There's a big disparity in how law enforcement treats BLM protesters and far-right gangs: Former FBI agent

New details have emerged regarding a list of people law enforcement believed to be involved in Black Lives Matter protests last year. Documents recently obtained by the Wisconsin Examiner show that, despite earlier statements, the list was indeed shared with members of the Kenosha Police Department (KPD). The revelations raise questions about the extensive surveillance which targeted 2020's anti-police-brutality movement.

Although its creation date remains unclear, the list was used as early as mid-July last year. Protests in Milwaukee began around May 29, following the death of George Floyd at the hands of Minneapolis police on May 25. Wauwatosa's protests didn't begin until early June. Originally created by Dominick Ratkowski, a crime analyst for the Wauwatosa Police Department (WPD), the list was shared with numerous local and federal agencies throughout southeastern Wisconsin. Officially, WPD acknowledges that it was shared with the Milwaukee Police Department (MPD) and the Federal Bureau of Investigation (FBI).

However, internal emails gleaned through ongoing lawsuits show Ratkowski's sharing of the list was prolific. A day prior to Wauwatosa's curfew last October, Ratkowski referred to the document as a "target list" in an email. The FBI was also actively gathering information from agencies and residents in Wisconsin all summer.

Since the list was released earlier this year, WPD has shied from calling it a protester list. WPD spokespeople stated the list includes potential witnesses, victims, or suspects "that were involved with protesting or the activities surrounding the protests last summer."

However, it also includes attorneys Kimberley Motley and Deja Vishny. The pair have represented the families of people killed by former Wauwatosa officer Joseph Mensah in officer-involved shootings, as well as many protesters. The list also includes a Wisconsin Examiner journalist, vast swaths of the Milwaukee area's activist community across numerous organizations and elected officials. The earliest known emails discussing the list pre-date Mensah being suspended with pay following public pressure on the suburb. This was one of the first results of Wauwatosa's protests, which were motivated by a trio of shootings involving Mensah from 2015 to 2020. Mensah resigned from WPD in late 2020, and now works as a detective at Waukesha County Sheriff's Department.

Intel on over 200 people is documented in the list. From names to notes about criminal records and places protesters used for meetings to social media accounts, car make and model details, addresses, phone numbers, and pictures. Motley's entry labeled her as an attorney, and the Wisconsin Examiner's main Facebook page was also cataloged.

A report by TMJ4 found that 74.3% of those on the list have never been charged with a misdemeanor or felony. A 2020 University of Connecticut study found that at least 96% of Black Lives Matter protests nationwide last year were peaceful.

The Minneapolis Police Department stated in the report that "we do not keep a database of those who participate in protests," adding that the department "strongly encourages people to exercise their First Amendment rights lawfully." The Kenosha Police Department and Sheriff's Office also told TMJ4 that they don't maintain any similar list. Turns out that wasn't entirely true.

How far has it gone?

Wisconsin Examiner recently received an email from KPD via an open records request that shows the department received the list. In mid-September after unrest over the shooting of Jacob Blake subsided and the armed right-wing groups disappeared from the city, Ratkowski shared the list with Matthew Gibson, a Milwaukee DA investigator. Gibson retired from the Milwaukee County District Attorney's Office earlier this year.

On Aug. 28, Gibson asked for any lists or photographs of protesters to share with Kenosha. On Sept. 15 the list, which had been shared by Ratkowski, was sent to Kenosha PD Detective Pablo Torres, who worked for the department's Special Investigations Unit at the time.

"Here is an updated list of the subjects identified as members or associates of The People's Revolution," Gibson's email reads. The People's Revolution emerged as a nucleus of protesters who demonstrated throughout southeastern Wisconsin for over 400 consecutive days following Floyd's death. Several law enforcement personnel were cc'd in Gibson's email, including an FBI agent. The group, shortened to "TPR," is mentioned throughout the email chain. Last August, WPD denied targeting any specific groups.

Wisconsin Examiner received explanations from both Kenosha PD Lt. Joseph Nosalik and Sgt. Leo Viola. Nosalik acts as KPD's spokesperson and Viola handled the Examiner's open records request costing $100. Viola told Wisconsin Examiner that Torres, the Kenosha PD detective, was "the only KPD recipient of the list and he never shared it. The list was not circulated around the department and we were unaware of the list until your organization's reporting on it. During this time period our email servers received tens of thousands of emails and officers were not regularly checking them as a result of the unrest. We did not create and do not maintain any similar lists."

Nosalik had a similar statement when the Wisconsin Examiner followed up. "I was not aware that Detective Torres had contacted Sergeant Viola to tell him he had obtained a copy of a list. Sergeant Viola's information stands, and I will correct my information with TMJ4." He added that, "I do not see any email addresses in there that show a list was shared with a kenoshapolice.com or kenosha.org email."

Michael German, a former FBI agent of 16 years and fellow at the Brennan Center for Justice at New York University law school, says the list is problematic. "I think this part highlights the danger of creating such a list," German told the Wisconsin Examiner in a recent interview. "That once a list is created it has a permanency, and may be used by different entities in a way that it was not intended." German stresses that agencies should have seen the list as a red flag. To the extent that people are protesting, police shouldn't be tracking their names and should not collect information about their social media, their vehicles and otherwise gather intelligence about them. "And once that information escapes or is disseminated from the original collector of it, it can result in all kinds of predictable harms."

German also viewed FBI documents obtained by the Wisconsin Examiner via Freedom of Information Act requests. The records date to early August 2020, and describe how the FBI received and utilized the list following an incident outside the home of former officer Mensah.

A protest staged outside the officer's home resulted in a confrontation during which one of the marchers fired a gun, causing the crowd to scatter. Accounts differ as to what occurred, with WPD stating one shot was fired but Mensah posting on social media that several shots were fired. WPD led the investigation into the incident, which resulted in the swift arrest of several protesters. Three men later faced charges including battery to a law enforcement officer, harboring a felon, party to a crime and second degree reckless endangering safety.

The FBI documents state that two days after the incident, Milwaukee PD shared the protester list with the FBI's Milwaukee office. The documents state the Bureau received "a list of individuals that may have been involved in the 8 August 2020 events at [redacted] home. The names and date(s) of birth (DOBs) were searched in [redacted] and through open source methods for a potential nexus terrorism cases." A section also reads: "The information herein has been determined by the FBI to be pertinent to and within the scope of an authorized law enforcement activity and should be considered in the context of the assessment or predicted investigation in which the information relates."

The list itself, however, predates the incident at Mensah's by at least several weeks. Additionally, the documents indicate that all the names on it were checked and placed into an official FBI file regardless of whether the names were of people present during the incident or not. Some of those on the list were not protesters at all.

Knowing that those on the list would now be linked to a file, German wonders why FBI agents and supervisors also didn't see the list as a red flag. "This isn't something that belongs in an FBI file," he told the Wisconsin Examiner. "Because this is taking specific individuals who are identified for being at a protest and implying they're involved in some kind of criminal activity. And that can have long-lasting ramifications when there was no justification for collecting the list in the first place. Or nothing apparent in the documents at least."

In early September 2020, WPD detectives helping lead the Mensah investigation labeled Wauwatosa's mayor and others as "higher value targets" (HVT) for the department. This happened two weeks before the protester list, which is a different document, was shared with Kenosha PD. Mayor Dennis McBride was labeled a target for the investigation due to his perceived support of BLM protests and meetings with Motley and others.

Following an internal investigation into the HVT PowerPoint earlier this year, Det. Joseph Lewandowski was disciplined for creating the PowerPoint. Lewandowski was then promoted to sergeant, and moved out of WPD's investigative division. Lewandowski was associated with WPD's Special Operations Group, and authored other reports about the mayor's "questionable conduct" during protests. McBride condemned the PowerPoint after learning of its existence earlier this year. WPD's protest operations occurred under former Chief Barry Weber, who retired in June after over 30 years.

Wisconsin Examiner has recently also obtained warrants authored by WPD that sought social media information for several protesters following the August incident at Mensah's home. The warrants included everything from private messages to geographic information dating back to May 25, the day Floyd died in Minneapolis. Protests in Milwaukee did not begin until four days after Floyd's death.

In a statement to the Wisconsin Examiner, the FBI said it worked with WPD and numerous agencies during civil unrest last year. "WPD provided a list to FBI Milwaukee of individuals assessed to be present during various incidents of violent activity in their city," said FBI Milwaukee spokesperson Leonard Peace. "This information was shared with FBI by WPD, not requested by the FBI, and any names checked by the FBI were checked for an authorized investigative purpose."

"Receipt and evaluation of this information helps inform appropriate security personnel who must account for the safety and security of facilities and personnel," Peace added. "As an individual or group's ability to conduct lawful protests and seek redress from government is a right guaranteed by the First Amendment to the US Constitution, no investigative activity is initiated solely based on such protected conduct unless some indicia of criminal or terrorist activity is present."

The FBI did not answer direct questions regarding whether journalists or lawyers on the list were targeted with electronic surveillance.

German believes the FBI still holds responsibility for how it used the list. Although it was shared with the FBI by another agency, German says, "The FBI agent or analyst made the decision to serialize it into FBI files and to do these myriad searches against it. Which is even more problematic because more information could be pulled up that could be incorrect or misleading in a way that would later justify some other type of action that should have never been brought in the first place." He warns that this "reflects the dangerousness of creating lists where there is not individualized evidence presented. Because the FBI doesn't purge data from its systems except in extremely rare situations. So this lives basically forever. Certainly for your lifetime."

Why weren't right-wing groups treated the same way?

A former FBI agent himself, German sees a disparity in how BLM protesters were monitored when compared to armed right-wing groups. In Kenosha such groups, sometimes called militia, were regarded as "friendly" by law enforcement and were not arrested, tear-gassed, or told to go home by officers. In fact, an armored police vehicle was filmed offering one of the groups water and thanks.

Among the self-styled militia members who descended on Kenosha was then-17 year old Kyle Rittenhouse, armed with an AR-15 style rifle. An FBI surveillance plane flew over the city while teams of U.S. Marshals operated arrest and quick response teams on the ground. Officers closely monitored BLM protesters through social media, even along their highway journeys to Kenosha. The People's Revolution is also referenced among text messages sent and received by former Kenosha PD Chief Daniel Miskinis after the Rittenhouse shooting.

The night of the shooting, officers and dispatch also communicated about receiving calls about armed groups slashing the tires of BLM protesters. Half an hour later, Rittenhouse would fatally shoot two people and wound another. Although Rittenhouse walked towards police vehicles with his hands raised, officers did not detain the teen who then left the state. Rittenhouse is currently on trial in Kenosha. About $50 million in property damage occurred during the Kenosha unrest, though the only known deaths are associated with Rittenhouse.

FBI and Homeland Security officials didn't produce threat intelligence reports leading up to the Jan. 6 unrest and potential insurrection in Washington D.C. While Wisconsin's protester list focused on left-wing activism and BLM, no similar list appears to have been produced of right-wing protests or the Make America Great Again rallies which occurred in Wauwatosa last year.

Rep. Gwen Moore and Sen. Tammy Baldwin have called on the Justice Department to launch a civil rights probe of the Wauwatosa Police Department.

For German, the revelations about Wisconsin's protester list relate to the events of Jan. 6. He says that the handling of the list "certainly contradicts the FBI's post-Jan. 6 claims about its perceived limits on its ability to monitor social media."

"Here they are saying all this public violence by far-right militant groups that they ignored, all the myriad ways people warned the FBI including members of Congress, former Justice Department officials specially calling the FBI to warn them about this…The FBI claims it's because they somehow didn't have the authority to monitor social media," he says, "which is actually false when you look at their publicly available regulations. But here, clearly, that the FBI would try to scrutinize protestors' social media to find some link to something they call a domestic violent extremist raises all kinds of questions."

German feels that the FBI's use of Wisconsin's protester list "reflects the aggression with which the FBI was investigating the Black Lives Matter and anti-police violence and anti-racism protesters — all while seemingly ignoring far-right violence that was being committed in plain sight."