A line of officers in riot and militarized gear block a street in Wauwatosa during the October curfew. Tear gas was still thick in the air. (Photo | Isiah Holmes)
“This case is not about politics, it’s about privacy,” said attorney Kimberley Motley during opening statements Monday on the first day of a federal trial over measures the City of Wauwatosa and its police department took against protesters who were part of a nationwide movement beginning in 2020 against police brutality. Curfews were enacted as conflicts between officers and protesters escalated over the course of more than a year of protests. The Wauwatosa Police Department (WPD) gathered private information and intelligence on more than 200 people.
Originally created by WPD’s crime analyst Dominick Ratkowski, a “target list” of protesters and their allies, which is the subject of the lawsuit, generated controversy when it became public. The Wisconsin Examiner first reported on the existence of the list in January 2021. Emails sent by Ratkowski show that in July 2020, the list included at least 40 people. Later that year, a redacted version of the list numbering over 200 people was released via open records requests.
The list included personal information on people who were present at protests, including elected officials, a Wisconsin Examiner journalist, and many others. Motley was placed on the list along with other lawyers who worked on cases involving the families of people shot by police in Wauwatosa. The judge presiding over the federal trial, Nancy Joseph, has ruled that discussion of anyone on the list — including Motley — who is not one of the 57 named plaintiffs will not be allowed.
WPD has said the list documented witnesses, suspects and victims of potential criminal activity involving the protests. It was shared with the Milwaukee Police Department, Kenosha Police Department, Milwaukee County Sheriff’s Office, FBI and numerous other agencies. In court on Monday, attorneys representing people whose names appeared on the list said it had been shared with more than 100 people. Motley stated in court that there are 25 versions of the list which her team is aware of. In her opening statement, Motley also mentioned that Ratkowski created fake or dummy social media profiles to aid in monitoring protest activity online. This tactic has been documented in other parts of the country. (In 2021, Facebook demanded that the Los Angeles police department stop setting up fake profiles to conduct surveillance on users.) Ratkowski also accessed Department of Transportation (DOT) information for many people on the list.
This last aspect of protester surveillance in Wauwatosa is the focus of the federal lawsuit. DOT information is protected under the Driver’s Privacy Protection Act (DPPA). The DPPA prohibits that information from being accessed or used for improper reasons. The Act itself stems from a 1989 stalking case in which a woman was murdered by a stalker who obtained her address through DMV records. Plaintiffs in the lawsuit argue that Ratkowski violated the DPPA each time he obtained and shared their information.
Ratkowski and his co-defendant, WPD Lt. Joseph Roy are each accused of separate DPPA violations. Roy, who oversees WPD’s open records releases, was involved in an open records release in early 2021 which included hours of video and hundreds of pages documenting WPD’s protest investigations. Among those records were citations issued to protesters which contained unredacted information possibly obtained through the DOT. In October, both the list and the Dropbox which Roy used to release the records were restricted by court order.
On Monday, attorney Joseph Wirth who, along with attorney Jasmyne Baynard represents Ratkowski and Roy, told the jury that it’s important to listen to both sides.
“When you hear the explanation, you will realize that it is completely different from what you’ve been told,” said Wirth in his opening remarks. Plaintiffs in the lawsuit don’t claim that the police prevented them from protesting, he said. Instead, Wirth asserted, “command-level” personnel at WPD wanted to “keep an eye on what’s going on.” The list was about “anticipatory identification” for what was to come, and WPD wanted to identify leaders of the protests in order to de-escalate future conflicts that might occur. Wirth also defended the release of records in early 2021 as part of Wisconsin’s tradition as a “sunshine state” for open records law.
Wirth re-framed the protests for the jury.
After the fatal police shooting of 17-year-old Alvin Cole at Wauwatosa’s Mayfair Mall in February 2020, the mall and the Cheesecake Factory restaurant there became a focal point for protests led by Cole’s family.
Wirth called the photographers and journalists who documented those protests “memorialists.” He described to the jury how protesters shut down the Cheesecake Factory, surrounded the mayor’s house, clashed with police, and, he said, blocked ambulances.
Witnesses’ testimony, missing police chief
Madeleine Schweitzer, who photographed and filmed many of the protests in 2020, testified that “they were always quite joyous.” She recalled seeing parents, children, teachers and neighbors marching together. Finding her name on the list, Schweitzer said, was “really violating.” “It gives me pause,” she said. “I feel worried … I don’t feel as comfortable as I once did.”
Tiffany Stark, a protester who went to fewer protests than Schweitzer, also described an uplifting mood at the demonstrations. “It was a great energy,” Stark testified. “It was a lot of different people from a lot of different backgrounds.” When she found out she was on the list, Stark said, “I was in shock because I was never ticketed, I was never arrested…other people were in shock, I was in shock.”
“I know I have to be careful,” Stark added. She works in health care for the federal government and as part of her work has obtained government clearances. Some of those clearances were not renewed “since all of this happened,” she testified.
“Regardless of the size there was a community feel to it,” another witness, Sonora Larson, recalled of the protests. Being on the list made Larson feel as if, “while I was doing what I thought was right, others were villainizing me for it.” Larson filed a complaint against the Wauwatosa police after being hit by pepper spray during a protest outside Mayor Dennis McBride’s house. She was a bystander during a verbal confrontation between a Wauwatosa police officer and a protester that ended, she said, when the officer deployed the pepper spray. Her complaint was referred to the Police and Fire Commission, which requested that WPD investigate the incident. WPD ultimately dismissed her complaint.
Lauryn Cross, a local activist who marched in 2020, disputed the city’s characterization of hostile protesters laying siege to Mayfair Mall. He testified that he communicated with staff at the Cheesecake Factory before protesters entered the building. Protesters held speaking events and chanted in the parking lot and inside the building, he said. The restaurant was a focal point because of protesters’ suspicions that the restaurant’s security cameras had possibly caught footage of Cole’s killing. Baynard, the police officers’ lawyer, while asking a question, accused the protesters of “extorting” the restaurant by pressuring management to erect a mural of Cole. Judge Joseph sustained an objection to the use of the word “extortion.”
Cross, Stark, Schweitzer and Larson all denied ever seeing protesters block ambulances. Cross said that he’d witnessed the crowd move quickly to get out of the way of emergency vehicles.
The only law enforcement official to testify Monday was Capt. Luke Vetter, who briefly served as acting chief of police after the former Wauwatosa Police Chief Barry Webber retired in 2021. Motley and her team had anticipated that Weber would also testify. However, after weeks of attempts the team had been unable to locate Weber to serve him a notice. The attorneys said they were told that Weber was in Israel on a trip sponsored by his church. Baynard and Wirth said they would work to get in touch with Weber to testify. Vetter’s testimony focused on multiple databases the police use to look up citizens’ personal information. Access to those systems requires a user name and password, he said. “We are supposed to protect all personal information,” Vetter testified.
Vetter also addressed the so-called “ghost arrests” of protesters discovered through an open records dump in early 2021. Officers released images of tickets issued to protesters which stated they had been arrested when, in fact, they had not.
The conversation focused on a ticket issued to John Larry, who was formerly involved in an ad hoc committee on racial equity created by Wauwatosa city government in 2020. The committee was later dissolved. When asked if Larry was arrested, Vetter said, “It really depends on what the definition of arrest is.” Vetter clarified that Larry “was not booked or processed or handcuffed.” He said the ticket indicated Larry was arrested because in the police department’s internal system, there’s a sub-category under “arrest” labeled “cited.” This internal notation does not appear on the tickets, however, and Vetter conceded that anyone looking at the materials released by WPD would not be able to tell that Larry was never actually arrested.
More questions as day ends
As the trial wrapped up for the day on Monday, the plaintiffs’ attorney Milo Schwab asked the judge to send a marshal to Weber’s home and argued that Weber should be held in contempt. This request was denied.
There was also a disagreement over Tuesday’s witnesses. Motley and Schwab wanted to call two former alders, Matthew Stippich and Heather Kuhl, former members of the ad hoc committee on racial equity, who say they were targeted by WPD. “There were certain people that he [Ratkowski] was laser focused on targeting,” said Schwab. “This goes to the heart of these protests.”
Wirth and Baynard argued that the alders have no relevant insights into the DPPA claims against Rathkowksi and Roy. Judge Joseph agreed to table the issue until after Ratkowski’s testimony Tuesday.
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