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Can Wisconsin's First Guidelines for Investigating Police Shootings Aid Other States?

For the first time, the Wisconsin Department of Justice has formalized its guidelines for independently investigating police shootings -- the latest step in the state's efforts to be a national leader on the issue.

By Jason Stein

For the first time, the Wisconsin Department of Justice has formalized its guidelines for independently investigating police shootings -- the latest step in the state's efforts to be a national leader on the issue.

Before April, the state investigators charged with reviewing police shootings were relying on their agency's general guidelines for investigations and even in some cases on unwritten understandings about how to handle these specific cases.

Going forward, state agents will be able to say -- literally -- that they're handling these sensitive investigations by the book.

The stakes could not be higher: public turmoil over shootings has resulted in riots in cities around the nation in recent years, including last summer in Milwaukee. Police unions have also expressed concern that a perceived lack of public support is making it harder to recruit and keep good officers.

"The public wants to see a fair process and I think the written policies spell out what the process is and I think it is a good policy," said Rep. Chris Taylor (D-Madison), who helped write the Wisconsin law that requires independent investigations of police shootings. "In a lot of ways they could be a model policy."

A spokesman for the Milwaukee Police Department declined to comment on the new guidelines, but the executive director of the state's largest police union welcomed them.

"This is the first time that we're aware of that the department has had a formal policy and that's a very positive development," said Jim Palmer of the Wisconsin Professional Police Association. "There are benefits for the public and for officers to know what the policy looks like."

The new 20-page guidebook will also serve as a set of best practices for other police investigators around Wisconsin who, like DOJ agents, do outside reviews of shootings by other law enforcement agencies. Because police shootings vary so widely, agents will still be able to work outside the guidelines to adapt to unforeseen circumstances, state officials said.

Johnny Koremenos, a spokesman for the Justice Department and GOP Attorney General Brad Schimel, said the guidelines would also be used in agency training for local police. The policies reflect what the agency has learned from reviewing best practices nationally and 60 investigations since 2014 in which police used force or a suspect died.

"It has been a continuous review of (officer-involved death and officer-involved shooting) events in the state of Wisconsin and what is happening around the country," Koremenos said.

The guidelines, which come out of a DOJ review begun in April 2016, revise the agency's past practice of allowing police involved in shootings to review video and audio of the incidents before being interviewed by investigators.

In at least five cases since 2015, officers being investigated in a shooting were allowed to review recordings of the event before discussing it in depth with DOJ agents, the Milwaukee Journal Sentinel reported in March. Starting in July 2016, DOJ stopped allowing officers to review those recordings in advance of their interviews without sign off from a district attorney.

The new guidebook reflects lessons learned from the DOJ's investigation of a December 2015 shooting of a hostage in Neenah, Koremenos said. The Appleton Post-Crescent first reported about concerns over the differences in how state agents questioned a hostage-taker in that case compared with how they questioned two police officers who mistakenly shot the hostage.

In that case, the accused hostage-taker was interviewed and recorded with no attorney present three hours after the standoff at Eagle Nation Cycles ended. The officers were interviewed four days later, accompanied by a union attorney; no recording was made.

Though this change in interviewing practices was adopted last summer, it wasn't put in writing until the guidelines were issued last month. Taylor, the Democratic lawmaker, said that was critical.

"You really do have to put policies in writing," she said.

The guidelines cover everything from the management of the shooting scene to the release of information to the news media. They also call for:

* Requiring DOJ agents to disclose any relationships they may have had with officers involved in a shooting. The rules don't specifically address concerns from Taylor and the ACLU of Wisconsin about DOJ agents investigating police departments that formerly employed them.

* Limiting DOJ's investigation to a strict review of whether officers committed a crime. The family attorneys of Tony Robinson, a 19-year-old biracial man killed by a Madison police officer, have objected to a DOJ interview also being used for the officer's disciplinary review in that case.

* Recording DOJ interviews of officers. If officers object, DOJ cannot force them to have their statements recorded since it could prevent the evidence from being used in any resulting criminal case.

Wisconsin's model has been drawing attention outside the state as a way of boosting public confidence in the outcomes of shooting investigations. A report last year by the Stanford Criminal Justice Center pointed to the transparency, experienced state investigators, public support, flexibility and promptness of the state's system.

"(These) five attributes of Wisconsin's system make it an especially favorable way of achieving independence," the report reads.

(c)2017 the Milwaukee Journal Sentinel

Caroline Cournoyer is GOVERNING's senior web editor.
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