Chicago Police Fire War Case Resurfaces

A Chicago police officer who was involved in an on-duty altercation with a Chicago fire captain in 2011 that resulted in a $1.6 million settlement in favor of the police officer, has filed a new suit claiming he was demoted in retaliation for the first suit.

The altercation between Officer Joseph J. Smith and then-Captain Mark Altman occurred on November 1, 2011 while both were operating at the scene of a water rescue in the north branch of the Chicago River.

Smith claims Captain Altman told him to “get the fuck out of here, get the fuck back,” and then pushed him. Smith claims the push resulted in serious bodily injury that ultimately required surgery.

According to the Chicago Sun Times, Smith’s supervisor, Sergeant Eduardo Beltran, sought to arrest Altman but was dissuaded by “higher-ups” in the police department to drop the matter. Smith sued the city and Captain Altman, who is the son of former Chicago Fire Commissioner Edward Altman. Captain Altman was promoted to battalion chief in 2013.

A federal court jury awarded Smith more than $1.3 million, which the judge reduced to $400,000 before agreeing to a retrial on the issue of damages. Prior to the retrial, the case was settled for $1.6 million,  $1,122,449 in compensatory damages and $480,000 in costs and attorneys fees.

Smith’s second suit claims that shortly after the first case was settled, he was demoted for no reason. The Chicago Sun Times quoted his attorney, Blake Horwitz, as saying:

  • “There’s no legal reason to demote him and decrease his salary.”
  • “The only reason you have is that it’s retaliation for having filed a lawsuit and won a lawsuit against a captain of the fire department. They’re messing with him.”

Here is a copy of the complaint in the second suit: Smith v Chicago II

Here is a copy of the complaint in the original suit: Smith v Chicago I

More on the story.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • mr618

    In the original case:

    1. where does the Fourth Amendment enter into things? Was the officer claiming that throwing him to the ground constituted a seizure? I could see maybe claiming a “constructive arrest” under the Fifth Amendment, depending on Illinois statutes, but I can’t see a connection to Fourth Amendment issues (other than saying the Captain “seized” the officer).

    2. in the heading for Count III, would I be correct in guessing “TOWN OF CICERO” is a typo and should be “City of Chicago”?

    3. I bet there was a fair amount of local commentary regarding a cop suing the FD for some variation of “unnecessary force”… usually the cop is the one being sued.

    • CurtVarone

      Andrew

      Excellent questions as usual.

      1. There is a body of case law that has developed in law enforcement cases on the use of excessive force based on the 4th Amendment seizure law. It is premised upon the use of excessive force to seize a person. His attorney is referencing that case law – which as you aptly point out – is slightly off-base when the aggressor is a firefighter and the victim a police officer.

      2. My guess is it was a cut and paste error by a paralegal.

      3. Probably. There are additional issues…. It is impossible to sort the facts from here beyond saying it is unfortunate for everyone involved.

      • mr618

        Suuuure, typical attorney… blame the paralegal! 🙂

        So the “unnecessary force” complaints the last 40-50 years were based on Fourth Amendment seizure issues? Or are the Fourth Amendment seizure aspects replacing the Fifth’s ‘false arrest” provisions?

        • CurtVarone

          The excessive force complaints are usually associated with a detention or an arrest… either of which is a 4th Amendment seizure. There may be some 5th Amendment implications as well – but the body of law that most attorneys point to for excessive force sounds in 4th Amendment. Remember… false arrest is a false arrest… excessive force does not require a false arrest. Excessive force can be present during a lawful arrest…. This area is not my strong point – so any of our 1983 civil rights specialists out there feel free to chime in.

          • mr618

            Lo, these many years ago when I was in the police academy (1979), we were taught that excessive force and false arrest both fell under the Fifth.* Fortunately, I had no personal experience, as I always tried to treat others — even arrestees — as I would want to be treated were the positions reversed (which is why I had folks from other jurisdictions come to my territory to surrender themselves to me, because they knew I would treat them correctly).
            * Of course, those were also the days when spalled concrete and pour patterns were “infallible” signs of arson…

          • verytiredtexan

            A false arrest can still be a legal arrest if done in good faith. 1983 complaints have been extended to all state or municipal employees. In a way, the police officer is accusing the fire captain of excessive force, which is a 4th Amendment issue and subject to 1983.

            The root cause of this problem in Chicago and other cities between the police and fire departments is overlapping function. NYPD’s ESU can do vehicle extrication. Of course, FDNY can as well. Because they both can do it, it becomes a tinkle contest over who gets to do it. If any municipality has a police department and a fire department that can do the same function, it needs to be decided in advance who will do it, particularly if both departments arrive at the same time. I asked an ESU guy who decides to do an extrication and he said, ‘whoever gets there first.’ I obviously would want ESU to start extrication if they come upon it or know the fire department is minutes away. The fire department should them come in and not take over, but help, just as they would if another fire company had already started the extrication.

            This was a Chicago Police diver, which I didn’t know at first. Now I see why it became a tinkle contest. If he had a scuba tank strapped on, and fell backwards, I could see how it could cause significant injury. You would think supervisors from both the police and fire department could work together, especially without resorting to shoving. CFD set a back example by not disciplining the fire captain. 1983 suits, and the 4th Amendment aside, this is also workplace violence. Workplace can cause lawsuits as well.

    • verytiredtexan

      Not a 4th Amendment issue. He assaulted the police officer, which in most states is a felony. Arrest should be made on the spot.

      • CurtVarone

        We are not saying it is a 4th Amendment issue… we are saying that (1) the officer’s attorney alleged a 4th Amendment issue in the complaint – that is a fact – and (2) the body of case law on the use of excessive force originates in a 4th Amendment analysis (unlawful seizure) – that is a fact. As I mentioned elsewhere – a 4th Amendment claim here seems misplaced because the FD captain was not attempting to effect an arrest.

        As for whether there was a felony assault – we do not know all the facts upon which the decision to charge or not was made. Some times news reports don’t have all their facts right… and often complaints/pleadings contain an exaggerated/highly spun version of the facts. The city’s position at trial was the officer’s injuries were not connected to this incident (a perspective the jury rejected)… so who knows. Maybe he was a good officer who was wrongly assaulted… maybe he was a zero looking for a comp claim and golden parachute.

        • verytiredtexan

          I didn’t look at all the stories. I thought the fire captain was asserting a 4th Amendment complaint, which as you say, is applicable because he was not making a seizure (arrest) of the officer. Just being a jerk. Never an excuse to assault an officer under those circumstances. There are very few instances where you can assault an officer. In Texas, you can only use the amount of force to overcome excessive force, although I’ve never heard of anyone being successful with that defense.

x

Check Also

NY Firefighter Turns Crotch Grab Into A $1.2 Million Federal Case

A volunteer firefighter in New York who claims he was thrown out of his fire company for complaining about another firefighter grabbing him by the crotch, has filed suit in US District Court for the Eastern District of New York.

PA Chief Arrested With Minor

A Pennsylvania fire chief has been removed from office following his arrest last night. Chief Aaron Powell, 46, of the Versailles Volunteer Fire Company, was charged with public lewdness and corruption of a minor after he was caught with a 17-year old girl engaging in sexual activities.