A new policy analysis report from the Badger Institute asserts that changes in civil rights law in Wisconsin would lead to better ways of reviewing officer-involved-shootings.

The report, Rethinking the Evaluation of Police Shootings: A Proposal to Enhance Public Credibility, was authored by Steven Biskupic, a former U.S. attorney for the Eastern District of Wisconsin who served under Attorneys General John Ashcroft, Alberto Gonzales and Michael Mukasey, suggests reviewing shootings through a civil rights lens instead of the current system that only weighs whether to file misconduct or homicide charges.

The report highlights the predictable pattern for police shooting investigations in Wisconsin. “An individual is shot by police under questionable circumstances; protests (sometimes violent) ensue; a prolonged district attorney review is done, which usually results in a determination that no criminal charges are warranted; more protests follow.”

High-profile cases in Kenosha and Wauwatosa as prime examples of that pattern. In early 2020, former police officer Joseph Mensah fatally shot 17-year-old Alvin Cole who was in possession of a handgun. It was Mensah’s third shooting during his five-year career at the Wauwatosa Police Department. After months of protests no charges were issued against Mensah. Biskupic also authored an independent report which found that Mensah violated department policies in comments he made about the case during a radio interview.

In August of the same year, Kenosha officer Rusten Sheskey shot Jacob Blake seven times in the back. Blake survived but was left paralyzed. During the protests and civil unrest that followed, millions of dollars in property damage occurred, and two people were be killed by teenage militia member Kyle Rittenhouse.

“Fueling the controversy of each shooting is this fact,” reads the report, “In the past 50 years, no Wisconsin police officer has been convicted of a criminal offense in connection with the hundreds of fatal police shootings of suspects during that time, including when the suspect was unarmed.” It further stresses that, “only a handful have ever been charged. A single conviction was secured in Milwaukee in 1979, but that stemmed from a fatal shooting in 1958 and occurred only after a fellow officer decades later admitted to lying about the shooting.”

Not only has the process become predictable, it has also caused deep fissures in the public over police shootings. While some people feel that the lack of charges against an officer shows there was no wrongdoing, others feel the lack of charges are indicative of a broken system. Biskupic wonders if there is “a way to bridge the gap between these two groups, to add credibility to the district attorney review of police shootings, without exposing officers to unwarranted liability?”

In order to help break the cycle, Biskupic proposes that Wisconsin enact new state law that would criminalize the “willful deprivation of civil rights, similar to the current federal civil rights statute.” Doing so would accomplish several things. Not only could it provide district attorneys with more flexibility in their charging decisions, but the focus in shooting investigations would change from whether the officer committed homicide to whether the officer willfully used excessive force.

Prosecutors could also benefit by having the opportunity to directly consider racial animus under an equal protection analysis. Finally, such a law could itself act as a deterrent. Biskupic notes that the existing federal laws are rooted in the post-Civil War era, which saw officers disregard and violate the rights of African Americans.

“In 2020 134 federal prosecutions were brought nationally against police officers in the United States;” the report states, “the year before, there were 168. But these numbers include civil rights violations in a broader context beyond just police shootings. By contrast, there were approximately 1,000 fatal police shootings nationally in each of those years.” In Wisconsin, federal prosecutors had an option to use the federal statutes to criminally charge officers in shootings, but declined.

One of the most notable uses of the federal civil rights statute in Wisconsin was the 2004 beating of Frank Jude in Milwaukee. Jude attended a party at a Milwaukee police officer’s home, which was also attended by several off-duty officers. As Jude was leaving, one of the officers accused him of stealing a badge. They broke his fingers, punctured his eardrums, and kicked him in the groin to discover where the badge was. An officer also put a gun to Jude’s head and threatened to shoot him, others shouted racial slurs. Responding Milwaukee officers joined the beating.

Three off-duty officers at the party were charged in state court with assault, but were acquitted by a jury. Following a federal civil rights investigation, however, nine officers were charged and eight were sentenced to prison. In early 2020, a similar case occurred in Milwaukee involving off-duty police officers. As in the Jude case, Joel Acevedo attended a party at the home of a Milwaukee officer. Prosecutors say Acevedo was put in a choke hold, and died eight days later.

Officer Michael Mattioli was charged with first-degree reckless homicide and was released on bail. He was later suspended by the department and has since resigned. A judge has ruled that redacted body camera footage from responding officers can be released but, that has yet to occur. In early October, an open records request filed by Wisconsin Examiner for the video was denied due to the ongoing prosecution case.

Biskupic’s report addresses the issue of racial disparities in police shootings, and how a change in law could make a difference. “Of 106 police shootings in Wisconsin since Jan. 1, 2015, two-thirds of those shot were White and one-third were minorities in a state where the non-White population is about 17%,” the report notes. It further highlights that in many cases, but not all, the shooting officer is White.

This was true of the Blake shooting in Kenosha, as well as the shooting of Dontre Hamilton in 2014 in Milwaukee. In Wauwatosa, the shooting officer was Black, but worked in a city and department with a history of racial discrimination. Furthermore, “in each of the Wisconsin cases discussed in this analysis, the district attorneys and U.S attorneys were White.”

The report concludes that whatever the strategy, solutions are needed. “Police shootings are inevitable given the nature of the job,” it states, “including the daily risk that officers face. Controversy over such shootings now seems inevitable but that has not always been the case. Given Wisconsin’s 50-year history of very few charges and no criminal convictions in police shootings, one way to minimize the next controversy is to change state law by adding a Wisconsin civil rights statute.”

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