Is Agent Mark Wagner Receiving Due Process of Law?
Is Agent Mark Wagner Receiving Due Process of Law?
Includes an interview with Wisconsin FOP
Police officers are entitled to due process of law, just like any other American. The U.S. Constitution is clear on this, as Justia explains.
“Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power.”
When this premise fails and one group is treated differently from another, people lose faith in the system. They become resentful and despondent. And as a result, society begins its collapse.
We all want to believe our justice system is blind, yet it’s hard not to make an observation: That cops are being used as political currency, and are being indicted based on the whims of the anti-police mob.
Case in point.
During the 2020 riots, Austin, Texas police officers used beanbags to quell the crowds, which resulted in civilian injuries. Subsequently, 19 officers were criminally charged; and one was accused of aggravated assault by a public servant, a first-degree felony that carries a term of up to a life sentence in prison. Meanwhile, this same district attorney rejected felony cases of civilian offenders at a rate 735% higher from the same period in 2020.
This isn’t an outlier, either. Cops are increasingly being indicted for doing their job as prescribed by the law and their training.
Special Agent Mark Wagner
A new case has emerged here in Madison and it follows a similar pattern to recent indictments of police officers.
Mark Wagner, a special agent with the Wisconsin Department of Justice’s Division of Criminal Investigation, was one of 21 police officers who moved in on a suspect’s car during a narcotics bust this past February.
Long story made very short (You can read all about the case and Agent Wagner here): Wagner used his weapon on the suspect (non-fatally) because he reasonably feared for his life and that of another officer. In his words,
“I was trying to stop him from shooting me. I was trying to stop him from shooting Nate.”
Wagner is being charged with second-degree recklessly endangering safety by use of a dangerous weapon, which potentially carries a 10-year prison sentence.
Probing Questions
A couple of things that stand out to me.
It Took Seven Months to Charge Agent Wagner
The district attorney had seven months to make his case. He had the benefit of time, hindsight, and analysis. Agent Wagner had but a split second to make a life-altering decision; it’s a situation most of us will thankfully never have to experience.
The U.S. Supreme Court established Graham v. Connor, a standard for police use of force. In part, it reads:
"The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
While this may seem like a broad definition, it gives cops the ability to use their best judgment in a situation that requires quick action, so that they can defend themselves and the public they serve. Which is what Agent Wagner reportedly did.
And though I’m not a legal scholar, it seems that the prosecutor would have to establish whether Agent Wagner is a “reasonable officer.” Judging by his record, he appears to fit this profile.
What Happened to Reasonable Doubt?
The district attorney prosecuting this case regularly talks about reasonable doubt and drops cases based in part, on this criteria.
For example, earlier this year the Madison Police Department recommended a charge of first degree intentional homicide in the case of a stabbing suspect to the Dane County district attorney’s office. The DA’s office declined to prosecute, saying:
"At this time there is a self-defense claim which we cannot overcome with the current evidence collected," District Attorney Ismael Ozanne told 27 News in a statement.”
Question: What makes this civilian’s claim (and those like it) of self-defense different from a police officer’s claim? Why can’t police officers receive the same benefit of reasonable doubt, especially when case law allows for reasonable use of force?
This isn’t the first time this district attorney’s office has dropped cases that arguably should have been prosecuted. One of the most glaring examples is of the demonstrators arrested for a felony during the 2020 riots and who subsequently got a pass. Of 85 felony charges, 20 were dismissed and 17 received deferred prosecution.
As MacIver Institute reports (The XXX is mine) :
“Crimes against law enforcement were generally ignored. One person threw a flaming gas canister at police, but that charge was dismissed. Longtime protester, (XXX), was arrested for making terrorist threats against the sheriff, but those charges were also dismissed. One individual swerved his car towards police officers making an arrest, but he was acquitted by a jury of his Dane County peers.”
Given scenarios like this, it’s not unreasonable to form the conclusion that the law is applied unequally and based on political whims. This is contrary to what the U.S. Constitution demands.
Interview With Wisconsin FOP
I reached out to Ryan Windorff, president of the Wisconsin Fraternal Order of Police (FOP) for his thoughts on this case. I’m including his insights verbatim.
Question: What is Wisconsin FOP doing to support Agent Wagner? I see you have a website and are selling t-shirts. Can you please elaborate on that?
Ryan Windorff: The website was established to tell a side of the story that the mainstream media either can’t or won’t report on. We want people to know who Mark is as a person, husband, father, friend, and community servant who has dedicated his life to the protection of others. These types of incidents and the reporting of them tend to take the humanity out of the officers involved.
Through the website people can make donations that go directly to Mark to help pay for his legal defense. People can also purchase “Stand With Wags” t-shirts to publicly show their support. Proceeds from the t-shirt sales will also be given directly to Mark.
Question: Do you believe Agent Wagner’s case (and similar cases) will affect officer morale and their ability to do their job? Will they hinder recruitment efforts?
RW: Every time a law enforcement officers goes out on the street they accept the risk that they may not make it home. The fact that an officer needs to also be concerned that they may be criminally charged and lose their career, reputation, and freedom for doing what they were trained to do to protect themselves and other certainly adds to the pressures of doing the job. Over the last decade our profession has experienced being labeled “racists” as well as calls to defund and eliminate our profession entirely. While this undoubtedly can affect morale, our profession is a resilient one and we continue to stand together to protect our communities.
Wisconsin has less law enforcement officers working today than 10 years ago, at the same time violent crime across the state is spiking. Recruitment and retention issues are a large concern and cases like this will make people question whether it is worth it to put their lives (and reputation and freedom) on the line when there are many other careers that do not share these dangers.
Question: Do you have faith that Agent Wagner will be cleared of his charges? If he is cleared, do you believe he’ll want to return to policing?
RW: The Wisconsin Fraternal Order of Police has faith in our justice system and trusts that Special Agent Wagner’s actions will be found proper and justified.
The decision to return to policing will be a personal decision that Special Agent Wagner will need to make with his family.
Question: How is he, his family, and his blue family holding up?
RW: Law enforcement officers in Wisconsin, and throughout the country, are disappointed in the Dane County District Attorney’s decision to file charges against Special Agent Wagner. While it is a difficult time personally and professionally for many officers, we will continue to do our jobs with professionalism, integrity, and dedication while standing by Special Agent Wagner.
Question: How can members of the public help support Agent Wagner?
RW: The biggest thing the public can do is to show Special Agent Wagner that they support him. There is a Facebook group, Stand With Wags, where anyone can receive updates on the case and post encouraging and supportive comments. Visiting and sharing the website, standwithwags.com, to learn more about Mark and the case and sharing it with everyone they know will help get the truth out. If they are in a position to do so, donations and the purchase of t-shirts will help Special Agent Wagner pay for the costs of his legal defense.
Final thoughts: Like most Americans, I want to live in a country where the law is applied equally and without favor. We can all agree that nobody -including police officers- is above the law. This doesn’t mean, however, that decisions on whether to indict a cop should be political or based on what the mob wants. We can’t function as a country like this. Moreover, when police officers second-guess themselves for fear of indictment, they will retreat or resign - and as a result, we are all less safe.
Read my interview with National Center for Police Defense about resources available for police officers who’ve been indicted during the course of upholding the law.
For the Blue is a solutions-based initiative. I’m just an American patriot asking questions. I don’t work with any political party and I answer to nobody. For me, the health of the nation, due process (including for police officers), the rule of law, and respect for individual liberties, will always transcend party affiliation. I welcome your thoughts, even if you disagree; though personal attacks will be ignored. You can reach me at fortheblue@substack.com.