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 a 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.”
Timeline of events
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.