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Scene of Madison police shooting

Madison police gather at the Nature Valley Conservancy Apartments on May 18, 2014, hours after Ashley DiPiazza, 26, was fatally shot by two officers in her apartment. 

Weeks before fatally shooting a woman who was pointing a gun at her head in 2014, two Madison police officers completed a training exercise where instructors commended one for shooting a suicidal man who was pointing a gun at his own head and questioned the other who waited to shoot.

Justin Bailey, who waited to shoot, testified in a federal courtroom Wednesday that the exercise with paintball guns was part of his thought process when he decided to shoot a distraught Ashley DiPiazza after she emerged from her apartment bedroom holding a handgun to her head on May 18, 2014.

“In the debriefing (after the exercise) I was asked why I took so long to shoot,” Bailey said.

Bailey, who is no longer a police officer, along with Madison police officers Gary Pihlaja and Carey Leerek, are defendants in a trial stemming from a civil lawsuit filed by DiPiazza’s family.

The lawsuit manintains DiPiazza was shot without making any verbal threats or pointing the gun toward anybody but herself, thus violating her constitutional rights against unreasonable searches and seizures when Bailey and Pihlaja shot her 11 times inside her small apartment in the 1100 block of MacArthur Road. The lawsuit also claims police negotiator Leerek did nothing to stop them.

A six-woman, two-man jury will begin deliberations Thursday after closing statements in U.S. District Court for the Western District of Wisconsin.

The jury also is expected to decide whether to drop Leerek from the lawsuit. Judge William M. Conley told attorneys for both sides that he was having trouble holding her responsible for the actions of the other officers because she wasn’t their supervisor.

Testimony concluded Wednesday afternoon after witnesses for both sides focused on the training regimen for Madison police officers and the written rules and regulations that guide them.

DiPiazza was shot after her boyfriend, who was living with her at the time, contacted police to say that they had a relationship-ending argument and she had been drinking and was holed up in their apartment with his gun.

She emerged from the bedroom with a gun pointed to her head just after police entered her apartment and they quickly retreated. She re-emerged while still holding a gun to her head about 30 minutes later and was shot by Bailey and Pihlaja as they stood near the front door of her apartment.

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Roger Clark, a police procedures expert from Califonia testifying for the DiPiazza family, said DiPiazza never was an imminent threat to any person other than herself by the letter of the law, and that Bailey and Pihlaja failed to follow key tactical guidelines.

The defense’s expert, Charles Huth, a commander with the Kansas City Police Department’s special operations division, said the three officers’ actions were “consistent with contemporary police policies, training and protocol.”

A Madison police instructor and trainer who was leading tactical response training in 2014 testified that cadets are taught about the importance of reaction time during an exercise in which they are in position to shoot with their gun drawn at a subject pointing a gun at his head. “The subject typically is able to get off the first round,” said Lt. Tim Patton.

That point was reiterated during the in-service exercise for Madison police officers in which they pull over a vehicle and the driver quickly emerges with a gun at his head and yells wildly about how he is about to commit suicide.

Pihlaja testified that in the exercise he shot the man with his paintball gun as the man continued to point the gun at his head and said instructors told him, “That was the correct thing to do.”

If Pihlaja hadn’t shot the man, the exercise would have continued with the man, still holding a gun to his own head, walking toward Pihlaja, Patton said. If Pihlaja hadn’t shot him at that point, Patton said, the exercise would continue with the man eventually pointing his gun at the officer. Bailey testified that was the point in the exercise when he shot the man.

Patton said that while rules and regulations may say that a person holding a gun doesn’t qualify as an imminent threat, “the gun does change the (threat) assessment because of the minimum amount of time it takes to turn a gun on them and fire at them.”

An internal review by Madison police determined that the officers did not violate departmental policy.

Dane County District Attorney Ismael Ozanne also cleared the officers of any criminal liability following an investigation by the state Department of Justice.

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