Update: The U.S. Supreme Court declined to accept Michael LaPorta’s petition for certiorari on Oct. 12, without comment.
CHICAGO — Even before off-duty Chicago police officer Patrick Kelly fired a bullet into his friend Michael “Mikey” LaPorta’s skull, LaPorta’s family members wondered why Kelly still had his gun and badge.
LaPorta’s mother said Kelly, who had been LaPorta’s college roommate, regularly used racial slurs to describe suspects when he told stories about life on the beat. Once, he said he’d beaten a suspect so badly that he asked his partner to punch him in the face after the fact, so he could claim that the suspect had injured him first.
“Why would you do something like that?” Patricia “Patti” LaPorta asks today. “Why would you brag about it?”
No one in the family ever reported Kelly, who was the subject of 19 misconduct allegations before the January 2010 shooting. They figured nothing would be done, having grown up in a blue-collar, southwest Chicago neighborhood where lots of people work for the city, many as police officers, and the badge is often seen as a shield from public scrutiny.
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Then, after a night of drinking in their neighborhood, Kelly turned his gun on LaPorta, permanently crippling him.
LaPorta sued the city, and a federal jury awarded him $44.7 million, saying Chicago city government should be held liable even though Kelly was not working when he fired his gun. The city successfully appealed. In September, LaPorta filed a petition for certiorari to the Supreme Court, asking the justices to reinstate the verdict.
That the gun and ammunition used to paralyze LaPorta, 41, was issued by the police department is of little relevance in the case. Instead, LaPorta’s attorneys argue that a long-standing culture of corruption within the department enabled Kelly to behave violently toward the public with impunity throughout his career. His service record and the department’s failure to act made the city financially responsible for his off-duty behavior, LaPorta’s attorneys say in their petition.
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The appeal faces long odds. Some lower courts have ruled that municipalities are not responsible for what their employees do off duty, and the Supreme Court upheld that position in a 1989 case involving child welfare workers. But some experts say LaPorta’s case could draw the justices’ attention, because of a national focus on liability in policing and some aspects of the lawyers’ argument.
A decision against Chicago would be a potent weapon for the reform movement that has gained traction in this country since the police slayings of George Floyd and Breonna Taylor last year. Simply put, it would show cities that it is in their own financial interest to crack down on problem officers, before those officers act off duty in ways that could cost taxpayers millions.
“Among academics, it’s accepted that it’s a key way to increase control over police officers and decrease misconduct,” Erwin Chemerinsky, law school dean at the University of California at Berkeley, said of the legal underpinnings of LaPorta’s case. “But the Supreme Court has made it very hard to sue cities for police misconduct. And I think if cities could be held more easily liable, they would do more to control police and prevent misconduct in the long term.”
For LaPorta, a ruling reinstating the civil judgment would bring relief from overwhelming medical bills but otherwise would be a small measure of justice. A former outdoorsman who loved hunting and fishing and once won a Bobcat-driving competition, LaPorta now spends his days being bathed by his mother or a part-time caregiver, working on moving his right hand, and tooling around in his backyard garage on a motorized wheelchair.
“I’m way tired of all this stuff. I just want to go on with my life,” he said in the halting speech it has taken him, his family and therapists years to achieve. “I got a second chance at life, and I don’t know what’s in store for me. But it’s get busy living or get busy dying.”
Botched investigation
When LaPorta goes to sleep, he enters a painful, restless void for just three or four hours at a time. He no longer dreams, he says, and wakes with no concept of how long he has slept or what time of day it is. All he knows is that he hasn’t yet died of the injury inflicted nearly 12 years ago.
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“I don’t think I dream,” LaPorta said. “I [once] dreamt about football, or rugby, and I dreamt about hunting."
Chicago and its police department spent eight years arguing that Kelly, 41, never shot LaPorta. They believed Kelly, who said he’d had several drinks with an old friend but wasn’t drunk, and stepped away long enough for the friend to retrieve Kelly’s service weapon from his bedroom and try to kill himself.
Police investigators failed to follow basic evidentiary procedure in the immediate aftermath of the shooting, according to the findings of the Chicago Civilian Office of Police Accountability.
Among the issues raised by LaPorta’s attorneys in civil court: Police failed to obtain fingerprints from Kelly’s bedside drawer to support or refute his claim that LaPorta retrieved the weapon. Investigators failed to test sinks and bathtubs in the home for evidence of blood being rinsed down the drain. And investigators bagged Kelly and LaPorta’s clothes in groups, rather than individually by garment, rendering a blood spatter analysis useless.
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“When you look at all the evidence they didn’t collect, it’s clear they approach the scene with the idea that this was a suicide [attempt],” said James S. Murphy-Aguilú, who led the police accountability office’s investigation of the shooting years later. “Then they clear Kelly and close the case within a day.”
Kelly became belligerent when told he could not accompany LaPorta to the hospital and took a swing at police Sgt. Charmane Kielbasa, according to a police report. He was arrested in the assault on Kielbasa, but charges were never filed. LaPorta’s attorneys allege that Kelly, captured on film relieving himself in his cell with his back to the camera, urinated on his hands to thwart a gunshot residue test that would come later that day.
LaPorta came out of his coma two months later. It took two years for him to regain the ability to speak. Well after the department ruled the shooting an attempted suicide, LaPorta began telling a different story about that night.
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Kelly had hit his own dog, a boxer, LaPorta recalled. So LaPorta, a former pre-med student and onetime aspiring veterinarian at Southern Illinois University at Carbondale argued with Kelly. Disgusted, drunk and tired, LaPorta rose from his seat and headed for the door. That’s when Kelly shot him, he says.
“He was yelling at and beating his dog,” LaPorta said. “I don’t like that.”
Today, LaPorta is in constant pain, frequently staving off pneumonia that could be life-threatening. He savors autumn days when relatives can take him deer hunting. Inside a blind and bundled to the cheeks, with a rifle propped up in front of him, LaPorta looks through the scope and watches the action.
“For someone to be in his condition, I’m shocked that he never gave up,” said Patti LaPorta, 61. “He wants to get on with his life.”
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Dr. Ricardo Senno, who testified on LaPorta’s behalf during the civil trial, described the gunshot wound as “the most severe traumatic brain injury that I’ve seen that has survived” in 21 years of specialization in brain injuries. Over the years, LaPorta has had nine brain surgeries to treat infections, any of which could have killed him.
There is no hope that his condition will improve, Senno said.
Share this articleShare“There’s always miracles, right? But I haven’t seen too many miracles," Senno said. "His brain will continue to atrophy and shrink. There’s too much damage.”
Long record of complaints
On a shelf above the desk in his office in Chicago’s River North area, attorney Antonio Romanucci keeps a plastic foam model marked with a red sticker where the bullet entered LaPorta’s skull, inches behind his left ear. The head was used as an exhibit in the suit against the city, in which Romanucci successfully laid out the case for liability in the shooting.
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In overturning the jury award, the U.S. Court of Appeals for the 7th Circuit cited DeShaney vs. Winnebago County, a 1989 Supreme Court ruling which held that a government agency’s failure to prevent child abuse does not violate the child’s constitutional right to liberty.
LaPorta’s attorneys argue that there’s a disagreement in the relevant case law.
In 1978, considering Monell v. Department of Social Services of the City of New York, the Supreme Court ruled that to claim a government entity is guilty of deprivation of rights, the injury must be the result of implementation of a “policy or custom.” In 1988, in the case of Gibson v. City of Chicago, a 7th Circuit ruling said that municipalities could be held liable for an injury caused by an off-duty officer if their policies were the “moving force” in the injury.
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LaPorta’s attorneys think they’ve demonstrated that the city, in failing to implement an early warning system to identify, monitor and discipline problem officers, and in failing to act on Kelly’s record, is the moving force behind LaPorta’s injuries.
The case before the Supreme Court has a few factors riding against it, said Chemerinsky, the law school dean, who has studied DeShaney and related case law extensively. For one, the court received more than 8,000 petitions last year and heard just over 50. Beyond that, he said, “it’s a conservative court that’s much more likely to agree with the conservative judges of the 7th Circuit … the Supreme Court has had a lot of cert petitions on issues like this involving off-duty police officers and they’ve turned down all of those cases."
On the other hand, Chemerinsky said, the LaPorta case is a rare one in which the facts are not in dispute, making it more attractive to the court.
"I thought this petition did a good job of saying that the circuits are really split when it comes to whether cities can be held liable when their policies can be traced to causing off-duty police officers to engage in great harm,” he said.
The petition was written by a team led by Marisa Maleck, a partner at D.C.-based law firm King and Spalding who clerked for Justice Clarence Thomas earlier in her career.
“I truly believe that what we’re asking the court to do is completely consistent with conservative principles, liberal principles, just constitutional statutory principles,” she said. “A lot of police want this type of reform because it just takes one bad apple to really lose trust in an entire department.”
Chicago, which in 2019 entered a federal monitoring agreement to overhaul the police department, eventually lost faith in Kelly. He was never arrested in the LaPorta shooting but was placed on desk duty.
Last year, police officials moved to fire him. To do that, according to the union contract, they needed to present their case to an eight-person police board panel, and they needed LaPorta to testify that he hadn’t tried to kill himself.
Before shooting LaPorta, Kelly cost the department $750,000 in brutality payouts, according to the Chicago Reporter, which tracks lawsuits against the department. In addition, he was accused of domestic violence by a girlfriend — allegations sustained by investigators but ultimately overturned by their supervisor. In 2013, after the shooting, Kelly used a Taser on a pregnant woman who later lost the baby. The subsequent lawsuit cost the city $500,000.
LaPorta’s attorneys were told by lawyers for the city that their client’s testimony was essential to getting Kelly off the force.
In other words, while one legal arm of the city was doing everything it could to avoid compensating LaPorta for his injuries, the other was desperate for his testimony about how an off-duty officer had caused those injuries.
“It was one of the most perverse hearings that I’ve ever been a part of,” said Romanucci, who also represents the Floyd family.
LaPorta eventually cooperated. Strapped into his chair, LaPorta recounted the incident to the panel, which voted unanimously in June to fire Kelly.
‘Code of silence’
Ray Broderdorf was the internal affairs investigator who breath-tested Kelly to determine whether he was drunk at the time of the encounter with Kielbasa, the police sergeant. He waited 7½ hours to do so — near the maximum allowed in the police contract — and says the delay was because he was waiting for a supervisor’s go-ahead. Kelly still had a blood alcohol level of 0.093, above the legal limit to drive. Broderdorf cringed when it was suggested years later that Kelly may have urinated on his hands before their interaction.
“I think I shook his hand,” Broderdorf said, grimacing.
Now retired, Broderdorf said Kelly’s ability to come back from allegation after allegation was not particularly unusual in Chicago.
“You always kind of wonder who’s looking out for this guy or this guy, but you’d be a fool to talk about who your clout is,” Broderdorf said. “It’s a semi-military organization and you do what you are told to do."
“But I’m embarrassed of the department for not firing him sooner.”
Broderdorf was the only officer directly involved with the shooting investigation who spoke to The Washington Post. Kielbasa declined an interview request. Likewise, 12 of the officers who responded to the shooting declined or did not respond to requests for comment. Reached at her home, Tisa Morris, the Office of Professional Standards chief who cleared Kelly in the 2005 domestic violence incident despite her investigators’ recommendations, also declined to comment.
An attorney for Kelly did not respond to a request for comment.
With the exception of Morris, nearly all of the officers hail from the South Side neighborhood of Beverly, where the LaPortas also live, or a handful of surrounding communities.
Patti LaPorta’s father, a police officer, patrolled the same streets Kelly once walked.
“There’s definitely a code of silence here, but I’ve seen what good cops do. My father was one of them,” she said. “I have nephews and nieces that are in the police department. It’s tough on them because of this bad cop giving cops a bad name. Why can’t they just get these cops out?”
The LaPortas don’t want anyone to think they’re anti-police or intent on leeching from the city, which employs many of their neighbors, relatives and friends. When this is all over, the LaPortas will probably still live here, among all those officers who backed Kelly’s version of events after the shooting, defended their own actions during the investigation, and turned a blind eye to Kelly’s conduct in the field before and after Mikey LaPorta was injured.
“I see the same guys that testified when I go to the grocery store or I’m getting gas or I’m at 7-Eleven,” Patti LaPorta said. “They don’t see me, but I remember them.”
Yet it’s difficult for her to imagine a life anywhere else. She raised a family in this corner of Chicago with husband Mike, who was 61 when he died in December of amyloidosis, a rare blood cancer.
“He was a great man,” Mikey LaPorta said. “He taught me to be humble and kind.”
Since the elder LaPorta’s diagnosis two years ago, the family has struggled to afford Mikey LaPorta’s speech and physical therapy sessions. A GoFundMe campaign started in 2020 describes LaPorta’s failing wheelchair and mounting expenses, and it has raised more than $25,000.
And if the civil judgment is restored?
Mikey LaPorta has a daydream about a future far away. He says he wants to live the rest of his life in peace, removed from this life tethered to Kelly and one night in 2010.
“I want to stand up,” LaPorta said, “I want to go to Alabama, get some land. … I could do anything there. I’m a country boy.”
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