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During a press conference at the Madison City County Building Wednesday, November 9, 2013, Police Chief Noble Wray watches a video recreation of the officer-involved shooting which claimed the life of Madison resident Paul Heenan on November 9, 2012. Recreating the actions of Heenan in the video is neighbor Kevin O'Malley, whose home Heenan entered prior to the altercation with police officer Stephen Heimsness. Portraying Hemsness is Detective Michelle Riesterer. John Hart - State Journal

When I started to report recently on the unprecedented community response to the fatal shooting of Paul Heenan last fall by Madison Police Officer Stephen Heimsness, one question that came to mind was how often a Madison police officer had shot and killed someone.

Logical question, easily answered by the department, right?

Well, no. And researchers who study the use of police force nationally say it is also not easy to determine how many police shootings occur across the country and over time. That means that trends on who police shoot are hard to identify, and clues to needed changes in police training and practices may go undetected.

The Madison Police Department does not keep a separate database of fatal police shootings, Capt. Sue Williams, executive captain of support services, told me. But the department does report fatal police shootings as “justifiable homicides” to the Wisconsin Office of Justice Assistance, which in turn reports them to the FBI. The FBI reported 2,663 justifiable homicides by law enforcement officers in the years 2003 to 2009.

The incidence of fatal police shootings has been so infrequent in Madison — the department confirmed a list of 10 by Madison officers in the past 20 years compiled from Capital Newspapers archives — that South District Capt. Joe Balles, who headed up the records department from 2000 to 2006, remarked that the long-term history of lethal use of force has resided mainly in the memories of officers, who eventually retire.

Williams was involved in a fatal shooting as a lieutenant in 2003, when she was one of four officers who fired on an armed man at a Park Street convenience store after a botched bank robbery. “It’s a life-changing event. I’m thankful the city has as few as they do and I wish they were fewer,” she said.

The federal Bureau of Justice Statistics reports on arrest-related deaths nationwide, including demographic information like the age, gender and race of victims, as reported by local police departments.

But participation in this program is voluntary, and the Madison Police Department does not participate, Williams said. The Bureau of Justice Statistics reported 2,931 arrest-related homicides by law enforcement officers from 2003 to 2009, but acknowledged that the data is under-reported and did not list the number of departments that did provide information.

Neither the FBI’s nor the Bureau of Justice Statistics’ database is complete, says David Klinger, a former Los Angeles police officer who is now an associate professor of criminology and criminal justice at the University of Missouri-St. Louis.

“The data is dirty; it is not valid or reliable, there are all sorts of missing information,” Klinger told me. “When I and other researchers compare what is there with what is in local police internal files, it just doesn’t add up. So we don’t have a national system for recording deaths at the hands of police. And we don’t have information about police who shoot people who survive or who shoot at people and miss.”

Klinger made recommendations last year on how to better report on and review officer-involved shootings to the St. Louis Metropolitan Police Department, where the practice was not to release the names of officers involved in shootings or the results of internal investigations.

Madison Police make officer-shooting reports public, and release information about the findings of the department’s internal investigations into those shootings. But the department does not yet have a way to routinely track and analyze incidents of use of force, lethal or non-lethal, Williams said.  

“We do have the ability to have officers tell us whether they have used force” in their routine reports on incidents. “We’re looking at ways to find a tool to break it down into more specifics and identify patterns of behavior and tools used,” she said. Calibrating the system to collect usable and accurate data is tricky, she said, especially since the department is now working to get a new records computer system up and running. Once the department is able to collect data on use of force, it would be used to fine-tune officer training, Williams said.

Madison police officers investigating cases of use of force can access past records about specific officers or search for instances of violations of a specific policy provision, Williams said.

Without a reliable, detailed national database of the demographics and circumstances of police use of force, it’s not possible to analyze trends that could reveal policies and practices that need revision, Klinger says.

“If you’ve got a situation where Department X is in a city with the same racial composition, crime rate and everything as Department Y, and Department X shoots 10 times more frequently than Department Y, it’s an indication Department X has some issues,” he said of the way data could be used.

The resource of a national database might in fact be most useful for police departments like Madison’s, where the analyses of the small number of local incidents will yield less reliable conclusions to improve training, tactics and investigations regarding use of force, says Michael Scott, a former Madison police officer who is now a law professor at the University of Wisconsin-Madison.

“Smaller agencies can learn from the experiences of other communities,” says Scott.

Thomas Aveni, executive director of the Police Policy Studies Council, a consulting and research firm, says some police departments have more statistics on use of force than they are willing to release publicly, for fear they will be used against them in a lawsuit or misconstrued by the public.

Madison’s Capt. Williams says, however, that Chief Noble Wray has been asking for development of a system to track more information about the use of force for a couple of years. “All departments are having a hard time finding a consistent way to do it — otherwise everybody would grab on to it right away,” she said.

Not only are statistics on use of force hard to dig up, so is data on the findings of investigations into police use of force, says Michael Bell, whose son was shot and killed by a Kenosha police officer in 2004. Bell, whose family received a $1.75 million settlement in his son’s death, is lobbying state legislators to pass a law requiring police killings to be investigated by an independent panel of law enforcement professionals.

Grass-roots activists scrutinizing Madison Police Department practices after Heenan’s death also are challenging the department’s review of its own officers.

What information that can be collected suggests a bias in support of officers in the initial investigations of police use of deadly force conducted by police departments, citizen police and fire commissions, and death inquests convened by district attorneys, Bell maintains.

He says that research by a private investigator and the Milwaukee Journal Sentinel, as well as his conversations with police historians and law enforcement officers revealed that statewide, “Since 1890, an ‘unjustified ruling’ by a police (and fire) commissioner, a police department, or an inquest cannot be found.”

In the 10 fatal police shootings in the past 20 years in Madison, police were not found to have been in the wrong in any of those cases, according to a departmental review and published reports.

Klinger says it’s no surprise the vast majority of officers are exonerated of wrongdoing in a police shooting. It most cases, there’s no question that the shooting was justified; in a few others an officer made a mistake in shooting a suspect but is rightly found to not have violated department policies.    

“There’s a narrow slice where an officer had no business pulling a gun out and pulling the trigger,” Klinger says. And in these cases an officer may be fired, but meeting the burden of proof at a criminal trial is unlikely, he says.

Unlike any code of silence civilians may suspect police officers extend to one another, review panels of police officers are simply more likely to understand the circumstances that can lead an officer to a shooting that may be “lawful but awful,” Klinger says.

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But police departments are obligated to track their use of force and use it to improve their practices, he argues. “In a representative democracy where we jealously guard our freedoms, it’s important for citizens to know when agents of the state are killing people and how often it happens,” Klinger said.

Madison Police Department fatal shootings 1992-2012

Nov. 9, 2012: Madison Police Officer Stephen Heimsness shoots and kills Paul Heenan, 30. Heimsness says Heenan went for the officer's gun after a struggle with another man outside a house on the 500 block of South Baldwin Street. Heenan was unarmed.

Oct. 7, 2009: Madison Police Officer David Retlick shoots and kills armed robbery suspect Gregory Bickford, 26, of Sun Prairie, near the intersection of Lakeside and Whittier streets as Bickford pointed a gun in Retlick's face.

July 15, 2007: Madison Police Officer Matthew Kenny shoots and kills Ronald Brandon, 48, after he pointed what turned out to be a pellet gun at officers at 5001 Camden Road.

April 12, 2006: Madison Police Officer Kip Kellogg shoots and kills Victor Montero-Diaz, 45, after Montero-Diaz, who had been using cocaine, stabbed him with a knife and bit another officer at a BP gas station at 1130 Williamson St.

March 9, 2004: Gregory E. Velasquez, 39, is shot and killed when officers Phil Yahnke and Shane Puechner fire on Velasquez after he walked into Red Caboose Day Care Center and attacked a worker with a knife.

July 25, 2003: Julio Cesar Contreras, 39, is shot and killed by officers responding to a bank robbery. Contreras was armed with two handguns and fired at officers at a Mobil Mart on Park Street after a botched bank robbery attempt at nearby Park Bank. Lieutenants Wayne Strong and Sue Williams and officers Phil Petersen and Erik Fuhremann all returned fire.

Aug. 28, 2001: Jesse L. Johnson, 30, is shot and killed by Sgt. Dave McCaw and Officer Sidney Woods. Johnson, a suspected bank robber, was shot at the Comfort Suites on John Q. Hammons Drive when police stormed his room after a six-hour standoff.

March 21, 1997: Timothy Wing, 38, is shot and killed by Officer Timothy Hahn. Hahn and fellow Officer Andrew Garcia went to Wing's home to arrest him on a warrant from La Crosse County. Wing shot Garcia three times and then pointed the gun at Hahn, who responded by shooting Wing.

May 24, 1994: Alipio Pena-Avila, 38, is shot and killed by Officer Paul Smith, the second time he shot and killed someone in the line of duty. Smith was attempting to arrest Pena-Avila for missing a court date but the two got into a struggle. Pena-Avila tried to choke and disarm Smith and was ready to hit Smith in the head with a large rock when Smith shot him.

July 12, 1992: Robert L. Cook, 40, is shot and killed by Officer Paul Smith. Cook allegedly had beaten and sexually assaulted a woman and was threatening police officers with a large butcher knife.

Information on each case was compiled from archived reports of The Capital Times and the Wisconsin State Journal.

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