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Jason Van Dyke Is Not 'Immune' From Murder Charges, Judge Says

By Erica Demarest | May 25, 2017 9:19am | Updated on May 26, 2017 8:36am
 Chicago Police Officer Jason Van Dyke, 39, is charged with official misconduct, first-degree murder and aggravated battery with a firearm.
Jason Van Dyke
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COOK COUNTY CRIMINAL COURTHOUSE — A Cook County judge on Thursday denied a motion to dismiss charges against Jason Van Dyke, the Chicago Police officer who fatally shot 17-year-old Laquan McDonald in 2014.

Van Dyke, 39, will still face charges of first-degree murder, official misconduct and aggravated battery with a firearm when he next appears in court June 2.

During a hearing Thursday, defense attorney Daniel Herbert argued that the indictment against Van Dyke should be dropped because it was unfairly motivated by political and media pressure surrounding the release of dashcam footage of the controversial shooting in late 2015.

Herbert went on to say that Van Dyke should be "immune" from first-degree murder charges because he was on-duty, in uniform and acting according to an existing use-of-force policy when he shot McDonald 16 times Oct. 20, 2014.

"The last place Jason Van Dyke wanted to be [that night] was the site of the shooting," Herbert said. "He had just gone to 7-Eleven for a drink, some coffee. ... It was his duty to respond to the scene and take action."

Herbert called the fatal shooting "business as usual."

"If a firefighter arrives on the scene [of a fire...] and smashes in the roof with an ax," Herbert said, "are we going to charge that firefighter with criminal damage to property? Of course not. It's preposterous."

Left: Kane County State's Attorney Joseph McMahon. Right: Defense attorney Daniel Herbert. Photo credit: Chicago Tribune/Nancy Stone

Special prosecutor Joseph McMahon, who was brought in from Kane County after former Cook County State's Attorney Anita Alvarez recused herself last year, defended the indictment.

Herbert "has really made a chilling argument here — that this was business as usual," McMahon said. "That is scary and chilling."

McMahon cited case law as he methodically dissected Herbert's two motions to dismiss the indictment — neither of which have been made public.

While Cook County prosecutors procured the initial 2015 indictment against Van Dyke, McMahon and his team brought forth a new indictment in March that included an additional 16 counts of aggravated battery on top of the original first-degree murder and official misconduct charges.

"There was no political pressure on me as a special prosecutor" when I sought that indictment, McMahon said. "Those arguments are irrelevant. They are moot."

Judge Vincent Gaughan agreed, dismissing both defense motions.

As Gaughan announced his decision inside his fifth-floor courtroom in the Leighton Criminal Courthouse, 2650 S. California Ave., one of the roughly 30 demonstrators present in the gallery began to loudly snap his fingers in agreement.

Judge Gaughan ordered the man — later identified as Moises Bernal, a teacher from the Instituto del Progresso Latino — held in direct criminal contempt for making a "clicking sound that disrupted this court completely."

Bernal's actions "disrupted the administration of justice," Gaughan said. "It was an insult to me."

Bernal told the judge he was in court Thursday to "see a racist murderer on trial."

Gaughan set bail for Bernal at $40,000. The man was instructed to hire an attorney and appear in court June 21 for a pre-sentencing hearing.

Demonstrator Moises Bernal (center) is escorted out of Judge Gaughan's courtroom. Photo credit: Chicago Tribune/Nancy Stone

Security had been heightened Thursday to both protect Van Dyke from possible demonstrators and as a building-wide response to this week's fatal arena bombing in Manchester, England, a sergeant with the Cook County Sheriff's Office said. Those attending Van Dyke's hearing were subject to bag checks and multiple metal-detector screenings.

Van Dyke's appearances have frequently drawn protestors, prompting Van Dyke's request last month to be exempted from appearing at routine hearings. That request was denied.

Activist William Calloway, who had hoped to amass a large crowd Thursday, said he plans on packing the courtroom at upcoming hearings. Calloway was pleased that most of Thursday's demonstrators were civil and disgusted by Herbert's depiction of McDonald's murder as "business as usual."

"We need to make an example out of Jason Van Dyke" by procuring a conviction, Calloway said. "What he did was completely egregious, and it's happening all over the country."

According to prosecutors, McDonald was stealing car radios and was armed with a 3-inch blade when Chicago Police officers in Archer Heights called in a radio request for a Taser on Oct. 20, 2014.

Van Dyke and his partner responded to the call, but never specified whether they had a Taser available to them. Within seconds of arriving on the scene, Van Dyke pulled his gun and emptied his clip into McDonald, shooting the teen 16 times.

Video of the shooting, which was released via court order in November 2015, sparked citywide protests that shut down the Mag Mile. Van Dyke is currently free on bond.