Judge rules that lawsuit over police officer’s fatal shooting of Alvin Cole may go to trial

A federal judge has ruled that a civil lawsuit over an officer-involved shooting that killed 17-year-old Alvin Cole in early 2020 may go to trial. On Tuesday, attorneys representing Cole’s family and former Wauwatosa officer Joseph Mensah — who fatally shot Cole following a foot pursuit — delivered oral arguments before U.S. District Judge Lynn Adelman. Although Adelman’s decision was expected to take as long as six weeks, his ruling Friday came just three days after the hearing.

In February 2020, Wauwatosa officers were dispatched to Mayfair Mall for a disturbance between two groups of people, during which a handgun was brandished. When officers arrived, Cole and his friends were fleeing the mall, with Mensah being the last officer to arrive. As Cole ran, a handgun in his possession went off, causing a grazing wound on the teenager’s arm according to autopsy reports. Cole, falling to his hands and knees, was surrounded by several officers, including Mensah.

What happened next has been the subject of a murky and contentious debate since the day Cole was killed. “The officers provide conflicting testimony regarding what happened in the moments before the shooting,” Adelman wrote in his decision. Although Mensah claimed Cole pointed the gun in his direction before he fired his own weapon, Officer Evan Olsen — positioned in another area around Cole — claimed the teen also pointed the gun at him. Another officer, David Shamsi, who was closer to Cole than either Olsen or Mensah, said that he didn’t remember the gun moving at all. Adelman also noted that Mensah didn’t testify to Cole having pointed a gun at anyone besides himself.

“Based on the conflict between the testimony of Olsen and Shamsi, on the one hand, and Mensah, on the other, it is impossible to know what happened and whether Mensah’s use of deadly force was reasonable,” Adelman wrote.

Prior to 2020, when protests took to the streets calling for police reform in Wauwatosa, the city’s police department did not use body cameras. In his ruling, Adelman wrote that a jury might side either for Mensah or against him given the testimony of officers.

Lawyers representing Mensah, who is now a detective at the Waukesha County Sheriff’s Department, argued that he is protected by qualified immunity. Adelman, however, wrote that a jury might find that Cole had not pointed a gun at Mensah, in which case. “Mensah is not entitled to qualified immunity.”

Adelman also addressed claims made by Cole’s attorneys regarding former Wauwatosa police chief Barry Weber. Mensah’s five years at Wauwatosa PD were all spent under Weber, who had Cole was the third person Mensah had fatally shot in  five years. The first two were within a year headed the department since the early 1990s. Cole was the third person Mensah had fatally shot in  five years. The first two were within a year of one another, early in the former officer’s career.

In 2015, Mensah fatally shot 29-year-old Antonio Gonzales, who was holding a sword at the time. Gonzales was killed in a private residence where he was staying.

In 2016, Mensah shot and killed 25-year-old Jay Anderson Jr, who had been sleeping in his car in a local park late in the evening. Mensah told investigators that Anderson had reached for a gun that sat beside him on the front seat of the car. Questions have lingered over the years as to why scene evidence wasn’t preserved, however, as well as why special investigations units in Wauwatosa PD involved themselves in the investigation into Anderson’s death.

While Anderon’s case was being reviewed by the Milwaukee County District Attorney’s Office in 2016, Mensah was awarded a medal of valor for the shooting of Gonzales.

Gonzales and Anderson’s shootings were ruled justified by the district attorney, but the word “justified” wasn’t used in Cole’s case.

Attorneys representing Cole’s family have argued that Weber should be included in the lawsuit, because he was chief during all three of Mensah’s fatal shootings. Adelman ruled, however, that there was not enough evidence to show that Weber “facilitated, approved, condoned, or turned a blind eye to unconstitutional conduct.”

Adelman previously dismissed a similar lawsuit over Anderson’s death without oral arguments, while allowing arguments in Cole’s lawsuit.  Attorneys representing the Anderson family have filed for reconsideration of Adelman’s decision.

In 2021, Anderson’s family petitioned the Milwaukee County Circuit Court to hold a  a “John Doe” proceeding to examine Anderson’s case, after which the circuit court judge found probable cause that Mensah committed a crime by killing Anderson. Special prosecutors appointed by the judge, however, declined to pursue the charges.

Republican lawmakers backed by police unions introduced a bill in 2023 to prevent the John Doe law from  being used against a police officer. The cases involving Mensah were raised during public hearings, when Republican lawmakers and police organizations asserted that  families of people killed by police were pursuing vengeful vendettas in seeking investigations against officers.

The bill passed the Legislature over the opposition of some Republicans and Democrats. Gov. Tony Evers vetoed the bill Friday.

“I object to broadly restricting a courts’ ability to issue criminal complaints in a process designed to hold individuals accountable when there is probable cause to believe a crime has occurred,” Evers stated in his veto message, adding that he has “previously objected to proposals that would restrict the discretion of prosecutors and judges to meaningfully consider and address the circumstances before them.”

Evers also said the legislation “could infringe upon the rights of crime victims and their families” under the state constitution by giving accused suspects an incentive “to claim self-defense to avoid accountability, thereby preventing crime victims from receiving justice they are duly entitled.”