The owner of a home mistakenly entered by an intoxicated neighbor who was shot and killed by a Madison police officer said he tried repeatedly to inform the officer that the intruder was someone he knew.
"I remember yelling, 'He's a neighbor! He's a neighbor!'" Kevin O'Malley said in his first interview since the incident outside his Near East Side home in the early morning hours of Nov. 9. "It was the type of yelling you would do if something was going horribly wrong."
Authorities have said the responding officer, Stephen Heimsness, fatally shot Paul Heenan three times in the upper torso after the unarmed Heenan charged at him, grabbed his arm and reached for his gun.
Dane County District Attorney Ismael Ozanne absolved police of criminal liability, affirming that Heimsness was justified in using deadly force because he believed Heenan was trying to take his gun.
Heimsness could yet face discipline; Madison Police Chief Noble Wray said he expects to release the results of the department's internal probe this week. Jeff Scott Olson, a lawyer for Heenan's family, is weighing whether to file a civil suit.
Accounts of the shooting released by the Dane County District Attorney's Office make no mention of O'Malley's efforts to inform Heimsness that the intruder was a neighbor. Authorities have said that Heimsness believed he was facing "a suspect from a potential burglary."
In an interview, Ozanne 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 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 sometimes experience such "auditory exclusion."
But even if Heimsness knew Heenan was a neighbor, it wouldn't have made a difference, Frei said, noting that neighbors have robbed and killed other neighbors.
"We still have to respond to what we're seeing," Frei said, adding Heimsness responded to the call of a reported burglary the way officers across the country are trained to respond.
Heimsness did not respond to an email request for comment forwarded to him by a police spokesman. Officer Howard Payne said Wray was "trying to be fair and equitable" to the department's review process and would not comment on O'Malley's version of events.
O'Malley's account differs
O'Malley, who previously wouldn't talk to journalists about the shooting, agreed after consultation with his attorney, Hal Harlowe, to tell his story to the Wisconsin Center for Investigative Journalism.
He said he did so because parts of the accounts given by police and the district attorney do not square with what he witnessed. O'Malley stressed he respects law enforcement and is not taking sides. But he said he saw no need for Heimsness to open fire, and he worries that Ozanne's decision not to pursue criminal charges "may be setting a standard of police conduct that will result in more unneeded use of force and more danger to the public."
Frei said Heimsness did what he had to do to prevent Heenan from taking his gun, and possibly using it to kill him or others.
Ozanne said the shots were fired about a minute after Heimsness approached O'Malley and Heenan, who were struggling on the sidewalk. Heimsness had his gun drawn and he loudly yelled "get down!" Heenan instead went at Heimsness, who said Heenan reached for his gun as they struggled.
Heimsness has been on paid administrative leave since the shooting. A 15-year department veteran, Heimsness was 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."
'I could not believe what I saw'
For O'Malley, the incident began when, after hearing sounds coming from the first floor of his home at 513 S. Baldwin St., he found a man standing in his doorway, apparently very 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 0.208 percent, more than twice the legal limit for driving.
O'Malley said Heenan, who had recently moved into a similar-looking 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. O'Malley's wife, Megan, stayed upstairs and called 911, though her husband answered "no" when asked if she should, the couple said.
Heenan allowed himself to be led 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 but that he never felt seriously threatened.
At this point, when the two neighbors were on the sidewalk between their two homes, 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 that could have occurred.
Ozanne's office said last month that O'Malley told police Heenan and the officer "separated very briefly" after a physical struggle, to a distance of five to six feet, at which point Heimsness fired his weapon.
O'Malley, however, said Heenan did not make any sort of move toward Heimsness as the shots were fired.
"When he was shot his hands were at his chest, in a defensive position," O'Malley said.
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. O'Malley said they stopped when he explained that the intruder was a neighbor who had entered the wrong house.
Public should 'judge for itself'
Harlowe, a former Dane County district attorney, said he doesn't disagree with Ozanne's decision not to bring criminal charges against Heimsness, given the standard of proof a successful prosecution would require. But he believes the issues being raised by his client merit public attention.
"We simply cannot become inured to the idea of unarmed people being shot without considerable public scrutiny," he said, adding 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."
O'Malley, 39, a native of Illinois, works in communications with Great Lakes Higher Education Guaranty Corp. Megan teaches at Madison Waldorf School. They said they love their neighborhood, but Megan wonders if it will be the same after the shooting.
"I feel terrible that I called the police," she said. "I wouldn't call them again."
Correction: In a November press conference regarding the Nov. 9 fatal shooting by police of Paul Heenan, Madison Police Chief Noble Wray said police were investigating an account of the shooting in which someone attempted to inform responding officers that Heenan was a neighbor. "A statement similar to that, I have heard, is part of the investigation," Wray said Nov. 12. A story on the front page of Sunday’s State Journal incorrectly described the information police had provided on that issue.
— State Journal reporter Sandy Cullen contributed to this report.
The nonprofit Wisconsin Center for Investigative Journalism (WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication.