Originally published in Milwaukee Journal Sentinel
MADISON – In a move that’s only now becoming public, state agents have scaled back their practice of allowing police involved in shootings to review video and audio of the incidents before being interviewed by investigators.
In at least five cases since 2015, officers being investigated in a shooting were allowed to review recordings of the event before discussing it in depth with state Department of Justice agents, a review of state records shows.
The incidents range from a case in which an officer stopped a school shooting to a Neenah case in which two police officers mistakenly shot a hostage instead of the criminal. None of the officers was charged.
But last year the Department of Justice’s Division of Criminal Investigation restricted the practice to cases in which it is the only way an officer will submit to an interview and a prosecutor agrees. The change is drawing praise from victim advocates but concern from the state’s police union.
Anand Swaminathan, an attorney for the family of a 19-year-old killed in Madison in 2015, applauded the move as a “step forward” for investigating police shootings in a way more similar to how other cases are handled. More is needed, he said, but this move should help bring a process that is “more fair and honest to the victim and community.”
The idea gets pushback from City University of New York professor Eugene O’Donnell, a former officer in the city who worries the process has become too adversarial for police after shootings.
“It shouldn’t be an ambush interview,” O’Donnell said.
The issue involves a balancing act for investigators seeking to run an independent review that wins public confidence but also to interview an officer fairly about the worst moment in his or her career.
Since 2015 in Wisconsin, all officer-involved shootings are reviewed by an independent agency, usually the Department of Justice. Officers have to agree to be interviewed during the review, since any subject of a criminal investigation can always decline to answer questions.
Under the policy adopted last summer, if the officer makes viewing the video up front a condition of the interview, the Department of Justice lets the local district attorney decide whether to show it, agency spokesman Johnny Koremenos said. That puts the decision in the hands of the prosecutor who will make any charging decision.
“Attorney General (Brad Schimel) and DCI leadership feel the July 2016 revision to DCI’s general investigative guidelines, which included changes to officer-involved shootings protocol, are consistent with best practices nationwide,” Koremenos said.
When DOJ took on the investigation of police shootings in 2015, the agency had “no script” internally and was dealing with outside police agencies that had used their own policies for years, he said. DOJ crafted more of its own rules after Schimel created a Bureau of Special Investigation in April 2016 to handle cases like officer shootings.
But in the meantime a series of investigations were handled under different rules, including the December 2015 shooting of a hostage in Neenah.
Within hours of the incident, Justice agents recorded their questioning of the accused hostage taker, Brian T. Flatoff, in an Oshkosh hospital room without an attorney present, according to state records and reporting by the Appleton Post-Crescent.
Officers Craig Hoffer and Robert Ross were interviewed four days later after they and their union attorney were shown videos of the event. The interviews weren’t recorded, at the officers’ request.
In the end, Flatoff was charged with 16 crimes. Hoffer and Ross weren’t charged with any. They were found to have acted mistakenly but reasonably in shooting and killing Michael Funk, a hostage who had a concealed carry license and a weapon of his own and who police took to be the gunman who had shot Hoffer in the helmet.
O’Donnell, the former New York City officer, said it was entirely appropriate to treat officers in a shootout differently from the man accused of starting it.
But Rep. Chris Taylor (D-Madison) said she agrees with a policy of interviewing officers first before showing them other evidence to ensure that they don’t shape their story to fit the evidence gathered by investigators.
“I think it does color the public’s perception of fairness,” Taylor said of showing videos first.
State records show officers watched recordings in cases with very different sets of facts:
- The April 2016 case in which Antigo police Officer Andrew Hopfensperger Jr. shot Jakob Wagner after Wagner had opened fire at other students at a high school prom. Hopfensperger was cleared for his actions, which put an end to a potentially deadly school shooting.
- Tony Robinson Jr., a 19-year-old biracial man, was unarmed when he was shot and killed by Madison police officer Matt Kenny in March 2015. Kenny, who was not charged, said he was attacked while responding to 911 calls about Robinson behaving aggressively and erratically after taking hallucinogenic mushrooms. Robinson’s family received $3.35 million to settle a lawsuit in the case.
- Eau Claire Sheriff’s Deputy Dustin Walters shot and killed David Stanley Mack after Mack pursued him while pointing a red pepper spray weapon shaped like a gun. Walters was not charged.
- Walworth County Deputy Juan Ortiz shot and killed Christopher Davis after the driver of the car Davis was riding in attempted to flee a staged drug purchase by speeding in the officer’s direction. Ortiz was not charged.
Some of the officers investigated were also allowed to review and suggest changes to the write-up of their interviews and tour the scene of the shooting.
Swaminathan, the Robinson family’s attorney, said he wasn’t concerned about letting officers clarify their statements as long as the changes were documented. But he said officers should also be interviewed before revisiting a shooting scene to avoid officers altering their story.
Jim Palmer, the executive director of the Wisconsin Professional Police Association, said that went too far, pointing out that in past years Wisconsin officers often wouldn’t talk with criminal investigators, and in some other states they still don’t.
Palmer pointed to recommendations from an American Bar Association task force that each law enforcement group should decide for itself whether to allow officers to review recordings before reporting on their use of force. Palmer said research has shown that people involved in traumatic events may not have a clear and accurate memory of what happened.
“At the end of the day, the thing that is in the best interests of the officers and the public is that the officer’s report be as accurate as possible,” Palmer said.