Similarities run through Neenah, Appleton shootings

The fatal police shootings at Eagle Nation Cycles in Neenah and Jack's Apple Pub in Appleton bear unnerving similarities.

Though the circumstances were different — one stemmed from a hostage situation at a motorcycle shop and the other from a fight at a bar — the result was the same: Police shot and killed an innocent man at a downtown business.

In the Dec. 5, 2015, Neenah shooting, the victim was Michael L. Funk, a hostage who was trying to flee accused gunman and hostage-taker Brian T. Flatoff.

In the May 21 Appleton shooting, the victim was Jimmie M. Sanders, an unarmed bystander who happened to be near accused gunman Henry M. Nellum.

"It's frustrating watching these cases happen, where people who shouldn't be shot get shot," said Patrick Piper, a retired police supervisor who worked for the University of Wisconsin-Oshkosh Police Department for 13 years.

The parallels between the Neenah and Appleton shootings don't end there.

• In both cases, a prosecutor determined, based on the findings of an investigation by another police agency, that police acted reasonably and weren't criminally responsible for the death.
• In each case, a police officer who opened fire either was not wearing a body camera or didn't turn it on.
• The gunman accused of starting each incident faces a felony murder charge for causing the death of the man killed by police.
• The families of the victims have retained attorneys to pursue civil rights claims, including wrongful death, against police.
• Police issued statements on the day of the shootings that were inaccurate and then failed to promptly correct the narrative when additional information became clear.

FULL COVERAGE: Jack's Apple Pub shooting

FULL COVERAGE: Eagle Nation Cycles shooting

Steve Erato, owner of Eagle Nation Cycles and a close friend of Funk, said the police shooting at Jack's Apple Pub took him right back to the 2015 police shooting at his property. He was on the phone in the basement of the motorcycle shop relaying information to police dispatchers when Funk was killed in an alley.

"How often can the police continually shoot the wrong person before somebody actually addresses it?" Erato asked. "This was a totally innocent person in both cases, just basically somebody caught in the middle of a bad situation."

In the Appleton incident, Lt. Jay Steinke entered Jack's Apple Pub after learning someone had fired a gun inside the bar. Steinke told investigators he opened fire after he saw Nellum running toward him with a gun in his hand.

Outagamie County District Attorney Carrie Schneider said Steinke shot four times and that as he was shooting, he was pushed by patrons trying to exit the bar. The first bullet hit Nellum in his left arm. The second bullet hit Sanders in his lower back. The third and fourth shots hit the bar and cash register.

Use of force

Appleton's use of force policy says a police officer may use deadly force to stop a deadly threat after identifying the target and isolating the target "so the use of deadly force does not unreasonably place other person (sic) at significant risk of death."

Nellum and Sanders were within a few feet of each other when Steinke fired, according to court documents.

Appleton's policy, though, contains a "Greater Danger" exception to target isolation. "This exception," the document says, "allows an officer to shoot without target isolation if the consequences of not immediately stopping the threat would be worse than the possibility of causing death to an unintended person."

Appleton Police Chief Todd Thomas said at a press conference that police would conduct an administrative review of the shooting to determine whether Steinke's actions fell within the department's use of force policy.

Erato wasn't at Jack's Apple Pub during the shooting, but he said the account of what happened is cause for alarm.

"From what I heard, Steinke was a really well-liked guy, but he still went in and shot the wrong person," Erato told USA TODAY NETWORK-Wisconsin. "From what it sounds like to me, it's lucky he didn't kill a couple of more innocent people."

Piper said a police officer must weigh the pluses and minuses of pulling the trigger when others are nearby.

"Police are responsible for every round that's fired," Piper said. "The hierarchy is, No. 1, to stop the threat and save innocent people, and apparently that didn't happen in Appleton."

No charges

A 2014 Wisconsin law requires that another agency investigate when police kill a person.

The Wisconsin Department of Justice investigated the Neenah case and concluded that officers Craig Hoffer and Robert Ross mistakenly, but reasonably, thought Funk was the armed hostage-taker and therefore weren't criminally responsible for shooting him.

The Green Bay Police Department investigated the Appleton case, and Schneider determined that Steinke "acted appropriately" as Nellum ran toward him and that Sanders was accidentally hit by gunfire intended for Nellum.

Erato said the investigative relationships in play are too cozy. DOJ agents working on the Neenah case were from Appleton, and Appleton and Green Bay police have an agreement to investigate each other in police shooting deaths.

"They seem to get people who all know each other," Erato said. "They're not going to send somebody they know to prison."

Appleton and Green Bay police don't see the agreement as a conflict of interest, noting they don't often work together.

Erato said every police killing should be investigated by the Civil Rights Division of the U.S. Department of Justice in Washington, D.C.

Piper studied the Eagle Nation Cycles shooting and has followed the Appleton shooting in the news. He's trying to make sense of the killings and wonders what will change if there are no consequences for the officers.

"There has to be something learned from it," Piper said. "If it's not learned through the force of the court systems, and it's not learned through the force of the police department or the police commission, where and when is it going to be learned?

"Where's the public's assurance that it's not going to happen the next time?"

Narrative changes

Prepared police statements in both the Neenah and Appleton shootings contained misinformation that wasn't promptly corrected as the cases developed, leading to confusion and speculation in the community.

Neenah police initially said Funk was shot after he didn’t obey commands to drop his handgun, but a video of the shooting first made public by USA TODAY NETWORK-Wisconsin shows officers shot Funk multiple times without warning.

Police also said Funk received medical care and later died at a hospital. In truth, Funk lay unattended where he fell for at least 25 minutes and died at the scene.

Appleton police initially said that after Steinke fired his gun, officers entered Jack's Apple Pub to "render aid to the suspect" and that "the suspect was transported to a local hospital but later died."

Thomas did follow up with a statement later that day saying there were conflicting witness statements that investigators were sorting through. 

In announcing the investigative findings 13 days later, Schneider clarified that Sanders wasn't a suspect. He was an unarmed bystander.

Schneider said surveillance video shows the gunfire at Jack's Apple Pub, but she declined to release it, citing the pending criminal cases against Nellum and Dree F. Sullivan, who is accused of hiding Nellum's gun after the shooting.

The failure of officers to wear or turn on their body cameras contributes to the mistrust of police, Erato said. Hoffer wasn't wearing a body camera. Steinke didn't turn on his camera.

In the New London police shooting death of Kole Knight in August, officer Brody Erickson turned on his body camera to record Knight falling to the ground but not the sequence before the shooting when police said Knight showed a realistic-looking toy gun. Another officer who fired at Knight, Ryan Denu, didn't turn on his camera.

"If they really want the public's support, why aren't the body cameras just automatically on and automatically available to people within a short period of time?" Erato asked.

Thomas said having body cameras record continuously has been discussed but presents "a huge storage issue."

High level of scrutiny

Seth Stoughton, an assistant professor at the University of South Carolina School of Law and a former police officer, said police shooting deaths demand a high level of scrutiny.

Stoughton said the use of deadly force by an officer, even if the action was reasonable, "represents the most invasive and serious intrusion by a government actor into a private civilian’s life."

"Our country was built on the premise of limiting government intrusion into private life," he said. "Of course, the government has to intrude into private life in a whole number of ways, but we have to strike that balance correctly, so when the public is critical of an investigation or critical of a shooting, it is not down on police, or picking on police necessarily. It is carrying on a more than 200-year tradition of holding government accountable for actions that government actors take against private citizens. That’s at the very heart of patriotic engagement.”

Erato said the victims in the Neenah and Appleton shootings have been marginalized by the community. Funk belonged to the D.C. Eagles and Hell’s Lovers motorcycle clubs. Sanders was a convicted felon.

"They're not doctors and lawyers," Erato said. "They're average people. There seems to be this, 'That's OK type of thing. It was an accident. We'll try to do better next time.'

"Don't tell me if this was Mayor (Tim) Hanna's son or Mayor (Dean) Kaufert's son that this would have been handled the exact same way."

Duke Behnke: 920-993-7176, or dbehnke@postcrescent.com; on Twitter @DukeBehnke. Reporter Alison Dirr contributed to this report.