February 15, 2001
by Doug Hissom
Milwaukee Shepherd Express
Did Walter Pagel need to die at the hands of Oshkosh police?
When Lois Pagel left her husband's welfare in the hands of Oshkosh police on Aug. 10, 1998, her departing words to them were, "Don't kill him."
She didn't know how tragically prophetic those words would be. After all, the Oshkosh Police Department was well aware of Walter F. Pagel and his problems. They had had between eight and 11 contacts with him over the years and knew he was mentally ill.
Some were quite memorable contacts. Like one in 1994 when Lois called police to their residence at 708 Jefferson St., telling them Walter was getting unruly after not taking his medication. She wanted him put in a 72-hour emergency commitment so he could receive his meds. That incident ended with Walter being maced several times by police after he brandished a claw hammer and a grilling fork at the cops.
Also to subdue him at the time, police used what's known as "less lethal" force on Walter, firing a round of rubber projectiles meant to hurt the victim instead of kill him. It worked. Walter dropped the "weapons," and it took the cops three officers to get Walter on the ground-each of their reports noted that the 6-foot, 200-pound Pagel had "superhuman strength." He was cuffed and committed for 72 hours so he could receive his medications. But Walter didn't take well to his medication.
Diagnosed with schizo-affective disorder-a variation of the more well-known paranoid schizophrenia, but with a mood disorder-his meds were strong. Haldol and Prolixin were his prescription through most of the 1990s. They caused him to shake uncontrollably, so much that he couldn't feed himself and was embarrassed to be in public. Haldol also causes severe withdrawal symptoms, and can cause confusion, increased mood swings and psychotic symptoms.
Risperdal was prescribed after that. Its manufacturers note side effects that include body tremors, dizziness, sleeplessness and sexual dysfunction. Finally, around 1998, he was given Zyprexa, which didn't have as severe side effects, his doctor told him. The makers of Zyprexa say the most common side effects are drowsiness, agitation, insomnia and dizziness. But Walter Pagel did not like his medication, even though he was reasonably functional with Zyprexa.
He was hospitalized several times for his disease-five times at the Winnebago Mental Health Institute and six times at then Veterans Administration Hospital in Tomah.
Walter Pagel didn't take too well to the Oshkosh police, either.
"He has a permanent delusion regarding being harassed by the Oshkosh police," said Joan Elandt, a psychiatric nurse and case manager for Winnebago County, who worked with Pagel beginning in 1986.
"He was very much afraid of police and talked about it consistently," said his doctor, Inam Haque.
But on Aug. 10, 1998, Lois wanted to go home for some clothes and money. She had been staying at the Christine Ann Center, a women's shelter, for the past three days. Walter had not been taking his medication for about five weeks. Lois tried to get him to take them, but the response had been, "If you like the medicine so much, you take it." He said the medication killed his sex drive and made him swear all the time.
"When he was not taking medications he would hear voices, would become very agitated and twice had to be hospitalized ... because he had threatened people," observed Haque.
Lois Pagel, then 63, knew the benefits of medication for schizophrenia. She had the illness herself and kept it under control through drugs. So when Walter stopped taking them, she would get worried. Although hesitant to institutionalize him, she was realizing that may be the best idea, even if it had to be without his consent. At the Christine Ann Center, she would insist Walter wasn't hurting her, that she just wanted to get away for awhile because she was "frightened."
But on that 80-degree August day, she didn't go back to the lower flat they rented in the "poor" section of town with the intent to commit Walter anywhere. For the past three days she had asked police to check on him and make sure he was all right; at this moment, all she wanted were clothes and money. Working on the long-term plan could wait. Joan Elandt told Lois that police should probably be there just in case Walter became violent or difficult.
At about 10:45 a.m. on Aug. 10, Lois and Elandt met Oshkosh police officers Paul Michler and William Felker at her house on Jefferson St.
Michler knew Walter Pagel from two episodes in 1986. The second resulted in a high-speed chase after one squad tried to pull Pagel over for driving without his headlights on and going the wrong way down a one-way street. When he was finally stopped, Walter told the police he was God. Two squads ended up damaged, one officer was injured and Michler said it took four or five officers to take Walter into custody.
So Walter's response after Michler knocked on the door and announced the police presence was no surprise: "Get the fuck out of here," "Get the fuck off my property" and "I hate you guys." Walter slammed the door and locked it.
For all intents and purposes, that would be the last time Lois Pagel would see her husband fully alive. She and Joan Elandt went back to the Christine Ann Center. Later that afternoon, Lois tried to return to 708 Jefferson St., but it had been blocked by squads cars and police tape.
After the door-slamming incident, Michler called his sergeant, who called Sgt. James Jewell, head of Oshkosh's version of a SWAT team. That set in motion a series of events that ended with Walter F. Pagel, then age 68, laying in the Oshkosh Mercy Medical Center emergency room, his breathing having stopped, suffering from cardiac arrest.
Doctors speculated that Pagel's cardiac arrest was caused by the trauma he suffered from the mace, pepper spray and the rubber, wooden and plastic bullets that police shot in him that afternoon.
A total of 135 rubber, wooden and plastic bullets were fired at Pagel. Medical personnel say his head was swollen and blue from bruising; he had a concussion; his left arm was broken; his right arm had a laceration that went to the bone. The gash was too large to be closed; and his body was almost entirely covered with welts and bruises from the shots. When they tried to get him breathing again, the emergency medical team was almost overcome with the gas still in his lungs.
The lack of oxygen to his brain caused Pagel to end up in a semi-comatose state, which he never woke up from until he died 17 months later, Jan. 10, 2000.
A citizen inquest jury was convened a month after Pagel died. It found probable cause that six officers of the Oshkosh Police Department be charged with homicide by negligent use of a weapon. Late last month, Milwaukee Deputy District Attorney Robert Donohoo, acting as a special prosecutor in the case, found no reason to criminally charge the officers in the death of Walter Pagel.
In the Basement
Sgt. James Jewell was considered the expert on the Oshkosh PD in the use of so-called "less lethal" weapons. By his own account, he would spend hundreds of hours each year training in the use of gas and chemical agents, and plastic, rubber and wooden bullets for the purposes of resolving hostage situations and taking people into custody. He also trained fellow officers who were interested in being part of the Crisis Reaction Team, the department's SWAT team.
Jewell, who had over 18 years on the force, knew Walter Pagel-he was the officer injured in the 1986 high-speed chase. He was also the one who used rubber bullets on Pagel in 1994.
There are some discrepancies in the reasons as to why the police continued to try to enter the house after Lois Pagel left. Michler insists Elandt told him that she wanted police to take Walter in for a 72-hour emergency committal. At the inquest, Elandt denied that several times.
Jewell and Officer Joseph Framke also claim they heard a clicker on the gas stove going off-which was not possible, given the make and model of the stove. The knobs of the stove were not turned to the "on" position, either. Firefighters were brought in to turn the gas off to the house. In the meantime, Michler had driven to the Christine Ann Center and got written permission from Lois to search the house.
Officers on the scene determined by 11:30 a.m. that they would enter the house and bring Walter Pagel out.
After calling to him around the kitchen windows, Jewell said he saw Pagel. "He had a look about him that is difficult to describe. It's just kind of like he looks right through you, like you aren't even standing there. And being a police officer for as long as I have, I recognized that look, and that look is not a good one for us to have to deal with."
While Jewell assembled the team to enter the house, Pagel went down to the basement and hid in a cubbyhole under the stairwell.
The small first floor at 708 Jefferson was somewhat of an obstacle course for the police to get through. A mattress lay in a doorway; a fan blocked another doorway. The kitchen was cramped. Ashtrays were filled with Camel filter cigarettes, filter-tipped cigars and tobacco pipes. A team of four went room to room, spraying a mace-like gas in each room before entering. After gassing the first floor and finding out that Pagel wasn't there, pepper spray was sprayed in the basement through an outside window. Hearing water running in the basement, the officers figured out that Walter was in the basement. At 1:07 p.m., the call went out for more cops. By 2:05 p.m., Jewell had collected the Crisis Reaction Team. But Pagel was not responding to any of the calls from police to come out of the basement.
For the next hour, police discussed how they'd get Pagel out of the basement. The basement at 708 Jefferson isn't a modern house basement by any stretch. It's more like a root cellar-dirt floor and fieldstone walls. A 5-foot, 6-inch person would have to stoop to walk around. The stairs went steeply down from the kitchen.
At about 3:35 p.m., after dropping six tear-gas canisters and a flash-bomb meant to disorientate Pagel, the four officers went into the basement wearing gas masks. Officer Carter Augsburger, a 14-year veteran with the OPD carried a ballistic shield and led the team. He was followed by Detective Dean Artus, an eight-year veteran with the OPD, Sgt. Kevin Konrad, a 10-year veteran, and Officer Joseph Framke, an eight-year veteran. Jewell was standing outside near the open basement window, directing the tear gas operation.
The officers found Pagel underneath the stairwell landing, in a cubbyhole big enough for him to almost fit inside (his legs were sticking out a bit). He was brandishing a knife, yelling, "I'm going to kill you fuckers. I'm going to cut your guts out. I'm God and you're Satan," according the officers.
Pagel was wearing a cotton flannel bathrobe and had tied a 14-inch kitchen butcher knife with an eight-inch blade to his right hand with the belt from the robe.
"Drop the knife! Drop the knife," the officers yelled, and the first volley of "less-lethal" ammo was fired.
Less lethal ammo, in this case, turned out to be hard rubber, plastic or wood pieces. Wood and plastic pieces are shaped like circular dowels that come out of a 37mm gun five at a time. The rubber pieces are larger in width than the dowels, shaped like small batons, and are shot one at a time. The officers also shot lead b.b.-filled "bean bags" from a 12-gauge shotgun. All the shooting took place about 5 to 12 feet from Pagel, who remained under the stairs during the assault.
After five rounds, the men in the basement ran out of ammo. Officer Eric Stenson then ran down the stairs with another less-lethal weapon and more ammo.
For the next 30 minutes, ammo was dished through the basement window to the men below. Stenson was the only one who was firing, while the others acted as ammo gatherers or yelled at Pagel to drop the knife and come out. "We were almost pleading with him," most recalled during testimony at the inquest.
Pagel continued to respond by yelling that he was God and that he would cut the officers' guts out. He was using fiberglass insulation to wipe his eyes because of the gas.
Two officers had their guns drawn on Pagel in case he tried to come out from under the stairs with the knife. About mid-way through the shooting, the officers emptied their personal cans of mace at the man under the stairs.
The officers claimed at the inquest that they felt trapped by Pagel, that he would stab them if they tried to run up the stairs.
According to Stenson's account, he fired his weapon 58 times. Konrad fired his five times. It has been estimated that Walter Pagel had 135 various forms of less-lethal ammunition fired at him over a maximum of 40 minutes-one-and-a-half to two shots per minute. Even though Pagel's lower left arm was clearly broken, the knife remained tied to his right hand and the firing continued.
Police reported that he was still using the left arm even after it was broken, that it would flap around and hit his shoulder after he would throw some of the rounds of ammo, stones and insulation from beneath the stairs.
"He showed no pain," Konrad said. "He showed no recognition of any of this occurring. He continued slashing and stabbing, saying he was going to kill us, he was going to, you know, slice us open."
After the knife was eventually shot out of his hand, the officers in the basement said the shooting stopped.
At 4:15 p.m., Pagel was strapped to an EMT unit's back board and shipped to Mercy Medical Center. They reported it still took four police in the basement to lie on Pagel while he was being strapped to the board. They carried him out through a basement window. A paramedic waiting for Pagel by the window said Walter seemed unconscious at the time.
After the Basement
In the emergency room at Mercy, doctors found that a bone in Pagel's lower left arm had been completely shattered, and the other bone in the arm was fractured. In the right arm, pieces of the projectiles, including three bean bags, were found underneath the skin. The cut there required a skin graft to close it.
"Whenever we moved him, we got a whiff of some type of irritant gas, pepper mace or CS gas," reported emergency room doctor Boris Berejan. "I also recall when I went to intubate him [put a tube in his throat], I got a good blast. ... It came from his lungs. It made my eyes water and made me cough and sneeze a little bit."
It was shortly after Berejan stuck a tube in Pagel's throat to help him breathe that Walter lost his vital signs. They were able to get his heart going again.
"It looked like he had been run over or worked over," observed Kenneth Viste Jr. at the inquest. Viste is a neurologist who examined Pagel three days after the incident. He called Walter's brain injury "severe." The staff at Mercy were wondering why he wasn't waking up. "He was really swollen and all black and blue. ... he just had a big blue head."
But even Viste thought Pagel would live. "I felt that he would never swallow again and felt that if he were to be kept alive, he would have to be kept alive through a feeding tube in his stomach. And I felt that institutional care would be all that could be done because this man had irrevocable brain damage."
Walter Pagel never became conscious after that afternoon. A judge committed him to the Parkview Health Center so he could be cared for.
Police promptly did an internal investigation, and Chief David Erickson pronounced the actions by the officers as appropriate. The department, however, would not turn over its reports to the media without blacking out major portions of them. City Manager Richard Wollangk supported the police findings and said there was no need for any independent review. The local daily newspaper, Oshkosh Northwestern, however, editorialized for an independent review, citing "substantial gaps" in the police reports.
But the calls for more action fell mostly on deaf ears.
"As time went on, [Walter] became stiffer and stiffer and would have these jerking movements and would be crying out," Viste reported. "He had problems throughout his stay."
Walter Pagel died on Jan. 10, 2000, from complications of pneumonia, which he contracted because he was unable to cough to clear his throat.
Lois Pagel brought a civil suit against the city of Oshkosh and its police department. And Winnebago County coroner Barry Busby, feeling that there was some suspicion surrounding Pagel's death, asked District Attorney Joseph Paulus to conduct an inquest. It was to be held beginning Feb. 22 in front of Judge Bruce K. Schmidt. A jury would register its opinion on the police's behavior.
A Question of Force
The police officers involved, doctors and an expert in the use of police force were called by each side during the inquest. The fundamental legal question for the jury to answer was whether shooting 135-plus rounds of less-lethal ammo at one person was negligent homicide.
Other questions they grappled with along the way:
• Were the police actions that day excessive use of force?
• Couldn't they have just shot and killed Walter Pagel instead?
Less-lethal ammunition, its users will say, has saved countless lives. Some of the most common uses are for hostage situations and the "suicide by police" scenario, where the suspect dares the cops to shoot. There have been six deaths in the U.S. and Canada from less-lethal rounds since 1971, not including Walter Pagel's. One expert also testified at the inquest that he had never heard of any department using more than 11 rounds on a person.
The Oshkosh Police Department has used its rubber bullets only three times-twice on Walter Pagel and another time after his death when police thought a man armed with a knife was coming toward them after he had taken his girlfriend hostage and stabbed her. He was not armed, but they used the less-lethal rounds to subdue him.
Police at the time of Pagel's death were not known as particularly heavy-handed toward the citizenry. Three excessive-force complaints were filed against the department that year. One was on behalf of an 11-year-old girl who claimed police beat her with flashlights. Officers said they simply restrained her after she became uncontrollable.
Police inquests, being run by the local district attorney, generally have witnesses stacked in favor of the cops. But attorneys involved in Lois Pagel's civil case said District Attorney Paulus went beyond the call and asked for another expert who could offer a differing opinion.
That was Lou Reiter, a former Los Angeles deputy police chief who oversaw SWAT team activity before his retirement and is now in private police department consulting and assessment.
"Not every agency needs some of the kinds of tools that were used here," Reiter cautioned at the hearing. "What occurred in the basement was totally unnecessary, ill-conceived. There were a lot of reasons why. There were no other alternatives even attempted."
Reiter faulted police for not trying to further negotiate with Walter Pagel, or even consider bringing in his doctors to talk to him.
"They made it sound like a conscious choice not to use negotiators," he said. "Communication-that's probably the key when dealing with an emotionally disturbed person. What you have to do is slow it down. You have to remain calm. You have to defuse the situation. ... You're not doing much in the way of dialogue when you're throwing gas continuously.
"Force may not be resorted to unless other reasonable alternatives have been exhausted or would clearly be ineffective."
He also noted that the distance from which the officers were shooting at Pagel was within the minimum safety limits set by the weapons' manufacturers. "I didn't see any officers in immediate jeopardy there."
Reiter said a pole that officers used to eventually grab Pagel could have been used much earlier. "An officer should have at some point in this progression said, 'you know, we're just plummeting this guy and it's having no desired effect.' "
The five officers in the basement and Jewell testified they would have felt justified in killing Pagel because he was threatening them with a knife. They cited the "21-foot rule," which comes from an old police training tape showing that a man can attack an officer from 21 feet away before the cop can pull out his weapon and fire it. The rule been used for decades as a justification for shooting knife-wielding suspects.
Each officer said that given the same circumstance, they would do the same thing.
Steve Ijames, a major with the Springfield, Missouri police department, was also called as an expert in the use of less-lethal weapons. He has written many articles on the topic, and says he has dealt with hundreds of incidents similar to the one involving Pagel, in which a person has barricaded himself in an enclosed area. Reiter admitted that a lot of his knowledge of less-lethal weapons came through articles he read that Ijames wrote.
Ijames agreed that the officers could have used lethal force at any time during the encounter with Pagel in the basement. "I wouldn't have had any problem with that. The only way you can be in that room and not be shooting your gun in a deadly-force scenario is for him to be underneath that stairwell. ... I would say the officers absolutely needed to do exactly what they did, as painful as it is. ... This is an aberration. This is one of those you sit around and go, 'holy smokes.' "
Ijames, disagreeing with Reiter, said leaving Pagel to come out of the basement at a later time wasn't an option. "Someone is going to come back down there and do their job sometime that night or the next day or next week.
"Simply looking at the outcome-the outcome is terrible, very, very rough-but what the officer needs to be judged on was the process, that part they controlled. ... Just because something bad happened does not mean they screwed up."
Attorneys for Lois Pagel see it a little differently.
"It was like you had this paramilitary operation and they had all these toys, and they needed to use them," Milwaukee attorney Mark Thomsen told Shepherd Express. "And they used him for target practice."
At 10:40 p.m. on Feb. 24, 2000, after deliberating six hours, the six-person jury came back with its recommendation. The court was filled with uniformed officers from various police agencies.
"I had never seen anything like it," remembers Thomsen. "It was very intimidating."
The jury had found probable cause that Sgt. James Jewell, Sgt. Kevin Konrad, Detective Dean Artus and officers Joseph Framke, Eric Stenson and Carter Augsburger had committed negligent homicide.
"There was all this silent energy after the jury's decision was read," Thomsen says. "The police went white."
A police sergeant reported that the department was "sad and solemn" after the decision, but none of the officers was placed on leave. Milt Scheierlend, the attorney representing the officers, suggested that cops would shoot to kill instead of using rubber bullets anymore. He predicted a "ripple effect" throughout the state.
A story appeared in the Northwestern shortly after the recommendation, quoting some jurists who said they did not agree with the decision, and were intimidated into agreeing with the majority.
Using that, Oshkosh City Attorney Warren Kraft promptly filed a motion to dismiss the jury's verdict. On March 2, Judge Schmidt threw out the motion for lack of evidence and cause.
That night, several hundred people rallied in front of City Hall in support of the police-a demonstration rarely seen in any community around the country. Other demonstrators, who believed Walter Pagel was unfairly treated, numbered only a handful. Signs began appearing in local businesses declaring, "We support the Oshkosh Police." An ad was taken out in the daily newspaper asking people to support the "plight" of the officers.
The paper also received more than 123 letters on the issue, with most saying that the police were correct in what they did. Several were written by law-enforcement officers; one was from the wife of one of the six men: "How do you explain to a child that yes, your dad does save people and he does put robbers in jail. Yes, a man did put a knife in your dad's face and threatened to kill him. Yes, your dad did try to take this very sick man to the hospital," wrote Julie Augsburger. "Yes, a jury of six 'peers' (who had more important engagements to attend to) decided that your dad did something wrong. ... I believe that these men behaved in a professional and truly competent manner. It is a shame that the jurors obviously didn't pay attention to the 'real' expert on less-than-lethal weapon usage."
Defenders of Walter Pagel's case were few at first. "It was almost as if they were afraid to say anything against the police," notes one observer. There were no anti-police-brutality rallies, no ads in the paper and hardly any letters.
On March 2, 2000, Winnebago County District Attorney Joseph Paulus told Judge Schmidt that he had brought in Milwaukee District Attorney E. Michael McCann's office to determine if charges should be filed against the officers in the death of Walter Pagel.
At the time, Paulus said to expect a decision no sooner than three to six months. It didn't come until Jan. 22.
Milwaukee County Deputy D.A. Robert Donohoo announced late last month his determination: None of the officers should be charged with negligent homicide.
"It was one of the more challenging decisions I've had to make," Donohoo told Shepherd Express. "I thought about this more than any other decision I've made in the district attorney's office."
Donohoo says there was no way a trial could prove criminal negligence by the officers. The situation of dealing with a man who had "superhuman strength," the tight confines of the basement and the fact that Pagel was armed and threatening until the knife was shot out of his hand complicated the issue.
"I don't know whose fault it was that he was off his medication, but it's clearly not the officers' fault. They're presented with this unusual situation and they have to react," Donohoo says.
Donohoo put the expert-witness opinion of Ijames ahead of Reiter, since Ijames was more current on the use of less-lethal-weapons than Reiter. "Reiter was reading what Ijames was writing for his level of expertise. Ijames was clearly, clearly the expert."
One problem with expert testimony at an inquest hearing is that there is no cross-examination to help jurors determine a level of expertise, he notes.
Donohoo says much of his time in the decision-making process was spent on trying to apply the law to what the officers did. "It's hard to describe what criminal negligence would have been under these circumstances. But if you do this without less-than-lethal, what's the answer? Use guns?"
Perhaps because Donohoo's decision took some time, the reaction to judgment in Oshkosh was decidedly low-key. No demonstrations, no big speeches, no in-the-face comments. Maybe the town had gotten tired, or lost interest in what happened to Walter Pagel and six officers on Aug. 10, 1998.
The city of Oshkosh settled Lois Pagel's lawsuit for $900,000 in April. Attorney Mark Thomsen says she didn't want taxpayers to pay anything toward the suit, so she settled for the insurance company's coverage limit for the city. Thomsen says Lois still lives in Oshkosh, in a much nicer house, and has a stream of income from a trust fund.
In Milwaukee County, the Oak Creek and Greendale police departments have less-lethal weapons similar to those in Oshkosh. The Milwaukee Police Department reportedly does not have them, however, calls to the department for confirmation were not returned.
"An argument can clearly be made to have them as an option," Donohoo offers.
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