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City wants Jussie Smollett’s lawsuit tossed, arguing he could again face criminal charges

The actor sued for malicious prosecution last month.

Jussie Smollett | Ashlee Rezin/Sun-Times
Jussie Smollett
Ashlee Rezin/Sun-Times file photo

Lawyers for the city of Chicago and multiple police officers being sued for malicious prosecution by actor Jussie Smollett say a judge should toss his claims because, in part, Smollett could again face charges for allegedly faking a hate crime.

The argument appears in a 14-page memo seeking dismissal filed by the city’s lawyers Monday, roughly one month after Smollett’s lawyers filed their own counterclaim. They insisted a 16-count criminal indictment Smollett faced earlier this year caused him economic harm, “humiliation, mental anguish and extreme emotional distress.”

It’s a legal back-and-forth that began when Smollett claimed to be the victim of a hate crime in January. Now the city is suing to recover $130,106 spent investigating what allegedly turned out to be a false claim by the actor. In turn, Smollett sued the city, the Chicago Police Department, detectives Michael Theis and Edward Wodnicki, former CPD Supt. Eddie Johnson and brothers Abimbola and Olabinjo Osundairo.

In asking the judge Monday to toss Smollett’s lawsuit, the city’s lawyers argued that, despite Smollett’s claims to the contrary, the criminal proceedings against him were not terminated in his favor — and they are not over. Cook County Judge Michael Toomin in August appointed powerhouse attorney Dan Webb as a special prosecutor.

Webb was tasked with investigating the evidence against the former “Empire” actor and possibly issuing new charges.

“Smollett’s criminal proceeding is thus not over — an investigation into his potential crimes is ongoing and criminal charges may well be re-instituted,” the city’s lawyers wrote. “For this reason alone, Smollett’s malicious prosecution claim fails.”

Webb is also reviewing how Cook County State’s Attorney Kim Foxx’s office handled the unorthodox and controversial decision to drop all charges against the actor. As she announced her bid for re-election last month, Foxx acknowledged she could have handled the Smollett case better.

“Truth is, I didn’t handle it well,” Foxx said. “I own that.”

The city’s lawyers also said Monday that Smollett’s claims should be thrown out because investigators had probable cause to file charges against him.

Smollett’s lawyers have said statements by the Osundairo brothers, who said they helped orchestrate a fake attack on the actor, were self-serving — designed to avoid criminal charges. Still, police used the claims to pursue Smollett’s prosecution.

They’ve said Smollett “voluntarily provided his DNA sample and fingerprints” to FBI agents in early March. They also said in November his passport was confiscated and “still has not been returned.”

Nevertheless, they said the case against Smollett ended last March “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.”

Additionally, they said the city should not be allowed to recover costs from Smollett because it accepted $10,000 from the actor “as payment in full in connection with the dismissal of the charges against him.”

The city pointed to that $10,000 as another sign the proceedings did not end in Smollett’s favor.