Former U.S. Attorney Steve Biskupic, acting as an independent investigator, has found that there is insufficient evidence that Wauwatosa Police Officer Joseph Mensah used unlawful deadly force when he shot and killed Jay Anderson in 2016. However, Biskupic is also recommending that the city’s Fire and Police Commission fire Mensah – not because of the three shooting deaths since 2015 but because Biskupic claims the officer gave misleading statements to a talk radio host and would pose a hypothetical risk of shooting a fourth person.
DA John Chisholm later ruled that Mensah will not face criminal charges in the Alvin Cole death. Read that story here.
As to the possibility of a fourth incident, Biskupic wrote, “Will he hesitate, will fellow officers react differently? Will nefarious members of the public (given officer Mensah’s high profile attempt to bait him? Those questions now objectively exist.”
Read the full report here.
Mensah shot and killed three people on duty since 2015. The Anderson shooting and that of Antonio Gonzales were both previously ruled justified self defense by the District Attorney John Chisholm. Biskupic’s report does not say Mensah’s use of force in the Cole or Gonzales cases was lawful or unlawful, but he does release new details in those cases.
He says the officer shot Cole after Cole accidentally shot himself in the arm. Mensah then said Cole, who still had the firearm in his hand, and had fallen to the ground, pointed the gun at him, before he fired. There were multiple other officers who witnessed this shooting but they declined to speak to Biskupic so it’s not clear what they witnessed the report says.
We reached out to Mensah through a loved one but have not yet received a response.
Biskupic, who is now in private practice, wrote that he found the “evidence insufficient to establish that Officer Mesnsah acted in violation of use of deadly force rules with respect to the fatal shooting of Mr. Jay Anderson on June 23, 2016.”
Biskupic Thinks the Risk of a Fourth Shooting is Too Great
Biskupic wrote that he recommends that the Wauwatosa Police and Fire Commission “affirmatively remove Officer Mensah from active service. The risk and ensuing consequences to the Wauwatosa police Department and the City of Wauwatosa of a fourth shooting by this Officer are too great for this Commission to find otherwise.”
He found that allowing “Mensah to continue the performance of his full police officer duties, including the concurrent authorization for the potential use of deadly force for a fourth time, creates an extraordinary, unwarranted, and unnecessary risk to the Wauwatosa Police Department and the City of Wauwatosa.”
Biskupic also accused Mensah of making “public statements regarding the shootings that are inconsistent and misleading with respect to the facts of these matters.” He said the statements violate an important policy strictly prohibiting an officer from publicly discussing the details of an ongoing investigation of an officer-involved fatality.”
He found Mensah violated rule 9 that says an officer, regardless of intent, shall not create “a situation of unnecessary risk.”
He also found that the officer violated rule 8 (dishonesty or untruthfulness, including “misleading information”) and two policies restricting officers “from making unauthorized public statements regarding fatal shootings during pending investigations.”
He believes that “the totality of Officer Mensah’s actions after the shootings, including his public statements, further impair his fitness for duty, including his ability to testify in court as part of his official responsibilities.”
He also found that there was insufficient evidence to find that, in the Anderson shooting, Mensah failed to follow policy regarding squad video recording device, failed to render medical aid, approached the passenger side, gave preference to conservative media, used social media to respond to critics, participated in a legal defense fund, received improper training or engaged in other activity purportedly in violation of the rules.
He found just cause to remove Mensah from duty and found that termination “would serve in the best interests of the Wauwatosa Police Department the City of Wauwatosa.”
How Just Cause is Defined
Just cause is required. How is it defined? There are seven standards, according to the Biskupic report:
“Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct;
Whether the rule or order that the subordinate allegedly violated is reasonable;
Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate the rule or order;
Whether the effort described in #3 was fair and objective;
Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate;
Whether the chief is applying the rule or order fairly and without discrimination against the subordinate;
Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate’s record of service with the chief’s department.”
Burden of proof is a preponderance of the evidence. The complainant that provoked the Biskupic report is the family of Jay Anderson Jr. That’s why he dealt with that death in more depth.
Biskupic was assisted by Michelle Jacobs, also a private attorney and former federal prosecutor. Five retired FBI agents also participated.
Mensah’s lawyer didn’t let him give an interview to the independent investigator. Legal counsel for five Wauwatosa police officers who were witnesses would not submit interviews without being provided protections Biskupic was not authorized to provide.
Jay Anderson Details in Biskupic Report
Biskupic’s report claims:
On June 22, 2016, Anderson left his home to meet a close family friend at a bar in Milwaukee. Biskupic says that “friends and family members describe Anderson as mild-mannered and pleasant to be around. He was a proud father. Occasionally the stress of having young children at home caused Anderson to want a break to hang out with friends to drink and smoke marijuana.”
Anderson possessed a firearm, a Ruger model SR9c, 9mm, semi-automatic pistol. A friend of Anderson said Anderson possessed it for safety because he lived in a dangerous neighborhood. The gun was purchased by a third party Anderson knew through pick up basketball. How and when it came into Anderson’s possession is unknown.
Anderson had a prior misdemeanor conviction for possession of a firearm while intoxicated.
That night he consumed brandy and smoked marijuana with a friend, who suggested that Anderson go home. His blood alcohol level several hours after leaving the bar was still 0.11. Instead of going home, he drove alone to Madison park in Wauwatosa. The friend said he went there to “chill” and relax.
He entered the park at 1:37 a.m. He likely smoked more marijuana (the car was still filled with marijuana odor when examined by police officers an hour and a half later; and a very small amount of marijuana residue was in a paper fold in Anderson’s pocket.)
Biskupic believes Anderson “likely fell asleep while sitting behind the wheel of the car. His loaded firearm was on the front passenger seat next to him.”The parking lot that night was very dark.
The park was closed per Milwaukee County ordinance.
Mensah driving a Wauwatosa Ford Explorer SUV, entered the parking lot at 3:01 a.m.
He became a probationary police officer on 2015. He completed his probationary period on 2016. He was previously a Dane County deputy sheriff and UW-Madison patrol officer. He was “well-liked by his colleagues and considered by them to be a good officer. His fellow officers continue to strongly support him.” Mensah’s personnel file contains only one disciplinary incident, a letter of reprimand for negligently causing a minor collision. His file contains 14 pages of commendations from citizens and other police departments.
The evidence of what happened is in Mensah’s statements, limited recorded dispatch audio and limited videotape activated by Officer Mensah after he shot Anderson.
Mensah drove into Madison park on routine patrol. The report gave Mensah’s account to another investigator.
It says that he stated that he went to do a park check. The park was extremely dark. He approached Anderson’s vehicle and activated his lights. He thought he saw movement in the vehicle. He approached the vehicle from the passenger side. He used a flash light. He observed the driver was “breathing fast” as if nervous or scared and was lying back against the car seat. He felt he was faking being asleep.
He tapped the passenger front window and announced his name and didn’t get a response. After tapping a few more times, the drive woke up and looked at Mensah, he scanned his uniform and then looked down toward the front passenger seat, and then shrugged his shoulders and closed his eyes, leaning back in the seat.
Officer Mensah reintroduced his name and said “Wake up. Gotta talk to you.” He also said he was with the Wauwatosa Police Department. The drive woke up again, turned the key, and rolled down the window. Mensah asked for an ID. The driver said no.