PHOTO: Courtesy of WLUK
FOND DU LAC COUNTY, WI (WTAQ-WLUK) — A sergeant with the Fond du Lac County Sheriff’s Office was justified in fatally shooting a man who was thought to be armed, District Attorney Eric Toney announced Tuesday.
Toney determined the use of force by Sgt. Andrew Kohlmann in the Feb. 24 shooting that led to the death of Jesus Mendez Berry was “lawful.” No members of law enforcement will face any criminal charges.
Officials say the incident began when the Fond du Lac County Sheriff’s Office was contacted by 26-year-old Mendez Berry, who said he had a felony warrant for his arrest and wished to turn himself in.
Around the same time, authorities also received a call from a citizen “who reported a subject matching Mendez Berry’s description who displayed what the caller described as a handgun in his waistband.”
Deputies located Mendez Berry in the 6300 block of Cherrywood Drive a short while later.
Officials say when Mendez Berry refused to follow repeated commands to show deputies both of his hands, one of the officers discharged a non-lethal weapon. Mendez Berry was holding what deputies believed to be a firearm, according to authorities.
As a result, Kohlmann, who has eight years of law enforcement service, discharged his firearm at 6:22 p.m., striking Mendez Berry.
During scene examination following the shooting, the item belonging to Mendez Berry was determined to be a pellet/BB handgun.
Law enforcement and EMS personnel attempted lifesaving measures and Mendez Berry was taken to a nearby hospital, where he was pronounced dead. No one else was injured during the incident.
Investigation revealed Mendez Berry had a .474 BAC and the presence of cocaine was in his blood. Officials say he had expressed suicidal ideations and “suicide-by-cop” comments on at least two occasions, including the day he died.
Toney’s findings are as follows:
Sergeant Kohlmann should be commended for ensuring a less lethal option was available to the arrest team. The less lethal option was the first option utilized but was ineffective. Mendez Berry was seen holding what appeared to be a gun, later determined to be a BB/pellet gun, and had been refusing repeated commands to show his hands. Upon seeing the weapon, Sergeant Kohlmann was justified in his use of lethal force, based on the totality of circumstances, to protect himself and other deputies from the reasonable threat of death or great bodily harm.
Sergeant Andrew Kohlmann was aware the subject, Jesus Mendez Berry, may be armed, had recently threatened law enforcement, and that he may attempt “suicide-by-cop.” Therefore, Sergeant Kohlmann reasonably believed that there was an imminent unlawful interference with his person and that of the deputies when the subject ignored 10 or more directives to show his hands, continued to hide his right hand/arm behind his back, and after the less lethal option was deployed deputies observed Mendez Berry with a gun. I have further concluded that the force used by Sergeant Kohlmann in firing four rounds at Jesus Mendez Berry was necessary to prevent imminent death or great bodily harm to himself or other deputies. As such, Sergeant Kohlmann was privileged under Wisconsin law to use deadly force in self-defense and defense of others.
The gun recovered from Mendez Berry was a Gamo 430 CO2 pellet/BB handgun.
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