NOTE: The following report initially stated 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 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 Monday.

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.”

Officer Steven Heimsness and Paul Heenan

Officer Steven Heimsness and Paul Heenan

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.

Officer Howard Payne, a police spokesman, said Chief 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, 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.