Sherman Park case ‘won’t be simple’
Bail set at $100,000 for ex-officer
A national expert on police use of force consulted by District Attorney John Chisholm in the shooting death that sparked Sherman Park riots said Friday the case against the former officer who fired the fatal shot will be difficult to prove.
After studying the evidence in the on-duty shooting death of Sylville Smith, including the footage from officers’ body cameras, Emanuel Kapelsohn said he told Chisholm: “I can’t give you a solid opinion one way or the other on this. … It’s not a simple evaluation to make. It wasn’t simple for the officer at the time he did it, and I’m sure it won’t be simple for a jury.”
Kapelsohn shared his opinion with the Journal Sentinel on Friday, the day after Chisholm charged Dominique Heaggan-Brown with first-degree reckless homicide.
“Apparently he felt it needed to go to a jury, and in the justice system, that’s the mechanism we’ve set up to make those decisions,” Kapelsohn said.
Heaggan-Brown made his first court appearance Friday on the felony charge. His bail was set at $100,000, which his attorneys
called a moot point since Heaggan-Brown has been in jail since October on unrelated sexual assault charges. He was fired from the force shortly after those charges were filed.
After Friday’s hearing, Chisholm told reporters he filed the homicide charge because of the facts — not because of public sentiment.
“A criminal prosecution isn’t the forum in which to send a message,” he said. “Is there a legitimate issue in terms of policecommunity relations, in terms of the relationship with the population you serve and the criminal justice system? No question about it. And nothing exacerbates it more than police-related shootings.”
Heaggan-Brown is the second Milwaukee police officer to be charged with an on-duty homicide in modern history. He is the 13th officer in the country to be charged with murder, manslaughter or homicide in an on-duty shooting this year, according to Philip Stinson, associate professor of criminal justice at Bowling Green State University.
Heaggan-Brown’s case is also the first officer-involved shooting in the city in which footage from a body camera factored into a charging decision. Milwaukee officers began a pilot program for the cameras in 2013; the technology was widely adopted for patrol officers this year.
Stinson found it notable that 18 of the 30 cases filed in 2015 and 2016 nationwide involved some type of video.
“In most of those cases, I do not believe the officer would have been charged with murder or manslaughter without the video evidence,” he said.
‘A substantive issue’
In reviewing Smith’s death, Kapelsohn said the video didn’t corroborate what Heaggan-Brown told investigators.
According to the video, which is described in the criminal complaint: As Smith fled from Heaggan-Brown and another officer, Smith tripped and dropped his gun. As he got to his feet, he picked up the weapon. As he raised it, Heaggan-Brown fired his first shot, hitting Smith in the arm. Smith threw the gun over a fence and fell to the ground, his hands near his head. HeagganBrown fired his second shot hitting Smith in the chest.
The time between the two shots was 1.69 seconds.
Chisholm acknowledged he expects that tight time frame “will be a substantive issue in the case.”
Officers are justified in using deadly force if they reasonably believe three things, Kapelsohn said. An individual has:
The ability to cause death or great bodily harm.
The opportunity to cause death or great bodily harm.
Put the officer or someone else in jeopardy or imminent danger.
With HeagganBrown’s first shot, all three of those factors were present, according to Kapelsohn. Smith had a gun and was in close range of the officers. When he dropped it, instead of leaving it there and jumping the fence or running away, he picked it up.
“That shot is clearly justifiable in defense of himself and his fellow officer,” Kapelsohn said.
But under questioning by investigators, Heaggan-Brown said he then saw Smith toss the gun over the fence.
“To be justified in firing the second shot at that point, the officer has to have some belief he is still in deadly danger,” Kapelsohn said.
Heaggan-Brown said after Smith fell to the ground, he reached for his waistband. But, Kapelsohn said, the video doesn’t show that.
“This doesn’t clearly show justification. The officer may have been justified, but that’s got to be decided by a jury,” Kapelsohn said. “These are situations of tremendously high stress, situations where officers and civilians alike are known to have perceptual distortions between one aspect and the next, the distances involved, auditory exclusion, tunnel vision.”
The body camera video is a “very significant piece of evidence,” but it can’t tell jurors what the officer reasonably believed, in Kapelsohn’s view.
“If the officer had said, ‘I saw the suspect fall and drop the gun, and then I saw him reach for the gun and pick it up and I fired two shots,’ that would have been one situation,” Kapelsohn said. “But this officer doesn’t say that.”
Smith’s death was the catalyst for two nights of violent unrest in the Sherman Park neighborhood, which left eight businesses torched, at least six squad cars damaged, at least four officers injured and two teens wounded in separate shootings. Authorities estimated the damage at several million dollars.
Unlike other controversial police shootings around the country, in this one, both the officer and the victim were African-American.
Still, Chisholm’s decision to charge the officer won’t necessarily be viewed as race-neutral, said Chris Ahmuty, executive director of the American Civil Liberties Union of Wisconsin.
“I’m not going to say they’re intentionally (charging him) because Heaggan-Brown is African American … but people will form their own opinions about that and, unfortunately, you know that different communities in Milwaukee will, for the most part, draw different conclusions,” he said.
The fact that HeagganBrown was charged with three felonies and two misdemeanors related to sexual assault and prostitution as the shooting investigation proceeded also may have tipped the scale sin favor of charging him with homicide, according to Eugene O’ Donnell, professor of law and police studies at John Jay College of Criminal Justice.
“The ex-officer has been inundated with prejudicial allegations, gossip and bias in advance of anything being proven,” O’Donnellsaid. “The announcement yesterday seems to be motivated, in part, by a character assessment of the police officer. Because of what has been charged in another case, did the prosecutor feel that exonerating him in the shooting was untenable? That there has to be a trial, even if it ends in acquittal?”
But Stinson, who collects national data on officers who commit crimes, pointed out that Chisholm took four months to issue charges, unlike other prosecutors around the country who quickly charged officers but failed to get convictions.
“Prosecutors generally don’t bring charges they don’t think they can prove,” he said. “I think the timing of this would suggest they’ve done their homework.”
Nonetheless, the decision to charge HeagganBrown has led some in the community to wonder: How can the death of Smith be charged as a crime, but not the death of Dontre Hamilton, fatally shot by an on-duty officer in Red Arrow Park in 2014?
Christopher Manney, who has since been fired from the Police Department, shot Hamilton 14 times.
Hamilton’s mother, Maria Hamilton, is among those asking: Why this officer? Why this case? Was it the body camera footage? The fact that Heaggan-Brown already faced sexual assault charges?
“I’m happy for the (Smith) family,” she said. “I will sit in court with them, I will support them.”
She says she has no faith in Chisholm or in Mayor Tom Barrett, who she criticized for his public statements in the wake of the Smith shooting. In the immediate aftermath of the shooting, Barrett said he saw a still photo from the body-camera footage that showed Smith armed with a gun. On Thursday, the mayor said he still had not seen the body-camera video.
Kapelsohn, who evaluated the shooting of Smith, also analyzed the death of Hamilton at Chisholm’s request. Kapelsohn found Manney’s use of force justified.
“The issue isn’t whether there was one shot or two shots or 14 shots or 62 shots, but did the threat continue?” he asked.
In the Hamilton case, Kapelsohn concluded Hamilton took control of Manney’s 26-inch hardwood baton and was trying to hit him in the head and neck with it. Officers are trained not to strike people in those areas unless they have a reasonable fear of death or great bodily harm because a hard blow with a baton can crack someone’s skull, he said.
Kapelsohn determined deadly force was justified because Manney tried to shield himself with his hands and arms but was unsuccessful. Kapelsohn gave weight to evidence from multiple witnesses who said even as the officer fired, Hamilton continued to come toward him with the baton.
Although Manney was not criminally charged, he was fired from the Police Department — not for using excessive force, but because he did not follow department rules in the moments leading up to the shooting.
Asked Thursday if he sees a difference between the Hamilton and Smith shootings, Flynn said “every case has its own set of facts.” He said he would withhold judgment about HeagganBrown’s use of force until he has all the information, but the shooting “could plausibly be seen as” selfdefense.
Hamilton’s mother is glad Smith’s family will have its day in court, but she wishes her family — and others going back years — would have had their day, too.
“This is bittersweet for me,” she added. “Because anybody that takes somebody’s life needs to be charged and go before their peers and allow the public to hear what exactly happened.”