Abbate v. Ret. Bd. of the Policemen's Annuity

2022 IL App (1st) 201228

210 N.E.3d 198

463 Ill.Dec. 554

Anthony G. ABBATE, Plaintiff-Appellee,

v.The RETIREMENT BOARD OF the POLICEMEN'S ANNUITY AND BENEFIT FUND OF the CITY OF CHICAGO, Defendant-Appellant.

No. 1-20-1228

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed June 6, 2022

Richard J. Reimer and Brian J. LaBardi, of Reimer Dobrovolny & LaBardi PC, of Hinsdale, for appellant.

Ralph J. Licari, of Ralph J. Licari & Associates, Ltd., of Chicago, for appellee.

JUSTICE PUCINSKI delivered the judgment with opinion of the court, with opinion.

¶ 1 The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (the Board) appeals from the circuit court's order reversing the Board's decision to deny the application of Anthony G. Abbate for a retirement annuity pension benefits in accordance with section 5-227 of the Illinois Pension Code (Pension Code or Code) ( 40 ILCS 5/5-227 (West 2018) ). On appeal, the Board contends that its decision should be upheld based upon its finding that Abbate's felony conviction for aggravated battery was related to, or arose out of, or was in connection with his service as a Chicago police officer. For the reasons set forth herein, we reverse the judgment of the circuit court and affirm the decision of the Board.

¶ 2 BACKGROUND

¶ 3 State Felony Conviction

¶ 4 Abbate joined the Chicago Police Department (Department) in 1994. At that time, he also became a participant in the Policemen's Annuity and Benefit Fund of the City of Chicago. In June 2009, in a bench trial before the Honorable John J. Fleming, Chicago police officer Abbate was convicted of one count of aggravated battery for punching and kicking Karolina Obrycka about her body causing bruising and soreness while they were in a public place of amusement. He was subsequently sentenced to two years’ adult intensive probation, along with drug and alcohol evaluation and treatment, curfew requirements, and anger management classes.¹ Defendant subsequently challenged his conviction on direct appeal, and this court upheld his conviction. People v. Abbate , 405 Ill. App. 3d 1194 (2010) (table) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 5 During the criminal trial, Obrycka testified that on February 19, 2007, she was working as a bartender at Jesse's Shortstop Inn when she saw Abbate hit another customer, Jimmy Passera. After she told Abbate to stop hitting him, Abbate remained at the bar and Passera moved to another side of the bar and away from Abbate. Shortly thereafter, Abbate walked behind the bar where customers are not permitted and approached Obrycka. Twice, she told defendant to get out from behind the bar, but when he still did not move, she pushed him away. She also told him to not come back behind the bar because he did not belong there. Obrycka testified that he did not follow her instructions and repeatedly referred to his "big muscles." A few minutes later, she took Abbate's drink away from the bar and put it by the sink.

¶ 6 Abbate then picked up a bar stool and walked behind the bar for the second time. Obrycka tried to get the bar stool away from him, but Abbate repeatedly kicked her. He told her that "nobody tells me what to do." When another person came behind the bar and told him to stop kicking her, defendant let go of her, threw a garbage can to the floor, and left the bar. During the time that she was at the bar, she did not hear Abbate identify himself as a police officer, he did not show her any type of police credentials, he was not in a police uniform, and she did not know that he was a police officer. After Abbate left, Obrycka called 911 and then called her managers. When some police officers arrived, she told them that there were cameras in the bar. During the criminal trial, the prosecution showed the videotape, which includes an audio recording, of the attack.

¶ 7 Martin Kolodziel (Martin), the manager of the bar, testified that he went to the bar after he received a phone call from Obrycka. After he arrived at the bar and spoke with Obrycka, he went to the back room where the video system was located and viewed the videotape of the battery. While some police officers were still at the bar, he offered to show them the video, but they declined his offer.

¶ 8 Telephone billing records for Abbate's landline were admitted into evidence showing telephone calls originating from his landline for the time period of February 19 through February 26, 2007. Linda Burnickas, Abbate's girlfriend, was a reluctant witness who asserted her fifth amendment rights (see U.S. Const., amend. V ), and her testimony was limited. She testified that after 9:30 p.m. on February 19, 2007, she received numerous telephone calls from "various people" and that she called "various people" regarding something that happened at the bar that night.

¶ 9 Chicago police officer Joseph Boroff, former partners with Abbate, testified that he received a phone call from Abbate at 11:19 p.m. on February 19, 2007. During that phone conversation, Abbate told him that he had gotten into a "little scuffle" with someone, and Abbate sounded like he had "a couple of drinks." Officer Boroff testified that he dismissed it and did not think that it was a serious matter. Two days later, when Abbate returned to work, Abbate used Officer Boroff's cellular telephone to make a few calls and left early from his shift. Officer Boroff drove Abbate back to the police district to see the captain to get permission to leave early. Sometime later that same evening, some officers from the Internal Affairs Division (IAD) arrived at the police district and asked Officer Boroff if he knew where Abbate was located. Officer Boroff told them that Abbate left his shift early, but he did not know why he had done so. He complied with the IAD officers request for him to call Abbate and left a message with him.

¶ 10 Abbate testified in his own defense and asserted that he acted in self-defense. He first testified that he did not know that he was not allowed to go behind the bar as he had previously been allowed to do so to use the telephone but then testified that he understood that Obrycka had the authority to tell him to leave that area and he disregarded her repeated requests. He testified that he went behind the bar only to get to the other side of the bar, that he never threatened to harm Obrycka with the bar stool, and in fact, was trying to get away from her when she pulled him down and he struck his head. He felt that he was in physical danger from Obrycka and threw her to the ground only to get away from her. He further testified that he was inebriated that night, but his inebriated state did not cause him to lose his balance and strike his head. He also admitted to previously placing Passera in a chokehold and then hitting him three times on the side of his body.

¶ 11 Federal Civil Trial

¶ 12 Obrycka filed a federal civil lawsuit against Abbate and the City of Chicago, in which she contended that the defendants had violated her constitutional rights in relation to the beating she suffered at Jesse's Shortstop Inn. Obrycka v. City of Chicago , 913 F. Supp. 2d 598 (N.D. Ill. 2012). On November 13, 2012, the jury returned a verdict in favor of Obrycka for the following claims:

"(1) that Defendant City of Chicago had an official policy, also known as a widespread custom or practice, that was the moving force behind Defendant Abbate's conduct in the bar when he physically beat Obrycka in violation of her Fourteenth Amendment substantive due process right to bodily integrity; and (2) that after the physical assault in the bar, Defendant Abbate and others entered into a conspiracy to violate Obrycka's constitutional right to freedom of speech as guaranteed by the First Amendment." Id. at 600-01.

¶ 13 The record contains the trial testimony of Obrycka and Abbate. Obrycka testified consistently with her testimony in the state criminal trial. She also testified that when the police officers arrived at the scene, she told them that the offender was a Chicago police officer named "Tony," his last name was "Abbate," and the beating was captured on a videotape. She wrote his name down on a piece of paper and handed it to one of the officers. She learned Abbate's name after having phone conversations with Margaret Kolodziel, the bar manager's wife, and Patti Chiriboga, another bartender at the bar. She further testified that she told the officers that the manager would be arriving shortly, and he could retrieve the videorecording for them. Despite Obrycka telling the officers that the manager, Martin, had arrived, the officers walked out of the bar. Martin spoke with the officers and then retrieved the videotape from the bar, but the officers had already left when Martin returned outside to give it to them. The videotape corroborated her testimony as to what occurred inside the bar.

¶ 14 Shortly thereafter, the phone at the bar rang and Obrycka answered it. The female caller identified herself as a friend of "Tony" and that she was trying to get information from Obrycka, including Obrycka's last name. Around this same time, Gary Ortiz, a friend of Abbate, was seated at the bar and asked her if she would not press charges if Abbate came over to the bar, apologized to her, and paid for some medical bills. Obrycka refused.

¶ 15 Three days after the beating, Obrycka was working at another bar when Martin and Chiriboga, another bartender at Jesse's Shortstop Inn and a friend of Abbate, visited her. At that time, Chiriboga told her that she had a meeting with Abbate and his friend, another Chicago police officer, in a parking lot. Chiriboga said that Abbate told her that she needs to bring the videotape to him within two days or there would be drugs planted on the workers at the bar, and driving under the influence citations (DUIs) would be given to the customer at the bar.

¶ 16 Abbate testified at the civil trial that at approximately 4:30 p.m....