Tosa Police ‘Protestor List’ Includes Reporter

New details have emerged about the Wauwatosa Police Department’s (WPD) “protester list,” the existence of which was first reported by the Wisconsin Examiner in January. The list, created early last summer as protests over police killings focused on the Milwaukee suburb, grew from about 40 people last June to nearly 200 people. What’s more, I am one of them.

Attorney Kimberley Motley recently obtained the list as part of her ongoing lawsuits against the city over police actions. She told me I’d been put on the list, which WPD shared with other agencies. Sgt. Cory Wex, a WPD spokesperson, confirmed with Wisconsin Examiner that it was shared with the Federal Bureau of Investigations (FBI), and the Milwaukee Police Department (MPD).

He stated the list was shared, “as a matter of situational awareness,” as other communities, including Milwaukee, “were experiencing kind of the same protests and potential for criminal activity stemming from those protests.” Shortly after Milwaukee’s protests began late last May, several residents reported being visited by FBI agents asking about the demonstrations.

In a way, discovering that I too had been placed on the list due to covering protests wasn’t a huge surprise. I’ve spent close to a year investigating WPD’s protest-related activities. One of those stories revealed that a WPD detective had placed the mayor and other elected officials on a list of higher value targets for the department. Video allowed me to show what happened at particular protests between marchers and police. Other stories focused on the department’s tactics, from issuing $1,300 tickets to seizing phones. Beyond that, I went to high school in Wauwatosa and have had many personal experiences with WPD. But actually seeing myself on the list is something that I’m continuing to process.

Although information included for each person on the list differs slightly, it all follows the same theme. My own entry includes my name, race, date of birth, along with “Wisconsin Examiner” next to that info in brackets. Both my driver’s license picture and my Facebook profile picture were also included, as well as hyperlinks to my personal Facebook profile and the Wisconsin Examiner’s Facebook page. Information on my car make and model were also included.

Motley announced she’d obtained the list on June 26, during an event celebrating the life of of Jay Anderson, Jr. Anderson was killed by former Wauwatosa officer Joseph Mensah on June 23, 2016. Three shootings over five years by Mensah fueled Wauwatosa’s protests. Though Motley is keeping the bulk of the list private, she allowed people at the event who were on the list to view their own entries. Wisconsin Examiner received the list from WPD days later.

“This is a list of over 190 people who the Wauwatosa Police Department has arbitrarily determined are people that they need to put on this list,” said Motley. “Whoever’s on this list, you have a right to know that you’re on this list.” Besides myself Motley is also included on the list, as well as Attorney Deja Vishny who’s helped her work the Wauwatosa cases. Elected officials including Representatives David Bowen (D-Milwaukee) and Jonathan Brostoff (D-Milwaukee) are also on the list.

A redacted version of the Wauwatosa PD protester list

Many people from across Milwaukee’s grassroots network are also cataloged including many who marched with The People’s Revolution. There’s also members of the Milwaukee Alliance Against Racist and Political Repression, Vaun Mayes of the Community Task Force, members of local Wauwatosa groups, independent photographers, and others.

Motley said she had to fight to get a copy of the list and that others had also requested the information and met resistance and delays. Shortly after learning that a list existed in January, Wisconsin Examiner filed subsequent requests for the list, as well as the “protest folder” it had been placed in. Although we’ve received the protester list, we’re still awaiting the contents of the folder.

An example from a Wauwatosa PD investigative PowerPoint discussing social media monitoring

 

The original email the Examiner received through open records mentioning the list was authored by WPD crime analyst Dominick Ratkowski, who wrote that he’d “fully identified” about 40 people on it. Ratkowski is mentioned in other materials obtained by Wisconsin Examiner as monitoring social media for protest activity and discussion. After Ratkowski sent his email, the Wauwatosa Common Council, responding to the demands of protesters, called for Mensah to be suspended in July, 2020.

How a journalist ended up on the list

Though Ratkowski himself called the document a “protester list,” WPD rejected that label when I asked why I, as a journalist, was on it. “Calling it a protester list is probably an oversimplification of that,” Wex said. “That document is a tool that our investigative division uses to identify potential witnesses, victims, or suspects that were involved with protesting or the activities surrounding the protests last summer.”

Wex continued, “as far as why you were put on that, you know, because you were a witness to what was happening. … you were never listed as a suspect by any means. You were never wanted for participating in any of the protests. But, you know, it’s no secret that there were criminal activities that occurred during the protests. And so, we created the list as a tool to just identify people, no matter what their role was. As a victim, as a witness, as a suspect, as just someone who was there who we could talk to potentially if we needed to.”

So far I am the only credentialed member of the media whose name has emerged on the list. However, with nearly 200 people included on the document, that information remains to be confirmed. Wex said that during the protests, the department debated internally on whom it would consider press.

“It’s hard to define who is a reporter these days,” said Wex. “It seems like anyone with a cell phone and a blog could be considered a reporter. You have outlets such as your own, and reporters such as yourself, all the way up to the national media or the local ‘big four’ media in our Milwaukee jurisdiction. You have newspaper reporters, and then you have just your video bloggers. So it would be hard for me to say if you were the only one. I don’t know how many people on that list would consider themselves a reporter, just based on what they do on a day-to-day basis.”

Police departments in some other cities have written policies on whom they consider media and whom they don’t. The Kenosha Police Department, for example, considers people employed by a media company to be press, but regards freelancers as members of the general public. “We have talked about that,” Wex said. “We had talked about like, could we do some type of registration? Like, if you’re going to be a reporter at an event, register with us [so] we know.”

During the curfew in October, people claiming to be press were arrested while filming the family of Alvin Cole, a 17-year-old killed by Mensah in 2020. Cole’s family protested on the second night of the curfew, and were arrested by Wauwatosa police and members of a U.S. Marshals task force while in a car caravan. Uniformed legal observers were also threatened with arrest during the first nights of Wauwatosa’s curfew.

“How do we know?” Wex asked. “It’s real easy to check ‘Isiah Holmes.’ We can Google your name, and check that you’re on the Wisconsin Examinerwebsite. We can see the Fox6 reporters, we can see all those other reporters.” However, “some of the other people who claim to be video bloggers or media, how do you do that? And I don’t think we ever reached a consensus on that, and I don’t think we ever ruled anything out.”

Questionable tactics

I wasn’t the only person who questioned why they were on the list. “Tracy Cole is on this list,” said Motley, speaking of the mother of Alvin Cole who was arrested and injured during the curfew. “I’m on this list.” Motley, Vishny, Bowen, and others on the list were also mentioned in the higher value target documents. Wex said that as far as he knew, warrants or subpoenas were not issued for my Facebook page, the Examiner’s, nor Motley or Vishny’s.

As for being a witness to illegal activity, it’s worth pointing out that dozens of protesters were arrested or cited through the months. Whether it was for unlawful assembly, obstructing traffic, or requiring a special event permit to hold a protest, or violating curfew orders. Most complaints around the marches stemmed from blocked traffic, or loud music and car horns honking in unison with protest chants. Occasionally, elected officials like Mayor Dennis McBride experienced prankish behavior from protesters like toilet paper being thrown into trees and bushes. Several days of protest also saw standing rallies outside of McBride’s home. However, unlike many of the protesters, I was never arrested, detained, or ticketed during or after any demonstration last year.

One of the only times things escalated at a protest prior to the October curfew was in early August. A protest outside the house where Mensah was staying at the time resulted in a confrontation between the officer and marchers. Both Mensah and the protesters accused one another of instigating the exchange, which ended in a marcher firing a gun. No one was injured by the shot, and at least three marchers involved in handling the weapon were quickly arrested. I wasn’t there. Following the incident at Mensah’s house, emails sent by WPD detectives would make mention of MPD and FBI terrorism agents being involved in the investigation into what happened that day.

A recent study by the University of Connecticut found that at least 96% of Black Lives Matter protests nationwide last year were peaceful. In Milwaukee County, less than 10 of the nearly 400 days of ongoing protest resulted in violence, theft, or property destruction.

During protests in August, I filmed a WPD officer taking photographs of me as I covered a protest march. It took months, but I eventually obtained the photos through open records requests. They show several images where pictures were taken exclusively of me, or exclusively of American Civil Liberties Union (ACLU) of Wisconsin legal observers. One picture focused solely on my press credential.

Tomás Clasen, advocacy director for Wisconsin’s ACLU, was one of those legal observers the officer photographed. “While we aren’t sure how law enforcement is using the contents of the list, it is always concerning when the government gathers information about people engaging in protest and news gathering — constitutionally protected activities,” Clansen said.

“Gathering this information only invites misuse, such as the harassment and targeting of the people on the list, or leaking information to embarrass them,” he added. “It could discourage participation in these protected activities, effectively silencing the voices of those who want change.”

A permanent record

Michael German, a fellow at the Brennan Center for Justice at New York University law school with 16 years experience in the FBI, was troubled to hear about the Wauwatosa list. “Clearly, by the time they at least are gathering information about you they knew you were a journalist,” German said. “It’s definitely problematic for law enforcement to be compiling a list of people who were at or near a protest. The whole purpose of the First Amendment is to protect your right to protest, and law enforcement should be protecting that right. Not infringing on it.”

German said that sometimes law enforcement views journalists as “instigators of protests,” which can lead to violating their constitutional rights. “We’ve seen just in the protests over the last year the use of less lethal munitions targeting journalists. So, it’s very clear that law enforcement is viewing journalists as antagonistic to them when they’re just covering the rallies.”

As a former FBI agent, German is particularly concerned with the fact that the list was shared. Not only with his former employer but also MPD, which helps operate one of Wisconsin’s two fusion center intelligence hubs. “That becomes more problematic,” he noted. “While local police may know you as a journalist, and as somebody who covers them — even critically — once it goes to the FBI and these other agencies, they might not recognize that your appearance on this list is as a journalist, not as a suspect.”

Once a list like this gets shared, it becomes that much more difficult to purge if collection of the information was done inappropriately. “Once this type of list is sent out to the broader law enforcement community,” he warned, “whatever context there might have been with local police understanding that this person is a local reporter would be completely lost. And we’ve seen in other instances where journalists get stopped at the border because they’re on these kinds of lists, when they’re simply doing their job.”

The former FBI agent added, “If they’re being targeted because of coverage of protests, or because of their critical coverage of law enforcement then it creates a chilling effect. That is intended to suppress that kind of reporting. And that’s why we have a First Amendment, to protect against that — to limit law enforcement’s ability to harass journalists.”

Troubling on a deeper level is the fact that once a list like this is out there, it’s hard to pull back. “I have concerns about all of these agencies possessing this kind of record,” said German. “But, more importantly, if the conclusion of these court actions are for the police department to purge this list — which seems to be appropriate — how are they going to purge it out of the fusion center? And out of the FBI? Once they’ve disseminated it, it’s got a level of permanence that even if the FBI agrees to destroy the information, how are we not sure it continues to exist in some other place, by some other agency? And who has accountability for it once it goes into the fusion center network, where information is shared broadly across that network with state and local law enforcement all across the country?”

I covered protests in Wauwatosa, so the police put me on a list shared with the FBI was originally published by the Wisconsin Examiner.