After having already faced a firestorm of protest, the Wisconsin city of Kenosha passed a state of emergency in preparation for an explosive announcement Tuesday that prosecutors are sparing a white former police officer who shot and paralyzed a Black father. Fired officer Rusten Sheskey, a seven-year veteran of the Kenosha Police Department, shot Jacob Blake seven times in the back at point-blank range Aug. 23, 2020, while his children were in his vehicle nearby. The incident was captured on a neighbor’s devastating video and ignited protests in Kenosha and throughout the country, one even turning deadly allegedly at the hands of a racist counter-protester.
The emergency resolution, passed by the Kenosha city council, gave Mayor John Antaramian authority to act following Kenosha District Attorney Michael Graveley’s announcement. Graveley said Tuesday “no Kenosha law enforcement officer” in Blake’s case “will be charged with any criminal offense based on the facts and the laws.” "I'm going to also tell you just because I think it is important that no charge will be filed against Jacob Blake in regards to this incident as well," Graveley said. Protests to the decision have remained peaceful thus far, ABC7 reported.
Gov. Tony Evers tweeted Tuesday that the prosecutor’s decision is “further evidence that our work is not done.” Civil rights attorney Lee Merritt said the investigation, led by a retired cop, “was not even attempted.” MSNBC contributor Jill Wine-Banks called the decision “inexplicable” in a tweet Wednesday. “1) once would disable any threat, 2) in the back means Blake was no threat, 3) if officer was afraid, he's in the wrong business. Police reform essential," she said in the tweet.
Officers were serving Blake a felony arrest warrant when they were called to his girlfriend's home to investigate a claim that Blake was at the woman’s home in violation of a restraining order. Blake had been charged with the felony of third-degree sexual assault, misdemeanor trespassing, and misdemeanor disorderly conduct in July, according to the Milwaukee Journal Sentinel. As part of a plea deal, Blake admitted to two “misdemeanor counts of disorderly conduct involving domestic abuse” in exchange for two years on probation, the newspaper reported.
When officers arrived, they tried to arrest Blake, but he resisted, Wisconsin Attorney General Josh Kaul said three days after the shooting. “Law enforcement deployed a Taser to attempt to stop Mr. Blake, but the Taser was not successful in stopping him,” Kaul said. “Mr. Blake walked around his vehicle, opened the driver’s side door and leaned forward.” The Kenosha Police Department didn’t have body cameras at the time but has since been allocated funding to purchase them. “During the investigation following the initial incident, Mr. Blake admitted that he had a knife in his possession,” Kaul said. Investigators later found the knife in the floorboard of his vehicle, but civil rights attorney Ben Crump questioned how much of a threat the knife presented. "Nowhere does the video footage show a knife extended and aimed to establish the requisite intent. Also, to establish that the officer reasonably believed he was in danger... if he felt in danger, why did he chase Jacob Blake?" the attorney tweeted.
Graveley said during his press conference he only talked to Blake for the first time minutes before the press conference and that he had not spoken with any of the officers impacted so their statements wouldn’t influence his decision. The prosecutor said if he does not have a case he can prove “beyond a reasonable doubt” he is “ethically obligated not to charge such a case.” The most pertinent question, in this case, is whether Sheskey had enough evidence to disprove claims of self-defense by the officers involved, the prosecutor said. "I've heard a number of people talk to me about this case, and they say, "well, you know let the officers claim self-defense. They'd have to prove that,'" Graveley said. “And the reality is that's just not the case. In Wisconsin—and I believe this is law throughout the country but certainly in Wisconsin—when there is enough information to raise self-defense, the burden of proof is on the state."
Noble Wray, an independent use of force expert in this case, said during the press conference he considered multiple elements of the case to reach his recommendation. Wray said that the video of Blake being shot was "difficult to watch." “As a person, that really bothered me,” he said.
"As a police professional, when I looked at that I had problems," he later added. "The first thing that came to my mind as Mr. Blake is rounding the corner in front of that vehicle is 'why didn't the officers just grab him? Why didn't they just grab a hold of this guy and take him down? Why did they allow for him to get to that side of the car and then shoot him in the back?'”
Wray didn’t answer those questions but instead cited legal cases that inform police use of force such as the 1989 Graham v. Connor Supreme Court case. In that case, an officer deemed suspicious a man quickly leaving a store without making a purchase and decided to follow him. That man, Dethorne Graham, who was in search of orange juice to counteract the effects of his friend's insulin reaction, determined the line was too long and left the store only to end up handcuffed and injured by police. The Supreme Court ended up sending the case back to a lower court and determining that to be considered excessive, use of force must be objectively reasonable in that it responds to a severe crime, addresses a suspect posing an immediate threat to officers or others, and involves a suspect who is actively resisting or trying to evade arrest, according to the federally funded National Criminal Justice Reference Service. Wray said that with the other elements clearly established, he would call it “extreme actively resisting” in Blake’s case.
Wray has overseen investigations on 10 to 20 officer-involved shootings and served as police chief for 10 years about 115 miles northwest of Kenosha in Madison, Wisconsin. He worked in law enforcement for about 30 years before retiring in 2013. In that time he’s focused on what he refers to as "trust-based policing" or building relationships between officers and the communities they serve, according to the Milwaukee-Wisconsin Journal Sentinel.
He said the criminal justice system is a difficult system, “harsh” and built on “racism after racism.” “And we are trying to work through this, but we cannot work through this by just trying to find a decision that is comfortable with people,” Wray said. “We’ve got to find the right decision. It’s got to be grounded in truth. It’s got to be grounded in facts. That’s the obligation that I was given when they told me to look at this.”
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