Published January 14th, 2020 at 1:02 PM
In the early morning hours of Nov. 9, 2004, a Kenosha, Wisconsin, police officer had just completed a traffic stop when a truck approached a nearby stop sign — and then gunned it. The officer followed to pull over the driver.
The ultimate outcome of the stop was that police shot and killed the driver, 21-year-old Michael Bell Jr.
The police department declared the shooting justified just two days after the incident — a conclusion the family has never accepted — even after settling a wrongful death case against the city for $1.75 million. Michael Bell Sr. has failed to get the investigation reopened, pressing his case yet again late last year.
But the father did score an unlikely legislative victory six years ago, and that success has reverberated hundreds of miles away in Topeka, Kansas, as the Legislature reconvened Monday.
State Rep. David Benson, an Overland Park Democrat, has used Wisconsin as a model for proposed legislation aimed at injecting more objectivity and transparency into cases of an officer-involved death, including in traffic-related fatalities. The January 2018 shooting of 17-year-old John Albers by an Overland Park police officer spurred the legislation.
Benson and John Albers’ mother, Sheila, acknowledged it could be an uphill battle getting the first-time bill through the Republican-controlled Legislature and onto the desk of Gov. Laura Kelly, a Democrat.
The odds seemed even steeper in Wisconsin, but at least in the eyes of Jim Palmer, the law has been a success. Palmer is the executive director of the Wisconsin Professional Police Association, the state’s largest organization representing law enforcement personnel.
At the time the Wisconsin legislation was introduced, Republicans controlled the legislative and executive branches. It helped the bill’s prospects that the main sponsor was a Republican who had served many years in the Door County Sheriff’s Department.
Palmer said his membership kept an open mind and talked with Bell, while other law enforcement organizations took offense at the suggestion that they could not be trusted to objectively investigate their own colleagues.
A key component of the law requires every law enforcement agency in the state to have a policy requiring an outside investigation of officer-involved deaths. In cases where the district attorney decides the evidence does not support prosecution, the investigative file is made public, with appropriate redactions to protect personal privacy and other sensitive information.
The public reports on officer-involved fatalities mandated by the law are posted on Wisconsin Department of Justice website. The reports include the materials gathered on the controversial death of Tony Terrell Robinson Jr., an unarmed teenager, shot by a Madison police officer less than a year after the public-disclosure legislation became law.
“It is about the public having credibility in the process,” Palmer said, “and that matters.”
Advocates also argue that all this additional publicly available documentation improves policing practices, and training, by providing extensive study of real-world scenarios. A comparable example is the study and analysis that goes into plane crashes.
Some of the biggest objections to the legislation, Palmer said, came from metropolitan agencies that had the resources to conduct their own internal investigations. Departments in smaller towns were used to seeking outside assistance.
Palmer also likes to believe that a public perception survey the association has released for each of the past seven years has been illuminating to law enforcement and public officials.
It is conducted by the Strategic Research Institute at St. Norbert College, and Palmer argued the survey played a significant role in getting the Wisconsin legislation passed the first time it was introduced. The survey during that legislative session showed overwhelming support for independent investigations, he said.
The association has also taken it upon itself to track officer-involved shootings every year since 2014. The 32 registered last year was the highest tally ever. Last year was also near the high-water mark, at 75%, for the instances where the officer had encountered a subject with a gun.
Since Wisconsin passed its legislation, Bell’s father said seven other states have followed suit. He testified on behalf of similar legislation introduced five years ago in Missouri, in the wake of the shooting of Michael Brown Jr. in Ferguson, but Bell said the bill never made it out of committee.
Law enforcement personnel know they have a high-profile job that invites scrutiny when something like a police shooting occurs, Palmer said, so it’s not like they need the prospect of a public review of their work to be careful.
Public disclosure of these findings in officer-involved-fatality cases can actually benefit front-line officers, he said.
“People need to have faith in the dangerous jobs that law enforcement does,” Palmer said. “Law enforcement relies on maintaining the public trust. In that way, this legislation has advanced that considerably.”
The Albers case has pitted the family against Johnson County District Attorney Steve Howe. A month after the shooting of John Albers, Howe announced he would not file charges against the officer.
Howe argued the officer reasonably feared for his life as the young man backed slowly out of the garage in the family minivan. The Albers vehemently disagree, saying the officer was out of harm’s way and that there was no reason for him to have unholstered his weapon.
As in the Wisconsin case, the Albers settled their wrongful death case against the city. The settlement amount was $2.3 million.
But the Albers have never seen the investigative material that Howe used to make his decision. Not witness statements. Not the police report. Not the “response to resistance” report filled out by the officer.
Outside of some information released by Howe, the city has cited open-records exemptions in declining to release the investigatory material in the Albers shooting.
With the proposed legislation, Sheila Albers said, “We are balancing the public’s need to know with people’s right to privacy. Right now, the balance is the public knows nothing, and that is not appropriate.”
Benson said transparency and public safety are not partisan issues, so he did not think it out of the question that Kansas could follow Wisconsin in passing the legislation on the first try. At the same time, he said, just getting it discussed in a committee would be welcome.
“We think it is essential to have a hearing on the bill and legislative discussion around this topic,” Benson said.
As a lobbyist for several Kansas law enforcement organizations, Ed Klumpp said in an email that the groups are still discussing the pros and cons of the legislation.
“It is critical to balance the various interests of transparency with the safety and rights of all other involved parties,” he wrote, “and with the continuing investigations of any criminal activity leading to the event.”
Howe has expressed concerns that the legislation could lead to invasions of privacy, and he has also questioned whether rural agencies would have the resources to comply with the legislative mandates.
About a year and a half ago, a former Leavenworth, Kansas, police officer was indicted on one count of involuntary manslaughter for shooting a man while investigating a domestic violence dispute.
But Leavenworth County Attorney Todd Thompson told Flatland that he, too, has questions about Benson’s legislation. It is not clear to him which agency would be required to release the investigative material, nor is it clear where the material would reside once released.
Looking on from Wisconsin, Palmer is hoping for the best in Kansas. Lawmakers should not shy away from this tough topic, he said, because the outcome is worth the hard work.
“What it does is create a process that is more credible,” he said. “That is something that protects law enforcement and the public interest.”
Mike Sherry is senior reporter for Kansas City PBS. He can be reached at email@example.com or 816.398.4205.