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Tuesday, March 31, 2020

Smollett: City's lawsuit should fail because alleged sensational hoax report didn't justify big investigation costs

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By Jonathan Bilyk | Sep 4, 2019

Chicago city hall
Jonathan Bilyk

An attorney for actor Jussie Smollett, who last winter dominated headlines and television broadcasts across the U.S. and around the world with his tale of being assaulted in the dead of night in Chicago, allegedly by white supporters of President Donald Trump, because he was black and gay, has asked a federal judge to toss the attempt by the city of Chicago to force Smollett to repay hundreds of thousands of dollars the city’s police spent investigating the claims the police found to be false.

In a brief filed Sept. 3 in Chicago federal court, Smollett’s lawyer asserts the city chose to spend that much investigating Smollett’s claims, so the actor shouldn’t be held responsible for filing the allegedly false police report that ignited a firestorm across the country and around the world.

Further, the lawyer said the city has not yet specified any particular statements Smollett made to police which are false.

Jussie Smollett

“This unprecedented civil case was filed simply because former Chicago Mayor Rahm Emanuel disagreed with the Cook County State’s Attorney’s decision to dismiss the false police report charges against Mr. Smollett,” attorney William J. Quinlan wrote in the Sept. 3 brief. “Mr. Smollett has always maintained and continues to maintain his innocence.

“Yet the City’s claims and purported damages are a vindictive effort to prosecute charges that the State’s Attorney pursued and then chose to drop.”

Quinlan is representing Smollett along with his colleague David E. Hutchinson, of The Quinlan Law Firm LLC, of Chicago.

The city of Chicago filed suit against Smollett in April, accusing the actor of violating city ordinances which give the city legal authority to pursue people in court for knowingly making false statements to police. The city said such false reports undermine the criminal justice system and waste taxpayer money.

The lawsuit does not specify how much money the city is demanding Smollett be made to repay, but notes the ordinance gives the city the authority to demand up to three times the amount the city spent investigating the allegedly false claims, as well as court costs and attorney fees.

The city has estimated the Smollett investigation cost the city more than $300,000, including $130,000 in police overtime costs alone.

The lawsuit followed the decision by Cook County State’s Attorney Kim Foxx’s office to refuse to prosecute Smollett over the false police report charges, instead granting Smollett’s request to drop charges and seal the case file for a time.

Smollett had been charged by a grand jury after police spent days reconstructing and checking Smollett’s story against available surveillance footage, cell phone records, GPS data, interviews and other evidence.

Smollett, who is black and gay, had an acting role on the Fox television series, “Empire.” In January, Smollett claimed he was attacked in Chicago’s Streeterville neighborhood by two white men wearing “Make America Great Again” hats, while Smollett walked in the pre-dawn hours after purchasing a sandwich. According to Smollett’s claims, the men assaulted him, poured bleach on him and hung a noose around his neck, while shouting racist and homophobic slurs, and yelled “This is MAGA country,” a reference to the presidential campaign of President Donald Trump.

The alleged incident quickly was made public, with Smollett taking his story to the airwaves. Celebrites and Democratic politicians rushed to express sympathy and used the story as an example of the perceived bigotry of their political opponents.

However, within days, Chicago Police instead indicted Smollett for fabricating the incident in its entirety, working with two Nigerian brothers Smollett knew, identified as Abimbola “Abel” and Olabinjo “Ola” Osundairo. According to police reports, Smollett hired the two men to help him stage the attack.

Foxx’s office’s decision to instead drop charges infuriated Chicago Police and then-Mayor Rahm Emanuel, who called the action a “whitewash.” The city then followed through with the lawsuit against Smollett.

However, in moving to dismiss the city’s lawsuit, Smollett’s lawyers said the city’s decision to deploy so many officers to swiftly investigate the case was the city’s decision alone. So, they said, the city – and taxpayers – should be made to foot the bill for Smollett’s alleged hoax.

The city’s lawsuit “does not plead that Mr. Smollett’s statements ‘directly and inevitably’ cause the City to incur expenses, nor could it, since investigations are a discretionary function of police departments,” Quinlan wrote on Sept. 3. “… The City did not plead that the investigation and its resulting costs, including police overtime, were the natural or obvious consequences of Mr. Smollett’s statements.”

Quinlan further asserted the city’s complaint is not specific enough to allow Smollett to mount a defense, as “it is unclear where and to whom the alleged false statements were made.”

The brief attempts to draw a distinction between statements Smollett may have made to police officers “responding” to his apartment the night of the incident, and to “subsequent investigating officers” who tore down his story.

“This ambiguity in the City’s fraud allegations renders it impossible to ascertain how many false statements it contends Mr. Smollett had made, which prevents Mr. Smollett from understanding and effectively responding and preparing a defense,” Quinlan wrote.

The city has not yet responded to the Sept. 3 brief.

However, in a brief filed Aug. 26 in response to Smollett’s initial motion to dismiss, the city said the speed and extent of a thorough investigation should have been expected, particularly given the extraordinary circumstances surrounding Smollett’s alleged hoax.

“The City alleges that Defendant orchestrated a fake attack featuring racist and homophobic slurs, racist props, and a reference to ‘MAGA Country,’” the city wrote in its Aug. 26 filing.  “Defendant (Smollett) then reported the fabricated details of that heinous attack to police several times.

“Given these facts - a reported heinous hate crime against a high-profile victim featuring derogatory slurs and a slogan employed by the President of the United States - it is reasonably foreseeable that police would investigate thoroughly and would incur overtime costs.”

Smollett's brief does not address the sensational, headline-grabbing nature of the alleged hoax report.

The city is represented by attorneys Renai S. Rodney and Elie T. Zenner, of its Department of Law.

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U.S. District Court for the Northern District of IllinoisCook County State's Attorney's OfficeWilliam J QuinlanChicago Police DepartmentCity of Chicago