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Federal judge tosses Jussie Smollett’s malicious prosecution lawsuit

The criminal case against Smollett “has returned in the form of a Special Prosecutor,” judge writes.

Former “Empire” actor Jussie Smollett walks into the Leighton Criminal Courthouse for a hearing, Monday morning, Feb. 24, 2020. A new indictment brought by Special Prosecutor Dan Webb charges Smollett with falsely reporting he was the victim of a racist, homophobic attack near his Streeterville apartment in January 2019.
Former “Empire” actor Jussie Smollett walks into the Leighton Criminal Courthouse for a hearing, Monday morning, Feb. 24, 2020. A new indictment brought by Special Prosecutor Dan Webb charges Smollett with falsely reporting he was the victim of a racist, homophobic attack near his Streeterville apartment in January 2019.
Ashlee Rezin Garcia/Sun-Times

Actor Jussie Smollett took the offensive last fall, suing the city of Chicago and multiple police officers for malicious prosecution over allegations that he faked a hate crime in January 2019.

But a few months ago, a special prosecutor announced a new indictment against the former “Empire” star — accusing Smollett of the same hoax all over again.

Now, a federal judge has dismissed Smollett’s malicious prosecution lawsuit, noting that “he cannot bring a state malicious claim until proceedings have been terminated.” In doing so, U.S. District Judge Virginia Kendall tossed the heart of Smollett’s lawsuit but left him a path to revive it if he files a new complaint within three weeks.

The judge wrote that it cannot be said that the criminal case against Smollett has been terminated, “nor can it be said that the case has terminated in Smollett’s favor.”

It’s another legal twist in a case that began when Smollett, who is black and openly gay, told police in January 2019 that he had been jumped by a pair of white men near his Streeterville home. Smollett wound up being accused of faking the attack. A 16-count indictment filed against him in March 2019 was tossed just weeks later, but the manner in which it was done raised suspicions.

Attorney Dan Webb was appointed special prosecutor and given a mandate to look into the case. He wound up filing a new six-count indictment against Smollett in February. Smollett has pleaded not guilty.

Meanwhile, the city sued Smollett to recover $130,106 for its investigation into Smollett’s claims. Smollett filed a counterclaim last November, making his malicious prosecution allegations against the city, detectives Michael Theis and Edward Wodnicki, former Chicago Police Supt. Eddie Johnson and bodybuilding brothers Abimbola and Olabinjo Osundairo.

Smollett’s counterclaim pointed to statements by the Osundairo brothers, who said they helped Smollett orchestrate the fake attack. It said the statements were self-serving and designed to avoid criminal charges, but police used them to pursue Smollett’s prosecution.

The counterclaim also argued the original criminal case against Smollett ended “in Mr. Smollett’s favor and in a manner which indicates his innocence because all 16 counts of the criminal indictment were dismissed two and a half weeks after the indictment was filed.”

Kendall wrote in her 15-page opinion Wednesday that, “The case that was once dismissed has returned in the form of a Special Prosecutor who had the ability to investigate and press criminal charges against him.”

The judge also wrote that Smollett would have had to show the police did not have probable cause to arrest him.

“Given the Osundairo Brothers’ confession, plus corroborating evidence, there was ample probable cause causing a person of ordinary care and prudence to believe or to entertain an honest and sound suspicion that the accused committed the offense charged,” Kendall wrote.

She added: “CPD’s motive was bringing Smollett to justice for a crime it had probable cause to think he committed.”

Kendall has set a status hearing in the case for next month.

April_22_Order.pdf