In a rare application of a law in place in Wisconsin and six other states, a judge overruled a prosecutorial decision on Wednesday not to charge a police officer who shot and killed Jay Anderson Jr., a Black man who, moments before his death, was sleeping in a parked car in 2016. Milwaukee County Judge Glenn Yamahiro will appoint a special prosecutor after finding probable cause to formally charge Joseph Mensah with homicide by negligent use of a weapon, NBC News reported. The judge’s order directs the prosecutor to charge Mensah, also a Black man, within 60 days.

Mensah found Anderson at a park asleep in his car at about 3 AM in the Milwaukee suburb of Wauwatosa, NBC News reported. The officer accused Anderson, 25, of reaching for a gun before Mensah shot him, but both Anderson’s family and Yamahiro said the evidence didn’t support that story. Anderson’s family asked Yamahiro to review the case in what’s known as a John Doe proceeding. The statute maintains: “If a person who is not a district attorney complains to a judge that he or she has reason to believe that a crime has been committed within the judge’s jurisdiction, the judge shall refer the complaint to the district attorney or, if the complaint may relate to the conduct of the district attorney, to another prosecutor …”

Mensah has fatally shot two other people of color, one a Latino and American Indian man named Antonio Gonzalez, and 17-year-old Alvin Cole, a Black teen, NBC News reported. Mensah killed Gonzales in 2015 and prosecutors failed to charge the cop, saying Gonzales refused to drop a sword he was holding. Prosecutors also decided not to charge Mensah in Cole’s death, during which Mensah shot the teen while he was running from police at a mall in 2020. Mensah claimed Cole pointed a gun at him, NBC News reported, in a shooting that set off multiple days of protests. Mensah ultimately resigned last November, taking home a $130,000 severance check and going on to serve as a deputy hired under Waukesha County Sheriff Eric Severson.

Mensah’s attorney, Jonathan Cermele, told NPR station WUWM the judge heard evidence “from one side and one side only … We weren’t able to be involved, we weren’t able to cross-examine or provide witnesses,” he said. “The judge made a call on a very limited amount of evidence.”

Yamahiro said during court proceedings: “The evidence has shown that on June 23, 2016, Officer Mensah drove into Madison Park parking lot in 3:01 a.m., and positioned his vehicle approximately two car lengths facing the Anderson vehicle with his high beam lights on and his emergency flashing blue and red lights off. Failure to activate the emergency lights is significant because doing so would have automatically activated the dash camera of Officer Mensah’s SUV squad car.”

Yamahiro said Mensah should have realized that pulling out his weapon “created an unreasonable risk of death” and the officer could have deescalated the encounter simply by waiting for previously called backup to arrive. Severson said in a statement WUWM obtained that he “will be reviewing all of his options, and will have a more detailed statement and decision forthcoming.”

Attorney Kimberley Motley, who represents the families of Anderson, Cole, and Gonzales, told WUMW the John Doe process brought to light evidence the public simply wasn’t privy to. “We all know a Jay Anderson,” she said. “We all know a young guy who has a daughter who is just a good guy. And his daughter is now six years old. She will never have Jay Anderson in her life.

“You have a right to fight for justice as long as you do it within the legal avenues. I hope people understand and understand this is still a legal process and we all need to see how this plays out.”

Motley also called Cermele’s response to the judge’s decision “pathetic” in an interview with criminal defense attorney and TV host Yodit Tewolde. “Mensah was also a witness that we subpoenaed with regards to this John Doe hearing,” Motley said. “We actually asked him, subpoenaed him to come and testify to tell his side of the story, but instead of coming, Mensah hid and he decided not to come to court and instead he sent his lawyer to argue that he has the right to remain silent, which is his constitutional right.” Motley said Mensah was “cowardly” when he decided not to come to court after controlling the narrative in the case publicly for the last five years. “And frankly, if he wants the world to hear his story, why isn’t Mensah doing interviews right now?” Motley asked. “Let him go out in front of the microphone and tell the world what happened cuz we’re listening.”

Anderson’s parents, Linda and Jay Anderson, told Tewolde they are thankful for Motley. “I felt a relief. This has been five years coming, and Kim brought it all out and we appreciate her as a lawyer,” Linda Anderson said. Jay Anderson added that he cried “tears of joy … It’s a step towards justice,” he said.