A use of force expert has offered testimony for the prosecution in the trial of a Brown Deer police officer who is charged with aggravated battery in connection with a 2016 shooting.
The Shooting
In March 2016, a Milwaukee County Transit System bus driver flagged down two police officers to report Manuel Burnley Jr. for disorderly conduct. Surveillance video captured the scene. The video showed the officers taking Burnley off the bus and all three falling to the ground. During the struggle, Burnley was flipped onto his stomach as the officers attempted to handcuff him. Officer Devon Kraemer then fired a shot into his back.
Burnley suffered rib fractures and lost part of a lung. He was hospitalized for 12 days as a result of the shooting.
Trial Testimony
Officer Kraemer, 28, was charged with aggravated battery, intending bodily harm. In her defense, she claims that she feared for her and her partner’s safety, notwithstanding that the two officers were in control of the unarmed man. If convicted, Kraemer could face up to 10 years in prison.
District Attorney John Chisholm called Emanuel Kapelsohn, an expert on use of force and a Harvard-trained lawyer, to testify for the prosecution. Kapelsohn said that he has been an expert witness and consultant for thousands of cases, but that this is the first time that he is taking the prosecutors’ side against an officer who was charged for an on-duty shooting.
Kapelsohn testified that Officer Kraemer was not justified in shooting Burnley. He said that while Kraemer may have believed that Burnley was reaching for a gun, that belief was objectively unreasonable and fell short of the standards of using deadly force.
Kapelsohn said that the fact that Burnley was not violent was a factor in his decision. “He doesn’t punch an officer, he doesn’t kick an officer but he’s resisting, not fighting.” Kapelsohn said that Burnley resisting arrest and his size would elevate the threat level, but not enough to justify the shooting. “That would reasonably make the officer concerned, but you can’t assume he’s grabbing your partner’s gun.” At the time of the incident Officer Kraemer, who is 5’5” tall, weighed about 140 pounds, while the 5’10” Burnley weighted about 370 pounds.
Kapelsohn opined that the officer did not act as if they thought he was armed. He noted that the fact that Kraemer re-holstered her gun after the first shot was an error if she truly believed him to be a threat. “That’s contrary to police training and contrary to what any officer would logically do because if she thought he was reaching for a concealed weapon, he’s still moving around, you wouldn’t holster it right away.” He also noted that the officers allowed Burnley to reach into his pocket, with a phone in his hand, while they spoke to him on the bus.
Kraemer’s attorney, Christopher MacGillis, cross-examined Kapelsohn. MacGillis questioned Kapelsohn’s understanding of Wisconsin police training standards since his office was based in Pennsylvania. MacGillis also questioned Kapelsohn about whether the weight disparity between Kraemer and Burnley could have affected her perception of Burney as a threat to her safety.
Kraemer is currently on administrative suspension from the Brown Deer Police Department.
Hung Jury
Jurors are always reluctant to convict a police officer, no matter how strong the evidence appears to be. Jurors deliberated for three days before advising the judge that they were unable to reach a unanimous decision. The judge declared a mistrial based on the hung jury.
