By Gina Barton and Ashley
Luthern
The Milwaukee police officer
who killed Dontre Hamilton in Red Arrow Park is believed to be the first
officer in the city fired as a result of a fatal on-duty shooting in at least
45 years.
Even the two Milwaukee officers
criminally charged in fatal shootings since 1968 — one on duty, one off — were
not fired from the Police Department.
Hamilton, who was unarmed and
had a history of paranoid schizophrenia, was killed by Milwaukee officer
Christopher Manney on April 30.
Manney did not use excessive
force when he shot Hamilton 14 times, Milwaukee police Chief Edward Flynn said;
rather, the officer was fired because he did not follow department rules in the
moments leading up to the shooting, resulting in a struggle that left deadly
force as the officer's only option.
"Now, officer-created
jeopardy is a term that has real meaning in the training circles of police
departments around the country," Flynn said during a news conference
announcing Manney's termination. "...Officers, in their use-of-force
(training), are taught not to create circumstances that place them at a situation
where they have no choice."
Both Manney and Milwaukee
police union President Mike Crivello, in written statements, said it was
"unprecedented" to fire an officer for that reason.
"Our officers are expected
to answer the call, to run toward the sound of gunfire, to intervene when
called. The chief is now demanding otherwise — he is confused," Crivello
said
Since Flynn became chief in
2008, officers have been involved in at least two other fatal shootings that
raised questions about whether they acted appropriately before discharging
their weapons. None was terminated from the Police Department.
Flynn's about-face in the
Hamilton case comes amid heightened scrutiny of officer-involved shootings
nationwide, sparked by large protests in Ferguson, Mo. In Wisconsin, Hamilton's
death is the first to be investigated under a new law that requires an outside
agency to lead the criminal review of any officer-involved death.
Shot 27 times in an attic
The investigation into a
December 2010 case in which officers shot a man 27 times after they found him
hiding under insulation in an attic crawl space — and one officer mistakenly
shot another in the buttock — was conducted by the Police Department's internal
affairs division.
Here is how the incident
unfolded, according to internal affairs records:
A woman called police, saying
she believed her daughter's father, Dionne Brown, was hiding in her attic,
perhaps with a knife. Brown, who was homeless and wanted on felony charges,
said he would not cooperate with being arrested, the woman told police.
Brown, 29, refused to come out,
so Officer Chad Wilson climbed onto a chair and crawled into the attic, where
he saw the insulation moving. A butcher knife and some missing Christmas
presents were nearby. The officer poked the insulation with his baton, causing
Brown to lift his head and exclaim, "You broke my nose!"
By this time, Officer Scott
Wilson, responding to a call for backup, had joined his colleague in the attic,
which was lighted only by their flashlights and had no flooring except narrow
boards. Brown turned toward them and reached under the insulation, the officers
told internal investigators. He refused to show his hands and
"lunged" toward them. Fearing he had a gun or another knife, both
officers opened fire.
"There was no cover
available to the officers and escape was not safely accessible," the
internal affairs report says.
Brown had no weapon.
Officer Chad Wilson, caught in
the line of fire, was shot in the left buttock.
Shooting ruled self-defense
In January 2009, then-officer
Anthony Bialecki fatally shot an unarmed man, Domonick Washington, who was the
passenger in a car that was pulled over for signaling left but turning right.
Bialecki told investigators that as he and his partner approached the car,
Washington's movements led them to believe he was trying to hide drugs. As they
searched Washington, he struggled and tried to run away.
Washington, 26, punched and
kicked the officers, according to police reports. Bialecki told investigators
he shot Washington at close range in the chest because he appeared to be
reaching for his waistband. Bialecki said he feared Washington had a gun.
Marijuana was later found in
the car.
The driver, Deanna Abbott, told
police she saw the officers punch Washington, according to police reports. She
said Washington was on the ground and Bialecki was on top of him when the fatal
shot was fired. Afterward, an officer pointed a gun at her and told her to stay
put, she said.
The shooting was ruled
self-defense. Bialecki was not disciplined or criminally charged. A few months
later, he injured his shoulder while chasing a suspect, according to court
records.
Last year, Bialecki was caught
illegally buying 20 Percocet pills from a police informant. He pleaded no
contest to a misdemeanor, was fined $500 and retired on duty disability.
'Totality' of circumstances
Manney also has applied for
duty disability, saying the Red Arrow Park shooting and its aftermath resulted
in severe post-traumatic stress disorder. He joins a growing number of officers
suspected of misconduct who have applied for duty disability claiming
debilitating stress, sometimes even citing the department's investigation or
media coverage as the cause of that stress.
If approved, Manney's
retirement — which would include about 75% of his salary, tax-free — will take
precedence over his dismissal because he applied two days before he was fired.
In announcing Manney's
termination, Flynn said he considered the "totality of the
circumstances" surrounding the officer's interaction with Hamilton,
including the fact that Hamilton was killed.
The incident began when workers
at the nearby Starbucks called police to complain about Hamilton, 31, sleeping
in the park. A pair of officers checked on him and found he was doing nothing
wrong.
Manney, the beat officer in the
area, was not aware the other officers already had been to the park when he retrieved
a voice mail regarding Hamilton's presence there. Instead of following his
training about how to deal with emotionally disturbed people, Manney came up
behind Hamilton, placing his hands under Hamilton's arms and on his chest in
what Flynn described as an "out of policy pat-down." Manney had no
reason to believe Hamilton was dangerous, Flynn said. Rather, the officer made
assumptions based on his perceptions that Hamilton was mentally ill and
homeless.
Hamilton's family has
acknowledged he suffered from mental illness, but said he was not homeless.
"This is not a call of a
mentally ill man waving a gun," Flynn said. "This is not a call of a
mentally ill man threatening to kill other people. This is a check the welfare
call. Tactics matter. Approach matters. And again, if the outcome had been
benign, we'd be looking at a training issue. But the outcome matters."
Milwaukee is behind the curve
in taking that approach.
The method of reviewing the
entirety of an incident, not just the split-second decision to use deadly
force, has been practiced for more than two decades in some departments around
the country, according to Lorie Fridell, an associate criminology professor at
the University of South Florida and use-of-force expert.
It has become more widespread
over the past 10 years.
"Many departments, when
they do their internal review, focus on the full encounter to include the
decisions the officer made that might increase or decrease the likelihood of
facing death or serious bodily harm at the end," Fridell said.
After the 2011 death of Derek
Williams in Milwaukee police custody — a case in which no officers were
disciplined or criminally charged, despite an inquest jury's recommendation for
charges — protesters took to the streets, demanding Flynn resign or be fired.
Instead, Flynn created a
critical incident review board to evaluate incidents in which citizens are
injured or killed by police officers. The goal of the board, which consists of
Milwaukee police personnel, is to improve policies, procedures and training.
In Hamilton's case, the
department went a step further, using the same approach to determine officer
discipline.
Fatal shootings studied
Earlier this year, proponents
of the law to require outside investigations of deaths in police custody,
working with its co-sponsor, state Rep. Garey Bies (R-Sister Bay), researched
officer-involved deaths around the state.
They found only one in which an
on-duty fatal shooting was not quickly deemed justified. It occurred in Sauk
County in 1986.
Officer John Mueller, then 40,
shot John Graham, 49, twice in the head after arresting him for marijuana
possession, according to news reports at the time. Graham was handcuffed and
facedown on the ground when the fatal shots were fired.
Mueller was arrested almost
immediately and charged with first-degree murder. The officer, who had been
hired despite a previously diagnosed mental illness, pleaded not guilty by
reason of mental disease or defect and was committed to a mental institution.
In Milwaukee County, charges
have been filed in fatal police shootings just twice over the past 46 years,
both by former District Attorney E. Michael McCann.
In 1979, McCann prosecuted
former Milwaukee police officer Thomas Grady for shooting Daniel Bell in the
back in 1958. Exonerated within days of the shooting, Grady soon resigned from
the department. He pleaded guilty to reckless homicide and perjury only after
his partner came forward two decades later and said Grady planted a knife in
Bell's hand.
Grady, who was on duty, used
racial slurs both before and after firing the shots that killed Bell, his
partner said.
In 2005, off-duty Milwaukee
officer Alfonzo Glover fired 19 shots at Wilbert Prado after an apparent road
rage incident.
Glover, on his way home from
work, was not in uniform and not driving a squad car when Prado began
tailgating him and flashing his lights, according to Glover's version of
events. Prado then pulled onto a side street, and Glover followed. Prado had
gotten out of his car and was running away when Glover shot him.
Eight bullets hit Prado, most
of them in the back. Glover was suspended by the department. McCann charged him
with first-degree intentional homicide and six counts of perjury. Within hours
of being charged, Glover committed suicide.
Manney's case is distinctive
from both of those in that he was on duty, unlike Glover, and internal
investigators determined he did not act with malice, unlike Grady.
No charging decision yet
District Attorney John
Chisholm, who took over from McCann in 2007, has not yet decided whether to
charge Manney.
Chisholm previously said he is
seeking opinions from outside experts on the use of force before reaching a
decision.
Daniel Blinka, a Marquette
University law professor and former Milwaukee County assistant district
attorney, said Chisholm is facing a difficult decision.
"The D.A. is likely most
strongly looking at self-defense," Blinka said.
That's because, at the time the
fatal shots were fired, Hamilton had grabbed Manney's baton and hit him in the
neck with it.
Police officers are held to the
same self-defense standard as anyone else, said Blinka, who stressed he had not
had any contact with prosecutors regarding the Hamilton case. The key is
whether an individual believed that his or her life was in immediate danger and
that deadly force was necessary.
Manney told internal
investigators he did believe those things.
If prosecutors could prove such
a belief was not reasonable, they could pursue a charge of second-degree
intentional homicide, Blinka said.
"For that, you would need
to prove... that no reasonable person in the officer's shoes would have
believed those things: that he was in danger and that deadly force was
necessary," he said.
Under self-defense guidelines,
even if it turns out there was no real threat, someone could still have
"perfect self-defense because I actually believed I was in danger and any
reasonable person in my situation would have believed the same thing, (even
though it) turns out we were wrong," Blinka said.
Flynn, who has faced rancor
from rank-and-file officers for terminating Manney, wouldn't say what he
thought Chisholm should do, but noted he didn't think criminal charges were the
only option.
Said Flynn: "There's got
be a way for us to hold ourselves accountable absent putting cops in jail for
making mistakes."
