Illinois prosecutors have charged Chicago Police officer Jason Van Dyke with first-degree murder for the killing of 17-year-old Laquan McDonald last year. Van Dyke allegedly fired 16 shots into McDonald after McDonald brandished a knife in the presence of Van Dyke and other officers.
There is outrage among activists that the Cook County investigation took about a year to conclude before charges were filed. There has been no criticism, so far as I have seen, however, of the Obama Justice Department or of Attorneys General Holder or Lynch. DOJ could also have investigated and charged Van Dyke for violating 18 U.S.C. 242, which makes it a federal crime to willfully deprive someone of their constitutional rights under color of law. In fact, news reports indicate that the FBI was heading the investigation. If the allegations against Van Dyke are true, and he has no law enforcement defense, then Section 242 would seemingly apply. Protesters are demanding justice for McDonald and have been attempting to disrupt holiday shopping efforts, but as far as I can tell, their anger and frustration are being directed at Chicago – but not federal – officials.
Also in Chicago, police announced the arrest of Corey Morgan, a suspected gang member who is accused in the killing of nine-year-old Tyshawn Lee. Morgan and others allegedly lured the nine-year-old boy into a Chicago alley and shot him in the head, allegedly as a result of a gang dispute involving Tyshawn’s father.
What kind of person would lure a nine-year-old into an alley and shoot him in the head? What punishment is fitting for such a crime? Illinois, after all, no longer has capital punishment. Allow me to offer another option: it is a federal capital offense to commit a murder in aid of racketeering. See 18 U.S.C. 1959, Violent Crimes in Aid of Racketeering (VICAR). Assuming that Tyshawn’s killing was gang-related, that the gang qualifies as a racketeering enterprise (a good bet), and the killing was done for the purpose of gaining entrance to, or increasing or maintaining position in, the racketeering enterprise, then the VICAR law applies and the Feds can take the case. The Government would then likely be able to add a 924(c) count, as well, also allowing the death penalty (because the killer used a firearm). I do not know if the United States Attorneys Office in Chicago has considered taking the case, but I am hoping that the folks there are having that conversation now.
Meanwhile, I would note that I have not, over the past few days, seen activism, protests or marches targeting the gang violence in Chicago (though I read that some activists had included sentiments about Tyshawn’s killing in one demonstration). Surely, Tyshawn is as deserving of justice as McDonald. And surely, gang violence is as worthy of public outrage as unlawful police violence.
Of course, each case implicates the DOJ’s Petite Policy and there may be evidentiary or law enforcement reasons for not pursuing these cases in federal court. But each of them is at least a potential federal prosecution. And the potential federal role in these cases has not been a subject of much conversation thus far.