CHICAGO (CN) – The Seventh Circuit appeared convinced at oral arguments Tuesday that Chicago cannot be held liable for a police officer’s off-duty misconduct, placing in jeopardy a historic $44.7 million verdict against the city for a drunken cop’s shooting of his friend.
“Upholding this verdict really places responsibility on every police department in this circuit for anything a police officer does off-duty,” U.S. Circuit Judge Diane Sykes said during Tuesday’s hearing, in just one of many instances where she expressed skepticism about the jury verdict’s legal grounds.
In 2017, a jury ordered Chicago to pay $44.7 million to Michael LaPorta, who was shot in the back of the head by intoxicated police officer Patrick Kelly, a childhood friend.
LaPorta suffered a severe head injury and was left confined to a wheelchair. Kelly claimed LaPorta grabbed his gun and shot himself in a suicide attempt, a story he still maintains, although an investigation by the Civilian Office of Police Accountability found it likely that Kelly fired the weapon.
When Kelly was asked during trial if he had taken the firearm out of its holster and then pulled the trigger and shot LaPorta, the officer invoked his right not answer the questions under the Fifth Amendment.
The jury didn’t buy Kelly’s story, and instead found that the city repeatedly ignored his dangerous behavior, despite finding him twice to be mentally unfit for duty, and gave Kelly the sense that he could act with impunity.
Kelly had been arrested twice, was the subject of 18 official complaints, accused of beating his girlfriend, and treated for alcohol addiction, but was never disciplined for misconduct. After the LaPorta incident, he was suspended for 60 days, but he remains an officer with the Chicago Police Department.
The verdict awarded to LaPorta is the largest ever for police misconduct in Chicago.
A federal judge upheld the award, writing that “any reasonable jury could have concluded, as did the jury here, that Chicago had a widespread policy or practice of failing to investigate officer misconduct,” and that it had allowed Kelly and other officers to act with impunity.
But all three judges on Tuesday’s Seventh Circuit panel were highly skeptical.
“The city did not violate anyone’s constitutional rights,” Sykes, a George W. Bush appointee, told LaPorta’s attorney Carolyn Shapiro. “The city does not have a duty to monitor officers’ off-duty conduct.”
Shapiro disagreed and told the court, “The constitutional violation is the violation of the due process right to bodily integrity.”
“The city has a duty not to implement policies that allow officers to act with impunity,” she added. She argued the jury found the city had a “decades-long practice that police can break the law” without suffering any repercussions.
But she and Sykes had a heated exchange over whether this alleged violation was sufficient to trigger municipal liability.
“If [police officers] do that on duty, it’s a constitutional violation, and if they do it off-duty, it’s not a constitutional violation,” the judge said.
U.S. Circuit Judge Michael Kanne, a Ronald Reagan appointee, repeatedly suggested during arguments that the Department of Justice’s 2017 report slamming the Chicago Police Department for failures in training and accountability was politically motivated. The report was a major piece of evidence used to support LaPorta’s claims against the city.
U.S. Circuit Judge Amy Coney Barrett, appointed by President Donald Trump, showed the most openness to upholding the verdict, asking city attorney Myriam Kasper about the ramifications of a ruling in its favor.
“Is it conceivable then that the city could ever be held liable when a private individual is not acting under color of law?” she asked.
But she also told Shapiro that her client’s case suffered from a “causation problem.”
However, LaPorta’s lead counsel Antonio Romanucci of Romanucci & Blandin was not dismayed by the panel’s apparent hostility to his client’s position.
“Mikey has faced an uphill battle since the beginning of this case,” Romanucci said in an interview after the hearing. “I think the panel will rule in our favor, because when you look at the record, Mikey was shot because of what the city empowered Kelly to do. It told Kelly, ‘you can do what you want.’”
He also said he did not believe that a verdict for LaPorta would open the floodgates for municipalities to be liable whenever officers do something wrong off duty.
“There aren’t very many police departments that have as well-documented a history of corruption and misconduct as the Chicago Police Department,” Romanucci said.
The city’s attorney was unavailable for comment after the hearing.