7th Circuit Nixes $44.7M Award to Man Shot by Off-Duty Cop

The Dirksen Federal Building in Chicago, home of the Seventh Circuit Court of Appeals. (Photo via U.S. General Services Administration)

CHICAGO (CN) — A federal appeals court cleared Chicago of liability Tuesday for a drunken off-duty shooting by a police officer that left the officer’s friend permanently disabled.

The 24-page order says the failure to properly investigate and discipline its officers’ past misconduct was not enough to justify damages to the man off-duty Chicago police officer Patrick Kelly shot in the back of the head.

A two-judge panel of the Seventh Circuit reversed a $44.7 million judgment awarded to shooting victim Michael LaPorta. “The City had no due process duty to protect LaPorta from Kelly’s private violence,” Chief Judge Diane Sykes wrote in the order.

Kelly shot LaPorta, a childhood friend, in the back of the head at Kelly’s home after a night of bar hopping in 2010. Kelly told dispatchers that he had killed himself and has maintained ever since that his friend took the gun and shot himself in a suicide attempt. The city took the same position in its arguments, but a 2017 investigation by the city’s Civilian Office of Police Accountability found it likely that Kelly fired the shot.

LaPorta, permanently and seriously disabled by the shooting, sued the city later that year through his father, who served as his guardian, and later through First Midwest Bank. The LaPorta team argued that Chicago failed to maintain an early warning system for or to properly investigate problematic officers like Kelly, who was the subject of 18 official complaints, had been arrested twice, was accused of beating his girlfriend and was treated for alcohol addiction but never disciplined. A jury agreed and awarded LaPorta the hefty $44.7 million sum in damages — the largest in the city’s history.

The city appealed the decision, arguing in December of 2019 that it had no constitutional duty to protect LaPorta and that the trial had been rife with error — contentions that Tuesday’s written opinion backs.

Judge Sykes, a George W. Bush appointee, was joined in the ruling by Ronald Reagan appointee Michael Kanne. Now-U.S. Supreme Court Justice Amy Coney Barrett, whom President Donald Trump appointed to both the Seventh Circuit and the higher court, was on the panel for oral arguments but did not participate in the decision after she moved up the ladder.

“The theory of the case was novel,” Sykes wrote, later adding that it was “deeply flawed” and “has no foundation whatsoever in constitutional law.”

Sykes found that LaPorta’s effort to compare his case to Monell v. Department of Social Services, a 1978 ruling that serves as the basis for many police-misconduct cases, fell short. A more apt comparison, she wrote, was DeShaney v. Winnebago County, a 1989 case that says a government agency’s failure to prevent a private citizen’s actions did not violate a victim’s due process rights.

She also took issue with the tactics of LaPorta’s attorney, Antonio Romanucci of Chicago personal injury firm Romanucci & Blandin, writing that a “fictitious” letter purporting to be written by LaPorta to his family and a closing statement imploring jurors to send a message to the Chicago Police Department were “plainly improper.”

Romanucci took issue with the ruling. “Today’s decision by the Seventh Circuit to overturn the LaPorta case is intensely concerning, not only as it relates to delivering much needed justice for Michael LaPorta and his life-changing traumatic brain injuries, but also for the city of Chicago and the precedent this case sets in terms of accountability for police officers and the culture of impunity at CPD,” Romanucci said in a statement.

Kelly is still employed by the department, according to reporting from the Chicago Sun-Times. He has been suspended without pay, and the Chicago Police Board told the paper that a hearing is set for March in disciplinary proceedings against him.

Romanucci said that his office isn’t done with the case either. “We are weighing all of our available legal options at this time to ensure justice is restored and that Mikey can live somewhat of a normal life. Those options include a petition to the entire panel, en banc, or a petition for certiorari to the United States Supreme Court.”

Chicago’s Department of Law did not respond to a request for comment Tuesday night.

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