When "Rescuers" Become a Death Squad: The Killing of Michael Funk

Biker, veteran, grandfather, plaintiff-- police victim: Michael Funk, RIP.

The only casualty of an hours-long SWAT raid and hostage situation in Neenah, Wisconsin on December 5 was Michael Funk, a disabled Vietnam veteran who was a party to a $50 million civil rights suit against the same department that killed him. Funk and three other plaintiffs filed that suit seeking compensation for harm they suffered in a SWAT raid at the same location three years earlier.

Funk and Steve Erato were co-owners of Eagle Nation Cycles in Neenah, the scene of a hostage situation that developed out of a drunken rampage by local resident Brian Flatoff. After SWAT teams converged on the scene, someone inside the building fired a single gunshot that hit one of the officers in the helmet. Funk, who had a concealed carry permit, fled from the building holding a handgun. The official story is that Funk was fatally shot for not complying with police orders to drop the weapon. 

Former Neenah Police Officer Dan Dringoli believes that Funk’s violent death at the hands his supposed protectors may be the product of something other than simple misfortune or miscommunication.

 

Dringoli.

“I think they may have just taken the opportunity, and erred on the side of `Let’s eliminate this problem,’” Dringoli told me in a telephone interview shortly after the incident. Currently working as a licensed private investigator in Neenah, Dringoli spent 15 years with the Neenah PD. That includes a brief stint with the SWAT team that ended when Dringoli complained about the misconduct of some SWAT operators during a tax-paid training trip to Florida. 

In tiresomely familiar fashion, Dringoli’s whistle-blowing led to a suspension for “insubordination,” which escalated into a lengthy and entirely spurious criminal prosecution that ended with dismissal of all charges and a civil settlement with the city. 

Dringoli is also well-acquainted with Steve Erato, the surviving co-owner of Eagle Nation Cycles.

“When I was a detective at the Neenah PD, Steve volunteered to be a liaison between the police and the `biker community,’” Dringoli explained to me. “He wanted to keep lines of communication open and prevent misunderstandings, and he helped us on a number of occasions.”

"Rather than coming here and breaking down my doors and having 20 cops and guns and SWAT teams and all of the other crazy stuff, they knew they could wake me up at 2 o'clock in the morning and I would take them to any part of the building," Erato explained several years ago in what now seems like ominous foreshadowing of subsequent developments. 

Neenah SWAT raid, December 5.

After Dringoli “crossed the Blue Line” by reporting misconduct by SWAT operators, he faced a retaliatory charge of “fixing” a ticket for Erato – in this case a citation for “disorderly” conduct. Dringoli’s supervisor agreed to dismiss the citation. For his part, Erato insists that he never asked for consideration, and was willing to fight the citation in court:  "I never would have wanted [Dringoli] to do anything. I would have rather pled not guilty and said my story." 

As Dringoli pointed out to me, it was clear that both police and the District Attorney’s Office “had a boner for this guy” (an expression reflecting a desire to harass him, rather than to exploit him for other carnal purposes).

Ten years ago, Erato’s ex-wife Merica Kabke was convicted of felony charges in the accidental death of their son, Vincent, in a traffic accident that occurred while Kabke was under the influence of a controlled substance. Despite his understandable sorrow and rage over the death of their child, Erato – who had officially been designated a “victim” of the offense -- sought to testify on behalf of his wife during the sentencing phase of the trial before Judge Scott C. Woldt.

“As the victim of the crime … Erato had planned on making an impassioned plea on behalf of Kabke and the fact that she had made a mistake in driving,” explains the lawsuit filed following the September 2012 SWAT raid on his business. “Part of his statement was to include the fact that both Judge Woldt and [District Attorney William] Lennon had checkered histories. His statement regarding Woldt was to highlight the fact that Woldt had killed a passenger on a motorcycle while drunk at the age of 18. His statement regarding Lennon was to point out that Lennon also had a history of drug abuse, as he had previously admitted to using cocaine.”

Scott Woldt.

The purpose of that statement, which Erato was legally entitled to offer, “was not to shame or harm the judge or the District Attorney, but rather, to illustrate that we all make mistakes – even judges and prosecutors – and that punishing Kabke harshly would be hypocritical for both of them.”

“Judge Woldt refused to allow Steve to testify, even though he had every right to do so,” Dringoli recounted to me. “He had two sheriff’s deputies flank him in the courtroom, prepared to drag him away to jail as if he were a convicted criminal, rather than a designated victim in this case.”

Erato filed a complaint against Woldt and Lennon with the Wisconsin Crime Victim’s Rights Board, which censured them for their “willful neglect” of his rights. 

This did nothing to endear Erato with the powerful people who later sicced a SWAT team on his business. 

“At the time Erato filed that complaint [with the WCVRB], Judge Woldt was being considered for a federal appointment,” pointed out attorney Cole White, who is representing Erato in his lawsuit, in a telephone interview. “That never happened, and this business probably has a lot to do with that fact.”

Whether or not Erato’s complaint against Woldt injured the judge’s career prospects, it unambiguously played a role in precipitating the September 24, 2012 SWAT raid on his business. 

Pusillanimous poseurs: The MEG

The Lake Winnebago Area Metropolitan Enforcement Group (hereafter MEG) claimed to have witnessed a drug transaction take place in an alley behind a building on the 200 block of Neenah’s main street that Eagle Cycles shares with several other businesses. The MEG’s second-in-command is Winnebago County Sheriff’s Deputy Randy Woldt, Judge Woldt’s brother. The search warrant affidavit filed by the MEG alleged the existence of “a complex drug manufacturing and distribution operation [at Eagle Cycles] in conjunction with the Hells Lovers motorcycle gang” and described the site as if it were involved in “an episode of the television series Sons of Anarchy,” recalls the lawsuit. 

Despite his obvious conflict of interest in the matter, and the abundant defects in the affidavit, Woldt blithely approved the MEG’s application for a search warrant on September 20. 

During the raid, “The hyper-militarized force parked an armored tank-like vehicle outside of Eagle Nation, stormed the building, bombarding the occupants with assault weapons drawn, screaming profanities and abuse, all while wearing plainclothes ... and face masks,” narrates the lawsuit. For several hours the invaders ransacked the building, finding no evidence of heroin, meth, cocaine, or any controlled substances.

After moving into Erato’s office, the raiders “found” a minuscule amount – roughly eight-tenths of a gram – of marijuana. The facility’s security camera “cuts out following the police entry in the room and then resumes only after the alleged discovery,” points out the lawsuit. “The video equipment was seized by SWAT officers, and was not returned for several months.”

Neenah officers are equipped with body cameras. None of those cameras was activated during the September 21, 2012 raid. 

“If you look at the security camera footage of the raid, you’ll see that the SWAT operators completely trashed the business, tearing rooms apart in search of drugs,” Attorney Cole White pointed out to me. “In contrast, the officers ‘found’ the pot in the office in the first place they supposedly looked – and then they stopped looking. This makes no sense if they were actually trying to find evidence of a massive drug operation, but it makes perfect sense if they were simply trying to manufacture a cover charge to justify the raid.” 

Erato was arrested and caged for eight days after the raid, during which time he was denied his prescription medications.  While Erato was in jail, Neenah Police Chief Kevin Wilkinson – who had commanded the SWAT raid -- led a team of municipal officials on an "inspection" of the building in search of additional pretexts to harass the owners and confiscate the property.

Neenah PD Chief Wilkinson.

No evidence of drug manufacturing or narcotics dealing was ever found, but Erato was slapped with fifteen felony charges, all but one dealing with the discovery of firearms in a locked safe in the basement of the property. Those charges were all dismissed except for the single count of misdemeanor marijuana possession arising from the “discovery” of what was almost certainly planted evidence.

Understandably, Erato and Funk were left traumatized and fearful as a result of the raid. Erato’s second marriage was a casualty of the incident as well; his wife filed for divorce, “citing the psychological and emotional trauma Steve Erato suffered as having so damaged and changed him to such an extensive degree as to render their marriage irredeemably damaged.”

Significantly, the raid also destroyed the career of the only officer on the scene who expressed misgivings about it – Officer Renee Porter (who at the time was Renee Dubinski), who was ordered to arrest Erato.

“Following the search, several senior police officers stood and openly discussed what charges to manufacture against Erato,” recalls the suit. When Dubinski was told to take Erato into custody, she “openly questioned if the charges proferred were even appropriate” and later acknowledged that there was no probable cause to justify the arrest.

And ... she's gone, too: Officer Dubinski.

Three days later, as something other than luck would have it, the Neenah Police Department received what it described as “an external complaint” alleging that Dubinski, a probationary officer who had been hired about a year earlier, “was dating a known drug dealer by the name of Andrew Erspamer … and that Officer Dubinski did not want the Department to know about her relationship with Erspamer because if know, she would be fired from the Department.”

Many years earlier, Erspamer had been convicted of “illegal possession of controlled substances” – specifically, steroids. Like Dubinski, Erspamer is an amateur bodybuilder. At the time they were training partners and, as Dubinski grudgingly admitted, were having an affair. The complaint against Dubinski was most likely made by another of Erspamer’s girlfriends, and it was eagerly acted upon by a police department looking for a way to be rid of an officer who displayed the first worrisome symptoms of a conscience.

After several months and the expenditure of $184,000 on an official investigation, the Neenah PD fired Officer Dubinski. She has an active civil rights lawsuit against the department and the municipal government.

The September 2012 raid from which all of this ugliness sprouted was intended to close down the motorcycle shop and forfeit the property, according to the lawsuit. “Eagle Cycles and its neighboring businesses are holdouts in Neenah’s multi-million-dollar downtown renovation project,” attorney Cole White told me.

Significantly, on December 1 – just days before the hostage stand-off and the police killing of Michael Funk – the City of Neenah had filed a motion to dismiss the lawsuit, claiming that the plaintiffs had neglect to respond a procedural ruling. “They sent notice of that earlier motion to the wrong address, and by the time it had arrived at my current business address the deadline to respond had passed,” White explained, referring to this as “a pretty familiar legal dirty trick.”

Dan Dringoli, who has worked with White in investigating the raid, believes that there’s even dirtier business involved in Michael Funk’s death at the hands of a police department he had sued.

“Does it sound right that a `hostage’ would run away from someone threatening to kill him, and then point a gun at a SWAT team?” asks the former Neenah police officer. “Why would they be confused as to whether Michael was a hostage, or a suspect? Steve was texting updates to the police during the hostage situation. And where is the footage from the body cameras and the surveillance footage?”

Playing the expected role in a very familiar script, Neenah Mayor Dean Kaufert has appealed for “patience” as the official “investigation” seeks for an acceptable reason to rule that the killing of Funk was justified.

Six months ago, Kaufert defended the Neenah PD’s acquisition of a $770,000 “Peacekeeper” armored vehicle through through the Pentagon’s notorious 1033 “surplus property” program. In his view, procuring this battlefield-grade vehicle was necessary to  protect the city’s enforcement caste: “The one thing I don’t want to do during my tenure as mayor is … to go to a policeman’s funeral. And so if this vehicle can protect them I’m willing to accept that.”

Honors: Bikers and veterans at Funk's funeral.

The “Peacekeeper,” which was deployed during the December 5 hostage stand-off, did nothing to protect Michael Funk, whom the Neenah Police supposedly set out to rescue. His death could be the product of either incomprehensible misfortune or uncanny – and malicious – marksmanship on the part of a police department that institutionally had cause to resent him.

Funk, an Air Force veteran, was buried yesterday (December 13) in a ceremony attended by members of motorcycle clubs from across the Midwest. Kaufert, according to media reports, was apparently not in attendance. 

Given what Funk’s lawsuit reveals about the operations of his city's government, and the police department that afflicts it, Mayor Kaufert’s presence would have been inappropriate, even if he had been inclined to attend.

This week's Freedom Zealot Podcast: Barack Obama wants to take your guns; Donald Trump wants to execute you for using those guns to defend yourself against criminal violence by the police: 

Dum spiro, pugno!

"Blue Privilege" and the Felony Murder Rule

Bendetta Miller died on October 25 as a result of what was accurately described as a “senseless act” in Fayette County, Pennsylvania. Her husband’s bereavement was compounded by the knowledge that he had spoken with her by phone just minutes before he died – and the thought that if that conversation had been drawn out by mere seconds, Brenda might have avoided the automobile collision in which she was fatally wounded. 

“If I could have delayed her, if I would have talked with her longer, she would have probably been with me today,” Gary Miller laments, describing a phone call with his wife while she was shopping at a nearby mall. “When I hung up, I said, `I’ll see you this evening when I get home.’ It never happened.”
 

Victim of police recklessness: Bendetta Miller.

A few minutes after that phone call, the SUV Bendetta was driving was blind-sided at an intersection by a vehicle operated by a man named Scott Abbott. She apparently didn’t see Abbott’s car. For his part, Abbott was driving well above the speed limit, and didn’t have time to avoid the fatal crash. Brenda was flown to a nearby hospital, where she died as a result of her injuries. 

Criminal homicide charges have been filed as a result of Bendetta's death. The suspect was not Pennsylvania State Trooper Scott Abbott, the man who killed her, but 23-year-old Jonathan Switch, the individual Abbott was pursuing. Abbott joined the chase after Switch – who had been driving with a suspended license – fled from a traffic stop. 

Gary Miller referred to his wife’s death as the result of a “senseless … high-speed chase.” Given that the troopers were engaging in tax collection, rather than the pursuit of a suspected violent felon, a better description of their actions would be “criminally irresponsible.”

No bail: Switch.

When operated recklessly in ways that endanger members of the state’s enforcement caste, motor vehicles are treated as lethal weapons. As is always the case, there is no reciprocal application of this principle when police engage in reckless driving that endangers or ends the lives of innocent people.

One appropriately infuriating example of this variable standard is found in the decision by the Los Angeles County Prosecutor’s Office not to charge LA County Sheriff’s Deputy Andrew Wood after he ran over 65-year-old tech executive Milton Olin, Jr. in December 2013. Deputy Wood was distracted by answering a computer text message at the time he ran over Olin, who was riding a bicycle. 

In keeping with the reasonably low expectations observant people have for those in his profession, Deputy Wood initially lied about the incident, claiming that Olin had “drifted” out of the bike lane. He will be held responsible for neither the killing nor for his subsequent perjury because the prosecutor ruled that Wood was answering a “work-related” text message. Thus his all-encompassing professional privilege protects him from legal liability for an incident that would otherwise have been prosecuted as a criminal homicide.
 

No charges: The scene after Deputy Wood killed Olin.

The case of Jonathan Switch represents an even more egregious form of Blue Privilege, since he is being held legally liable for the fatal misconduct of another driver. Furthermore, his case is not unique. 

On August 28, Missouri State Trooper died when he crashed his patrol vehicle while giving pursuit to a speeding motorcyclist, later identified as twenty-year-old Serghei Pavel Comerzan.

In late November, Comerzan was arrested and charged with resisting a lawful stop, careless and imprudent driving, and failure to register a motor vehicle. Owing largely, if not entirely, to the privileged status of the individual who died while pursuing him, Comerzan was also charged with second-degree murder (or, alternatively, first-degree manslaughter), despite the fact that Trooper Bava’s own actions were the proximate cause of his own death.

Under the common law principle called the “felony murder rule,” an accidental killing that occurs during the course of a “dangerous felony” can be charged as first-degree murder. For example, the driver of a get-away car following an armed robbery can be charged with murder even if he didn’t pull the trigger when the bank teller was shot.

Obligatory media "perp" photo of Comerzan.

The most recent revision of the Missouri statute dealing with second-degree murder specifies that the charge is appropriate when the accused “knowingly causes the death of another person,” acts “with the purpose of causing serious physical injury to another person,” or “Commits or attempts to commit any felony….” Since the prosecution would have great difficulty proving that Comerzan intended to kill or injure Bava, they would probably rely on a subtle situational sentence enhancement found in one of the misdemeanor statutes the driver is accused of violating.

Both “careless and imprudent driving” and “failure to register a vehicle” are misdemeanors. The same is true of “resisting a lawful stop” – except in circumstances in which “the person fleeing creates a substantial risk of physical injury or death to any person, in which case it is a class E felony,” according to the statute. Unlike other states, Missouri’s version of the felony murder rule doesn’t require that the underlying felony be an “inherently dangerous” offense, such as unlawful discharge of a firearm or arson.

Interestingly, a decade ago the California Supreme Court ruled that driving with “willful or wanton disregard for persons or property while fleeing from a pursuing police officer” is not an “inherently dangerous crime” for the purpose of the felony murder rule.
 

Spectators at Trooper Bava's funeral procession.

That ruling was the result of a 2002 case in which an ex-convict named Evert Keith Howard, fleeing from police, plowed a stolen Chevy Tahoe into a car driven by Jeanette Rodriguez, killing the driver and seriously injuring her husband. Noting that the “second-degree felony-murder rule is a court-made rule [without] statutory definition,” the court reversed Howard’s murder conviction under that rule while acknowledging that a trial jury “may well find that the motorist has acted with malice by driving with conscious disregard for the lives of others, and this is guilty of murder.”

By charging Comerzan with both second degree murder and manslaughter, the prosecution could very well be using the threat of the former to extract a plea agreement to the latter. Under Missouri state law, “the crime of involuntary manslaughter in the first degree” occurs when an individual “recklessly causes the death of another person.”

Of course he was a hero; aren't they all?

Although Bava perceived a duty to conduct a dangerous pursuit of Comerzan, the motorcyclist did not compel the trooper to follow him. Indeed, in the case from California, Fresno Police Officer Anthony Arcelus – who later witnessed the fatal crash at a stoplight – decided to give up the pursuit “fearing that the high-speed chase might cause an accident.”

There is no dispute, however, that the late Trooper Bava’s colleague in the Missouri Highway Patrol, Trooper Anthony Piercy, recklessly caused the unjustifiable death of twenty-year-old Brandon Ellingson. After being arrested on suspicion of boating while intoxicated, Ellingson was handcuffed, placed into a defective life-vest, and then thrown overboard into Lake of the Ozarks, where he drowned.

“Brandon Ellingson didn't have a chance the moment he got on that boat," concludes recently retired MHP Sergeant Randy Henry, who was Piercy’s supervisor at the time and interviewed him hours after the May 2014 incident. "As soon as Brandon Ellingson got onto Tony Piercy's boat, I believe it was a death march." Piercy’s actions amounted to “manslaughter, involuntary manslaughter,” Henry concludes.
 

Honest remorse: Former Trooper Henry.

"This happened on our watch,” Henry told the Des Moines NBC affiliate, KCCI.” It shouldn't have happened. It was totally preventable and it was covered up. He was totally defenseless in that boat."

The cover-up and predictable pressure campaign resulted in a ruling from a Coroner’s Inquest that Ellingson’s death was accidental – which still left the possibility of an involuntary manslaughter charge. That option was foreclosed when prosecutor Amanda Grellner, who owed the MHP a personal favor after the agency declined to charge her then-18-year-old son with DUI, refused to charge Piercy.

Bava’s death resulted in an elaborate state funeral, during which attendees lamented what they called a pervasive “anti-law enforcement mentality.” Bava’s death was a genuine tragedy that occurred because of his own choices and actions. That was not the case for Brandon Ellingson.

Assuming that public hostility toward law enforcement is a genuine problem -- rather than an understandable, and even laudable, reaction to institutional corruption -- the deeply entrenched Blue Privilege displayed through the disparate treatment of those cases will do nothing to cure it.


On behalf of my family, I wish to express thanks to everyone who has generously contributed to Pro Libertate this year. We are deeply grateful, and hope -- in defiance of so many deepening troubles -- that all of you are blessed with peace and genuine happiness in this Christmas season.

Dum spiro, pugno!