Chicago Cops Fired for Racially Charged Photo That "Shocks the Conscience"

By Frank Main and Kim Janssen, Chicago Sun Times

27 May 15

t’s a racially charged photo the Chicago Police Department didn’t want the public to see: two white cops posing with rifles as they stand over a black man lying on his belly with deer antlers on his head.

But a Cook County judge has refused to keep secret the shocking image of former Officers Timothy McDermott and Jerome Finnigan kneeling with what the police department says is an unidentified African-American drug suspect.

Believed to have been taken in a West Side police station between 1999 and 2003, the Polaroid photo was given to the city by the feds in 2013 and resulted in McDermott, a clout-heavy cop, being fired last year by the police board in a 5-to-4 vote. The four dissenters said McDermott should only have been suspended. But a majority of the board wrote that “appearing to treat an African-American man not as a human being but as a hunted animal is disgraceful and shocks the conscience.”

McDermott, who has been driving a truck to support his family, is now appealing his dismissal in court.

Even though police Supt. Garry McCarthy moved to fire McDermott, attorneys for the police department and McDermott both asked Judge Thomas Allen to keep the photo under seal earlier this year.

They said they wanted to protect the privacy of the unidentified African-American man. Allen denied their request in March. The Sun-Times recently obtained a copy of the photo in the court file.

Federal prosecutors gave the photo to police investigators in 2013 about two years after Finnigan — the notorious other cop in the picture — was sentenced to 12 years in prison for leading a crew of rogue cops in robberies, home invasions and other crimes.

The photo comes to light as conflicts in recent months between white police officers and black suspects have gained national attention and sparked national protests, and as McCarthy himself has started a listening tour throughout Chicago to improve the frayed relations between police and the black and Hispanic communities. Separately, the police board has come under scrutiny as aldermen have called for new members on a panel whose longtime chairman continues to serve, despite his term expiring in August 2014.

McCarthy said in a statement to the Chicago Sun-Times that the photo “is disgusting, and the despicable actions of these two former officers have no place in our police department or in our society. As the superintendent of this department, and as a resident of our city, I will not tolerate this kind of behavior, and that is why neither of these officers works for CPD today. I fired one of the officers and would have fired the other if he hadn’t already been fired by the time I found out about the picture. Our residents deserve better than this, as do the thousands of good men and women in this department.”

Finnigan and McDermott worked together in the Special Operations Section. But McDermott was not accused of criminal wrongdoing in a scandal involving the unit that led to it being disbanded in 2007 — and Finnigan and other officers being convicted of crimes.

Police investigators believe Finnigan and McDermott posed in the photo while McDermott was assigned to SOS between 1999 and 2003, when he became a detective, according to court records in McDermott’s case.

When the feds confronted Finnigan with the photo, he told them he and McDermott arrested the African-American man for having “20 bags of weed” and the man provided them with the rifles, according to court records. The photo was taken in the tactical office of the Harrison Police District on the West Side, Finnigan said.

But the police department’s Bureau of Internal Affairs says it was unable to identify the African-American man in the photo. Finnigan and McDermott did not file an arrest report involving the man, according to court records.

Finnigan told the FBI the man didn’t have a serious criminal background so they let him go without arresting him, a law enforcement source said, adding that the photo was taken in “the spur of the moment.”

The person who took the photo hasn’t been identified, either.

Sgt. Michael Barz of internal affairs interviewed McDermott in June 2013.

“I do remember an incident where I took a photo with Finnigan and it appears that this is it,” McDermott said in a transcript of the interview. “Finnigan called me over, told me to get in the picture and I sat in the picture. The photo was taken, and I went back to the business I was doing that day.”

McDermott said he could not remember when or where the photo was taken, or anything about the man with the antlers.

“I am embarrassed by my participation in this photograph,” he said. “I made a mistake as a young, impressionable police officer who was trying to fit in.”

McDermott’s attorney, Daniel Herbert, said he has advised his client not to talk to the Chicago Sun-Times.

Herbert said McDermott hired him privately. Herbert said he does not know whether the Fraternal Order of Police will cover the legal expenses of McDermott’s appeal. The president of the FOP could not be reached for comment.

The department’s recommendation to fire McDermott went before the police board in August. Herbert had argued that other officers have received slaps on the wrist for participating in photos deemed embarrassing to the department.

A cop who posed in front of the Southwest Airlines jet that ran off a runway at Midway Airport, struck a vehicle and killed a child in 2005 received a one-day suspension after the photo made the rounds on the Internet. And a police commander who took a photo of a handcuffed protester as he knelt before a line of cops in riot gear received a reprimand after that image hit the Internet.

But the police board’s hearing officer would not consider those cases because the police department handled them internally without involving the board. She said she could compare McDermott’s case only with other police board cases.

In his closing arguments at the police board hearing, Herbert emphasized the lack of information about where and when the photo was taken — and the mystery surrounding the African-American man’s identity.

“What’s to say this individual wasn’t performing at a Christmas pageant in the district and was dressed as a reindeer and had taken the reindeer suit off? Again, I don’t mean to make preposterous arguments, but the charges in this case, they warrant that,” he said.

Herbert also compared the photo to an episode of “Seinfeld” in which Jerry is wrongly accused of picking his nose.

Herbert said there was strong evidence in the photo that the African-American man was a “willing participant” and was not coerced to pose with antlers. He even questioned whether the guns were really broomsticks carved to look like weapons.

Phil Cline, the former police superintendent, spoke on behalf of McDermott, who had earned 74 department awards during his career. He called McDermott a “very hard-working policeman, the type of policeman I wanted working for us and his character was impeccable.”

McDermott is the stepson of former Chicago Police Deputy Supt. Thomas Byrne, who also spoke glowingly of him during the police board hearing. Byrne was a powerful figure within former Mayor Richard M. Daley’s administration and later went on to run the Department of Streets and Sanitation for Daley.

Court records show McDermott was a defendant in four federal lawsuits accusing him and other officers of misconduct while he was assigned to the Special Operations Section and later, when he was a detective.

The city paid settlements in three of the cases and a jury awarded damages in a fourth case — with a total payout of $162,000. The city also paid hundreds of thousands of dollars in fees to the plaintiffs’ attorneys, records show.

But the lawsuits did not come up at McDermott’s police board hearing.

After the hearing, Patrick Polk, an attorney for the city, said McDermott deserved to be fired — despite his many decorations — because the photo was “degrading and humiliating.” In October, the police board voted to fire McDermott for discrediting the department, disrespecting a citizen and unnecessarily displaying a gun.

The next court hearing in his appeal is scheduled for June 10, when the judge is expected to issue a ruling.