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COOK COUNTY RECORD

Friday, March 29, 2024

Federal judge tosses Smollett's counterclaim against Chicago, says can't sue over 'malicious intent' of city cops

Federal Court
Smollet

Actor Jussie Smollett

CHICAGO — A federal judge says actor Jussie Smollett can't countersue the city of Chicago over City Hall's attempt to force him to repay its costs for investigating his assault claims.

The dueling legal actions stem from the January 2019 incident in which the “Empire” star told police two white men assaulted him in Chicago’s Streeterville neighborhood while shouting racist and homophobic slurs. Soon thereafter, Chicago police secured an indictment against Smollett for allegedly fabricating the incident, accusing him of conspiring with two Nigerian 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 that 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 December, the city called for dismissal of the counterclaim. 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.”

In an opinion issued April 22, Judge Virginia Kendall granted the city’s motion to dismiss the counterclaim.

Kendall explained Smollett’s inability to adequately argue the original charges were resolved in his favor because of Foxx’s decision. Although the case was dismissed, she said, there now is “a special prosecutor who had the ability to investigate and press criminal charges against” Smollett. That investigation led to Smollett's indictment on four counts of disorderly conduct based on allegations of filing a false police report.

Even if Smollett could prove the original case was dead, Kendall continued, he also would have to viably allege the city didn’t have probable cause to arrest him in early 2019. Smollett said the lack of probable cause is attributable to the unreliable testimony of the men whom he said committed the assault. He also accused police officers of ignoring evidence supporting his account of the confrontation.

Kendall disagreed, citing evidence that pointed to the officers’ probable cause for the arrest: the Osundairo brothers’ statements to police, as well as evidence that corroborated those statements, including video footage.

“While Smollett alleges the statements were unreliable and self-serving, he ignores that there was additional evidence to corroborate the Osundairo Brothers’ statements,” Kendall wrote, “including suspicious texts between the parties and the deposit of a large check” to one of the brothers shortly before the alleged attack.

Smollett insisted the brothers’ statements were self-serving and that police didn’t investigate evidence that would’ve cleared him. Kendall ruled, however, that the confession and corroborating evidence are sufficient to establish probable cause, which by extension negates Smollett's claim the police department acted with malicious intent.

Kendall also rejected Smollett’s allegation of unlawful detention, for holding him in custody without a probable cause, branding it an inappropriate attempt to cure the defect of earlier alleging malicious prosecution, which isn’t actionable under the Fourth Amendment. Saying the ploy constitutes Smollett’s “attempts to retrofit the pleadings,” Kendall wrote, “there is no support for allowing a litigant to completely amend his complaint with a new count that is not pled in the original.”

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.

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