Expert says Wauwatosa police officer’s fitness for duty was improperly evaluated after shooting

The final day of the John Doe hearing into the 2016 shooting of Jay Anderson Jr., 25, by former Wauwatosa officer Joseph Mensah left lingering questions. Among the people who took the stand was Wauwatosa Police Chief Barry Weber, who is set to retire by June. Weber was compelled to testify after a motion to quash a subpoena requesting his testimony was rejected during the last John Doe hearing.

Lawyers representing the chief had argued that Weber wouldn’t have relevant knowledge of the shooting investigation, which was led by the Milwaukee Police Department (MPD). State law has requires that police shooting investigations not be led by the agency involved in the incident. MPD led the investigation into the Anderson shooting as part of the Milwaukee Area Investigative Team (MAIT), a network of investigators which includes Wauwatosa personnel.

Attorney Kimberley Motley used the first hearing to highlight the Wauwatosa Police Department’s (WPD) involvement in the Anderson investigation. WPD detectives canvassed the surrounding area for witnesses days after the shooting. The reports they authored undermined Weber’s arguments that his department wasn’t involved in the investigation.

One of those detectives was Joseph Roy, who was promoted to the rank of lieutenant in 2020 and now helps oversee the open records division. Roy testified that he had conducted his canvases for witnesses at the direction of a WPD detective-lieutenant who was his superior at the time. WPD also collected footage from the nearby Madison Elementary School’s security cameras which may have captured Mensah entering the lot.

Once Weber took the stand, Motley honed in on several points involving Mensah’s career and the general policies and procedures at WPD. On numerous occasions Weber stated he didn’t recall, or didn’t know the answers to questions. These included when exactly Weber approved a medal of valor that Mensah received in August 2016 for his conduct in an incident that included his first shooting about a year before. The medal was awarded while Mensah’s shooting of Anderson was being investigated by the Milwaukee County District Attorney. Both shootings were ruled justified by the district attorney. Mensah went on to become involved in another shooting before resigning from WPD in November 2020.

Weber also testified about  WPD’s policies around fitness for duty following an officer-involved shooting. “Before we’d allow him to come back, I would send him to a psychologist that we use to determine in that person’s professional opinion, that he’s able to return,” said Weber. However, when asked if such fitness for duty protocols were written policies within WPD, Weber stated, “It may be included in some other policy. I’m not sure … I don’t think we have a fitness for duty policy as a stand-alone.”

WPD’s chief was also unsure what policy might include the fitness for duty standards. And although Weber has been a member of the International Associations of Chiefs since 1984 he testified that he didn’t know the organization’s standards for fitness for duty. “I don’t know what their standard is,” said Weber, adding that, “the IACP, as they’re known, thinks they’re the expert on everything. One size does not fit all for every organization. So I don’t necessarily look at what ISAP does. I look at what’s best for our organization.”

William Harmening, an expert witness who testified in the first John Doe hearing, returned for his final appearance. Harmening expressed concern about the chief’s disregard for widely regarded standards for fitness for duty and psychological evaluation. “It causes me a bit of distress that this, apparently, is a department that has no procedures in place for this process and does not recognize the national standards.”

Harmening, with 37 years of law enforcement experience, stressed that fitness for duty evaluations are “not something that’s taken lightly. It’s a very complex and a very structured process, with specific guidelines.” It involves interviews and psychological testing, designed to detect any post-incident psychological issues an officer may be experiencing. Harmening also highlighted that the reviews are also designed to catch officers who may be attempting to pass themselves off as fine in order to return to work.

Prior to his testimony, Harmening got the opportunity to review Mensah’s employee file, which Motley obtained from WPD. However, the file was missing several key documents including routine performance evaluations, proper fitness for duty evaluations, or academy-related evaluations. “None,” Harmening emphasized.

Rather than fitness for duty evaluations, Harmening noted, he’d viewed letters written by sociologists and others who were not psychologists or psychiatrists and  were unqualified to evaluate Mensah following his shootings.

A battle just to obtain documents

Obtaining Mensah’s personnel file and other documents, including WPD’s unredacted traffic-stop training, was a challenge for Motley. The records weren’t handed over until just days before the hearing on May 4. Additionally, a deposition Motley had scheduled with Mayor Dennis McBride regarding the ongoing lawsuits over the October curfew was not attended by McBride or his lawyers.

During a meeting with Yamahiro on April 30, it was revealed that lawyers representing Wauwatosa were concerned about sensitive documents being published on the internet. On March 17, Wisconsin Examiner published WPD’s operational plan for the curfew which, like numerous records released in January, was fully unredacted.

In a statement to Wisconsin Examiner McBride asserted that, “I was ready to testify on April 23. I am eager to do so, confident that my testimony will refute the plaintiffs’ allegations, which have no legal and factual merit,” the mayor said. “Unfortunately, because attorney Motley has consistently released documents on the internet and elsewhere — which contain personal information of Police and Fire Commission members and government officials and details about law enforcement operations and security protocol — the City was forced to seek a protective order.” He added, “Until the court rules on our motion for a protective order at a hearing on May 7, the city’s attorney has instructed me not to testify. As soon as the court issues its decision, I will sit for a deposition.”

The Anderson shooting doesn’t add up

Both Harmening and Ricky Burems, a former MPD homicide detective who retired in 2014, were critical of Mensah’s actions. Harmening noted that the underlying “crime” which initiated Mensah’s contact with Anderson “was at most, a minor ordinance violation.” In June 2016, Anderson was approached by Mensah as he slept in his car in a local park at 3 a.m. Anderson’s loved ones have repeatedly stated that he’d pulled over to sleep off intoxication rather than drive home.

Shortly after pulling into the lot, Mensah called in Anderson’s license plate number. Motley noted that this meant Mensah must have, at some point, been behind Anderson’s vehicle since the car lacked a front plate. However, Mensah parked his squad car in front of Anderon’s car, which is directly contrary to WPD’s traffic-stop training.

“I’ve done thousands of traffic stops,” testified Burems. “I’ve never done it like this. I’ve never seen anybody do it like this. This is not trained. A traffic stop is always done with the front of your vehicle facing the rear of the target vehicle.” Burems added that, “from the standpoint of policing, from the standpoint of safety, from the standpoint of trained procedure, there is no productive reason that he would do this.” In his own experience, “if an officer was seen doing this in Milwaukee they would be admonished. And if they continued doing it, they would lose their job.”

Mensah shined his squad’s bright takedown lights on the vehicle. Those are separate from the red and blue emergency lights, which would’ve activated the dash camera. Less than 30 seconds of mute footage captures the encounter. By then, Mensah had his gun raised and Anderson, still in the car, had his hands raised. Mensah claimed he drew his gun after noticing a pistol sitting beside Anderson on the passenger seat. His hands lowered several times before Mensah fired several shots into Anderson’s head and neck area.

Before MPD took over the investigation, WPD officers had done several things to the scene. Anderson’s gun, which was allegedly on the seat, was removed from the car and taken to a WPD squad. Next, Anderson himself was removed from the car and his pockets searched. Although Mensah claimed Anderson didn’t have identification, an officer who searched Anderson’s body provided an I.D to MPD detectives. The officer later stated he couldn’t remember which pocket he’d found the I.D, and that the gun was removed because he couldn’t see Anderson’s facial wounds, and thought Anderson could still reach for it.

“In my opinion as a former police officer and detective, police agencies are unable to objectively investigate their own shootings,” Burems testified on the stand. “And you do see it, you see the reasons right here in this investigation. Because the only thing that the Wauwatosa Police Department should have done was to secure the scene. To make sure it was not disturbed, to make sure that it stayed in the same condition that it was in when the crime occurred. And to administer any type of aid to Jay Anderson. That’s the only thing they should have done. There was no reason to move the gun. There was no reason to allow Mensah to manipulate his vehicle. There was no reason for them to go to Madison Elementary to obtain video, because video can be tampered with. There was no reason for them to do any type of canvas, because you don’t even want to create the possibility that there could be some improprieties . and some bias. But you see it here in this investigation.”

Harmening stated that due to the WPD officer’s actions, the scene evidence had been tainted. Other questions also surrounded MPD’s observations that Menshah’s red and blue lights were on once they arrived and the takedown lights were deactivated. “Do we know what time his red and blue lights were turned on?” Motley asked Harmening, who replied, “No.”  “But we just know that they’re just magically on when the Milwaukee investigative team was there?” She continued, to which Harmining responded, “That is correct.” Activating the red and blue lights for a traffic stop would have been more consistent with WPD’s training and would have activated the dash camera when Mensah initiated the stop.

Burems, who has conducted many shooting investigations over his police career, noted the lack of blood on the passenger seat doesn’t seem to support Mensah’s claims that Anderson lunged for a gun. Earlier in that day’s testimony, Weber and Motley sparred over inconsistent statements Weber has made regarding the shooting.

In a letter recommending that the Waukesha sheriff hire Mensah Weber wrote that, “Mensah was confronted by a person who was arrested, and refused to put down their weapon.” Motley asked where Weber heard that Anderson ever “refused to put down his weapon.” She continued, “that means that he was touching it and that he refused to put it down.”

Weber simply repeated, “I consider Anderson armed. He had that weapon right next to him, within his reach. And was reaching for that weapon. He was an armed subject, and he refused to follow the officer’s instructions.” After a brief interjection by the judge, Weber admitted that he didn’t recall Mensah ever telling him Anderson touched the gun. Weber was also confronted with his statements in an unrelated Feb. 25 deposition that the gun was on the console, not the passenger seat.

Both Harmining and Burmes had their own perspectives and concerns as it related to how the Anderson shooting and investigation played out. Burems agreed on the stand that Anderson was not a threat to Mensah. “Do you believe that there is probable cause to charge officer Mensah with second-degree recklessly endangering safety?” Motley asked, to which Burems replied, “Yes.” Closing arguments into the Anderson John Doe case will be heard on May 19.