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Scene of Madison police shooting Ashley DiPiazza, State Journal photo

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. 

A woman killed by a barrage of bullets from Madison police seconds after emerging from her bedroom with a gun pointed at her head had her civil rights violated because she wasn’t a threat to anybody but herself, attorneys for the woman’s family told a jury in a federal courtroom Monday.

The question of whether Ashley DiPiazza, who was suicidal and intoxicated, created an imminent threat to police during the 2014 incident is the key to the civil trial stemming from a lawsuit filed by her family against Madison police officers Gary Pihlaja and Carey Leerek and former officer Justin Bailey.

The lawsuit claims that Bailey and Pihlaja used excessive, unreasonable and deadly force when they shot 26-year-old DiPiazza, and Leerek intentionally failed to stop them, during the early-morning incident on May 18, 2014, at an apartment on the 1100 block of MacArthur Road on the Far East Side.

The family is seeking unspecified compensatory and punitive damages, according to the lawsuit in the U.S. District Court for the Western District of Wisconsin.

An internal review by Madison police found that the officers did not violate departmental policy by shooting DiPiazza. District Attorney Ismael Ozanne also cleared the officers, writing in his review that the gun easily could have been turned on them before they could respond.

That same argument was used in the opening statement by the officers’ attorney, Claude J. Covelli, to assert that she created an imminent threat of danger to the police officers.

“Their training says its too late for them to wait for her to aim (the gun) at them,” Covelli said. “There’s no dispute that (the officers) used deadly force. The question is: Did ... police officers fire at a woman who came out with a gun after ordered not to and then walked towards them?”

Inside the apartment

The family’s attorney, Jeff Scott Olson, told the jury of six women and two men during his opening statement that police knew DiPiazza was intoxicated and suicidal and that she made no threats to anybody but herself after she had a major argument with her boyfriend and holed up in her apartment with his 9mm Glock handgun.

Olson also told the jury that the officers put their lives and DiPiazza’s life in danger when they did not follow basic principles such as making a sound plan and taking proper cover when they entered her apartment. He said Bailey fired his Glock and Pihlaja fired his assault rifle so aggressively that they adjusted their gunfire “to track her body as it went down.”

During testimony for the plaintiffs, Dane County Medical Examiner, Dr. Vincent Tranchida, testified that three of DiPiazza’s 11 gunshot wounds were capable of causing her death, including one to her forehead and another to the middle of her back.

That followed questioning on where DiPiazza was standing when the officers fired at her. The plaintiffs say she never moved from the entrance to her bedroom; the police officers say DiPiazza made a step toward them while holding a gun to her head.

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On cross examination, Tranchida testified that the entrance wound on her back could have been caused as she fell forward from the waist after the first bullets hit her. “It was a downward trajectory,” he said.

‘Slow things down’

The police supervisor at the scene, Jason Sweeney, testified that he led police officers into DiPiazza’s apartment behind a protective shield prior to the shooting incident and ordered the officers to back out of the apartment after DiPiazza emerged from the bedroom pointing a gun at her head.

Sweeney also testified that he ordered nobody to return to the apartment and wanted to “slow things down” and buy some time with the hopes that DiPiazza would pass out or just give up.

He told the court that he was told by an officer that DiPiazza had made threats only to herself — at one point she told police she wanted to talk to her dad — and was suicidal. So he testified that he ordered Leerek to the scene because of her expertise as a negotiator with the SWAT team.

After Leerek talked with DiPiazza from the outside of the door to her apartment for about 15 minutes as Bailey and Pihlaja stood beside Leerek, covering her, Sweeney testified that DiPiazza, who had been nearly hysterical, was beginning to become “more calm.” He testified that he heard DiPiazza say “fine,” in a “snotty kind of (way)” and believed that the end was near and that she was going to come out of her bedroom and give up.

Instead, Sweeney testified that he saw Leerek, Bailey and Pihlaja “sink down a few inches” at the entrance to the apartment as they were screaming something about a gun. Next, he testified, he heard the shots fired.

When the family’s attorney, Andrea Ferrell, asked Sweeney if it was possible that he only heard the word “gun” before the shots were fired, Sweeney answered, “that is possible, yes.”

Sweeney’s testimony was scheduled to continue Tuesday.

This is the third federal lawsuit related to a shooting filed against Madison police officers in recent years. The city settled in 2015 for $2.3 million with the family of Paul Heenan, who was shot in 2012 by former Officer Stephen Heimsness. Olson’s firm handled the case.

Earlier this year, the relatives of Tony Robinson agreed to settle a civil rights lawsuit with the city’s insurance company for $3.35 million. Robinson, 19, was fatally shot after allegedly punching Officer Matt Kenny in a stairwell in 2015.

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Rob Schultz has won multiple writing awards at the state and national levels and covers an array of topics for the Wisconsin State Journal in south-central and southwestern Wisconsin.