Federal prosecutors announced Friday there would be no charges in the shooting of Jacob Blake. After unsuccessfully trying to detain him, Kenosha officer Rusten Sheskey shot Blake, who is now paralyzed from the waist down.
Sheskey maintains he both acted in self-defense and was trying to keep Blake from driving away, despite shooting Blake in the Blake multiple times. Despite pledges to pursue justice, the Department of Justice under the Biden administration still has to follow the same rules as prior administrations.
A familiar story, reactions across Twitter highlighted the wild result of an officer shooting someone at point-blank range without any accountability. Scott Hechinger, who runs an organization providing support to public defenders, noted that Sheskey returned to work without any form of discipline.
Without meaningful federal police reform, federal guidance remains slanted toward absolving officers. D.C.-based justice journalist Chuck Modi tweeted, “a system that says there is not even enough information to TALK about convicting [a] cop is a system that needs to be abolished.”
The system is not broken; it is working as intended. Internal guidance for the Department of Justice explained that action against law enforcement is governed by a federal criminal statute 18 U.S.C. § 242, which states in part: “Whoever, under color of any law, …willfully subjects any person…to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime].”
The guidance further explains how prosecutors should evaluate the available evidence to determine whether an officer violated Section 242.
Section 242 is intended to “protect all persons in the United States in their civil rights, and furnish the means of their vindication.” Screws v. United States, 325 U.S. 91, 98 (1945) (quoting legislative history).
To prove a violation of § 242, the government must prove each of the following elements beyond a reasonable doubt: (1) that the defendant deprived a victim of a right protected by the Constitution or laws of the United States, (2) that the defendant acted willfully, and (3) that the defendant was acting under color of law. A violation of § 242 is a felony if one of the following conditions is met: the defendant used, attempted to use, or threatened to use a dangerous weapon, explosive or fire; the victim suffered bodily injury; the defendant’s actions included attempted murder, kidnapping or attempted kidnapping, aggravated sexual abuse or attempted aggravated sexual abuse, or the crime resulted in death. Otherwise, the violation is a misdemeanor.
The guidance explains that establishing intent requires the officer to know their action was wrong and do it anyway. “Therefore, even if the government can prove beyond a reasonable doubt that an individual’s Constitutional right was violated, § 242 requires that the government prove that the law enforcement officer intended to engage in the unlawful conduct and that he/she did so knowing that it was wrong or unlawful,” continued the guidance citing the case Screws v. United States.
Further, the federal statute prohibits the prosection of “mistake, fear, misperception, or even poor judgment” under the law. Given the limited nature of federal intervention, state and local action are critical in the interim.