Criminal law – official misconduct

The trial court erred when it convicted the defendant, a Harvey police detective, of official misconduct on the grounds that the detective violated police regulations, which are not “laws.”

The Illinois Appellate Court, 1st District, 5th Division, has reversed a ruling by Cook County Associate Judge Angela Munari Petrone.

In August 2009, the defendant, Hollis Dorrough, a former Harvey police detective, was convicted by a jury of perjury, unlawful sale of a firearm and two counts of official misconduct. Dorrough appealed his official misconduct convictions.

In August 2006, the defendant was arrested after admitting to violating police procedure by removing evidence, a handgun, from a case he was assigned to investigate. He gave the handgun to the father of the suspect in the case and then lied when he was questioned about the missing weapon, claiming he left it on his desk prior to a meeting and discovered it missing when he returned.

He moved to dismiss the official misconduct counts, arguing that violations of regulations do not trigger Section 33-3(a) of the official misconduct statute, which criminalizes a public employee’s failure to “perform any mandatory duty as required by law.”

The trial court denied his motion and he was subsequently convicted.

According to the statute, a public employee violates the official misconduct statute “when, in his official capacity, he intentionally or recklessly fails to perform any mandatory duty as required by law.”

The defendant appealed, maintaining that he is not guilty of official misconduct because the police department regulations he violated are not “laws” within the meaning of the statute.

The appellate court said, “Our Supreme Court has repeatedly ‘asserted that the term “law” in the official misconduct statute includes a civil or penal statute, a Supreme Court rule, administrative rules or regulations, or a tenet of a professional code.’ People v. Williams, 239 Ill.2d 119 (2010). The state maintains the regulations here meet that definition. Defendant disagrees …”

The issue in Williams was whether the Glenwood Police Department’s rules on the disclosure of confidential information qualified as “laws” within the meaning of the official misconduct statute.

The Supreme Court found they were not because the regulations “were apparently promulgated under the ordinance allowing the police chief to prescribe rules and regulations covering, among other things, conduct of the members, uniforms and equipment, …”

Accepting those rules as “law” would allow a felony prosecution to be based on a police chief’s rules, the Supreme Court said in Williams.

“In this [Dorrough] case,” the appellate court said, “the regulations at issue are not “laws” within the meaning of the statute because there is no evidence that they were enacted, sanctioned or approved by a governing body.”

Therefore, the court held, the defendant’s violations of the regulations cannot sustain a conviction.

People v. Hollis Dorrough, No. 1-09-3200. Justice James R. Epstein wrote the court’s opinion with Justices Joseph Gordon and Nathaniel Howse Jr. concurring. Released Feb. 4, 2011.