January 6, 2013

Police account of shooting disputed

Neighbor saw no need for Madison officer to open fire, killing Paul Heenan

Megan and Kevin O'Malley at their Baldwin Street home in Madison on Jan. 3. Kevin and Megan O’Malley at their home on Baldwin Street. Kevin O’Malley said he saw no need for Heimsness to open fire, saying the officer made no attempt to defuse the situation. Kate Golden/Wisconsin Center for Investigative Journalism

Megan and Kevin O'Malley at their Baldwin Street home in Madison on Jan. 3. Kevin and Megan O’Malley at their home on Baldwin Street. Kevin O’Malley said he saw no need for Heimsness to open fire, saying the officer made no attempt to defuse the situation. Kate Golden/Wisconsin Center for Investigative Journalism

Megan and Kevin O’Malley at their Baldwin Street home in Madison on Jan. 3. Kevin O’Malley said he saw no need for police officer Stephen Heimsness to open fire, saying the officer made no attempt to defuse the situation. Kate Golden/Wisconsin Center for Investigative Journalism

Timeline

Nov. 9, 2:45 a.m.: 911 emergency dispatch receives a call from Megan O’Malley about an intruder in the home she shares with husband Kevin in the 500 block of South Baldwin Street.

Nov. 9, 2:49 a.m.: Megan O’Malley gives dispatch a description of her husband, Kevin, which is relayed to officer Stephen Heimsness, arriving on the scene. Just prior to 2:50 a.m., three shots are fired.

Nov. 9, continuing: The suspect, Paul Heenan, 30, is pronounced dead at the scene. Police interview Kevin and Megan O’Malley, whose home was entered.

Nov. 12: Madison Police Chief Noble Wray holds a press conference at which he asserts that Heenan was reaching for Heimsness’ gun as the three shots were fired.

Dec. 27: The office of Dane County District Attorney Ismael Ozanne issues a press release asserting that, according to Kevin O’Malley, who witnessed the shooting, the officer and Heenan “separated very briefly” before shots were fired. Ozanne concludes that the officer was in fear for his life and justified in using deadly force.

Jan. 3, 2013: Wray says he expects that his department will release the results of its internal investigation sometime early this week.

Read more

Skip down to the press release from the Dane County District Attorney’s Office, which absolved the police officer who shot Paul Heenan of criminal liability.

Note: This story was corrected at 1 p.m. on Jan. 7. The correction is appended.

 

The owner of a home mistakenly entered by an intoxicated neighbor who was shot and killed by a Madison police officer arriving on the scene said he tried repeatedly to inform the officer that the intruder was someone known to him.

“I remember yelling, ‘He’s a neighbor! He’s a neighbor!’ ” Kevin O’Malley told the Wisconsin Center for Investigative Journalism, recounting events outside his east-side Madison home in the early morning hours of Nov. 9.

“It was the type of yelling you would do if something was going horribly wrong.”

The responding officer, Stephen Heimsness, shot the unarmed suspect, Paul Heenan, three times in the upper torso. Heenan, 30, was pronounced dead at the scene.

Dane County District Attorney Ismael Ozanne has absolved police of criminal liability, affirming that Heimsness was justified in using deadly force because Heenan had been reaching for his gun.

Heimsness could yet face discipline; Madison Police Chief Noble Wray said he now expects to release the results of the department’s internal probe early this week. Jeff Scott Olson, a lawyer for Heenan’s family, is weighing whether to file a civil suit.

Megan O’Malley, who called 911 at 2:45 a.m. to report that a man had entered their home, said her husband’s shouts of “He’s a neighbor!” were loud enough to be heard from inside the house. Kevin O’Malley said he shared this detail in his statements to police, in the hours after the shooting and in a videotaped interview on Nov. 16.

The Dane County District Attorney’s Office, in its detailed account of the shooting, made no mention of O’Malley’s efforts to inform Heimsness that the intruder was a neighbor. The office’s written statement said Heimsness believed he was facing “a suspect from a potential burglary.”

The Madison Police Department has not confirmed that O’Malley had yelled, “He’s a neighbor!” But Chief Wray acknowledged at a Nov. 12 press conference that “A statement similar to that, I have heard, is part of the investigation.”

Ozanne, in an interview, said he was aware that O’Malley “believed he may have made that statement” about Heenan being a neighbor. He didn’t include it in the office’s statement, which he wrote, because “I don’t know if the officer heard it.”

Dan Frei, president of the Madison Professional Police Officers Association, also suggested that given the totality of the circumstances, Heimsness may not have heard what O’Malley was saying. He said studies have shown that officers in high-stress situations experience “auditory exclusion.”

Heimsness did not respond to an emailed request for comment forwarded to him by a police spokesman.

The spokesman, Officer Howard Payne, said Wray was “trying to be fair and equitable” to the process and thus would not comment at this time on O’Malley’s version of events. “Any additional statements of comments before the internal investigation is complete is just going to create more confusion.”

O’Malley, who has previously declined to talk to journalists about the shooting, agreed after consultation with his attorney, Hal Harlowe, to tell his story to the Center. He said he did so because parts of the accounts given by police and the district attorney do not square with what he witnessed. He stressed that he respects law enforcement and is not taking sides.

“I’ve been neutral since the second it happened,” O’Malley said. “I felt like I was neutral as it was happening in front of me.”

But O’Malley said he saw no need for Heimsness to open fire, saying the officer made no attempt to defuse the situation. He worries that the officer’s unqualified public exoneration by the DA’s office “may be setting a standard of police conduct that will result in more unneeded use of force and more danger to the public.”

Heimsness has been on paid administrative leave since the shooting. A 15-year department veteran, Heimsness has been involved in two previous incidents alleging excessive use of force.

In 2001 he was suspended for 15 days for shooting out the tires of a fleeing car in a parking garage. In 2006, he was involved in an arrest of a bar patron that led to the city of Madison paying a $27,000 settlement. The Madison Police Department’s internal investigation found that the use of force in that case, including kicks and knee strikes, was “for the most part … reasonable and necessary.”

Didn’t see gun grab, pushback

After hearing sounds coming from the first floor of his home at 513 S. Baldwin St., O’Malley saw a man standing in his doorway, apparently deeply intoxicated. Heenan, a local musician who had been dropped off after a night of drinking, was later determined to have had a blood alcohol level of .208 percent, more than twice the legal limit for driving.

Paul Heenan, 30, died Nov. 9, 2012, after a Madison police officer shot him on Baldwin Street. Courtesy of the Heenan family

O’Malley said Heenan, who had recently moved into a strikingly similar house two doors down, appeared disoriented and confused. O’Malley said he recognized Heenan and addressed him by name and began to lead him home. Megan O’Malley, still upstairs, called 911, though her husband answered “no” when asked if she should, the couple said.

Heenan allowed himself to be led all the way back to his own house, O’Malley said. Then Heenan seemed hesitant about entering and eventually came at him, saying, “You wanna get weird?”

O’Malley said the two men grabbed onto each other as Heenan began pushing him backward. O’Malley told police later that he considered calling for help — “I wanted to reverse the situation” — but maintains that he never felt seriously threatened.

At this point, when the two neighbors were on the sidewalk between their two homes, Officer Heimsness arrived on the scene, gun drawn. Heimsness yelled “Get down! Get down!” O’Malley said he and Heenan let go of each other, and Heenan kept walking toward the officer.

“That’s when I started yelling, ‘He’s a neighbor!, he’s a neighbor!” O’Malley said.

Heenan was drunkenly “flailing and swatting at the officer,” said O’Malley, but he never saw him try to grab Heimsness’ gun. Nor did he see Heimsness push Heenan away, as claimed, but concedes this could have occurred.

Officials gave different accounts

Ozanne’s office, in a Dec. 27 press release, said O’Malley told police that Heenan and the officer “separated very briefly” after a physical struggle, to a distance of five to six feet, at which point Heimsness discharged his weapon.

Officer Stephen Heimsness has been on paid administrative leave since the shooting.

But Madison Police Chief Noble Wray, at his Nov. 12 press conference, made no mention of the two men being separated, saying only that Heenan was reaching for Heimsness’ gun and the officer, believing his life was in danger, fired three rounds.

Wray, in an email, said more information will be forthcoming when the MPD concludes its internal probe. He noted that his earlier press conference took place “very early on in this investigation.”

Attorney Harlowe said the DA office’s reference to a brief separation, while attributed to O’Malley, “didn’t come out of anything Kevin said.” Harlowe told the Center this language “really changes the tone” of O’Malley’s account, suggesting that Heenan was about to re-engage.

Ozanne said he meant to convey only that the period of time between the separation and the shots was brief.

According to O’Malley, Heenan did not make any sort of move toward Heimsness as the shots were fired.

“Right before he was shot his hands were at his sides,” O’Malley said. “When he was shot his hands were at his chest, in a defensive position.”

In fact, O’Malley said Heenan looked in his direction and seemed to notice a second officer arriving on the scene.

O’Malley said he was shocked by the officer’s decision to open fire. “I could not believe what I saw. I yelled ‘goddamn it, goddamn it, Jesus Christ.’ ” He said he heard Heimsness tell the arriving officer, “He went for my gun.” Then O’Malley ran back into his house.

Moments later, the O’Malleys said, several police officers burst into the residence with guns drawn and started to make their way upstairs, toward the couple’s four young children, who were awake during the shooting. O’Malley said they stopped when he explained that the intruder had been a neighbor who had entered the wrong house.

A sense of obligation

Harlowe, a former Dane County district attorney, does not disagree with Ozanne’s decision not to bring criminal charges against Heimsness, given the standard of proof that a successful prosecution would require. But he believes that the factual issues being raised by his client merit public attention.

Attorney Hal Harlowe: “We simply cannot become inured to the idea of unarmed people being shot without considerable public scrutiny.” Courtesy of Hal Harlowe

“What he has to say is important,” Harlowe said. “We simply cannot become inured to the idea of unarmed people being shot without considerable public scrutiny.” He said the police and district attorney’s office “are doing the best they can, but the public should also have the facts and judge for itself.”

He added that O’Malley “didn’t ask to be involved in this,” and was coming forward out of a sense of civic and moral obligation. “He just wants to do the right thing.”

O’Malley, 39, a native of Illinois, moved to Madison with Megan in 2002 and has been employed by several Madison companies, including American Girl, TomoTherapy and, currently, the Great Lakes Higher Education Guaranty Corporation, where he works in communications. Megan teaches at the Madison Waldorf School and has also worked at Wingra School and done in-home daycare.

The couple share a 1,200-square foot, three-bedroom house with their four children, ages 2 to 12. They love their neighborhood and recently hosted its fourth annual Halloween parade of neighborhood children.

But now Megan wonders if the neighborhood will be the same. “I feel terrible that I called the police,” she said. “I wouldn’t call them again.”

Correction: The original version of this report, published on Jan. 6, said that the Madison Police Department’s detailed accounts so far have made no mention of homeowner Kevin O’Malley’s contention that he attempted to inform a Madison police officer that intruder Paul Heenan was a neighbor before the officer shot and killed Heenan on Nov. 9. At a Nov. 12 news conference, Police Chief Noble Wray made no mention of that issue in his formal statement. However, a reporter asked Wray about reports that before the shooting, people were yelling that Heenan was a neighbor, and Wray responded, without mentioning O’Malley: “A statement similar to that, I have heard, is part of the investigation.” This exchange occurs about 14 minutes into the news conference, and it may be viewed here. Wray declined an invitation to comment on O’Malley’s statement before the Center’s report was published, saying he would wait until an internal investigation is completed, a position that he reiterated through a spokesman on Jan. 7.

 

Dane County District Attorney’s Office: Dec. 27, 2012, press release

  • Sabrina

    What is tragic now is that a law abiding citizen is in fear of ever calling the police again. What has our country come to? Why is no one else seeing that the police are a corrupt and no longer protect and serve the citizens?

    • merridee

      It is now a police state. My town has a lot of police shootings and the drunk and mentally ill are targets. One victim with a history of depression was shot in the course of a ‘welfare’ check. The dispatcher failed to notify the police the person was also deaf and mute. That was the day I became unwilling to call the police in my town.

      • Maggie

        Merridee, that is absolutely apalling and heartbreaking! I shudder to think of what happened. Probably something like this: the police received no answer after knocking,then just broke in (because someone was worried that the individual had not been seen in a while)….confronted them inside their OWN HOME….said “Dont’ move!”….and since the person could not hear them, they did not obey the command and were shot and killed.

        Paulie’s story is also appalling and heartbreaking, and I still can’t believe that this officer got away with what he did. I just signed a petition that’t going around from his roommates (Nathan and Amelia)on Change.Org. Hopefully, it will make a difference!

  • Karyn Chacon

    I am a neighbor of this family and I want to applaud them for how they handled this situation. They were respectful to the police, Paulie’s family and the community by not getting out there and feeding the drama and now they are making their voices heard with dignity. To the O’Malley family healing and peace as they work through this tragedy with their family. Peace.

    • Heidi

      I am also a neighbor of the O’Malleys. I don’t know them well, but we are friendly and occasionally have neighborly chats. Megan and Kevin, if you are reading these comments, I applaud you both for finally speaking out. Love, peace and respect to you both.

  • angela

    Thanks to Bill Lueders for this great piece, and for all of his very important coverage and analysis of the MPD over the years. I am also now afraid to call 911, as are other people I know, and was utterly horrified by what happened, and the circling of the wagons which occurred afterward (though I understand now why that happens.) I’m also really impressed by the O’Malley family and their willingness to speak the truth, which can’t be easy.

    • laura

      William Jackson, I wish your sensible sounding comment held more water but unfortunately, Sabrina’s is closer to the truth. I would really like to know what is causing this nation-wide deterioration of the police from “protect and serve” to “harass and kill”. It can’t be just a coincidence. A real investigative reporter needs to look into this – it could be a huge story. Finding a real investigative reporter, however, might be a challenge. Signing the petition will help get the cop fired, but it won’t solve the real problem. Chief Wray is ready to throw the cop under the bus anyway so he (Chief) doesn’t look bad, but it’s the law that needs to be re-written.

  • Dan Roberts

    The thing is this. Drunk stumbling kids exist every frigging friday and saturday night down on state street. If police started shooting every time a drunken kid threw a punch stumbled toward or even struggled with them the death toll would be staggering. Steps that are less severe than shooting to kill should be exhausted before that step is taken. I can see no such progression taken in this instance. Nor do i see the proper concern exhibited for the bystanders observing the incident. The police officer is a public SERVANT. And as such has to take into consideration the safety of the public they serve and PROTECT. If this cop BELIEVES his life to be in danger or not it is hard to see how it was given the testimony released to see how that could be the case. It used to be the standard for a cop to start shooting was seeing or at least thinking they saw a weapon in the hand of a suspect. Now I guess that standard is “feeling”. How far does this standard go? I “felt” I MIGHT be in danger when I arrived because it was called as a break in and he MIGHT have a weapon so i started shooting cause I thought They MIGHT be the suspect? So oooops sorry? That is why the standard used to be stricter. Some evidence was needed besides drunken stumbling. The concern here is for a slipping standard that endangers the public the police are supposed to serve.

  • William Jackson

    Sabrina, discussions about these incidents are immediately compromised when someone posts that kind of generalization. There are several hundred thousand officers in this country. Dismissing them all as corrupt is senseless.

    • George O’Connor

      Agreed. I believe the good cops want the bad cops gone too. I am not anti-police just anti-corruption. I do think that if a grown man (30 years old) gets wasted drunk, becomes combative with his neighbor at 2 in the morning, and even combative with a police officer who has his gun drawn should bear serious responsibility for the incident. Maybe you shouldn’t get drunk and be an aggressive @$$. Yet I want to be clear, I don’t condone the use of excessive force at all.

      • laura

        George, no maybe about it but it happens. You are not clear at all that you don’t condone the use of excessive force. Sounds like you are making excuses for it. I saw a video of this cop and he seems like a really good guy, although he may not have been getting enough sleep. I wanted to give him the benefit of the doubt and am sorry to say I cannot. Three shots (not one) was the final straw.

  • Chris

    Disturbing article, tragic chain of events, and obviously unneeded use of lethal force, and I’m basing that on the story related by Mr. O’Malley, the level of blood/alcohol, and the fact that the gun was drawn as the first choice of action by the responding officer. Why was lethal weaponry the first choice, what ever happened to using your brain first, and non-lethal means second?

    When ever I read stories about questionable police use of lethal force against citizens I am very cynical that the true facts will ever come out. I am uncomfortable with the very premise that internal investigations are unbiased, can’t be influenced, and evidence lost, or manipulated.

    Even the DA’s office is too cozy of a relationship to trust with any/all of these type of situations for any grown up adult to feel comfortable with.

    Truly enlightend civilised society would create, proven impartial and nuetral, investigative teams, commissions, systems, etc that would have jurisdiction on all officer involved shootings.

    Anything short of that, I will always entertain questions and have my doubts on the vialbility of the facts coming to light.

    • George O’Connor

      Maybe some sort of “Citizens Court” where civilians from the district could sit on a panel like a jury and decide if there is enough merit to have a full blown investigation.

  • JOhn

    When Police are allowed to investigate themselves the conclusion is obvious.”We have investigated ourselves and we find that we are not guilty”There is no justice here!We need a private outside source to do the investigation.

    • George O’Connor

      I agree completely. Imagine if the police allowed private citizens to investigate themselves for crimes and then dismiss the charges against themselves. Ridiculous!!

    • laura

      Also, look at the law itself: if he “feels” he is in danger, he can shoot – well, now who can dispute how he feels? Does anyone really think that law was well written? How about something about reasonable likelihood?

  • Diane

    My question in this case as well as many of the gun laws discussions. Whatever happend to the “stun gun”? wouldn’t this disable the person but not kill them? Same as the debate of allowing teachers to have guns. In my opinion.. the children can get traumatized from the act of shooting, but more so of the site of the blood and unknown. I do not know how far it can travel but feel this should be utilized in many cases. I would like to hear from others on the debate of guns vs stun guns.

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  • Jenni

    My kung fu instructor tells me that if I can’t move out of the way of a drunk who wants to fight me…that I deserve to get my ass kicked. This policeman has CERTAINLY had more combat training than I have, and there are so many ways he could have gotten the suspect onto the ground and handcuffed if necessary. If this guy doesn’t recognize his own house, how do you think his attempt to beat up a cop is going to go? Let alone grab the officer’s gun…which he had raised the whole time, apparently.

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  • D K

    This is becomming more and more common. It’s to bad they get away with it, just goes to show what kind of state we are becoming. These officers don’t care about anything or anybody anymore. I wouldn’t give two cents for any of them. In our county, Marinette County, there were a couple people shot, the stories always come out they shot themselves or they were armed. The thing is they investigate their own and why would they take the story of a bystander in some cases as to what really happened. I’ve seen harassment of people driving through town that are stopped and searched for no reason, belongings are thrown out of the vehicles and dogs are in the vehicles and scratching the paint and nothing is found. They do what they want, to much power for these useless wonders. And if you report them, u have to watch your back. There is a judicial commission that you can turn them into over in Madison, they will review all the paperwork, etc and then tell you they didn’t find anything wrong with what the officers did, same goes for reporting judges and DA’s to them. They are a private group not paid by any government agency they told me and they do as they please. They also told me they don’t have anyone over them so you can’t even report them to anyone. They are probably a group of corrupt use to be cops, lawyers and judges. I for one am fed up with all the corruption that goes on all over the country with this type of thing.

  • D K

    So I guess anyone that sees this officer should expect that their lives will be in danger when he approaches because he has been known to shoot another person that was unarmed with no consequence. Don’t most people who shoot someone else have to go through court, real court in order to be deemed guilty or not guilty? This officer gets to go scott free after his superiors took a look at what happened, what is up with that. Oh yes, they are above the law.

    • laura

      DK, that seems like a very good point and perhaps the law should be rewritten to put it into effect. Obviously, it isn’t just this officer you would (and do) need to fear as the Police Chief exonerated him and most likely has exonerated every police shooting there has ever been. Any investigative reporter want to check into that? It’s very unfortunate when people feel the need to turn to federal police (is that even Constitutional?) for justice. Would prefer to support the local police, but unfortunately, all across this nation, they have become out of control. Don’t know why.