A day after Fox aired its “Empire” series finale with cast member Jussie Smollett conspicuously absent, a federal judge dismissed the actor’s malicious prosecution claims against the city of Chicago.
The judge ruled Smollett can’t continue with his cross-complaint against the Windy City because he’s been reindicted on felony charges alleging he staged a hate hoax on himself last year.
“In a malicious prosecution case, all elements cannot be pled until the proceedings are terminated in the plaintiff’s favor,” U.S. District Judge Virginia Kendall wrote in her order.
She said the prior indictment that was dismissed last year with an agreement Smollett serve community service and forfeit his bond payment has been replaced by a follow-up indictment announced in February.
“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,” Kendall wrote.
“Given this, it cannot be said that the case has terminated, nor can it be said that the case has terminated in Smollett’s favor,” she said.
In her 15-page ruling, the judge also said investigators had enough probable cause to arrest Smollett in the first place, including statements by bodybuilding brothers Olabingo “Ola” Osundairo and Abimbola “Abel” Osundairo that Smollett paid them to stage the attack.
And “there was additional evidence to corroborate the Osundairo Brothers’ statements, including suspicious texts between the parties and the deposit of a large check to Abel shortly before the attack,” Kendall wrote.
The judge further denied a second federal malicious prosecution claim brought by Smollett, saying “there is no cause of action for malicious prosecution based on the Fourth Amendment.”
Attempts to reach Smollett’s legal team were not immediately successful Wednesday.
Smollett, 37, returned to a Chicago courtroom in February to plead not guilty to his follow-up grand jury indictment.
Special Prosecutor Dan Webb announced the new charges after months of re-investigation, saying they were pursued again “in the interest of justice.”
“The charges were appropriately dismissed the first time because they were not supported by the evidence,” defense lawyer Tina Glandian said in a statement blasting the new charges in February.
“The attempt to re-prosecute Mr. Smollett one year later on the eve of the Cook County State’s Attorney election is clearly all about politics not justice,” she said.
The bizarre case first grabbed headlines in January 2019, when Smollett claimed two men physically attacked him on a deserted street outside his Streeterville, Chicago, apartment.
The black, openly gay actor claimed his alleged assailants wore balaclava-style masks when they hung a noose around his neck, doused him with a mystery chemical and yelled racist and homophobic slurs.
Smollett said he believed at least one of the men was white and that the duo told him he was in “MAGA country” — a reference to President Trump’s campaign slogan, “Make America Great Again.”
Investigators later said they believed Smollett staged a “phony attack” as a “publicity stunt” to help boost his acting career.
On March 7, 2019, a grand jury indicted Smollett on his original 16 counts of disorderly conduct.
Three weeks later, Chicago prosecutors made the bombshell announcement they were dismissing the case.
A Cook County judge later ruled State’s Attorney Kim Foxx erred when she assigned the case to a deputy instead of seeking a special prosecutor after she recused herself.
The city of Chicago, meanwhile, sued Smollett, seeking reimbursement of more than $130,000 it paid in overtime to investigate Smollett’s report.
The actor then countersued for malicious prosecution in November, claiming police “perpetuated the hoax narrative” and “publicly shamed and condemned him.”
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