Note: This story was corrected at 1 p.m. on Jan. 7. The correction is appended.
By Bill Lueders
Wisconsin Center for Investigative Journalism
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.
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.
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.
“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.
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