UNITED STATES DISTRICT COURT

Western District of Wisconsin
THE ESTATE OF PAUL HEENAN, by Personal Representative John Heenan, Plaintiff, v. Case No.

The CITY OF MADISON, The City of Madison Police Department CHIEF OF POLICE NOBLE WRAY, and MADISON POLICE OFFICER STEVEN HEIMSNESS in their individual capacities, Defendants.

Complaint

THE JEFF SCOTT OLSON LAW FIRM, S.C. JEFF SCOTT OLSON State Bar No. 1016284 ANDREA J. FARRELL State Bar No. 1064773 131 W. Wilson St., Suite 1200 Madison, WI 53703 Phone: (608) 283-6001 Facsimile: (608) 283-0945 E-mail: jsolson@scofflaw.com

Table of Contents Table of Contents...........................................................................................................................i I. NATURE OF ACTION............................................................................................................1 II. JURISDICTION AND VENUE..............................................................................................1 A. Jurisdiction............................................................................................................................1 B. Venue......................................................................................................................................1 III. PARTIES..................................................................................................................................2 A. Plaintiff..................................................................................................................................2 B. Defendants.............................................................................................................................2 IV. ALLEGATIONS OF FACT AS TO ALL CAUSES OF ACTION ....................................3 2001 – Officer Heimsness, within 12 seconds of giving commands, opens fire on teenagers in parking ramp who had been driving fast, playing loud music...............3 Officer Heimsness claims “tunnel vision” and claims he could not move despite multiple eye-witnesses seeing him moving before firing...........................................6 MPD concludes that Officer Heimsness placed himself in a position that caused the perception of threat, acted unreasonably, and opened fire in the vicinity of innocent bystanders..........................................................................................................9 2002 - 2006............................................................................................................................12 2006 – Heimsness relentlessly and mercilessly beats a 150 pound 23-year-old at a State Street Tavern, in a Rodney King-esque scene.......................................................13 2008 - 2012............................................................................................................................17 2012 – Officer Heimsness opens fire and murders a 30-year-old, 150 lb, unarmed peaceful musician on the sidewalk...................................................................................22 2:47:09 a.m. – 2:48:43 a.m. (1 minute, 34 seconds)..........................................................28 Officer Heimsness travels to scene of possible breaking and entering in stealth mode.................................................................................................................................28 2:48:43 a.m. – 2:49:39 a.m. (56 seconds)............................................................................29 Officer Heimsness arrives, parks, walks across the street, and sees the homeowner and Mr. Heenan........................................................................................29 i

2:49:39 a.m. – 2:49:54 (15 seconds)....................................................................................31 Officer Heimsness walks toward Mr. O’Malley and Mr. Heenan, yells “get down!” twice, and then shoots and kills Mr. Heenan...............................................31 The MPD Investigation.....................................................................................................43 V. VIOLATIONS OF LAW.......................................................................................................46 A. Liability of Heimsness for Excessive Force..............................................................46 B. The City of Madison’s and Chief Wray’s Liability for Deliberate Indifference........47 C. Municipal Liability: Ratification of Heimsness’s Conduct is Proof that the City has an Unconstitutional Deadly Force Policy. ..........................................................................50 D. Municipal Liability: Ratification of Heimsness’s Conduct Constituting Official Policy.........................................................................................................................................51 VI. DAMAGES and EQUITY....................................................................................................51 A. Damages.............................................................................................................................51 VII. CONDITIONS PRECEDENT.............................................................................................52 VIII. DEMAND FOR JURY TRIAL...........................................................................................52 IX. PRAYER FOR RELIEF..........................................................................................................52

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I.

NATURE OF ACTION

The Estate of Paul Heenan brings this civil action under Title 42 U.S.C. §1983 against The City of Madison and Madison Police Officer Steven Heimsness in order to obtain damages and other appropriate relief for the death of Paul Heenan arising from the deprivation of rights secured to him by the Fourth and Fourteenth Amendments to the Constitution of the United States.

II. JURISDICTION AND VENUE A. Jurisdiction

201. This Court has jurisdiction over this action pursuant to 28 U.S.C. §1331 (federal question jurisdiction) and 28 U.S.C. § 1343(a)(3) (42 U.S.C. § 1983 jurisdiction).

B.

Venue

202. The Western District of Wisconsin is the proper venue for this action because the Plaintiff's claims arose within the geographical boundaries of the Western District of Wisconsin within the meaning of 28 U.S.C. § 1391(b).

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III. PARTIES A. Plaintiff

301. The Plaintiff, the Estate of Paul Heenan, is a legal entity with the capacity to sue and by sued, and has a Personal Representative, John Heenan, father of deceased, Paul Heenan.

B. 301.

Defendants The Defendant City of Madison is a Wisconsin unit of local government,

with a principal address of 210 Martin Luther King, Jr. Blvd., Madison, with the capacity to sue and be sued in this Court. 302. The Defendant City of Madison Police Department Chief of Police Noble

Wray is an adult resident of the State of Wisconsin, with the capacity to sue and be sued. At all times pertinent, Chief Wray was employed by the Madison Police Department and acting within his scope of employment as official policy maker for the City of Madison and under the color of state law.

303.

Defendant Officer Steven Heimsness is an adult resident of the State of

Wisconsin, with the capacity to sue and be sued. At all times pertinent, Officer Heimsness was employed by the Madison Police Department and acting within his scope of employment and under the color of state law.

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IV. ALLEGATIONS OF FACT AS TO ALL CAUSES OF ACTION 4001. The Madison Police Department has employed Officer Heimsness as a police officer since approximately September of 1997. 4002. The Madison Police Department has had four officers die in the line of duty since its establishment, and has not had any officers die in the line of duty since 1932. 4003. The Madison Police Department is currently led by Chief Noble Wray,

who is an official policy maker for the City of Madison with regard to the City’s police force. 4004. Officer Heimsness has had an alarming number of citizen complaints

made against him throughout his career with the Madison Police Department. On information and belief, the Madison Police Department has received more complaints against Officer Heimsness than its other officers. 4005. Following an incident on April 2, 1999, an allegation of “Excessive Use of Force” was made against Officer Heimsness; however, the MPD issued “No Finding.” 4006. On information and belief, “No Finding” indicates that the investigation into the citizen’s allegation was never completed by the MPD. 4007. Following an incident on August 31, 1999, an allegation of “Excessive Use of Force” was made against Officer Heimsness; however, the MPD “Exonerated” Officer Heimsness. Nonetheless, the MPD “documented counseling” of Officer Heimsness based on this allegation of “Excessive Use of Force.”

2001 – Officer Heimsness, within 12 seconds of giving commands, opens fire on teenagers in parking ramp who had been driving fast, playing loud music.

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4008. On June 27, 2001, at approximately 11:14 p.m., Officer Heimsness was on bicycle patrol in the Lake Street parking ramp. He and his coworker, Officer Gouran, heard a car playing very loud music and driving fast. The officers decided to approach this vehicle and at least give the driver a warning and possibly check for controlled substances or liquor. 4009. The vehicle contained four white males and one white female, all between the ages of 16 and 21. 4010. None of the five possessed a weapon. 4011. When Officer Heimsness tried to talk to the 18-year-old driver at the driver’s side window, the driver ignored Officer Heimsness. 4012. Seconds later, still at 11:14 p.m., Officer Heimsness advised dispatch that he had a vehicle in the Lake Street ramp at gunpoint. 4013. Seconds later, Officer Heimsness advised that shots had been fired and that he had “shot out the front tires of a green vehicle, possibly a Pontiac,” that had been attempting to leave the Lake Street ramp at the time. 4014. In fact, the whole incident, from the point in time Officer Heimsness tried to speak with the driver of the vehicle to the time he fired his gun at the vehicle, lasted approximately 10-12 seconds. 4015. Later, the 18-year-old driver, Jeffrey, explained that, at first, he thought Officer Heimsness was a security guard and didn’t realize he was a police officer. Jeffrey explained that he had been “backing up and all of a sudden this officer pointed a gun at him through the windshield.” He stated, “I was confused. I didn’t know what to do.” He stated the officer was on the driver side pointing a gun at him. He said that he was scared because this officer was stating, “I’ll blow your fucking brains out.” He stated he continued to back up and shots were fired and he didn’t know what he had 4

done or what had happened. He stated he panicked, he “thought he was going to be shot.” 4016. Chad, who was 20 years old at the time, and was a passenger in the

vehicle, reported to the MPD, “I think he said he would shoot Jeff in the face or something.” 4001. Caine, who was a 16-year-old passenger in the car at that time, reported to the MPD that Officer Heimsness said, “Stop or I’ll shoot your face off.” 4002. An unrelated eye witness, Rachel, reported to the MPD that she heard Officer Heimsness say, “I’ll shoot you in the fucking face, if you don’t stop.” 4003. JBM security guard, Lindsey Ace, reported to the MPD that she witnessed Officer Heimsness with his gun drawn say something similar to, “if you don’t stop the car I’m going to shoot you in the face,” and then she saw Officer Heimsness take a shot. Ace reported that she was shocked and startled, as the bullet went in the direction of her partner, Rachel Furman. 4004. Officer Heimsness reported to the MPD that he took a clean shot, and no one was in the line of fire. 4005. Another JBM security guard, Rachel Furman, reported to the MPD that she witnessed Officer Heimsness draw his gun and say, “stop or I’ll shoot you in the face,” and “come on out or I’ll shoot you in the face.” Furman reported that after Officer Heimsness fired the first shot, she was quite fearful as the shot appeared to be somewhat in her direction. 4006. Officer Heimsness even reported that he pointed his gun at the 18-yearold driver of the vehicle and yelled at him, “I’ll shoot you in the face if you try to run me over.”

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4007. Officer Gouran accompanied Officer Heimsness throughout this entire interaction, and Officer Gouran also possessed a gun. However, Officer Gouran did not discharge his weapon at any point during this interaction. 4008. In fact, Officer Gouran alone chased the vehicle on foot down the ramp after Officer Heimsness opened fire on the vehicle, and even then Officer Gouran never opened fire. 4009. Officer Heimsness reported that he did not chase the vehicle with Officer Gouran because Officer Heimsness thought “maybe he should run down to where the vehicle was, however decided to make the radio transmission at the rear of the ramp first. He also was thinking he probably should not leave the crime scene or the bicycles at that time.” 4010. “Officer Heimsness stated he fired a round at the suspect vehicle because he felt the suspect was going to run him over and also fired the second shot seconds later because he thought other pedestrians besides himself would be in danger due to the total disregard of the driver for the safety of himself or any others nearby.” 4011. However, the witnesses uniformly reported that the suspect vehicle filled with teenagers was driving slowly enough that the officers could walk briskly and keep pace with the vehicle.

Officer Heimsness claims “tunnel vision” and claims he could not move despite multiple eyewitnesses seeing him moving before firing. 4012. The MPD, then under the management of Chief Richard K. Williams, investigated Officer Heimsness’s use of force in this situation. 4013. During the investigation, the MPD asked Officer Heimsness “about his understanding of MPD Deadly Force policy and its application related to imminent 6

threat,” and found that “Heimsness struggled with a definition of imminent…he ended saying he did not know.” 4014. The MPD investigation report said that Officer Heimsness “did acknowledge that he was not in imminent danger in regards to the second shot that was fired.” 4015. For the first shot, Officer Heimsness stated “that he saw no options

because he froze and could not move,” but he “acknowledged that he could have not taken the second shot.” 4016. Officer Heimsness reported that “he began getting tunnel vision.” 4017. The MPD report reads: He stated he very clearly saw the tread on the tires and the tire looked very wide to him at the time. He stated he suddenly saw the tire start rolling forward. He stated he still had his gun pointed at the driver at this time, however as the tires pulled forward he remembers thinking he had to stop the car and his life was in danger and the subject was going to run him over. He stated he remembers thinking at the time ‘this is a deadly force situation.’ He also thought at the time he did not want to shoot the driver, however due to the other passengers in the vehicle and Officer Gouran nearby. He stated at this time he felt time was frozen and he felt he couldn’t move, not that he was afraid but he felt stuck and was not able to move at that particular time. 4018. When asked during the MPD investigation why Officer Heimsness “did not move as the driver reached to shift and then turn the tires, Heimsness state[d] that he could not move and that he ‘froze.’” 4019. When Officer Heimsness was asked, as part of the investigation, “Would it have been possible to get to like this, there's cars here as you mentioned before, to get behind one of these other cars and use that as like a cover type situation? Had you considered anything like that?” Officer Heimsness answered, “It never occurred to me

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to do that. I mean, I would have backed up and probably crashed into cars parked there, so I don't, it didn't occur to me.” 4020. But Security Guard Furman reported that Officer Heimsness did have enough time to move to a different position, that he purposely put himself in front of the vehicle so that the vehicle would not be able to move, and that Officer Heimsness would only have had to move three feet to get out of the way. 4021. Security Guard Ace also reported that “it appeared that [Officer Heimsness] had enough time to move out of the way,” and that he would have had to move “about three feet.” She reported that Officer Heimsness “was at the front left corner of the car as it was and he was like, he was at an angle like off the side of the bumper and that’s when he, he was aiming his gun at the windshield and as the car started pulling forward, he stepped to the side.” 4022. Security Guard Ace reported that Officer Heimsness stepped first and then shot. 4023. Security Guard Ace reiterated that she did not think Officer Heimsness was in danger of being hit by the car once he stepped out of the way, but in any event, “he had enough time to get out of the way.” 4024. The MPD report notes that Officer Heimsness’s claim that he could not move “conflicts with the witness accounts of Ballweg, Furman and Ace who all indicate that Heimsness moved out of the way just prior to the first shot…Based on the fact that Heimsness is able to move to a safe position after taking the shot, reassessing, and then moving, that would appear to be true.” 4025. The MPD report concludes: Based on the totality of the circumstances in the case it appears that Heimsness employed poor judgment and tactical decision making as he moves relative to the actions of the vehicle. Because of this he places 8

himself in a position that he eventually believes poses an imminent threat. Further examination of the facts show that that reasoning is flawed and does not meet the standard of what a reasonable officer would believe, since he is able to move back through the eventual path that the vehicle would travel allowing the vehicle to pass his position. He states he shoots the tire to stop the vehicle but later acknowledges that through his experience one flat tire will not stop a vehicle. MPD concludes that Officer Heimsness placed himself in a position that caused the perception of threat, acted unreasonably, and opened fire in the vicinity of innocent bystanders. 4026. On July 12, 2001, the MPD had completed its investigation into Officer Heimsness’s shooting and “found policy violations in regards to both shots that were fired.” 4027. The Madison Police Department concluded that: Based on the totality of the circumstances in the case it appears that Heimsness did not employ judgment and tactical decision-making consistent with Department training and standards. Because of this he placed himself in a position that he eventually believed posed an imminent threat. Further examination of the facts shows that the officer’s actions do not meet the standard of what a reasonable officer would believe regarding the imminent nature of the threat. This therefore violates section 4-900.2(b) MPD Policy. It is clear that the vehicle had passed Officer Heimsness when the second shot was fired at the passenger front tire. He acknowledged that he believed the vehicle was intending to flee. He stated that he believed it was necessary to stop the suspect vehicle to protect pedestrians and vehicles in the area. The facts show no imminent threat of death or great bodily harm to officers of others, and section 4-900.2(C) MPD Policy does not apply in this case. This shot was a violation of 4-900.2(c) and 4-900.4 MPD Policy. 4028. MPD explained to Officer Heimsness: [Y]ou employed poor judgment and tactical decision-making as you moved relative to the actions of the vehicle. Because of this you placed yourself in a position that you eventually believed posed an imminent threat. Further examination of the facts shows that the decision to shoot is 9

flawed and does not meet the standard of being reasonable. Witness statements indicate that you had ample time to exercise an alternative, which is to move away from the vehicle to a tactically sound position. In your statement you indicated you froze and saw no alternative, but describe your eventual movement after the shot, in front of and across the path of the vehicle. The second shot is fired after the vehicle has passed you and poses no imminent threat to you or anyone in the immediate area. This shot is taken at a vehicle that is receding and turning, with the closest persons as the passengers in the vehicle. During the time that both shots were fired there were other pedestrians in the ramp in the vicinity of the shots. The bullets were not contained in the tires or wheels. Both rounds penetrated and were not recovered. The bullet casings were recovered in the ramp. 4029. On July 13, 2001, Officer Heimsness wrote to the MPD stating: [In] the midst of the incident, due to the stress of the threat to my life, I developed the physiological effect of tunnel vision. I had focused my attention on the vehicle, the threat to me and the public, and did not see other pedestrians in the vicinity of the shots. To my knowledge, the only person on foot on that level of the ramp other than me was P.O. Gouran and I directed my fire away from him as much as possible. If there were pedestrians in the area of the shots other than P.O. Gouran, I was unable to see them due to the effect of tunnel vision, which was beyond my control. It was my belief a shot into a tire and wheel would most likely be contained within the tire casing if the shot entered through the treadface and struck the area between the outside and inside rims of the wheel… Tire ballistic properties of tires and metal alloy rims were not part of my training; I acknowledge shot selection into the tires was a calculated risk on my part. I learned the bullets were not stopped or contained within the tires through your notice of July 12, 2001. 4030. On July 20, 2001, Chief Williams suspended Officer Heimsness for 15 days without pay; five days were served, and ten days were held in abeyance. 4031. Then Chief Williams issued an inter-departmental memo to Officer Heimsness explaining that as an additional part of his discipline, “and because we feel you would benefit from additional training you are directed to report to Sergeant Thomas Snyder of the Personnel and Training Team on Thursday July 26, 2001 at 7:45 10

am at the MATC Commercial Ave. range for remedial training regarding tactics, policy and deadly force decision making. The duration and content of the training is subject to the discretion of Sgt. Snyder and the Training Team.” 4032. Additionally, then Captain Charles E. Cole, wrote Officer Heimsness stating, “If it is the case that you are experiencing personal problems, I strongly encourage you to contact the EAP [Employee Assistance Program]” for assistance, and offering to help Officer Heimsness make the initial contact. 4033. Additionally, then Chief Williams removed Officer Heimsness from participation in the Special Events Team for a minimum period of one year, and advised Officer Heimsness “that any future similar violations will likely result in more significant discipline, up to and including termination.” 4034. Contrary to the MPD’s findings, Officer Heimsness told the MPD that “he felt he was justified in using deadly force” in the Lake Street ramp incident. 4035. Officer Heimsness blamed the teenager for his actions, stating, “I knew as soon as this happened it was going to be a difficult situation that I put myself in, that the guy put me in.” 4036. Unfortunately, Chief Williams’s warning that future violations of the use of force policy by Heimsness would result in more significant discipline, up to and including termination, was not carried out, which ultimately lead to the death of Paul Heenan. 4037. On information and belief, Officer Heimsness was not further screened as to whether he was fit for duty, despite experiencing the “psychological effect of tunnel vision” and “freezing” in response to a minor event, despite having such a misconception of events that his version was contrary to all of the eyewitnesses’, despite

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admittedly shooting a weapon when he was not in imminent danger, and despite admitting to taking risks and making decisions which were outside of his training.

2002 - 2006 4038. Following an incident that occurred on April 14, 2002, an allegation of “Overbearing, Oppressive, or Tyrannical Conduct” was made against Officer Heimsness; however, the MPD issued “No Finding.” 4039. Following an incident that occurred on July 26, 2003, an allegation of “Excessive Use of Force” was made against Officer Heimsness; however, the MPD issued, “No Finding.” 4040. Following an incident that occurred on November 5, 2003, an allegation relating to his “Response to Calls or Circumstances” was made against Officer Heimsness; however, the MPD “Exonerated” Officer Heimsness. 4041. In October of 2004, Chief Noble Wray became the new Chief of the Madison Police Department. 4042. At all times between October of 2004 and the present, Chief Wray has remained the Chief of Police. 4043. Following an incident that occurred on October 30, 2004, an allegation of “Excessive Use of Force” was made against Officer Heimsness; however, the MPD issued, “No Finding.” 4044. Quite contrary to the previous Chief Williams’s discipline of Officer Heimsness in 2001, on September 9, 2005, Chief Wray signed a commendation for Officer Heimsness’s shooting out a vehicle’s tires in a pursuit.

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4045. Following an incident that occurred on February 8, 2006, an allegation relating to “Performance of Duties” was made against Officer Heimsness; however, the MPD “Exonerated” Officer Heimsness.

2006 – Heimsness relentlessly and mercilessly beats a 150 pound 23-year-old at a State Street Tavern, in a Rodney Kingesque scene. 4046. On December 29, 2006, shortly before 2 a.m., Officer Heimsness and Officer Ursa were dispatched to State Street Brats to respond to a bar fight where one patron had hit another patron on the head with a glass. 4047. When the officers arrived, they saw a white male being told by several State Street Brat bouncers to sit down in a booth. 4048. Officer Heimsness chose to immediately put the white male in handcuffs, but because the man’s hand was bleeding, Officer Heimsness placed protective gloves on his own hands so that he would not come into contact with the man’s blood while handcuffing him. 4049. The white man then attempted to flee, but, since it was closing time, there were only employees remaining in the bar (about 8 regular employees and 5 bouncer/security employees), and, knowing that the doors were locked, Officer Heimsness called out, “You’re not going to get far that way.” 4050. Because the door was locked, Officer Heimsness immediately caught up to the man, grabbed him, and ordered him to get on the ground. 4051. Multiple bouncers offered to assist at this time, and Officer Urso was there as well, and the man was confined in a small area approximately 3 feet by 6 feet. 4052. Officer Ursa grabbed the man by his right hand and bicep, and both officers directed the man onto the floor in the confined area. 13

4053. Officer Heimsness reported that the man “continued to resist” when they ordered the man onto his stomach, and he did not turn over as directed. 4054. Officer Heimsness reports he then kicked the man several times in his stomach, which did prompt the man to turn onto his stomach in a prone position. 4055. Officer Ursa reported that he began “to kneel on [the man’s] right side which made it possible for [Officer Ursa] to get him to roll onto his stomach.” 4056. Officer Heimsness reported that he kicked the man a couple more times, while ordering him to place his hands behind his back. 4057. Officer Heimsness reported that he dragged the man out to the open bar area, causing his coat to be pulled over his head. 4058. Officer Heimsness reported that he delivered several knee strikes to the man, and that then the man said, “okay, okay,” and put his left hand out. 4059. Officer Heimsness reported that he then reached out to grasp onto the man’s hand, and his hand went underneath the man’s coat and he immediately felt that his coat was wet. 4060. Officer Heimsness reported that when he pulled back the man’s jacket, he saw an “area of blood all over the floor [and Officer Heimness’s] left hand was also covered with blood and that there was blood all over [the man’s] face and head.” 4061. The man’s blood was all over Officer Heimsness’s jacket sleeves, hands, and uniform pants. 4062. Officer Heimsness reported that he called Fire Rescue to respond because the man was bleeding profusely from the face. 4063. During Officer Heimsness’s arrest of the man, State Street Brat bartender, Elissa Parker, called 911, while hiding in the bathroom. 4064. Ms. Parker reported, “I think the police almost killed this guy, and I don’t think he deserved this.” She said, “They were kicking him in the head, and stomping on his face, and bending his neck over to the side, and he’s out now, and there’s blood 14

everywhere, and it was very Rodney King-esque.” Ms. Parker went on to state, “I know it’s the police, but this kid is messed up.” Ms. Parker reported, “He’s lying on the floor unconscious right now, and my boss won’t let me do anything because it’s the police. But, they were kicking him in the head over, and over, and over, and bending his head over to the side, and stomping on his head.” 4065. When the 911 operator asked, “So the kid that the police were beating up is not conscious,” Ms. Parker responded, “Not that I can see. He’s just lying on the floor motionless. And there’s blood everywhere.” Ms. Parker went on to say to the 911 operator, “It just seems very not right. I’ve seen kids being subdued; I’ve worked here for a long time. I’ve seen fights being broken up. This is not right.” 4066. After the arrest, the man was transported to Meriter Hospital by ambulance for treatment. 4067. The following day, on December 30, 2006, Ms. Parker, the employee who had called 911 from the bathroom, filed an excessive force complaint with the MPD, which started an investigation into Officer Heimsness’s use of force in the arrest. 4068. As part of this investigation, Officer Urso reported to the MPD that he did not see Officer Heimsness punch, kick, or knee strike the man, but stated, “I guess I wasn’t looking.” 4069. As part of this investigation, Officer Heimsness admitted that he kicked and kneed the man, but stated he was not aiming for the man’s head. Officer Heimsness denied punching the man. 4070. Max, another State Street Brats employee, reported to the MPD as part of this investigation: I was standing a couple of feet away watching. Once the man was on the ground, one cop was on his back attempting to restrain the man and had his right arm as the man was lying face down. Then the other cop who 15

was standing right next to me took a step towards the man and kicked the man extremely hard with the tip of his shoe to the top of the man’s head. The cop who kicked him [was] continually stepping away and stepping to fully kick the man on the top of the head repeatedly, between five and ten times. With each kick to the head, I could hear a loud thumping sound. Meanwhile, the other cop is still on top of the man holding his right arm while he’s barely squirming on the ground. The cop kicking him said give us your arm but he never, ever made an attempt to grab the arm, which was rested on the floor. After kicking the man, the same cop began taking full swings punching the man in the back of the head between three and five times but still made no attempt to actually grab the left arm. After punching the man, the same cop then got on his left knee and began swinging his other knee very hard into the man’s face. This occurred two to three times and the man was gushing blood from his face. After kneeing the man in the head, he took his knee and he put it on the back of his head and put almost all his weight on it and drove his face into the floor. At this point, the same cop finally grabbed his left arm and pulled it to the right arm restrained by the other cop so they could cuff him. 4071. Max reported to the MPD that the man was resisting arrest at first, but at the time he was being punched by Officer Heimsness on the floor, the man was just “lying there pretty much motionless.” 4072. Max also reported to the MPD that the man’s jacket was not pulled over his head during the beating. To the contrary, Max had a clear view of the man’s head the entire time Officer Heimsness was punching, kicking, and kneeing the man. 4073. Max told the MPD that someone covered the man’s head with the jacket afterwards, to keep the man from spitting blood. 4074. Adam, another State Street Brats employee, reported that the officers were telling the man to “stop resisting or we will break your arm.” He reported that Officer Heimsness “stomped” on the man’s head, approximately heel to ear contact, three to seven times, and that there was nothing covering his head. When asked if it looked like Officer Heimsness was aiming for the man’s head, Adam answered, “Yes, it was. It was 16

clear that he was intentionally stomping on his head with the back of his foot, with the bottom of his foot.” 4075. Despite these eye-witness reports, under the direction of Chief Noble Wray, the MPD concluded that, “For the most part, the officers' actions were reasonable and necessary,” and therefore, Officer Heimsness was not disciplined or counseled. 4076. The MPD’s official finding was, “Not Sustained.”

2008 - 2012 4077. Following an incident on February 22, 2008, an allegation was made that Officer Heimsness used “Insulting, Defamatory, or Obscene Language;” however, the MPD “Exonerated” Officer Heimsness. 4078. Following an incident on March 29, 2008, an allegation was made against Officer Heimsness regarding, “Excessive Use of Force;” however, the MPD issued “No Finding.” 4079. Between December 2008, and January 2009, while on duty, Officer Heimsness took Officer Shawn Kelly’s holstered, secured handgun and “field-stripped” the handgun, putting the weapon in pieces (frame, slide, barrel, spring, magazine, and chambered round), handling the handgun in an unapproved departmental manner and in an unsecure and unsafe storage method, in violation of MPD Rules 2-225, Firearms Safety, and which was then reported to Field Training Officer Rhonda Hennessey. Officer Heimsness placed his card next to the “field-stripped” handgun with a handwritten note on the back to the effect of “next time it’s mine – got it?” Officer Kelly asked FTO Hennessey if this behavior by Officer Heimsness was considered

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harassment, and Officer Kelly expressed concern and believed that Officer Heimsness’s behavior was an officer safety issue. 4080. Following an incident on February 15, 2009, an allegation was made against Officer Heimsness regarding “Excessive Use of Force;” however, the MPD issued “No Finding.” 4081. Following an incident on July 27, 2009, an allegation was made that Officer Heimsness used “Insulting, Defamatory, or Obscene Language.” 4082. That allegation was sustained by the MPD. 4083. However, the only action the MPD took was “Documented Counseling” to Officer Heimsness. 4084. Following an incident on August 10, 2010, an allegation was made against Officer Heimsness regarding “Performance of Duties;” however, the MPD “Exonerated” Officer Heimsness. 4085. On June 18, 2012, Chief Wray completed an Employee Recognition form to consider Officer Heimsness for a departmental award for using OC spray on an already decentralized suspect. 4086. During the MPD investigation into Officer Heimsness’s shooting of Paul Heenan, the MPD became aware of information that led the Department to commence three additional internal investigations into the conduct of Officer Heimsness. The incidents which gave rise to these investigations occurred prior to the Heenan shooting. 4087. Chief Wray deferred investigating these three incidents during the shooting investigation. 4088. On information and belief, the MPD had been made aware of at least some of these incidents prior to the Heenan shooting. 4089. For instance, on September 7, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “i decided to leave rather than beat the hell out of the guy”; “some people have 18

no idea how lucky they really are”; “otherwise, I might have blasted him”; and “i could have wrote that up real good.” 4090. On September 8, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “i should have blasted that guy with the knife through my window the other day. At least i would have got the weekend off”; “angry hippie”; “maybe I should go to days because this is killing me”; “I’m approaching Magyera levels of anger”; “no but nobody gives a damn”; “I’m at my wits end with these”; and “i left school worked for 10 years, went back to college, go [sic] this job and my income doubled..and I got benefits…and a gun…so that’s cool.” 4091. On September 9, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “i’m ready to go on a shooting spree up in dispatch”; “DUDE WTF”; “YES I AM GOING TO TEAR THIS BUTT OUT OF THIS”; “I better go in. it’s getting light out and all these people will soon be able to see the raging contempt on my face”; “i’m all out of MN nice”; and “I just got MN left.” 4092. On September 13, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “there should be a policy against children”; “i have a policy against children”; “i’m against them”; and “i prefer supermodels.” 4093. On September 14, 2012, while on duty, Officer Heimsness sent the following communication over his Mobile Data Computer to another Madison Police Officer: “i don’t know what’s worse the dumb drunks or the dumb dispatchers”; “jesus christ [sic]”; “wtf”; and “these morons.” 19

4094. On September 25, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “jesus [sic] I work with morons” and “CALL ME WHEN YOU KNOW SOMETHING MORAN [sic].” 4095. On October 2, 2012, while on duty, Officer Heimsness removed Officer Anderson’s rifle from the rack in the armory and placed it in a soft case, under other cases on a 6’4’’ shelf, handling the rifle in an unapproved departmental manner and causing a safety issue for Officer Anderson by not allowing Officer Anderson access to her rifle, in violation of MPD Rule 2-225, Firearms Safety. 4096. On October 4, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “jesus [sic], help me”; “i don’t think i can do this anymore”; “but days is even worse”; “and I’m unpromotable”; “next year: parking enforcement”; “hardcore”; and “NO PRISONERS.” 4097. On October 5, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “jesus [sic] i’m glad I took tomorrow off”; “i’m going to kill somebody. Dispatch, coworkers, who ever.” When the other officer responded to Officer Heimensess, “I’m a mandatory reporter,” Officer Heimsness responded: “then i’ll kill you first.” Officer Heimsness went on that day to send the following communication via his Mobile Data Computer: “i can’t handle this anymore” and “i’m applying at the water dept tomorrow.” 4098. On October 11, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “that

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dispatcher sounds pissed she has to do anything” and “maybe i should start doing a lot of traffic stops on parked cars.” 4099. On October 20, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “i love walking in and being the mean one.” 4100. On November 2, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer, asking if the involved officer had used the taser on someone: “Did you Zeus that guy?”; “why didn’t he punch him back?”; “COME ON MANUAL TASER”; “what ever happened to old fashioned pride in workmanship?”; and “pretty soon we will be shipping our punching to China.” 4101. On November 7, 2012, Officer Heimsness, while on duty, sent the following communication via his Mobile Data Computer to another Madison Police Officer: “i’m a hater”; “one of these days I’m going to snap and go up there and start screaming ‘WTF IS WRONG WITH YOU?’”; “especially when you’ll hear it in the background when they call for help on ch 1 and 3.” 4102. Ultimately, those three investigations, which are based on complaints against Officer Heimsness from within the MPD, led to Chief Wray recommending Officer Heimsness’s termination on June 21, 2013. However, this was after Officer Heimsness shot and killed Paulie Heenan, as described below, an act for which Officer Heimsness was exonerated by Chief Wray. 4103. On information and belief, despite Officer Heimsness’s relatively large record of allegations of citizen abuse, some substantiated by the MPD, some intentionally not even fully investigated, neither Chief Wray nor any other City 21

policymaker subjected Officer Heimsness to greater scrutiny than that accorded other officers regarding his fitness for duty.

2012 – Officer Heimsness opens fire and murders a 30-year-old, 150 lb, unarmed peaceful musician on the sidewalk. 4104. During the early morning hours of November 9, 2012, on the 500 block of South Baldwin Street, Madison, Wisconsin, it was approximately 35 degrees Fahrenheit with clear skies and calm winds. The street, sidewalks, driveways and surrounding grass areas were dry. A small, crescent-shaped moon was located low in the southeastern area of the sky. 4105. During the early morning hours of November 9, 2012, Officer Heimsness shot and killed Paul Heenan on the 500 block of South Baldwin Street. 4106. Mr. Heenan was a 30-year-old, gentle musician, with a slight build. 4107. Mr. Heenan was approximately 5’ 11’’ tall and weighed approximately 150 pounds. 4108. Mr. Heenan’s neighbor, Marline Pearson, described Mr. Heenan as having the build of a 14-year-old kid. 4109. Mr. Heenan wore a men’s size small. 4110. Mr. Heenan had no criminal record; he just had garden-variety traffic citations on his record, none of which indicated any propensity for violence. 4111. The Madison Police Department interviewed many people who knew Mr. Heenan, and none of them had seen Mr. Heenan ever being violent in all the years they had known him. 4112. Paulie Heenan was a son, a brother, a grandson, a nephew, a cousin, and a friend. He was caring, kind, gifted, loving, sensitive, talented, and someone who believed that doing the right thing with people was important. Paulie was so loved, his

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murder has brought much anguish, and he is so sorely missed by his friends and family. 4113. Officer Heimsness described himself on the Madison Professional Police Officers’ Association Board’s website as liking “fast cars and fast women,” stating that his nickname was “the cruiser.” (The MPD removed Officer Heimsness’s description of himself from the internet in early February 2013.) 4114. The tagline on Officer Heimsness’s work email reads: “I believe I am right. Or, if not right, at least plausible.” – Ignatius Donnelly, politician, author, American crank. 4115. Officer Heimsness describes himself as 5’8’’ and 170 lbs. 4116. Officer Heimsness has a history within the MPD of violent behavior. 4117. Officer Heimsness has a history within the MPD of using poor judgment

relating to use of force and unsafe firearm practices. 4118. Officer Heimsness, on October 3, 2012, described a regular shift as follows: “cruiser talk and b[reak]fast”, “go to briefing”, “go poop”, “go eat”, “dispo a call by phone”, “go to coffee”, “beat info a call”, “lunch”, “then it’s time to hold that for 2 nd detail”, “10-42.” “10-42” is a radio call for ending a tour of duty. 4119. On October 4, 2012, Officer Heimsness described what he does when he’s off duty as drinking beer and watching porn in his basement. 4120. On November 9, 2012, Officer Heimsness was an on-duty officer in full Madison Police Department uniform, including a radio earpiece, and acting within the scope of his employment. 4121. Officer Heimsness was wearing his duty belt, which held two loaded magazines of bullets, a Taser, a baton, a second cartridge for the Taser, a portable radio, a multi-tool, an AR 15 magazine, gloves, a set of keys, a gun holster containing a 9 mm Glock model 17 pistol, OC spray, and double handcuffs. All of these items were 23

contained in specific nylon holders for the duty belt along with snap belt clips to hold the duty belt in place. 4122. Officer Heimsness was qualified by the Madison Police Department in the use of his duty weapon (the 9 mm Glock model 17 pistol) at all times relevant to this Complaint. 4123. On the evening of November 8/morning of November 9, 2012, Officer Heimsness was working his normal 10:45 p.m. to 7 a.m. shift, and it had been a slow night. 4124. As a result of often working this night shift in the area of Baldwin Street

on the East side of Madison, Officer Heimsness knew that there was a lot of foot traffic and that it was very dark in this area around bar time. 4125. On November 9, 2012, at approximately 12:27 a.m., Officer Heimsness sent the following communication via his MDC to another Madison Police Officer: “i’m the right cop for the wrong job,” “no witnesses, no problem.” 4126. On the evening of November 8, 2012, Paul Heenan had been enjoying a night on the town, first having dinner at the Weary Traveler with his house mates, who were a married couple, and their six-year-old daughter. 4127. Following dinner, Mr. Heenan, a musician, told his friends that he was thinking about going back out to scout some bands. 4128. Mr. Heenan later returned to the Weary Traveler and had a few vodka drinks. 4129. Mr. Heenan engaged in conversation with the Weary Traveler’s owner, employees, and other patrons. 4130. All of a sudden, while sitting at the bar, Mr. Heenan had a huge sneezing fit.

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4131. Following this sneezing fit, Mr. Heenan suddenly seemed extremely intoxicated. As the Weary Traveler’s owner, Mr. Fuller, put it, Mr. Heenan went from “hero to zero just like that.” 4132. At this point, Mr. Fuller took Mr. Heenan’s drink off the bar and threw it out. 4133. Mr. Heenan, who had been engaging in lucid conversation just minutes

before, was now nonverbal and staggering, and when he attempted to go to the bathroom, he went into the women’s bathroom. 4134. Mr. Fuller asked Mr. Heenan if he wanted a cab, but Mr. Heenan could not respond. 4135. Mr. Fuller then assigned his employees to make sure Mr. Heenan was safe and not drinking any more, until Mr. Fuller could give him a ride home. 4136. Mr. Fuller told Mr. Heenan he was worried about his condition and that he would be driving him home. 4137. Mr. Fuller prodded Mr. Heenan for his address, and Mr. Heenan was finally able to tell him he lived at 509 Baldwin Street. Mr. Fuller asked if it was South or North Baldwin, but Mr. Heenan could not answer. Mr. Fuller continued to prod Mr. Heenan, asking him if his house was on “our side of East Washington Ave. or the other side,” and finally Mr. Heenan said, “This side,” meaning the same side as the Weary Traveler. 4138. At approximately 1:50 a.m., Mr. Fuller left the Weary Traveler with Mr. Heenan in his vehicle. 4139. Mr. Fuller dropped Mr. Heenan off on the opposite side of South Baldwin, watched as Mr. Heenan walked across the street towards 509, and then drove away.

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4140. Mr. Heenan had a blood alcohol level of approximately .218% and a urine alcohol concentration of .309%, but there were no detectable levels of street drugs or pharmaceuticals in his system, with the exception of caffeine. 4141. The O’Malleys, Mr. Heenan’s neighbors from two doors down, were in their bed in the home they owned, and where they had lived for about a decade, at 513 South Baldwin Street. 4142. The O’Malleys’ key had been left in the deadbolt of their front door that night, as it sometimes was. 4143. At approximately 2:44 a.m. on November 9th, Mrs. O’Malley heard someone open her front door and enter her family’s residence. 4144. She woke Mr. O’Malley up to have him investigate. 4145. Mr. O’Malley went downstairs with the family dog, saying, “Jake, go get ‘em.” 4146. The man at the front door was Paulie Heenan. Mr. O’Malley recognized

him as a new neighbor he had met the previous weekend, when Mr. Heenan had stopped by to introduce himself. 4147. Mr. O’Malley made a quick assessment of Mr. Heenan and concluded that he was intoxicated. 4148. Once Mr. O’Malley realized he was not dealing with someone breaking into the home, but rather an intoxicated neighbor, he asked Mr. Heenan for the key that had been in their door, assuming that is what Mr. Heenan used to get into the house. 4149. Mr. Heenan responded by pulling keys out of his pocket and handing them to Mr. O’Malley. The keys were not the key Mr. O’Malley was looking for. 4150. Mr. O’Malley then reached into Mr. Heenan’s pockets himself, feeling a box of cigarettes. 4151. Mr. O’Malley realized that neither he nor Mr. Heenan, in his highly intoxicated state, could find the key, so Mr. O’Malley gave up for the time being and 26

decided to just walk Mr. Heenan home and deal with the missing key later. Mr. O’Malley stepped out onto his porch, next to Mr. Heenan who was near the doorway. 4152. Ms. O’Malley overheard her husband speaking with someone about having to get out and about keys to the residence. 4153. Ms. O’Malley called down and asked if she should call 911, to which Mr. O’Malley responded, “No,” because he knew he was just dealing with an intoxicated neighbor. 4154. Then, Mr. O’Malley started walking in the direction of Mr. Heenan’s house, two doors down, and Mr. Heenan followed about five to ten feet behind. 4155. Mr. O’Malley continued to try to talk to Mr. Heenan while walking him home. Finally, they stopped on the sidewalk in front of Mr. Heenan’s residence and Mr. O’Malley asked if he should get Mr. Heenan’s roommate to come help him inside, and Mr. Heenan responded, “No.” 4156. Mr. O’Malley then asked if Mr. Heenan had been at the bar, and Mr. Heenan asked, “Why?” Mr. O’Malley answered saying, “Because you came into our house. I could have called the cops.” Mr. Heenan responded, “You want to get weird?” 4157. Mr. Heenan then leaned towards Mr. O’Malley. Mr. O’Malley grabbed Mr. Heenan by the lapel of his jacket and Mr. Heenan grabbed Mr. O’Malley’s arms. This bodily contact lasted less than 15 seconds. 4158. During the time Mr. O’Malley and Mr. Heenan were interacting, Ms. O’Malley was on the phone with 911, whom she had called just to be safe. 4159. Ms. O’Malley reported to 911 that she just “left the key in the door from walking the dog, and we just heard barking and then we just heard someone enter my house, and my husband just went downstairs.” 4160. Ms. O’Malley reported that her husband “went down to the door, and I just said is everything okay and he said yes, but I have no idea what’s going on.” 27

4161. The 911 operator asked, “Are there any weapons involved or mentioned?” Ms. O’Malley responded, “I have no idea. Not with us, no.” 4162. The 911 operator asked if anyone was injured, and Ms. O’Malley responded, “no.” 4163. Ms. O’Malley told the 911 operator again, “I said do you want me to call 911 and he said no, it’s okay, but I have no idea what’s going on, you know.” The 911 operator responded, “Sure.” 4164. Ms. O’Malley told the 911 operator, “I also want everything to be fairly calm when somebody comes.” 4165. At 2:47:09 a.m. dispatch reported “possible B[reaking] & E[ntering] in progress. 513 South Baldwin. South of Spaight. Caller can hear someone in the house.” 4166. Dispatch assigned the call to three officers, none of which were Officer Heimsness. 4167. However, Officer Heimsness decided to leave the call he was assigned and volunteered to respond to the suspected breaking and entering in progress.

2:47:09 a.m. – 2:48:43 a.m. (1 minute, 34 seconds) Officer Heimsness travels to scene of possible breaking and entering in stealth mode 4168. The Police Active Incident Display reported Ms. O’Malley’s name and address and the following words: “It is not known if weapons were involved or mentioned. HEARD SOMEONE COME IN FRONT DOOR, HUSBAND WENT DOWN TO SEE WHAT IS GOING ON. SHE’S UPSTAIRS WITH THEIR 4 KIDS.” 4169. Officer Heimsness responded, “This is unfounded? I’m en route.” 4170. Officer Heimsness also believed that dispatch routinely overreacted in reporting incidents and assigning officers to calls, as is evident from his November 7, 28

2012, communication over his Mobile Data Computer to another Madison Police Officer, while on duty: “CAN YOU BREAK FOR SANDWICH DISTURBANCE?!?!?!? ANYONE?!?!?!?!” and “It would be nice for them to get a little info instead of dispatching every call like a homicide in progress.” 4171. Officer Heimsness reports he drove approximately 30 miles per hour to 513 S. Baldwin, at or below the speed limit. 4172. Then, Officer Troumbly announced on dispatch that she was nearby and could go in place of one of the other units that had been assigned the call. 4173. Officer Heimsness reports he did not turn on his lights or siren as he was driving to the scene because he did not want to notify the possible suspect that the police were coming and he did not want anyone to run. 4174. When Officer Heimsness pulled up to Baldwin Street and Spaight Street, he turned off his squad head lights because he didn't want any possible suspects who might have been acting as a lookout or an accomplice to know that his squad was pulling up.

2:48:43 a.m. – 2:49:39 a.m. (56 seconds) Officer Heimsness arrives, parks, walks across the street, and sees the homeowner and Mr. Heenan

4175. At 2:48:43 a.m., Officer Heimsness informed dispatch that he had arrived on the scene. 4176. The dispatcher heard that, and told Officer Heimsness, “caller heard someone come in the front door, husband went down to see what was going on, she’s still upstairs with four kids.” 29

4177. Officer Heimsness parked his squad car on the street, approximately 150 feet away from the driveway of 513 S. Baldwin. 4178. Officer Heimsness then walked at an angle across the street. He did not want to walk up the sidewalk because he wanted to be able to walk where he was somewhat concealed so that he could take a look at the target house to see if he could figure out what was going on. 4179. As he was halfway across the street, at 2:49:33 a.m., Officer Heimsness heard the dispatcher announce, “Husband’s wearing a grey t-shirt and plaid pajama bottoms.” 4180. At the same time, he saw a marked squad approaching the western curb by Jenifer Street and extinguish its headlights. 4181. Officer Heimsness “blipped” his flashlight at that squad to let the other officer know where he was. 4182. Officer Heimsness claims he then stood, concealed by a tree, on the terrace, in front of 515 South Baldwin Street. 4183. Officer Heimsness could see, due to the porch light, that the screen door was open but the interior door was closed at 513 South Baldwin. 4184. Officer Heimsness claims he could not see or hear any people or movement. 4185. Instead of waiting behind this tree for that second officer that had arrived on the scene, he stepped onto the sidewalk. 4186. Officer Heimsness claims that as soon as he stepped onto the sidewalk, he saw movement to his left, on the sidewalk in front of 511 South Baldwin Street. 4187. Officer Heimsness was more south of 511 South Baldwin, towards Spaight Street, and the two men he saw were more to the north of that address, towards Jenifer St.

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4188. Officer Heimsness saw two men, one whom he believed to be the homeowner whose wife had telephoned the police, standing up, grappling, holding onto each other, and pushing back and forth. 4189. Officer Heimsness did not see either man throwing punches. 4190. Officer Heimsness did not see either man kicking. 4191. Officer Heimsness did not see any weapons in either man’s hands. 4192. Neither Mr. O’Malley nor Mr. Heenan were armed. 4193. Officer Heimsness claims that he could now (that he had stepped to the side of the tree) hear the two saying things to each other, but he could not make out what they were saying. 4194. Officer Heimsness thought that possibly Mr. Heenan was trying to get away and the homeowner was attempting to hold Mr. Heenan at the scene. 4195. Officer Heimsness had OC spray, a baton, and a loaded Taser in his duty belt, but he chose at this time to draw his 9mm Glock pistol.

2:49:39 a.m. – 2:49:54 (15 seconds) Officer Heimsness walks toward Mr. O’Malley and Mr. Heenan, yells “get down!” twice, and then shoots and kills Mr. Heenan.

4196. While drawing his firearm with his right hand, Officer Heimsness approached the two and made a radio transmission, at 2:49:39 a.m., that that there was a fight. 4197. Officer Heimsness initially created a tactically undesirable situation by

approaching so closely, in stealth mode, with his gun drawn.

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4198. At 2:49:45 a.m., Officer Troumbly announced over the dispatch radio that she was on the scene. She made this announcement while she was on foot, approaching the driveway between 503 and 507 South Baldwin Street. 4199. Dispatch repeated Officer Troumbly’s call over the radio. 4200. Officer Troumbly was coming from the north, headed south in the direction of Spaight Street. 4201. Mr. O’Malley, who was facing more or less north, looked over his shoulder to the south, towards Spaight Street, with the intention of calling for his wife or a neighbor to assist him, and he saw someone walking up the sidewalk towards them. 4202. At first, Mr. O’Malley thought that the person walking up the sidewalk

was a neighbor, but then he saw that his hands were in front of him, so Mr. O’Malley thought it was someone walking a dog. Then, Mr. O’Malley realized it was a police officer dressed in what appeared to him to be black. 4203. At no time did Officer Heimsness, who had approached the scene in stealth mode, announce that he was a police officer. 4204. Instead, Officer Heimsness, “gunned the guy, mostly the suspect” and yelled, “Get down! Get down!” 4205. Officer Heimsness was about 15 feet away from Mr. Heenan and Mr. O’Malley and was walking towards them when he gave the command. 4206. The two orders in rapid succession to get on the ground were the only things said by Officer Heimsness prior to shooting Mr. Heenan. 4207. Upon hearing Officer Heimsness’s verbal commands, Mr. O’Malley let go of Mr. Heenan’s lapel and backed off onto the terrace of the sidewalk. 4208. Though Mr. O’Malley did not “get down,” Officer Heimsness reported that he was of the opinion, at that moment, that Mr. O’Malley’s response was reasonable. 32

4209. Officer Troumbly, approximately between 507 and 509 South Baldwin, upon seeing Officer Heimsness and hearing his verbal commands, broke out in a sprint toward Officer Heimsness’s location. 4210. Officer Troumbly did not see any weapons on the persons of either Mr. Heenan or Mr. O’Malley. 4211. At this point, Mr. Heenan turned his attention towards Officer Heimsness. 4212. Mr. Heenan, like Mr. O’Malley, did not get down on the ground, but instead, he stumbled towards Officer Heimsness. 4213. Mr. Heenan did not run towards Officer Heimsness. 4214. Mr. Heenan moved towards Officer Heimsness with flailing arms and unclenched hands. 4215. Officer Heimsness could see Mr. Heenan’s hands, and could see there was nothing in them. 4216. Officer Heimsness later described Mr. Heenan’s hands as “partially clenched.” 4217. Mr. Heenan continued south, in the direction of Officer Heimsness. 4218. Mr. Heenan began to flail and swat towards Officer Heimsness. 4219. Mr. O’Malley moved from the terrace, around Officer Heimsness, and into the driveway. As he was moving around the officer, he was yelling and repeating, “He’s a neighbor.” 4220. Though Mr. Heenan, in his intoxicated state, was flailing and swatting at Officer Heimsness, Officer Heimsness was not injured. 4221. Mr. O’Malley was worried about what he was seeing, so he continued saying, “He’s a neighbor.” 4222. As Officer Troumbly was sprinting south, approaching the front of 509 S. Baldwin St., her response to the situation was to pull out her Taser with her right hand, going across the front of her body, bringing the Taser out of its holster. 4223. Officer Heimsness was still south of Mr. Heenan; in other words, Officer Heimsness was closer to Spaight Street, Mr. Heenan closer to Jenifer Street. 33

4224. Therefore, Officer Troumbly, coming from the north, could observe Mr. Heenan’s back, as he was standing with his back to her. Mr. Heenan was facing Officer Heimsness. 4225. To keep distance between Mr. Heenan and Officer Heimsness’s Glock, Officer Heimsness bladed his body and pulled his gun arm back. Officer Heimsness moved his gun off to the side and bent his knees as Mr. Heenan continued swatting at the officer. 4226. Officer Heimsness had never been trained to blade his body and pull his weapon back when engaged with a suspect. 4227. Officer Heimsness was trained to bring his gun toward his chest for better control and security of the gun. 4228. Yet, Officer Heimsness decided to blade his body and pull his gun back to get it away from Mr. Heenan. 4229. Officer Heimsness could have simply backed away from Mr. Heenan. 4230. Officer Heimsness did not back away, claiming he was worried about “tripping,” since he was on a sidewalk. 4231. Officer Heimsness did not consider turning and fleeing, in order to wait for a back-up officer or officers to arrive so the unarmed Heenan could be subdued with less than deadly force. 4232. Officer Heimsness could have attempted to re-holster his weapon. 4233. Officer Heimsness was trained in techniques to re-holster his weapon in situations where a suspect is close. 4234. Officer Heimsness did not consider re-holstering his firearm. 4235. Officer Heimsness could have identified himself as a police officer and given additional verbal commands. 4236. Officer Heimsness did not give additional verbal commands. 4237. Officer Heimsness could have used an active countermeasure, such as punching or kicking. 34

4238. Officer Heimsness did not consider using an active countermeasure, such as punching or kicking. 4239. Officer Heimsness stated he did not use an active countermeasure because, as he said later, “I don’t want to, I don’t really want to use an active countermeasure on somebody with something in my hand especially your gun, do you lose it, it’s, it just wasn’t appropriate.” 4240. Officer Heimsness could have, but did not, attempt to spray Mr. Heenan with OC spray, hit Mr. Heenan with his baton, or tase Mr. Heenan. 4241. Officer Heimsness was, as he said later, “not gonna transition away from my most effective tool in a deadly force encounter and go to a lower option.” 4242. Officer Heimsness did not think about where his back-up officer was. 4243. Ultimately, Officer Heimsness decided to use deadly force in this situation to ensure that his weapon would not become nonfunctional. 4244. Officer Heimsness believed that if Mr. Heenan, while flailing in close proximity to Officer Heimsness’s gun, pushed the slide back on the Glock even very slightly, it would make the gun non-functional and it would not work. 4245. Officer Heimsness believed that the barrel of his Glock unlocks and that it tips away and that it makes the firing pin and the striker not release, which would have meant that Officer Heimsness would have been without a functional Glock. 4246. If Officer Heimsness’s Glock became non-functional, he would have been left with only his Taser, his baton, his OC spray, and an armed back-up officer several feet away to protect him. Additionally, his non-functional Glock could have been used to pistol whip. 4247. Officer Heimsness did not shoot to protect Mr. O’Malley. 4248. Officer Heimsness did not shoot to prevent Mr. Heenan’s escape.

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4249. Officer Heimsness shot in defense of himself, because he unreasonably believed he would be in imminent danger of death or great bodily harm if his Glock were to be struck by Mr. Heenan’s hand and become non-functional. 4250. Officer Heimsness decided that he needed to get distance between himself and Mr. Heenan so he could make sure his gun worked. 4251. Mr. Heenan and Officer Heimsness were engaged for approximately five seconds, and then Officer Heimsness stood more erect, and took a step back. Mr. Heenan also stood more erect so that his long curly hair was pushed back off his face, and he backed up. 4252. Officer Heimsness reports this separation occurred because he gave Mr. Heenan a weak shove with his left, non-dominant hand, and it caused Mr. Heenan to go backward. 4253. Officer Troumbly witnessed Officer Heimsness, with one arm, pushing Mr. Heenan backward to create space between them. 4254. Officer Troumbly reported to the MPD that the physical altercation between Officer Heimsness and Mr. Heenan began in front of 513 South Baldwin Street and moved to the area of the driveway between 511 South Baldwin Street and 513 South Baldwin Street. 4255. 513 South Baldwin St. is south of 511 South Baldwin St. 4256. Officer Heimsness could see Mr. Heenan’s upper body was moving backwards, away from him, when Officer Heimsness got a strong, two hand grip on his Glock, and shot Mr. Heenan. Officer Heimsness is not sure what Mr. Heenan’s feet were doing at this time. 4257. Officer Heimsness and Mr. Heenan were approximately five feet apart when the shooting occurred.

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4258. Officer Heimsness fired at Mr. Heenan, as Mr. Heenan’s upper body was moving away from Officer Heimsness. 4259. At 2:49:54 a.m., three shots were fired by Officer Heimsness in rapid succession, each shot striking Mr. Heenan. 4260. Officer Heimsness had been able to separate himself physically from Mr. Heenan, and Mr. Heenan was not advancing on Officer Heimsness or otherwise constituting a threat to Officer Heimsness or anyone else when Officer Heimsness shot him. 4261. Mr. Heenan was of a slight build and substantially incapacitated by alcohol, so Officer Heimsness, a trained officer, could have controlled him with simple hand-to-hand tactics, with a Taser, with OC spray, or with a baton, without shooting him. 4262. Moreover, no reasonable officer could have perceived that Mr. Heenan, after he had been shot once, represented a threat to advance on Officer Heimsness, necessitating two more bullets to the chest. 4263. When Officer Troumbly heard the “pop, pop, pop” which she believed to be gunfire, she holstered her Taser and drew her firearm. 4264. Officer Troumbly was standing approximately three feet from Mr. Heenan when the shots were fired. 4265. Mr. O’Malley was standing in the driveway between the concrete steps off the side door of 511 S. Baldwin and the sidewalk when the shots were fired. 4266. Officer Heimsness reported that from the time he gave orders to get down until the time he used deadly force, at the most, five seconds passed. 37

4267. At the time of the shooting, Officer Heimsness was still south of Mr. Heenan by a few feet, and both were near the driveway between 511 and 513 South Baldwin Street. 4268. As Mr. Heenan was shot, he appeared to be in a defensive mode, as he was standing back. 4269. At the time Mr. Heenan was shot, he had his empty hands up in front of his chest, palms facing inward, so that one bullet entered his left index finger at midjoint, exiting on to the inner side of the finger, before entering his chest. 4270. Mr. Heenan had three bullet holes in the front center area of his chest. 4271. According to Mr. Newhouse of the Wisconsin State Crime Lab, the muzzle of Officer Heimsness’s firearm and Mr. Heenan’s coat were 24-42 inches apart when Mr. Heenan was shot. 4272. After being shot, Mr. Heenan continued to stagger backwards two steps, went down slowly, appeared to be in pain, and went down backwards in a somewhat fetal position, with his head landing on the terrace. 4273. Officer Heimsness reports saying, “God dammit” right after shooting Mr. Heenan. 4274. At 2:49:58 a.m., Officer Heimsness reported to dispatch, “shots fired, suspect down, we are 10-2.” 4275. By “10-2” Officer Heimsness meant that the situation was safe. 4276. At this point when Officer Heimsness had declared the situation safe, no officer had actually entered, let alone cleared, the O’Malley residence, checked on Ms. O’Malley (who had placed the 911 call), or checked on the wellbeing of her four children, at all. 4277. At this point, after he had shot Mr. Heenan three times, and after he had made the dispatch call, Officer Heimsness commanded the dying Mr. Heenan to “get

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down,” “stay down,” and “don’t move,” while continuing to point his gun at Mr. Heenan, as Mr. Heenan’s arms were moving and he was struggling to breathe. 4278. Though Officer Troumbly was standing approximately three feet from Mr. Heenan when the shots were fired, she, somewhat miraculously, was not struck with a bullet. 4279. Officer Heimsness reported that Officer Troumbly, “like magic” appeared

after the shooting. 4280. Officer Heimsness claims, just as he had in 2001, that he experienced “tunnel vision” and only saw about a three-foot diameter area during the shooting. 4281. Two Baldwin Street residents interviewed by the MPD reported to the MPD that they heard an angry female voice right after the shots. 4282. On information and belief, this angry female voice was Officer Troumbly’s, reacting to almost being shot by Officer Heimsness. 4283. When Officer Heimsness fired the three shots, he claims he could not see Mr. O’Malley, who was standing about 15 feet away. 4284. Officer Troumbly saw Mr. O’Malley standing near the approach of the driveway when shots were fired, and then heard him say something to the effect of, “Oh my God,” and walk to and enter his residence. 4285. Officer Troumbly asked Officer Heimsness if he was okay, and Officer Heimsness stated that he was okay. 4286. Officer Troumbly cleared the area for threats, holstered her gun, put on latex gloves, and began applying pressure to some of Mr. Heenan’s gunshot wounds. She could feel that air was escaping these wounds. 4287. Officer Troumbly could hear gurgling sounds. She then heard agonal breathing and tried to locate Mr. Heenan’s pulse, but could not. 4288. Sgt. Karen Krahn arrived immediately after the shooting. As Sgt. Krahn approached the scene, she saw Mr. Heenan lying on the ground, appearing deceased, 39

and Officer Heimsness holding his service weapon in both hands in the “low ready” position, maintaining focus on Mr. Heenan, while Officer Troumbly was kneeling next to Mr. Heenan assessing his condition. 4289. When Officer Heimsness noticed Sgt. Krahn, Officer Heimsness volunteered the statement, “He came at me and I shot to get him off of me.” 4290. Sgt. Krahn then asked Officer Heimsness if he was injured, and he replied that he was not. 4291. Sgt. Krahn then requested a channel for emergency rescue efforts for Mr. Heenan. Officer Heimsness told Sgt. Krahn that they probably do not need a channel because, “he’s dead.” 4292. Officer Heimsness then went and sat in his squad car. 4293. Officer Troumbly told Sgt. Krahn that she saw Officer Heimsness and Mr. Heenan “close together,” and then she heard three shots. Officer Troumbly told Sgt. Krahn that she was three feet away at the time the shots were fired. 4294. Shortly thereafter, at 2:52 a.m., Officer Carrie Hemming-Cotter arrived on the scene; and, being told by Officer Troumbly that Mr. Heenan was just having agonal breathing, decided that she needed to attempt resuscitative efforts. Officer HemmingCotter asked Officer Troubly to start compressions as she cut Mr. Heenans shirt off and attempted to render aide. 4295. Sgt. Fiore, who had just arrived on scene as well, heard either Officer Troumbly or Officer Hemming-Cotter say, “We need some light here,” and so he illuminated Mr. Heenan’s body with his flashlight. 4296. Officer Franco, who had just arrived on the scene as well, then saw Mr. O’Malley step out of his house, and she told him to get back into his house. In response, Mr. O’Malley volunteered, “That’s my neighbor – I said that was my neighbor.” 40

4297. Sgt. Krahn heard Mr. O’Malley tell Officer Franco that he was trying to tell the first officer that Paul Heenan was his neighbor. Sgt. Krahn saw Mr. O’Malley put his hands up, palms up, as he said this, as if to imply that he did not understand how this could have happened. 4298. Officer Hemming-Coutter attempted to bandage Mr. Heenan’s gunshot wounds with an Olase bandage and applied pressure. Mr. Heenan’s eyes were open and his mouth and airway were filling up with blood. Officer Hemming-Coutter attempted to clear Mr. Heenan’s airway by rolling his head to the side, but Mr. Heenan’s mouth and airway continued to fill up with blood. 4299. Madison Fire Department Emergency Medical personnel, who had also just arrived, suctioned the airway and applied defibrillator pads. After Mr. Heenan flatlined, MFD decided to stop resuscitative efforts. 4300. Shortly thereafter (within seconds), Officer Franco went to clear the O’Malley residence. Officer Franco saw that Mr. O’Malley was visibly shaken and upset. Mr. O’Malley said to Officer Franco, “I can’t believe this happened. I was yelling at the officer that he was my neighbor.” 4301. Mr. O’Malley asked Officer Franco if it was protocol for officers to respond with their guns drawn. 4302. Mr. O’Malley asked Officer Franco if Mr. Heenan was dead. 4303. Officer Franco told Mr. O’Malley something to the effect of that the officers were trained to assess the situation, defuse any threat, and then end the threat. 4304. Mr. O’Malley asked Officer Franco why officers did not defuse the situation by talking as opposed to shooting at the individual. 4305. O’Malley asked Officer Franco why individuals do not get shot in a leg or a hand.

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4306. O’Malley asked Officer Franco why shots had been fired although Mr. Heenan was not armed. 4307. O’Malley made several comments to Officer Franco on how he would explain this to his children who were now very scared and confused about the situation. 4308. Speaking to Officer Franco, O’Malley expressed a great deal of concern for the six-year-old who lived with Mr. Heenan. 4309. Within minutes of the shooting, Investigator Michael McEvoy arrived at the scene and found Officer Heimsness seated in his squad car, “very calm in appearance.” 4310. Investigator McEvoy found, on the other hand, that Mr. O’Malley “was trembling and seemed quite visibly upset.” 4311. Sergeant Fiore reported that Officer Troumbly appeared “starry-eyed.” 4312. Officer Heimsness reported being really mad after the shooting because “the guy made me shoot him. I was pissed off at the guy that he made me shoot him.” 4313. Officer Heimsness never saw a weapon, or anything else, for that matter, in Mr. Heenan’s hands. 4314. By approximately 4:15 a.m., Officer Heimsness was in the men’s locker room at the central station and had already changed back into his civilian clothing. 4315. Lieutenant Dan Olivas saw Officer Heimsness in the locker room at this time, and asked how he was doing. 4316. Officer Heimsness said he was OK. 4317. Despite his having just killed an unarmed young man an hour and a half earlier, Officer Heimsness’s speech was clear and there was nothing unusual about his physical state. 4318. MPD officers are trained that after a critical incident, an officer experiences trembling, sweating, chills, nausea, diarrhea, hyperventilating, dizziness, thirst, frequent urination, increased emotion, preoccupation with event, guilt, secondguessing, elation/joy/euphoria, anger, paranoia, fear/sadness/sense of loss, loneliness, 42

numbness, inability to concentrate, memory impairment, and that they are dazed, and that all of these symptoms last approximately three or four days.

The MPD Investigation 4319. At 3:50 a.m. on November 9th, Sgt. Jason Sweeney took Officer Heimsness’s weapon for evidence, and replaced it with an identical weapon for Officer Heimsness to use. 4320. The MPD conducted an investigation into Officer Heimsness’s use of deadly force. 4321. The MPD, Investigator Michael McEvoy, took DNA samples of Officer’s Heimsness’s sleeve-arm and gun, where he was allegedly touched by Mr. Heenan, and the MPD decided that “actual analysis of those swabs was not necessary.” Therefore, the swabs were not taken to the state of Wisconsin Crime Lab and were never analyzed. 4322. The MPD training provides that an officer’s experience of a critical event and tunnel vision is associated with the officer’s memory loss of part of a critical event 52% of the time, and memory loss of some of the officer’s own actions 46% of the time. 4323. While the investigation was pending, Officer Heimsness was placed on paid administrative leave and continued to collect his base salary of $69, 853, plus additional shift pay, plus $32,214 in benefits, for a total of more than $102,000 annually. 4324. Officer Heimsness logged just over fifteen overtime hours after his leave began, and despite the fact that he was not working, he collected $1,010.24 in “overtime” pay. 4325. Within a month of the fatal shooting, Officer Heimsness interrupted his leave and worked four days on “light duty.”

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4326. After Officer Heimsness had worked a few days on “light duty,” Chief Wray sent an email, dated December 7, 2012, to the officers involved in the Heenan shooting, and said: Yesterday I was in contact with D.A. Ozanne regarding the status of his decision related to the officer involved shooting. He could not give me a date in which he was planning on announcing his decision as he and the Medical Examiner are still reviewing things related to this case…I truly regret the time delay in this decision and the impact that it may be having on your lives. If there is anything that I or you[r] supervisors can do during this time to support you please let us know. 4327. Officer Heimsness, taking full advantage of the situation, forwarded the email to the MPPOA Board to brag that he received a “very personal email” from the Chief and that he would “be requesting to be put onto Admin Leave until [he was] return[ed] to duty.” 4328. Officer Heimsness decided he would rather sit at home and be paid than have to work a desk job. 4329. On December 10, 2012, Officer Heimsness wrote Chief Wray and made his request to be placed back onto Administrative Leave “until I am cleared to return to active duty.” 4330. On December 11, 2012, Chief Wray approved Officer’s Heimsness’s return to Administrative Leave. 4331. Also on December 11, 2012, Chief Wray wrote, “We have moved forward with the internal investigation and I don't expect that our results will take long after the D.A.'s decision,” even though he did not yet know when the D.A.’s decision was going to come out, or what it would be.

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4332. On January 9, 2013, Madison Police Chief Wray announced, “I have determined that no MPD policies were violated and have exonerated Officer Heimsness.” 4333. The most recently retired Madison Police Department Captain, Cheri Maples, who lead Training & Personnel, stated about Officer Heimsness’s shooting of Mr. Heenan: “I sincerely believe few officers would have made the same choice in the same set of circumstances.” 4334. Chief Wray, however, “wholeheartedly” disagrees with Maples’s assessment of the incident and believes that the shooting met not only the legal standard, but “it met the moral standard.” 4335. Chief Wray stated, “Any time a human being believes that their life is in jeopardy, morally they have the ability to defend themselves and the life of someone else.” 4336. Chief Wray later, on June 21, 2013, filed a complaint against Officer

Heimsness alleging that Officer Heimsness repeatedly (118 times) violated departmental conduct rules over the past few years, including 2-25 Workplace Violence; 2-216 Untruthfulness; 2-225 Firearms Safety; 2-248 Immoral or Offensive Conduct; 2-263 Harassment; 2-209 On-Duty Business/Dereliction of Duty; 2-205 Insulting, Defamatory, and Obscene Language; 2-228 Disrespect of Supervisor; 2-241 Use and Care of CityOwned Property; 2-203 Equal Protection; and 2-242 improper use of Communications Systems. 4337. Chief Wray then agreed to dismiss the complaint in exchange for Officer Heimsness’s resignation, but Chief Wray allowed Officer Heimsness to remain on payroll through November 23, 2013, and to give Officer Heimsness a lump sum of 45

check consisting “accrued vacation and sick leave” at that time (despite the fact that Officer Heimsness has received over 365 days of pay without work since shooting Mr. Heenan on November 9, 2012).

V. VIOLATIONS OF LAW A. Liability of Heimsness for Excessive Force

501. Defendant Heimsness used excessive force on Mr. Heenan by each shot he fired and by killing the 30-year-old unarmed man who had committed no crime, in violation of Mr. Heenan’s constitutional right to be free from unreasonable seizures as guaranteed by the Fourth Amendment to the Constitution of the United States.

502. Defendant Heimsness was unreasonable in his use of deadly force against Mr. Heenan because any danger Defendant Heimsness felt he faced was created by his own unreasonable conduct in approaching too close to Mr. Heenan with a Glock in hand, in failing to back away, in failing to consider the use of his nonlethal alternatives, including the use of his fists, a Taser, baton, or OC spray all which were readily available to him as alternatives, in failing to announce himself as a police officer, and in purposely concealing his presence until he was only feet away from Mr. Heenan and Mr. O’Malley.

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B.

The City of Madison’s and Chief Wray’s Liability for Deliberate Indifference

503. Based on Officer Heimsness’s previous wrongdoing while an officer with the MPD, the need for some corrective response from the City of Madison and/or Chief Wray, such as additional or different training, the assignment of different duties, or the termination of Officer Heimsness’s employment, was so plainly obvious, and the inadequacy of the City’s and/or Chief Wray’s responses to Officer Heimsness’s previous wrongdoing created circumstances in which it was so likely that he would again engage in the violation of other citizens’ constitutional rights, that the inadequate response to Officer Heimsness’s previous wrongdoing amounts to deliberate indifference on the part of the policymakers of the City to the rights of citizens with whom Officer Heimsness would inevitably come into contact.

504.

The City of Madison and/or Chief Wray were so certain that Officer

Heimsness would routinely have to deal with highly intoxicated individuals, even individuals that were so intoxicated that they would be unable to comprehend commands or would fail to even recognize that they were dealing with a police officer, that they were deliberately indifferent to the rights of citizens when they failed to sufficiently train Officer Heimsness to handle a highly intoxicated person, who failed to comprehend commands, in any way other than through the application of deadly force.

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505. The City of Madison and/or Chief Wray were so certain that Officer Heimsness would routinely have to deal with two unarmed men in a scuffle on a front lawn, that their failure to train Officer Heimsness to approach such a scuffle without his Glock drawn amounts to deliberate indifference to the rights of the citizens of Madison.

506. The City of Madison and/or Chief Wray were so certain that Officer Heimsness would have to deal with stressful situations that had the potential to cause tunnel vision/freezing/auditory exclusions, that their failure to adequately train Officer Heimsness to recognize, minimize the effects of, and/or alter his reactions during tunnel vision/freezing/auditory exclusions amounts to deliberate indifference to the rights of the citizens of Madison.

507. After Officer Heimsness claimed “freezing,” and experiencing the “psychological effect of tunnel vision,” including but not limited to, in response to a minor incident of teenagers playing loud music and driving fast in 2001, of which the City and Chief Wray had actual knowledge, the need for additional screening of Officer Heimsness’s fitness for duty, the need for additional training and exercises, and/or the need for Officer Heimsness to be assigned to different duties, was so obvious, and the inadequacy of the City’s and Chief Wray’s response was so likely to cause, and actually did cause, the violations of other citizen’s rights, that it amounts to deliberate indifference.

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508. After the City and Chief Wray had actual knowledge that Officer Heimsness had such an inability to perceive events accurately and “engaged in numerous instances of untruthfulness,” when reporting to the MPD, including but not limited to in responding to complaints of excessive force in 2001 and 2006 and his reports regarding his involvement with the removal and field stripping of Officer Anderson’s rifle in October of 2012, the City and Chief Wray simply turned a blind eye and failed to take any meaningful response, and the inadequacy of their response was so likely to cause and actually did cause the violations of other citizen’s rights, that it amounts to deliberate indifference.

509. After the City and Chief Wray had actual knowledge that Officer Heimsness would shoot a duty weapon when not in danger, engaged in unsafe firearm practices in violation of MPD Rules 20225, Firearms Safety, failed to understand MPD policy, and continually acted outside of his training, the City and Chief Wray simply turned a blind eye and failed to take any meaningful response, and the inadequacy of the City’s response was so likely to cause and actually did cause the violations of other citizens’ rights, that it amounts to deliberate indifference.

510. After the City and Chief Wray had actual knowledge that Officer Heimsness had a history of placing himself in a position, due to poor judgment and poor tactical decision making, that caused him to believe he was subjected to

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an imminent threat, the City and Chief Wray simply turned a blind eye and failed to take any meaningful response, and the inadequacy of their response was so likely to cause and actually did cause the violations of other citizen’s rights, that it amounts to deliberate indifference.

C.

Municipal Liability: Ratification of Heimsness’s Conduct is Proof that the City has an Unconstitutional Deadly Force Policy.

511. Officer Heimsness’s dangerous, reckless behavior and unreasonable use of deadly force, was so warmly accepted by Chief Wray that it amounts to a statement that this is the way things are done and have been done in the City of Madison, or in other words, that it is the City’s official policy. The City and Chief Wray may have conducted a sham investigation in order to maintain willful blindness to Officer Heimsness’s misconduct because they were so eager to approvingly rubberstamp his conduct. Chief Wray’s reaction to so gross an abuse of the use of deadly force is a statement of the City’s policymaker that proves the preexisting disposition and policy, and is a statement of the official policy of the City of Madison. If Officer Heimsness’s actions were consistent with MPD policy, then MPD policy is unconstitutional.

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D.

Municipal Liability: Ratification of Heimsness’s Conduct Constituting Official Policy.

512. Because Officer Heimsness’s approaching Mr. Heenan with his Glock in hand and subsequent use of deadly force was subject to review by the Chief of Police, an authorized policymaker of the City of Madison, the City has retained the authority to assess an officer’s conduct for conformance with the City of Madison’s policies. Chief Wray ratified the unconstitutional basis for Officer Heimsness’s actions and his decision is final. By approving Officer Heimsness’s actions, which even under his version of events were manifestly indefensible, Chief Wray, in effect, continues the deprivation of Mr. Heenan’s constitutional rights.

E.

Municipal Liability: Indemnification

513. Defendant City of Madison is responsible to defend this action and to satisfy any judgment entered against Defendants Chief Wray and Officer Heimsness pursuant to § 895.46, Wis. Stats., regardless of whether the wrongful acts alleged herein were carried out pursuant to a custom or policy of the City of Madison.

VI. DAMAGES and EQUITY A.
601.

Damages By virtue of the unlawful actions alleged above, Mr. Heenan suffered

pain, suffering, financial losses, the ultimate loss, the loss of life, and other 51

damages for which his Estate should be compensated in an amount deemed just by the Court.
601.

Because the acts of the individual Defendants herein alleged were

carried out maliciously or with reckless disregard for the Plaintiff's fundamental rights, the Plaintiff seeks an award of punitive damages against the individual Defendants to deter them and others similarly situated from similar wrongful acts in the future.

VII. 701.

CONDITIONS PRECEDENT

All conditions precedent to this action, within the meaning of Rule

9(c), Fed. R. Civ. Pro., have been performed or have otherwise occurred.

VIII. DEMAND FOR JURY TRIAL 801. to a jury. The Plaintiff hereby demands a trial by jury of all issues triable of right

IX. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court grant judgment against the Defendants, awarding monetary damages in an amount that will fairly compensate the Plaintiff for Mr. Heenan’s injuries; punitive damages in amount that will justly punish the individual Defendants for their actions; and costs, attorneys’ fees and litigation expenses as well as any further relief this Court deems just. 52

Dated this Thursday, August 29, 2013. Respectfully submitted, Estate of Paul Heenan, Plaintiff, By THE JEFF SCOTT OLSON LAW FIRM, S.C. JEFF SCOTT OLSON State Bar No. 1016284 ANDREA J. FARRELL State Bar No. 1064773 131 W. Wilson St., Suite 1200 Madison, WI 53703 Phone: (608) 283-6001 Facsimile: (608) 283-0945 E-mail: jsolson@scofflaw.com

__________________________________ JEFF SCOTT OLSON ATTORNEYS FOR PLAINTIFF

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