At the beginning of January, the Kenosha County district attorney announced that he would not criminally charge Officer Rusten Sheskey, who shot Jacob Blake in the back multiple times while responding to a domestic violence complaint. Blake was paralyzed from the waist down.
The DA said Sheskey’s use of force was acceptable under the circumstances, and that Skeskey had a valid self-defense claim that would prevent the DA from prevailing at trial.
Racial justice activists say the decision wasn’t unexpected. But they argue that the failure to charge officers like Sheskey prevents accountability, in a long line of police using excessive force.
Alexis Hoag is associate research scholar and lecturer at Columbia Law School. She addresses potential legal developments in the Jacob Blake case in the wake of the DA’s decision.
“Civilly, there's Wisconsin state law, there's also federal law,” she says. “There are federal statutes that were enacted during Reconstruction as a means to provide legal redress to Black people who were victims of state violence. And I'm speaking of Section 1983, which is a civil statute provides a private right of action.”
42 U.S. Code § 1983 doesn't rely on a district attorney or the Department of Justice to bring the lawsuit. But a private individual can retain counsel and file a civil lawsuit seeking money damages against someone acting under state law, like a police officer or police department.
Officers have a defense to § 1983 claims called qualified immunity.
“Qualified immunity is a judicially created defense within the last about 40 years that basically says that a law enforcement official state actor can assert immunity in most situations, unless, a clearly established right was violated that that all sort of actors must be able to recognize,” Hoag explains.
Hoag says even if Mr. Blake retains counsel who files a § 1983 lawsuit against the individual officer and against the Kenosha Police Department, qualified immunity makes it “a hard road to go on.” Though some have been able to obtain settlements because of civil rights claims against police departments, like the families of Breonna Taylor, Tamir Rice and Michael Brown.
There's currently a federal civil rights investigation into the Aug. 23, 2020 shooting of Jacob Blake. It’s being conducted by the FBI in cooperation with the Wisconsin Division of Criminal Investigation and is being overseen by prosecutors from the U.S. Attorney’s Office and the U.S. Department of Justice’s Civil Rights Division, who will make a charging decision independent of the state criminal case.
Hoag says the Department of Justice has certain federal statutes that they can also rely upon to prosecute officers.
“So outside of what happens at the state level, our law does empower the federal government to come in and perhaps do investigations. There is a federal criminal equivalent to 42 USC § 1983, which is section 18 U.S. Code § 242,” she says.
But Hoag says the jurisprudence over § 242 has really developed so that it's hard for people to secure a federal conviction against a police officer. “Again, because of what our legal system allows federal actors, or rather what our legal system allows law enforcement officials to do, how we allow them to operate,” she says.
Several officers were tried and sentenced under these federal civil rights-related statutes after they beat Frank Jude Jr., a Milwaukee man, in 2004.
But a federal civil investigation can also involve looking at the patterns and practices of a police department as a whole.
“This is outside of an individual lawsuit Mr. Blake would file and instead would be brought by individual attorneys, with the Department of Justice, perhaps in concert with the U.S. Attorney's Office, looking at the history of conduct of the Kenosha police department,” Hoag says. “These [investigations] were quite popular during Obama's presidency. I want to say there were upwards of 25 to 30 federal investigations going on around different police departments in this country. I think Ferguson, Missouri was one of the more well-known investigations.”
Such a "pattern-or-practice" investigation could result in the Kenosha Police Department being monitored by a federal judge, Hoag says. “And so then there has to be periodic reporting from the police department, there has to be data collection."
Hoag says the data in this country from police departments is often as a result of some sort of civil lawsuit.
“So then now we have the Oakland Police Department, the Los Angeles Police Department, the NYPD actually collecting data on who they use force against, the demographics of the law enforcement officials involved, demographics of the suspects, of the private individuals who receive that force. And so that the kind of creative remedies that can happen as a result of a civil action,” she says.
Ultimately, Hoag says there needs to be radical transformational change in the way policing operates in this country.
“Police departments are often at war with the very communities they police,” she says. “There are other actors that may be better situated to answer the call. Police officers tend to escalate situations and there are other agencies and actors involved that can help de-escalate. So that when that type of call comes in, we don't have seven shots fired in someone's back and side."