Lawsuit could force transparency on Wisconsin police data

May 24, 2024

This story is being co-published by the Wisconsin Examiner and Invisible Institute, a nonprofit public accountability journalism organization based in Chicago.

Since 2017, Wisconsin policing regulators have tracked what they call “flagged officers”: cops who get fired, resign in lieu of a termination, or resign before an investigation into alleged misconduct can be completed.

The regulators, with the Law Enforcement Standards Board (LESB), were prompted by a series of reports on officers accused of sexual assault and dishonesty who had been able to get rehired — including as a police chief — with little oversight from the state.

“What we’re trying to do is eliminate the opportunity for somebody to slip through the cracks,” the chair of the LESB said at the time, referring to a phenomenon often called “wandering officers.”

Seven years in, it’s difficult to see what has changed: Because flagged officers can still be hired, they often are — and at an increasing rate, according to recent reporting. And because the flagged officers list is limited to only some officers who were disciplined or resigned, there is still potential for additional officers with histories of misconduct to have slipped through the cracks to new agencies undetected.

At the same time, total law enforcement staffing has continued to drop as departments face what they term a hiring “crisis.” This has prompted at least one local expert to raise concern that the hiring shortage could allow for more “wandering officers” to be hired to fill empty positions.

Unfortunately it’s impossible to fully understand the scale of the problem in Wisconsin. That’s because the Wisconsin Department of Justice (DOJ), which houses the LESB, refuses to release the state’s full police certification and employment data. That puts Wisconsin in a small minority of states — just 14 — that have denied access to this information, according to a nationwide reporting project. Over 30 states have released certification data — including Wisconsin’s neighbors Iowa, Illinois, and Minnesota.

Now, Invisible Institute, a nonprofit public accountability journalism organization based in Chicago, and our co-plaintiff The Badger Project, have filed a lawsuit seeking to overturn the DOJ’s denial of this basic information.

Access denied

The data on Wisconsin’s police, and what agencies they’ve worked for, have been requested multiple times over the years by journalists seeking to report on policing issues in the state, including by Invisible Institute in 2017 and 2019 and a student journalist working on a national collaboration to obtain this information across the country in 2022. All requests were denied.

In November 2023, Invisible Institute and The Badger Project filed a new request in order to challenge this history of secrecy. In his letter denying access to Wisconsin’s police certification and employment data, DOJ attorney Paul Ferguson outlines several arguments supporting his decision to withhold the information.

First, he claims that “current undercover law enforcement officers, officers who might perform undercover work, or those with other specific safety concerns” could be “endanger[ed],” or their operations “jeopardize[d]” by the release of the data, and that DOJ had no way to identify those officers throughout the state.

Second, he writes that, even for officers not potentially working undercover or otherwise subject to safety concerns, releasing the identities and employers of public law enforcement officers “would have an adverse effect on the safety and privacy interests of the officers and their families.”

He cites “cyber attacks, doxxing, or swatting activities against officers and their families” as potential consequences, which he claims “have already manifested” although he does not provide verifiable examples.

The lawsuit, filed on behalf of Invisible Institute and The Badger Project by the Wisconsin Transparency Project and University of Illinois First Amendment Clinic and seeking to overturn his denial, argues that none of his stated reasoning justifies the DOJ’s blanket policy of refusing to release records identifying local law enforcement officers.

“Courts have ruled time and time again that speculative fears of harm do not justify withholding government records from the public,” said Tom Kamenick, president of the Wisconsin Transparency Project, in a statement.

“Government officials must do more than merely claim that, hypothetically, something bad might happen if the records are released,” he continued. “Rather, they must show that harm is likely to occur and sufficiently serious to overcome the presumption of access to government records.”

“The state of Wisconsin does not and should not have secret police,” agreed Bill Lueders, president of the Wisconsin Freedom of Information Council, “and it should not require a lawsuit to establish that.”

Flagging officer list

When the flagged officers list was created in 2017, it was described as a “good start” by a national expert on police certification systems — but not sufficient to prevent officers from being rehired. That’s because there was, and is, no requirement for departments to do anything with the knowledge that an officer is on the list; they are still free to hire any officer who holds a state certification.

Indeed, an investigation by The Badger Project four years into the list’s existence found nearly 200 flagged officers still in employment in Wisconsin in 2021. Many were listed due to their status as probationary officers who had committed minor misconduct when it was still easy for their departments to fire them, but many others had committed serious misconduct, including sexual harassment and multiple drunken interactions with other police.

Later in 2021, the state Legislature quietly passed a law requiring law enforcement agencies to keep “employment files” including internal affairs investigations and disciplinary actions, and mandating that already-certified officers who want to move to another department must allow the new department to review the employment file from their previous job.

However, again, the law did not require the new agency to do anything with the information in the old agency’s employment file — or to even review the file in the first place.

Officers who are on the flagged list continue to get rehired throughout the state, reporting by The Badger Project has shown. Agencies that have hired them include the police or sheriff’s departments in Wauwatosa, Black River Falls, Hurley, Cadott, Vernon County, and Waupaca County.

Now, in 2024, new reporting shows that over 300 officers on the list are back working in Wisconsin police departments and sheriff’s offices (which doesn’t include any who may have transferred to other states) — an increase of over 50%. Many of them congregate at the same departments, according to the limited data DOJ releases. Those departments include the Milwaukee County Sheriff’s Office, Waukesha County Sheriff’s Office, and the Milwaukee Police Department.

The flagged officer list does not capture every potential wandering officer, however.

For example, Joseph Mensah, a Wauwatosa officer who resigned after committing three fatal shootings in the Milwaukee suburb, was found by an internal investigation to have “significant training issues” — but was not charged with misconduct. Because he was neither fired nor resigned under investigation, Mensah is not a flagged officer, according to a copy of the list released by the DOJ in April 2024.

Despite protests from local faith groups, he was able to quickly find another job with the Waukesha County Sheriff’s Office, according to reporting in the Wisconsin Examiner.

Mensah’s cases were well publicized, and being placed on the list would not have prevented his hire. But in many less well-known cases that do not fit into the list’s narrowly defined parameters, residents “should be able to have that information [during] hiring — ahead of time, before they’ve even agreed to a hire,” said Nate Cade, a Milwaukee civil rights attorney.

Withholding data that could easily show residents or local journalists an officer’s employment history goes “against fellow citizens by telling them, ‘Your opinion doesn’t count,’” he said.

Many uses for police employment data

The data could go beyond helping journalists and members of the public look up individual police officers or agencies, experts said.

“Key to providing zealous defense for our clients is a full understanding of the facts and investigation that led to charges being filed,” said Katie York, Wisconsin’s acting state public defender, in a statement. “The service record of the investigating officer can often be key in providing ethical representation. Increased access and knowledge of the service record helps to fulfill the constitutional right to counsel.”

Access to police employment data could also help groups like the Wisconsin Innocence Project, said Christopher Lau, a co-director of the project and law professor at the University of Wisconsin-Madison. Being able to use data to get background on officers in support of the cases of their clients, which often involve allegations of police misconduct, “would make our litigation much stronger,” he said.

“Transparency is an important part of building trust between our systems and the people that these systems are supposed to serve,” said Ted Lentz, a criminal justice and criminology professor at the University of Wisconsin-Milwaukee.

He’s currently conducting a “community-centered” research project into data about Milwaukee’s criminal legal system and said that access to data about police employment could allow researchers to look at trends across departments that tend to hire officers who commit misconduct, or the impact of other policy decisions, like Milwaukee’s repeal of its residency requirements for city employees.

Experts have also raised concerns that the staffing issues faced by departments across the state and country could make it easier for officers with histories of misconduct to be rehired into law enforcement without increased oversight.

“Every agency is screaming for more police officer applicants, and so that makes hiring and the acceptance of officers who may have questionable backgrounds a problem for us,” said Patrick Solar, a former police chief in Genoa, Illinois, and a criminal justice professor at the University of Wisconsin-Platteville.

“To hire people to fill the ranks, we may intentionally or inadvertently lower our standards. It brings in the opportunity for officers who may run into trouble moving from one agency to the next.”

In addition, some reports suggest that Wisconsin has been attracting increased transfers from at least one neighboring state: when Illinois passed reform measures in 2021, many officers transferred to relatively more conservative states, including Wisconsin, Illinois Association of Chiefs of Police Executive Director Kenny Winslow told the Washington Post last year. Winslow did not respond to a request for comment from Invisible Institute.

Without data held by the LESB, all of these questions — the true scope of wandering officers within Wisconsin, how many come in from other states, and ultimately, how effective the state’s regulation of local policing is — will remain unanswered. One expert said she couldn’t understand why.

“It’s hard to imagine data that would be more important or relevant for the public to have,” said Christy Lopez, a former U.S. Department of Justice official who led the civil rights investigations into the Chicago and Ferguson police departments, “and where the state would have less of an argument that that information shouldn’t be shared.”

This litigation was supported by the National Freedom of Information Coalition through a grant from the John S. and James L. Knight Foundation, and by the Society of Professional Journalists through a grant from the SPJ Legal Defense Fund.

Disclosure: As the executive director and president of the Wisconsin Freedom of Information Council, Bill Lueders supported the NFOIC grant application.

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