A libel lawsuit Michael M. Bell filed against the former Kenosha Police officer who shot and killed his son nearly two decades ago was dealt a setback Wednesday as a state appeals court upheld a circuit judge’s ruling that dismissed Bell’s claim.
The opinion comes a day before the 19th anniversary of the night that Albert Gonzales, in the company of four other officers, shot and killed Michael E. Bell.
It also comes two days after Michael M. Bell renewed his challenge to the Kenosha city administration to release what police and prosecutors say is the fatal bullet in his son’s death.
On Monday evening, Bell told the Kenosha City Council that he would donate $100,000 to unspecified charities if the city releases the bullet, which Mayor John Antaramian and the city have refused to do.
If awarded, the donation “could be a very substantial boost to a nonprofit’s operating budget for a year,” Bell told the Wisconsin Examiner Wednesday. He said he hoped that offering a charitable donation conditioned on the release of the bullet would spark public pressure on the city to act.
“The city needs to release the bullet,” Bell said in an interview. “If they don’t, people are going to question why aren’t they releasing the bullet.”
One or more charities for the proposed donation have not been chosen, Bell said. His attorney is developing guidelines for prospective nonprofits and a process by which they might apply for a donation from the money.
So far the city has not responded to Bell’s offer. In an email replying to a Wisconsin Examiner inquiry Wednesday, Kenosha Mayor John Antaramian’s executive assistant, Peni Keeling, wrote, “No comment at this time.”
Why Bell wants the bullet
Bell has sought the bullet as part of a longtime effort to untangle what he and allies consider significant misrepresentations about the events in the moments before Gonzales killed his son, Michael E. Bell.
The shooting took place in the early morning hours of Nov. 9, 2004, in the driveway of the house where the younger Bell’s mother lived. (She and Michael M. Bell were divorced.)
Gonzales and four other officers were on the scene. There had been a struggle, and another officer had seized the younger Bell in a bear hug and held him over the hood of Bell’s car. Gonzales fired the point-blank shot that killed Bell immediately after another officer at the scene, Erich Strausbaugh, shouted that Bell had his hand on the officer’s gun.
The official police account placed Gonzales to Bell’s immediate left and Strausbaugh to Bell’s immediate right, so that when Gonzales fired, the bullet was directed away from the house.
But Michael M. Bell and his allies have highlighted several pieces of physical evidence that they say contradict that description. Autopsy findings, blood splattered on the car hood over which an officer held Michael E. Bell when he was shot and eyewitness testimony from the younger Bell’s mother and sister all indicate that he was shot from the right side, not the left, they argue.
That scenario depicts Gonzales on Bell’s immediate right, between Bell and Strausbaugh, and holding his gun at the right side of Bell’s head.
The difference between the police account and the scene as Michael M. Bell and his allies have reconstructed it is important, Bell says, because it cuts to the heart of the justification that police gave for killing his son.
Why the shot’s direction matters
If Gonzales was between Michael E. Bell and Strausbaugh, he could not have touched Strausbaugh’s weapon, the elder Bell and his supporters argue.
Russell Beckman, a retired Kenosha Police detective, has theorized that Strausbaugh’s holster caught on the side mirror of the car — leading him, in the heat of the moment, to panic and think his gun was being grabbed at. The absence of Michael E. Bell’s DNA on the gun also casts doubt on whether he was going for the gun, according to Beckman.
Michael M. Bell has said he believes Strausbaugh made an honest mistake at that moment. By that scenario, however, the elder Bell says, Gonzales was in a position to realize that Strausbaugh was mistaken, making the shooting an avoidable error in judgment.
In that scenario, Bell says, when Gonzales fired, the bullet would have gone toward the house. Bell has found a mark on flashing of the garage that he and a ballistics expert he has consulted believe could be from a bullet.
Bell wants a ballistics expert to examine the bullet, if he ever gets it, for evidence that might link it to the dent in the garage flashing.
He sued the city to turn the bullet over when his request for it was refused. Kenosha County Circuit Court Judge Chad Kerkman dismissed the lawsuit, and the state appeals court affirmed that decision.
“The bullet could actually prove that the direction of the shooting was completely opposite from what the police said it was,” Bell said Wednesday.
In a statement emailed to the Wisconsin Examiner late Wednesday, Gonzales stood by the official police description of the incident, describing his actions that night as “using deadly force against someone trying to take an officer’s weapon.”
Libel suit dismissal
A Kenosha Police internal investigation concluded there was no wrongdoing on the part of the officers 48 hours after the incident. Bell won a $1.75 million settlement from the city in 2010 and campaigned for a state law enacted in 2014 that requires police shootings to be investigated by outside agencies rather than internally. Since then he has continued to push for a new investigation of his son’s death that would examine the discrepancies he has found.
Bell spoke Wednesday after learning that a state appeals court had summarily dismissed his libel lawsuit against Gonzales over the self-published account the retired Kenosha police officer wrote about his son’s case.
In his book Gonzales changes Bell’s last name, but that change was not a factor in the lower court’s dismissal of Bell’s suit or in Wednesday’s appeals court decision.
Bell’s lawsuit cited quotes from the book attributed to the alter egos that Gonzales gave Bell and his former wife, including two from court depositions and one from an exchange between Bell and Gonzales in a parking lot that Bell recorded and posted on YouTube.
Transcripts of the depositions and the recording showed that Gonzales had added words and phrases that weren’t part of those exchanges, and the suit charged they were defamatory to Bell.
The lower court concluded those differences were not substantially different from the actual words that were spoken and dismissed the lawsuit. Bell’s attorney argued on appeal that the 1991 Supreme Court decision Masson v. New Yorker set a higher standard of accuracy for direct quotes that the lower court had ignored in dismissing the lawsuit.
In Wednesday’s unsigned opinion, however, the appeals court judges sided with the lower court. The judges concluded that the changed quotes were not “significantly different” from the original documented comments, and that Bell, as a public figure, had not proved that Gonzales acted with “actual malice” in changing the quotes.
In his statement to the Wisconsin Examiner, Gonzales said: “I am pleased with the decision of the appeals court. My book ‘A Fateful Two Minutes’ was only ever intended to be my testimony of how the Lord helped my family and I through a very difficult time in my career. A time when I saved the lives of my fellow officers by using deadly force against someone trying to take an officer’s weapon.”
Bell said Wednesday he intends to appeal to the Wisconsin Supreme Court.
“There’s a lot of self-publishing going on out there,” Bell said. “People are writing whatever they want, and there should be some standards applied to them.”
by Erik Gunn, Wisconsin Examiner
November 9, 2023
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