A Madison police officer will face no criminal charges after fatally shooting a man who had mistakenly entered the wrong residence, struggled with the homeowner, then charged at the officer and reached toward his gun, Dane County District Attorney Ismael Ozanne said Thursday.

Ozanne said Paul Heenan's blood alcohol level was 0.208 percent, or more than twice the state's legal limit for drivers, when he was shot three times in the upper torso by Officer Stephen Heimsness on Nov. 9 in the 500 block of South Baldwin Street on Madison's Near East Side.

The shots were fired just before 2:50 a.m., less than three minutes after officers were dispatched to a possible burglary in progress, Ozanne said in a statement.

He said Heimsness "felt compelled to use deadly force when he believed he was going to be disarmed by a suspect from a potential burglary" after Heenan came at him rapidly, grabbed his outstretched left hand with one hand, and reached across his body toward his gun with the other.

"Obviously we're happy" with the district attorney's opinion, said Officer Dan Frei, president of the Madison Professional Police Officers Association, adding, "I don't know that any police officer, and certainly not Steve, wants to be in the situation where they're forced to take a life."

Heimsness could still face disciplinary action by the police department.

The department had no comment on the district attorney's statement pending the results of its own investigation, expected by the end of next week, said spokesman Officer Howard Payne.

Heimsness remains on paid leave. Officer Stacy Troumbly, who arrived at the scene shortly after Heimsness, has returned to work, Frei said.

Attorney Jeff Scott Olson, who is representing Heenan's family, said that while he expected Ozanne's conclusion, he disagrees with it.

"I believe it was unjustified," Olson said of the shooting. He maintains Heimsness could have used other tactics against Heenan, 30, a local musician who "weighed 150 pounds and never hurt a fly in his life," after the two were separated by about 5 to 6 feet after the physical confrontation.

Ozanne said that some distance or separation does not mean that a perceived threat had ended.

Olson said he is waiting to review police reports, including statements by homeowner Kevin O'Malley, before advising the family on whether to pursue a civil suit.

A struggle, then shots

Police Chief Noble Wray has said that O'Malley's wife, Megan, called 911 and reported that she could hear someone inside their house. She said that the couple's four children were in the home and that her husband had gone to investigate.

According to Ozanne's statement, Kevin O'Malley said he saw a man at his open front door and went to confront him, then recognized him as a neighbor he had met a week earlier. O'Malley said he then attempted to locate his keys, which he believed Heenan had used to open the front door.

Wray has said Heenan had used a key the O'Malleys left in the door to enter their home.

According to Ozanne's statement:

O'Malley's wife yelled down to O'Malley to ask if she should call 911, and O'Malley yelled back "no."

O'Malley believed Heenan was intoxicated and tried to take Heenan to his nearby residence, but Heenan was not cooperating.

He asked Heenan if he had been at the bar, and Heenan asked why. When O'Malley told Heenan that he had entered his home and O'Malley could have called the police, Heenan replied "OK, you wanna get weird?" Heenan then came at him and grabbed his arms in an aggressive manner.

As the two struggled, O'Malley said he was thinking that things had turned ugly and he was going to have to call for help and was wondering how he was going to get out of the situation when he saw Heimsness with his gun drawn.

O'Malley said Heimsness yelled loudly "get down, get down!" He said Heenan then went at Heimsness, and the two struggled, then briefly separated, which is when Heimsness fired as Troumbly was arriving.

Separation of 5-6 feet

O'Malley estimated Heenan was about 5 to 6 feet away from Heimsness when he fired, a distance consistent with gunshot residue findings by the State Crime Lab, which placed the gun 24 to 42 inches from Heenan when it was fired, taking into account the length of Heimsness' arm and the gun barrel.

In a subsequent statement, O'Malley minimized whether he felt threatened by Heenan's physical engagement with him, but O'Malley did not rescind his description of his physical encounter with Heenan or Heenan's physical encounter with Heimsness, Ozanne said.

Under Wisconsin law, any person may use deadly force to respond to a genuine fear of deadly force from another person, he said.

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