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No Charges for Milwaukee Cop in Shooting of Unarmed Black Man

By Ashley Luthern, Milwaukee Journal Sentinel

22 December 14

 

ormer Milwaukee police officer Christopher Manney will not be charged in connection with the on-duty fatal shooting of Dontre Hamilton at Red Arrow Park, Milwaukee County District Attorney John Chisholm said Monday.

The decision comes nearly eight months after the shooting. Chisholm has said he was waiting on reports from an outside expert on the use of force.

"This was a tragic incident for the Hamilton family and for the community," Chisholm wrote in his report. "But, based on all the evidence and analysis presented in this report, I come to the conclusion that Officer Manney's use of force in this incident was justified self-defense and that defense cannot be reasonably overcome to establish a basis to charge Officer Manney with a crime."

Hamilton's family has repeatedly called for the officer — who has since been fired — to face criminal charges. Hamilton's death has been the subject of a series of protests in downtown Milwaukee, led by his family and supporters.

Although Chisholm has met with the Hamilton family several times, he did not meet with them on Monday. The family indicated they did not want to meet with him if the decision was not to file charges, he said.

Speaking to supporters outside the Federal Courthouse, Nathaniel Hamilton, brother of Dontre Hamilton, said he and the other family members will remain strong, won't waver and won't turn their backs on injustice.

"We deserve justice," he said. "Justice is our right."

One of the attorneys representing Hamilton's family said Monday he is asking for a federal investigation to determine if federal charges are warranted against Manney.

The FBI and U.S. Attorney's Office already have the investigative materials, Chisholm said.

"We were informed that they were conducting their own review but they can give us no timeline for when they'll come to their decision," Chisholm said. "As I said, I anticipate the venue will move from the state level to the federal level next."

A small group of protesters began gathering at Red Arrow Park within an hour of the announcement by Chisholm and by 11:30 a.m. about 150 protesters had gathered. They began marching silently to the Federal Courthouse in Milwaukee for the Hamilton family's news conference.

As the group walked to the courthouse, a group of about 10 Milwaukee police officers entered the line and took one man into custody. The crowd responded by chanting "shame, shame."

After the courthouse press conference, the protesters split into two groups, with one group of several dozen moving into the Grand Avenue mall and another moving west on Wisconsin Avenue.

Among the protesters at Red Arrow was Marty Horning of Riverwest, who carried a small, handwritten sign that said, simply, "Shame."

"I'm tired of coming down here and marching," said Horning, who said he has been protesting police cases of excessive force in Milwaukee since the Ernest Lacy case in 1981.

"It appears that it's always justified," said Horning, who said he was not surprised by Chisholm's decision.

"I wish I could say that I was," said Horning. "In one case after another, it appears there is impunity. It's always justified."

The shooting

Manney shot Hamilton 14 times on April 30 during an incident that began when workers at the nearby Starbucks called police to complain about him sleeping in the downtown park. A pair of officers checked on Hamilton twice and found he was doing nothing wrong, according to a Milwaukee police internal affairs investigation.

Manney was not aware the other officers already had been to the park when he retrieved a voice mail regarding Hamilton's presence there and responded to the call, that internal investigation showed.

As Manney began to pat down Hamilton, Hamilton fought him, and a confrontation ensued. Manney tried to use his baton to subdue Hamilton, but Hamilton got control of it and swung it at Manney, hitting him on the side of the neck, according to Milwaukee police internal affairs.

Manney then shot Hamilton repeatedly. Milwaukee police are trained to shoot to stop a threat, and the weapons they use fire multiple rounds quickly. An expert quoted in the district attorney's report estimated that the shots fired by Manney would have taken place in three to four seconds. Seventeen witnesses reported they observed Manney "in shock," "upset" or "distraught" immediately after the shooting, according to Chisholm's report.

In days after the shooting, police officials highlighted Hamilton's history of mental illness and said the mental health system failed him. Hamilton's family has said he received treatment for schizophrenia but was not violent.

Hamilton's family members worked with Milwaukee Mayor Tom Barrett, the police department and other city leaders to have all officers receive Crisis Intervention Team training, considered the gold standard for working with people in psychiatric crisis, by 2017. Manney did not have such training.

Police Chief Edward Flynn fired Manney in October — not for using excessive force, but because he did not follow department rules in the moments leading up to the shooting.

Outside investigation

The investigation into Hamilton's death must follow a new state law that requires a team of at least two investigators from an outside agency to lead reviews of deaths in police custody. Some have questioned whether the investigation of his death by the state's Division of Criminal Investigation is truly independent because some of the agents involved are former Milwaukee police officers.

Chisholm acknowledged the ties between the lead investigators and Milwaukee police during a news conference Monday, but said it was his opinion they were "completely independent and professional." He added that he did not ask state investigators for an opinion on the use of force, but rather only the investigative report.

State law also requires reports of custody death investigations throughout the state to be publicly released if criminal charges are not filed against the officers involved. Chisholm's officer released numerous documents and exhibits and the state's report was expected to be released Monday by the state Department of Justice. The Milwaukee County medical examiner's office also released the full autopsy report on Hamilton.

The Milwaukee County district attorney's office received the state's report on Aug. 8.

The district attorney examined whether Manney acted in self-defense, because, at the time the fatal shots were fired, Hamilton had grabbed Manney's baton and hit him in the neck with it, according to police.

Police officers are held to the same self-defense standard as anyone else. The key is whether an individual believed that his or her life was in immediate danger and that deadly force was necessary.

If prosecutors could prove such a belief was not reasonable, they could pursue a charge of second-degree intentional homicide, Daniel Blinka, a Marquette University law professor and former Milwaukee County assistant district attorney, said in an interview with the Jouranl Sentinel this fall.

"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," Blinka 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.

Manney told internal investigators he did believe those things. He also told Chisholm and other state investigators in the hours after the shooting that after Hamilton hit him once on the neck with the baton, he drew his gun and Hamilton continued to approach.

Manney said "he feared Hamilton would attack him with the baton and that he 'would be dead' as a result," according to Chisholm's report. Manney released medical records to the district attorney's office that showed he had a small cut injury to his thumb, a right neck strain and a bruise on the right side of his neck.

Later, Manney was treated for "post-concussion syndromes and mild traumatic brain injury as well as physical therapy for bicep and rotator cuff injuries," the district attorney's report states.

One of the experts consulted by Chisholm was Emanuel Kapelsohn of the Peregrine Corporation, whom Chisholm cited as a leading national expert in use of force reviews. Chisholm said he adopted Kapelsohn's conclusion: that there can be "little serious doubt that P.O. Manney was justified at firing at Dontre Hamilton, who was attacking him with a deadly weapon (baton)."

The conclusion continued: "The more difficult issue is whether P.O. Manney fired more shots than necessary, or continued firing after he could reasonably perceive that Hamilton was clearly no longer a threat." The report then notes that Milwaukee police, like nearly all officers in America, are trained to fire "to stop the threat."

The firing

Manney is believed to be the first officer in Milwaukee fired as a result of a fatal on-duty shooting in at least 45 years. He has appealed his termination to the city's Fire and Police Commission. The date of the appeal hearing has yet to be set.

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.

The decision to fire Manney stirred unrest among the department's rank-and-file. Shortly after Manney's firing, the Milwaukee Police Association convened a no-confidence vote. Of the union members who voted, nearly all indicated they had no confidence in Flynn. The union has not disclosed the exact number of voters, but said it was a majority of the roughly 1,600 membership.

The union's president, Mike Crivello, released a statement Monday that said the union "respects and concurs with the decision of the District Attorney's Office."

"A thorough investigation aided by expert consultants obviously provided the DA with the necessary information, which guided the DA in making the proper decision," Crivello said. "Officer Manney's actions were reasonable and justified considering the threat – while truly an unfortunate situation, there simply was no other option available."