Wisconsin Examiner

Tosa Police Found ‘Significant Training Issues’ in Shooting by Mensah

Chisholm recommended body cameras after Jay Anderson’s shooting but department stalled.

By , Wisconsin Examiner - Dec 1st, 2020 10:26 am
Wauwatosa Police Department squad cars responding during a standoff with protesters on July 7, 2020. Photo by Isiah Holmes/Wisconsin Examiner.

Wauwatosa Police Department squad cars responding during a standoff with protesters on July 7, 2020. Photo by Isiah Holmes/Wisconsin Examiner.

“I have identified two significant training issues regarding this incident,” reads a version of the Wauwatosa Police Department (WPD) administrative review of Jay Anderson’s shooting by the Officer Joseph Mensahwho resigned on Nov. 30. The review, conducted by supervisors within the department, is part of a trove of emails obtained through recent open records requests. The undated document, sent in a 2018 email, appears to have been created over a year after the district attorney ruled on the shooting.

Jay Anderson Jr. was 25 years old when he was killed in June 2016, less than a year after Mensah’s first fatal officer-involved shooting. Anderson drove to Madison Park, near the Milwaukee-Wauwatosa border, shortly before 3 a.m. where he parked. His family has maintained that Anderson celebrated his birthday a week early, and decided to sleep off his intoxication rather than risk the drive home. Around 3 a.m. Mensah arrived to conduct a routine check at the park.

A picture of Jay Anderson, Jr. Photo by Isiah Holmes/Wisconsin Examiner.

A picture of Jay Anderson, Jr. Photo by Isiah Holmes/Wisconsin Examiner.

The Milwaukee Police Department (MPD) led the investigation into the shooting, as an outside agency is required to do under Wisconsin law. According to the statement that Mensah gave after the shooting, he shined his squad car’s lights on Anderson’s car before approaching. Starting with the front passenger-side window of Anderson’s car, Mensah shined a flashlight looking for additional occupants. Anderson was alone, and needed to be woken up before Mensah could ask him why he was there. Anderson then fell back asleep and again needed to be roused.

Mensah said he asked Anderson a couple of brief questions before noticing a pistol on the front passenger seat. The officer stated he ordered Anderson to raise his hands, which he did. These final moments before Mensah fired were captured by the squad car’s dash camera.

At several points, Anderson’s arms dropped in an act which Mensah described as Anderson lunging toward the gun, according to MPD’s investigative report. Anderson’s family, however, argued that it appeared he was struggling to not pass out again rather than lunging.

Mensah fired several shots through the passenger window, then radioed in that Anderson had a gun and that shots were fired. Before other WPD officers arrived Mensah reported, “Subject down, I’m okay.” When other WPD officers arrived, they checked Anderson, noting that he wasn’t breathing. Less than 30 seconds of mute footage was captured by the dash camera. Footage from another squad car, which arrived as back up, shows the gun being removed from Anderson’s car.

Some of the back-up officers then removed the gun Mensah said he saw beside Anderson before pictures were taken for evidence, and before another agency arrived on the scene. While the Milwaukee Police Department led the investigation, as Wisconsin law requires an outside agency to do, it was WPD detectives who canvassed the area and later reported to MPD that there were no other witnesses.

Turn off your cameras, don’t touch evidence

The administrative review, submitted by WPD Lt. Jeffrey Farina and Sgt. Michael Schultz, described the training concerns. These reviews conducted by the department are separate from the investigations which informed the district attorney’s final decision.

“First,” stated the internal review, “all audio and video must be turned off after the incident itself is over. (Mensah was asked too many questions while the microphone was still active). I have created a support officer checklist to assure microphones and cameras are shut off at the proper time. I also think this issue needs to be discussed at roll calls so everyone is on the same page.”

That, however, was the opposite message sent by another administrative review focusing on Mensah’s first shooting a year before, involving 28-year-old Antonio Gonzales. “The video and audio capabilities we have as a department are sometimes crucial to the investigation of an incident,” read the Gonzales review, which is also found among the internal emails. The Gonzales review was submitted by Lt. James Mastrocola, who is no longer employed at WPD.

Although no training issues were identified in the WPD administrative review of the Gonzales shooting, there were also notes concerning a failure to use cameras. Some officers involved in the Gonzalez incident turned off their dash cameras shortly before arriving at the scene.

“Some officers deactivated their in-car video recording system upon arrival or within a couple blocks of their arrival,” it reads. “Other officers did not use their audio recorder.” Mensah and one other officer were involved in the Gonzales shooting, with more officers arriving later as backup.

The Gonzales review stressed that officers “should be encouraged to allow the in-car video recording system to continue to record, even after arrival, on critical incidents,” as well as their audio recorders. The review stated, “officers should be aware that this recording could assist investigations by identifying potential witnesses, vehicles or actions of suspects.”

Lack of video made District Attorney John Chisholm’s own investigation into the Anderson shooting more difficult. Chisholm also emphasized the importance of WPD making use of cameras, and particularly body cameras.

“We had made it very clear after the Anderson incident that we felt that the body cameras were essential,” Chisholm told the Wisconsin Examiner. “They should expedite equipping the department with body cameras. So that’s one of those frustrations … both for accountability purposes, but also to protect the police officer if they have responded appropriately to a circumstance, then using a system that’s actually designed to aid in that process, like a body camera, is a really powerful and useful tool.”

WPD didn’t begin the process of equipping all officers with body cameras until protests came to the suburb following the shooting of 17-year-old Alvin Cole on Feb. 2, 2020. Lack of video was a persistent problem Chisholm faced in ruling on all three of the shootings involving Mensah, including the Gonzales shooting.

“If you don’t have the body cameras,” Chisholm noted, “then all you really have are the systems you had in the Gonzales and Anderson shootings, which are the squad-mounted video systems. And the problem that you encounter there, of course, is exemplified by the Alvin Cole case in that a lot of these incidents don’t occur in the immediate vicinity of the squad.”

A foot chase occurred in the Cole shooting, which can lead anywhere. “It can go all over the place,” Chisholm told Wisconsin Examiner, “and you’re locked into the view that you get from wherever that car was parked at the time the pursuit begins.”

Next, the WPD review into Anderson’s shooting highlighted the issue of evidence collection that needs to be addressed in training.

“We need extra training in evidence collection,” it reads. “Not only when to collect items but when we shouldn’t. I think this issue needs to be brought to the attention of the Training Lieutenant and/or Detective Lieutenant. I believe either roll call training or in-service training would be the best route to take to ensure we collect what we need to and leave other items alone to be photographed.”

Two officers from Wauwatosa who arrived on the scene after Anderson was shot were involved in the removal of the gun from Anderson’s car. On Feb. 14, 2017, two months after Mensah was cleared of wrongdoing in shooting Anderson, both officers were asked why they moved the gun. “Both stated they removed the gun from the vehicle because they were concerned that Anderson’s right hand was very close to the firearm,” the review reads adding that both officers felt Anderson was “playing ‘possum.”

One of the two officers stated that “he didn’t see a large wound to Anderson’s head and he only saw a small amount of blood coming from Anderson’s left ear, this reason added to the suspicion that Anderson was pretending to be asleep.” A glaring facial wound, however, was the first thing Anderson’s father remembers seeing when MPD detectives showed him pictures of his son. “It was in the jaw,” Jay Sr. told Wisconsin Examiner. “Ain’t no way in the world that man can say a little blood was gushing. A Glock 40 makes a big hole, man.”

While he allowed that the officers could have had some difficulty seeing his son because the park was dark, he took issue with the officer’s reasoning for moving the gun. “Ain’t no one playing possum after getting shot in the head six times,” said Jay Sr.

During an interview with Wisconsin Examiner in September, Chisholm also touched on whether the gun should have been moved. “That’s a fair criticism,” he said. “That’s one that you put into the ‘lessons learned,’ don’t do that whenever you can avoid doing that. They might have legitimate reasons for having done that, or thought they were doing the right thing.”

Jay Sr. isn’t so sure, however, especially after viewing dash video from the back-up officers which was never made public. From where he sat it appeared all the officers, Mensah included, were aware Anderson was dead well before the gun was moved.

WPD spokeswoman Sgt. Abby Pavlik told Wisconsin Examiner, “If a training concern is identified during an administrative review, that officer is subject to additional training. Many times, when a concern/deficiency is identified it results in additional training for the entire department.”

A review a year late

Kimberley Motley, one of the lawyers representing the families of the three people Mensah has killed, found a couple of things unusual in the internal review covered by the emails. For one, the review included in emails doesn’t match another copy of the review she received as part of Mensah’s personnel file. In that personnel review, a third training concern was identified.

“We need additional training in regards to the process of administering first aid to a victim who has sustained a significant injury,” it read. “During this training, we should focus on removing the victim from a vehicle and make sure the suspect is properly secured.”

Not providing speedy medical aid to Anderson was one of the first things Motley focused on after taking on the cases. About three minutes passed after officers arrived to back up Mensah before Anderson received any medical aid. Wauwatosa police also kept firefighters out of the park until minutes after the gun was removed.

“There was no more threat,” noted Motley. “So there’s no reason to not issue any type of aid to Jay Anderson.” She also questioned how thorough the department’s review actually was. In the version found within the internal emails, a large portion titled “justification” is highlighted in yellow, and appears to be lifted directly from the Gonzales shooting administrative review. In a separate email chain sent in January 2018, WPD supervisors discussed the creation of the Anderson review.

“Confidential,” wrote WPD Captain Brian Zalewski, who also no longer works for WPD, to Lt. Luke Vetter, who remains employed there, “but for your info as we get ready to begin the internal/after action of the shooting. I like the format and the DAAT part can literally be cut and pasted for the most part. We will obviously talk more, but you can review this for now.”

DAAT stands for Defense and Arrest Tactics. It is described in WPD’s review as “a system of verbalization skills coupled with physical alternatives. This system teaches many different techniques to help officers make good, sound use of force decisions.” Since the Gonzales and Anderson shootings were not identical situations, Motley questioned why this portion of the review was reduced to a simple “copy and paste” job.

Motley further added that, “this report that’s in the emails is different than the report that we received in Mensah’s personnel file. So that’s a real concern for us.”

In addition to the highlighted portion, the version in the email specifically mentioned two training concerns, whereas the version in Mensah’s personnel file later acquired by Motley listed three. The report in the emails also lacked the section where the two responding officers were questioned about why Anderson’s gun was removed, although the differences could be accounted for if the version found in the emails was not a finished draft.

Lessons learned?

Regardless of the reason for the discrepancies, the presence of multiple training concerns raised red flags for Motley. “There were a lot of people who had a lot of questions after that shooting,” said Motley, “especially since he was the only witness, as they claim, to that shooting.” Following the shooting, she wondered what, if any, procedures changed as a result of the shooting death. Or whether Mensah was psychologically evaluated after killing a second time in less than a year.

Sgt. Pavlik told the Wisconsin Examiner, “We do not have a policy regarding screening officers for PTSD. However, officers do see a mental health professional prior to returning to work after involvement in a critical incident.” When asked whether there are situations where an officer’s PTSD would prevent him from being assigned patrol-type duties, she added, “There is no one-size-fits-all answer to this question. If such an instance would occur, it would have to be evaluated on a case-by-case basis.”

While the administrative review revealed details about the Anderson shooting, it also raised further questions that those close to the people who were killed by Mensah want answered, such as: Did any policies change following the shooting? What did WPD learn from the incident?

In a final section of the review, WPD summarized its conclusion on the Anderson shooting: “The incident began as a lower level police interaction that was completely controlled by Jay Anderson and his actions. If Anderson would not have reached for a firearm and if he would have listened to Officer Mensah’s orders, this would have ended up as a ‘routine’ officer/citizen contact. However, due to Anderson’s actions, we will never know.”

Despite the three significant training issues brought to light in the review, the supervisors who co-authored it concluded, “I do not believe any officer involved in this incident violated any policy or procedure.”

Reprinted with permission of Wisconsin Examiner.

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