DA: No charges against Officer Mensah in shooting of Alvin Cole

WAUWATOSA, Wis. - There will be no criminal charges filed against Wauwatosa Police Officer Joseph Mensah in the shooting death of Alvin Cole, 17, outside Mayfair Mall in February, Milwaukee County District Attorney John Chisholm announced Wednesday, Oct. 7, writing: "In this case, there is sufficient evidence that Officer Mensah had an actual subjective belief that deadly force was necessary, and that belief was objectively reasonable. I do not believe that the State could disprove self-defense or defense of others in this case, and therefore, could not meet the burden required to charge Officer Mensah."

"We have a very strong policy of not charging anybody if we don't believe we can prove it," Chisholm told FOX6 News.

In making his decision, Chisholm outlined the factors that must be present for police officers in Wisconsin to use deadly force: a weapon, a means of delivering lethal force and displayed intent by the armed individual. According to Chisholm, this case presented all three.

"Mr. Cole went to Mayfair Mall armed with a 9mm," said Chisholm. "He had a confrontation with a patron. While he was running from them, he discharged the firearm, and from that point on, he was ordered to surrender the firearm and never did so."

According to Chisholm, police were called to Mayfair Mall Feb. 2 because of an incident involving a person who had a gun. That person, later identified as Cole, was seen leaving the mall and ran from police when they tried to arrest him. While running, an investigation by the Milwaukee Area Investigative Team led by Milwaukee police revealed Cole fired the gun and went to the ground. He was told by police officers to "disarm” and was eventually shot by Mensah.

Surveillance video shows Cole entering the mall, along with others, shortly before 6 p.m. on Feb. 2, seen carrying a sling bag that was later found to have a 9mm semi-automatic handgun and a loaded 30-round extended magazine, according to Chisholm's report.

A picture of Cole holding the gun was posted to Facebook the night before the shooting, according to the report. Cole was not allowed to carry a weapon because of his age and prior juvenile felony convictions. The gun that was recovered after the shooting was reported stolen in October 2019 from Milwaukee.

A short time after entering the mall, Chisholm said Cole and a man were involved in an argument -- a portion of which was posted on Facebook.

The man told police, "He kept pulling it out of the fanny pack. He never pointed it at me, like, as if he was (going to) fire. He just kept flashing it, but I know guns, you know what I’m saying? I had seen the slide and it had the green sightings, and then when he flashed it again, I had seen the extended clip. I’m like, 'Whoa! Like, what are you doing with this?’”

The report goes on to say Cole fired a round from the gun while running, just before a security guard reached him. That guard said a shot came from Cole’s position and the medical examiner identified a wound to Cole’s left arm that was likely self-inflicted.

After Cole likely shot himself, he went to the ground kneeling with the gun in his right hand, pointing it at two police officers. According to Chisholm's report, both say he pointed the gun at them.

Before Mensah shot Cole, surveillance video shows a dark object appearing from Cole’s position. Mensah said Cole pointed the gun at him under or over his left shoulder before Mensah fired. Mensah can be heard yelling, "The gun is out," prior to firing.

The Wisconsin Crime Lab analyzed the sling bag, the extended magazine and firearm at the scene.

Wauwatosa Police Chief Barry Weber said in a statement the department "concurs with the decision" made by District Attorney Chisholm, calling Cole's death "a tragedy."

"The Wauwatosa Police Department sympathizes with his family as they and others continue to grieve the loss of their loved one," he said.

Weber noted a "purposeful review of the facts" was done in this case, and the decision to use deadly force was "justified and reasonable according to the legal foundation of the laws of our state."

He said an internal administrative review of the Cole shooting is ongoing, "to examine the performance of all WPD personnel" as it relates to department procedures. Weber said findings and any action will be presented to him.

In the meantime, Officer Mensah remains on administrative suspension pending ongoing Wauwatosa Police and Fire Commission proceedings -- the timeline unknown.

Weber also announced department policies and procedures posted to the department's website for the public to view and said body camera testing has concluded, the purchase of the equipment has been approved and the goal is implementation by January 2021.

Weber added that "civil disorder is not protected by the First Amendment" and said officers would continue to work to uphold the Constitution.

Mayor Dennis McBride issued a written statement and the below YouTube video, noting that "this issue has divided Tosa and the Greater Milwaukee community."

The mayor said some will agree with District Attorney Chisholm's decision, while others will not, and the "debate will not end with today's decision, but the wheels of government and law will continue to turn."

"In a democracy, any change must come through the functioning of people elected by the people to serve the people," said Mayor McBride.

The mayor added that he supports the Wauwatosa Police Department's equity efforts, and he is working with all departments "to refocus our work and craft policies through an equity lens."

Mayor McBride asked for calm in the wake of the decision.

"Violence is not the answer," he said, adding that, "We must do everything we can to keep our community peaceful."

The mayor said he issued an emergency declaration ahead of Wednesday's decision to "help ensure everyone's wellbeing."

He said police "will protect the lives and property of all businesses and people while protecting the constitutional rights of all people to engage in peaceful protest."

Cole’s family disputes that he fired the gun on that February night, and has called for Mensah to be fired.

"So the investigator for the fire and police commission determined that Joseph Mensah’s not fit for duty as an officer," said Kimberley Motley, attorney for the Cole family, following the meeting with Chisholm. "Page 47 of the investigative report, he specifically said what the family has been saying for months -- that Alvin Cole never shot at Officer Mensah, and Alvin Cole never shot at any officer, period. In addition to that, the investigator said there is just cause to terminate Officer Mensah as an officer. Now, that report was mostly based on the Jay Anderson case. Had Officer Mensah been terminated four years ago, when he shot and killed Jay Anderson, then Alvin Cole would be here today. Had he not been an officer now, Alvin Cole would be here."

"Chisholm did not say that the shooting was justified, and that’s really important because normally for these things, if he believes that, he will say that," Motley added. "He did not say that Officer Mensah shooting Alvin Cole was justified. We are not done fighting. We are still gonna fight. We are still gonna fight for a conviction of Officer Joseph Mensah."

According to Motley, Officer Mensah did not "sit down" with Chisholm. She said the other officers who were there the night Cole was shot also did not sit down with Steven Biskupic, a former U.S. attorney who submitted an investigative report to the Wauwatosa Police and Fire Commission in this case, finding that Mensah should be fired.

"The fact that they did not do that, the fact that Officer Mensah did not do that speaks volumes," said Motley. "He’s been out there saying Alvin Cole shot at him. It’s a lie he’s been perpetuating for months. We know that also, Chief Weber on June 17 lied to the fire and police commission and said that Alvin Cole’s gun was loaded with 30 live rounds. That was on video. June 17, he lied. Now, that is the leadership of the Wauwatosa Police Department, and he needs to be fired immediately. That shows you what kind of policing they want in Wauwatosa. He presented evidence to us and the family. Why aren’t you charging him with some level of homicide? It’s the question we all deserve to know. That is the question he has not sufficiently answered."

Just after 3 p.m., family members of Alvin Cole prayed before making their way into the Milwaukee County Safety Building to learn whether Mensah would be charged. 

"I want to thank you all for showing us support during this grieving time," said Tracy Cole, Alvin's mother.

"I am a bit nervous," said Nick Hansen, among those awaiting the decision. "I feel in my spirit I know what is going to happen."

A crowd lifted their voices outside the safety building while waiting for the announcement.

Earlier Wednesday, a report from former U.S. Attorney Steven Biskupic's to the Wauwatosa Police and Fire Commission said Mensah should be fired because the risk of him shooting a fourth person is too great. Steven Biskupic, who was asked by the PFC to investigate Cole's death and determine whether there was reason to discipline Mensah, noted that Mensah violated policies preventing officers from speaking about pending investigations when he gave a radio interview and spoke about the shooting on a podcast in July.

The Wauwatosa Police Department issued this statement Wednesday on the investigator's report:

"We are also aware that the Wauwatosa Police and Fire Commission was provided with independent investigator Steven Biskupic’s report regarding their ongoing proceedings involving Officer Joseph Mensah. Chief Weber and his command staff will carefully review this report; however, the Wauwatosa Police Department will not comment on that matter at this time."

Mensah has been involved in three fatal shootings in five years.

The first happened on July 16, 2015, when Wauwatosa police were called to Glencoe Circle and Bluemound Road after a landlord called 911. 

Antonio Gonzalez, 29, was fatally shot after police said he refused to drop a sword. 

A friend and landlord said Gonzalez suffered from mental health issues.

Mensah and a second officer were cleared in this case later in the year.

Less than a year after that shooting, on June 23, 2016, Jay Anderson was fatally shot in Madison Park in Wauwatosa by Mensah.

Police said Anderson had a gun in his possession in the park around 3 a.m., and Mensah feared for his safety.

Anderson's family believes he did nothing wrong, and he was simply sleeping in his vehicle hours after the park closed.

About six months later, on Dec. 5, 2016, the district attorney announced no charges would be filed against Mensah in the Anderson shooting. 

Dash camera video was released following the announcement showing that Mensah fired six times, and five bullets hit Anderson. 

Wauwatosa Police Chief Barry Weber said Mensah went through counseling and would return to duty. 

In February 2017, the U.S. attorney announced a decision not to pursue a federal civil rights case, telling Anderson's family in a letter there was "no reasonable basis for criminal prosecution." 

That brings us to February 2020, when Alvin Cole, 17, was fatally shot in the parking lot at Mayfair Mall in Wauwatosa. 

Wauwatosa police said Cole fired a gun at officers on Feb. 2, 2020 when he was shot and killed, however, attorneys for Cole's family say they have video evidence and witness statements that prove that's not true. The Cole family acknowledges he had a gun, but says he didn’t point it at Mensah and it was not loaded, according to their attorney.

Mensah was placed on administrative leave while this shooting was investigated by the Milwaukee Area Investigative Team. 

The district attorney met with Cole's family on June 11, but no decision was made at that time.

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On July 15, the Wauwatosa Police and Fire Commission suspended Mensah based on a complaint by the family of Jay Anderson after attorneys argued the case violated law enforcement code, which should result in Mensah's firing. 

Days later, on July 19, Mensah's brother launched a GoFundMe.com account with the goal of clearing his brother's name. 

On Aug. 8, there was a protest at the home of Mensah's girlfriend near 100th and Vienna, where Mensah was staying. Mensah says protesters attacked them.

Wisconsin State Rep. David Bowen (D-Milwaukee) said he was there that night, and disputes that Mensah was attacked or shot at. Having not seen all of the events, Bowen relayed information from sources he considers reliable. Wauwatosa police issued a statement saying the facts do not support Bowen's claims.

Two days later, on Aug. 12, Mensah spoke with "Fox and Friends" about the events of Aug. 8, indicating he was shot at.

The next day, the attorney for the families of Gonzalez, Anderson and Cole asked the mayor to fire Chief Weber.

Wauwatosa Mayor Dennis McBride announced protesters would need permits in private areas, and said peaceful protests at the police station and City Hall could continue. Demonstrations continued despite the new rules, and two days later, on Aug. 15, the limits on protesting were lifted.

Two days after that, on Aug. 17, the Wauwatosa Police and Fire Commission moved forward with the complaint against Mensah filed by Anderson's family. The commission approved deadlines in the Anderson case, with hopes of having a hearing and decision this year.

Two days later, on Aug. 19, charges were filed against three men in connection with the shot fired at Mensah's girlfriend's house on Aug. 8. 

Prosecutors say Ronald Bell admitted to firing the shot from the shotgun during the protest, and William Lofton was driving the vehicle he left the scene in. A criminal complaint said Niles McKee was on the roof of that vehicle -- and provided the shotgun Bell used in the incident, later asking a friend to "hide" it. Bell told investigators the gun discharged while he was holding it, striking the residence, while he was confronting Mensah, the complaint said.

At the PFC meeting on Sept. 18, Wauwatosa police announced they hope to have body cameras in place within the department by the end of 2020.