Undercover officers', victim's name still withheld in fatal shooting 2 months ago in Neenah. Here's what we know

SHEBOYGAN – Investigators are still not sharing the name of a man who was killed by undercover law enforcement officers at a Neenah gas station two months ago.

Sheboygan County Sheriff Cory Roeseler said his office, which is in charge of conducting the external investigation, is also not yet releasing the name of the two officers who shot the man on Aug. 2.

The officers were members of the Lake Winnebago Area Metropolitan Enforcement Group, a group of narcotics investigators from sheriff's offices and police departments in Outagamie, Winnebago, Calumet and Fond du Lac counties, as well as the Wisconsin Department of Justice Division of Criminal Investigation.

The officers are employed by the Appleton Police Department and the Outagamie County Sheriff's Office. The Appleton officer is 42 years old and a five-year veteran of the department with 10 years of other law enforcement experience. The Outagamie County sheriff's deputy is 31 years old and has been with the county for six years.

The man killed was 37 years old with a last known address in the Oshkosh area, according to the Sheboygan County Sheriff's Office.

What we know about the police shooting

On Aug, 2, the drug unit officers were "involved in an undercover operation" at the Mobil Gas Station at 521 S. Commercial St., where they tried to arrest the man, according to a news release from the Sheboygan County Sheriff's Office.

At about 4:49 p.m., several officers confronted the man. A preliminary investigation found the man showed a weapon and two officers "used deadly force," according to the Sheboygan County Sheriff's Office.

The man was transported to ThedaCare Regional Medical Center-Neenah, where he died.

The two officers were each put on administrative leave following the shooting, according to their departments' protocols. The Sheboygan County Sheriff's Office statement said the officers' names would not be released at the time, but that all involved officers were cooperating with the investigation.

Assisting the Sheboygan County Sheriff's Office in the investigation is the Manitowoc County Sheriff's Office, the Sheboygan Police Department, the Wisconsin State Patrol and the Wisconsin State Crime Lab.

Currently, the investigation is being reviewed by Sheboygan County District Attorney Joel Urmanski, who met with investigators from the Sheboygan County Sheriff's Office on Sept. 28 and will "make a final decision regarding the shooting very soon," he said in an email Sept. 29.

After making his decision regarding the shooting, Urmanski will meet with victim family members and notify the law enforcement agencies involved.

Law enforcement cites constitutional amendment for victims as reason to withhold names

Roeseler cited Marsy's Law as a reason for the withholding of the names of the police officers and the person who was killed.

"I think you will see more issues with Marcy's Law (sic) as we move further into the future when it comes to these types of investigations," Roeseler said in an email.

Marsy's Law was implemented as an amendment to the Wisconsin constitution in 2020. It updated Wisconsin's 1993 victim's rights constitutional amendment to further specify rights for victims and definitions of who qualifies as a victim.

First created by billionaire tech CEO Henry Nicholas III in 2009, Marsy's Law is named for Nicholas' sister, Marsy Nicholas, who in 1983, at 21 years old, was murdered by her ex-boyfriend. Her killer confronted the Nicholas family a week after she died, when the family was unaware he had been released on bail.

Marsy's Law "seeks to give crime victims meaningful and enforceable constitutional rights equal to the rights of the accused," according to the Marsy's Law website. Those rights include "reasonable and timely" notification of court proceedings upon request and the ability "to be heard in any proceeding during which a right of the victim is implicated," the amendment states.

But it's not entirely clear in all cases exactly how these rights will be implemented.

A memo from the Wisconsin Supreme Court sent to courts across the state in May 2020 offers guidance for adapting to Marsy's Law.

"It is important to note there are a lot of unanswered questions with Marsy’s law given the vague language in the amendment, including a lack of specificity for who is responsible for guaranteeing these rights," the memo reads.

Since 2009, versions of Marsy's Law have been implemented in over a dozen states.

However, as more states are adopting Marsy's Law, there is a growing trend around the country of police citing the law to prevent the release of names of victims as well as officers involved in use-of-force incidents.

Michael O'Hear, a Marquette University Law School professor, said that while none of the wording in Marsy's Law specifically applies to law enforcement, the amendment generally reinforces state constitutional protections for victim privacy. So a law enforcement agency may choose to withhold names of everyone involved in a shooting until the investigation is completed to "not take any chances" at violating Marsy's Law, O'Hear said.

"Oftentimes, when law enforcement officers are involved in a shooting, it's because they are in what they perceive to be a self-defense situation. And so a law enforcement officer who was facing a threat from another person could at least arguably be regarded as a victim," O'Hear said. "So in these situations, you have some ambiguity sometimes about who the victim is."

The Wisconsin Justice Initiative has been critical of Marsy's Law, and worked to challenge the constitutional amendment on grounds that voters were not accurately informed about the implications of the amendment when they passed it with an overwhelming 75% majority. But the Wisconsin Supreme Court denied this, ruling in May that the amendment was properly enacted into law.

According to an advisory from Wisconsin Attorney General Josh Kaul published in May 2021, Marsy's Law does not "create an absolute denial of access to information about victims contained in records," but in some instances strengthens policies that favor limiting access. Records custodians must weigh whether certain factors make the public's right to information a priority over a victim's right to privacy.

O'Hear said that until Marsy's Law faces more challenges in court, there are not clear guidelines for what the amendment means for access to public records in Wisconsin.

"I have gotten sense from talking with lawyers around the state that there remains some confusion and inconsistency from county to county in terms of how Marsy's Law is being interpreted and implemented," O'Hear said. " ... Marsy's Law is still fairly new, and there are a number of other bodies of law that it is in a certain amount of tension with, and ultimately will be up to the courts to figure out how to resolve these tensions."

More: Oshkosh police cite ‘Marsy’s Law’ to withhold names of officers who shot suspects

RELATED: Wisconsin Supreme Court rules Marsy's Law was properly enacted into law

Police departments vary on release of names since Marsy's Law

After a police officer shot and wounded a 34-year-old Oshkosh man in June, authorities released the name of the man who was shot but withheld the name of the officer who fired their gun — even after the investigation was completed and the Winnebago County District Attorney cleared the officer of any wrongdoing.

The Oshkosh man, Benson Thao, was charged with first-degree recklessly endangering safety for pointing a loaded rifle at officers during the incident. He remains in Winnebago County Jail.

But this isn't a standard across all departments in the area. In September 2022, the Outagamie County District Attorney's Office released the names of two Appleton police officers who fatally shot 33-year-old Daniel Pesavento during a welfare check that August. The district attorney reviewed the Wisconsin Department of Justice's investigation and determined the officers' shooting was justified.

In August, the Outagamie County Sheriff's Office released the name of a Grand Chute police officer who shot a man holding a fake gun within a day of the incident.

Contact Kelli Arseneau at 920-213-3721 or karseneau@gannett.com. Follow her on Twitter at @ArseneauKelli.

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This article originally appeared on Appleton Post-Crescent: Names of people involved in fatal shooting in Neenah still withheld