FOR IMMEDIATE RELEASE
Thursday, November 19, 2020

WASHINGTON – The U.S. Attorney’s Office for the District of Columbia will not pursue federal criminal civil rights charges against the Metropolitan Police Department (MPD) officer involved in the fatal shooting of 18-year-old Deon Kay, the Office announced today.

            Officials from the U.S. Attorney’s Office’s Public Corruption and Civil Rights Section (PCCR) and MPD’s Internal Affairs Division (IAD) informed representatives of Mr. Kay’s family today of this determination.  Based on the results of a thorough investigation, the U.S. Attorney’s Office cannot prove, beyond a reasonable doubt, that the MPD officer who shot Mr. Kay committed willful violations of the applicable federal criminal civil rights statute.

            PCCR and IAD conducted a thorough review of Mr. Kay’s shooting, including examining: statements from officers and civilians on the scene; a voluntary statement from the officer who shot Mr. Kay; body worn camera (BWC) footage; radio transmissions; evidence collected from the incident scene and attendant results of forensic tests; and autopsy and toxicology reports.  The review uncovered no evidence that would support a criminal prosecution.

            The investigation determined that, on September 2, 2020, an MPD officer fatally shot Mr. Kay, an 18-year-old District resident, during an encounter in a small parking lot near 225 Orange Street, Southeast.  According to information obtained during the investigation, the MPD officer and other officers reported to that location because they had obtained information that there were individuals there displaying firearms from inside a parked car.  When the officers arrived, individuals inside the parked car exited and ran, including Mr. Kay.  One officer encountered Mr. Kay and shot him in the chest.  That officer’s BWC shows that Mr. Kay was holding a gun in his right hand and, in approximately the same instant that the officer fired, raised his right arm with the gun in his hand.  Mr. Kay tossed the gun, which was found approximately 98 feet from where he was shot.  The investigation did not determine whether Mr. Kay tossed the gun deliberately or in response to being shot at.  MPD officers on scene administered emergency medical measures and Mr. Kay was transported to George Washington University Hospital, where he passed away approximately 45 minutes after the shooting.  Another individual who was inside the parked car with Mr. Kay was found to be in possession of a gun.

            The focus of the criminal investigation was to determine whether federal prosecutors could prove that the officer violated any federal or local laws, concentrating on the possible application of 18 U.S.C. § 242, a federal criminal civil rights statute.  In order to establish a violation of this statute, prosecutors must prove, beyond a reasonable doubt, that the officer acted willfully to deprive Mr. Kay of a right protected by the Constitution or other law, here the Fourth Amendment right not to be subjected to an unreasonable seizure.  Prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that he did so “willfully,” which the Supreme Court has interpreted to mean he acted with a bad purpose to disregard the law.  As this requirement has been interpreted by the courts, evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent required under Section 242.

            The investigation revealed no evidence to establish beyond a reasonable doubt that the officer willfully committed a violation of 18 U.S.C. § 242. Specifically, the U.S. Attorney’s Office is unable to disprove a claim of self-defense or defense of others by the officer involved, who fired a single shot at Mr. Kay within one second of Mr. Kay holding a gun in his hand and raising his arm.  The U.S. Attorney’s Office has therefore closed its investigation into this matter.