Category Archives: Using \”Their\” Law to Fight Back

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Judicial Inquiry Board Complaint Form

// <![CDATA[
//

  • State of Illinois Judicial Inquiry Board

    100 West Randolph Street

    Suite 14-500

    Chicago, Il 60601

    (312) 814-5554

    (800) 227-9429

    TDD (312) 814-1881

    FAX (312) 814-5719

    COMPLAINT AGAINST A JUDGE


  • Instructions:

    Please type or print all information. If you wish to provide documents to support your allegations, please attach copies of those documents. We cannot return documents. You must designate specifically the particular words, diagrams or pictures contained in any documentation submitted which substantiates your allegations. Documentation without the required designation will not be considered. The Board’s jurisdiction extends only to active Illinois Supreme Court Justices, Appellate Court Justices,
    and Circuit Court Judges. Return Complaint to the above address.  You may also submit other supporting documentation to
    judicialmisconduct@markmccoy.com

    You may download an actual copy of the form here:
    Illinois Judicial Inquiry Board Complaint Form

  • Your Name*


    First Name

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  • Daytime Telephone


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  • I have information of possible misconduct or disability on the part of the following Illinois judge:

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  • STATEMENT OF FACT

  • 1. When and where did this happen?

  • List Dates, Times, and Location*

  • 2. If your information arises out of a court case, please answer these questions:

  • (a) What is the name and number of the case?

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  • (b) What kind of case is it? (Please select one from the drop-down)

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    Probate Domestic Relations Law Juvenile Small Claims Municipal Other: Please Specify Below
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  • (c) What is your relationship to the case?

  • Select One or Fill Out Below*

    Plaintiff/Petitioner Defendant/Respondent
  • Attorney for:
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  • (d) If you were represented by an attorney in this matter at the time of the conduct of the Judge, please identify the attorney:

  • Attorney Name

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  • (e) Identify any other attorney(s) who represented you or any person involved in the case:

  • Attorney Name

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  • Attorney Represented:
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  • 3. List *documents that help support your information that the Judge has engaged in misconduct or has a disability, noting which ones you have attached:

  • List Documents and supporting information here:
  • If you have files you wish to submit for review please use the file upload option or email to judicialmisconduct@markmccoy.com
  • *NOTE: Documents will not be returned. Please send copies only. You must designate specifically the particular words, diagrams or pictures contained in any documentation submitted which substantiates your allegations. Documentation without the required designation will not be considered

  • 4. Identify, if you can, any other witnesses to the conduct of the Judge:

  • Witness Name

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  • 5. Specify below the details of what the Judge did that you think constitutes misconduct or indicates disability: (Email or upload additional information/sheet if necessary).

  • Misconduct/Disability Details*

  • I understand that this does not constitute an official complaint with the Illinois Judicial Inquiry Board and is merely for the purpose of having my concerns forwarded to other interested parties for review and assistance. I also understand this form in no way binds me to an obligation of filing an actual complaint. I also understand this form will not be submitted to the Illinois Judicial Inquiry Board on my behalf. The information on this form may be published for informational purposes.

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    Print Form

  • Should be Empty:

//

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.

 

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.

 

The Aim to Repeal Home Rule for Collinsville

Petitions (St. Clair County Version and Madison County Version) – See relevant part of Illinois Election Code at bottom of this post. (10 ILCS 5/28‑7)

Petition for Referendum to Repeal Home Rule for Collinsville Madison County Version

Petition for Referendum to Repeal Home Rule for Collinsville St. Clair County Version

The people of Collinsville just recently avoided a draconian Occupancy Permit Ordinance and Crime Free Ordinance thanks to the combined efforts of local activists and concerned citizens. This issue is not over by any stretchy of the imagination. The proponents of this ordinance are regrouping and crafting a new ordinance as I type. They are taking all of the input from the dissenters and massaging the legalese to work on fears and prejudices of the masses. Related Story Here.

The timing of this move is no accident. Collinsville achieved home rule status pursuant to the Illinois Constitution by way of a special census just within the past few years. One of the speakers at the City Council Meeting, Dennis Hillege, even admitted that he has been striving for this objective for some 15 years. Mr. Hillege serves on the planning board. What has kept them at bay for this time has been the lack of authority to pass such an ordinance. Thanks to the still fresh home rule powers, the impetus to push this agenda has been realized.

I have to wonder if the people of Collinsville want to relive the stress and effort of waging a war consisting of deceit, misinformation, and propaganda when they are out-manned and out-spent at the outset? This was but one victory in a potentially long war. Taking the lessons of recent events to heart, I believe it is time to strike at the root and repeal the home rule status of Collinsville.

The City functioned just fine with powers bestowed by the Illinois Legislature. There are no special urban needs or circumstances peculiar to Collinsville as with other municipalities. Collinsville is surrounded by other home rule municipalities who are none the better for their expanded powers. Belleville has a crime problem and much blight. Business has moved out and the area looks tired. Home rule does little to enhance the life of the inhabitants but does much for the taxing and regulatory powers. Any increase in governmental power usually results in an increased benefit to the oligarchs and not to the people.

This article will be modified regularly over the coming days so check back regularly. More information on how to put a referendum to the voters for repealing home rule will be posted as well as unbiased information on the pros and cons of home rule. I am not anti-home rule, but I am anti-unresponsive and prejudicial government. This occupancy and crime free ordinance was but a taste of what kind of irresponsible power would possibly await the people should the City retain a great amount of power. Collinsville is not suffering, crime ridden, blighted, or otherwise hobbled. With citizen-driven civic pride and responsibility, the power can be kept out of the hands of the oligarchs and the money in the pockets of the people.

I also wonder if it may not be time to reconsider the organization of the City’s government, or should I say the citizen’s government. I am including information relating to such below. Collinsville presently functions under a managerial form of government.

More to come………….

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=802&ChapterID=14

(65 ILCS 5/1‑1‑8) (from Ch. 24, par. 1‑1‑8)
Sec. 1‑1‑8. Whenever this Code requires or authorizes the submission of a proposition or question to referendum, whether initiated by action of the corporate authorities or by petition, upon such initiation, the proposition or question shall be certified, in accordance with the general election law, to the proper county clerks and boards of election commissioners. Those election authorities shall submit the proposition or question to the voters of the municipality, or to the voters of such other territory as are entitled to vote thereon, at an election in accordance with the general election law. Whenever this Code requires referendum approval by the voters of any ordinance adopted by a municipality, and no specific procedure is provided for initiating the referendum, the referendum shall be initiated by the passage of such ordinance and shall be certified for the next regular election in accordance with the general election law.
Whenever this Code requires or authorizes a special election to be held for the purpose of filling a vacancy in office, the office and the candidates therefor shall be similarly certified, in accordance with the general election law.
Municipal clerks and clerks of the circuit court shall perform all election duties, including certifications and publication of notices, in connection with the conduct of elections of officers and referenda on the submission of questions or propositions to referendum as provided in the general election law.
(Source: P.A. 81‑1489.)
(65 ILCS 5/1‑1‑9) (from Ch. 24, par. 1‑1‑9)
Sec. 1‑1‑9. If a municipality which is a home rule unit under Section 6 of Article VII of the Constitution by reason of having a population of more than 25,000 suffers a loss in population so that its population determined as provided in Section 1‑7‑2 is 25,000 or less, such municipality shall continue to have the powers of a home rule unit until it elects by referendum not to be a home rule unit.
Unless such a referendum is held sooner, or such a referendum has been held within the 2 calendar years preceding the year in which the population is determined to be 25,000 or less, the municipal clerk shall certify for submission to the voters of the municipality at the next general election following such determination of population, in the manner provided by the general election law, the proposition of whether the municipality shall elect not to be a home rule unit.
(Source: P.A. 82‑94.)\

Information on various forms of government in Illinois

Aldermanic-City Form
Under the aldermanic-city form, the legislative body ordinarily consists of two aldermen from each ward elected for a four-year term. Their terms are staggered so that half are elected every two years. The number of aldermen elected depends upon the population of the city. The mayor is the chief executive officer of the municipality. The mayor, city clerk, and city treasurer are elected at large (Village or citywide) to a four-year term. Other offices and vacancies are filled by appointment by the mayor with the advice and consent of the council, although it may be provided by ordinance that these offices be filled by election.

Trustee-Village Form
Under the trustee-village form, the legislative body consists of six trustees, generally elected from the village at large. The number of trustees does not vary with the size of the municipality. Villages of over 25,000 population may have each of the six trustees elected by district instead of from the village.

The village president and clerk are elected at large, but the village treasurer is appointed. The term of the president, trustees, and clerk is four years, unless reduced to two years by referendum. As with the mayor in the aldermanic-city form, the appointments to all nonelective offices are made by the president with the advice and consent of the board of trustees. If the village collector is appointed, the village board may provide by ordinance that the elected village clerk also hold the office of village collector.

Commission Form
The commission form of government is limited to cities or villages under 200,000 population. Under this form, the voters elect at large a mayor and four commissioners who serve as the council. At the first regular meeting after an election, the council designates each member to be either the commissioner of accounts and finances, public health and safety, streets and public improvements, or public property. The mayor serves as commissioner of public affairs. The council may elect the clerk and treasurer, as well as all the other officers whose appointment is not delegated, as it may be, to one commissioner. Each commissioner is given executive control over such administrative departments as may be assigned to him. By referendum, the electors may provide for the election of commissioners to specific departments.

Manager Form
The manager form of government is available to all municipalities under 500,000 in population. The municipality may retain its governmental structure as an aldermanic-city form, trustee-village form, or commission form while adopting the features of the manager form.

Under this form, the power of the council or board is purely legislative, except that it is empowered to approve all expenses and liabilities of the municipality. The manager is the administrative and executive head of the government for some purposes. The manager appoints and removes all officers not required to be elected. The appointment to most boards, commissions, and other municipal agencies resides in the mayor or president subject to council or board confirmation.

Strong Mayor Form
This form of government has an elected mayor, clerk, and treasurer and, depending upon the size of the community, from eight to twenty aldermen elected from wards. The terms of elected officials are four years. The functions of an ordinary mayor are generally merged with the powers accorded a municipal manager. The mayor is given the power, without council approval, to appoint and remove his administrative assistants, budget and finance director, heads of all departments, and all other officers of the municipality, and members of commissions, boards, and agencies, except those covered by civil service. The powers of the council are purely legislative.

Administrative Form
This “form” of government is not specifically sanctioned by statute but is in use in a number of municipalities. It may be used in all but the manager form of government. It is not really a “form” of government but rather a legislative device adopted by municipalities which seek a full-time administrator without the permanency of the manager form of government. Under this system, a municipality creates by ordinance the office or employment of “administrator” and endows such an office or employment with certain administrative powers. The administrator may be made the administrative head of all departments and may be given any power not specifically granted to another person by statute. The administrator may be appointed for a term or hired by contract, or his employment may be for an unspecified period. In any case, he may be removed like any other officer or employee subject to the payment of any valid remaining portion of his contract. This system of government allows for a full-time administrator to conduct the day-to-day operations of a community armed with as much or as little power as the corporate authorities may from time to time provide by ordinance.

A good resource and discussion on Home Rule is Illinois Local Government – A Handbook (Read the section on Illinois Home Rule: Page 225)

Brochure: Home Rule and You

(10 ILCS 5/28‑7) (from Ch. 46, par. 28‑7)
Sec. 28‑7. In any case in which Article VII or paragraph (a) of Section 5 of the Transition Schedule of the Constitution authorizes any action to be taken by or with respect to any unit of local government, as defined in Section 1 of Article VII of the Constitution, by or subject to approval by referendum, any such public question shall be initiated in accordance with this Section.
Any such public question may be initiated by the governing body of the unit of local government by resolution or by the filing with the clerk or secretary of the governmental unit of a petition signed by a number of qualified electors equal to or greater than 10% of the number of registered voters in the governmental unit, requesting the submission of the proposal for such action to the voters of the governmental unit at a regular election.
If the action to be taken requires a referendum involving 2 or more units of local government, the proposal shall be submitted to the voters of such governmental units by the election authorities with jurisdiction over the territory of the governmental units. Such multi‑unit proposals may be initiated by appropriate resolutions by the respective governing bodies or by petitions of the voters of the several governmental units filed with the respective clerks or secretaries.
This Section is intended to provide a method of submission to referendum in all cases of proposals for actions which are authorized by Article VII of the Constitution by or subject to approval by referendum and supersedes any conflicting statutory provisions except those contained in the “County Executive Act”.
Referenda provided for in this Section may not be held more than once in any 23‑month period on the same proposition, provided that in any municipality a referendum to elect not to be a home rule unit may be held only once within any 47‑month period.
(Source: P.A. 82‑750.)

Discussion on the power of the Grand Jury

Inherent in grand jury’s power to subpoena any person is power to require that person to provide evidence as long as it is done within federal and state constitutional boundaries. In re May 1991, Will County Grand Jury, App. 3 Dist.1991, 159 Ill.Dec. 853, 216 Ill.App.3d 1033, 576 N.E.2d 522, appeal allowed 164 Ill.Dec. 919, 142 Ill.2d 654, 584 N.E.2d 131, affirmed in part, reversed in part 178 Ill.Dec. 406, 152 Ill.2d 381, 604 N.E.2d 929.

Statute providing that grand jury has authority to subpoena documents or transcripts does not impose limitation on inherent powers of grand jury to subpoena witnesses and gather evidence. In re May 1991, Will County Grand Jury, App. 3 Dist.1991, 159 Ill.Dec. 853, 216 Ill.App.3d 1033, 576 N.E.2d 522, appeal allowed 164 Ill.Dec. 919, 142 Ill.2d 654, 584 N.E.2d 131, affirmed in part, reversed in part 178 Ill.Dec. 406, 152 Ill.2d 381, 604 N.E.2d 929.

Public has interest in maintaining breadth of grand jury’s power to conduct investigations necessary to ferret out criminal activities; such power should be accorded broadest scope possible consistent with constitutional limitations. People v. Florendo, 1983, 69 Ill.Dec. 65, 95 Ill.2d 155, 447 N.E.2d 282.

Grand jury did not have authority to issue a report which was a general, social document; such document did not qualify as official document for filing with circuit court clerk. In re Report of Grand Jury of Marshall County, App. 3 Dist.1982, 63 Ill.Dec. 953, 108 Ill.App.3d 232, 438 N.E.2d 1316.

When grand jury is functioning, society’s interests are best served by thorough and extensive investigation, and grand jury’s investigative power must be broad if its public responsibility is to be adequately discharged. People v. Mileris, App. 1 Dist.1981, 59 Ill.Dec. 307, 103 Ill.App.3d 589, 431 N.E.2d 1064.

Grand jury’s power to conduct investigations and ferret out criminal activity in society is to be given broadest scope possible consistent with constitutional limitations. People v. Florendo, App. 1 Dist.1981, 51 Ill.Dec. 92, 95 Ill.App.3d 601, 420 N.E.2d 506, affirmed 69 Ill.Dec. 65, 95 Ill.2d 155, 447 N.E.2d 282.

Grand jury has broad investigative powers to determine whether crime has been committed and who has committed it. People v. Johnson, App. 1 Dist.1975, 30 Ill.App.3d 724, 332 N.E.2d 574.

A grand jury has the power to require the presence of witnesses if it feels it needs further or better information; its inquiries are secret and the court will not inquire into proceedings had before it, for the purpose of determining whether the evidence heard by it was sufficient to support an indictment, unless all the witnesses were “incompetent” which means mentally deranged or otherwise disqualified by law. People v. Bissonnette, App. 2 Dist.1974, 20 Ill.App.3d 970, 313 N.E.2d 646.

Role of grand jury in criminal cases is accusatorial only. People v. Jefferies, App.1972, 6 Ill.App.3d 648, 285 N.E.2d 592, certiorari denied 93 S.Ct. 1378, 410 U.S. 932, 35 L.Ed.2d 595.

Grand jury is an integral part of court and not tool of prosecutor and neither prosecutor nor grand jury is vested with power to proceed without regard to due process. People v. Sears, 1971, 49 Ill.2d 14, 273 N.E.2d 380.

Because of numerous and varied activities which may constitute substantive violations of state anti-trust act, grand jury investigation seeking to ascertain probable existence of such violations must be given broadest scope possible consistent with constitutional limitations. People v. Dorr, 1970, 47 Ill.2d 458, 265 N.E.2d 601, certiorari denied 91 S.Ct. 1527, 402 U.S. 929, 28 L.Ed.2d 863.

Grand jury’s powers are not dependent upon court, but are original and complete. People v. Polk, 1961, 21 Ill.2d 594, 174 N.E.2d 393.

A grand jury has no right or jurisdiction to conduct investigation into personal affairs of citizens when there is no charge of criminal offense involved, or it otherwise lacks jurisdiction of subject matter. People v. Polk, 1961, 21 Ill.2d 594, 174 N.E.2d 393.

Grand jury’s duty is diligently to inquire into all offenses which come to its knowledge, whether from court, state’s attorney, its own members or any source, and it may make presentments of its own knowledge without instruction or authority from court. People v. Polk, 1961, 21 Ill.2d 594, 174 N.E.2d 393.

A grand jury may not conduct an investigation into the personal affairs of citizens when there is no charge of a criminal offense involved. People v. Conzo, App.1939, 23 N.E.2d 210, 301 Ill.App. 524.

The grand jury’s power to inquire into all offenses against the criminal law is original and complete and extends to all offenses that may come to its knowledge from any source. People v. Conzo, App.1939, 23 N.E.2d 210, 301 Ill.App. 524.

A Cook county grand jury which was investigating to determine whether a crime had been committed in Cook county had the right to subpoena a witness to testify though it allegedly did not appear that the crime which grand jury was investigating at the time witness was subpoenaed to testify was committed in the county. People v. Conzo, App.1939, 23 N.E.2d 210, 301 Ill.App. 524.

49 Ill.2d 14, 273 N.E.2d 380, 52 A.L.R.3d 1300

Supreme Court of Illinois.
The PEOPLE of the State of Illinois, Appellee,
v.
Barnabas F. SEARS, Appellant.
The PEOPLE ex rel. Barnabas F. SEARS et al., Petitioners,
v.
Joseph A. POWER, Judge, et al., Respondents.

Nos. 44287, 44288, 44299 and 44348.
June 23, 1971.

The Circuit Court, Cook County, Joseph A. Power, J., entered orders adjudging special state’s attorney guilty of contempt, and he appealed. Motion was also allowed for leave to file original petitions for writs of mandamus and prohibition. The Supreme Court held that circumstances did not furnish sufficient basis for action of court in requiring special state’s attorney to call before grand jury every witness who had testified before federal grand jury investigating same matter and that order of contempt based upon court’s finding that statements made by special state’s attorney outside courtroom were embarrassing to court and tended to interfere with administration of justice would be reversed. The Court further held that the Circuit Court in exercise of its inherent supervisory powers over grand jury had jurisdiction to order transcript of proceeding before grand jury submitted to it for examination and, though court had jurisdiction to meet in camera with grand jury, in camera communication between court and individual grand jurors would be precluded.

Orders of Circuit Court reversed in part and remanded; petition for writ of mandamus denied; petition for writ of prohibition allowed in part and denied in part and writ so awarded.

It was not desirable that circuit judge be available to those grand jurors who wished to communicate with him privately and, though court had jurisdiction to meet in camera with grand jury, in camera communication between court and individual grand jurors would be precluded.

Don H. Reuben, Chicago, for appellant.

James J. Doherty, Chicago, for appellee.

Barnabas F. Sears, Sp. State’s Atty., Chicago, for petitioners.

George J. Cotsirilos, S. Jack Micheletto and John P. Coghlan, Chicago, for respondents.

PER CURIAM.

Barnabas F. Sears, hereafter called Sears, alleging that constitutional issues are involved (Rule 302(a), Ill.Rev.Stat.1969, c. 110A, s 302(a)), and that the case is one of extraordinary importance (Rule 302(d)), appeals directly to this court from two orders of the circuit court of Cook County adjudging him guilty of contempt. We allowed the joint motion of Sears and six organizations for leave to file original petitions for writs of mandamus and prohibition (Rule 381), and although separately argued, we have sua sponte consolidated the appeals and the original actions for consideration and opinion.

The record shows that the January 1970 grand jury of the United States District Court for the Northern District of Illinois, hereafter called the Federal Grand Jury, published a written report, which, although no indictments were voted, was critical of the conduct of certain police officers and other individuals involved in the execution of a search warrant for illegal weapons in an apartment on West Monroe Street in Chicago. During the occurrence, later widely publicized as the Black Panther raid, two members of the Black Panther Party were killed, and several other persons were injured.

A number of individuals and organizations filed petitions in the circuit court of Cook County requesting that a special grand jury be called and a special State’s Attorney appointed to investigate the circumstances surrounding the occurrence. On June 26, 1970, the Honorable Joseph A. Power, Presiding Judge, Circuit Court of Cook County, Criminal Division, entered an order which inter alia recites that ‘the Federal Grand Jury Report, publicly issued on May 15, 1970, raises critical and unresolved questions concerning violations of the Illinois Criminal Law by employees of the State’s Attorney’s Office and employees of the Chicago Police Department as well as possible violations by members of the Black Panther Party and other persons involved in the raid of December 4, 1969, as reported above, and such other persons who, on said December 4th or thereafter, may have been involved in violations of the Illinois Criminal Law relating to this cause.’

In the order the court found ‘1-That the instant cause or proceedings is one in which the States Attorney of Cook County is interested and which is, or may be, his duty to  prosecute or defend and is an appropriate cause or proceeding for the appointment of a competent attorney to prosecute such cause or proceeding with the same power and authority in relationship thereto as the States Attorney would have had if present and attending to the same, all within the provisions of Section 6 of Chapter 14 of the Illinois Revised Statutes; 2-That the matters set forth in said petition are of sufficient importance to confer jurisdiction upon the Court to order a special venire to be issued for a grand jury and that public justice requires it, all within the provisions of Section 19 of Chapter 78 of the Illinois Revised Statutes.’ The court, inter alia, ordered that ‘It is therefore FURTHER ORDERED that Barnabas F. Sears, Esquire, a member of the Bar of this State, be and he is hereby appointed a Special States Attorney of Cook County, Illinois, to prosecute any matters that may arise from these proceedings and have the same powers and authority in relationship thereto as the States Attorney of Cook County, Illinois, would have had if present and attending to the same, upon his taking the proper oath required by law.

‘It is FURTHER ORDERED that Barnabas F. Sears, as a Special States Attorney of Cook County, Illinois, be and he is hereby directed to examine the report of the January, 1970 Grand Jury of the United States District Court, Northern District of Illinois, Eastern Division, dated May 15, 1970, and the transcript, exhibits and other records upon which said report is based, and to take such other and further steps as may be necessary to determine if there were any violations of the criminal laws of the State of Illinois with respect to the subject matters set forth in said Grand Jury Report or averred in said petitions at bar, or related thereto, and to initiate appropriate proceedings, if necessary.

‘It is FURTHER ORDERED that the said Barnabas F. Sears, as Special State’s Attorney of Cook County, Illinois, be and he is hereby directed to draft the necessary order or orders for the issuance of a special venire for a grand jury, fixing the return day and providing for the impaneling thereof pursuant to law and present said order or orders to the Court at the earliest opportunity.’

On November 4, 1970, Sears filed a petition in the circuit court stating that in compliance with the order of June 26, 1970, he and the assistants appointed by the court had examined the Federal Grand Jury report and the transcript, exhibits and other records upon which the report is based and ‘that petitioner is presenting his petition for an order for the issuance of special venire for a grand jury at the earliest opportunity consistent with the due and proper presentation of the matters involved herein to a special grand jury; and that public justice requires the issuance of said special venire.’

The court allowed the petition and ordered that a special venire be issued for a grand jury to appear on December 7, 1970, to serve for a period not to exceed 18 months.

On December 7, 1970, Judge Power impaneled and instructed the grand jury. The grand jury, apparently without undue incident, heard a number of witnesses and had before it a number of exhibits including a copy of the report of the Federal Grand Jury report.

On April 22, 1971, at the request of Judge Power, Sears brought the grand jury into Judge Power’s court room. After some colloquy Judge Power instructed Sears that every witness who testified before the Federal Grand Jury was to be called before the grand jury.

On April 26, 1971, Sears and the grand jury again appeared before Judge Power. The record reflects extensive colloquy between the court and Sears, culminating in Sears’s refusal to obey the order of April 22, 1971. The court thereupon entered two orders, later merged into one written order. The first order finds Sears guilty of contempt for refusing to subpoena for testimony before the grand jury every witness who testified before the Federal Grand Jury, and imposes a fine of $50 per hour ‘until such time as he complies with the order of this court to issue subpoenas and endeavor to have all of the witnesses who testified before the January 1970 Federal Grand Jury, testify before the 1970 Special Grand Jury #3.’ The court also found that certain statements made by Sears outside the court room ‘were embarrassing to the court and tended to interfere with the administration of justice’ and fined him the sum of $100. It is from these orders that Sears appeals.

In the petition for mandamus filed in the original proceeding, Sears, the Chicago Bar Association, American Civil Liberties Union, Illinois Division, Businessmen for the Public Interest, Alliance to End Repression, The Lawyers Committee for Civil Rights under Law and the Chicago Council of Lawyers allege the impaneling of the special grand jury, Sears’s appointment and other pertinent facts. They further state that one John P. Meade has filed a petition with Judge Power in which it is stated that Meade, by letter dated December 18, 1970, was advised by Sears that his ‘conduct in the performance of his official duties as a police officer of the City of Chicago is one of the subjects of this pending Grand Jury investigation’. The Meade petition further states that the press, radio and television reports of the ‘workings and deliberations’ of the special grand jury ‘so grossly breach the security of this Grand Jury and so irreparably taint its proceedings as to make further deliberations meaningless and a violation of your petitioner’s constitutional rights.’ The Meade petition further states:

‘5) Those reports, if true, further establish an effort by the Special State’s Attorney to unlawfully influence said Special Grand Jury and to prevent it from expressing its independent judgment in arriving at its decisions.

‘6) The members of the Special Grand Jury herein have not been sequestered, but at all times mentioned herein have been able to examine, see, hear, and become aware of said published and broadcast reports. The coverage in the *20 mass media of said reports was on such a massive headline basis as to make it inevitable that many, if not all, of said jurors must have become aware of such reports.’

There are attached to Meade’s petition copies of a number of newspaper articles which purport to review both past and anticipated deliberations and actions of the special grand jury. Meade’s petition concludes as follows:

‘10) When such improper and public criticism of the Court is foisted upon a sitting Grand Jury, consciously or unconsciously it can serve only to confuse jurors, create bias and frustrate well-reasoned deliberations.

‘WHEREFORE, Petitioner prays that the Court, in the exercise of its supervisory powers, discharge the Special Grand Jury.’

In the petition for mandamus it is also alleged that Meade filed a second petition in the circuit court charging that on April 26, 1971, a news commentator announced that a television channel had learned from Sears that the special grand jury was considering the indictment of the State’s Attorney, and praying ‘that the court make immediate inquiry of the Special States Attorney (Sears) as to the truthfulness of said news source attribution; and if true, discharge instanter the aforesaid Special Grand Jury,’ that although the TV channel later retracted the statement in its entirety Meade’s petition does not mention the retraction.

The petition for mandamus further recites that three individuals describing themselves as assistant State’s Attorneys of Cook County filed a petition in the circuit court stating therein that they received letters from Sears advising them that their conduct is the subject of investigation by the special grand jury and they would be permitted to testify before the grand jury in connection with the execution of a search warrant at the apartment on West Monroe Street if they executed immunity waivers. In their petition they state that they executed such waivers and appeared and testified. They further state that it has been reported in various newspapers circulated in the Chicago area that one or more of the petitioners have been named in true bills, that Sears and one or more of his assistants had exceeded their ‘common law duties of presenting evidence to the Special Grand Jury’ and instead ‘engaged in exhortations, pleas and arguments to the Special Grand Jury that some or all of the petitioners should be indicted by the Special Grand Jury.’ They allege further that there has been, and the members thereof had been exposed to, a great deal of publicity concerning the grand jury and its deliberations, that the combined effect of the publicity and the proceedings on April 21, 1971, and April 26, 1971 ‘has necessarily tainted, biased and influenced the grand jurors, either consciously or unconsciously. The grand jurors are no longer able to evaluate the evidence and determine whether or not probable cause exists for the return of indictments against some or all of the petitioners, based solely upon the evidence, and without regard to the improper influences alleged above.’ Their petition prays that the court ‘hold an in camera hearing to determine whether any of the members of the Special Grand Jury has become biased or has been improperly influenced so that he or she is no longer capable of discharging his or her functions as a grand juror.’

The petition for mandamus states further that on April 29, 1971, 12 persons, all of whom are Chicago police officers, filed a petition alleging substantially the same facts as are contained in the assistant State’s Attorneys’ petition, and praying the same relief.

The petition for mandamus alleges further that Sears filed motions to dismiss all of said petitions, contending Inter alia that the petitioners had no standing to inquire into or object to proceedings before the grand jury, and the court was without jurisdiction to grant the relief prayed. The circuit court, on May 17, 1971, entered an order finding that the petitioners ‘have standing to request the court to determine if improper evidence has been presented or improper influence has been exerted upon the Special Grand Jury by the Special State’s Attorneys.’ The court further found that it had jurisdiction ‘to hear these issues and also on its own motion to make inquiry of the Special Grand Jury’ either by an In camera meeting with the special grand jury or by an examination of the transcripts of the minutes of its proceedings ‘to determine if improper evidence has been presented or improper influence has been exerted on the Special Grand Jury by the Special State’s Attorneys.’ It denied Sears’ motions to dismiss the petitions and entered an order which provides: ‘It is Further Ordered that any pleadings or matters relative to the petitions of the above named petitioners be and the same are hereby deferred until further order of this Court; it is Further Ordered that Barnabas F. Sears, Special State’s Attorney in this cause, submit to this Court all the transcripts of the minutes of the meetings of this Special Grand Jury on or before Monday, May 24, 1971. It is Further Ordered that if any indictments be returned, that they are to remain secret until the Court disposes of the said Petitioners’ Motion to suppress and quash such indictments.’ The petition prays that a writ of mandamus issue commanding the respondent Power to expunge all of the above described petitions and the order of May 17, 1971.

The petition for mandamus states further that the circuit court denied several motions to stay all proceedings pending resolution of the questions by this court and Sears’ motion to stay all further proceedings pending application to this court for a writ of mandamus or prohibition. Petitioners state further that on May 13, 1971, the foreman of the special grand jury accompanied by Sears had presented to Judge Power on behalf of the special grand jury the question of whether it was permissible for individual grand jurors to communicate with Judge Power in private, at which time Judge Power stated he would give his response on May 18, 1971. On May 18, 1971, Judge Power met with Sears  and the foreman of the special grand jury in the judge’s chambers and with a court reporter present. At that time Judge Power stated that he would permit individual grand jurors to communicate with him privately at any time provided that the grand juror was sworn and a court reporter was present. Sears objected that such procedure was improper and invalid and moved for a stay of such interviews pending application to this court for a writ of prohibition. The stay was denied.

The petition alleges further that Sears and the foreman returned to the grand jury room, the foreman convened the grand jury, Sears announced the ruling of the court and two grand jurors immediately left the grand jury room and were absent for approximately 20 minutes. Sears alleges on information and belief that in their absence the two grand jurors met with Judge Power.

The same petitioners, relying upon the same allegations as are set forth in the petition for Mandamus pray issuance of a writ of prohibition ‘directed to the Honorable Joseph A. Power, Presiding Judge, Respondent, restraining and prohibiting him from holding any In camera conferences with the individual members of the Special Grand Jury and restraining and prohibiting him from disclosing the matters discussed in prior In camera conferences he may have held with individual members of said Special Grand Jury and from considering the same in connection with the rulings or action he may take with respect to any matter involving this Special Grand Jury.’

We shall first consider the order of the circuit court adjudging Sears in contempt for refusing to subpoena the witnesses who testified before the Federal Grand Jury to appear and testify before the special grand jury. With respect to this order, Sears contends that the circuit court was without jurisdiction to order either him, or the grand jury, to subpoena these witnesses to appear before the special grand jury. He argues that the grand jury is independent of the court, beyond judicial control, and has the power to hear such evidence as it desires and indict whom it chooses. The People contend that the circuit court, vested with nonreviewable discretion in determining that a grand jury should be called, is empowered to order that all available testimony relevant to the subject of the grand jury’s inquiry be presented to it.

In his argument Sears has presented a scholarly review of the history of the grand jury from its genesis in 1176 upon the issuance of the Assize of Clarendon by Henry II through a stirring account of the fearless grand jury involved in the Earl of Shaftsbury trial. (8 Howell’s State Trials 759 (1816).) He states ‘This signal act of defiance triggered a development in English law that ultimately resulted in English grand juries obtaining autonomy in their operations and deliberations, I.e., freedom from control of both the Crown and the Court.  Thus, the English influence of a separate and autonomous grand jury has totally permeated American jurisprudence.’

We have reviewed the authorities cited in Sears’s brief and they appear to support his contentions that the circuit court cannot limit the scope of the grand jury’s investigation and that the grand jury may make presentments of its own knowledge without instructions or authority of the court. These authorities, however, are not relevant to the single issue presented in the appeal from the order holding Sears in contempt. The order of the circuit court does not purport to limit the scope of the special grand jury’s investigation nor does it purport to limit its power to make presentments of its own knowledge. The appeal with respect to this order presents two issues, and simply stated the questions before us are whether the circuit court has jurisdiction to order that the witnesses be called, and if so, whether the circumstances shown here furnish a sufficient basis for the court to do so. The briefs do not contain, nor have we found, a reported decision which deals with the precise issue here presented. In our search for the answer to the question presented, we find the comments of Judge Lindley in In Application of Texas Co., (E.D.Ill.) 27 F.Supp. 847, enlightening and with some paraphrasing, particularly appropriate. Judge Lindley stated that the uncertainty as to the grand jury’s powers results from the fact that it grew from the English common law, that courts have differed as to its powers and legislation regarding it is extremely meagre. At page 851, he said ‘It has remained for the courts, tracing the history of the grand jury from the time of early England, to determine for themselves when, upon a particular set of facts and circumstances, a question is presented, just how far a grand jury may properly go or should be allowed to go.’

An examination of the pertinent constitutional and statutory provisions shows that the Illinois constitution of 1818 makes no specific mention of the grand jury. Article 8, section 10, provided ‘That no person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the militia when in actual service, in time of war or public danger, by leave of the courts, for oppression or misdemeanor in office.’

In the constitution of 1848, article 13, section 10, provides ‘No person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justices of the peace, or arising in the army or navy, or in the militia, when in actual service in time of war or public danger: Provided, that justices of the peace shall try no person, except as a court of inquiry, for any offense punishable with imprisonment or death, or fine above $100.’

The Constitutional Convention of 1869-1870, after lengthy debate (2 Debates and Proceedings of the Constitutional Convention of Illinois), adopted article II, section 8, which provides ‘No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia, when in actual service in time of war or public danger: Provided, that the grand jury may be abolished by law in all cases.’

The constitution adopted in 1970 provides:

‘No person shall be held to answer for a criminal offense unless on indictment  of a grand jury, except in cases in which the punishment is by fine or by imprisonment other than in the penitentiary, in cases of impeachment, and in cases arising in the militia when in actual service in time of war or public danger. The General Assembly by law may abolish the grand jury or further limit its use.

‘No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.’ Article I, sec. 7.

With respect to the calling of a special grand jury, section 19 of The Jurors Act (Ill.Rev.Stat.1969, ch. 78, par. 19) contains the following provision enacted in 1873 and amended in 1965 to conform to the Judicial Article of the constitution (article VI), ‘The judge of any court of competent jurisdiction may order a special venire to be issued for a grand jury at any time when he shall be of opinion that public justice requires it.’

The statutory provision with respect to witnesses before the grand jury, enacted in 1827 (Rev.Laws 1827, p. 162, s 175) provided ‘In all complaints exhibited before the grand jury of any county, they shall hear the witnesses, on behalf of the people only.’ This provision was re-enacted in 1833 (Rev.Laws 1833, p. 213, s 177), in 1845 (Rev.Stat.1845, p. 186, s 187), in 1874 (Rev.Stat.1874, p. 407), and remained in force and effect until the enactment of section 112-4(a) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1969, ch. 38, par. 112-4(a)) which provides ‘The Grand Jury shall hear all evidence presented by the State’s Attorney.’

Section 5 of ‘An Act in Regard to Attorneys General and State’s Attorneys’ (Ill.Rev.Stat.1969, ch. 14, par. 5) (approved March 22, 1872, L. 1871-2, p. 190), as amended in 1967, provides that one of the duties of the State’s Attorney shall be ‘To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the state or county may be concerned.’ This provision has been in force and effect virtually without change or modification since February 19, 1827. Revised Laws of Illinois, 1833, Revised Statutes of Illinois 1845, Illinois Laws 1873-4.

Section 6 of the same act provides that a special State’s Attorney ‘shall possess all the powers and discharge all the duties of a regularly elected state’s attorney.’

In People v. McCauley, 256 Ill. 504 at page 508, 100 N.E. 182 at page 184, the court said ‘The grand jury is a necessary constituent part of every court having general criminal jurisdiction, especially in jurisdictions like ours, where crimes above the grade of misdemeanors can only be prosecuted upon the presentment of a grand jury. (Boone v. People, 148 Ill. 440, 36 N.E. 99.) The grand jury must necessarily, like other agencies provided to enable the court to administer justice and enforce the law, be to a large extent under the control and subject to the direction of the court. (20 Cyc. 1294.) If we had no statute providing for the calling and empaneling of a grand jury, clearly circuit courts in this state could assemble and organize a grand jury, under their general common-law powers, during any regular term, when in their discretion they deemed it necessary to do. (20 Cyc. 1295, and cases there cited.) The court had the power to call a special grand jury, if necessary, and this power existed independently of the statute.’

This is in accord with the holding of In re National Window Glass Workers (N.D.Ohio E.D.), 287 F. 219 wherein at page 225 the court said ‘A grand jury has no existence aside from the court which calls it into existence and upon which it is attending. A grand jury does not become, after it is summoned, impaneled, and sworn, an independent planet, as it were, in the judicial system, but still remains an appendage of the court on which it is attending.  All indictments or presentments of a grand jury become effective only when presented in court and a record is made of such action. A grand jury is not, therefore, and cannot become, an independent, self-functioning, uncontrollable agency. It is and remains a grand jury attending on the court, and does not, after it is organized, become an independent body, functioning at its uncontrolled will, or the will of the district attorney or special assistant. The process by which witnesses are compelled to attend a grand jury investigation is the court’s process and not the process of the grand jury, nor of the district attorney. If a witness fails to attend, the power, as well as the duty, to compel his attendance, is vested in the court. If, after appearing, he refuses to testify, the power, as well as the duty, to compel him to give testimony is vested in the court, and not in the grand jury. It can therefore never become an immaterial matter to the court what may be done with its process or with its grand jury. A court would not be justified, even if it were so inclined, to create or call into existence a grand jury, and then go off and leave it. A supervisory duty, not only exists, but is imposed upon the court, to see that its grand jury and its process are not abused, or used for purposes of oppression and injustice.’

‘The grand jury is an arm of the court and its in camera proceedings constitute a ‘judicial inquiry’.’ Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989, 995.

In Freeman v. Chicago Transit Authority, 33 Ill.2d 103, 210 N.E.2d 191,  holding that a trial judge had authority to grant a new trial of his own motion, this court at page 106, 210 N.E.2d at page 194 said ‘ in those jurisdictions that have considered the question the power is firmly established. (Citations.) These decisions are based upon a recognition that the role of a trial judge is not that of a presiding officer or an umpire, and that he is responsible for the justice of the judgment that he enters. The defendant’s argument would take away that responsibility and tend to reduce his role to that of an automaton.’

The responsibility of the circuit judge with respect to criminal matters is equally great. Paragraph 19 of the Jurors Act makes it apparent that a special grand jury may be called when the judge is ‘of opinion that public justice requires it’ and section 112-3(a) of the Code of Criminal Procedure of 1963, applicable to Cook County, provides that ‘a Grand Jury shall serve until discharged by the court, * * *.’ Although the statute imposes upon the State’s Attorney the duty to commence and prosecute all indictments and prosecutions (Ill.Rev.Stat.1969, ch. 14, par. 5) he may not enter a Nolle prosequi without the approval of the court. (People ex rel. Hoyne v. Newcomer, 284 Ill. 315, 120 N.E. 244.) Whether, and under what circumstances, a special State’s Attorney is to be appointed rests within the sound discretion of the court. Ill.Rev.Stat.1969, ch. 14, par. 6; People v. Strosnider, 264 Ill. 434, 106 N.E. 229.

It is true that it is the duty of the grand jury to inquire into offenses which shall come to its knowledge ‘whether from the court, the State’s Attorney, its own members, or from any source’ (People v. Polk, 21 Ill.2d 594, 598, 174 N.E.2d 393, 395), but it is clear from the holding in People v. Parker, 374 Ill. 524, 30 N.E.2d 11, that the proper channel for presenting information to the grand jury is the State’s Attorney (see page 528, 30 N.E.2d at page 13) and it is improper to communicate directly with the grand jury. “Sending an unofficial volunteer communication to the grand jury, inviting them to start, on their own authority, a prosecution, is a contempt of court, and a misdemeanor at common law.’ To this same effect is Commonwealth v. Crans, 2 Pa.L.J. 172.’ (People v. Parker, 374 Ill. 524, 528, 30 N.E.2d 11, 13.) In the opinion at page 528, 30 N.E.2d at page 13, the court quoted with approval from Mr. Justice Field’s charge to the Federal grand jury (30 Fed.Cas.No.18,255 p. 992), as follows: ‘You will not allow private prosecutors to intrude themselves into your presence, and present accusations. Generally such parties are actuated by a private enmity, and seek merely the gratification of their personal malice. If they possess any information justifying the accusation of the person against whom they complain, they should impart it to the district attorney who will seldom fail to act in a proper case, but if the district attorney should refuse to act, they can make their complaint to a committing magistrate, before whom the matter can be investigated, and if sufficient evidence be produced of the commission of the public offense by the accused, he can be held to bail to answer to the action of the grand jury.’ In our opinion it is implicit in the statement of Mr. Justice Field that upon failure of the district attorney to act in a proper case, the court will act in order to assure that the evidence is presented to the grand jury.

It is clear from the language of People v. Polk that it is the duty of the grand jury to inquire into offenses which come to its knowledge whether from the court, the State’s Attorney, its own members, or from any source. If from its own members, the following provision from section 19 of the Jurors Act is applicable: ‘No grand jury shall make presentments of their own knowledge, upon the information of a less number than 2 of their own body, unless the juror giving the information is previously sworn as a witness, in which case, if the evidence shall be deemed sufficient, an indictment may be found thereon in like manner as upon the evidence of any other witness who may not be of the jury.’ Clearly, People v. Parker holds that information from ‘any source’ must come through the State’s Attorney. The quaint concept of the English common law that a grand jury can, of itself, proceed with an investigation is not valid in this stage of our history. In Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 1349, 93 L.Ed. 1801, 1805. Mr. Justice Frankfurter said ‘And there comes a point where this Court should not be ignorant as judges of what we know as men.’ As men and lawyers we know that a grand jury cannot proceed with an investigation without the investigatory staff of the State’s Attorney, the police or the sheriff, and that it cannot prepare subpoenas or indictments without assistance of counsel. It is apparent, therefore, that to adopt the rule for which Sears contends would vest in the State’s Attorney the nonreviewable discretion as to what evidence is to be presented to the grand jury. This in our opinion could lead to abuse of the process, purpose and function of the grand jury and is inconsistent with its historic place in our system of justice.

We hold, therefore, that there may be circumstances under which the circuit court will have jurisdiction to direct that witnesses be subpoenaed to appear before a grand jury. The preservation of the historic independence of the grand jury, however, requires that such supervisory power be exercised only when failure to do so will effect a deprivation of due process or result in a miscarriage of justice. It is the opinion of the majority of members of this court that the circumstances shown here do not furnish a sufficient basis for the action of the court and the order holding Sears in contempt for refusing to subpoena the witnesses is therefore reversed.

We turn now to the order of contempt based upon the court’s finding that statements made by Sears outside the courtroom ‘were embarrassing to the court and tended to interfere with the administration of justice.’

Sears argues that the contempt, if any, was an indirect contempt and the record plainly shows that the proceedings were utterly lacking in the basic requirements of due process. The People contend that the acts upon which the finding of contempt is based were committed in the corridors adjacent to the courtroom and were therefore, under the authorities, deemed to have been in the presence of the court. Citing In re Estate of Melody, 42 Ill.2d 451, 248 N.E.2d 104, the People argue further that assuming Sears’s conduct may be deemed indirect contempt, since it was admitted, it may be punished as a direct contempt. In our opinion the situation here presented is clearly distinguishable from that in Melody. It appears that in order to determine whether Sears’s conduct was contemptuous and tended to interfere with the administration of justice it was necessary for the trial court to secure and consider extrinsic evidence as to matters not within its knowledge. The record does not reflect with sufficient clarity that Sears’s admissions supply the requisite evidence. Under the circumstances a hearing is necessary and the order therefore will be reversed and this portion of the cause remanded. People ex rel. Melendez v. Melendez, 47 Ill.2d 383, 266 N.E.2d 327.

We consider now the petitions for issuance of writs of Mandamus and prohibition. With respect to the nature of the writ of Mandamus and the circumstances under which it will issue, the long established rule is well stated in People ex rel. Dolan v. Dusher, 411 Ill. 535, at page 538, 104 N.E.2d 775 at page 777, wherein we said: ‘Mandamus is a summary, expeditious and drastic common-law writ of an extraordinary character, sometimes referred to as the highest judicial writ known to the law. (People ex rel. Koester v. Board of Review, 351 Ill. 301, 184 N.E. 325.) Original jurisdiction of the Supreme Court to issue Mandamus obtains only in causes involving questions of public right, in which Mandamus may be issued as a prerogative writ.  Furthermore, Mandamus can be invoked to expunge a judgment only when the judgment complained of is void for want of jurisdiction either of the subject matter, of the parties, or to enter the order complained of.’

The rule governing issuance of the writ of prohibition is stated in People ex rel. Town Court of Cicero v. Harrington, 21 Ill.2d 224, at page 226, 171 N.E.2d 647, at page 648, wherein we said: ‘A writ of prohibition is an extraordinary judicial process whereby a superior court may prevent inferior tribunals or persons from exercising a jurisdiction with which they have not been vested by law.’ This court, however, charged with the supervisory and administrative powers and duties provided in the constitution, may, when appropriate, award these writs even though all of the normal criteria are not present. People ex rel. General Motors v. Bua, 37 Ill.2d 180, 192, 226 N.E.2d 6; People ex rel. Continental Air Transport Co., Inc. v. Strouse, 41 Ill.2d 567, 570, 244 N.E.2d 171.

The questions presented in these petitions are whether the circuit court properly entered its order of May 17, 1971, and whether it may proceed to interview the members of the grand jury in accordance with its order of May 18, 1971.

Petitioners, in their brief, have reviewed at length the opinion in United States v. Smyth, D.C., 104 F.Supp. 283 and on the basis thereof argue that “No other instrument (the grand jury) can cope with alleged deviations from rectitude by those who have been entrusted by the government with public trust’.  The grand jury breathes the spirit of a community into the enforcement of law. Its effect as an institution for investigation of all, no matter how highly placed, created the elan of democracy. Here the people speak through their chosen representatives. This feature has been largely disregarded by critics. But it is the essence of the rule of the people.’

It is difficult to reconcile this argument with the fact that in Great Britain and in at least 22 of the 50 United States the grand jury has been abolished, and that in Illinois it requires only the action of the General Assembly to do likewise.

Much of petitioners’ brief is devoted to argument that those respondents (Meade, the assistant State’s Attorneys and the police officers) who filed the three petitions in the circuit court are without standing to do so and that the court erred in permitting the petitions to be filed. We do not find authority in People ex rel. Benefit Ass’n of Railway Employees v. Miner, 387 Ill. 393, 56 N.E.2d 353, or People ex rel. Kilduff v. Brewer, 328 Ill. 472, 160 N.E. 76, cited by petitioners, that the court was without jurisdiction to permit the filing of the petitions. It should further be noted that the court set a pleading schedule with respect to the petitions and no action has been taken other than to permit them to be filed.

The substance of petitioners’ argument in support of the issuance of the writs is that although admittedly Sears’s conduct before the grand jury is not above judicial scrutiny, such scrutiny may be invoked only after indictment and ‘is justified only where by proper verified pleading a clear and positive showing is made of gross and prejudicial irregularity influencing the grand jury in returning indictments.’

The respondents, who are Judge Power and the individuals who filed the three petitions in the circuit court, contend that the circuit court has general supervisory power over the grand jury while it is in session, which supervisory power may be exercised prior to indictment, and has jurisdiction to conduct appropriate inquiries while the grand jury is still sitting.

In view of the case taken by the majority of the members of the court we need not, and therefore we do not decide whether the individual respondents who filed the petitions in the circuit court had standing to do so. If the circuit court had jurisdiction to enter the orders of May 17, and May 18, 1971, its jurisdiction is neither invoked, expanded nor limited by the petitions, but stems from its inherent supervisory powers over the grand jury. In re Grand Jury Investigation (General Motors Corp.) (U.S.Dist.Ct.S.D.N.Y.1963), 32 F.R.D. 175.

The Code of Criminal Procedure of 1963, clearly authorizes inquiry into the proceedings before the grand jury (sec. 114-1(a)(9)) and provides for disclosure of matters occurring before it, other than its deliberations and vote (sec. 112-6(b)). It is therefore apparent that the veil of secrecy which petitioners contend enshrouds the proceedings before the grand jury has been rendered considerably opaque than in former years.

In People v. Ianniello, 21 N.Y.2d 418, 288 N.Y.S.2d 462, 235 N.E.2d 439, the Court of Appeals of New York said ‘Courts have a particular responsibility to prevent unfairness in Grand Jury proceedings, for the Grand Jury is an ‘arm of the court’ (235 N.E.2d 439, 443). The exercise of the power necessary to discharge this ‘particular responsibility’ does not require a claim of abuse of process of one who has standing to make it, for the court has inherent power to supervise the grand jury so as to prevent the perversion of its process. In re National Window Glass Workers (N.D.Ohio E.D.1922), 287 F. 219, 224; Application of Iaconi, D.C., 120 F.Supp. 589; Application of Texas Co. (E.D.Ill.1939), 27 F.Supp. 847.

In People v. Maslowsky, 34 Ill.2d 456, 216 N.E.2d 669, this court affirmed the order of the circuit court of Sangamon County insofar as it quashed subpoenas and suppressed use of certain tapes, transcripts or excerpts before the grand jury.

Petitioners, citing In re Grand Jury Subpoena To Central States, etc., D.C., 225 F.Supp. 923, and People v. Maslowsky concede that the grand jury, prior to return of an indictment, is subject to the supervisory power of the court where questions of the court’s process are involved. They contend, however, citing People v. De Filippis, 34 Ill.2d 129, 214 N.E.2d 897, that cases involving pre-indictment suppression of evidence do not involve penetration of the secrecy of grand jury proceedings. We fail to see how De Filippis supports this contention but note that the court said at page 135, 214 N.E.2d at page 900, ‘that the conventional concepts of standing must give way whenever it is necessary to prevent unfairness.’

Much of petitioners’ argument deals with the necessity for secrecy of the grand jury proceedings contending that a prosecutor can not fearlessly perform his duties if at any time the court ‘can intrude itself in these proceedings and exercise the powers claimed here.’ The short answer to that is that the grand jury is an integral part of the court and not the tool of the prosecutor and neither the prosecutor nor the grand jury is vested with power to proceed without regard to due process.

Nor do we find persuasive the argument that a defendant wrongfully indicted has his day in court at trial, and assuming vindication by acquittal has not been harmed thereby. We agree with the statement in In re Fried (2d cir.), 161 F.2d 453, that a wrongful indictment inflicts substantial harm on a defendant not entirely remedied by acquittal. That a court may act prior to indictment to prevent injustice and abuse of process is settled law. See Austin v. United States (4th cir.), 297 F.2d 356, and cases cited therein.

It is the opinion of the majority of this court that the circuit court, in the exercise of its inherent supervisory powers over the grand jury has jurisdiction to order the transcript of the proceeding before the grand jury submitted to it for examination as provided in the order entered on May 17, 1971, and we so hold. The petition for a writ of Mandamus is, therefore, denied.

With respect to the circuit court’s announcement of his availability to those jurors who wish to communicate with him privately, it is our opinion that such procedure is not desirable and presents the possibility of infringement upon the historic independence of the grand jury and its proceedings. We hold that the court has jurisdiction to meet In camera with the grand jury. Insofar as the petitioners seek a writ of prohibition to preclude In camera communication between the court and individual grand jurors, the writ of prohibition will issue, and in all other respects the petition for writ of prohibition is denied.

We need not further discuss the nature of the alleged improprieties in the proceedings before the grand jury nor the newspaper articles allegedly based upon information obtained in violation of the secrecy of the grand jury proceedings. At this stage these cases present no issue of whether there is a sufficient basis for action by the circuit court upon completion of its examination of the transcripts and its interviews, if any, with the grand jury. They present the question of whether the circuit court, upon learning of alleged improprieties, may examine the transcript and conduct N camera interviews with the grand jury, if so requested by it, to determine whether, in fact, there is a basis for action by the court.

Orders of the circuit court reversed in part and remanded. Petition for writ of mandamus denied and petition for writ of prohibition allowed in part and denied in part, and writ so awarded.

Ill. 1971.
People v. Sears,
49 Ill.2d 14, 273 N.E.2d 380, 52 A.L.R.3d 1300

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My letter follows:

August 11, 2010

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

Dear Sirs:

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

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

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

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

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

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

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

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

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

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

Thank you for your attention,

Sincerely,

Mark McCoy

Encl.

cc:        Belleville News Democrat

Notice of Complaint

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

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

Name of the offense: Disorderly Conduct

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

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

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

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

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Notice of Complaint

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

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

Name of the offense: Official Misconduct

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

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

Mandatory duty of officers.

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

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

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

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

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Notice of Complaint

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

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

Name of the offense: Official Misconduct

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

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

Mandatory duty of officers.

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

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

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

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

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Notice of Complaint

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

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

Name of the offense: Official Misconduct

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

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

Mandatory duty of officers.

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

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

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

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

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Notice of Complaint

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

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

Name of the offense: Official Misconduct

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

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

Mandatory duty of officers.

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

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

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

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

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Notice of Complaint

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

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

Name of the offense: Official Misconduct

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

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

Mandatory duty of officers.

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

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

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

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

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Notice of Complaint

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

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

Name of the offense: Official Misconduct – (Battery)

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

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

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

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

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Notice of Complaint

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

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

Name of the offense: Official Misconduct – (Assault)

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

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

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

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

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Notice of Complaint

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

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

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

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

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

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

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

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Notice of Complaint

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

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

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

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

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

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

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

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Notice of Complaint

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

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

Name of the offense: Official Misconduct – (Battery)

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

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

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

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

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Notice of Complaint

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

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

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

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

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

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

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

Sworn complaints and affidavits for official misconduct