A Wauwatosa police squad on the scene of a non-fatal officer-involved shooting. (Photo by Isiah Holmes/Wisconsin Examiner)

The State Assembly’s Committee on Judiciary held a public hearing Wednesday to discuss a bill which, if passed, would restrict the use of John Doe hearings in cases where prosecutors decline to charge police officers after deadly force incidents. Republicans and law enforcement supporters of the bill (AB-34) said officers need to be protected from repeated investigations, and that anti-police groups have abused Wisconsin’s John Doe law to harass innocent officers who’ve been involved in civilian deaths. A long line of attorneys, legislators, social workers and others spoke in opposition to  the bill, arguing that it adds to an array of legal privileges and protections police already enjoy.

Wisconsin’s John Doe law allows for a judge to be petitioned to review a case where prosecutors have already decided not to file charges. Once a John Doe hearing has been called, the judge may hear arguments from the petitioner as to why probable cause should be found that a crime was committed. If the judge agrees that probable cause does indeed exist, then special prosecutors may be appointed by the judge to review the case. Those prosecutors, however, ultimately decide whether charges will be pursued, regardless of whether a judge finds probable cause of a crime. 

Rep. Clint Moses (R-Menomonee), an author of the bill, said the law had been used to “unfairly target” two officers who’ve been involved in deadly incidents. Former Wauwatosa officer Joseph Mensah killed Jay Anderson Jr. in 2016, claiming that Anderson lunged for a gun on the passenger seat of his vehicle. Anderson was the second person Mensah had killed in a year. He was involved in a total of three fatal shootings over his five year career at Wauwatosa PD. Mensah left Wauwatosa PD in late 2020 and was hired by the Waukesha County Sheriffs Department, where he is a detective. 

In 2021, a John Doe hearing was called to review Anderson’s shooting, after which Milwaukee County Circuit Court Judge Glenn Yamahiro found probable cause existed to charge Mensah with homicide by negligent use of a dangerous weapon. The second John Doe hearing, started in 2023, focused on Madison police officer Matthew Kenney for the 2019 killing of 19-year-old Toney Robinson. A judge declined to allow the hearing to go forward. 

“After the investigations, the court confirmed that he had acted in self-defense,” Moses said of the John Doe hearing in Anderson’s case. Mensah’s John Doe hearing “mirrored” reviews done by the Milwaukee County District Attorney’s Office, U.S. Attorney’s Office, FBI, and Wauwatosa PD, he said. “It’s concerning that such investigations, which echo previous exhaustions, can be perpetuated, consuming significant time and resources,” said Moses. 

While speaking Wednesday, Moses incorrectly referenced Mensah’s 2015 shooting as being the reason for the John Doe hearing in 2021. “Officer Mensah used self-defense to protect himself while on the job in a situation in 2015,” Moses testified on Wednesday. In 2015, Mensah killed 29-year-old Antonio Gonzales while still in his probationary period at Wauwatosa PD. Neither Gonzales, nor Mensah’s third fatal shooting of Alvin Cole in 2020, were the subjects of John Doe hearings.

Last year, when the bill was first introduced, Moses joined Sen. Rob Hutton (R-Brookfield) in claiming that families of people killed by police were seeking vengeance against officers. Moses confused details of Mensah’s shootings during those hearings as well. When asked about the mix up, Moses admitted to Wisconsin Examiner that he had not closely followed the Mensah cases. 

As Moses testified on Wednesday, Hutton joined him in the committee room. Hutton, who has brought forward Senate versions of the bill, has said that although he’s taken extensive feedback from law enforcement about the bill, he has not reached out to the families of people killed by police. During a hearing in February, Mensah testified in favor of the bill.

Mark Sette, vice president of the Wisconsin Fraternal Order of Police, said the bill is “crucial” and that law enforcement “have both the duty and right” to use deadly force to protect themselves or others. Sette said that police must make split second decisions in high-stress circumstances, and that deadly use of force incidents “are rare”. Sette praised Wisconsin’s process of conducting reviews of deadly force incidents led by an outside agency, saying that the investigations are thorough. Sette said that repeated investigations prevent officers from moving on with their lives, and trap them in a cycle of psychological trauma and financial stress. 

West Allis Police Chief Patrick Mitchell, a former president and current legislative chair of the Wisconsin Chiefs of Police Association, also praised the investigative process. Mitchell pointed to the Milwaukee Area Investigative Team (MAIT) as an example of how thorough reviews of deadly force incidents by police can be. 

Not everyone was sold on the bill, however. Rep. Andrew Hysell questioned Sette and Mitchell about whether or not it’s possible for a district attorney to make a mistake in clearing an officer of wrongdoing. Sette said although it’s possible, that it’s “incredibly unlikely” because of the thoroughness of deadly force investigations. Hysell said that district attorneys aren’t infallible, and that the bill — if passed — would set in stone a prosecutor’s decision, and deny one legal avenue for families of people killed by police.

After Moses, Sette, and Mitchell came numerous people from a variety of backgrounds voicing opposition to the bill. Gregory Jones, vice president of the Wisconsin NAACP and president of the organization’s Dane County branch, urged lawmakers to dig deep, ask tough questions, and consider all aspects of how the bill could negatively impact civil rights and the pursuit of  justice. 

Amanda Merkwae, advocacy director at the American Civil Liberties Union (ACLU) of Wisconsin, stressed that the bill takes away judicial discretion and elevates law enforcement as a privileged class above all other citizens. Merkwae noted that prosecutors and law enforcement have close working relationships, and that district attorneys often rely on the very officers whose actions they’d need to review when citizens are killed. 

The advocacy director also cited investigations by MAIT, citing an investigation by Wisconsin Examiner in partnership with Type Investigations, which reviewed 17 MAIT investigations from 2019-2022, all of which resulted in no charges against officers. Merkwae listed the article’s findings including that officers who kill citizens are interviewed as witnesses or victims only, can refuse to have their interviews recorded, and may amend their statements after viewing video evidence. In several MAIT investigations, officers were not separated from one another to prevent statement contamination despite this being a required policy. 

Mensah and other officers provided contradictory statements and were not separated from one another after his third shooting. These facts were raised during a federal civil trial into Alvin Cole’s death earlier this year. The trial ended in a hung jury, with jurors unable to unanimously agree on whether Mensah’s killing of Cole was excessive. 

Merkwae said that last year, Wisconsin had 24 fatal police encounters, up from 14 incidents the prior year. “So by creating a separate standard for police officers, this bill sends the message that they are above the law,” said Merkwae. “Which, I think, is a dangerous precedent that erodes trust and makes community engagement with law enforcement more fraught and less effective.” 

Rep. Ryan Clancy (D-Milwaukee) also spoke in opposition. Clancy said that he hadn’t planned to speak on the bill, but decided to when he heard Mensah’s name being used. “The idea that an officer who killed three people in three different incidents is a poster boy for why this is good legislation rather than bad is mindblowing to me,” said Clancy. “Joseph Mensah serves as an example of how our current system is failing the people that it is designed to protect. Had Joseph Mensah been held accountable after the first time he shot and killed somebody, he wouldn’t have shot and killed a second and a third person, in three different incidents. And it is sickening to me that he was brought up as an example of how this is necessary because he feels that some folks are mean to him in trying to find some measure of accountability.”

More people rose to speak against the bill after Clancy. Some were social workers and medical staff, who recounted being spat on, punched, kicked, scratched, and hurt yet never once considering criminally charging the person who hurt them. It’s a privilege that police officers have which they do not, the speakers argued. At one point, a Wisconsinite who wished to be identified only as G. Lee attempted to testify while wearing a hat that used an obscenity to criticize President Donald Trump. Committee Chair Ron Tulser (R-Harrison) called the hat offensive and got into an argument with Lee, after which he called for the assistance of the  Capitol Police and called the committee into recess. 

When the hearing re-started, G. Lee was allowed to testify on AB-34 while wearing the hat, though he was warned any breaches of decorum would result in him being removed. Lee apologized that the hat “threatened or offended” Tusler, and stated that Tusler reacted from a position of power. Comparing that to the powers police have, Lee said “what scares me about the decorum set in this room, and the measure tied to this bill, is about power.” 

Lee, speaking directly to Tusler, said that when the hearing was stopped because of Tusler’s feelings, “One of my concerns here is that we are privileging the feelings of law enforcement over the feelings of families who’ve actually lost loved ones to bullets. That’s an important thing to consider here. The whole system is set up to protect a particular part of the state power, and you’ve used your state power to make a message.”