Both sides of the law


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Lieutenant got a break

In the internal video in July, Flynn asserted that he had recently cracked down on drunken driving and “generally increased the discipline dramatically to three and four and even six weeks’ discipline.”

But in 2008, Flynn suspended Lt. Jason Smith for just 11 days for driving drunk with his loaded, department-issued gun in the car and refusing a breath test, according to Smith’s personnel record and a summary of the internal investigation.

According to the summary:

Another driver called Brown Deer police after spotting Smith’s Mazda swerving, changing speeds and driving over a median into a snowbank around 9 p.m. Feb. 27, 2008. The caller said Smith drove out of the snowbank and parked behind a strip mall.

When officers arrived and asked what he was doing there, Smith answered: “Taking a piss, and I’m Lt. Smith with the Milwaukee police.”

Smith’s speech was slurred and he smelled of alcohol. He failed field sobriety tests.

The Brown Deer officers asked Smith twice if he was armed, and both times he said no. But when police searched his car, they found his gun on the passenger floorboard, leaning against the center console. It would have been easy to reach while he was driving, the internal affairs investigator concluded.

Smith refused a breath test on the scene, so he was taken to Columbia St. Mary’s Milwaukee. There, he also refused a blood test. When officers informed Smith that his blood would be drawn whether he consented or not, he did not resist. His blood-alcohol level was 0.13.

Smith later gave internal investigators this account:

He had worked more than 24 hours with only about half an hour of sleep. When he left work, one of the officers under his command stopped him and asked for his help with some personal problems. The two went to a tavern, where Smith had at least four drinks.

While he was drinking, his gun was holstered to his belt. When he got back in the car to drive home, he took it off.

On the way, he got lost and figured he must have fallen asleep while driving. He stopped behind the buildings to try to figure out where he was, but didn’t remember urinating there.

He told the Brown Deer officers he wasn’t armed because he didn’t have his gun on him while he was standing in the alley — it was in the car. He refused the alcohol tests because he thought it was in his best legal interest.

“In the end, Lieutenant Smith stated that it was an error in judgment to drink and drive after not having enough sleep and that he accepts responsibility for all of his actions,” the summary says.

Refusing an alcohol test is a traffic violation that can result in a one-year driver’s license suspension.

Being armed while drunk is a misdemeanor with a maximum jail term of nine months.

But Smith wasn’t convicted of either offense.

The Milwaukee County district attorney’s office asked Kenosha County Assistant District Attorney Richard Ginkowski to act as a special prosecutor in the case.

“My primary goal is how do I best and most quickly protect public safety,” Ginkowski said in an interview. “Drunken driving is bad in the first place, but, you know, it can happen to anybody.”

Ginkowski was more concerned with the fact that Smith had a gun.

“If he had been doing something inappropriate with his gun, he should have been prosecuted and should not have continued as a police officer,” Ginkowski said.

Not all prosecutors agree with that approach.

For example, Milwaukee police Officer Robert Waldoch got a deferred-prosecution deal from Ohio prosecutors in 1999 after he fired at least seven shots near downtown Cleveland and jumped into a river to try to escape police, according to a summary of the internal investigation . Waldoch later told investigators he drank “three or four” beers but wasn’t drunk, the summary says. Authorities did not do a blood-alcohol test.

Waldoch was suspended for five days and remains on the force, according to his personnel record. He did not respond to an email requesting an interview.

Ginkowski said he surely would have charged someone like Waldoch outright in hopes of having him removed from the job.

Smith, though, “wasn’t waving his gun around” and didn’t fire it, Ginkowski said. He had a positive record with the department and didn’t lie to investigators. Smith also accepted responsibility for his actions by pleading no contest to first-offense drunken driving in Municipal Court, Ginkowski said.

As a result, he offered Smith a deferred-prosecution agreement that required him to get treatment, avoid breaking the law for a year and comply with discipline handed down by the Police Department, according to records.

In exchange, Ginkowski did not file the firearms charge.

Smith got another break when the Brown Deer village prosecutor, Rebecca Boyle, dismissed Smith’s ticket for refusing the breath and blood tests.

Smith’s personnel record lists two commendations.

In 1991, he received a commendation for arresting five suspects in an attempted robbery.

In 1996, Smith received another award, this one for recovering a sawed-off shotgun and connecting it to suspects in a string of armed robberies.

Smith did not respond to a certified letter seeking comment for this story. As a result of the drunken-driving conviction, he was fined $779, according to the summary. His driver’s license was revoked for 6½ months.

Smith successfully completed the deferred-prosecution deal. There is no other discipline on his record.

If Smith had been a driver for American United Taxi Cab Co. in Milwaukee, he would have been let go after the incident.

“Drunken driving, we do not accept at all,” said Mike Richlin, general manager of the cab company. “There’s no question, even on a first offense.”

As a Milwaukee cop, though, the outcome for Smith wasn’t nearly as dire. In August, Flynn promoted him to captain.

In the video presentation to officers, Flynn didn’t address the potential danger of mixing guns and alcohol.

But he did talk about it during a Milwaukee Common Council committee meeting in May. At the time, the new law allowing Wisconsin residents to carry concealed weapons was being debated in the state Legislature.

At the meeting, Flynn said citizens with recent drunken-driving convictions shouldn’t be allowed to carry guns.

“Obviously,” he said, “the state has an interest that if you’re in the position to carry a firearm lawfully, you do so not under the influence of any substances.”

Oct. 30, 2011 – Third of three parts

Police Department ignores national standards for officers accused of domestic violence


When Robert Velez’s wife left their home to escape his abuse, he used his Milwaukee police training — and his badge — to track her down.

First, Velez connected his missing wife to the Exel Inn hotel chain. He initially showed his badge at the Wauwatosa location, according to court and internal affairs records. Lying to the clerk, Velez said he was working undercover, looking for a suspect.

The woman wasn’t checked in there, but the clerk located her in Oak Creek. She had alerted staff that her abusive husband — a cop — might come looking for her.

Nonetheless, the hotel desk clerk led Velez to his wife’s room, knocked on the door, and told her to open it. If she didn’t, the clerk said, he would use the master key.

She did.

Velez shoved past her into the room, where he found one of his fellow officers — whom he and his wife had known for about three years. Velez immediately began beating the man, telling him: “I’ll break your f---ing neck! I’m going to kill you!”

When his wife tried to break up the fight, Velez punched her in the face. He put the man in a headlock and dragged him down the stairs, the records say.

When Oak Creek officers arrived, Velez also fought with them. He repeated the lie about working undercover a third time and pulled back his black leather jacket to show the gun in his waistband, according to a summary of the internal investigation.

As a result of the 2001 incident, Velez was arrested for battery while armed, domestic violence battery and misconduct in public office — charges that could have landed him in prison for 5½ years and barred him from possessing a gun for the rest of his life.

But that didn’t happen. Not only did Velez avoid prison, he was suspended from the department for just six days.

Velez is one of at least 16 Milwaukee police officers disciplined after internal investigators concluded they had committed acts of domestic violence, according to internal affairs records obtained by the Journal Sentinel during a two-year investigation. They are among 93 officers on the force who have been disciplined for violating state laws or local ordinances, according to the newspaper’s analysis, the first of its kind involving the Milwaukee police.

Department leaders don’t follow national standards on how to handle accusations of domestic violence against officers. Prosecutors often charge them with lesser crimes — or no crimes at all. As a result, officers who abuse their spouses or romantic partners are allowed to keep their jobs, carry loaded weapons and respond when battered women call for help, the newspaper found.

Law enforcement agencies that tolerate abusive officers endanger victims, erode the community’s trust and leave themselves vulnerable to lawsuits, said Judy Munaker, an attorney who spent five years training cops about officer-related domestic violence through the state Office of Justice Assistance.

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