Are Milwaukee-area police shooting investigations truly independent?

After the shooting of Jacob Blake by Kenosha police, Kenosha County District Attorney Michael Graveley announced that there would be an independent investigation. “The statute in Wisconsin demands, quite appropriately, that an independent investigative agency does all the investigative work in this case,” said on August 26.

Blake’s shooting will be investigated by the Wisconsin Department of Justice’s Division of Criminal Investigations (DCI). That’s because of a 2014 reform that took investigations of police misconduct out of the hands of local police department themselves.

A different Kenosha police shooting is actually responsible for triggering the reform. That of 21-year-old Michael Bell Jr., who was killed in 2004. Bell’s case was investigated by the Kenosha Police Department, and the officer involved was cleared after just two days. Bell’s father, a retired U.S. Air Force pilot, pushed for legislation requiring that outside agencies conduct such investigations. A decade later, a new law signed by then-Gov. Scott Walker became known as “the Michael Bell law.”

Since the law passed, DCI-led investigations of officer-involved shootings have become the norm statewide. High-profile cases like the shooting of 31-year-old Dontre Hamilton in 2014 by a Milwaukee officer have been investigated by state DCI agents. Omar Flores, a Milwaukee activist who grew up in Kenosha, remembers working with Michael Bell’s father to get the law passed.

“We both had the same conclusion,” Flores told Wisconsin Examiner, “that this [law], unfortunately, doesn’t go far enough. This is something that still needs to be changed.” Fears that the law was not fool-proof were realized after 2017, when an opaque localized network of law enforcement agencies in Milwaukee County replaced the state as the area’s primary organization for police shooting investigations.

The Milwaukee Area Investigative Team

The shift came in 2017, after 32-year-old Jermaine Claybrooks was killed during what his family believes was a botched arrest. Claybrooks was on the radar of a task force of undercover officers from the Milwaukee Police Department (MPD), West Allis Police Department (WAPD), and the Drug Enforcement Administration (DEA). The officers were pursuing Claybrooks when his vehicle crashed, according to police.

The car was then surrounded by officers, who fired their weapons believing Claybrooks had a gun. His family, however, assert that Claybrooks was never given the opportunity to surrender to the plain-clothed police. MPD, DEA and WAPD personnel fired their weapons. A Department of Homeland Security (DHS) agent was also noted in investigative documents as being present at the scene, but didn’t fire.

Claybrooks’ case was the first to be investigated by what was then known as the Milwaukee Suburban Investigative Team (MSIT). Little was publicly known at the time about the team, or how it worked. Only that it consisted of personnel from numerous local departments, none of whom belonged to any of the agencies involved in the Claybrooks shooting.

The Wauwatosa Police Department (WPD) took the lead among the agencies investigating the Claybrooks shooting. After reviewing the file, District Attorney John Chisholm cleared the officers of wrong-doing. From then on MSIT, later renamed the Milwaukee Area Investigative Team (MAIT), began handling all of the area’s officer-involved shootings.

MAIT is unique in both how it functions, and the team’s role as the investigative body for Milwaukee area police shootings. It functions as a semi-decentralized network of detectives and other personnel from numerous nearby departments.

“The Milwaukee Area Investigative Team is a network of investigators and supervisors from several jurisdictions in the Milwaukee County Area,” Lt. Joseph Roy of the Wauwatosa PD told Wisconsin Examiner. “There are several lead agencies … that rotate, taking the lead on investigations. According to the law, an involved agency cannot be the lead investigative agency, so member agencies rotate as needed. The lead agency for each investigation is then the official holder of the records for that agency, as such records requests would go to them.”

Wisconsin Examiner has been unable to obtain an even a partial personnel list through open records requests. Documents related to shootings investigated by MAIT are retained by whichever agency led the particular investigation, rather than records being centralized in one location, whether physically or online. Since the Claybrooks shooting, rotating departments have led MAIT investigations into numerous fatal shootings in the area. The vast majority of these cases have been ruled as justified.

Origins before Claybrooks, and DCI leaving the picture

When the MAIT, at the time still called the Milwaukee Suburban Investigative Team, first crept into news articles about the Claybrooks shooting, little was known about where the team came from. A 2016 article by Fox 6, however, mentioned the role of the West Milwaukee Police Department (WMPD) in establishing the team. West Milwaukee Chief Dennis Nasci was interviewed for that piece, and still serves as the department’s chief.

“The original MOU (Memorandum of Understanding) was put together through the Milwaukee County Chief’s group at the end of 2014 and I was one of the members who volunteered on behalf of the chiefs to work with MPD, DCI, state crime lab and the DA’s office to put the protocol together,” Nasci told Wisconsin Examiner.

Nasci explained that the team was originally called the Milwaukee County Investigative (MCI) Team. “The original build of the team had DCI doing MPD’s cases and MPD the lead for the suburban cases. A change came about in 2016 where the responsibility as the lead agency was rotated by the five lead agencies that agreed to take on this role and eliminated DCI from the rotation.”

Chisholm noted that in 2014 the localized structure for officer-involved shootings shifted in Milwaukee County.

“The decision was made that what we would do is any case involving [Milwaukee] PD, we’d bring DCI in,” he told Wisconsin Examiner. “Because, at that time, they were the only other agency that had sort of the skill set to be able to take over an entire scene. And then if there was an outlying suburban agency and one of the other 18 municipalities had an officer involved, MPD’s homicide unit would handle that. So that was the original agreement that started post-2014. And I cautioned everybody, ‘Look, this is going to be a work in progress.'”

Even determining whether the MAIT has a traditional command structure is challenging. WPD stated it was working to find some of this information but never provided further updates. Nasci told Wisconsin Examiner that personnel are sent from their respective agencies and then assigned by an on-call team supervisor, which is from whichever agency is taking the lead.

“In addition there is an MCI committee which appoints a chair and team commander,” Nasci explained. That appointed team commander reports to the committee through the chairperson. “The committee chair is responsible to report to the chief’s group at meetings and to provide an annual report.”

Why replace DCI with in-house departments?

When it comes down to it, there are certain logistical things which are required to conduct shooting investigations. Team capacity, equipment, experience with that equipment and other investigative methods. From that perspective, the options for who is capable of even conducting an investigation can seem limited.

“Early on, we knew that you have to develop some additional capacity,” Chisholm told Wisconsin Examiner. “Because the reality is that DCI is now responsible for doing shoot scenes in all 72 counties. And they could effectively only do one scene at a time. And the concern was that they might have a shooting up in Forest County, say. Or in La Crosse County, and that all their resources get deployed there. And there’s a much higher probability of incidents in the Milwaukee area. Just given the population density and historical issues.”

The challenge became how to ensure that a quick investigative response to police shootings existed in Milwaukee. “So we started the process of inviting selected investigators from the suburbs in to feed the process with DCI, with MPD, and to start shadowing and working the cases as well. And that eventually led to the Milwaukee-area shoot team,” said Chisholm.

Since assuming its current incarnation, MAIT has investigated not only fatal police shootings, but non-fatal shootings and in-custody deaths. “We understood that that was just going to be too big of a footprint for DCI to respond to all of those by themselves,” explained Chisholm. “And so that’s what really prompted the development of the Milwaukee-area shoot team.”

Nasci agreed that the team exists to fill a void in DCI’s capacity to investigate those shootings while also fulfilling its other functions. “[DCI] currently responds all over the state as the main resource for critical incidents and all other types of criminal activity to assist with or to complete their own investigations. Add that they have a limited number of investigators, they may not have all the resources necessary to handle the crime scene. In addition the response time to have a team on scene could be hours, so having the MAIT not only shortens the amount of time for a response, it also relieves DCI of additional demands, freeing them up for areas that do not have this resource.”

Conflicts of interest, and a murky police network

On paper, the Michael Bell Law requires an outside, independent agency to lead police shooting investigations. While the MAIT practice of rotating lead agencies meets that requirement, it creates a situation where neighboring departments repetitively investigate one another’s shootings. Oftentimes, these same departments have deep professional relationships and connections which go beyond the investigations.

For example, In 2018, the Greenfield Police Department, as part of the MAIT, investigated a Wauwatosa PD shooting alongside the police departments of Oak Creek, West Allis, Greenfield, Waukesha and Milwaukee. Waukesha is actually in a separate county, which is why the team’s name changed from “county” to “area.”

In 2020, after a Wauwatosa officer killed 17-year-old Alvin Cole, the Greenfield Police Association, Greenfield Police Supervisors Association and West Allis Professional Police Association, donated to a GoFundMe page started by the officer’s family, which was made after the officer was suspended with pay by the Police and Fire Commission of Wauwatosa in the wake of protests over the shooting.

The Wauwatosa Police Department has led MAIT investigations into three Milwaukee PD shootings, one Waukesha police shooting and the Claybrooks task force which involved MPD, West Allis and DEA. West Allis PD has led MAIT investigations into one Milwaukee PD shooting and one Waukesha police shooting. Only the shooting of 25-year-old Jay Anderson Jr., killed by the same Wauwatosa officer who shot Cole, is listed on MPD’s website.

Once the Cole investigation is over, those documents should appear on MPD’s site, as it has led the MAIT investigations into both the Cole and Anderson shootings. Not all departments which are part of the MAIT list the cases they’ve investigated, or disclose their membership on the team on their websites. Those that do so list the investigations which their agencies have led under the umbrella of MAIT.

To some, this cycle of departments investigating one another does not appear independent.

“The issue is that this is presenting … the appearance of independence,” Randy Shrewsberry, a former police officer with 30 years experience with the Cincinnati PD and other agencies, told Wisconsin Examiner. “That this is an autonomous group that then looks at another agency’s shooting. But it’s naive to think that these agencies don’t have inner relationships with one another. They do all the time.”

As a former police officer, Shrewsberry feels that the claim that “neighboring agencies can truly be independent is disingenuous at best.” Beyond the goings-on in police associations, departments also work together on task forces, major crimes like homicides and other endeavors.

The Claybrooks shooting is an example of that sort of cooperation, layered by the irony that it was this case which propelled the MAIT into its role of conducting “independent” investigations. “When we look at police shootings, as an example, it would be very, very difficult for it to be totally independent,” said Shrewsberry. “Because cops work with each other, even on the state level.”

It’s a dynamic which played out well before MAIT assumed its current function. The shooting of Dontre Hamilton by a Milwaukee officer in 2014 was investigated by DCI. Agents, however, weren’t on the scene until hours after the shooting. In the meantime, Milwaukee PD officers were the first to secure and canvass the area for witnesses.

It’s what criminal justice officials like DA Chisholm refer to as “freezing the scene.” The same thing happened during the Jay Anderson shooting, when the department involved in the shooting was the first to secure the scene and sent detectives to make first contact with witnesses. In Hamilton’s case, the DCI agents involved were retired Milwaukee PD officers, who were still collecting pensions from the city.

Another complicating factor is what it actually takes to run an investigation. “Death-scene investigations are super complicated,” said Chisholm. “And they’re resource-intensive … What you really needed to do was remove the involved agency completely from the investigation to the extent that you possibly could. Yes, they’re going to have to initially freeze the scene, and you’re going to have to wait until that outside agency gets the personnel on-scene to completely take it over.”

Chisholm describes freezing the scene as a necessity where the involved agency’s primary job is to “preserve the evidence.” That’s not always done, however, such as in the Anderson case where Wauwatosa officers removed the gun they said was beside Anderson from his car without taking pictures for evidence and before MPD or firefighters arrived on scene.

Chief Nasci was more dismissive of the concerns over whether the way the MAIT works creates conflicts of interest. “By having investigators from another agency it allows the removal of the agency bias,” said Nasci. “Of course once this is accomplished the next accusation is that the outside agency will lie and cover up for the agency involved and maybe this is where this question comes from. You might not be aware, but lying in law enforcement is the fastest way to get terminated and this sanction is unlike almost any other profession.”

Nasci notes that MAIT shooting investigations are also often reviewed by the DA’s office, with findings from the state crime lab and others. Add all this together and the chief concludes, “I do not believe this creates a conflict of interest.”

How do we achieve independent investigations?

It’s a double-edged problem; Shrewsberry sees how the entire system appears “entrenched,” he told Wisconsin Examiner, which prevents true independence. Some Milwaukee activists have been pushing for community control over the hiring, firing and disciplining of the police in the form of CPAC (Civilian Police Accountability Council). A framework for CPAC exists in Chicago, and the council would essentially replace fire and police commissions in the Milwaukee area.

“It supports genuine accountability,” said Lauryn Cross, a local organizer. “The [police] union has its chokehold around the Fire and Police Commission and there’s a lot of non-transparent elements. So, with CPAC, our hope is through having the community be elected, through the community actually having the power to hold police officers accountable that would welcome transparency. Because community members only owe respect to themselves and each other, just like how the police only owe respect to themselves and each other.”

Shrewsberry likes the idea, but sees problems with civilian involvement in shooting investigations. “If we had true civilian oversight, then the problem is they’re not really seeing the perspective of the officer based on what their training and experience is,” he said. “So, in my view, when you have these kinds of independent review boards that are looking at shootings,  the more distance you can create, generally speaking, that’s going to be a little bit better than someone investigating themselves. Or a neighboring department investigating them.”

Once shooting investigations are complete, they’re handed over to the local DA’s office for review. As Kenosha’s district attorney noted on August 26, the scope of his particular role in the process is very narrow. “We will only decide whether any Kenosha police officer is going to be charged with a crime,” said DA Graveley, “and that can only occur if we believe that that crime can be proven beyond a reasonable doubt.”

Perhaps the biggest problem is that the final decision rests solely on the DA, who’s only legally able to utilize a narrow focus on facts which first must be compiled and prepared by police departments, or teams like the MAIT.

“I’ve come to the conclusion that, even though it’s not likely to happen, I would support that now,” DA Chisholm told Wisconsin Examiner, speaking of calls in the past to change the rule. “It’s just gotten to that point where I believe we do an excellent job. I believe that we’re fair, I believe that we’re independent. But it’s just reached that point where it just seems to make sense that the local DAs should not be the ones that make the final decision.” Especially when it comes to officials who are either elected or appointed by governors, “there’s still that element of who you view through a political lens of being independent and fair,” said Chisholm.

Whatever the answer, Chisholm feels retaining local accountability for decision-making is a step in the right direction. And, for better or worse, district attorneys provide the local presence for these investigations.

“There’s never justice,” says Flores, “we don’t see it with police investigating themselves.” An advocate for CPAC himself, Flores thinks back to the Black Panthers, who first designed the idea of CPAC. “The Panthers’ ideology was from the people, to the people. You take the scattered ideas, the issues that people have with the world around them. And you bring it back to them in the form of action. Their form of action was CPAC, and we still see a need for that today.”