Judge Green-Lights Lawsuit Alleging Police `Code of Silence` Led to Deadly DUI Crash

April 04--Off-duty Chicago police detective Joseph Frugoli's blood-alcohol content was more than four times the legal limit when his SUV plowed into a disabled vehicle on the Dan Ryan Expressway in April 2009, killing two young men trapped in the fiery wreckage.

The crash exposed how Frugoli had managed to escape discipline despite being suspected of drunken driving twice before, including an off-duty incident a year earlier when he T-boned a squad car while driving home from a casino.

Frugoli's conviction and eight-year prison sentence brought his career as a Chicago homicide detective to an end, but it came too late for the families of Andrew Cazares and Fausto Manzera.

Now, a federal judge has given a green light to a wrongful death lawsuit filed by the victims' families alleging the Police Department's so-called code of silence led the longtime homicide detective to believe that he could "drink and drive with impunity" because fellow officers had protected him in the past.

In denying the city's motion to throw out the lawsuit against the officer and the city, U.S. District Judge Virginia Kendall found ample evidence that Frugoli was treated differently in his traffic-related incidents than average citizens who face an immediate license suspension if they refuse to participate in field sobriety tests.

"A reasonable jury may find that, failing to discipline or arrest a police officer who had repeatedly endangered the lives of others, increased the danger to plaintiffs, proximately causing their deaths," Kendall wrote in the 45-page decision issued Friday.

The case, currently set for trial in October, is believed to be the first to highlight how the Police Department's code of silence protects officers involved in drunken driving incidents by allowing them either to skirt field sobriety testing or let hours pass before blood is drawn at a hospital.

One expert hired by the plaintiffs is expected to testify that only 10 percent of alcohol-related complaints filed against Chicago police officers between 2003 and 2009 resulted in a DUI conviction, court records show. When an arresting officer knew the person they were investigating was a Chicago police officer, it took an average of more than three hours to issue an intoxication test -- more than twice as long as if the investigator was unaware of the arrestee's status with CPD, that expert found.

Attorney Timothy Cavanagh, who represents the Cazares family, said the case shows "the devastating consequences" that the code of silence can have by leaving problem officers on the street.

"We believe those two young men would be alive today had the police done their jobs," Cavanagh said. "If they would've treated him like any other citizen and let the chips fall where they may, Detective Frugoli might have been forced to deal with his drinking and driving problem instead of getting behind the wheel."

A city Law Department spokesman had no comment Monday, citing the ongoing litigation.

Fled from fatal crash

Frugoli, who joined the department in 1990, had amassed 18 citizen complaints for on-duty behavior in his career, including allegations of excessive use of force, verbal abuse, unprofessional behavior and illegal searches. He was never found at fault, records show

According to court records, in January 2005, Frugoli rear-ended another vehicle on the Dan Ryan Expressway, and the Illinois state trooper who showed up to investigate noticed a strong odor of alcohol on Frugoli's breath.

Frugoli told the trooper he'd had one beer prior to the crash and asked for an ambulance to take him to the hospital for treatment. By the time the trooper got to the hospital to continue the investigation, however, Frugoli had left. He never was given a Breathalyzer or had his blood-alcohol content measured, records show. Instead, the trooper drove to Frugoli's home and left two traffic citations for him.

When the trooper went to Cook County traffic court on Frugoli's court date, he saw Frugoli leaving the Daley Center and "learned that the tickets had already been dismissed," Kendall said in her ruling.

"There is no evidence in the record that Frugoli ever reported this incident to CPD or that the CPD was otherwise aware" he'd been involved in a crash, Kendall said.

Three years later, in January 2008, Frugoli was involved in two crashes about 24 hours apart. The first occurred about 4:30 a.m. while he was on duty. Frugoli denied drinking that day and later said in sworn testimony he'd "skidded on a patch of ice and hit a curb," the judge said.

Early the next morning, Frugoli was driving home off-duty after a six-hour stint at an area casino when he broadsided a Chicago police squad car in the Bridgeport neighborhood, injuring the two on-duty officers inside, records show. One of the officers testified at Frugoli's sentencing hearing for the 2009 fatal crash that Frugoli's eyes were glassy and that he appeared "dumbfounded" at the scene.

But Frugoli said in a sworn deposition that the crash occurred after he reached for his cell phone and blew through a stop sign. Records show that the same Chicago police sergeant who had responded to Frugoli's crash the day before allowed Frugoli to sit in her squad car while officers investigated at the scene.

The officers never spoke to Frugoli directly or administered any intoxication tests. They wound up ticketing the detective for running a stop sign, handing the citation to the sergeant, who drove Frugoli home. Neither officer was ever notified of Frugoli's court date, and the allegations were dismissed, records show.

Then,15 months later, Frugoli got behind the wheel of his Lexus SUV after drinking for nearly five hours at the Greektown bar Dugan's on Halsted as well as at least one other establishment, according to court records. He entered the southbound Dan Ryan at a high rate of speed and slammed into the back of the victims' car near Roosevelt Road, where they had pulled over because of a flat tire.

Frugoli was pulled from the wreckage by a good Samaritan and limped away on a ramp as the vehicle he'd struck burst into flames. Frugoli, who was bleeding from a head injury, was found walking near Clinton Street and Roosevelt by Chicago police officers responding to the call of the crash. When they learned Frugoli was a detective, they called for an ambulance and a supervisor but issued no sobriety tests, according to court records.

"When questioned by the officers, Frugoli admitted that he was in an accident and also conceded that he had been at a bar that evening," Kendall wrote in her opinion. "Despite interviewing, handcuffing, and placing Frugoli in a squad car," the officers failed to notice the odor of alcohol on him or any signs of impairment, Kendall said.

Paramedics who rode with Frugoli in the ambulance, however, noticed he appeared to be drunk, according to Kendall's ruling. His blood-alcohol level was later measured at the hospital at 0.328 percent, more than four times the legal limit of 0.08 percent, the judge wrote.

Frugoli later pleaded guilty to aggravated DUI and was found guilty in a bench trial of leaving the scene of a fatal accident.

At his sentencing, Frugoli apologized to the families, saying it haunted him even more because of the many times as a detective he had to notify family members about the deaths of loved ones.

"I never in my life thought that I would become the cause of that pain," Frugoli said.

Frugoli, who turns 50 later this month, is scheduled to be released from prison in April 2019, Illinois prison records show.

A string of fatal DUIs

Frugoli was among a string of Chicago police officers to be charged in fatal DUIs over a four-year span.

In 2005, Officer Jason Casper was off-duty with a blood-alcohol content more than twice the legal limit when he ran a red light at nearly 90 mph and collided with another vehicle in Tinley Park, killing two Sandburg High School students. Casper, who pleaded guilty to multiple counts of reckless homicide and aggravated DUI, was ultimately sentenced to 10 years in prison.

In 2009, veteran narcotics officer Richard Bolling was charged in the hit-and-run death of a 13-year-old boy riding a bike. According to trial testimony, Bolling was pulled over minutes later driving the wrong way down a one-way street, his windshield smashed and splattered with blood and an open beer in the front console.

One of the two officers who stopped him testified that she was ordered to "hold off" on field sobriety tests by her watch commander. At the time, both arresting officers said Bolling passed the sobriety tests, but at the trial each changed their opinion, testifying that Bolling had flunked key parts of the tests.

It wasn't until 4 1/2 hours after the crash that Bolling, on orders of an internal affairs sergeant, took a breath test, showing that at the time of crash his blood-alcohol content was about twice the legal limit.

Bolling was sentenced in 2012 to three years in prison. The watch commander was suspended 10 days for his handling of the case, but no one else was disciplined.

Perhaps the most infamous case involved then-Officer John Ardelean, who was speeding off-duty on Damen Avenue on Thanksgiving morning in 2007 when his car slammed into another vehicle on the city's North Side, killing two young men.

Ardelean wasn't tested for alcohol until seven hours after the crash, when his supervising lieutenant reportedly noticed he had bloodshot eyes and alcohol on his breath.

The original charges against him were dismissed, but Cook County prosecutors re-opened the investigation after surveillance video from the Martini Ranch bar in River North surfaced showing Ardelean minutes before the crash drinking what appeared to be shots of liquor -- including one being poured down his throat by a "shot girl" employed by the bar.

The bartender later testified in a civil deposition that Ardelean was drinking shots of water.

In a controversial decision, Cook County Judge Thomas Gainer threw out reckless homicide charges against Ardelean in 2010, ruling the police had no probable cause to arrest him or give him the Breathalyzer.

Ardelean, who left the force after he was charged, was hired in 2014 as a laborer for the city's Department of Water Management, where he currently earns $73,000 a year, records show.

'Immune from discipline'

Records show that Frugoli has given two sworn depositions in the ongoing lawsuit against him. In the first, he asserted his Fifth Amendment right and refused to answer questions. Later, he denied that his decision to drink and drive had anything to do with the lack of discipline or any code of silence at the Police Department.

In her ruling, Kendall called Frugoli's answers "self-serving" and unreliable. She also noted that the existence of the code of silence has been confirmed by Mayor Rahm Emanuel and the Police Accountability Task Force he impaneled to recommend reforms. The code was also cited in the scathing January report by the U.S. Justice Department on its investigation of civil rights violations by Chicago police.

In arguing to have the Frugoli lawsuit dismissed, lawyers for the city argued the Police Department should not be held responsible for his actions because he was not acting "under the color of law" at the time of the crash.

But Kendall said a reasonable jury could conclude that Frugoli was emboldened to drive drunk because he believed he was "impervious to consequences."

With no citizen complaints ever sustained against him and after being given preferential treatment in a string of traffic accidents, Frugoli may have been led to believe "that he was immune from discipline for any of his actions, on or off duty," the judge said.

Kendall also drew parallels to the case of Anthony Abbate, a burly, off-duty tactical officer caught on surveillance video in 2007 beating a petite female bartender who had refused to serve him more alcohol. Prior to the beating, Abbate told the bartender that "nobody tells me what to do," the judge noted in her ruling. Other police officers later went into the bar and offered her money if she declined to press charges.

After years of embarrassing headlines for the city, a federal jury in 2012 awarded the bartender $850,000 in damages, ruling that the department's code of silence allowed Abbate to act with impunity.

Former Los Angeles chief of police Lou Reiter, who testified for the plaintiffs in the Abbate trial, is also expected to take the witness stand if Frugoli's case goes to trial. Reiter's analysis of Chicago police files showed that officers were never investigated for DUI following routine traffic stops while off-duty -- a practice he linked to the code of silence, records show.

Reiter also found several instances in which Chicago police officers had denied noticing signs of intoxication in their fellow officers.

jmeisner@chicagotribune.com

___ (c)2017 the Chicago Tribune Visit the Chicago Tribune at www.chicagotribune.com Distributed by Tribune Content Agency, LLC.