Madison Police Department: A Chronology of Deadly Force

Madison Police Department Facebook

Kevin Walsh, November 7, 2017

This series is based in part on the Madison Police Department’s Citizen Academy (now Community Academy), an annual program for the public.

The table below summarizes the Department’s use of deadly force over five years, from November 2012 to September 2017. Of the four cases in that time, I still had unanswered questions about Paul Heenan and Ashley DiPiazza that were addressed in the Academy Deadly Force session.

Madison Police Deadly Force (2012-2017)
Date	Description	Comments
Nov 9, 2012	Paul Heenan Shooting	Dispatch call for “possible breaking and entering”, weapons unknown. Heenan found struggling with homeowner outside and then attacking a single officer, who fired shots 3 minutes after the dispatch call. Heenan was killed.1
May 18, 2014	Ashley DiPiazza Shooting	Dispatch call for domestic disturbance involving a weapon. Subject was found holding a gun to her own head inside an apartment. Negotiator and two other officers were attempting to speak from the apartment doorway. Officers fired shots 49 minutes after the dispatch call. DiPiazza was killed.2
Mar 6, 2015	Tony Robinson Shooting	Dispatch call to check on a person fighting with friends, jumping into traffic, and strangling a person; no weapon.3 Disputed claim of attacking a single officer at the top of a stairway.4 Officer fired shots 8 minutes after the first dispatch call. Robinson was killed. Autopsy showed signs of psilocybin mushroom, THC, and Xanax.5
Aug 11, 2015	Paul Heenan Settlement	$2.3 million6
Jun 30, 2016	Michael Schumacher Shooting	Dispatch call for a home break in. Suspect attacked a single officer with a pitchfork. Officer fired shots 3 minutes after the dispatch call. Schumacher was killed. History of mental illness.7
Feb 22, 2017	Tony Robinson Settlement	$3.35 million8
Jul 10, 2017	MPD Procedure Revisions	Deadly Force9 and Non-Deadly Force10 procedures were revised to emphasize protection of all lives, including individuals being arrested, and resolving conflicts through communication, crisis intervention and de-escalation.
Jul 14, 2017	Ashley DiPiazza Jury Award	$7 million11, civil burden of proof was “preponderance of evidence” rather than the criminal “beyond a reasonable doubt”. Total $12.65 million and 4 killed since 2012.
Sep 15, 2017	New MPD Back-Up Procedure12	To emphasize protection of lives as above, and added waiting for assigned back-up to increase the safety of all involved.

Paul Heenan
Paul Heenan was an unarmed, intoxicated person entering the wrong home, and fighting first with his neighbor, and then a police officer. Officers are trained to approach high risk situations such as stolen vehicles, burglaries in progress, and robbery alarms with guns drawn, even if there is no current information on weapons. This is because of the “reactionary gap” or delay between seeing a gun and drawing your own.



The officer was 15 to 20 feet away when he drew his gun and ordered the struggling neighbors to get down. The homeowner separated, but Heenan approached and grappled with the officer. The review of the shooting credited the officer for using his uniformed presence, verbal commands, and empty hand control in attempting to create distance from the attack, but these were unsuccessful. The officer felt that Heenan was not only actively resisting but attempting to physically control him: “All I know is I’m in the middle of a fight with this guy and he’s trying to take the gun from me.” Based on these circumstances the use of deadly force was found to be objectively reasonable and lawful under Graham v. Connor.¹³

Instructors demonstrating scenarios in the Academy say in general that if a subject has no visible weapon, steps such as trying to maintain separation, focused strikes to disable, and non-lethal weapons such as Tasers and batons should be used. But this can change quickly with lethal threats to the police or others. In the extreme situation of any home burglary with occupants possibly threatened, an officer is expected to intervene as soon as possible and not wait for backup, even under the Back-Up procedure:

“Instances where it is not feasible to await back-up may include, but are not limited to, circumstances with an imminent risk of bodily harm (officer or citizen), flight, etc.”¹⁴

Ashley DiPiazza
Ashley DiPiazza had been drinking, had an argument with a boyfriend she described as “cheating”, armed herself with his gun, and threatened to kill herself. The shooting occurred when DiPiazza opened the bedroom door a second time and refused to drop the gun she was holding to her head. Since DiPiazza was staying alone in the apartment, could officers have waited for more assistance, or even a Special Weapons and Tactics (SWAT) team? A 3-hour delay for mobilizing SWAT has been mentioned as an objection. Could there have been communication with DiPiazza without exposing the negotiator to the gun? DiPiazza had been ignoring calls on her cell phone.

Training for a suspect holding a gun to his own head while approaching an officer is common enough to be called classic; the suspect threatens to kill himself but eventually turns the gun on the officer. This was demonstrated in an MPD Academy scenario.

Officers withdrew from DiPiazza’s apartment the first time she left the bedroom with her gun, but not the second time. The Academy instructors said that officers should try to withdraw if not directly threatened, again depending on the presence of other civilians.

MPD Procedures
Revisions to the Madison Police Department Standard Operating Procedures were ordered by the Common Council in May to include language emphasizing an officer’s duty to intercede, de-escalate and preserve life:

“The protection and preservation of all human life – including the lives of individuals being taken into custody – is the Department’s fundamental objective and the primary duty of all MPD employees.”¹⁵

Assistant Police Chief Vic Wahl said the language ordered by the council has already been emphasized in other procedures, training manuals, and core values. The MPD Code of Conduct addresses the use of force:

“ . . . deadly force will never be resorted to unless an officer reasonably believes that a lesser degree of force would be insufficient to defend the life of another, one’s self, or in limited situations, to apprehend a dangerous felon, or control an animal.”¹⁶

Since all the shootings were considered lawful, the question is: Why have the settlements and judgements been made against the City? The Academy instructors say there is a gap between the law and public perception of police actions. They believe police are “absolutely subject to citizen judgement,” but their role in law enforcement can call for actions, including deadly force, that are not required from anyone else.

David Couper, Madison Police Chief from 1972 to 1993, has written that the community may “want their police, if possible, to slow-down, take cover and de-escalate these situations and try first to save a life.”¹⁷ It’s not clear that always preventing a single officer from confronting a suspect would protect all lives at risk. But a slower approach might have made a difference for DiPiazza.

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¹ Madison Police Department Administrative Review, 2012-PSIA-0054, 1/1/13
² “The Estate of Ashley DiPiazza v. The City of Madison and Justin Bailey, Gary Pihlaja, and Cary Leerek,” United States District Court Opinion and Order on Motions for Summary Judgment, Judge William Conley, April 11, 2017
³ Madison Police Department Administrative Review, 2015-PSIA-0003, 5/26/15 (starting file page 13)
⁴ “The Shooting of Tony Robinson, Jr.,” Loevy & Loevy Law Firm, 312 North May, Suite 100, Chicago, accessed 10/28/17
⁵ ACISS Examination of Records 15-1188/156, Wisconsin Department of Justice Division of Criminal Investigation (DCI), Report Date: 05/21/2015 (starting file page 11)
⁶ “Paul Heenan family hopes $2.3 million settlement will spark use-of-force policy reform,” Allison Geyer, Isthmus, August 11, 2015
⁷ “Man fatally shot by Madison police officer struggled with mental illness,” Amanda Finn, Wisconsin State Journal, Jul 3, 2016
⁸ “Madison settles Tony Robinson lawsuit for record $3.35 million,” Steven Potter, Isthmus, February 23, 2017
⁹ “Deadly Force – Use of,” Madison Police Department Standard Operating Procedure, 07/10/2017
¹⁰ “Non-Deadly Force – Use of,” Madison Police Department Standard Operating Procedure, 07/10/2017
¹¹ “Death tax,” Dylan Brogan, Isthmus, August 17, 2017
¹² “Back-Up,” Madison Police Department Standard Operating Procedure, 09/15/2017
¹³ Madison Police Department Administrative Review, 2012-PSIA-0054, 1/1/13
¹⁴ “Back-Up,” Madison Police Department Standard Operating Procedure, 09/15/2017
¹⁵ “New Madison police procedures: Officers should exhaust all options before using a gun,” Rob Schultz, Wisconsin State Journal, October 19, 2017
¹⁶ Madison Police Department Code of Conduct, 1/30/17
¹⁷ “A Much-Needed Public Discussion,” David Couper, Improving Police, October 9, 2017

 

Disclaimer: The author is solely responsible for any errors or misinterpretations.

Series topics: Search and Seizure, Use of Force Overview, Deadly Force, A Chronology of Deadly Force, Communication and De-Escalation, Mental Health Issues, Internal Affairs and Complaints, Unmanned Aircraft Systems, Special Events Team (SET) and Demonstrations, Special Weapons and Tactics (SWAT), Traffic Safety, Racial Equity/Social Justice and Unconscious Bias, Gangs and Drugs, Investigative Specialty Units, Concealed Weapons Law, and K-9 and mounted officer units.