9/17/12 SEE ENCLOSED EXHIBITS A AND B

Item #1 Dashboard or other similar video from vehicles operated by Sgt. James Krummrich, DSN 141 from Feb. 17, 2009 when responding to circumstances involving the above referenced event, and which is referenced in a Video Chain of Custody Report bearing the following identifiers: System ID: 33381, Ingest Date: 2/17/2009 09:11, DVR Name: F15, Owner: *1 krummjv@20:02:03, Video Start Date: 02/17/2009 02:25, Serial Number: 0000015877, DVR Officer Name: krummjv, Video End Date: 02/17/2009 2:37, Category: VEH STOP or PED CHECK. (See attached Exhibit 1)

Response: Item # 1: Same request as the 2009 FOIA dated 03/03/2009 and 2012 FOIA dated 05/17/2012 submitted as question #1 a response was provided as first RP #17 “” Response: FH70. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I contend there is another video from Sgt. Krummrich’s car based on a Video Chain of Custody Report. See Exhibit 1 of Exhibit A. The 2009 Response was based on 5 ILCS 140/7(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(vii), in that the request may obstruct an ongoing criminal investigation. There were documents denied in the FOIA but provided through discovery. The attached Exhibit confirms there is some record regarding video from Sgt. Krummrich’s car but the 10/1/12 response is contradictory in that it relies upon the prior denial in 2009 under 5 ILCS 140/7(c)(vii) and references the discovery production. Notwithstanding the discovery production, the 10/1/12 denial is unresponsive to the request as I believe 5 ILCS 140/7(c)(vii) is no longer applicable as that exemption has not been invoked per any subsequent request; and given the enclosed Exhibit, a response to that specific request should be provided.

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Item #2 A copy of any refusal to be transported to Memorial Hospital signed by the FOIA requester, Mark McCoy, as referenced on Page 3, Paragraph I of a Supervisor Report filed by Sgt. Krummrich on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 2, Notation 1)

Response: Item #2: The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records. Same as request of 05/17/2012 item #6.

APPEAL NOTES: I content there is a document in the possession of the Fairview Heights Police that is not held by MedStar Ambulance. See Notation 1 of Exhibit 2 in Exhibit A; Notation 1 of Exhibit 3 in Exhibit A; and Notation 1 of Exhibit 4 of Exhibit A. I take exception to this denial and request a review.

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Item #3 A copy of any Electronic Device Restraint Use Report completed by Patrolman Aaron Nyman, DSN 171, which was forwarded to Lieutenant Locke, as referenced on Page 3, Paragraph 4 of a Supervisor Report filed by Sgt. Krummrich on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 2, Notation 3)

Response: Item #3: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #12 and 2012 FOIA dated 05/17/2012 item #19. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #4 Any audio or video recording of the area known as “Temporary Cell One”, as referenced on Page 3, Paragraph 2 of a Supervisor Report filed by Sgt. Krummrich on 2/17/2009 for Case Number 09-01740, for the duration of the confinement of FOIA requester, Mark McCoy on 2/17/09 between the hours of 2:30am and 6am, approx. (See attached Exhibit 2, Notation 2)

Response: Item #4: All audio or video was previously produced as FH70. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: The denial is based upon documents provided by way of discovery in an unrelated matter and separate from this FOIA. I expect an articulated response to this request and ask for review.

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Item #5 Any photographs taken at the scene of the stop and arrest on Donald Bailey Drive pursuant to the above referenced event.

Response: Item #5: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #3 and 2012 FOIA dated 05/17/2012 item #4. Previously produced as FH62-69. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(vii), in that the request may obstruct an ongoing criminal investigation. Subsequently, there were documents tendered by way of discovery in an unrelated matter and separate from this FOIA. I take exception to this denial and request a review.

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Item #6 Any records pertaining to the request made by Sgt. Krummrich to dispatch for MedStar EMS to respond to the Fairview Heights Police Department to evaluate and treat injuries to the FOIA requester, Mark R. McCoy, as well as any reports expressing an opinion, diagnosis, or report of injuries observed or treated, as referenced on Page 2, Paragraph 5, and Page 3 Paragraph l of a Supervisor Report filed by Sgt. Krummrich on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 3, Notation 1 and Exhibit 4, Notation 1)

Response: Item #6: The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records. Same as FOIA request dated 05/17/2012 item #6.

APPEAL NOTES: This answer is contradicted by way of Notation 1 of Exhibit 2 in Exhibit A; Notation 1 of Exhibit 3 in Exhibit A; and Notation 1 of Exhibit 4 of Exhibit A. Sgt. Krummrich states in his own report, “McCoy signed a refusal to be transported to Memorial Hospital at that time.” and other statements. This indicates there in-fact was a record created with Krummrich’s direct knowledge. I take exception to this denial and request a review.

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Item #7 Reports, records, memos, letters, communications, created by Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Response: Item #7: Same request as the 2009 FOIA dated 03/03/2009 and 2012 FOIA dated 05/17/2012 submitted as question #6 previously produced as FH1-12. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #8 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Response: Item #8: This request is denied based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. Same request as the 2012 FOIA dated 05/17/2012 submitted as question #9 Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #9 Transcript or other record, audio or written, of communications between Fairview Heights Police Department Dispatcher and Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Response: Item #9: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #9 and 2012 FOIA dated 05/17/2012 item #11. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. As there has been no further action taken pursuant to any investigation and that exception was not invoked in this request, I take exception to this denial and request a review.

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Item #10 Any report, log, or other information on the processing the patrol car for cleaning or otherwise, subsequent to the transporting of Mark McCoy from the scene on Donald Bailey Drive to the Fairview Heights Police Department, as well as any photographs, analysis, or reports pertaining to such.

Response: Item #10: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #10 and 2012 FOIA dated 05/17/2012 item #12. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. As there has been no further action taken pursuant to any investigation and that exception was not invoked in this request, I take exception to this denial and request a review.

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Item #11 Any records, memos, email, minutes, documents, or other written, verbal, or electronic communication between the Fairview Heights Police Department and any other municipal, state, or federal agencies or departments which pertain to Mark R. McCoy, the requester of these documents, including but not limited to interdepartmental or multi- jurisdictional contacts, associations or affiliations.

Response: Item #11: Document previously produced as document FH30-50. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: The denial is based upon documents provided by way of discovery in an unrelated matter and separate from this FOIA. I expect an articulated response to this request and ask for review.

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Item #12 Fairview Heights Police Department policy or guidelines/procedures on Taser use.

Response: Item #12: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #11 and 2012 FOIA dated 05/17/2012 item # 18. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vii). Uses of force policies, including use of Taser policies, contain information on when and how to deploy various weapons in control of subjects. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. I take exception to this denial and request a review.

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Item #13 Reports of injury or death resulting from laser use by Fairview Heights Police Department.

Response: Item #13: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #14 and 2012 FOIA dated 05/17/2012 item #21. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #14 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Response: Item #14: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #15 and 2012 FOIA dated 05/172012 item #22. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #15 Reports relating to the deployment or use of weapons pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Response: Item #15: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #16 and 2012 FOIA dated 05/17/2012 item #23. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #16 Reports filed against Fairview Heights Police Department for abuse, or excessive use of force.

Response: Item #16: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #18 and 2012 FOIA dated 05/17/2012 item #25. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #17 Reports filed against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Response: Item #17: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #19 and 2012 FOIA dated item #26. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #18 Disciplinary action taken against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Response: Item #18: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #20 and 2012 FOIA dated 05/17/2012 item # 27. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #19 Fairview Heights Police Department policy or guidelines on the use of “pain compliance” Item as referenced on Page 3, Paragraph 1 of a Report filed by Patrolman Nyman, DSN 171, on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 5, Notation 1)

Response: Item #19: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #11 and 2012 FOIA dated 05/17/2012 item # 18. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vii). Use of force policies, including use of Taser policies, contain information on when and how to deploy various weapons in control of subjects. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. I take exception to this denial and request a review.

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Item #20 Fairview Heights Police Department policy, guidelines, procedures which address the checking of vehicle license plates.

Response: Item #20: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #21 and 2012 FOIA dated 05/17/2012. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(v). To disclose any policies or procedures on when and how vehicle license plates are checked would disclose unique or specialized investigative techniques other than those generally used and known. I take exception to this denial and request a review.

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Response: Item #21 Fairview Heights Police Department policy, guidelines, procedures which address effecting felony traffic stops.

Response: Item #21: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #23 and 2012 FOIA dated 05/17/2012 item #30. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(v). To disclose any policies or procedures on when and how vehicle license plates are checked would disclose unique or specialized investigative techniques other than those generally used and known. I take exception to this denial and request a review.

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Item #22 Fairview Heights Police Department policy, guidelines, procedures which address use of force.

Response: Item #22: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #11 and 2012 FOIA dated 05/17/2012 item # 31. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vii). Use of force policies, including use of Taser policies, contain information on when and how to deploy various weapons in control of subjects. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. I take exception to this denial and request a review.

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Item #23 Fairview Heights Police Department policy, guidelines, procedures which address control and cuffing of suspects upon arrest.

Response: Item #23: This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including handcuffing and controlling of suspects contain information on methods to control subjects, as well as tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. Same request as 2012 FOIA dated 05/17/2012 item # 32. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #24 Fairview Heights Police Department policy, guidelines, procedures which address motorists who fail to stop when attempted to be pulled over.

Response: Item #24: This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including conducting traffic and felony stops contain information on methods to control subjects, as well as tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law. Same request as 2012 FOIA dated 05/17/2012 item # 33. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #26 Any information, email, records, memos, letters, communications, created, received, or Item possessed by Fairview Heights Police Department, its employees, officers, or agents relating to the FOIA requester, Mark R. McCoy; DOB 8/11/59.

Response: Item #26: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #26 and 2012 FOIA dated 05/17/2012 item #35. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #27 Any information, email, records, memos, letters, communications created, received, or Item possessed by Fairview Heights Police Department, its employees, officers, or agents concerning the website markmccoy.com

Response: Item #27: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #27 and 2012 FOIA dated 05/17/2012 item #36. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on the Fairview Heights Police Department neither confirms nor denies the existence of any such records. However, should they exist, these requests are DENIED, based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. I contend there are records and that this denial is unresponsive in light of Notation 2 of Exhibit 5 in Exhibit 1, to wit, “Once back at the FHPD, I utilized a work computer to look-up the website of www.markmccoy.com“, as well as Notation 1 of Exhibit 6 in Exhibit A, to wit, “There were several links to anti-law enforcement websites” I take exception to this denial and request a review.

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Item #30 Any records, logs, reports, or other information relating to a “Taser Use of Force” as referenced on Page 4, Paragraph 5 of a Report filed by Patrolman Nyman, DSN 171, on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 6, Notation 4)

Response: Item #30: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #12 and 2012 FOIA dated 05/17/2012 item #19. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #31 Any information, email, records, memos, letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning a Public Declaration of Sovereignty, Expatriation, and Dissolution of all Previous National and Political Allegiance, signed by Mark McCoy, and which was filed with the St. Clair County Recorder of Deeds on Jan. 4, 2008, and which bears the Letter Number A02084317.

Response: Item #31: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #28 and 2012 FOIA dated 05/17/2012 item #31. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on the Fairview Heights Police Department neither confirms nor denies the existence of any such records. However, should they exist, these requests are DENIED, based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. I take exception to this denial and request a review.

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Your request is granted in part and denied in part as follows:

We have enclosed copies of the documents that you requested for item # 25, 28, & 29.

FOIA REQUEST 5/17/12 SEE ENCLOSED EXHIBITS C AND D

Item #1 Dashboard or other similar video from vehicles operated by Joshua Alemond, DSN 170; Aaron Nyman, DSN 171. and Sgt. James Krummrich. DSN 141 from Feb. 17. 2009 when responding to circumstances involving the above referenced event.

Item # 1: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #1 a response was provided as first RP #17 “” Response: FH70. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #2 Any other audio or video recording originating from Joshua Alemond. DSN 170; Aaron Nyman, DSN 171. and Sgt. James Krummrich, DSN 141 from Feb. 17. 2009 when responding to circumstances involving the above referenced event.

Item #2: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #2 a response was provided as first RP #17 “” Response: FH70. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #3 Any other audio or video recording created between the time Mark R. McCoy was delivered to the Fairview Heights Police Department on Feb. 17, 2009 and his departure.

Item #3: All audio or video was previously produced as FH70. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #4 Any photographs taken at the scene of the stop and arrest on Donald Bailey Drive pursuant to the above referenced event.

Item #4: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #3 previously produced as FH62-69. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

Item #5 Any photographs taken of Mark R. McCoy including those taken during booking.

Item #5: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #4 also previously produced as FH62-69. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #6 Records pertaining to the dispatch and treatment of Mark R. McCoy provided by MedStar EMS, as well as any opinion, diagnosis, or report of injuries observed or treated.

Item #6: The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

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Item #7 Names of MedStar EMS personnel who treated Mark R. McCoy at the Fairview Heights Police Department on Feb. 17, 2009.

Item #7: The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

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Item #8 Reports, records, memos, letters, communications, created by Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Item #8: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #6 previously produced as FH1-12. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #9 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #9: This request is denied based on 5 ILCS 1 40/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

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Item #10 Records showing access and timestamp of Fairview Heights Police Department systems, or request for, vehicle registration, warrant checks.

Item #10: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #8. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #11 Transcript or other record, audio or written, of communications between Fairview Heights Police Department Dispatcher and Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Item #11: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #9 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #12 Any report, log, or other information on the processing the patrol car for cleaning or otherwise, subsequent to the transporting of Mark McCoy from the scene on Donald Bailey Drive to the Fairview Heights Police Department, as well as any photographs, analysis, or reports pertaining to such.

Item #12: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #10 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #13 Any records relating to access to, including chain of custody in handling, dashboard video from the patrol cars of Joshua Alemond, DSN 170, Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141,  including but not limited to such systems commonly known as “dashboard cameras” or other like-systems.

Item #13-Granted see below.

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Item #14 Any records, memos, email, minutes, documents, or other written, verbal, or electronic communication between the Fairview Heights Police Department and any other municipal, state, or federal agencies or departments which pertain to Mark R. McCoy, the requester of these documents, including but not limited to interdepartmental or multi- jurisdictional contacts, associations or affiliations.

Item #14: Document previously produced as document FH30-50. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #15 Copies of any warrants for the arrest of Mark R. McCoy, in the possession of the Fairview Heights Police Department prior or up to Feb. 17, 2009 or acted upon in arresting Mark R. McCoy on Feb. 17, 2009, including the supporting oath or affirmation, the name of the Judge signing said warrant, and any statements of probable cause in issuing said warrant.

Item #15: Partial Grant-The St Clair County Sheriff Department issued the warrant in which that police agency would have the warrant. See electronic warrant confirmation in report 09-01740, which is being provided.

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Item #16 Any record relating to the appearance, requested appearance, or denial to appear at a hearing on November 30, 2009 before the Honorable Randall Kelley for the above referenced citations, by Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171, to the St. Clair County Assistant State’s Attorney, Mr. Chet Kelly or his office.

Item #16: Granted

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Item #17 Any records, reports, notes, memos, recordings, photographs or other information relating to Chief Nicholas J. Galius meeting with Mark R. McCoy subsequent to Feb. 17, 2009 involving the above referenced event, and any complaint written or otherwise filed or submitted to Chief Nicholas J. Galius by Mark R. McCoy.

Item #17: The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

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Item #18 Fairview Heights Police Department policy on Taser use.

Item #18: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #11 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #19 Reports on Taser discharge, use, or deployment by Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #19: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #12 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged  or identical to records previously provided or properly denied under this Act shall be deemed unduly  burdensome under this provision.

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Item #20 Certifications for Taser training relating to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #20: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #13 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #21 Reports of injury or death resulting from Taser use by Fairview Heights Police Department.

Item #21: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #14 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #22 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #22: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #15 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #23 Reports relating to the deployment or use of weapons pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #23: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #16 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #24 Fairview Heights Police Department policy on care of persons arrested, taken into custody, or have forced used against them.

Item #24: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #17 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #25 Reports filed against Fairview Heights Police Department for abuse, or excessive use of force.

Item #25: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #18 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #26 Reports filed against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Item #26: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #19 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #27 Disciplinary action taken against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Item #27: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #20 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #28 Fairview Heights Police Department policy on checking vehicle license plates.

Item #28: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #21 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #29 Fairview Heights Police Department policy on checking vehicle license plates.

Item #29: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #22 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #30 Fairview Heights Police Department policy on effecting felony traffic stops.

Item #30: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #23 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #31 Fairview Heights Police Department policy on any use of force.

Item #31: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #24 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #32 Fairview Heights Police Department policy and/or procedures on control and cuffing of suspects upon arrest.

Item #32: This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including handcuffing and controlling of suspects contain information on methods to control subjects, as well as  tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

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Item #33 Fairview Heights Police Department policy on motorists who fail to stop when attempted to be pulled over, but who otherwise are not fleeing or eluding.

Item #33: This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including conducting traffic and felony stops contain information on methods to control subjects, as well as tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

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Item #34 Sworn oaths of office, and name of person administering said oath, for Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Item #34: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #25. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #35 Any information, email, records, memos, letters, communications, created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents relating to Mark R. McCoy.

Item #35: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #26. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #36 Any information, email, records, memos, letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning the website markmccoy.com

Item #36: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #27. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #37 Any information, email, records, memos, letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning a Public Declaration of Sovereignty, Expatriation, and Dissolution of all Previous National and Political Allegiance, signed by Mark McCoy, and which was filed with the St. Clair County Recorder of Deeds on Jan. 4, 2008, and which bears the Letter Number A020843 17.

Item #37: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #28. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

FOIA REQUEST 3/3/09 SEE ENCLOSED EXHIBITS E AND F

REQUEST:

Item #1 Dashboard or other similar video from vehicles operated by Joshua Alemond, DSN 170 Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Item #2 Any other audio or video recording.

Item #3 Any photographs taken at the scene of the stop and arrest on Donald Bailey Drive.

Item #4 Any photographs taken of Mark R. McCoy including those taken during booking.

Item #5 Information pertaining to the dispatch and treatment of Mark R. McCoy provided by MedStar EMS, as well as any opinion, diagnosis, or report of injuries observed or treated

Item #6 Reports, records, memos, letters communications, created by Joshua Alemond, DSN 170, Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141

Item #7 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171

Item #8 Records showing access and timestamp of Fairview Heights Police Department system or request for, vehicle registration, warrant checks

Item #9 Transcript or other record, audio or written, of communications between Fairview Heights Police Department Dispatcher and Joshua Alemond, DSN 170, Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141

Item #10 Any report, log, Or other information On the cleaning of the back seat of Joshua Alemond”™s patrol car, which was used to transport Mark McCoy, as well as any photographs, analysis, or reports pertaining to such.

DENIAL:

These requests are DENIED, based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation.

REQUEST:

Item #11 Fairview Heights Police Department policy on Taser use.

DENIAL:

This request is DENIED, based on 5 ILCS 140/7(c)(vii). Use of force policies, including use of Taser policies, contain information on when and how to deploy various weapons in control of subjects. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

REQUEST:

Item #12 Reports on Taser discharge, use, or deployment by Joshua Almond, DSN 170 and Aaron Nyman, DSN 171

DENIAL:

This request is DENIED, based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

REQUEST:

Item #13 Certifications for Taser training relating to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171

DENIAL:

The Police Department does not issue certifications for this sort of training.

REQUEST:

Item #14 Reports of injury Or death resulting from Taser use by Fairview Heights Police Department

Item #15 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171

Item #16 Reports relating to the deployment or use of weapons pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171

DENIAL:

These requests are DENIED, based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

REQUEST:

Item #17 Fairview Heights Police Department policy on care of persons arrested, taken into custody, or have forced used against them.

RESPONSE:

The Fairview Heights Police Department does not have a specific policy on this topic. There are, however, sections of department policies that deal with care of persons in custody. In order to attempt to satisfy your request, I can provide you with redacted policies that cover the information areas you request.

This information is available and will be provided upon receipt of $2.40 for the cost of reproduction.

REQUEST:

Item #18 Reports filed against Fairview Heights Police Department for abuse, or excessive use of force.

Item #19 Reports filed against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Item #20 Disciplinary action taken against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171

These requests are DENIED, based on 5 ILCS 14017(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

REQUEST:

Item #21 Fairview Heights Police Department policy on checking vehicle license plates.

DENIAL:

This request is DENIED, based on 5 ILCS 140/7(c)(v). To disclose any policies or procedures on when and how vehicle license plates are checked would disclose unique or specialized investigative techniques other than those generally used and known.

REQUEST:

Item #22 Fairview Heights Police Department policy on effecting traffic stops.

Item #23 Fairview Heights Police Department policy on effecting felony stops.

Item #24 Fairview Heights Police Department policy on any use of force.

DENIAL:

This request is DENIED, based on 5 ILCS 140/7(c)(vii). Use of force policies, including use of Taser policies, and policies on conducting traffic and felony stops contain information on methods to control subjects, as well as tactics and weapons that are employed by officers. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

REQUEST:

Item #25 Sworn oaths of office, and name of person administering said oath, for Joshua Alemond, DSN 110; Aaron Nyman, DSN 171, and Sgt., James, Krummrich, DSN 141.

RESPONSE:

This information is available and will be provided upon receipt of $1.20 for the cost of reproduction.

REQUEST:

Item #26 Any bonds or other surety filed With the City of Fairview Heights or the State of Illinois as required by law for OT by Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich DSN 141

RESPONSE:

No such documents exist.

REQUEST:

Item #27 Any information, email, records, memos, letters, communications, treated, received, possessed by Fairview Heights Police Department, its employees, officers or agents relating to Mark R. McCoy prior to 2/17/09.

Item #28 Any information, email, records, memos, letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning the website markmccoy.com

Item #29 Any information, email, records, memos. letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning a Public Declaration of Sovereignty, Expatriation, and Dissolution of all Previous National and Political Allegiance, signed by Mark McCoy, and which was filed with the St Clair County Recorder of Deeds on Jan. 4, 2008, and which bears the Letter Number A02084317.

DENIAL:

The Fairview Heights Police Department neither confirms nor denies the existence of any such records. However, should they exist, these requests are DENIED, based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation.

TABLE OF 4/22/09 EXEMPTIONS

These requests are DENIED, based on 5 ILCS 140/7(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. This exemption was not invoked in any subsequent request for similar or identical records, but which were denied because of a claim that this original exemption, which bore no fruit with respect to any criminal proceeding, was considered by the public to be valid.

This request is DENIED, based on 5 ILCS 140/7(c)(vii). “policies including ” policies, contain information on “.. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. ” I take general exception to this exemption.

This request is DENIED, based on 5 ILCS 1410/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. – I take general exception to this exemption.

This request is DENIED, based on 5 ILCS 140/7(c)(v). To disclose any policies or procedures on”..would disclose unique or specialized investigative techniques other than those generally used and known. – I take general exception to this exemption.

The Fairview Heights Police Department neither confirms or denies the existence of any such records. However, should they exist, these requests are DENIED, based on 5 ILCS 140/7 (c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. ““ This exemption is refuted by my request of 9/17/2012 with attached Exhibits/Notations, wherein reference is made to such records.

TABLE OF 5/31/12 EXEMPTIONS

Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

This request is denied based on 5 ILCS 1 40/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including  handcuffing and controlling of suspects contain information on methods to control subjects, as well as  tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be  used to counter or defeat a law enforcement officer during an encounter.

Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

TABLE OF 10/1/12 EXEMPTIONS

The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

This request is denied based on 5 ILCS 1 40/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including  handcuffing and controlling of suspects contain information on methods to control subjects, as well as  tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

TABLE OF EXEMPTIONS BASED ON PRIOR DISCLOSURE THROUGH CIVIL DISCOVERY   SEE EXHIBIT G

DEFENDANT JOSHUA ALEMOND’S RESPONSE TO PLAINTIFF’S FIRST REQUEST TO PRODUCE

1.         All documents which record, refer to, discuss, or analyze any occasions of investigating, questioning, arrest and/or detention of Plaintiff on the date of occurrence.

RESPONSE:      FH 1-70.

3.         All documents which record, refer to, discuss or analyze the incident.

RESPONSE:      FH 1-70.

4.         All written statements by any person who claims to be a witness to any of the occurrences that are the subject of Plaintiffs Complaint.

RESPONSE:      FH 1-12.

5.         Any and all documents in the possession or control of the Defendant which pertain to Plaintiffs criminal history, federal or state, including records relating to any conviction or arrests.

RESPONSE:  Defendant objects to Request 5 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence.  Without waiving that objection. Defendants are producing documents FH 30-45, 48-50.

6.         Any and all documents or other records of Plaintiffs physical injuries, as alleged in the complaint, relating to, or as a result of, the occurrence.

RESPONSE:      FH 1-12, 58-69.

7.         Any and all documents identified in your answers to any of the Plaintiffs Interrogatories or support any of your answers to interrogatories.

RESPONSE:      FH 1-70.

12.       All diaries or notes purporting to record or memorialize any of the occurrences which are the subject of Plaintiffs complaint or injuries claimed by Plaintiff.

RESPONSE:      FH 1-29.

17.       All audio or video recordings of the incident.

RESPONSE:      FH-70.

18.       Any and all documents or records of which the Plaintiff is the subject thereof, is mentioned therein, referenced to, or identified therein, as have been created or come to be after the date of the occurrence.

RESPONSE:      Defendant objects to Request 2 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving this objection, Defendant is producing FH 1-70.

DEFENDANT AARON NYMAN’S RESPONSE TO PLAINTIFF’S FIRST REQUEST TO PRODUCE

1.         All documents which record, refer to, discuss, or analyze any occasions of investigating, questioning, arrest and/or detention of Plaintiff on the date of occurrence.

RESPONSE:      FH 1-70.

3.         All documents which record, refer to, discuss or analyze the incident.

RESPONSE:      FH 1-70.

4.         All written statements by any person who claims to be a witness to any of the occurrences that are the subject of Plaintiff’s Complaint.

RESPONSE:      FH 1-12.

5.         Any and all documents in the possession or control of the Defendant which pertain to

Plaintiff’s criminal history, federal or state, including records relating to any conviction or arrests.

RESPONSE:      Defendant objects to Request 5 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence, Without waiving that objection, Defendants are producing documents FH 30-45, 48-50.

6.         Any and all documents or other records of Plaintiffs physical injuries, as alleged in the complaint, relating to, or as a result of, the occurrence.

RESPONSE:      FH 1-12, 58-69.

7.         Any and all documents identified in your answers to any of the Plaintiffs Interrogatories or support any of your answers to interrogatories.

RESPONSE:      FH 1-70.

9.         All documents that Defendant intends to use as an exhibit, demonstrative or otherwise, at trial.

RESPONSE:      Defendant has not yet determined what materials he will use an exhibit, but reserves the right to use FH 1-70 or any document produced by plaintiff.

12.       All diaries or notes purporting to record or memorialize any of the occurrences which are the subject of Plaintiffs complaint or injuries claimed by Plaintiff.

RESPONSE:      FH 1-29.

17. All audio or video recordings of the Incident.

RESPONSE:      FH 70.

18.       Any and all documents or records of which the Plaintiff is the subject thereof, is mentioned therein, referenced to, or identified therein, as have been created or come to be after the date of the occurrence.

RESPONSE:      Defendant objects to Request 2 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving this objection, Defendant is producing FH 1-70.

DEFENDANT CITY OF FAIR VIEW HEIGHTS RESPONSE TO PLAINTIFF’S FIRST REQUEST TO PRODUCE

1.         All documents which record, refer to, discuss, or analyze any occasions of investigating, questioning, arrest and/or detention of Plaintiff on the date of occurrence.

RESPONSE:      FH 1-70.

3.         All documents which record, refer to, discuss or analyze the incident.

RESPONSE:      FH 1-70.

4.         All written, statements by any person who claims to be a witness to any of the occurrences that are the subject of Plaintiff’s Complaint.

RESPONSE:      FH 1-12.

5.         Any and all documents in the possession or control of the Defendant which pertain to Plaintiff’s criminal history, federal or state, including records relating to any conviction or arrests.

RESPONSE:      Defendant Objects to Request 5 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving that objection, Defendants are producing documents FH 30-45, 48-50.

6.         Any and all documents or other records of Plaintiff’s physical injuries, as alleged in the complaint relating to, or as a result of, the occurrence.

RESPONSE:      FH 1-12, 58-69.

7.         Any and all documents identified in your answers to any of the Plaintiffs Interrogatories or support any of your answers to interrogatories.

RESPONSE:      FH 1-70.

9.         All documents that Defendant intends to use as an exhibit, demonstrative or otherwise, at trial.

RESPONSE:      Defendant has not yet determined what materials he will use an exhibit, but reserves the right to use FH 1-70 or any document produced by plaintiff.

12.       All diaries or notes purporting to record or memorialize any of the occurrences which are the subject of Plaintiffs complaint or injuries claimed by Plaintiff.

RESPONSE:      FH 1-29.

17. All audio or video recordings of the Incident,

RESPONSE:      FH1-70.

18.       Any and all documents or records of which the Plaintiff is the subject thereof, is mentioned therein, referenced, to, or identified therein, as have been created or come to be after the date of the occurrence.

RESPONSE:      Defendant objects to Request 2 as irrelevant, overly broad, unduly burdensome, vague, and. not reasonably calculated to lead to the discovery of admissible evidence. Without waiving this objection, Defendant is producing FH 1-70.

 

Exhibits for FOIA Appeal from Fairview Heights Police by Mark McCoy

(5 ILCS 140/7)
(c) Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. “Unwarranted invasion of personal privacy” means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.

(5 ILCS 140/7)
(d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would:
(v) disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct, and disclosure would result in demonstrable harm to the agency or public body that is the recipient of the request;
(vi) endanger the life or physical safety of law enforcement personnel or any other person; or
(vii) obstruct an ongoing criminal investigation by the agency that is the recipient of the request.

(5 ILCS 140/3)
(g) Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Before invoking this exemption, the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions. If any body responds to a categorical request by stating that compliance would unduly burden its operation and the conditions described above are met, it shall do so in writing, specifying the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body. Such a response shall be treated as a denial of the request for information.
Repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

(5 ILCS 140/9.5)
Sec. 9.5. Public Access Counselor; opinions.
(a) A person whose request to inspect or copy a public record is denied by a public body, except the General Assembly and committees, commissions, and agencies thereof, may file a request for review with the Public Access Counselor established in the Office of the Attorney General not later than 60 days after the date of the final denial. The request for review must be in writing, signed by the requester, and include (i) a copy of the request for access to records and (ii) any responses from the public body.

 

Illinois Attorney General FOIA Guide for Law Enforcement by Mark McCoy

7(1)(d) EXEMPTIONS Exemptions That Apply Specifically to Law Enforcement or Administrative Enforcement Proceedings EXEMPTION 7(1)(d)(i)

Pending Law Enforcement Proceedings Exemption 7(1)(d)(i) of FOIA (5 ILCS 140/7(1)(d)(i) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452, effective August 19, 2011) allows a public body to withhold records that would interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by the law enforcement or correctional agency that received the FOIA request. Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2010)), “[a]ll records in the custody of a public body are presumed to be open to inspection and copying” and “[a]ny public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” (Emphasis added). As a result, when a public body asserts that records are exempt under section 7(1)(d)(i), the public body has the burden to prove by clear and convincing evidence that the disclosure of the records would in fact interfere with a pending or actually and reasonably contemplated law enforcement proceeding. The fact that an investigation has been commenced is, by itself, not enough to satisfy the burden to withhold information under this exemption. 2010 PAC 6939 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 6939, issued March 24, 2011, at 2) and 2011 PAC 13661 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 13661, issued June 6, 2011, at 2). The public body must produce specific evidence that disclosure of information contained in a document, such as a police report, would interfere with an actual or reasonably contemplated law enforcement proceeding. Examples of such information would be witnesses who have yet to be interviewed or suspects that have yet to be arrested. A criminal conviction that is being challenged through a post-conviction action does not constitute an ongoing criminal proceeding for the purposes of this exemption. Illinois courts have consistently held that post-conviction appeals are civil proceedings. See Illinois v. Wilson, 37 Ill. 2d 617, 620 (Ill. 1967); see also People v. Andretich, 244 Ill. App. 3d 558, 559 (Ill. App. 3d Dist. 1993); Illinois v. Dominguez, 366 Ill. App. 3d 468, 472 (Ill. App. 2d Dist. 2006). If a prosecution has commenced, a police department is strongly encouraged to contact the State’s Attorney’s Office to assess whether disclosure of the requested records could interfere with the prosecution. If a police department intends to assert an exemption under 7(1)(d) in a case where a prosecution is underway, obtaining detailed information from the State’s Attorney’s Office will likely help the police department meet its burden. In Day v. City of Chicago, 388 Ill. App. 3d 70, 72 (1st Dist. 2009), the plaintiff, who was convicted of murder in 1994, submitted a FOIA request in 2007 to the City of Chicago Police Department seeking all documents relating to his arrest and the investigation. The City denied the police report in its entirety pursuant to section 7(1)(c)(1) of FOIA, as it was written at the time, claiming that the investigation was “ongoing.” The First District Appellate Court held that the City’s three affidavits were “entirely conclusory and inadequate to sustain the City’s burden to show the requested documents and the redacted portions of the General Case and Arrest Reports were exempt because disclosure would ‘obstruct an ongoing investigation.’” Day, 388 Ill. App. 3d at 75. According to the Court, affidavits will not suffice “if the public body’s claims are conclusory, merely recite statutory standards, or are too vague or sweeping.’” Day, 388 Ill. App. 3d at 74 (quoting Illinois Educ. Ass’n. v. Illinois State Bd. of Educ., 204 Ill. 2d 456, 469 (2003)). The release of substantive information provided by individuals, even if identifying information were redacted, could have serious consequences for witness cooperation such as swaying testimony and discouraging other yet-to-be identified individuals from supplying information. The release of such information could taint prospective jurors if the information were released independent of any admissibility hearing. The latter, being subject to the rules of criminal procedure, would likely not have the same impact on public dissemination as would the release of information in response to a FOIA request. 2011 PAC 17636 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 17636, issued April 3, 2012, at 5). Other pieces of evidence, such as lab test results, financial records, and other pertinent records could possibly taint a prospective jury. 2011 PAC 17636 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 17636, issued April 3, 2012, at 2). A public body cannot obtain a prohibitive order to bar the release of a law enforcement record specifically in response to a FOIA request. Carbondale Convention Ctr., Inc. v. City of Carbondale, 245 Ill. App. 3d 474, 479 (5th Dist. 1993).

EXEMPTION 7(1)(d)(vi) Danger to Life or Physical Safety Exemption 7(1)(d)(vi) (5 ILCS 140/7(1)(d)(vi) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452, effective August 19, 2011), provides that a public body may withhold information if disclosure would endanger the life or physical safety of law enforcement personnel or any other person. The public body has the burden to prove by clear and convincing evidence that the disclosure of the records in question would in fact endanger the life or physical safety of law enforcement personnel or any other person. Hypothetical, speculative scenarios do not satisfy the clear and convincing burden under section 1.2. Instead, the public body must provide specific information about how disclosure of information in response to the FOIA request at issue would endanger the life or physical safety of a law enforcement officer or any other person. See 2010 PAC 10313 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 10313, issued March 1, 2011, at 7-8).

EXEMPTION 7(1)(d)(vii) Obstruction of Ongoing Criminal Investigation Exemption 7(1)(d)(vii) (5 ILCS 140/7(1)(d)(vii) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452, effective August 19, 2011), provides that a public body may withhold information if disclosure would obstruct an ongoing criminal investigation by the agency that is the recipient of the request. The public body has the burden to prove by clear and convincing evidence that the disclosure of the records in question would in fact obstruct an ongoing criminal investigation by the agency that is the recipient of the request.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Bradley VanHoose vs Village of Caseyville, Illinois

This information was provided to me by a source who will remain nameless. This involves a Bradley VanHoose’s pursuit of information through Freedom of Information Act requests relating to the City of Caseyville, Illinois. Mr. VanHoose.

Apparently, Mr. Van Hoose is having issues with the City of Caseyville, Illinois over a Freedom of Information Act request. I understand that since that time, the City Attorney, Mr. Duane C. Clarke and others in the Caseyville Police Department have taken steps to intimidate or harass Mr. VanHoose. Mr. VanHoose has stood his ground and filed a number of complaints with various agencies, including the Illinois Registry and Disciplinary Commission. I am posting the following information so others may possibly choose to inquire with the City of Caseyville about its practices and put them on notice that individuals will not be intimidates by such municipal thuggery.

Item 1.

1 March 2012

To: Illinois Attorney Registry and Disciplinary Commission

From: Bradley W. VanHoose

Subject: Duane C. Clarke, Village Attorney, Caseyville, Illinois

To Whom This Shall Concern:

I wish to lodge the following conduct complaint against Duane C. Clarke. Making False statements in a public meeting.

  1. On January 11, 2012 Caseyville, Illinois Municipal Attorney Duane C. Clarke made false statements to the Village Board of Trustees and other citizens present, concerning my legitimate request for public documents. In the enclosed recorded meeting, Mr. Clarke told the Village Board that I was a recurrent requester because I had made 21 requests for public documents in a 21 day period. This statement is false.
  2. In the same public meeting Mr. Clarke also publicly accused me of harassing him on Facebook. This statement is false.
  3. When I addressed the Caseyville Village Board on January 18, Mr. Clarke was hostile and out control. Displaying unprofessional conduct. At one point in the meeting, Mr. Clarke picked up his name plate and dropped it abruptly from the distance of approximately 18 inches making a very loud noise.

I am submitting audio cd’s from both meetings for your agency to review. Mr. Clarke continues to be hostile in an apparent attempt to stop me from seeking financial disclosure information from the Village of Caseyville, where he is currently failing to comply with a directive from the Illinois Attorney General by refusing to turn over a number of checks from the Village Hotel/ Motel tax fund.

I request you review these documents and audio files and take the appropriate action. Mr. Clarke’s conduct is unbecoming someone in the legal profession.

Sincerely,

Bradley VanHoose

xxxxxx

Belleville, Illinois 62221

xxxxxx@gmail.com

xxxxxx

Item 2.

17 Oct. 2011 5:26 AM

To: Caseyville Police Chief Roth

From: Bradley VanHoose

Subject: Police Report #4591, Officer Chris Singleton

Chief Roth-

In reading report #4591, I can’t say I am surprised by the false statements made by the accused and his immediate family members. I accept these fallacies as a conceivable part of any discourse between two parties. The “ad-hominem argument form enlisted here is not only entry level, but obvious. The larger concern for myself is the plethora of inaccuracies conveyed by a member of law enforcement. Specifically, Officer Chris Singleton. In several instances, I strongly dispute the statements he presents as fact. For example, I never stated, “Kerry Davis is mad at me, does not like me, or that he tries to intimidate me all the time. Those comments are not only inaccurate, but sound almost “child-like. Having never spoken to Mr. Davis, how could I say such a thing? Moreover, if I had said those things I would have given specific examples to backup my statements. I will say, however, the redness of his face when he saw me the morning of 9/27 did seem to indicate his being upset.

When I came to the Caseyville Police Department on the morning of 9/27, I only asked to make an incident report in order to document what had just occurred. In the voluntary written section of this report, Officer Singleton fails to mention that in addition to filing a conduct complaint against Keri Lin Cary, I also clearly stated I had filed a document request for a number of public records. Further, I see no notes indicating that on September 27, I also made a request to obtain the video surveillance footage from Village Hall between for between 10am and 11 am. I see nothing documented in Officer Singleton’s report indicating I specifically requested that the Caseyville Police obtain video footage from FCB Bank at the corresponding time. While Trustee Davis admits he was photographing me, I felt it should have at least been noted that I made a request. I never made a demand stating, “I wanted something done about Kerry Davis continually harassing me. That statement is completely inaccurate. The only time Trustee Davis ever harassed me was on 9/27, immediately following my second request for documents in as many days. Officer Singleton never notes that I asked it be put into the report that I felt this was an attempt on Trustee Davis’s part to harass and intimidate me. I am bewildered why Officer Singleton would omit these requests and so blatantly misrepresent my statements in his report?

I had never had as much as a conversation with Mr. Davis prior to this incident. As I stated previously, initially I had only asked to file an incident report, but after giving it some thought, when I returned to retrieve a copy of the police report, I officially requested that the case be forwarded to the St. Clair County States Attorney for consideration of charges. (I ask you to review all phone messages I left for Officer Singleton) I followed this up with an email to you.

It remains my contention that Trustee Davis took the actions he did in an attempt too harass and intimidate me. The attempt took place immediately after I had filed a Freedom of Information Request with the Village. There is no doubt that this incident was an obvious effort to prevent me from seeking public documents. The documents I’m currently requesting do involve a fishing dock and its expenses, (as well as possible open bid violations), my requests also include Caseyville’s hotel/motel tax fund and committee. This committee lists Trustee Davis and Carrol Davis as members. Carrol Davis being listed as committee secretary. (See Freedom of Information tab, page 5, of Official Village of Caseyville website).

Currently, I am being illegally denied access to those documents through the Village’s intentional misuse of a state statute. Attached please find the memo I submitted to The Village Board of Trustees, Mayor, and Village Clerk on 12 October 2011. In addition, I have a complaint on file with The Illinois Attorney General to have these public documents released, along with a few other related issues, including but not limited to, harassment of a private citizen(me) by a public official(Trustee Kerry Davis), while seeking public documents.

I am hesitant to even acknowledge the baseless, non-relevant statements made by the wife and daughter of the accused, however I do categorically deny any wrongdoing whatsoever and emphatically maintain that I have never remotely threatened his wife or daughter. For one, that kind of behavior would be inconsistent with the kind of person I am, and second how could I possibly gain anything, including public support in doing so? There has been public discourse over public policy in a very public news forum, to that I agree. But I have never come close to violating any civil or criminal law in my very public dissent over this or any other matter. The appropriate legal actions I take here should clearly indicate that I’m proceeding according to the law. I find the convenient timing of these baseless allegations to be biased, unfounded and very consistent with those who stand accused of wrongdoing. I request the statements of Carrol Davis and Keri Lin Cary be stricken from this record permanently as they are without cause or merit and completely unrelated to the issue at hand.

These facts remain. Kerry Davis admits he stopped behind my vehicle and began photographing me immediately following my request for public documents. The documents in question were directly related to things within his pervue as a public official. Other than my request for documents, Trustee Davis was completely unprovoked and had no justifiable reason whatsoever to take this course of action. While after the fact, his wife and daughter came up to make unsolicited statements to supposedly justify his actions, not one of their baseless allegations was presented prior to this incident nor do I feel any of their statements relevant in this case.

The argument Davis makes that he was attempting to get a picture of my vehicle so his wife and daughter could more easily identify me is clearly nonsense and illogical. I find it nothing more than a feeble attempt to somehow justify his illegal and unethical actions.

By her own account, Mrs. Davis alleges, that she witnessed me glaring at her on the parking lot of a Wal-Mart. Of course I did no such thing, but in making this statement Mrs. Davis indicates she has knowledge of what my vehicle looks like and clearly contradicts herself by maintaining she needs her husband to photograph myself and my vehicle. In addition, I have cut the grass next to Village Hall at St. Stephens Church for over five years. (without incident I might add) I park my vehicle in the same place, in plain sight every time I am there. I have little doubt Keri Cary has not seen me and my vehicle at the church countless times. On occasion I have even come into Village Hall and used the public restroom. In doing so, I have walked past Ms. Cary a number of times as her office is the first one you pass when you enter the building. I sat right next to her at Long Street Bar and Restaurant for an hour on election night just last April. Neither Carrol Davis nor Keri Lin Davis Cary were present during, or witness to what occurred on 9/27/2011.

To pose a question: With the political influence the Davis family obviously wields in Caseyville, would it not be safe to say that if my conduct were half as bad as they allege, wouldn’t it have been much easier for one or all of them to simply come to the Village Police Dept. and file a complaint? They did not. Instead, as Trustee Davis admits in his own statement, he was trying to hunt me down and take pictures of my vehicle. Trustee Davis even say he recognized me while at Village Hall. Why secretly photograph me from afar? Why did Trustee Davis wait until I left to take my picture when he could have easily walked outside and photographed my vehicle without incident or my knowing? Instead Trustee Davis carefully timed his departure to coincide with mine. He wanted to be sure I saw him photographing me as to purposely try to intimidate me. His actions would probably not been so disturbing or meaningful, except for the fact that I had just requested some public documents that may conceivably be directly contrary to his interests. I didn’t think Mr. Davis would be happy I made requests for these documents, but I never expected him to harass me right there on the parking lot of Village Hall as I was leaving.

The reason this public discourse continues to be the same as it began, a lack of public disclosure and transparency in public spending. The details continue to remain murky around the contracting procedures and the actual costs to residents to build this fishing dock. Mr. Davis has, on several occasions provided what I believe to be false and incomplete information which is the primary reason I seek these public documents. Which in turn, leads us to the only real source of conflict between myself and Trustee Davis. In contrast, when I requested similar information from the St. Clair County Park Grants Dept., my request was satisfied in three days. My request from Caseyville remains unfilled now for three weeks. That Caseyville is fighting this information request, only lends itself to the notion that they have something to hide.

If the Davis family wishes to make pointless distractions out of any and everything, I can’t stop them. But I intend to see it through to obtaining documents to which I have a legal right under the law. I am also puzzled why Leonard or Dale Black were even mentioned this matter? Neither was present during this incident or involved in any way.

Pursuant to our conversation today, I wish to rescind my request for a meeting with Officer Singleton and yourself. I have no reason to believe much will be accomplished by having a “He said, “He said dispute. While citing absolutely no wrongdoing on your part Chief Roth, it’s my genuine feeling that outside influences are possibly at work here and see no reason to waste my time or yours.

The primary objective for me is public interest and public disclosure. I request this letter to be submitted along with these attachments to the St. Clair County Prosecutor for consideration of charges, I make no other demands. While I feel this case has merit, I will stand by the decision they render as to whether they prosecute or do not prosecute in this cause.

In the meantime, I will not be deterred or distracted from my intended objective of obtaining public documents to hopefully achieve some public disclosure.

This report, presented by Officer Chris Singleton, is full of omissions, inaccuracies, and errors. It is my contention that it will not give The St. Clair County States Attorney a clear, unbiased accounting of what REALLY occurred at Caseyville Village Hall on Sept. 27, 2011.

At the moment, I must admit, I find myself profoundly disappointed in someone I previously viewed as a very capable, credible young police officer. Perhaps time will prove me wrong? I genuinely hope, in the end, that be the case.

In a free country, no citizen should be afraid to walk into any public building and request a public document. Therein lies the main reason I wish to seek criminal charges against Caseyville Village Trustee Kerry G. Davis. Regardless of what Mr. Kelly decides, it is my sincerest hope that my actions here will make this public official think twice before ever again harassing a private citizen who is merely exercising his or her rights, with due diligence and passion, within the boundaries of the law.

Respectfully Submitted,

Brad VanHoose

Item 3.

6 March 2012

To: Mark Green , Public Safety, Southwestern Illinois College

From: Bradley W. VanHoose

Subject: Grievance; Pursuant to Unauthorized Release of Personal Information

Dear Mr. Green:

On October 6, 2011, at 8:32 am , my class schedule and student identification number were released to Caseyville, Illinois Police. This was done without cause and without my knowledge or consent. Caseyville Police have never questioned me nor shown cause to indicate I was ever involved in any criminal activity. I feel my safety and the safety of my home were put into jeopardy as a result of this matter. I submit this grievance in order to lodge formal complaint against Southwestern Illinois College and Public Safety Officer, Christie Stennett.

Regards,

Bradley VanHoose

Cc: H.O. Brownback, Mike Fleming

Item 4.

Determination by the Attorney General demanding the City of Caseyville to release the requested documents to Mr. VanHoose under the Illinois Freedom of Information Act, and to refrain from treating Mr. VanHoose as a “recurrent requester”.

Attorney General Determination 3 February 2012 Matthew Rogina

Item 5.

Report from the Caseyville Police Department Fraternal Order of Police Lodge #139 citing essentially a vote of no-confidence in Chief Roth of the Caseyville Police Department, and citing therein a number of acts of abuse and malfeasance by the Chief. I’m sure that any of the information alleged by the Fraternal Order of Police can be obtained through a Freedom of Information Act request.

Caseyville Police Report Union

Item 6.

Copy of letter from the Attorney Registration and Disciplinary Commission acknowledging its receipt of Mr. VanHoose’s request for an investigation into Caseyville Village Attorney, Duane C. Clark.

Related stories in local news:

http://www.bnd.com/2012/03/28/2118943/caseyville-village-hall-closes.html

http://www.bnd.com/2012/04/07/2131937/caseyville-chief-is-under-fire.html

 

Contact information for the officials involved: (All addresses/phone numbers may not be current)

Caseyville Village Attorney
Duane C. Clarke
Age 41
3523 PIERLAND DR
HIGHLAND, IL 62249
(618) 654-3735

10 TIMBERVIEW CT
HIGHLAND, IL 62249
(618) 654-3735
https://maps.google.com/maps?hl=en&q=10+Timberview+Court,+Highland,+IL&ie=UTF-8&ei=Pk2yT5ONMNPfggeJ9ZGhCQ&oi=mode_link&cd=3&ved=0CAoQ_AUoAg

1260 MERCANTILE DR
HIGHLAND, IL 62249
(618) 651-3434
https://maps.google.com/maps?hl=en&q=1260+Mercantile+Drive,+Highland,+IL&ie=UTF-8&hq=&hnear=0x8875ddc48c1bf7c9:0x62dd267dbbde7245,1260+Mercantile+Dr,+Highland,+IL+62249&gl=us&ei=dk2yT462CYifgwffk-nvAw&oi=geocode_result&ved=0CBwQ8gEwAA

2121 SAINT RAPHAEL CT
HIGHLAND, IL 62249
(618) 654-3735
https://maps.google.com/maps?hl=en&q=2121+Saint+Raphael+Court,+Highland,+IL&ie=UTF-8&hq=&hnear=0x8875de7f907e8719:0xcf70a6360b18078c,2121+St+Raphael+Ct,+Highland,+IL+62249&gl=us&ei=l02yT-nzD8baggfu-_CcCQ&oi=geocode_result&ved=0CBwQ8gEwAA

312 WARRENSBURG DR
BELLEVILLE, IL 62223
(618) 654-3735
https://maps.google.com/maps?hl=en&q=312+Warrensburg+Drive,+Belleville,+IL&ie=UTF-8&hq=&hnear=0x87d8a9048a1514d1:0x641c976839266fca,312+Warrensburg+Dr,+Belleville,+IL+62223&gl=us&ei=sk2yT6ilB4O0gwfY-7WiCQ&oi=geocode_result&ved=0CB8Q8gEwAA

 

Caseyville Trustee
KERRY GENE DAVIS
Age 59
26 WEINEL CT
CASEYVILLE, IL 62232
(618) 344-2009
https://maps.google.com/maps?hl=en&q=26+Weinel+Court,+Caseyville,+IL&ie=UTF-8&hq=&hnear=0x87d8aadea0bea9cf:0x91b07a8a0a8d2cc3,26+Weinel+Ct,+Caseyville,+IL+62232&gl=us&ei=x02yT6DfKM70ggfQ17XICQ&oi=geocode_result&ved=0CBwQ8gEwAA

305 W WASHINGTON ST
CASEYVILLE, IL 62232
(618) 344-8788
https://maps.google.com/maps?hl=en&q=305+W+WASHINGTON+ST+caseyville+il+62232&ie=UTF-8&hq=&hnear=0x87d8aadc28ca7e6f:0x8cc47cc9b5ad6f3c,305+W+Washington+St,+Caseyville,+IL+62232&gl=us&ei=602yT8-FIcz2gAeprd3MBw&oi=geocode_result&ved=0CBwQ8gEwAA

 

South­west­ern Illi­nois Col­lege Public Safety Officer
CHRISTIE M STENNETT
Age 36
103 ELLIOT ST #1
COLLINSVILLE, IL 62234
(618) 346-8496
https://maps.google.com/maps?hl=en&q=103+ELLIOTT+ST+%231+collinsville+il+62234&ie=UTF-8&hq=&hnear=0x8875ff8ceb5e071f:0x51c49b317915a893,103+Elliot+St,+Collinsville,+IL+62234&gl=us&ei=FU6yT6fzCMX9ggeKsqi2CQ&oi=geocode_result&ved=0CB8Q8gEwAA

1101 QUATTO HL
COLLINSVILLE, IL 62234
https://maps.google.com/maps?hl=en&q=1101+QUATTO+HL+collinsville+il+62234&ie=UTF-8&hq=&hnear=0x8875ffb46057d9f3:0x485d7804eb193368,1101+Quatto+Hill+Dr,+Collinsville,+IL+62234&gl=us&ei=Mk6yT-H4As2RgQfm5cDNCQ&oi=geocode_result&ved=0CBwQ8gEwAA

406 RIGGIN RD
TROY, IL 62294
(618) 346-8496
https://maps.google.com/maps?hl=en&q=406+Riggin+Road,+Troy,+IL&ie=UTF-8&hq=&hnear=0x8875fc788f1a3711:0xf0a061e6b80b8b82,406+Riggin+Rd,+Troy,+IL+62294&gl=us&ei=Tk6yT9eABsWggwfYkf2nCQ&oi=geocode_result&ved=0CBwQ8gEwAA

723 VANDALIA ST #16
COLLINSVILLE, IL 62234
https://maps.google.com/maps?hl=en&q=723+VANDALIA+ST+%2316+collinsville+il+62234&ie=UTF-8&hq=&hnear=0x8875ff95feb4c17b:0xcb73e3a37f22b95d,723+Vandalia+St,+Collinsville,+IL+62234&gl=us&ei=cU6yT5OwB474ggeLkeW0CQ&oi=geocode_result&ved=0CEoQ8gEwAA

2500 CARLYLE AVENUE (This is SWIC College where Stennett works)
BELLEVILLE, IL 62221
(618) 235-2700

612 N COMBS AVE
COLLINSVILLE, IL 62234
https://maps.google.com/maps?hl=en&q=612+n+combs+ave+collinsville+il&ie=UTF-8&hq=&hnear=0x8875ff8cafbea69f:0x2b38717a3275df12,612+N+Combs+Ave,+Collinsville,+IL+62234&gl=us&ei=lU6yT8CUFs7ggge-xtW_Cw&oi=geocode_result&ved=0CB8Q8gEwAA

 

Caseyville Police Chief
JERRY D ROTH
Age 55
9704 AVALON DR
FAIRVIEW HEIGHTS, IL 62208
618) 397-0000
https://maps.google.com/maps?hl=en&q=9704+Avalon+Drive,+Fairview+Heights,+IL&ie=UTF-8&hq=&hnear=0x87d8aa5efd5ce055:0x2b6ea145aceca968,9704+Avalon+Dr,+Fairview+Heights,+IL+62208&gl=us&ei=rk6yT-_4J4mBgwe6n_SuCQ&oi=geocode_result&ved=0CB8Q8gEwAA

503 PLEASANT RIDGE RD
FAIRVIEW HEIGHTS, IL 62208
(618) 398-2888
https://maps.google.com/maps?hl=en&q=503+Pleasant+Ridge+Road,+Fairview+Heights,+IL&ie=UTF-8&hq=&hnear=0x87d8aa7d82069337:0x965d5a23556ed791,503+Pleasant+Ridge+Rd,+Fairview+Heights,+IL+62208&gl=us&ei=xE6yT-T0F4XTgQf58djBCQ&oi=geocode_result&ved=0CB8Q8gEwAA

531 NORTHWESTERN AVE
SOUTH BELOIT, IL 61080
https://maps.google.com/maps?hl=en&q=531+Northwestern+Avenue,+beliot+il+61080&ie=UTF-8&hq=&hnear=0x8808a1157e4880cb:0xf5c319bd24d1abb7,531+Northwestern+Ave,+South+Beloit,+IL+61080&gl=us&ei=706yT6f6JsjTgQeE49G-CQ&oi=geocode_result&ved=0CDAQ8gEwAA

101 E OFALLON DR
CASEYVILLE, IL 62232
(618) 398-2888
https://maps.google.com/maps?hl=en&q=101+E+OFALLON+DR+caseyville+il+62232&ie=UTF-8&hq=&hnear=0x87d8aac69343e549:0xc0764a886c771dde,101+E+Ofallon+Dr,+Caseyville,+IL+62232&gl=us&ei=D0-yT5DaFMGagwe6uLyyCQ&oi=geocode_result&ved=0CBwQ8gEwAA

 

UPDATE 7/27/12

Congratulations to Bradley VanHoose on having his disorderly conduct charges dropped by Brendan Kelly, State’s Attorney. I’m sure it is not that kelly found no probable cause to prosecute since disorderly conduct is an ambiguous offense that is often abused by police as a retaliatory option. The accusations by Chief Rogh as to twhat constituted the offense, as VanHoose upsetting him, are ridiculous. Regardless, Brad is not being charged, and that is a good thing. I hope he maintains his pursuit of corruption in Caseyville and beyond.

From the story:

http://www.bnd.com/2012/07/26/2259394/disorderly-conduct-charges-dropped.html#storylink=omni_popular#wgt=pop

VanHoose was charged with two counts of disorderly conduct. Those charges were dismissed by St. Clair County State’s Attorney Brendan Kelly, who told a reporter the charges were dismissed for legal reasons and “for circumstances related to other ongoing investigations.

“SWIC officers arrested VanHoose as he sat in the college’s library studying for a test on April 10 after he passed a printed copy of a news story relating to Caseyville Police Chief J.D. Roth through the security window. That, according to the charge, was conduct “to cause alarm to” a SWIC police dispatcher.

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Electile Dysfunction – Don't "Pull a Boner" and Vote for These People

When it comes to selecting a Democratic candidate from this year’s political menu, nothing speaks more to flaccid competency than the St. Clair County Democratic Party. I find all government to be a manifestation of a societal mental disorder, but the boots-on-the-ground for this political profundity are those served up on ballots across America. The fifedom known as a Judicial Hellhole, St. Clair County, is home to some of the more renowned malfeasants I have come to know.

I find it hard to believe that I would be so unfortunate to have encountered all of these officials and received the kind of treatment I witnessed. It is safe to say that arrogance, incompetence, and fraud are the order of the day for politics in St. Clair County and dare I say, probably everywhere. The issue is so systemic that jokes are made of public incompetence and corruption as though it were expected. Yet, people continue to vote for people like this and then proceed to whine.

The range of actions witnessed by the foregoing individuals goes from malfeasance to criminal. Mr. Kelly went so far as to invoke his constitutional duty, in one of our email conversations, and then in an act of fraud, file a civil case on my behalf.

I make no secret about my feelings towards government. I hold myself, and mankind, to a higher standard. Ordinary people elect ordinary people to do extraordinary things that in some way touch all of our lives. Truth be told, they are just ordinary people and have no power to do anything unless we surrender our will, and subsequently our wealth, to them and the institution they serve. Public service has become self-interest and becoming beholden to oligarchs who control us through our purse strings and threat of reprisal from the all-powerful State.

My experiences with these people was not an anomaly, or a one-off. I did not happen to catch them on a bad day. These are people who, when held to a standard presumed to be applicable to all who supposedly take an oath that at some point references a constitution designed to preserve and protect individual rights, resort to violence, fraud, and arrogance in either avoiding that duty or turning that power against us. I urge voters to not select any of these individuals for office. I make my case below.

Brendan Kelly - State's Attorney

State’s Attorney, Brendan Kelly. The man who mishandled criminal complaints as circuit clerk and filed a civil case on my behalf in an effort to derail my pursuit of criminal charges against police. I’ve had a number of actual, and attempted, conversations with Mr. Kelly all of which I have thoroughly documented. I believe if Mr. Kelly acted the way he did as Circuit Clerk then how can he be trusted with the power of the State’s Attorney? If Mr. Kelly acted in his official capacity and took sworn criminal complaints under the pretense of properly filing them, and then file a civil case on someone’s behalf where no filing fee is paid, how does that translate to being entrusted with executing the duties of the State’s Attorney where integrity should be primary consideration since we are talking about prosecuting individuals for violations of law which could result in their being imprisoned or executed? Is this the type of character we want in these matters? I think not. There are also other allegations brought to me by other concerned individuals concerning Mr. Kelly’s actions in office, but to be fair, until I have examined the allegations and evidence I can make no such mention here.

http://marcmkkoy.com/2011/04/13/an-open-letter-to-brendan-kelly-state%E2%80%99s-attorney/

http://marcmkkoy.com/2010/09/20/email-tete-a-tete-between-myself-and-brendan-kelly-circuit-clerk-of-st-clair-county/

Zina Cruse - Associate Judge

Photo courtesy Zina Cruse for Judge

Judge, Zina Cruse. The woman who jailed me for contempt when I refused to enter a plea to a charge that was dismissed 3 years prior. I have posted about Ms. Cruse’s deficiencies a number of times. When confronted with a paper from her own court demanding an appearance for a specific issue, and then to adjudicate on another entirely different and moot issue is not the makings of a reasonable judge. Going further, when presented with the information, she becomes emotional and aggressive, calling the bailiffs to take me into custody for disagreeing with her and threatening to have me jailed over an entire weekend for contempt. Ms. Cruse seems to have some emotional or mental deficiencies that render her incapable of reason and impartiality.

http://marcmkkoy.com/2012/01/26/judge-zina-cruse-in-mission-impossible-getting-elected-for-circuit-judge-in-st-clair-county/

http://marcmkkoy.com/2010/05/17/a-day-in-hell-with-a-judge-called-zina-cruse/?shared=email&msg=fail

Kahala Dixon - Circuit Clerk

Acting Circuit Clerk, Kahala Dixon. The woman who, then serving as Assistant State’s Attorney, argued that jurisdiction was related only to where an offense occurred (the situs), and that the State’s failure to file a verified complaint was not a jurisdictional matter. She also attempted to proceed to trial without a witness, and when the defendant moved to dismiss, she felt entitled to another court date because it is common for the State to not have their witnesses ready on the trial date. Ms. Dixon did not understand that there is subject matter jurisdiction, and in personam jurisdiction. She could only focus on “Did it happen in St. Clair County?” as her justification, and not on the fact that for the State to have in personam jurisdiction, there must be a properly filed complaint, and when the accused demands the filing of a verified complaint, under the law, she has a mental vapor-lock and requests a new trial date where she can really be prepared this time. Better she serve in the Circuit Clerk’s office where she can’t hurt anyone directly.

http://marcmkkoy.com/2011/03/24/meet-brendan-kellys-replacement-as-circuit-clerk-mrs-kahalah-a-dixon/

Judge Robert Lechien

Photo courtesy the Madison Record

Judge Robert Lechien. The judge who was previously assigned to my civil case against Fairview Heights Police. I filed the suit pro se, and in the usual course of business the opposing counsel filed motions for particular relief in a matter. Before I go on, some will say my opinion of Lechien results from sour grapes because I did not receive the ruling I desired and such is the way of law, and I’m just a poor loser. That may be said, even though I believe I thoroughly rebutted the opposing side based on the law, but the sticking point was when Judge Lechien called the letter of the law “punctilious”. What he was saying is, I am asking the court to apply the technical and specific wording of the law to the issue at hand, and that is presumably unreasonable. When I held him to the actual letter of the law and it’s application in other cases, he resorts to saying, “You’re just being picky.” If that is the case, then the Constitution, statutes, his oath…. are “punctilious”, and therefore of no power to bind him to any standard other than we he creates.

http://marcmkkoy.com/2010/11/10/judge-lechien-calls-the-letter-of-the-law-punctilios/

http://www.therobingroom.com/illinois/Judge.aspx?ID=4320#comments

Judge Vincent Lopinot

Photo courtesy the Madison Record

Judge Vincent Lopinot. I originally had no issue with Judge Lopinot, as my initial exposure to him was as my instructor in a torts class I took at a local college. I may be judging Mr. Lopinot a little too harshly, but I took exception to the way he callously dismissed me when I attempted to approach him regarding criminal complaints against police officers, a duty bound to him by way of his position as a judge. He told me he did not have to hear such complaints and stomped out of the courtroom, after what I have to admit was a respectful ruling on a case he had just finished presiding over when the above, Khala Dixon, was acting as Assistant State’s Attorney. I also took exception to the way he handled a seat-belt ticket for my niece when she attempted to present a motion I had written to the court where Lopinot was presiding. He treated her with the same callousness and contempt he treated me. You could be my best friend, but when you have a duty to act then you act. You do not turn your back and walk away. On this point, I find it impossible to recommend Judge Lopinot for election. He may have acted out of ignorance, but as the adage goes, ignorance of the law is no excuse.

http://marcmkkoy.com/2010/10/16/judicial-misfit-judge-vincent-lopinot-does-it-again/

http://www.therobingroom.com/illinois/Judge.aspx?ID=4331#comments

The elusive Brian Alben Babka

Judge Brian A. Babka. This judge is the consummate schmoozer and issue-dodger. Babka is the personification of the bastard-lawsuit filed on my behalf by Brendan Kelly when he was Circuit Clerk. I had 2 hearings before Babka regarding the issue, and he is aware that the case was not filed by me, but by Mr. Kelly. He continued to engage the fraud and hear my arguments regarding bringing criminal charges against Fairview Heights Police officers, Joshua Alemond and Aaron Nyman. Judge Babka actually had in his possession the criminal complaints, as well as my motions for presenting them to the court. Upon reviewing the supporting case law I provided where a private individual can present sworn complaints to a “magistrate” for hearing and upon finding probable cause issue a warrant for the arrest of the accused to be later held for possible prosecution, Babka managed to dodge the issue by claiming he did not know the difference between a magistrate and an associate judge. I went on to file a meticulous brief in support of my motion which Babka summarily dismissed.

I do not have a picture of Babka, but aside from my site information, here are some other links to his professional life.

http://marcmkkoy.com/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/

http://marcmkkoy.com/2011/07/07/motion-to-reconsider-courts-dismissal-of-case-10-mr-212-absent-a-review-of-all-authorities-cited-in-plaintiffs-memorandum-of-law/

http://marcmkkoy.com/2011/07/07/motion-for-mandatory-judicial-notice-in-support-of-petitioners-motion-to-reconsider/

http://marcmkkoy.com/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

http://www.therobingroom.com/illinois/Judge.aspx?ID=4325#comments

http://www.madisonrecord.com/news/145065-babka-named-new-associate-in-st.-clair-county

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Minor Traffic Issue Allegedly Ends With Cop Pointing Gun At Head

Well, Fairview Heights Police have again illustrated their propensity for aggressiona and violence when they chase down a family in their vehicle before dragging them out and putting guns to their heads. This is not so far removed from what happened to me on Feb. 17th, 2009 when I too was pulled over and had a gun drawn on me. The difference is, I was beaten‚ and Tasered as well. That story can be found here.

Here is the story as reported by Fox2Now.com in St. Louis, Mo. Visit their site to also see a video of their interview with the Sims’.

http://fox2now.com/2012/03/12/minor-traffic-issue-allegedly-ends-with-cop-pointing-gun-at-head/

BELLEVILLE, IL (KTVI)- A Belleville family wants answers‚  after they say an undercover police officer crossed the line during a traffic stop.

The family says undercover officer pointed a gun at their heads while a four year old watched in the back seat.

The Sims family says they were headed from Fairview Heights to Belleville last Wednesday evening when their four year old accidentally tossed an ash tray out of the window.

Moments later, they say a man in a Cadillac Escalade tried to run them off the road.
They thought it was road rage, but it was an undercover officer who they say was out of control.

Adriana Sims, 18, said, ‚“When he was chasing us I was thinking it`s road rage and I tried to get somewhere in the light where there are people.‚

Adriana Sims was behind the wheel driving her parents GMC Envoy.
Her sister, older brother and his four year‚ old daughter are in the car. They are scared.

Arthur Sims Jr. said, ‚“Being the older brother I said it`s road rage don`t stop until we get to a lighted area.. We rode for while and finally when we saw some other cars he turned on the lights.‚

But even then. they say they had no idea the man behind the wheel was an undercover officer.

‚“My main concern is my baby was sitting right next to me he would get behind us and rev the engine,‚ said Arthur.

The intersection at Lebonnon Ave in Belleville is where the situation allegedly escalated.
The Sims say the officer jumped out of his car, put a gun to their heads and slammed them on the ground while the four year old watched.

‚“First the gun was to my head and then to my back as we were walking. All I‚  could think about was if he would slip that bullet was going through me,‚ said Arthur.

As other Fairview Heights police officers started to show up the Sims thought the situation would improve.

‚“When I saw them I was thinking maybe they are going to help but they helped him and everything he was doing,‚ said Adriana.

Fairview Heights police say the undercover officer is assigned to the narcotics task force.
In a written statement, they say the officer pursued the Sims after they yelled curse words and threw something out the window that hit his unmarked car.

‚“I felt helpless it was all because an ash tray fell out if anything give me a littering ticket,‚ said Arthur.

Arthur says his four year old now has nightmares. He says the officer could have handled the situation differently.

‚“It was embarrassing. My daughter was right there,‚ said Arthur.

‚“He didn`t jump out with a badge. He just jumped out with a gun,‚ said Adriana.

Adriana Sims was ticketed for not having her insurance card and drivers license and failing to stop for an emergency vehicle.

Arthur Sims was taken‚ to Fairview Heights jail for disorderly conduct and was released when his parents arrived.

The Sims say the are filing a complaint.

Fairview Heights police say they have initiated an internal review.

Below is the statement from police:

Fairview Press Release on Sims Incident

I will quote from the Press Release, and address disparities between what Fairview Heights Police say should be done in trying to bring criminal charges against police, and driving to a well-lit area if pulled over by an unmarked vehicle.

“On Thursday, March 8, 2012, Arthur Sims Jr., and Adriana Sims came to the Fairview Heights Police Department to file a complaint against the Fairview Heights Police officer. After briefly explaining their version of the events, theey‚ were informed that state law requires they provide a sworn affidavit as to their complaint. They were provided the necessary paperwork, but they refused to provide a sworn affidavit. As of Monday, March 12, 2012, they have not returned and no formal complaint has been filed.

The Fairview Heights Police Department holds all its officers to high ethical and professional standards. Although the formal investigation process legally requires the signed affidavit, we recognoze and are aware of the incident and complaint. We have initiated our internal review process and await further information and a sworn affidavit from the Sims.

We recognize the presence of emergency lights in an unmarked vehicle does not provide complete assurance the vehicle is actually an authorized police vehicle. Drivers are reminded when they have doubt, they should continue driving to a well-lit populated location before stopping. In addition, they should call 911 whenever possible while driving to determine the validity of the stop.”

‚ Now, as for the first paragraph regarding sworn affidavits; I have provided the same to officials in St. Clair County, only to have them mis-handled and filed as a civil complaint by the then Circuit Clerk, Brendan Kelly.

http://marcmkkoy.com/2010/08/20/corruption-in-st-clair-county-illinois-officials-refuse-to-prosecute-police-for-misconduct/

Mr. Kelly had the case assigned to his judicial lackey, Brian Babka, who very adroitly disposed of the case upon being met with my motion proving that associate judges had a duty under the Illinois Constitution to hear criminal complaints.

http://marcmkkoy.com/mark/FHPD/Criminal%20Complaints%20against%20Alemond%20and%20Nyman.pdf

http://marcmkkoy.com/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/

With regard to the last paragraph regarding driving when you can’t identify the vehicle as being an official police vehicle, I did the same thing when pulled over at 2am and could not tell if the car was marked or the driver in uniform. I proceeded to drive to a lit area and was beaten, as well as charged with fleeing and eluding. Even though I could not identify the vehicle with lights on as a police vehicle due to it being dark and lights shining in my eyes, I drove to a lighted street, was ordered from my vehicle at gunpoint, beaten and Tasered.

I hope to speak with the Sims’ soon and get more information on their case.

Judge Zina Cruse in Mission Impossible – Getting Elected for Circuit Judge in St. Clair County

My one-time  judge, jury, and executioner, Zina Cruse, is running for St. Clair County Circuit Judge. Nothing could be sweeter, in my opinion, because now she has exposed her soft-pink-underbelly to my wrath for her arrogant and  unlawful display in court on May 8, 2009 when she had me jailed for contempt when I refused to engage her insanity by entering a plea to a non-existent charge. You can read about that incident here.

Judge Cruse has succumbed to the allure of social media in furthering her  hopefully failed pursuit of a position on the bench that is also stained by the likes of Judge Brian Babka, Vincent Lopinot, and Robert LeChien.  She feels she is ready to be elevated from the position of Associate Circuit Judge to a full-blown Circuit Judge. I would agree, only in the sense that I find the paper trainee  hat she wears when banging the gavel completely unattractive, and a disservice to paper trainee hats. She has established herself on Facebook in both her professional capacity and her campaign. Her dedicated campaign website is here.

Now, do I hate Zina Cruse? No. I have only met her once, and the result of that encounter left me sitting in a cell for some 3 hours because I refused to answer a question that did not apply to the reason why I was in her court. I cannot, however, in good conscience sit quietly by why such a person seeks a position on the bench where she will either bully or terrorize others possessing less temerity than I, into pleading or  otherwise submitting themselves to punishment, undeserved. Judge Cruse did not take the time to engage me, investigate the facts, or otherwise pursue the truth as to why I was standing before her that day. Her arrogance and callousness is commonplace in many courtrooms where the uninformed and ignorant march dutifully before someone they probably believe cares little for the truth, but submit nonetheless in hopes of receiving lighter lashes than expected. I don’t care for the threat of lashes, I will stand my ground before bending a knee before anyone claiming to have any authority over me and no proof to support their claims.

There is an opinion published by the Illinois Supreme Court relating to a case where Zina Cruse was the presiding judge and improperly rescinded a statutory suspension of a driver’s license. A reading of the rule, which is fairly straightforward, would bar such a rescission under the circumstances presented on the record, yet Zina Cruse failed to apply a clear point of law to the case and rescinded the suspension. The State appealed and won. You can read the case here. Now, it is not uncommon for the Appellate Court to overturn lower court rulings, so I’m not saying Zina Cruse was targeted by the Appellate Court, but in my opinion, as a legal researcher, the point of law in this case is so clear and unequivocal that there should have never been a rescission in the first place. This speaks to, what I believe to be, Zina Cruse’s inattention to detail. In my case, I had an order dismissing a case, and no charge upon the record, yet Zina Cruse was adamant about me entering a plea when the court date was merely to show cause why I should not be held in contempt. I was there to show cause, that being, there was never jurisdiction proven which would then subject me to the authority of the court. Zina did not want to hear my “cause”, she only wanted me to plead to a fictional charge. As a result, she found me in contempt for me standing my ground and stating I was there only to show cause. That is where her brain disconnected and she ordered me jailed. Bad move, Ms. Cruse. Subsequently, that charge, which I was held in contempt for not entering a plea, was later found to be in error and dismissed.

Cruse is being opposed by Anne Keeley.  You can visit her website here. I have never met Ms. Keeley, but I know she has never had me jailed for disagreeing with her. That sums up the Democratic Party challengers, but there is a Republican in the mix as well. Her name is Laninya Carson, and she is a St. Clair County Associate Judge. She has been reported to have made some comments which endeared her to local Tea Party members at a forum held in Collinsville, Illinois recently. The Southern.com also did a write-up on her which you can read here. Now, am I a Tea Party’er? No. I am an Anarchist. The Tea Party clings to the notion that the Constitution is reverent and government, in some form, is necessary. I, of course, differ on both points and hold mankind to a much higher standard, but my peaceful philosophical beliefs are no threat to anyone other than government actors, and only then insofar as I do not seek refuge, protection, support, or other recognition from systems employing force to further an agenda. That said, in this imperfect world where a significant reduction in government will not happen over night, I have to say that Laninya Carson is the preferred choice for this position.

I feel a personal investment in keeping Ms. Cruse off of the bench, but would do the same for any of the other judges who have exhibited similar tendencies. I am no stranger to filing complaints with the Illinois  Judicial Inquiry Board, and even have an online form here for those who wish to do the same.

I will concede to this, if Ms. Cruse would contact me personally and apologize for her actions on May 8, 2009, I will likewise remove any negative posts on my site referencing her. I believe such an overture to be astronomical in odds, but to do so would be to exhibit more humility and respect than any other judge I’ve been involved with. Until I receive that apology, I will proceed as planned in hopes of informing others of her contempt for civility, respect, and accountability to the people who pay her salary. Being called into court does not confer guilt, and the State has a burden to meet before it can pass judgment or punishment on an accused. To treat the parade of unwitting citizens before her as rabble is of the lowest sort of character.

Doing a Google search, I found an online paper writing about Ms. Cruse’s election. The paper is The Southern.com

I am public and truthful about all my information, and will freely make available to the public anything which is challenged.

Ms. Cruse, you know where to reach me if you wish to make amends. I am not closed to forgiveness, but am resolute in holding those accountable who use violence or intimidation against others.

Zina Cruse Complaint Judicial Inquiry Board

If you are so inclined, please visit her campaign website at Zina Cruse for Circuit Judge .org

http://zinacruseforcircuitjudge.org/

                                            

You can also visit her campaign on Facebook here

https://www.facebook.com/pages/Zina-Cruse-for-Circuit-Judge/185074398250866

Her personal Facebook page is here

https://www.facebook.com/profile.php?id=100003202814635

 

Feel free to visit her pages and drop the url for this post on the page, along with this original post

http://markmccoy.com/wp/2010/05/17/a-day-in-hell-with-a-judge-called-zina-cruse/?preview=true&preview_id=29&preview_nonce=bdea4c5519

 

Ms. Cruse, I’ll be waiting.

 

Mark McCoy

 

Meet Ms. Cruse’s opposition, Laninya Carson. Good luck, Ms. Carson.

http://www.madisonrecord.com/news/173711-qa-st.-clair-county-associate-judge-laninya-cason-on-the-peoples-court

Photo courtesy the Madison County Record

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Motion to Reconsider Courts Dismissal of Case 10-MR-212 Absent a Review of all Authorities Cited in Petitioner's Memorandum of Law

This is a motion in response to Judge Brian Babka’s dismissal of Case 10-MR-212 following my Memorandum of Law, and in support of my Motion to Reconsider his dismissal. I write of the dismissal here http://markmccoy.com/wp/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/

Motion for Mandatory Judicial Notice can be found here.

IN THE CIRCUIT COURT

TWENTIETH JUDICIAL CIRCUIT

ST. CLAIR COUNTY, ILLINOIS

 

Mark R. McCoy,

Petitioner,

 

-VS-

Case No. 10-MR-212

Joshua Alemond

Aaron Nyman

Respondents.

 

MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW


     NOW comes the Petitioner, Mark R. McCoy, and through his MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW, states as follows:

 

1. That the above-captioned case was filed, to the best of the Plaintiff’s knowledge, on June 17, 2010, following Plaintiff personally tendering to Brendan Kelly, then Clerk of the Circuit Court, Twentieth Judicial Circuit, St. Clair County, Illinois, a number of documents captioned “Complaint and Affidavit in Support Thereof” which Plaintiff represented to be sworn complaints alleging violations of law by persons named therein, and which are sworn to by the Plaintiff and verified by the affixment of a signature and notarial seal from a Notary Public of the State of Illinois .

2. That then Clerk of the Circuit Court, Brendan Kelly, did presumably act within the Constitutional authority of his office in bringing said complaints before the court by way of his filing of the above-captioned case.

3. That the issue before this Court, originating with an officer of the Court filing said complaints, implies a remedy which exists with the Judiciary.

4. That if a remedy had existed with the administrative, as with the State’s Attorney, then it would be reasonable to assume that Mr. Kelly would not have taken the action of filing Plaintiff’s complaints in such fashion and would have instead either refused to accept Plaintiff’s complaints or directed Plaintiff to the State’s Attorney, which he did not.

5. That this Court is in possession of sworn complaints which originate with the Plaintiff, were received by an officer of the Court, presumed to be properly filed, and which conform to statutory requirements for presentment to a Court.

6. That this Court has essentially been presented with complaints which charge that an offense has been committed, thereby imposing a mandatory duty upon the Court by way of the plain language of the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a)to examine the complainant upon oath or affirmation.

7. That on August 16, 2010, to the best of the Plaintiff’s knowledge, additional complaints were added to the file subsequent to Plaintiff’s mailing of said complaints to Brendan Kelly, Chief Judge, John Baricevic, and then State’s Attorney, Robert Haida.

8. That the person responsible for supplementing the file with the additional complaints was then Clerk of the Circuit Court, Brendan Kelly.

9. That it is the Plaintiff’s belief that the person responsible for the filing of the above-captioned case is none other than then Clerk of the Circuit Court, Brendan Kelly.

10. That the above-captioned case was assigned to the Honorable Brian Babka pursuant to an Order entered by Chief Circuit Judge, John Baricevic on December 7, 2010.

11.That the above-captioned case contains no other pleading, motion, or prayer for relief, which would indicate a remedy sought by the Plaintiff.

12. That the Plaintiff did appear before the Honorable Brian Babka on February 24, 2011 for a hearing regarding this case.

13. That the Plaintiff did engage this Court with a verbal recitation of what he believed to be the circumstances giving rise to the Court being in possession of said complaints.

14. That this Court did identify and recognize the Plaintiff’s documents as being complaints alleging criminal offenses, and did thereby ask by what authority the Plaintiff believed he had a right to bring said complaints before a Court and not a State’s Attorney or police agency.

15. That the Plaintiff did provide one authority he felt best supported his position, that being Lindquist v. Friedman’s, Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).

16. That this Court said it would review the cited case and discuss its findings in a subsequent hearing.

17. That the Plaintiff did appear before the Honorable Brian Babka on May 12, 2011 for the purpose of discussing his review of Lindquist and its application to Plaintiff’s case for bringing complaints before the Court.

18. That Judge Babka did state that he did thoroughly research the Lindquist case and found it to still be current, and not overturned in any subsequent Appellate Court opinion, notwithstanding that opinion being rendered in 1937.

19.That Lindquist does speak to, and confirm the right, of a private individual to bring charges alleging violations of law before a “magistrate” for the purpose of a court examining the complainant and if, upon a finding of probable cause, issuing warrants of arrest for the accused to be brought before the Court to answer the charges and post bail, if need-be.

20.That the only exception between Lindquist and this case before the Court, as voiced by the Judge Babka, was that of there being no judicial officers presently serving in Illinois under the title of “magistrate”.

21.That Judge Babka did say that due to the lack of an identifiable judicial officer serving under the title of “magistrate”, an otherwise valid remedy is no longer available.

22. That Judge Babka did say that should the Plaintiff care to research the issue of “magistrates” and find where an answer affords a remedy, he may present that information to the Court for further review.

23. That Judge Babka did leave the above-captioned case open and scheduled for another status hearing in one year.

24. That upon further inquiry into the issue of judicial officers previously known as “magistrates”, no longer serving under that title in the State of Illinois, and if so empowered to hear complaints and issue warrants, to whom did that power now devolve, and what became of that judicial office, Plaintiff did file his MEMORANDUM OF LAW on June 13, 2011 which speaks to those very issues.

25. That in said Memorandum, the Plaintiff not only cites Lindquist, but other authorities as well, which not only support his position regarding bringing charges directly before a Court, but which also settles the question as to the fate of heretofore magistrates, who were empowered with hearing complaints, examining complainants, and issuing warrants of arrest, as having undergone a title change to that of Associate Judge, still possessing the same powers and duties as magistrates per the Illinois Constitution of 1970.

26. That among said authorities cited in Plaintiff’s Memorandum are citations from the Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., which impose a mandatory duty upon a Court to act when presented with a complaint that conform to statutory requirements.

27. That among said authorities cited in Plaintiff’s Memorandum is the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention, which identify Associate Judges as having previously been titled magistrates, and who have the authority to issue arrest warrants, and conduct preliminary examinations of persons arrested.

28. That on June 20, 2011, the Honorable Brian Babka did issue an Order in response to Plantiff’s Memorandum.

29. That in said Order, Judge Babka cites the case of People ex rel.Daley v. Moran 94 Ill. 2d 41, 445 N.E. 2d 270, 67 Ill. Dec 790 in response to Plaintiff’s Memorandum, specifically one case therein cited as Lindquest v. Friedman’s Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).

30. That Plaintiff did provide other supporting authorities for his position, as well as raising other arguments in his Memorandum, that were not addressed in the Order.

31. That the Order mischaracterizes the remedy sought by the Plaintiff and is thereby unresponsive in that:

a. Plaintiff does not seek the issuance of arrest warrants, exclusively.

b. That Plaintiff is not seeking to exercise, or to have this Court exercise, any power belonging to the State’s Attorney, other Administrative Officer, or otherwise violate the doctrine of separation of powers.

c. That Illinois Law, Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., is clear on the procedure for presentment of a complaint to a court, and a duty of a Court to act when so presented, as cited in Plaintiff’s Memorandum, but such issue is not addressed in the Court’s Order dismissing this case.

d. That the case of People ex rel Daley v. Moran, cited in the Order, does not speak to the issuance of arrest warrants, but merely speaks to the separation of powers between the judiciary and administrative when charging an offense, making no mention of receiving complaints or examining complainants, and is not therefore on-point for the purposes of Plaintiff’s remedy.

e. That Plaintiff agrees with the holding in People ex rel Daley v. Moran, as the discretion for prosecution rests with the State’s Attorney, however the power to hear complaints, examine complainants, issue warrants of arrest, and conduct preliminary examinations, rests solely with the judiciary, of which Associate Judges are a part.

f. That Plaintiff answered the Court’s question as to magistrates and any corresponding judicial officer presently sitting and empowered to act upon complaints, by way of his Memorandum, where he cites the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention.

g. That the contents of the file for this case do not clearly speak to the remedy sought by the Plaintiff, and the record is thin on written evidence, relying solely upon brief oral arguments which may not have clearly presented.

h. That the remedy sought by the Plaintiff is to present his sworn complaints and supporting evidence to a judicial officer empowered to hear such complaints, and to avail himself to being examined under oath, as required by law, and for such judicial officer to act upon the results of such presentment and examination according to law.

32. That this court has not reviewed, nor addressed, other supporting authorities presented, notwithstanding Lindquist, that affirm the right of a private individual to bring complaints before a Court.

33. That judicial officers once serving under the title of “magistrates”, now serve in the same capacity as Associate Judges, following a renaming of magistrates in the Illinois Constitution of 1970, but retaining the powers and duties previously assigned.

34. Therefore, considering all facts and circumstances to-date, it is reasonable to assume that a remedy exists with this Court for addressing or otherwise acting upon the Complaints contained therein

WHEREFORE, In light of the foregoing, and in the interest of justice and submission to the laws of the State of Illinois, Plaintiff hereby requests this Court to reconsider its Order of June 20, 2011 which dismissed the above-captioned case, and review all of the information before it.

                       

Mark R. McCoy, Petitioner

                       

Date


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Motion for Mandatory Judicial Notice in Support of Petitioner's Motion to Reconsider

This is a motion in response to Judge Brian Babka’s dismissal of Case 10-MR-212 following my Memorandum of Law, and in support of my Motion to Reconsider his dismissal. I write of the dismissal here http://markmccoy.com/wp/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/

The Motion to Reconsider can be found here.

IN THE CIRCUIT COURT

TWENTIETH JUDICIAL CIRCUIT

ST. CLAIR COUNTY, ILLINOIS

 

Mark R. McCoy,

Petitioner,

 

-VS-

Case No. 10-MR-212

Joshua Alemond

Aaron Nyman

Respondents.

 

MOTION FOR MANDATORY JUDICIAL NOTICE IN SUPPORT OF PETITIONER’S MOTION TO RECONSIDER

     NOW comes the Petitioner, Mark R. McCoy, and through his MOTION FOR MANDATORY JUDICIAL NOTICE IN SUPPORT OF PETITIONER’S MOTION TO RECONSIDER, moves this Court to take Mandatory Judicial Notice of the following matters set forth hereafter, pursuant to the Mandatory Provisions of the Illinois Code of Civil Procedure Section 735 ILCS 5/8-1001 et seq., which Motion is made in support of the here accompanying MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW.

 

MATTERS TO BE JUDICIALLY NOTICED

 

1. The Court should take Judicial Notice of the Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., which defines the requirements for bringing complaints before a Court, examination of complainants and witnesses, and issuance of arrest warrants.

2. The Court should take Judicial Notice of the contents of the Case File as containing documents captioned as “Complaint and Affidavit in Support Thereof” which are sworn to by the Plaintiff and which meet the requirements for a complaint pursuant to the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(b)(1)(2)(3)(4) which states:

“(b) The complaint shall be in writing and shall:

(1) State the name of the accused if known, and if not known the accused may be designated by any name or description by which he can be identified with reasonable certainty;

(2) State the offense with which the accused is charged;

(3) State the time and place of the offense as definitely as can be done by the complainant; and

(4) Be subscribed and sworn to by the complainant.”

3. The Court should take Judicial Notice of the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) which states, “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.”

4. That the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) does not limit what court may hear complaints, be they administrative, criminal, or civil.

5. That the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) does not specify who may, nor preclude who may not, present a complaint to a court.

6. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑9 which defines a complaint to mean: “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense.”

7. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑10 which defines a court to mean: “Court” means a place where justice is judicially administered and includes a judge thereof.

8. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑13 which defines a judge to mean: “Judge” means a person who is invested by law with the power to perform judicial functions and includes a court when a particular context so requires.”

9. That the Illinois Code of Criminal Procedure 725 ILCS 5/102‑13 does not exclude associate judges.

10. That the Court should take Judicial Notice of the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices.

11. That the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices details the renaming of magistrates to associate judges.

12. That the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices details the duties and responsibilities of associate judges as those belonging to former magistrates.

13.That the Court should take Judicial Notice of the Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970.

14. That the Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970 mentions on a number of occasions, the intent and application of the proposed renaming of magistrates to associate judges.

 

Judge Brian Babka Dodges the Issue of Issuing Arrest Warrants Against Police. Case 10-MR-212 is Dismissed…..for now….

I must admit that I may have been Pollyanna in assuming a judicial officer in St. Clair County, Illinois would faithfully execute the duties of his office. I received word, through a judicial order, on 6/25/11, that a case I was hoping would afford an unbiased and fair examination of the facts was officially dismissed.

BACKGROUND

Upon my persistence in bringing sworn criminal complaints before a court, where the State’s Attorney and police agencies had refused to act due to the charges involving crimes by police officers, I was met at the Circuit Clerk’s Office in St. Clair County, Illinois by Brendan Kelly, the then Clerk of the Circuit Court. On June 17, 2010, I was at the Circuit Clerk’s office making another attempt at filing criminal complaints against Fairview Heights, Illinois police officers Joshua Alemond and Aaron Nyman. I was acting under the direction of Judge Randall Kelly, who imparted to me that a private individual can bring a complaint for a violation of law. Footnote 1 The clerks refused to file my complaints, stating they were unfamiliar with any filing that would address criminal complaints. Upon my insistence, they directed the matter to Brendan Kelly, the Clerk of the Circuit Court, who personally came into the hallway in front of the clerk’s office to meet with me. I explained the situation to him and he then offered to personally take the complaints and determine the best way to address them and to file them, if such action was within his power to do so.  Footnote 2

Mr. Kelly and I communicated over email and voice mail over a week or so. In Mr. Kelly’s email, he make reference to “package of information which you describe as felonies was also similarly file stamped- on August 16, 2010”. What is curious is how this information made it into the file, since I did not deliver to the Clerk any pleadings or documents which needed to be filed. The “package of information” to which Mr. Kelly refers relates to a letter which I sent to Robert Haida, State’s Attorney, John Baricevic, Chief Judge, and Mr. Kelly, Clerk of the Circuit Court. Footnote 3 As a result, Case 10-MR-212, was born. Within that case, are sworn criminal complaints which were delivered to Brendan Kelly on June 17, 2010 and “information” received by him by way of a letter on August 16, 2010. There has been no communication from either the State’s Attorney or Chief Judge in the matter. Something else to consider, as there are fees for every filing with the Circuit Clerk, in this case, a Miscellaneous Remedy, the fee is $246. There was no filing fee tendered by me, or anyone else to my knowledge, and how this case came into existence without a fee being remitted is a question for Mr. Brendan Kelly. Was this an abuse of his discretion and violation of law for allowing a case to be filed without the proper fee and secondly, filing a case of his own volition in another party’s name? Footnote 4

Subsequent to Case 10-MR-212 being created on June 17, 2010, it took until December 7, 2010 for a judge to be assigned by Chief Judge John Baricevic. The assignment fell on Judge Brian Babka of the Twentieth Judicial Circuit. I appeared on February 24, 2011 before Judge Brian Babka. At that initial hearing,  Judge Brian Babka expressed his bemusement about the file contents, which were the criminal complaints filed by Brendan Kelly, being before him in a miscellaneous remedy court. I likewise expressed confusion and explained to Judge Babka that it was not I who filed the case, nor remitted a filing fee. I explained it was Mr. Kelly who acted on my behalf. Judge Babka proceeded to engage me as to what I hoped to achieve and I explained that I believed it was possible to bring charges to a court without the aid of police of the State’s Attorney. When asked by what authority I came to hold such belief I provided the citation for Lindquist v. Friedmans, Inc. Footnote 5 Babka said he would take the case under advisement and review the cited case, following up with a subsequent hearing.

I appeared again before Judge Babka on May 12, 2011. He was cordial and friendly. He told me that the Lidquist case was still good law, but dwelled on the courts use of the word “magistrate” since that case was from 1937. He said that he did not believe there were any “magistrates” to present complaints to and therefore the law, albeit still good, had been rendered moot by the elimination of magistrates. Footnote 5 He said that I may want to channel my energies in other directions rather than going down “blind alleys” in pursuing criminal complaints. He recommended, instead, pursuing civil remedies. He said that the law has become too “automated”, and the process for bringing charges now rests with the State’s Attorney or police. I respectfully disagreed and said that I do  not believe the clear language of the statute would allude to the remedy I sought to only be neutered by the removal of a judicial officer required for carrying it into effect. He said he would keep the case open and set it for another status in a year, but if I found anything to further support my claim or otherwise clarify the “magistrate” issue, I could present it to the court for his review.

DISCUSSION

On June 13, 2011, I filed a Memorandum of Law for Case 10-MR-212, in response to Judge Babka’s interpretation of Lindquist and his acknowledgement of that case not having been overturned by any subsequent Illinois Appellate decision; and in that Memorandum I requested a hearing on the issues therein raised.  Footnote 6 Not only did I further clarify the issue raised by Lindquist regarding the fate of former magistrates, who merely were renamed to “associate judges” under the Illinois Constitution of 1970 and who still retain the power to issue warrants of arrest, I elaborated on the right of an individual to bring charges without the aid of police or State’s Attorney, not resting the entire argument upon Lindquist, but citing other authorities as well. Footnote 6

On June 25, 2011, I received an Order from Judge Babka which was entered on June 20, 2011, in response to my Memorandum and essentially dismissing the case. Footnote 7 In his Order, Babka does not address any of the issues presented, aside from the holding in Lindquist as being a case from 1937, which he said was still good law, and attempting to distinguish that holding with one from People Ex Rel. Daley v. Moran, 94Ill. 2d 41, 445N.E. 2d, 67, Ill. Dec 790. Footnote 8 I contend that the Daley case is not on point for purposes of my argument. I do aver, in my Memorandum, that the State’s Attorney has sole discretion in whether to prosecute, but prosecution and arrest are two different matters. Footnote 9 Within the separation of powers doctrine, only the judiciary has the power to issue warrants of arrest, and the State’s Attorney has the power to pursue prosecution. Footnote 10

Reviewing the Daley case, it seems a judge attempted to direct a State’s Attorney to file an information relating to an offense, to which the State’s Attorney refused and the court pursued the filing of an information itself, and the State’s Attorney responded with a writ of mandamus expunging the court’s order of the information. What distinguishes Daley from Lindquist is that in Daley the issue of arrest is not in controversy. The defendants in Daley were involved in possible plea negotiations over a charge of aggravated battery, and had already been arrested through a complaint brought by the complainant, a police officer. Footnote 11 What has happened in that case is upon arrest, defendants are entitled to a preliminary examination for determining if probable cause exists, and if so, to be held to answer and post bail. Footnote 12 Of course, for this to take place, the defendant must first be arrested, and whether or not a prosecutor proceeds with or declines prosecution, there must first be a warrant issued for the court to ever acquire jurisdiction, which requires a complaint, information, or indictment. Footnote 13 In Daley, the defendants had been charged by complaint and then engaged in plea negotiations. At that point, the State’s Attorney has discretion in how to proceed with prosecution. In Daley, the court attempted to intervene in that discretion, which prompted the writ of mandamus. In my case, I am attempting to have the officers arrested in order to answer the charge. At that point, the parallel between my case and Daley may be drawn since there would then be an arrest initiated by a judicial officer who then hands the prosecution of the offense to the State’s Attorney. With that in mind, the Order entered by Babka, by his reliance upon Daley, is without merit and off-point for the purposes of having warrants of arrest issued as opposed to prosecutorial discretion.

CONCLUSION

What I have now to consider is, which method do I employ to press this issue? I am considering a motion to reconsider Babka’s Order based on the foregoing, as well as a preemptive letter to the Attorney General. Given the inarticulate and imprecise response from St. Clair County judges to-date, I must also consider a Petition for Writ of Mandamus to the Illinois Supreme Court. Honestly, I question whatever satisfaction this endeavor may afford, even if the officers are arrested and held to answer the charges, reasonably presuming Brendan Kelly will exercise his “prosecutorial discretion” and dismiss the charges. Then again, this is not about prevailing in any prosecution, but rather addressing the fundamental question, viz., are individuals bound exclusively to the whim and whimsy of police and prosecutors when seeking justice, or has the avenue to the judiciary for such matters been completely delegated to the administrative branch? If the State’s Attorney has sole discretion in the bringing of charges, then he holds the power of guilt or no guilt as well for there can be no finding of guilt without prosecution; and without the ability to have the accused answer the charges, we are bound to suffer assault by those with impunity and no fear of retaliation under law should they carry favor with those who wield that power, or refuse to wield it, capriciously.

UPDATE 7/7/11

I will be filing my Motion to Reconsider and Motion for Mandatory Judicial Notice today.

http://markmccoy.com/wp/2011/07/07/motion-to-reconsider-courts-dismissal-of-case-10-mr-212-absent-a-review-of-all-authorities-cited-in-plaintiff%E2%80%99s-memorandum-of-law/

http://markmccoy.com/wp/2011/07/07/motion-for-mandatory-judicial-notice-in-support-of-petitioner%E2%80%99s-motion-to-reconsider/

 

RESEARCH REFERENCES

Footnote 1. Report of Proceedings, Sept. 20, 2009 in the case of People v. Mark McCoy, Randall Kelly presiding, discussion on pages 5 – 6. http://markmccoy.com/Record%20of%20Proceedings%209-30-09%20Second%20Appearance.pdf

 

Footnote 2. Excerpt from email on Thu, 26 Aug 2010 10:39:07 from Brendan Kelly. http://markmccoy.com/wp/2010/09/20/email-tete-a-tete-between-myself-and-brendan-kelly-circuit-clerk-of-st-clair-county/

Mr. McCoy:

The original complaints which you describe as misdemeanors were filed with this office and received a “file stamp” on the date which you filed them- June 17, 2010.  When these documents received a case type assignment and placed into an actual file folder is not relevant to the issue of statute of limitations and does not deprive you of any relief at least in that regard.  Again, the “file stamp” date of June 17, 2010 is the relevant date for those documents- the very day you filed them here.

Since those documents were received and file stamped by a deputized clerk of the court, and since the more recent package of information which you describe as felonies was also similarly file stamped- on August 16, 2010- a record of some type had to be created. That is legal obligation as the Clerk of the Court.  As a matter of course, criminal charges of any type either felony or misdemeanor are initiated by the State’s Attorney or grand jury in our case management system.  Since the documents you filed with my office were not filed by either entity, and because some record was required, those filings were assigned case number 10-MR-212.  MR stands for “miscellaneous remedy.”  A wide variety of legal issues fall into that category and is often the case type used when it may not be clear where a party’s pleadings need to go.  In some circumstances, legal issues in an MR case are later assigned a different case type once the court has made a determination where they belong.

 

Footnote 3. This “package of information” was sent via US Mail, Return Receipt Requested, to Mr. Kelly, Mr. Baricevic, and Mr. Haida. I do not see anywhere in that letter where I express any intent for Mr. Kelly to take the contents and add them to an existing case file that likewise was never filed or authorized by me. http://markmccoy.com/wp/2010/08/20/corruption-in-st-clair-county-illinois-officials-refuse-to-prosecute-police-for-misconduct/

Copy of letter regarding Official Misconduct to Officials

Return receipts for letter of official misconduct

 

Footnote 4. The required fee for a Miscellaneous Remedy case, as specified in the Circuit Clerk’s website http://www.circuitclerk.co.st-clair.il.us/NR/rdonlyres/22141ED7-BD4F-4312-BA2A-A34A0584FDFA/0/FeeBook10122010.pdf

This schedule of fees is designed primarily to give you an outline of the fees that are required in civil and criminal cases.  The fees are established by the Illinois General Assembly and the Circuit Court Clerk is mandated to collect them.  The fees of the St. Clair County Circuit Court Clerk are set forth in the 705 ILCS 105/27.1a and set by resolution of the County Board of St. Clair County in order to continue in effect.
ADMINISTRATIVE REVIEW    MR      FILING FEE   $246.00 ANSWER FEE   $146.00

 

Footnote 5. Discussion on the matter found at http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

Petitioner has appeared twice before the Honorable Brian Babka in response to this case. In the first appearance, Petitioner made his case for bringing criminal complaints against officers Alemond and Nyman. He presented Judge Babka with a the case of Lindquist v. Friedman’s, Inc. 366 Ill. 232, 8 N.E.2d 625 upon which he relied for bringing charges without the assistance or intervention of a police agency or state’s attorney. Judge Babka reviewed the provided case and met again with the Petitioner in a subsequent status hearing. During that hearing, Judge Babka confirmed the holding in Lindquist as having not been overturned in any subsequent Illinois Appellate Opinions. That case did provide for a private individual bringing a criminal complaint before a “magistrate”.  Judge Babka was unclear on the applicability of the word “magistrate” regarding any judicial officers presently serving, stating that the word appears to apply only to cases of antiquity where such officers were hearing complaints brought before them for the purpose of issuing warrants of arrest. Although the law is still “good law”, it appears the avenue for presentment has changed over time with the elimination of the position of magistrates, therefore rendering this procedure ineffective. The State, appeared to, for some reason, have done away with the position of magistrate and instead instituted procedures for individuals wrestling with such issues to bring their complaints before police agencies or State’s Attorneys.

 

Footnote 6.      Statutory authority: 725 ILCS 5/111‑3725 ILCS 5/107‑9725 ILCS 5/102 8725 ILCS 5/107-7725 ILCS 5/102‑10725 ILCS 5/102‑13 Appellate Opinions: Lindquist v. Friedman’s, Inc. 366 Ill. 232, 8 N.E.2d 625 – Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809, People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657 – People v. United States Fidelity & Guaranty Co.,1925, 238 Ill.App. 112 – Kindred v. Stitt 51 Ill. 401, 1869 WL 5352 (Ill.) – Enright v. Gibson 219 Ill. 550, 76 N.E. 689 – People v. Parker, 374 Ill. 524, N.E.2d 11 – 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. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241 – 280 Ill. at 166, 117 N.E. at 434 – People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513; People v. Clark, 280 Ill. 160, 117 N.E. 432; Housh v. People, 75 Ill. 487  Secondary Authority: “Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970.”


Footnote 7. Case 10-MR-75 case dismissal by Babka

 

Footnote 8. People Ex Rel. Daley v. Moran, 94Ill. 2d 41, 445N.E. 2d, 67, Ill. Dec 790

http://www.leagle.com/xmlResult.aspx?xmldoc=198313594Ill2d41_1132.xml&docbase=CSLWAR1-1950-1985

http://il.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CSAC%5CIL%5C1983%5C19830104_0000003.IL.htm/qx

 

Footnote 9. http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

Judge Babka did make clear that the State’s Attorney has ultimate discretion to proceed with the prosecution of criminal offenses, yet the Petitioner maintained that before that discretion may be exercised he still has a right to have charges presented before the State’s Attorney can decline any prosecution. The Petitioner merely wishes to present his complaints before a person authorized by law to hear said complaints and act upon such information, upon a finding of probable cause, and issue warrants for the arrest of said persons so accused. At that point, the ministerial duty of the judicial official is satisfied and the procedural duties thereby shift to the State’s Attorney.

 

Footnote 10. http://www.leagle.com/xmlResult.aspx?xmldoc=198313594Ill2d41_1132.xml&docbase=CSLWAR1-1950-1985

people-ex-rel-daley-v-moran2372

It is a familiar and firmly established principle that the State’s Attorney, as a member of the executive branch of government, is vested with exclusive discretion in the initiation and management of a criminal prosecution. (People ex rel. Davis v. Vazquez (1982), 92 Ill.2d 132, 150; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 539; Ill. Rev. Stat. 1981, ch. 14, par. 5.) That discretion includes the decision whether to prosecute at all, as well as to choose which of several charges shall be brought. (People v. Pankey (1983), 94 Ill.2d 12, 16; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 539.) The Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111-2(a)) provides that “[a]ll prosecutions of felonies shall be by information or by indictment,” and that “[n]o prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109-3 and at that hearing probable cause to believe the defendant committed an offense was found.” An information, of course, is a formal presentation of a criminal charge against a defendant by the People’s representative: the State’s Attorney. (People v. Gahagan (1938), 368 Ill. 475, 478; Ill. Ann. Stat., ch. 38, par. 111-1, Committee Comments, at 321 (Smith-Hurd 1980).) It “shall be signed by the State’s Attorney and sworn to by him or another.” (Ill. Rev. Stat. 1981, ch. 38, par. 111-3(b).) No authority is cited and we have found none authorizing a trial judge to order the State to file an information, or to file that charge on the court’s own motion upon the State’s Attorney’s refusal to do so.We consider such action by a trial judge to be an impermissible exercise by the judicial branch of powers belonging exclusively to the executive and in direct contravention of the applicable statutory mandates. (Ill. Const. 1970, art. II, sec. 1; Ill. Rev. Stat. 1981, ch. 14, par. 5; Ill. Rev. Stat. 1981, ch. 38, par. 111.) A trial judge cannot, consistent with the constitutional principle of separation of powers, assume the role of prosecutor and determine which criminal offense shall be charged and thereafter proceed with disposition of that offense over the State’s objection, and the court had no authority to direct that the information be filed and then accept the guilty pleas thereto. (People ex rel. Elliott v. Covelli)

 

Footnote 11. THE PEOPLE EX REL. RICHARD M. DALEY 94 Ill.2d 41, 445 N.E.2d 270, 1983.IL.

On June 27, 1982, Johnnie and Charles Wilson were charged in a complaint for preliminary examination with aggravated battery. They allegedly struck a police officer in the head and upper body with a car jack. On July 9, the Wilsons appeared before respondent with their attorney. The complaining witness, Officer Willie Cochran, and an assistant State’s Attorney were also present.

 

Footnote 12. 725 ILCS 5/109‑3Sec. 109‑3.  http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072500050HArt%2E+109&ActID=1966&ChapterID=54&SeqStart=15000000&SeqEnd=15600000

Preliminary examination.) (a) The judge shall hold the defendant to answer to the court having jurisdiction of the offense if from the evidence it appears there is probable cause to believe an offense has been committed by the defendant, as provided in Section 109‑3.1 of this Code, if the offense is a felony.

 

Footnote 13. http://markmccoy.com/wp/2011/04/30/how-the-state-of-illinois-commits-fraud-when-charging-an-offense/

This section of the Constitution has been many times construed by this court, and it has been uniformly held that no person may be arrested and held to answer a charge of crime other than on asworn complaint before a judge or justice of the peace, or an indictment returned by a grand jury duly sworn and impaneled, or by presentment of not less than two members of such grand jury, or by verified information of the state’s attorney or Attorney General in certain cases.People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513;People v. Clark, 280 Ill. 160, 117 N.E. 432;Housh v. People, 75 Ill. 487; also, Smith-Hurd Rev.St.1931, c. 38, ss 662, 664, 711, 721. The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime.People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966),

The only other instance where an arrest or seizure is at all justifiable is where an offense is committed in the presence of the officer or person making the arrest, And in such case there must be a sworn complaint or indictment before trial to set the machinery of the law in motion.’ (Emphasis supplied.) 280 Ill. at 166, 117 N.E. at 434.

The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime. ( People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966), And even then a sworn complaint or indictment must follow before the court can take jurisdiction.’

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

 

Other Articles germane to this article:

http://markmccoy.com/wp/2011/01/07/in-the-beginning-a-preface-to-this-subject/
http://markmccoy.com/wp/2010/08/20/corruption-in-st-clair-county-illinois-officials-refuse-to-prosecute-police-for-misconduct/
http://markmccoy.com/wp/2011/03/28/my-pursuit-of-criminal-charges-against-fairview-heights-police-for-beating-me/
http://markmccoy.com/wp/2010/09/20/email-tete-a-tete-between-myself-and-brendan-kelly-circuit-clerk-of-st-clair-county/
http://markmccoy.com/wp/2011/04/13/an-open-letter-to-brendan-kelly-state%E2%80%99s-attorney/
http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

Tagged , , ,

Memorandum of law regarding private individual making criminal complaint and the former office of magistrate in Illinois.

MEMORANDUM OF LAW

QUESTIONS PRESENTED

  1. Can a private individual who alleges charges of a criminal offense present those charges directly to a court without the aid or intervention of a police agency or State’s Attorney?
  2. Where the word “magistrate” was formerly used by Courts, as now there are no officers acting under that title proper, what has become of that office and the duties formerly exercised thereof?

BRIEF ANSWER

Yes, a private individual may bring charges alleging a criminal offense directly to a court without the aid or intervention of a police agency or State’s Attorney for the purpose of having the accused arrested to answer the charges.

The office of magistrate was reorganized under the 1970 Constitution of the State of Illinois to be Associate Judge as a reorganization scheme which did not dispense with the office, but merely renamed it.

STATEMENT OF FACTS

On February 17, 2009, the Petitioner, Mark McCoy, was detained and beaten by police officers acting for the City of Fairview Heights, Illinois, subsequent to a traffic stop. The Petitioner was arrested, confined for a period of time, and released after receiving traffic citations and an unverified complaint. During the time, beginning with the traffic stop and ending with his release, McCoy was victim of and/or witness to violations of law found in Illinois statutes, committed by the arresting officers, Joshua Alemond and Aaron Nyman.

The Petitioner was afforded a probable cause hearing before the Honorable Randall Kelly of the Twenty-First Judicial Circuit of St. Clair County, Illinois, per Petitioner’s challenge to the officer’s allegation of any probable cause to affect a traffic stop. Subsequently, all charges were dismissed by the Honorable Randall Kelly, save for one charge being dismissed on State’s motion.

Petitioner has persisted in attempting to bring charges against the officers, Joshua Alemond and Aaron Nyman, for violations of law suffered by or witnessed to by the Petitioner. Acting on information imparted to the Petitioner by the Honorable Randall Kelly, which Petitioner believes was not entirely accurate, verified criminal complaints were tendered to the Clerk of the Circuit Court of St. Clair County by delivering to the clerks the original complaints with notary seals and wet-ink signatures, which are found in the file for case 10-MR-212. The substance of the complaints are in conformance with the requirements set forth in Illinois Statutes 725 ILCS 5/111‑3.

At the time of this writing, Petitioner has attempted to present his complaints, or has inquired as to the procedure for presentment, with some St. Clair County Associate Judges, then Clerk of the Circuit Court and now State’s Attorney Brendan Kelly, Chief Judge John Baricivec, and former St. Clair County State’s Attorney Robert Haida. These individuals have either ignored or refused to hear the Petitioner’s claims. Petitioner believes that he is permitted to bring these charges before a judge so that he may swear out his complaint against officers Alemond and Nyman.

As a result of the foregoing, Then Clerk of the Circuit Court Brendan Kelly personally received Petitioner’s complaints under the promise that they would be properly filed. As a result, Mr. Kelly filed the present Miscellaneous Remedy Case 10-MR-212 on behalf of the Petitioner, within which the original complaints are filed. Petitioner has appeared twice before the Honorable Brian Babka in response to this case. In the first appearance, Petitioner made his case for bringing criminal complaints against officers Alemond and Nyman. He presented Judge Babka with a the case of Lindquist v. Friedman’s, Inc. 366 Ill. 232, 8 N.E.2d 625 upon which he relied for bringing charges without the assistance or intervention of a police agency or state’s attorney. Judge Babka reviewed the provided case and met again with the Petitioner in a subsequent status hearing. During that hearing, Judge Babka confirmed the holding in Lindquist as having not been overturned in any subsequent Illinois Appellate Opinions. That case did provide for a private individual bringing a criminal complaint before a “magistrate”.  Judge Babka was unclear on the applicability of the word “magistrate” regarding any judicial officers presently serving, stating that the word appears to apply only to cases of antiquity where such officers were hearing complaints brought before them for the purpose of issuing warrants of arrest. Although the law is still “good law”, it appears the avenue for presentment has changed over time with the elimination of the position of magistrates, therefore rendering this procedure ineffective. The State, appeared to, for some reason, have done away with the position of magistrate and instead instituted procedures for individuals wrestling with such issues to bring their complaints before police agencies or State’s Attorneys. The only remaining issue at this time was whether there are any “magistrates”, or persons empowered to hear the Petitioner’s complaints and issue arrest warrants.

Judge Babka did make clear that the State’s Attorney has ultimate discretion to proceed with the prosecution of criminal offenses, yet the Petitioner maintained that before that discretion may be exercised he still has a right to have charges presented before the State’s Attorney can decline any prosecution. The Petitioner merely wishes to present his complaints before a person authorized by law to hear said complaints and act upon such information, upon a finding of probable cause, and issue warrants for the arrest of said persons so accused. At that point, the ministerial duty of the judicial official is satisfied and the procedural duties thereby shift to the State’s Attorney.

DISCUSSION

Question 1. The issue before the court, as evidenced by the contents of this case file, is how to dispense with sworn criminal complaints charging violations of criminal law against two individuals. The complaints are sworn, or verified, by the complainant under oath and displaying a notarial seal.

Petitioner’s complaints conform to the statutory requirements for drafting a complaint. 725 ILCS 5/107‑9, and constitute a charge which is in writing and accuses persons with the commission of an offense. 725 ILCS 5/102 8 There is little doubt that what this Court has before it is written statements presented to a court accusing persons of commissions of offenses, which amount to a complaint which is verified, or sworn to under penalty of perjury, before persons authorized to administer oaths, as required. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809, People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657. A complaint, in writing and sworn to, is sufficient for the issuance of an arrest warrant. People v. United States Fidelity & Guaranty Co.,1925, 238 Ill.App. 112.

Before going further, we must ask this question. If the law provides for arrests, are there any who are exempt from arrests? Petitioner asserts that many believe police are exempt from arrests. The statutes provide some guidance in this respect.

725 ILCS 5/107-7 Persons exempt from arrest. (a) Electors shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during their attendance at election, and in going to and returning from the same. (b) Senators and representatives shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same. (c) The militia shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at musters and elections, and in going to and returning from the same. (d) Judges, attorneys, clerks, sheriffs, and other court officers shall be privileged from arrest while attending court and while going to and returning from court.

I fail to find anywhere in that section an exemption for police officers. It does specifically mention sheriffs, but police officers are municipal or state employees and not officers of the court. The statute even alludes to sheriffs being not exempt if they are not attending court or going to and from court. This means that if a police officer commits a crime there is no apparent statutory or common law exception for their not being subject to arrest, or burdening the complainant with first approaching an administrative agency for redress.

This is not to say that Petitioner has not sought redress through the State’s Attorney, judges, or police agencies. Brendan Kelly, while serving as Circuit Clerk, has first-hand knowledge of Petitioner’s complaints. Robert Haida, serving as State’s Attorney, and John Baricevic, Chief Judge, both received notice of Petitioner’s intent to file said charges. Petitioner also approached Judge Vincent Lopinot in open court, only to be told by Lopinot that he would not hear the complaints. Upon contacting the Illinois State Police, Petitioner was told that he must contact the FBI for violations of his Civil Rights. When contacting the St. Clair County Sheriff’s office, Petitioner was told that he must contact the State Police. When approaching the State’s Attorney’s office directly, Petitioner was denied an opportunity to speak with then State’s Attorney Robert Haida, being told by the person greeting him at that office that, “The State’s Attorney works for the police.” Judge Randall Kelly did say that a private individual may bring charges against anyone through a complaint, but his direction mistakenly placed the onus on the Circuit Clerk for receiving and filing that complaint. In jurisdictions wherein the applicable statutes or rules permit a private citizen to institute criminal proceedings by complaining directly to a judicial officer or to the grand jury, the right of a private citizen to institute such proceedings independently of the prosecuting attorney is clear. 66 A.L.R.3d 732. Illinois Statutes do not distinguish who may present a complaint before a court, but they likewise do not preclude private individuals from making a complaint.

In seeking an arrest of an individual for the commission of an offense, which precedes any formal prosecution by the State, Illinois Statutes provide for the issuance of an arrest warrant upon compliant when such complaint is presented to a court charging that an offense has been committed. 725 ILCS 5/107-9 (a) When this requirement has been satisfied, the court “shall” examine upon oath or affirmation the complainant or any witnesses. Id. [Emphasis Added] A warrant is usually issued by a judicial officer, justice of the peace, or magistrate upon a complaint made under oath. Kindred v. Stitt 51 Ill. 401, 1869 WL 5352 (Ill.) Illinois has likewise identified a duty owed by citizens to appear before a magistrate with knowledge of a crime so they may make a complaint for the purposes of having the accused arrested and held to answer. Enright v. Gibson 219 Ill. 550, 76 N.E. 689. Judicial officers possess the ultimate authority in determining whether probable cause exists for the purpose of issuing warrants of arrest, even if they are not consulted at the outset. Speaking to this issue, as to what course of action to follow when faced with a failure of a prosecuting attorney to act, such complaints may be presented to a magistrate for further investigation wherein the accused will be held pending review of a grand jury. People v. Parker, 374 Ill. 524, N.E.2d 11. It is not only that the Petitioner has tendered sworn complaints, but has likewise availed himself for examination as to their contents, which is required before a court may issue a warrant of arrest. 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. See also Village of Willowbrook v. Miller, supra. Failure of the person issuing a warrant of arrest to examine the complaining party, acting solely upon the information contained in the written complaint itself, will render the warrant defective for want of conformity with requirements that the complainant be examined under oath. People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. In all cases whatsoever, there must be a sworn complaint filed prior to trial before the law will support an arrest. 280 Ill. at 166, 117 N.E. at 434.

From these facts, it is clear that the Petitioner has satisfied all of the requirements necessary for bring charges against those whom he, on information and belief, committed an offense against the laws of Illinois, that being; complaints are in writing, are sworn to, have been presented to a court with Petitioner availing himself to be examined under oath. Therefore, there is no doubt that the right of an individual to bring charges as hereto described, directly before a court is without question.

Question 2. In light of the foregoing support of a private individual bring charges before a court; it has been brought to the Petitioner’s attention that the law reviewed by this Court in the case of Lindquist v. Friedman’s, Inc., supra., which has been determined to be good law, albeit antiquated, by the use of the word “magistrate” when identifying before whom complaints may be made, is in question as it applies to the Petitioner’s intentions. Illinois Statutes do not make reference to the word magistrate, but merely uses the word, “court” in identifying the source of where a complaint may be made. 725 ILCS 5/102 9 supra. Illinois Statutes define a court as a place where justice is administered, which also includes a judge. 725 ILCS 5/102‑10. As to the definition of a judge, the Statutes identify a person performing judicial functions by law. 725 ILCS 5/102‑13. Therefore, it is clear that when used in the Statutes, the words judge and court are essentially interchangeable. Where an individual may present a complaint to a court, he may present such charge to a judge. It is not unheard of for associate judges to examine complainants for the purpose of issuing warrants of arrest. See People v. Krumery, Supra, and the Illinois Constitution has been interpreted to say that no person may be arrested unless there be a sworn complaint presented before a judge, notwithstanding charges filed by information or indictment. People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513; People v. Clark, 280 Ill. 160, 117 N.E. 432; Housh v. People, 75 Ill. 487.

From this point, there is little reference or discussion regarding the relevance of the word magistrate in contemporary Illinois jurisprudence. However, when consulting the supreme law of the State of Illinois, that being the Constitution for the State of Illinois, we find some guidance. Prior to the adoption of that Constitution, the framers of that document convened under the auspices of a constitutional convention. Before quoting from the text of the organic law for the State, I felt it prudent, for contextual purposes, to also investigate and quote from the official record of that Convention’s proceedings, which are printed under the title “Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970.” Although such documents may be viewed at best as persuasive authority, whereas a constitution is the primary authority for all law for the State, the record of any convention wherein the intent of the framers can be studied should be invaluable in interpreting the application of the Constitution. As to the discussion of magistrates, relating to that Convention, I make reference to the following:

Proposal No. 403. Introduced by Mrs. Kinney and Mr. Peccarelli. Proposes that the title of magistrate be changed to s more suitable title. Referred to the Committee on the Judiciary. Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 133, Journal of March 3, 1970.

President Witwer: Judiciary.

Clerk: No. 403—Delegates H. Kinney and Peccarelli.

Proposes that the title of magistrate be changed to a more suitable title. Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 403, Verbatim Transcript of March 3, 1970.

Mr. Fay: Do you want me to finish the general statement? Fine.

I might say here, you all know that the supreme court at the present time has exercised some vertical assignment. We do want to—want not to provide any vertical assignment for a magistrate, however, so that we won’t have—we won’t contemplate any magistrate being on the appellate court or on the supreme court. We do—and we are not before you now to give you our idea of what we are going to do with respect to magistrates, but I will just let you know that the committee is giving serious consideration, at least, to changing the word—calling a magistrate something other than “magistrate.” We might very well call him associate judge, particularly if that label becomes available by virtue of our doing away with the distinction between associate circuit and circuit judge. That is a possibility; but for the present—the preliminary report—we are continuing to use the word “magistrate.” [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 686, Verbatim Transcript of April 15, 1970.

Mr. Nudelman: This won’t take long. Mr. Chairman, ladies and gentlemen, this section truly is noncontroversial. As a matter of fact, it’s so noncontroversial I haven’t even prepared anything for you. It’s on page 106; it relates to the term of office for judicial officers, and the actual change—the only actual change—as you will note, is the inclusion of the old office of magistrate, which, for the purpose of this section, we have renamed “associate judge,” and we include a term of office for the new “associate judge” of four years. The term of office for the supreme court, the term of office for the appellate court, and the term of office for the circuit court remains as it was. We saw no reason to change, nor were any changes suggested to us. Relative to magistrates or the new “associate judges,” if you will, several suggestions were made—one, that they continue to serve at the pleasure of the circuit judges, as is the case now.

Another suggestion was made that they be given longer tenure than we decided to give them; for example, the suggestion was made that they be given tenure of six years, other suggestions

were made that they run on a retention ballot from time to time, and others that they be given life-time tenure and be removed only for cause.

I can’t tell you that with any honesty that we rejected any suggestion strongly in favor of any other suggestion, but the consensus was that they should have some tenure; and, by accommodation, the committee arrived at four years. We think it’s something less than the term of circuit judges because they are, in fact, something less than circuit judges. That may have been the basic rationale, just as the circuit judges are something less than appellate and supreme judges, and, ergo, their terms are something less than appellate and supreme judges.

So the only real effect of the change in this section was the addition of the magistrate, now called “associate judge,” if you will, and giving him tenure of four years, and then, of course, subject to reapportionment, by the circuit judges. And if there are any questions, I would be happy to discuss them with you. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2213 – 2214, Verbatim Transcript of July 1, 1970.

Mr. Nudelman: Magistrates are not—if you buy our proposal to change the name of magistrate to associate judges—associate judge, rather—don’t be concerned with the word “magistrate” any more, because we have done away with it. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2219, Verbatim Transcript of July 1, 1970.

Mr. Fay: Mr. President and fellow delegates, we are now at section 14 which appears on page 13 of your book and relates only to terms of office. It does not change the terms of the judges of the supreme and appellate courts, which remains at ten years; it does not change the terms of the circuit judges which remains at six years; and, as you know, we contemplate that the presently existing associate circuit judges will become circuit judges, so their term will remain at six years; but it does provide, for the first time, for a term for the magistrates, which we now call associate judges—it gives them a term of four years. As far as I know, there are no pending amendments to this section and I would move its adoption on first reading and submission to Style and Drafting. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2260, Verbatim Transcript of July 2, 1970.

Mr. Fay: … Now, we go on and provide that there shall be one circuit court for each judicial circuit which shall have such number of circuit and associate judges—that phrase right there is intended to mean magistrates—we’ve named them now associate judges—as may be prescribed by law. In other words, there is no change in that part. It leaves it to the legislature to decide how many judges there will be.… [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2277, Verbatim Transcript of July 2, 1970.

Mr. Fay: … Then the last—and this is somewhat controversial because the minority takes a different position—we provide—and this is a change from the existing setup—we recommend that the supreme court be given the power to provide by rule for the matters to be assigned to the associate judges. These are the old magistrates. This is in line with the thinking of the committee that we must look to the supreme court to really guide and administer the operation of the judicial system.

Now we have some schedule provisions in there. The first one is that on the effective date of this article, associate judges and magistrates shall become circuit judges and associate judges respectively of their circuit courts, and all laws and rules of court theretofore applicable to associate judges and magistrates shall remain in force and be applicable to the persons in their new offices until changed by the General Assembly or the supreme court as the case may be. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2277 – 2278, Verbatim Transcript of July 2, 1970.

Mr. Fay: … Now over on page 46 you will see set forth in our committee report the rationale for the elimination of the present associate circuit judge distinction, and this is a point that we had great unanimity of opinion from those who testified before us. We feel that this is desirable—desirable flexibility—to leave this should eliminate the distinction between the presently associate circuit judges and the circuit judges. There will still be two classes though—there will be two classes of judges, because we are elevating the magistrates and we are going to call them associate judges, and they will not be on the same rank with the circuit judges. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2278, Verbatim Transcript of July 2, 1970.

Mr. Fay: … There is no reason now why, when we elevate the magistrates, that the magistrates can’t do the same and provide courts— hold courts in the smaller communities. I know this has been a problem. Delegate Jim Parker talked to us about this. There are some of these small towns who’ve lost their justices of the peace, and they don’t have any judge to turn to; even on small things like traffic tickets, they have to go to the county seat. But I don’t think freezing into the constitution the requirement of one circuit judge per county is the answer to that.

Now, on page 52 you will see the rationale for the elimination of the magistrate classification and changing the magistrate title to associate judge. This is another matter that our committee is in unanimous agreemention [sic]. We have tried consistently to elevate the magistrates. We, as you know, have required them now to be lawyers, and we are giving them what we think is a better title; and we hope that we would give them better jurisdiction by permitting the supreme court to provide their jurisdiction through rule. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Page 2278 – 2279, Verbatim Transcript of July 2, 1970.

A detailed analysis on the treatment of magistrates is found in the Committee Proposals. Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Committee Proposals. Page 992 – 997.  Elimination of Magistrate Classification and Changing Magistrate Title to Associate Judge. Particularly illuminating is a dissent found at Page 997, denoted with section 56a, which is a dissent on other specifics of the reorganization of the judiciary, but nonetheless specify the powers of the former title of “magistrate”, now associate judge, with issuing arrest warrants.

*Dissent: Delegates Rachunas and Kinney respectfully dissent from those provisions which would permit (1) legislative reduction or elimination of the minimum allocation of judges between Chicago and suburban Cook County and (2) the election of all circuit judges from Cook County at large. Delegate Kinney suggested the language allowing the legislature to divide  circuits into smaller units for election or selection only, but is not seeking to enlarge elective areas in any circuit. She would also require that any division in Cook County apply to both the city and the suburban area, not just to one or the other. Based on testimony of downstate delegates concerning distances, emergency needs, and the low volume of judicial business in some counties, she suggests it may be acceptable to smaller counties to provide for a “circuit or associate judge” from each county other than Cook, the term “associate judge” being used to denote the judicial officer presently classified as a magistrate, with limited jurisdiction, but empowered to issue arrest and search warrants and hold preliminary hearings. [Emphasis Added] Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970, Committee Proposals. Page 997. Dissent to proposed amendment to Article VI of the Illinois Constitution relating to the Judicial Department.

The fruit borne from that Convention culminates in the Transition Schedule of the 1970 Constitution which reads:

Section 4. Judicial Offices

(a)  On the effective date of this Constitution, Associate Judges and magistrates shall become Circuit Judges and Associate Judges, respectively, of their Circuit Courts.

All laws and rules of court theretofore applicable to Associate Judges and magistrates shall remain in force and be applicable to the persons in their new offices until changed by the General Assembly or the Supreme Court, as the case may be.

(b)  (Removed)

(c)  (Removed)

(d)  Until otherwise provided by law and except to the extent that the authority is inconsistent with Section 8 of Article VII, the Circuit Courts shall continue to exercise the non-judicial functions vested by law as of December 31, 1963, in county courts or the judges thereof.

Illinois Constitution of 1970.

CONCLUSION

Question 1. The Petitioner has drafted complaints alleging the commission of offenses against two individuals who so happen to also be employed as police officers for the City of Fairview Heights, Illinois. These complaints are sworn to, in accordance with law. He has attempted to bring these complaints to the attention of judicial officers, police agencies, and officers empowered with the authority to act on such complaints. There is no requirement, for anyone wishing to allege the commission of an offense, to present them to anyone other than a judicial officer empowered to issue warrants of arrest. Illinois law makes no distinction as to who may file a complaint, and authority has been presented which affirms the right of private individuals to pursue such remedy. Arrest for a crime, and prosecution of a crime, involve two different procedures. Arrests are initiated by sworn complaint, indictment, or information and issued by judicial officers, be they called judges or magistrates. For the purpose of this memorandum, the words judge (both associate or circuit levels), magistrates, and courts are interchangeable. A sworn complaint presented to a court, which is sworn to under penalty of perjury, requires the judge to examine the complainant under oath and upon a finding of probable cause must issue a warrant for the arrest of the person or persons therein named.

Question 2. Prior to the Illinois Constitution of 1970, magistrates were recognized as judicial officers empowered with, among other things, examining complainants alleging offenses and issuing warrants of arrest. During the Constitutional Convention of 1970, it was proposed to change the title of magistrate to that of associate judge, due in-part to negative connotations associated with that office. The duties of magistrate were not altered in any way, but the final effect of such re-titling exists in the Transition Schedule of that Constitution. There is even evidence that the magistrate, or associate judge, level of the judiciary remained in place, but underwent a simple name change. Among those duties, lies the responsibility to issue warrants of arrest. What was once a judicial office known as magistrate, is now the same office known as associate judge. Therefore, at a minimum, what some pre-1970 cases refer to as magistrates when speaking to the issuance of warrants of arrest, are now associate judges who retain and possess all of the same powers exercised by magistrates. Associate judges in Illinois are empowered to hear all complaints, even those presented by private individuals, for the purpose of establishing probable cause under the Constitution, and issuing warrants for the arrest of said individuals.

Respectfully submitted,

Mark R. McCoy, Petitioner

 

Petitioner’s Exhibit A

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5. Elimination of Magistrate Classification and Changing Magistrate Title to Associate Judge

It is an unfortunate fact that the public views the magistrate as the same as, or as a near blood relative to, the old justice of the peace and police magistrate of the pre 1964 era. We have been urged by the representatives of the Illinois Circuit Court Magistrates Association (does not include Cook County Magistrates) to eliminate the title of magistrate. The urging was in fact a plea to the effect that “whatever else you do or do not do, eliminate the title of magistrate”.

The Committee on Constitutional Convention Proposals of the Illinois Judicial Conference, and a number of non-delegate and delegate witnesses, have recommended that the title “magistrate” be changed to “associate judge”. This keys in with that Committee’s recommendation to eliminate the associate judge classification and create a single class of circuit judge. This Committee agrees, because of the negative image created by the title, its damaging effect upon judicial morale, and the consequent unfortunate impact upon the judicial system.

Lest the Committee be charged with inconsistency in keeping the magistrate level of the circuit court judiciary, although changing the name to associate judge, while at the same time eliminating the original associate judge classification for reasons which may appear equally relevant to a complete abolition

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of the magistrate or associate judge classification, we suggest that the issues, though somewhat similar, are not parallel. As a preliminary observation, the Committee notes that some testimony was offered on, and the Committee on its own initiative considered, the desirability of a single class of trial judiciary in the Circuit Court. There is clear merit to such a proposal.

The Committee concluded, however, that there is a sound and defensible basis for retaining the magistrate (associate judge) level of judiciary, notwithstanding that it may to some degree perpetuate the negative public image of these judicial officers as being of lesser or inferior status to circuit judges, and may also perhaps risk the “class” distinctions which presently mar, to some extent, the relations of circuit and associate judges.

The principle difference that this Committee sees is in the potential of the magistrate (associate judge) class as a training and proving ground for lawyers seeking a career in judicial service. This is not to suggest that the magistrate’s responsibilities are not difficult or important. Quite the contrary. This Committee has said, and affirms, that magistrates engage in what may be the most important aspects of judicial service. By pure volume magistrates handle most of the judicial business in many circuits. Legal training and judicial competence at this level of service are critical, and it is hoped that magistrates will be appointed who possess the characteristics

1970 COMMITTEE PROPOSALS 993

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essential for competent judicial service. Having said this, however, the problem still remains of attracting the qualified lawyer to a type of service which requires a total commitment to a massive number of routine cases, as well as to the more unusual, but less frequent, litigation.

Many lawyers, hopefully, will look to this service as an opportunity for advancement into higher levels of judicial service. Indeed this was one of the original justifications for the establishment of the magistrate class. Statistics as to how many magistrates since 1964 have actually moved up the ladder are not easy to come by, but the hope persists that this service will indeed be the stepping stone for advanced judicial service.

One way of making the position attractive is to increase the salary.

This has been done several times since 1964. Another is to give the office a more prestigious title. This proposal seeks to do so.

In the last analysis what this Committee is saying is that many qualified lawyers who cannot or do not wish to compete for higher level judicial offices may be receptive to starting their careers at the level of magistrate. The Committee hopes to encourage this movement and looks upon its recommendation for a change in name from “magistrate” to “associate judge” as a worthwhile step in that direction.

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The recommended change in title does not itself make any change in the existing method of selection of magistrates.

That matter is dealt with in Section 12.

6. Supreme Court to Determine Matters Assignable to Magistrates

This Section now provides that the General Assembly shall limit or define the matters to be assigned to magistrates.

All bar association proposals for constitutional judicial revision offered in 1953, 1955, 1957 and 1961 gave this authority to the Supreme Court on the logical premise that the kinds of cases that judicial officers should hear was more properly a matter of internal judicial administration than of legislative concern.

Somewhere in the compromise that resulted in the 1961 adoption (as also happened in the 1957 proposal) the authority of the legislature was substituted for the Supreme Court.

The legislature has by detailed legislation defined the matters to be heard by magistrates. (Ch. 37, Ill. Rev. Stat. Sec. 621 et seq., 1969). Additionally, the legislature has authorized the Supreme Court by rule to specify additional categories of matters assignable to magistrates (Id. Section 627). The Supreme Court has responded by adopting Rule 295.

Given this history, and the relationship of matterthis [sic] to the administrative authority of the Supreme Court, it appears to this Committee that the power to determine matters assignable to

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magistrates should reside in the Supreme Court. One is hard put to find any truly plausible basis for insistence upon legislative authority in this area.

7. Change in Language Re Masters in Chancery

Section 8 provides that “There shall be no masters in chancery or other fee officers in the judicial system”. The Committee proposal eliminates the words “masters in chancery or other” keeping the ban on fee officers.

In the Committee’s view the change is more stylistic than substantive. The change will not restore the master in chancery fee system which prevailed prior to the new Judicial Article since as a fee officer the master would be barred under the language which is retained. If the State wishes to provide

a salaried judicial officer to perform the functions of the old master in chancery on a non-fee basis to litigants, it should be permitted to do so. It is quite probable that such authority presently exists but the deletion of the specific words is deemed desirable for two reasons: (1) the reference to masters in chancery is a redundancy as it is included in the more generic

term “fee officers”, and (2) the employment of the title “master in chancery” may appear to be barred even if the title is used for a salaried rather than a fee officer.*

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*Dissent: Delegates Rachunas and Kinney respectfully dissent from those provisions which would permit (1) legislative reduction or elimination of the minimum allocation of judges between Chicago and suburban Cook County and (2) the election of all circuit judges from Cook County at large. Delegate Kinney suggested the language allowing the legislature to divide circuits into smaller units for election or selection only, but is not seeking to enlarge elective areas in any circuit. She would also require that any division in Cook County apply to both the city and the suburban area, not just to one or the other. Based on testimony of downstate delegates concerning distances, emergency needs, and the low volume of judicial business in some counties, she suggests it may be acceptable to smaller counties to provide for a circuit or associate judge” from each county other than Cook, the term “associate judge” being used to denote the judicial officer presently classified as a magistrate, with limited jurisdiction, but empowered to issue arrest and search warrants and hold preliminary hearings.


How the State of Illinois commits fraud when charging an offense.

If you have been issued a traffic ticket or charged with a misdemeanor in Illinois and appeared in court or failed to appear and had a bench warrant issued, chances are you have not been charged with an offense and have no duty to appear in court to answer the charges. If you have pleaded or were found guilty for a traffic infraction or misdemeanor then you probably pleaded to a nonexistent charge. If either is the case, I recommend you contact me. There may be a way to get your judgment voided since the court did not have jurisdiction in the first place. I have seen hundreds of traffic tickets, as well as a fair share of complaints and informations. I have yet to see a warrant issued by a judge and supported by affidavit, or an information signed and swore to by the State’s Attorney. Traffic tickets are not complaints and you have no obligation to appear in court for a traffic ticket.

I have written numerous times on the issue of defective charges issued by police and prosecutors in Illinois, particularly St. Clair County. I will walk through the lawful requirements for charging an offense and how the State either willfully or ignorantly files insufficient and unlawful charges against individuals. For there to be a lawful charge, there must first be jurisdiction. This article will deal with Constitutional issues as well as statutory requirements and appellate court opinions on the subject. I think you will find that if you have been charged with a traffic or misdemeanor offense, maybe even a felony, you have not been lawfully charged with an offense and have voluntarily appeared to answer for non-existent charges.

Before we even get to what the “law” says, we must understand the basic protections afforded by the Constitutions. Let’s begin with the Fourth Amendment to the US Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (This means NO warrants, including bench warrants, traffic warrants, etc.)

Now we move on to Article I, Section 6 of the Illinois Constitution (Bill of Rights):

SECTION 6. SEARCHES, SEIZURES, PRIVACY AND INTERCEPTIONS

The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized. (This is substantially a recitation of the Fourth Amendment, except it specifies an affidavit as opposed to an oath. This may be a fine distinction, but an oath is given orally and affidavit is in writing. The Fourth Amendment provides for both whereas Illinois limits warrants to being supported by a written affidavit.

There are generally 3 ways to charge an offense; by complaint, information, and indictment. This is not to say that you cannot be arrested without them. It has been held that if a criminal offense is committed in the presence of a police officer or a private citizen they may make an arrest. Either a police officer or private citizen may make an arrest with a warrant. Only a police officer can make an arrest based on probable cause. Here is what the courts have said regarding these options in relation to the protections of the Constitutions:

This section of the Constitution has been many times construed by this court, and it has been uniformly held that no person may be arrested and held to answer a charge of crime other than on a sworn complaint before a judge or justice of the peace, or an indictment returned by a grand jury duly sworn and impaneled, or by presentment of not less than two members of such grand jury, or by verified information of the state’s attorney or Attorney General in certain cases.People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513;People v. Clark, 280 Ill. 160, 117 N.E. 432;Housh v. People, 75 Ill. 487; also, Smith-Hurd Rev.St.1931, c. 38, ss 662, 664, 711, 721. The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime.People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966),

A Citizen has the power of arrest reflected in the Illinois Compiled Statutes:

(725 ILCS 5/107‑3) (from Ch. 38, par. 107‑3) Sec. 107‑3. Arrest by private person.  Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed. (Source: Laws 1963, p. 2836.)

(725 ILCS 5/107‑9) (from Ch. 38, par. 107‑9)  Sec. 107‑9. Issuance of arrest warrant upon complaint. (e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.

To this point, it is clear that both the US Constitution and Illinois Constitution state, as supported by the courts, that no arrest can be made without a warrant, and for there to be a warrant there must be a sworn complaint; except in cases where a police officer personally witnesses the crime or has probable cause, or when a private person reasonably believes an offense other than an ordinance violation is being committed. Pay attention to “is being committed”. This means the offense must be in progress and not a thing of the past or future. A private person cannot arrest someone because of what they did or are about to do. That is the extent of the power of arrest possessed by the State. Illinois takes this one step further, which is where I believe arrests by so-called “bench warrants” come into play. The statutes say:

(725 ILCS 5/107‑2) (from Ch. 38, par. 107‑2) Sec. 107‑2. (1) Arrest by Peace Officer. A peace officer may arrest a person when:  (a) He has a warrant commanding that such person be arrested; or (b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction;

Police do not know the law. They only do what they are told. If a police officer is handed a bench warrant he does not question whether the warrant has been lawfully issued pursuant to the Constitution. If he checks his computer and sees a notice about a bench warrant he does not review the warrant for conformity with the law. He does not review the warrant for the judge’s signature or whether there is a corresponding affidavit. He is operating on “reasonable grounds” that a warrant has been issued because of the bench warrant. This can be dangerous, because without a warrant there is no arrest, regardless of the police officer’s belief. People have a right to be secure in their persons, papers, and possessions and if unlawfully assaulted in this respect have a natural right to defend themselves and their property, even from police. I expound on this premise in this article and will not revisit the specifics here.

Before going further, we must ask this question. If the law provides for arrests, are there any who are exempt from arrests? I know many believe police are exempt from arrests when in the performance of their duties, but are they? Let’s visit the statutes again where we find some guidance.

(725 ILCS 5/107‑7) (from Ch. 38, par. 107‑7) Sec. 107‑7. Persons exempt from arrest. (a) Electors shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during their attendance at election, and in going to and returning from the same. (b) Senators and representatives shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same. (c) The militia shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at musters and elections, and in going to and returning from the same. (d) Judges, attorneys, clerks, sheriffs, and other court officers shall be privileged from arrest while attending court and while going to and returning from court. (Source: Laws 1963, p. 2836.)

I fail to find anywhere in that section an exemption for police officers. It does specifically mention sheriffs, but police officers are municipal or state  employees and not officers of the court. The statute even alludes to sheriffs being not exempt if they are not attending court or going to and from court. This means that if a police officer commits a crime in the presence of a private individual they may make an arrest of that police officer. This would include the police officer using excessive force or other crime committed under the pretense of effecting an arrest.

So now we know there can be no arrest without a warrant or unless a crime is committed in the presence of a police officer or other individual, or in cases where police have reasonable suspicion that a crime has been, is being, or will be committed. If there is a warrant, it must be sworn to and in writing.

The only other instance where an arrest or seizure is at all justifiable is where an offense is committed in the presence of the officer or person making the arrest, And in such case there must be a sworn complaint or indictment before trial to set the machinery of the law in motion.’ (Emphasis supplied.) 280 Ill. at 166, 117 N.E. at 434.

The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime. ( People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966), And even then a sworn complaint or indictment must follow before the court can take jurisdiction.’

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

By the common law, and according to the holdings in many of the states, a private person may justify an arrest by showing that a felony had been actually committed and that he had reasonable grounds to suspect that the person arrested committed the felony. 2 Am. & Eng. Ency. of Law (2d Ed.) 885; 3 Cyc. 885, and authorities therein cited. By section 4 of division 6 of our Criminal Code (Hurd’s Rev. St. 1903, c. 38, § 342, p. 677), it is provided: ‘An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.’ From the reading of this statute it would seem that there is pointed out a distinction between the power of a citizen to make an arrest and that of an officer. A citizen may arrest when an offense is committed or attempted to be committed in his presence. So, too, may an officer under the same circumstances. But an officer may also arrest where the criminal offense has in fact been committed and he has reasonable grounds for believing the person arrested has committed it. But this latter power is not extended to a citizen by the statute. Enright v. Gibson, 219 Ill. 550, 76 N.E.689

There are, no doubt, cases which hold that private individuals may arrest on probable cause; but there are authorities which hold the contrary rule, and in the conflict of authority we are left free to adopt the rule which seems to be most consonant with reason and the public interest; and to prevent breaches of the peace, and even bloodshed, we think that a private individual should not be justified unless a crime had been committed and the person arrested shall be shown to be the guilty party.’ We think this case a clear announcement of the rule in this state that, before a private citizen can justify an arrest made by him, he must show not only that a crime has in fact been committed, but that the person arrested is guilty of the crimeEnright v. Gibson, 219 Ill. 550, 76 N.E.689

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. Criminal Law211(1); Criminal Law212

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. Criminal Law 211(3)

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. Criminal Law211(1)

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.Criminal Law 211(1)

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. Criminal Law 211(3); Criminal Law394.4(9)

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. Criminal Law 211(1)

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. Criminal Law 217

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. Criminal Law211(1); Criminal Law 212

For there to be a lawful arrest there must first be an arrest warrant supported by a sworn complaint, information, or indictment; or a police officer must have reasonable suspicion that a crime has been committed or he or a private individual must have witnessed the crime personally. For there to be a complaint or information, there must be a supporting affidavit or oath. Even if arrested by a police officer witnessing the offense there must be a sworn complaint or indictment supported by affidavit or oath. Regardless, in ALL CASES, there MUST BE A SWORN COMPLAINT SUPPORTED BY AFFIDAVIT OR OATH. If either of these is missing from a charge the court has NO jurisdiction and the charge cannot stand.

CHARGING AN OFFENSE

We also need to examine the ways an offense can be charged. These are complaint, information, and indictment. Let’s examine the requirements for each.

(725 ILCS 5/Art. 111 heading)

ARTICLE 111. CHARGING AN OFFENSE

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072500050HTit%2E+IV&ActID=1966&ChapterID=54&SeqStart=19700000&SeqEnd=25100000

(725 ILCS 5/111‑1) (from Ch. 38, par. 111‑1)

Sec. 111‑1. Methods of prosecution.

When authorized by law a prosecution may be commenced by:

(a) A complaint; [1]

(b) An information; [2]

(c) An indictment. [3]

(725 ILCS 5/111‑2) (from Ch. 38, par. 111‑2)

Sec. 111‑2. Commencement of prosecutions.

(a) All prosecutions of felonies shall be by information or by indictment. No prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109‑3 and at that hearing probable cause to believe the defendant committed an offense was found, and the provisions of Section 109‑3.1 of this Code have been complied with.

(b) All other prosecutions may be by indictment, information or complaint.

(d) Upon the filing of an information or indictment in open court, the court shall immediately issue a warrant for the arrest of each person charged with an offense directed to a peace officer or some other person specifically named commanding him to arrest such person.

(f) Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct.

(Source: P.A. 90‑590, eff. 1‑1‑99.)

(725 ILCS 5/111‑3) (from Ch. 38, par. 111‑3)

Sec. 111‑3. Form of charge.

(b) An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State’s Attorney and sworn to by him or another [4].

A complaint shall be sworn to and signed by the complainant [5];

provided, that when a peace officer observes the commission of a misdemeanor and is the complaining witness, the signing of the complaint by the peace officer is sufficient to charge the defendant with the commission of the offense [6],

and the complaint need not be sworn to if the officer signing the complaint certifies[7]

that the statements set forth in the complaint are true and correct and are subject to the penalties provided by law for false certification [8]

under Section 1‑109 of the Code of Civil Procedure and perjury under Section 32‑2 of the Criminal Code of 1961[9]

and further provided , however, that when a citation is issued on a Uniform Traffic Ticket or Uniform Conservation Ticket (in a form prescribed by the Conference of Chief Circuit Judges and filed with the Supreme Court), the copy of such Uniform Ticket which is filed with the circuit court constitutes a complaint to which the defendant may plead [10],

unless he specifically requests that a verified complaint be filed [11].

[1]Complaint – 725 ILCS 5/102 9 “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense.

[2]Information – 725 ILCS 5/102 12 “Information” means a verified written statement signed by a State’s Attorney, and presented to a court, which charges the commission of an offense.

[3]Indictment – 725 ILCS 5/102 11 “Indictment” means a written statement, presented by the Grand Jury to a court, which charges the commission of an offense.”

[4]There is a little confusion on this as to whether anyone can swear to an information signed by the State’s Attorney. I have seen informations sworn to by the police officer, but does “another” mean “anyone else”? In this sense, “another” means someone else in the State’s Attorney’s office, such as an Assistant State’s Attorney. Looking at footnote [5] you will see that for a complaint, the lowest form of charge there is, it must be signed and sworn to by the complainant. Why would a complaint not be signed by the complainant and sworn to by “another”? Because the person making the charge is the one subject to the penalties of perjury so they must sign and swear. With the State’s Attorney’s office, they are working under the same oath of office and extensions of the State’s Attorney. Therefore, duly appointed deputies of the State’s Attorney, Assistant State’s Attorneys, can swear as though it were the State’s Attorney himself. For other guidance on this, we look at another State, Florida, and its requirements. http://www.joffelaw.com/state-rules/3-140.html

(g) Signature, Oath, and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.

[5]As distinguished from an information, the complaint must be signed and sworn to by the complainant. There is no provision for a complaint being signed by the complainant and sworn to by another individual.

[6]Notice that it specifies the “commission of a misdemeanor” and not a felony. It is saying that if the police officer is the complaining witness and directly observes the commission of a misdemeanor, his signature on the complaint is sufficient to charge the defendant with the commission of the offense. However, remember that a complaint must be sworn to. This statement is misleading, as it is referring to misdemeanors which are civil in nature, and not criminal. Read on.

[7]It goes on to say the complaint need not be sworn to if the officer certifies, which is not the same as verification. Certification is a method used in civil proceedings to show notice was served to parties. It is different from verification. “Although statute provided that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, the verification provided by statute was not a substitute for the affidavit required by “date of mailing” rule, providing that service is proved, in case of service by mail, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail; statute allowed for verification by certification unless otherwise expressly provided by rule of the Supreme Court. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.”

“By its express terms, statute governing verification by certification provides that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, but statute does not indicate that such verification is an acceptable substitute when a statute, other than the Code of Civil Procedure, requires a document to be sworn to or verified under oath. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.”

Notice how it refers to the Code of Civil Procedure. In the case cited last, it says that certification is not acceptable when a document is required to sworn to or verified under oath, as with a criminal complaint. Certification and verification are two different things, certification belonging to civil proceedings and verification being a requisite for criminal charges.

[8]Again, it is talking a false certification, which applies to civil matters.

[9]Section 1-109 of the Code of Civil Procedure found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073500050HArt%2E+I&ActID=2017&ChapterID=56&SeqStart=100000&SeqEnd=1100000

states “(735 ILCS 5/1‑109) (from Ch. 110, par. 1‑109)

Sec. 1‑109. Verification by certification. Unless otherwise expressly provided by rule of the Supreme Court, whenever in this Code any complaint, petition, answer, reply, bill of particulars, answer to interrogatories, affidavit, return or proof of service, or other document or pleading filed in any court of this State is required or permitted to be verified, or made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section.

Whenever any such pleading, affidavit or other document is so certified, the several matters stated shall be stated positively or upon information and belief only, according to the fact. The person or persons having knowledge of the matters stated in a pleading, affidavit or other document certified in accordance with this Section shall subscribe to a certification in substantially the following form: Under penalties as provided by law pursuant to Section 1‑109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.

Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath.

Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.

(Source: P.A. 83‑916.)”

All that Section 1-109 does is lay down the use of certification in civil matters. It is the rule by which certification may be used, and only in accordance with Civil Procedure. Section 32-2 of the Criminal Code goes on to define what perjury is and the penalties for committing. It is found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+32&ActID=1876&ChapterID=53&SeqStart=74000000&SeqEnd=77100000

and states “(720 ILCS 5/32‑2) (from Ch. 38, par. 32‑2)

Sec. 32‑2. Perjury.

(a) A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.

(b) Proof of Falsity.

An indictment or information for perjury alleging that the offender, under oath, has made contradictory statements, material to the issue or point in question, in the same or in different proceedings, where such oath or affirmation is required, need not specify which statement is false. At the trial, the prosecution need not establish which statement is false.

(c) Admission of Falsity.

Where the contradictory statements are made in the same continuous trial, an admission by the offender in that same continuous trial of the falsity of a contradictory statement shall bar prosecution therefor under any provisions of this Code.

(d) A person shall be exempt from prosecution under subsection (a) of this Section if he is a peace officer who uses a false or fictitious name in the enforcement of the criminal laws, and such use is approved in writing as provided in Section 10‑1 of “The Liquor Control Act of 1934”, as amended, Section 5 of “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State”, approved July 17, 1941, as amended, or Section 2605‑200 of the Department of State Police Law (20 ILCS 2605/2605‑200). However, this exemption shall not apply to testimony in judicial proceedings where the identity of the peace officer is material to the issue, and he is ordered by the court to disclose his identity.

(e) Sentence.

Perjury is a Class 3 felony.

(Source: P.A. 91‑239, eff. 1‑1‑00.)”

[10]This statement deals with traffic and conservation offenses, which are not crimes, but rather administrative or civil offenses. The form of the traffic or conservation offense is determined by the Illinois Supreme Court and the Conference of Chief Circuit Judges. For the purposes of this discussion, the applicability of this statement pertains to notice and charging of an offense. The Illinois Supreme Court website where this is discussed is here http://www.state.il.us/court/SupremeCourt/Rules/Art_V/ArtV.htm#Rule%20552

Under “Notice to Appear” it states “(e) Notice to Appear. In all cases in which a defendant is issued a Notice to Appear under section 107–12 of the Code of Criminal Procedure of 1963, as amended (725 ILCS 5/107–12), and fails to appear on the date set for appearance, or any date to which the case may be continued, the court may enter an ex parte judgment of conviction against an accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed equal to the cash bail required by this article. Payment received for fines, penalties, and costs assessed following the entry of an ex parte judgment shall be disbursed by the clerk pursuant to Rule 529. The clerk of the court shall notify the Secretary of State of the conviction pursuant to Rule 552 and of the unsatisfied judgment pursuant to section 6–306.6(a) of the Illinois Vehicle Code, as amended (625 ILCS 5/6–306.6(a)). In lieu of the foregoing procedure, a summons or warrant of arrest may be issued.

Committee Comments

(December 5, 2003)

Supreme Court Rule 556 (“Procedure if Defendant Fails to Appear”) delineates several procedures if the defendant fails to appear after depositing a driver’s license in lieu of bond, executes a written promise to comply, posts bond or issued a notice to appear.

The rule provided that the court may “enter an ex parte judgment of conviction against any accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed the cash bail required by this article.” Rule 556 does not detail the specific costs and penalties, or their amounts, in the entry of ex parte judgments. The clerk is then left with deciding which costs, fees and additional penalties (and their amounts) should be applied. This is currently being determined on a county by county basis.”

Notice how this rule, pertaining to traffic and conservation offenses, deal with Civil Procedure. Nothing in this rule addresses criminal matters, and deals with offenses punishable by “fine only”, which is considered a “petty offense”. Also, notice the last few words of this section state that such a complaint constitutes a complaint to which the defendant may plead. This means the defendant, if willing to voluntarily plead to this type of complaint, waives all his rights to having a sworn complaint filed. Read carefully the next excerpt from an Illinois Appellate case where this very issue is addressed by the court. I am quoting from People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

“The charge against the defendant was initiated by an unverified ‘Illinois Uniform Traffic Ticket and Complaint.’ It was in the form prescribed by Supreme Court Rule, par. C, relating to ‘Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.’ (S.H.A. ch. 110, par. 102.1; also see: Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.) The defendant contends that the judgment should be reversed in thathe had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of ‘drag racing.’

 

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

 

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors, does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147 (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.; ch. 38, pars. 107-9, 107-11, 107-12 and par. 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483, 216 N.E.2d at pages 151 and 152

 

‘The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill.Rev.Stat.1965, chap. 38, par. 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‘procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.’ (S.H.A., chap. 38, pars. 107-11; 107-12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill.Rev.Stat.1965, chap. 38, par. 111-3(b).

 

‘In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.

 

‘The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged.’

 

The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill.Rev.Stat.1965, ch. 38, par. 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection.   People v. Harding, supra, 482, 483, 216 N.E.2d 147; Village of Willowbrook v. Miller, 72 Ill.App.2d 30, 34, 217 N.E.2d 809 (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.

People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

That is pretty conclusive. There need not be a verified complaint for the court to have jurisdiction or to commence a prosecution because you may waive all your rights to a verified complaint and therefore submit to the jurisdiction. However, you have a right to demand a verified complaint, and if so, the court must have one before it can sustain a prosecution. Notice the statement in bold where the court says the traffic ticket is a procedure for getting persons into court without the necessity and inconvenience of an immediate arrest. They use the defective traffic ticket to get you into court and submit to jurisdiction without the necessity and inconvenience of there being a sworn criminal complaint.

[11]This statement summarized the discussion on complaints, particularly traffic and conservation offenses, where you may plead to the defective complaint unless you demand that a verified complaint be filed. This means that the court will have to require the complainant to swear to a complaint and have an arrest warrant issued, something they are not likely to do. This would require the police officer who issued the ticket to come before a judge with a written complaint that has been sworn to before someone authorized to administer oaths. This is what the court referred to as the “necessity and inconvenience”.

Notice how all but indictment requires a verified written statement. That is because the Grand Jury is sworn in when empaneled and all of their indictments derive from that oath, therefore, they do not need to issue a verified statement since they are already sworn in. However, both a complaint and an information must be supported by written sworn statements. Let’s look at what “verification” means.

“Verification”, has been held by Courts of this State to mean a written statement made under oath or affirmation before any officer empowered to administer oaths and which, for any willfully false or misleading statement made thereof, subjects the affiant to pains and penalty of perjury. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809, People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.

Now, what is this “officer empowered to administer oaths”? Fortunately, the answer is readily available for that as well.

The power to administer oaths derives from the Legislature and codified at 5 ILCS 5/255 et. seq. (Oaths and Affirmations Act)

While we’re digging, let’s look at who the Oaths and Affirmations Act embraces as an “officer empowered to administer oaths”.

(5 ILCS 255/2) (from Ch. 101, par. 2)     Sec. 2. Affidavits and depositions. All courts, and judges, and the clerks thereof, the county clerk, deputy county clerk, the Secretary of State, notaries public, and persons certified under the Illinois Certified Shorthand Reporters Act of 1984 may, in their respective districts, circuits, counties or jurisdictions, administer all oaths of office and all other oaths authorized or required of any officer or other person, and take affidavits and depositions concerning any matter or thing, process or proceeding commenced or to be commenced, or pending in any court or before them, or on any occasion wherein any affidavit or deposition is authorized or required by law to be taken.

Before we go on, the statute goes on to even define a judge:

(5 ILCS 255/7)     Sec. 7. Definition of judge. For the purposes of this Act, “judge” means (i) an incumbent judge of the Illinois Supreme, Appellate, or Circuit Court, whether elected or appointed, (ii) a retired judge of the Illinois Supreme, Appellate, or Circuit Court, and (iii) an incumbent or retired associate judge of the Illinois Circuit Court. The term “judge” does not include a judge who has been convicted of a felony or who has been removed from office by the Illinois Courts Commission. (Source: P.A. 95‑498, eff. 1‑1‑08.)

This does not include municipal judges, administrative law judges, or circuit court judges.

So, what is the significance of “verification”? Let’s look:

(5 ILCS 255/5) (from Ch. 101, par. 5)     Sec. 5. All oaths, affirmations, affidavits and depositions, administered or taken as provided in this act, shall subject any person who shall so swear or affirm willfully and falsely, in matter material to any issue or point in question, to the like pains and penalties as are inflicted by law on persons convicted of willful and corrupt perjury. (Source: R.S. 1874, p. 725.)

Verification is required because if the person so swearing does so falsely they will be held to answer for willful and corrupt perjury. I believe this is why State’s Attorneys do not issue proper informations in many cases because the charges are fraudulent to begin with. I believe most of them know the law either does not apply to most people in most cases, or they know they do not have knowledge of facts sufficient to charge an offense and therefore cannot swear to them. They rely upon people’s ignorance of the law and the intimidation of them being assailed by a system that relies upon imprisonment and threats for its survival.

Now I will examine the various types of ways an offense is charged and the legal requirements and defects as they are used today.

What is a charge?

(725 ILCS 5/102‑8) (from Ch. 38, par. 102‑8)     Sec. 102‑8. “Charge”.  “Charge” means a written statement presented to a court accusing a person of the commission of an offense and includes complaint, information and indictment. (Source: Laws 1963, p. 2836.)

So a charge is a written statement in the form of a complaint, information, or indictment which charges an offense. Let’s examine what an “offense” is.

(725 ILCS 5/102‑15) (from Ch. 38, par. 102‑15)  Sec. 102‑15. “Offense”. “Offense” means a violation of any penal statute of this State. (Source: P.A. 76‑1796.)

Well, that seems clear enough, but what do they mean by “penal statute”? I do not find a definition for penal statute. There are various types of offenses, generally speaking. These include ordinance violation, petty offense, misdemeanor, and felony. What I do find is a definition for “penal institution”, which may shed light on what a penal statute is, since violators of penal statutes would be sentenced to a penal institution.

(720 ILCS 5/2‑14) (from Ch. 38, par. 2‑14)  Sec. 2‑14. “Penal institution”.  “Penal institution” means a penitentiary, state farm, reformatory, prison, jail, house of correction, or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses. (Source: Laws 1961, p. 1983.)

So it would appear that offenses only apply to those which include the possibility of someone being sentenced to serve time in some sort of jail or other form of confinement. For a good layman’s breakdown of the different types and their corresponding punishment I found the Illinois State Bar Association to be very helpful:

In Illinois, most traffic charges are categorized as either “petty” or “misdemeanor” offenses.

Petty offenses are those punishable by fine only. They include stop sign and red light violations, most speeding tickets, lane change violations and driving without insurance. Fines range from $1.00 to $1,000. Fines are either payable on the day assessed or on such later date as the court may direct.

Misdemeanors are divided into three (3) classes, referred to as Class A, B and C.

Class A is the most serious. It includes violations such as driving under the influence, speeding 40 or more miles over the posted speed limit, driving while license suspended or revoked, reckless driving or leaving the scene of an accident. The possible penalties for Class A misdemeanors are up to 364 days in jail and/or fines up to $2,500. Day for day good time credit applies to most misdemeanor jail sentences.

Class B misdemeanors, such as selling or providing a fraudulent driver’s license or permit, carry a possible penalty of up to six (6) months in jail and/or fines up to $1500.

Class C misdemeanors, such as drag racing, are punishable by jail up to thirty (30) days and/or fines up to $1,000.

Examining the above, it appears that those items listed under “petty offense” and which have a punishment by fine only are not really offenses. A penal institution is for receiving those who are subject to confinement for violating a penal statute and petty offenses are not included in that category. While on this subject, we need to also look at ordinance violations. Those are particularly interesting because they have been deemed to be “quasi-criminal” in nature.

While regarding ordinance-violation proceedings as civil in form, this Court has traditionally characterized them as quasi-criminal. City of Danville vs. Hartshorn, 53 Ill.2d 399, 292 N.E.2d 382 (1973)

Civil cases are of two kinds, those purely civil and those quasi criminal. A quasi criminal case is not a criminal case but is a civil case, somewhat resembling in its nature a criminal case. That a quasi criminal offense is not a criminal offense as defined by the criminal code is, under the authorities, clear. Wiggins v. City, 78 Ill. 375, Tully v. Northfield, 6 Ill.App. 358

Quasi-Criminal Nature (See also Quasi and see the title Penalties) – The constitution of Illinois conferred upon a certain court jurisdiction in cases of a quasi-criminal nature. It was held that the phrase “quasi-criminal nature” was intended to embrace all offenses not crimes or misdemeanors, but which are in the nature of crimes, and which are punished, not by indictment, but by forfeitures and penalties. It includes all qui tam actions, prosecutions for bastardy, informations in the nature of quo warranto, and suits for the violations of ordinances. Wiggins v. Chicago, 68 Ill. 372

Quasi-Criminal Cases – The violation of an ordinance is embraced in the phrase “of a quasi-criminal nature.” Wiggins v. Chicago, 68 Ill. 372

I do not mean to digress from the theme of this piece, but we are determining how the State charges offenses and in order to do that we must understand what offenses are. So, if the criminal code, criminal procedure…etc. apply only to “offenses” which are a violation of a “penal statute”. Therefore, to wrap up this discussion on ordinances we find:

Police can only arrest you with a warrant, if they witness a crime, or have reasonable grounds to believe an offense is being, or has been, committed.

725 ILCS 5/107-2. Arrest by Peace Officer Arrest by Peace Officer. (1) A peace officer may arrest a person when:(c) He has reasonable grounds to believe that the person is committing or has committed an offense.

Offenses are violations of the State’s penal statutes.

725 ILCS 5/102-15. “Offense” “Offense.” “Offense” means a violation of any penal statute of this State.

Municipal ordinance violations are not offenses.

Municipal ordinance violations do not fall within the definition of an “offense” under either the Criminal Code or the Code of Criminal Procedure. City of Champaign v. Torres, 214 Ill.2d 234, 824 N.E.2d 624 (2005)

Therefore, you cannot be arrested for violating an ordinance without a warrant. Period. If you may only be arrested without a warrant for an offense, and ordinances are not offenses, you cannot be arrested for violating an ordinance without a warrant, even if in the presence of a police officer. However, there are procedures in place for prosecuting ordinance violations, and those are outlined next. There must be a summons or a warrant supported by affidavit, which means it must be sworn to by the person alleging the violation. If you are served notice by mail it must be done by certified mail, return receipt requested. The police may serve summons for an ordinance violation, but again, there must be a sworn affidavit before the summons can be issued.

65 ILCS 5/1-2-9. Summons or warrant; trial without delay§ 1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.

65 ILCS 5/1-2-9.1. Service by certified mail§ 1-2-9.1. Service by certified mail. In all actions for violation of any municipal ordinance where the fine would not be in excess of $750 and no jail term could be imposed, service of summons may be made by the city clerk by certified mail, return receipt requested, whether service is to be within or without the State.People ex rel Devine v. $30,700 U.S. Currency, 199 Ill. 2d 142, 766 N. E. 2d 1084 (2002)

65 ILCS 5/1-2-11. Sheriff; service of process; arrest; housing authority police(b) Police officers may serve summons for violations of ordinances occurring within their municipalities.725 ILCS 5/107-11.

When summons may be issued(c) The summons may be served in the same manner as the summons in a civil action, except that police officers may serve summons for violations of ordinances occurring within their municipalities.

65 ILCS 5/1-2-9. Summons or warrant; trial without delay§ 1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.

To close the book on ordinances, they are not complaints, informations, or indictments. For an illustrative case, read City of Danville v. Hartshorn.

While I am making fine legal distinctions, we need to examine some things that are not complaints, informations, or indictments. For instance, many people believe that traffic offenses are criminal offenses. Most of the preceding definitions come from the Illinois Criminal Code of 1963 and the Code of Criminal Procedure. However, traffic or vehicle offenses are not criminal  nature, but civil or administrative infractions. The jurisdictions of each are different. Of course, we all believe we are in Illinois and Illinois is considered a State. However, the law goes on to define what a State is for the purposes of different parts of the statute. We are primarily dealing with criminal law in this article, but the courts often intermingle traffic offenses which make people believe they face criminal penalties. Depending on where you are in relation to “this State”, which may or may not mean Illinois, the jurisdiction or right of the State to even bring charges against someone, may differ. First we’ll look at the definition of “State” as it is used in the criminal code:

Quoting the Criminal Code of 1961 – (720 ILCS 5/2‑21) (from Ch. 38, par. 2‑21)  Sec. 2‑21. “State”.  “State” or “this State” means the State of Illinois, and all land and water in respect to which the State of Illinois has either exclusive or concurrent jurisdiction, and the air space above such land and water. “Other state” means any state or territory of the United States, the District of Columbia and the Commonwealth of Puerto Rico. (Source: Laws 1961, p. 1983.)

Quoting the Illinois Motor Vehicle Code – (625 ILCS 5/1‑195) (from Ch. 95 1/2, par. 1‑195) Sec. 1‑195. State.  A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada. (Source: P.A. 76‑1586.)

Look closely at the two definitions. Do not believe that they are interchangeable. The legislature defined them this way specifically for the statute to which they apply. When you deal with criminal law you are dealing with the actions of people. Crime is committed by individuals against individuals or their property. Corporations are also considered “persons” and can be held criminally responsible for certain act, but crimes are committed by people against people. The State of Illinois is formed by the people who are represented by the legislature. Crimes against people are reflected in the State of Illinois Criminal Code. However, vehicular or traffic infractions cannot apply to the people generally as criminal offenses. The word State does not necessarily mean Illinois. There are commercial offenses which include commerce intrastate and interstate. The US Constitution gives Congress the power to regulate commerce. Therefore, I posit that traffic offenses apply to commercial activities under the regulations promulgated by Congress regarding interstate and intrastate commerce. That authority is reflected in the Vehicle Code as penalties imposed by the State, but not the State of Illinois. State, in that sense, is a commercial jurisdiction that co-exists with the common law jurisdiction of criminal statutes. The definition of State, as used in the Criminal Code actually excludes the definition of State used in the Vehicle Code. Vehicle Code offenses actually occur in the State known as the “other State” defined in the Criminal Code.

Summary of ordinance violations, petty offenses, and traffic violations – An arrest cannot be made for petty offenses or traffic violations. Arrests can be made for ordinance violations only if there is a sworn affidavit filed. Traffic tickets are  not complaints, informations, or indictments since there is not a sworn complaint presented to a court and corresponding arrest warrant. I will touch on this in more detail as I get into the analysis of the various forms used to charge or allege offenses.

Complaint

What it is: (725 ILCS 5/102‑9) (from Ch. 38, par. 102‑9)  Sec. 102‑9. “Complaint”.  “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense. (Source: Laws 1963, p. 2836.)

Next, we’ll look at what the Illinois statutes say about arrest by complaint. I’ll emphasize particular words and phrases in the statute and then post copies of a verified complaint and arrest warrant.

(725 ILCS 5/107‑9) (from Ch. 38, par. 107‑9)  Sec. 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.

(b) The complaint shall be in writing and shall:

(1) State the name of the accused if known, and if  not known the accused may be designated by any name or description by which he can be identified with reasonable certainty;

(2) State the offense with which the accused is charged;

(3) State the time and place of the offense as definitely as can be done by the complainant; and

(4) Be subscribed and sworn to by the complainant.

(c) A warrant shall be issued by the court for the arrest of the person complained against if it appears from the contents of the complaint and the examination of the complainant or other witnesses, if any, that the person against whom the complaint was made has committed an offense.

(d) The warrant of arrest shall:

(1) Be in writing;

(2) Specify the name, sex and birth date of the person to be arrested or if his name, sex or birth date is unknown, shall designate such person by any name or description by which he can be identified with reasonable certainty;

(3) Set forth the nature of the offense;

(4) State the date when issued and the municipality or county where issued;

(5) Be signed by the judge of the court with the title of his office;

(6) Command that the person against whom the complaint was made be arrested and brought before the court issuing the warrant or if he is absent or unable to act before the nearest or most accessible court in the same county;

(7) Specify the amount of bail; and

(8) Specify any geographical limitation placed on the execution of the warrant, but such limitation shall not be expressed in mileage.

(e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.

(f) The warrant may be issued electronically or electromagnetically by use of a facsimile transmission machine and any such warrant shall have the same validity as a written warrant. (Source: P.A. 86‑298; 87‑523.)

First of all, notice the word “shall”. Shall, is a direction to the court. It is a command. It is not discretionary. The judge or whoever the command is being directed towards must do take that action as a requirement for the statute. A complaint is presented to a court charging an offense. That means something other than a petty offense or ordinance violation, punishable by fine only. Here is something interesting. It also states, “shall examine upon oath or affirmation the complainant or any witnesses.” This means the court must examine the complainant or any witness with them being either orally sworn in. The complaint itself must be in writing and the complainant must also be examined by the judge under oath or affirmation before issuing an arrest warrant.

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. Criminal Law 217

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, 387N.E.2d 995. Criminal Law217

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. Criminal Law217

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.

Let’s review an alleged “verified complaint” and ensuing arrest warrant. This complaint is made out by the State’s Attorney and verified or sworn to by the State Police officer. The State’s Attorney does not sign the complaint, but rather stamps it.  The warrant is likewise unlawful. The specified “offense” is “failure to appear or pay charge” when the complaint is for unlicensed driving. The warrant is not supported by the complaint. The defendant in this case was ticketed on July 29, 2010 and the verified complaint was not filed August 25, 2010 upon his filing a demand for a verified complaint. Until a complaint is filed and the complainant examined by a judge there can be no warrant and no jurisdiction. The warrant was not issued until September 14, 2010, and even then it was issued for a non-existent offense.

Dealing with the issue of the “signing” of the information or complaint, the statutes deal with this very issue:

(5 ILCS 70/1.15) (from Ch. 1, par. 1016)     Sec. 1.15. “Written” and “in writing” may include printing, electronic, and any other mode of representing words and letters; but when the written signature of any person is required by law on any official or public writing or bond, required by law, it shall be (1) the proper handwriting of such person or, in case he is unable to write, his proper mark or (2) an electronic signature as defined in the Electronic Commerce Security Act, except as otherwise provided by law. (Source: P.A. 90‑759, eff. 7‑1‑99.)

Of course, it references the Electronic Commerce Security Act which, in my opinion, does not apply to signatures on charging documents. That act can be read here and is evidently intended to deal with matters in commerce or commercial considerations, hence the name.

 

So what we have here is a defective complaint and defective warrant. The complaint has not been verified even though it is sworn to because of two things. It is signed by the State’s Attorney. A complaint is used by a complainant to charge an offense, not the State’s Attorney. The State’s Attorney uses an information. If the police officer signed the complaint then it would be proper, but he didn’t. Second, the affidavit below was sworn to by the officer, not the State’s Attorney. Only the person making the complaint can sign the affidavit. Since they are the one making the charge they also must be the one swearing to it. If you look at the signature if the State’s Attorney, you will also see it is a rubber stamp. There is no telling who actually signed, or stamped, this complaint. I also posit that the judge never examined the complainant as to the facts alleged in order to issue the warrant. The warrant which was issued is for a non-offense, failure to appear. The complaint is for unlicensed driving. How does a judge issue a warrant for an offense that does not appear on the complaint? This is an outright fraud and the court never acquired jurisdiction in this case. This, however, is not uncommon. It happens all the time to many people and they never look at the charging documents for defects like this because they do not know. They appear in court and enter pleas to charges that are not properly filed, thereby submitting to jurisdiction. They are undone by their own ignorance.

Now we’re going to look at an information. The difference between an information and a complaint is that a complaint is presented by someone other than the State, such as you or I. I disagree that police can sign as a complainant since they work for the State. Police should go to the State’s Attorney with the charges and the State’s Attorney then file an information. If a police officer would file a complaint then he must do so in writing and swear to it, as well as present it to a court to then be examined by the judge before issuing a warrant. An information is presented by a State’s Attorney, but it must also be sworn to by him and presented to a court before a warrant can be issued. Remember, without a warrant there is no jurisdiction. There is a distinction between a complaint and an information. What I will show you next is an information that looks remarkably like the previous complaint, only it is titled Information. Same rules apply to both, only the Information is presented by the State’s Attorney. Take a look and see if there is any difference aside from the caption.

I will be concluding this piece with an analysis of traffic tickets and Uniform Traffic Citation and Complaint. This has been discussed in-part above, but examples of requirements and common defects will be included.