MILWAUKEE – A Wauwatosa police officer will not face criminal charges in the fatal shooting of a 17-year-old outside a shopping mall, but his job is at risk after an independent investigator recommended he be fired.
Officer Joseph Mensah acted in self-defense when he shot and killed Alvin Cole in the Mayfair mall parking lot on Feb. 2, Milwaukee County District Attorney John Chisholm said Wednesday.
The decision marked the third time Chisholm has cleared Mensah in an on-duty fatal shooting. Soon after the announcement, more than 100 protesters marched onto the I-94 freeway during rush hour. With a curfew in place at 7 p.m., police fired rounds of tear gas at protesters later in the evening. The police department said the march was an unlawful assembly.
In the last five years, Mensah has killed three people — Cole in February, Jay Anderson Jr. in 2016 and Antonio Gonzales in 2015. Mensah also did not face any internal discipline in those earlier two shootings.
The charging decision, which was Chisholm's alone to make, deeply disappointed Cole's family and supporters.
"The fight continues," said Taleavia Cole, Alvin's sister. "It doesn't end here. We have to make sure he is fired immediately. We have to make sure he don't ever get a job ever again as a police officer."
The family highlighted findings released earlier in the day from Steven Biskupic, a former U.S. attorney hired by the Wauwatosa Police and Fire Commission to investigate complaints against the officer who determined Mensah should be fired.
Biskupic also determined Mensah had made “inconsistent and misleading" public statements about the shootings, which could compromise his ability to testify in court, and violated a policy banning officers from discussing ongoing investigations of police shootings.
Those factors led Biskupic to find "just cause," as defined by state law, to remove Mensah from duty as an active police officer and to recommend he be fired.
Attorneys representing Mensah were not immediately available for comment.
Charges rare in police shootings
Criminal charges in police shootings are rare. It is extremely difficult under the law to prove an officer did not act in self-defense when firing shots while on duty.
Of four officers in Milwaukee County charged in police-related shootings in the past 50 years, only one was convicted and sentenced to prison. The two most recent police shooting cases Chisholm charged ended in an acquittal and a mistrial.
Officers typically have been deemed justified in using deadly force if they reasonably believe an individual has the ability to cause death or great bodily harm, the opportunity to do so and has put the officer or someone else in jeopardy or imminent danger.
In this case, Chisholm determined Mensah did have those fears and acted in self-defense.
"There is sufficient evidence that Officer Mensah had an actual subjective belief that deadly force was necessary and that belief was objectively reasonable," Chisholm wrote in his report.
"I do not believe that the State could disprove self-defense or defense of others in this case and therefore could not meet the burden required to charge Officer Mensah," he said.
The "reasonableness" standard is based on what a reasonable officer would do in the same situation when forced to make a split-second decision.
Chisholm said he knows police shootings are an ongoing national and local concern.
"One thing I won't do is I won't change my objective review of the case because of outside factors like that," he said Wednesday evening. "It just wouldn't be appropriate. I know a lot of people will be angry, a lot of people will be disappointed."
New details released in Cole shooting
According to information released Wednesday by Chisholm and Biskupic:
Wauwatosa police were called to Mayfair mall on Feb. 2 after Cole argued with a man he didn't know and displayed a stolen 9 mm handgun.
A bystander posted video of the altercation on Facebook. Police squad video captured some of what happened next.
Officers spotted Cole, another man and a woman leaving a parking garage. Police detained the man, but Cole kept running. Mensah arrived to see other officers and mall security guards running after the teen.
During the chase, Cole pulled out a handgun from a fanny pack. The teen was not legally permitted to possess a gun. The weapon fired, apparently accidentally, shooting the teen in the arm. As Chisholm's letter put it: A shot “was discharged from Cole’s vicinity," and Cole "went to the ground with a firearm in his right hand.”
Cole fell to the ground and was surrounded by officers, who demanded he drop the gun. What the officers, and likely Cole, did not know was that the gun had become inoperable because the magazine was not attached and the bullet in the chamber had been fired.
All three officers said Cole instead pointed the gun in their direction.
Mensah told investigators he heard a gunshot almost immediately after arriving and saw Cole was on his knees, crawling, with a gun in his right hand. The officer said he fired his weapon “out of fear for his life" and believed the gun was real, although he did not know if Cole had fired the gunshot he’d heard earlier.
Mensah was on scene less than 30 seconds before encountering and shooting Cole. No other officers fired their guns.
Wauwatosa prepared for unrest
After waves of unrest in Milwaukee and Kenosha this summer, Wauwatosa and state officials braced for the reaction to Chisholm's decision.
Gov. Tony Evers authorized the National Guard to help local law enforcement. Wauwatosa City Hall, the county courthouse complex and Mayfair mall all closed early on Wednesday, while city schools moved in-person courses online for the rest of the week.
The decisions were sharply criticized by local groups Tosa Together, Indivisible Tosa and Tosa Moms Tackling Racism.
"It is with great disappointment that we see our city being closed down out of fear and distrust of what might happen," they said. "Outside agitators are a concern, but the expected sharp escalation in militarized policing practices is vastly disproportionate."
The case generated national attention after the Milwaukee Journal Sentinel first reported in June it was Mensah's third fatal shooting. Three activist groups — rapper and mogul Jay-Z's Team ROC, Until Freedom and Gathering for Justice — placed ads calling for Mensah to be fired and prosecuted, echoing the calls of hundreds of protesters who took to the streets this summer.
The sustained attention already has led to some changes. Wauwatosa, slow to embrace body-cameras for all officers because of cost, has now signed off on spending more than $760,000 to outfit officers with the cameras by the end of the year. Mensah has since been suspended with pay.
Wauwatosa Police Chief Barry Weber said his department has begun an internal review of the shooting and the conduct of all Tosa officers present.
"The department hears the message from the public and recognizes the evolution required for law enforcement agencies in this age," Weber said Wednesday.
Former prosecutor says to look at all three shootings in totality
The report from Biskupic came about after the family of Anderson, who was killed in 2016, filed a complaint this summer with the city's Police and Fire Commission. The commission hired Biskupic in July as an independent investigator.
Jim Palmer, executive director of the Wisconsin Professional Police Association, called Biskupic's findings to fire Mensah "utterly preposterous."
"To use something that hasn't occurred, a fourth shooting, as a basis for terminating Officer Mensah now is ridiculous," said Palmer, whose organization is not representing Mensah.
Although Mensah's interviews may have broken department rules, Palmer said he was unaware of any other case in the state of an officer being fired for such an infraction.
And while a public policy discussion could be had about the same officer being involved in three fatal shootings, Palmer said Biskupic did not appear to find any rule violations in the shooting of Cole.
Attorneys for Mensah have fought his suspension and possible discipline by saying each individual shooting was permissible under use-of-force rules.
That position, Biskupic wrote, ignores the totality of an officer's conduct.
No one can be certain about the potential danger to Mensah, his fellow officers or the public if he returns to active duty and is again confronted with a situation where he must choose whether to use deadly force, Biskupic said.
“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, as confirmed by the Wauwatosa police chief," the former prosecutor wrote.