Ashley Luthern

Milwaukee Journal Sentinel

The Wauwatosa police officer who shot and killed Jay Anderson Jr. will not face state criminal charges, but federal prosecutors have agreed to review the case, Anderson's family said Monday.

The family made the announcement at a news conference several hours after they met with Milwaukee County District Attorney John Chisholm. The family looked visibly upset as they left that meeting.

The family has said video shows Anderson was not "lunging" to grab a gun when he was killed by Officer Joseph Mensah, as the officer contended.

However at a news conference later Monday Wauwatosa Police Chief Barry Weber said the video shows Anderson reaching for the gun with his right hand. The chief said the shooting unfolded in a matter of seconds.

"This is a horrible tragedy and for anyone to lose any family member, no matter what the incident is, it's horrible," Weber said.

Chisholm told Anderson's family that Mensah's actions were justified self-defense when he saw Anderson's hands drop during their interaction, said Jonathan Safran, an attorney for the family who was present at the meeting.

After receiving the decision, Safran contacted the U.S. Attorney's Office in Milwaukee and requested prosecutors investigate whether federal criminal civil rights charges are warranted. He said federal officials indicated they would undertake the review.

A representative with the Milwaukee County District Attorney's Office said prosecutors would not issue any statements or speak with reporters about the decision on Monday.

"If it was another human being that killed Jay, he would be charged, so why can't (Mensah) be charged?," said Starkeisha Delarosa, the mother of Anderson's daughter. "How can he move on with his life and start a family when Jay can't continue his life with his family he had at home?"

The Milwaukee Police Department led the probe into Anderson's shooting at the request of Wauwatosa police who were seeking to comply with a state law requiring outside investigation of police-involved deaths.

According to the Milwaukee police investigative summary:

Mensah was patrolling Madison Park about 3 a.m. June 23 for after-hours loitering violations when he saw a black four-door car parked. Mensah said it appeared someone was moving inside the car so he parked and approached the vehicle on foot.

Mensah was working as a one-officer squad and notified dispatchers of his location. He roused the driver and told him to wake up. Mensah told investigators that during the conversation, he saw a handgun on the passenger seat. Mensah said he drew his service weapon and ordered Anderson to raise his hands and not to reach for the weapon.

Mensah also requested backup officers from dispatchers.

Anderson raised his hands, but at least four times he started to lower his right arm while leaning toward the front passenger seat where the gun was located.

"Mr. Anderson suddenly lunged toward the gun with his right hand," the MPD summary says. "Fearing for his safety Mensah discharged his weapon into the vehicle as he disengaged. Immediately after discharging his weapon he remotely activated his squad camera."

The squad camera automatically went back and recorded the prior 28 seconds, but that recording does not include audio. The Milwaukee police report describes the video as showing Anderson "lowering his right hand and leaning slightly toward the front passenger seat. He raised that back above his shoulder but immediately lowered it again toward the passenger's seat, as his hand goes out of camera view."

Mensah then fired into the vehicle. Anderson was shot five times in the head and once in his shoulder.

Anderson was found to be legally intoxicated and had traces of marijuana in his system, the Milwaukee police report says.

According to a notice of injury filed by Anderson’s family, the video shows Anderson slumping forward and lowering his arms at least twice during his interaction with Mensah, as if sleeping or passing out, and that the last time Anderson's hands and head went down, Mensah fired his service weapon repeatedly.

The gun Mensah saw was removed from Anderson's car before investigators photographed it, Safran said.

Weber said officers made a judgment call to remove the gun because it was unclear whether other people were in the area and could access the weapon.

Mensah was not wearing a body camera at the time of the shooting; Weber said the department is still in the testing phase for body-worn cameras.

In the six months since the shooting, much of what was known publicly about the case had been released by Anderson’s family. Last month, Anderson’s family released photos of his car, which was returned to them with shattered glass, blood stains, bullet holes and his dreadlocks still inside.

Throughout the investigation, Wauwatosa police declined to release video footage or other reports related to the shooting until prosecutors made a final charging decision because, they said, the release of incomplete information could cause misunderstanding. Police officials have said they wanted the entire event to be "viewed as a whole."

Last year, prosecutors cleared Mensah and another officer, Jeffrey Newman, in the July 2015 shooting that killed 29-year-old Antonio Gonzalez. Gonzalez was wielding a sword when he was confronted by police, authorities said.

Mensah returned to work Aug. 25, 2015. Weber said allegations Mensah had sought disability benefits from the City of Wauwatosa after that shooting were false. The notice of injury filed by Anderson’s family had cited those claims but also noted the allegations had not been independently confirmed.

After the Anderson shooting, Mensah was placed on administrative leave, and Weber said he expects Mensah to return to active duty soon even while an internal investigation continues.

The notice of injury also says Mensah worked for less than two years at both the Dane County Sheriff's Office and University of Wisconsin-Madison Police Department before he was hired by Wauwatosa police in January 2015.

Jesse Garza and Crocker Stephenson of the Journal Sentinel staff contributed to this report.