Emotional Testimony Quashed In Wauwatosa Protester 'Target List' Trial

By Isiah Holmes, Wisconsin Examiner

May 4, 2023

A third, emotion-filled day in a federal court case on Wauwatosa police surveillance of protesters began with testimony from Lt. Joseph Roy, who oversees WPD’s open records requests. Both Roy and Dominick Ratkowski, the department’s only crime analyst, are defendants in the lawsuit.

The lawsuit alleges that both men violated the Drivers License Protection Act (DPPA). Ratkowski, who created the protester list, gathered intelligence on people through social media and police databases, including Department of Transportation records. Roy oversaw an open records release in January 2021 which included hundreds of unredacted documents, interrogation video and confidential informant videos.

The records have been removed from public view per a court protective order. In his testimony, Roy stated he never informed any of the recipients of the information about the protective order. Roy sent the records release to 16 email addresses including attorneys, media, American Civil Liberties Union staff and others. Among these records were citations issued to protesters which contained information found in DOT records, as well as police incident reports which stated information had been gleaned from the DOT.

Roy, echoing testimony from WPD Capt. Luke Vetter on Tuesday, framed the WPD as a model for Wisconsin’s “sunshine state” tradition. As a sunshine state, Wisconsin is known to have strong open records laws. Roy, like Vetter, asserted that “we don’t do anything in secret,” in testimony.

“We don’t make secret arrests, we don’t run secret jails,” Roy added. (In internal email, WPD personnel have explored ways to use high records fees to keep records from getting released. The Examiner is among several parties that outlets have outstanding records requests with the department going back to 2021, which have not been fulfilled.).

The citations released by Roy were issued to people who protested in Wauwatosa throughout 2020. The cause of these non-criminal, non-traffic citations varied from lacking an event permit to giving false information to officers. Many people placed on the list who testified in the trial have said they never spoke with an officer, were never questioned and received tickets in the mail. Some of the tickets demanded payments of upwards to $1,300. The tickets also contained information on the cited individuals such as name, birth date, race, height, weight, eye and hair color, VIN numbers for their vehicles, driver’s license numbers and other information.

During testimony Roy repeatedly said, “I don’t know where this information came from,” in reference to the information on the tickets. “I’m sorry to sound like a broken record sir,” he told one of the plaintiffs’ attorneys.

Roy stated that he’d have no way of knowing if the information came from DOT, or from other consolidated databases used by law enforcement to store information on people. The Wisconsin court system’s CCAP records were invoked both by Roy and Ratkowski, but a TMJ4 report from 2021 found that 74.3% of the people placed on the list had never been charged with a misdemeanor or felony, so their records would not be findable on CCAP. The list included information on people who participated in protests as well as elected officials, attorneys and journalists.

Roy also testified that he believed that the DPPA didn’t apply to DOT information that was used to verify information the police already had. Attorneys for the plaintiffs brought up a deposition Roy gave in which he stated that some of the information did in fact come from the DOT.

Roy was also questioned as to the nature of the January 2021 records release. Several people who were sent the records did not request them. One reporter requested video of the arrest of Alvin Cole’s family during the Wauwatosa curfew in October. Another recipient was an attorney representing a single client, who stated he received unredacted information on many other people and incidents.

“This is a sunshine state,” Roy said, adding that reporters receive the records they request. For the protester list, which was released in the summer of 2021, Roy released a redacted version due to concerns around security, privacy and confidential sources, he testified.

Emotional testimony blocked by objections

After Roy’s testimony came more of the case’s plaintiffs. Pete Sparks, a Milwaukee-area resident who joined the protests once in October during Wauwatosa’s curfew, said he’d been interested in the Black Lives Matter movement all summer, but didn’t know how to get involved until a march came past his home. During the curfew, Sparks recalled that night that “I got jumped” by people he described as masked “paramilitary-types.” Sparks said he didn’t know whether they were officers because they didn’t identify themselves, but he was arrested and taken to the Wauwatosa Police Department. Sparks’ testimony quickly drew an objection from the defense team, which triggered a lengthy side-bar conversation with the judge.

Sparks, who was placed on the protester list, testified that he was never questioned by officers in order to give the information that appeared on the list. The address attributed to Sparks on the list was not where he lived at the time but it on his driver’s license. Following his curfew experience, Sparks filed an open records request for names of officers who arrested him and footage from the squad car, body cameras or booking room. Sparks said he never received that information although it was later given to his attorneys. The open records response which Sparks received was the same one Roy released in January 2021.

“I would call what I got was a dump,” he testified. It included voluminous information on other people and incidents, but not his own. “It was so much stuff that wasn’t mine.”

During questioning, Sparks attempted to go into the circumstances of his arrest.

“There’s no real evidence that any of them were police officers,” he said. Defense attorneys objected, triggering another lengthy sidebar. When questioning resumed, Sparks was asked by the judge to focus his answers. He expressed his frustrations with the questioning, saying he was unable to give complete answers. His frustration grew to an outburst, causing the judge to order court security to escort him away. As he left Sparks exclaimed angrily that after two and a half years, “none of these cops have been busted?”

After Sparks came Molly Nilssen, who protested frequently in 2020 and was arrested the same day as Sparks. Like many protesters arrested that night, Nilssen said she was taken to several locations, including school parking lots, before arriving at a police station. She said she wasn’t questioned, but her driver’s license information also appeared on the list and in records releases.

“I feel violated,” she said, beginning to cry, “vulnerable…Since I learned about all of this I’ve felt very unsettled.” Nilssen said she’s “always looking over my shoulder” and that she feels “very unsafe.”

Defense attorneys stressed that Ratkowski only called the protester list a “target list” one time, in an email sent before the curfew. Nilssen testified that the mere use of the word “target” for a list she was on was “terrifying.” After Nilssen came an attorney who requested records for a single client, yet received the records dump which didn’t include his client’s information.

Molly Collins, formerly of the American Civil Liberties Union of Wisconsin, testified to having a similar experience. The ACLU was investigating interactions between law enforcement agencies during the October curfew, and wanted records on what officers did with the phones taken from protesters. Instead, she received the Dropbox link containing unredacted information which she did not request. When the Dropbox link was removed under a protective order, Collins said no one from WPD reached out to inform her.

Diane Nelson, a detective from a Minneapolis-area sheriff’s department testified that she was shared on the protester list by Brian Conte of the Milwaukee County Sheriff’s Office. Conte had received the list from Ratkowski with the instruction to “feel free to pass this along to who you think would find it useful.”

Nelson said her office, which is responsible for court security, wanted information on a specific person they’d interacted with. That person was not on the list and, although Nelson only asked for that subject’s information, she received the entire unredacted document numbering around 200 people. The defense team pointed out that when Nelson received the list, it was not called a “target list”.

Photographer Sean Kaefer, who sought to document the first 100 days of protest after George Floyd’s killing, also testified. Kaefer is currently the director of a UW-Milwaukee documentary program.

“I wanted to document history shortly after George Floyd,” he said. Kaefer said he was never arrested, and never witnessed any violence or property destruction. No one from law enforcement ever reached out to him to review his videos for an investigation. Kaefer, and his wife, were placed on the list and Kaefer received citations in the mail.

“I felt violated,” he said, “I was confused and felt disappointed in law enforcement.”

One of the defense attorneys referred to Kaefer as “a memorialist witness to what was going on.” Kaefer’s driver’s license information was placed on the list, but the information came from an old license which he did not have at the time of the protests, he testified.

Jill Furgeson, age 70, who protested in Wauwatosa and elsewhere, testified, “I have grave concerns,” about her privacy and what the list was used for. “The night of my arrest was very, very traumatic,” she said before being cut off by an objection from the defense. “I was scared to death … I’m even more scared today after hearing the testimony,” about the list being widely shared, Furgeson said.

Tracy Cole, mother of Wauwatosa police-shooting victim Alvin Cole, whose killing sparked the Wauwatosa protests, was unable to mention her son’s shooting in her testimony after the judge sustained an objection by the defense. When asked what she was doing at the Cheesecake Factory, Cole said she was placing candles and holding a vigil for her son. The defense objected, and a lengthy sidebar followed.

Like Sparks, Nilssen, and others, Cole had a strong emotional reaction while on the stand and cried when recounting her experiences. “I feel very scared for my other kids, I already lost one to police brutality,” she testified. “I’m afraid.” This drew another defense objection. Cole attempted to testify that she sent a records request to WPD and was quoted a price for obtaining the records of more than $4,000. That triggered another objection and another lengthy sidebar. Cole concluded her testimony by stating the information on her own entry on the protester or “target list” including data from an old driver’s license.

The plaintiffs then concluded their presentation. The defense is expected to wrap up witness testimony on Thursday, at which point the next phase of the trial will begin.

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