More than 18 months after settling the ACLU's stop-and-frisk lawsuit, City of Milwaukee officials may finally be forced to develop a real plan with a real timeline for implementing the changes it agreed to make in training, policing, and data collection.
"The city as a matter of social responsibility and social justice needs to demonstrate a sense of urgency and more substantial progress," Ald. Tony Zielinski said during a meeting of the Common Council's Judiciary and Legislation Committee this week.
The committee unanimously recommended the full council approve Zielinski's proposal that the Fire and Police Commission be required to present a plan next month with specific action steps and timelines for implementing the settlement.
The most recent report from the Crime and Justice Institute, Boston-based consultants hired to monitor settlement implementation, showed some "pretty substantial noncompliance," ACLU attorney Karyn Rotker told the committee.
"Nobody, even us, would say 'month one you gotta be out there doing everything perfectly,'" she said. "But it's been over a year and a half."
Noncompliance, she said, "is not just a little bit of a mistake or minor problems, and it does raise concerns for us about the entire process and how that is done."
The consultant's report, despite limited conclusions that can be drawn from it, "shows some racial targeting – people of color are more likely to be frisked, but less likely to be found with contraband than white people...which also raises some really serious concerns for us," Rotker said.
The July, 2018 settlement requires the Police Department to collect detailed information about each stop, but has failed to do so, she said.
"Doing data collection right is so critical because so much of the settlement depends on that, right?" she said. "You need the data to figure out what is going on on the streets, whether people are being properly stopped or not, whether all stops are being reported, which is also a concern."
Rotker also said the city was supposed to publish, twice yearly, a community status policing report.
"As far as I know, there has not been one yet," she said.
The ACLU of Wisconsin, along with the American Civil Liberties Union and the Covington & Burling law firm, brought the class action stop-and frisk lawsuit on behalf of African-American and Latinx residents who challenged the constitutionality of MPD's traffic and pedestrian stops and alleged they were racially biased.
The city denied wrongdoing but agreed to alter several practices.
"What we really want is to see a sense of collaboration and a sense of urgency....We want to see someone pick up the ball and run with it a little more quickly," Rotker told the committee. "And we are concerned about when we seem to be having the same conversations over and over again."
By Gretchen Schuldt
State Supreme Court candidate Jill Karofsky won in most of the North Shore suburbs of Milwaukee County in Tuesday's primary election, while incumbent Daniel Kelly did better in the southern suburbs.
Karofsky, with 47,432 votes, was the top Milwaukee County finisher in the Feb. 18 primary. Incumbent Daniel Kelly finished second, with 44,088 votes, and Ed Fallone finished third, with 25,963 votes. Statewide, Kelly finished first with 352,855 votes, Karofsky got 261,723, and Fallone received 89,181.
Karofsky and Kelly will compete in the April 7 general election.
In Milwaukee County Karofsky won in Bayside, Brown Deer, Fox Point, Glendale, Milwaukee, St. Francis, Shorewood, and Whitefish Bay. Kelly won in Cudahy, Franklin, Greendale, Greenfield, Hales Corners, Oak Creek, River Hills, South Milwaukee, Wauwatosa, West Allis, and West Milwaukee.
Karofsky, a Dane County circuit judge, and Fallone, a Marquette University law professor, are considered more liberal than Kelly, who was appointed by former Gov. Scott Walker and is a member of the conservative Federalist Society.
Kelly won in some communities because Karofsky and Fallone split the more liberal vote. All other things being equal, if Fallone voters back Karofsky in the general election, she will pick up Cudahy, River Hills, South Milwaukee, Wauwatosa, and West Milwaukee, all of which went for Kelly in the primary. She also would pick up an additional 96 wards in the city of Milwaukee.
Statewide, Karofsky would need to pick up all of Fallone's votes, plus 1,952 more to unseat Kelly.
Milwaukee County primary voter turnout was highest in Shorewood, at 34%, and lowest in West Milwaukee, at 18%.
Legislation that would lock up lots more people and cost hundreds of millions of dollars to implement is headed to the governor's desk. Please contact Gov. Tony Evers and ask him to veto the "Tougher on Crime" package.
His contact info:
E-mail: EversInfo@wisconsin.gov or use the contact form here
Governor Tony Evers
115 East, State Capitol
Madison WI 53702
The ACLU of Wisconsin put together a nice summary of the bills, which is below.
AB805: Costly, Cruel, and Excessive
● What it does: AB 805 would require the Department of Corrections (DOC) to recommend revocation of probation or community supervision for merely being charged with – not necessarily convicted of – a crime, which means an individual may be sent back to prison with only a finding of “probable cause,” rather than “beyond a reasonable doubt.” The bill is unnecessary and excessive, since making such a recommendation is already an option for agents if they think the charge merits revocation. Revocations already make up the largest source of new prison admissions, with more than 3,000 revocations per year during the past several years.
● What it costs: According to the Department of Corrections’ fiscal analysis of the bill, AB805 would result in 4,672 additional people being incarcerated in state prisons at a cost of more than $156 million annually, resulting in the need to construct two new state prisons. AB 805 would also burden local taxpayers with increased jail costs, because the people held under it will be housed at local county jails at local expense.
AB 806: More Children in Cages, Not Communities
● What it does: AB 806 broadens the criteria for the Serious Juvenile Offender program – the kind of program most states have eliminated. AB 806 would result in sending more children to the troubled, failing and expensive Lincoln Hills and Copper Lake facilities which the Legislature has already voted to close – or to new, costly, unnecessary prisons. We know that incarcerating more children will not help the youth nor will it make our communities safer. Instead, widespread research and the practice of most states shows that youth outcomes improve and community safety increases when they are provided services close to their home communities and in the most family-like settings possible.
● What it costs: While DOC was not able to estimate the total fiscal impact of the bill, it costs nearly $200,000 a year to incarcerate a child in a juvenile correctional facility.
AB 808: Removing Local Control & Decision making from prosecutors
● What it does: AB 808 makes it more difficult to reduce charges in designated cases – which will only add to the state’s current prison overcrowding crisis.
● What it costs: Fiscal notes are indeterminate for the bill, but lengthening sentences will result in increasing the number of people incarcerated in Wisconsin.
AB 809: Limiting Opportunities for Rehabilitative Programs
● What it does: AB 809 prohibits early release on parole or probation for people with a broader range of felonies – even if those people have completed programming or have extraordinary health conditions. It is not sensible to keep people locked up simply because their original conviction was one of these felonies. Older people pose fewer disciplinary problems during their incarceration and reoffend at lower rates upon release. The programming offered through earned release helps people to change their behaviors before they leave prison, which makes our communities safer.
● What they cost: According to the DOC’s fiscal analysis, the cost is indeterminate for the bill, but as of June 2019, 13,912 people were eligible for the current program. Under this bill, 3,800 people would no longer be eligible for programming. By prohibiting early release for a broader range of people, this legislation will serve to exacerbate mass incarceration and cause more people to languish behind bars without appropriate treatment and programming.
AB 853: Mandatory Minimums and Incarcerating Youth
What it does: AB 853 increases penalties for a range of vehicle-related offenses and imposes harsh mandatory minimum sentences against children who commit them. The legislation requires that a person under the age of 18 found to have taken part in the theft of a vehicle, or merely for just knowingly riding in one, must serve at least 30 days in juvenile detention.
Incarceration is a deeply traumatic experience for people of all ages, but especially for youth. States across the country have made significant changes to their juvenile justice systems, dramatically reducing levels of imprisonment while shifting toward a rehabilitation-centered model. AB 853 would make Wisconsin even more of an outlier, further criminalizing and harming youth who are in need of real treatment.
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By Gretchen Schuldt
A Milwaukee police officer repeatedly denied under oath stepping or standing on Milwaukee Buck Sterling Brown's leg after Brown was tased in a Walgreen's parking lot, even though a video clearly shows the officer did so.
"He was kicking at the time. I put my foot against his leg to prevent him from kicking anymore," Officer James Collins said. "I did not step on his leg. I did not stomp on his leg."
The start of the video shows that Brown moved his legs but did not kick in the moments before Collins stepped on him.
Brown was confronted by several Milwaukee police officers after he parked illegally in a handicapped parking space at a Walgreens parking lot about 2 a.m. Jan. 26, 2018. He was tased, taken to the ground, handcuffed, and arrested.
He has filed a lawsuit alleging the officers violated his constitutional rights. His attorney, Mark Thomsen, has filed several deposition excerpts. WJI is printing excerpts of some of them.
Read previous posts, with transcripts, about Officers Joseph J. Grams and Bojan Samardzic and Sgt. Jeffrey Krueger. The full transcript of Collins' deposition is here.
The City of Milwaukee and other defendants in the suit have denied Brown's allegations.
After the incident, the officers involved, including Collins, were ordered to take remedial training that included showing video of and critiquing officers' conduct during the event,
Collins acknowledged that he was told during the training that his action was inappropriate.
"They (officers in charge of the training) said it was inappropriate, yes. They did not say I was standing -- I don't believe they used the terminology "standing," but I was informed that I was blocking. I was not standing on his leg," he testified.
"They told you specifically it was inappropriate," said Thomsen, Brown's lawyer.
Thomsen: It was an unreasonable use of force. Correct?
Thomsen: And you've just told me under oath that your standing on Mr. Brown's leg was not reasonable. Correct?
Collins: I was not standing on his leg.
Thomsen: Your -- whatever you want to say....
Collins: I was blocking his foot with my foot.
Thomsen: And it was not reasonable use of force. Correct?
Collins: That's what I was told, yes.
Thomsen: I want to know, do you believe it?
Collins: I don't believe it, no....I did not stand on his leg. I was blocking his leg with my foot.
The topic came up again later.
Thomsen: So why do you think you got two days off for calling Mr. Brown a douchebag but you didn't get any time off for actually having your foot on his leg?
Collins: My foot was blocking his foot. It was not on his foot. You keep implying that I was stepping on it. I was not stepping on his foot. I was not stepping on his leg.
Thomsen: Do you agree based on the training that you received that because Mr. Brown was not allowed to leave, his constitutional rights were violated?
Collins: Knowing that it was just a parking citation, yes.
The Milwaukee Police Department is keeping from the public part of its proposed standard operating procedures on policing public demonstrations.
There are significant redactions to the proposed SOP forwarded to the Fire and Police Commission by Police Chief Alfonso Morales.
The Police Department is gearing up to handle demonstrations and protests during the Democratic National Convention here next summer. The proposed SOP would give the police wide authority to curb demonstrations.
Want to see what you're missing? Click here for the full proposal.
The Fire and Police Commission's Polices and Standards Committee will consider the proposed operating procedure at its meeting Feb. 20 at 5:30 p.m. at Milwaukee City Hall.
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench who still are serving. We also are chronicling "Evers' judges." The information presented is taken from the appointees' own judgeship applications.
Name: Daniel Kelly
Appointed to: Wisconsin Supreme Court
Appointment date: July 22, 2016 (primary election Feb. 18, 2020)
Law School – Regent University, Virginia Beach, VA
Undergraduate – Carroll College, Waukesha
High School – Arvada West High School, Arvada, CO
2014-appointment – Owner, Rogahn Kelly LLC
2013-2014 – Vice president and general counsel, Kern Family Foundation
1998-2013 – Shareholder, Reinhart Boerner Van Deuren
Wisconsin State Bar
Virginia State Bar
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Primarily complex commercial litigation over previous 18 years. Served as head of appellate practice at Reinhart. Handled criminal cases early in career and served as Milwaukee County special assistant district attorney under Reinhart's auspices. Worked on administrative cases almost exclusively befor the Government Accountability Board or its predecessor, the State Elections Board.
I have also had the opportunity, from time to time, to litigate constitutional issues. I have represented individuals and the government in First Amendment, Due Process, Equal Protection, and Takings Clause cases.
In addition, I have developed a practice in campaign finance and election law. In that segment, I represent and counsel candidates, office-holders, and campaign contributors. Some of the topics include campaign contributions, reporting obligations, redistricting, and recounts.
Number of cases tried to verdict or judgment: Jury, about 20; non-jury, about 10; arbitration, 0; administrative bodies, 5.
Cases on appeal: 23
Three most significant cases:
AKG Real Estate, LLC v. Kosterman – The Kostermans owned an easement over property AKG wanted to develop into a subdivision. The Kostermans refused an alternative route AKG offered. AKG sued, and the State Court of Appeals sided with AKG, ruling that the benefits to Kosterman were far outweighed by the costs imposed to the parties.
The Wisconsin Supreme Court’s AKG decision reversing the Court of Appeals was outstanding. Bad opinions are immediately identifiable for their departure from the judiciary’s proper role. Good opinions, on the other hand, are notable mostly for the fact that they break no new ground; and when it is necessary to do so, they create as few waves as possible. They reflect only judicial authority, they follow precedent, they do not sweep broadly. Instead, they go only as far as necessary to resolve the conflict at hand.
The Wisconsin Supreme Court recognized that the judiciary ought not second-guess an owner’s decision to keep his property rights. “Even at the risk of sanctioning unneighborly and economically unproductive behavior, this court must safeguard property rights.” The opinion embodying that decision restored precedent, went no further than necessary to return property rights to their proper place, reached the result required by law, and did all this in an elegant and tightly reasoned manner.
It was my honor to represent the Kostermans in the appellate process as lead counsel.
Baldus v. Brennan – (A 2011 lawsuit challenging the gerrymandered redistricting maps designed by Republicans in the Legislature.)
As lead outside counsel, I (in conjunction with the rest of the team) conducted a successful multiple-day trial in which the 3-judge panel affirmed all Congressional districts as written, and all State districts but for two adjoining assembly districts on the south side of Milwaukee (AD 8 and AD 9). The court approved the outer boundaries of the two districts, and simply adjusted the line dividing the two.
Redistricting is a quintessentially political activity, the conduct of which belongs to the political branches of government. This case represented an attempt to replace the judgment of the political branches with the judgment of the judiciary. The panel rejected the overture, and instead affirmed the Legislature's work with the minor exception noted above.
The Wisconsin Justice Initiative will continue to challenge Marsy’s Law in court and oppose its adoption by voters, WJI President Craig Johnson said Friday.
“It’s a bad proposal that carries consequences its supporters don’t really want to talk about,” Johnson said after Dane County Circuit Judge Frank Remington declined to issue a temporary injunction that would block the proposed constitutional amendment from the April 7 ballot.
"Voters really shouldn't have to vote in the dark, and that's the problem with the question and the way it's worded," Johnson said. “The ballot question simply does not tell voters what they are actually approving.”
Besides WJI, plaintiffs in the suit include Johnson, who is a lawyer; attorney and WJI Treasurer Jacqueline Boynton; attorney Jerome Buting; and State Sen. Fred Risser (D-Madison).
Dennis Grzezinski, attorney for the plaintiffs, argued in court that the language on the ballot would mislead voters and does not accurately or adequately explain what is in the amendment.
Oral argument about the proposed ballot question largely focused on Remington’s concerns about alleged direct misrepresentations in specific language of the ballot question.
Supporters of the Marsy’s Law amendment contend it would give victims an even playing field in the criminal justice system.
Grzezinski argued in court that while the ballot question says the amendment merely gives victims’ protections “equal force” to those of an accused, the actual amendment allows a victim’s rights to exceed the rights of a defendant, and the ballot question tells voters that an accused’s rights remain intact, when the amendment actually strips rights from persons accused but not yet charged.
Remington grilled counsel for the defendants on whether the language used in the ballot question adequately reflects the language in the amendment.
In briefing, WJI and the individual plaintiffs also argued that the amendment misleads voters through errors of omission, in particular the failure to inform the public that the amendment greatly expands who is considered to be a crime victim (extending rights to roommates and live-in help in certain instances) and amends an accused’s protections under other provisions of the Wisconsin Constitution. Remington indicated that the parties’ briefs sufficiently discussed those matters.
In denying the motion for temporary injunction, Remington noted that WJI’s case involves “novel questions . . . not fully developed in the caselaw.” While noting that plaintiffs’ arguments regarding direct misrepresentations in the ballot question gave him pause, Remington found that plaintiffs would not suffer an irreparable harm if the ballot question goes forward that would outweigh the irreparable harm to the state if the ballot question was enjoined.
Remington pointed to language in an order of the Wisconsin Supreme Court in SEIU v. Vos (the lame-duck litigation) last summer stating that the Legislature “suffers a substantial and irreparable harm of the first magnitude” when its work is enjoined. Further, Remington said, a temporary injunction is not necessary, as any vote approving the amendment may be invalidated through a permanent injunction later.
Attorneys for the state agreed to withdraw their motion to dismiss. Remington set full briefing on the merits of the case to occur over the summer, with a motion hearing on August 13.
Grzezinski said after the hearing that the plaintiffs won't need further arguments “if the voters become sufficiently educated to decide that they don’t want to vote for the things that are in the amendment, despite what the question says.”
The Milwaukee Fire and Police Commission on Thursday approved two independent investigations - one into the leak of confidential information about a police investigation and one into whether it was appropriate for the police to have conducted the interview at the Sojourner Family Peace Center.
The leaked information included a video of the questioning by police of Kalan Haywood Sr., who was accompanied by Commission Chairman Steven DeVougas, a lawyer. Haywood was interviewed as part of an investigation into an alleged sexual assault. He was not charged.
The police union has said DeVougas violated ethics guidelines by accompanying Haywood during the police interview.
On Thursday, DeVougas said he had voluntarily asked the city's Ethics Board for an advisory opinion on whether he had violated any ethics rules.
Commissioner Raymond Robakowski suggested that it would be appropriate to place DeVougas on "administrative leave" pending the outcome of the Ethics Board probe; DeVougas rejected that idea. The matter was not on the agenda for action and was dropped.
Just how the two investigations will be accomplished remains to be seen. Robakowski suggested the State Department of Justice be asked to do it, and Commissioner Everett Cocroft floated the possibility of a Milwaukee County Sheriff's Department investigation. Both DOJ and the Sheriff's Department, however, have strong ties to the Police Department and could be seen as biased, a perception that Robakowski said he did not want.
Funding for the investigations also is an issue. It's not clear where the money for the work will come from. Some commissioners said the Common Council should provide the resources.
Updated Feb. 12, 2020 to include link to Daniel Kelly's "Walker's judges" profile.
State Supreme Court candidate Jill Karofsky said she wants to defend the rights of all Wisconsin residents against right-wing efforts to roll them back; candidate Ed Fallone said he wants to bring a different type of experience and background to the Court, and incumbent Justice Daniel Kelly said nothing at all.
Fallone has been a law professor at Marquette University Law School since 1997. He has worked in private practice and has served in numerous community organizations. He received his law degree from Boston University and has served in different capacities in numerous community organizations. His full resume is here.
Karofsky has been a Dane County Circuit Court since 2017. Before that, she served as executive director of the State Department of Justice's Office of Crime Victim Services. She received her law degree from the University of Wisconsin Law School. She also has extensive community involvement. Her full resume is here.
The challengers will face off against Kelly in the Feb. 18 primary, and the top two vote getters will advance to the April 7 general election.
WJI asked each of the three candidates to answer a series of questions. Karofsky and Fallone responded; Kelly, appointed to his seat in 2016 by former Gov. Scott Walker, did not.
(WJI, though, on Feb. 12 posted information about Kelly in our "Walker's judges" series, which is based on candidates' judicial job applications. Kelly's profile is here.)
The questionnaire was patterned after job applications used by Gov. Tony Evers and Walker when they are considering judicial appointments.
The answers here are as the candidates submitted them.
Help WJI advocate for justice in Wisconsin