CHICAGO — The city of Chicago has asked a federal judge to dismiss the counterclaim actor Jussie Smollett filed in response to the city’s suit that seeks to force him to repay its expenses for investigating his assault claims, in part because the city says Smollett has not yet escaped possible criminal charges.
According to Smollett’s story, in late January two white men physically attacked him in the Streeterville neighborhood, poured bleach on him and hung a noose around his neck, while shouting racist and homophobic slurs and saying, “This is MAGA country,” referring to the presidential campaign slogan of President Donald Trump.
Shortly after he made the report, Chicago police secured an indictment of Smollett for allegedly fabricating the incident, accusing him of conspiring with brothers who helped him stage the attack. During the first court hearing on the matter, Cook County State’s Attorney Kim Foxx’s office unexpectedly dropped the charges, infuriating city officials, including then-Police Superintendent Eddie Johnson and former Chicago Mayor Rahm Emanuel.
The city then sued Smollett, demanding under two city ordinances he pay at least $300,000 to cover its costs in investigating Smollett’s report. In his Nov. 19 counterclaim, Smollett said police chose to ignore evidence backing his version of the story.
In a memorandum filed Dec. 16, the city asked Judge Virginia Kendall to dismiss the counterclaim because Smollett failed to make a complete malicious prosecution claim. The city argued Smollett can’t plausibly allege the criminal proceedings ended in his favor, that his own actions demonstrate probable cause for the city’s lawsuit and that he didn’t adequately allege the city acted with malice.
The city said the criminal charges against Smollett haven’t been fully resolved because they may yet be reinstated. Even if they were considered concluded, the city added, the circumstances of the dismissal “are not indicative of his innocence,” in that Smollett agreed to do community service and forfeit his $10,000 bond.
With respect to probable cause, the city noted “Smollett reported to police that he was the victim of a racist, homophobic, politically-motivated attack at the hands of two unknown attackers, one of whom appeared to be white-skinned. After investigating, CPD identified the Osundairo Brothers, who are dark-skinned Nigerians and one of whom is friends with Smollett, as Smollett’s attackers. The Osundairo Brothers admitted that they had attacked Smollett and that the attack was a hoax orchestrated by Smollett.”
The city said state law dictates the brothers’ statements alone establish probable cause for the city to suspect a false report, but it also noted allegations in the counterclaims that “Smollett knew his attackers well, communicated and met with them before the attack, asked for their help ‘on the low’ and paid them $3,500 shortly before the attack.”
Following its position on probable cause, the city said malice on its part can’t be inferred. Further, it argued Smollett made no allegations the city defendants knew him personally before his report, “so there could not have been any personal animus or pre-existing motive to target” the actor.
“The counterclaims at most suggest only that the city defendants erred in arresting Smollett and then publicly discussed some of the reasons for the arrest,” according to the filing. “If that were enough to plead malice, then every allegedly erroneous arrest involving press coverage would result in a malicious prosecution claim.”
The city also said Smollett’s federal malicious prosecution claim failed because he didn’t “make clear which constitutional amendment underlies his claim.” Further, “Even if a constitutional claim for malicious prosecution did exist, at minimum, its elements would include a lack of probable cause and a favorable outcome.”
Representing the city in the matter are attorneys from its law department.
Smollett is represented by attorney William J. Quinlan, of the Quinlan Law Firm, of Chicago.