District Attorney says no charges for officers involved in shooting

District Attorney Ismael Ozanne’s Office concluded shortly after noon on Monday, August 12 that there is no potential criminal court liability for Village of Mount Horeb police officers involved in the fatal shooting that occurred outside Mount Horeb Middle School on May 1.

The incident, in which a local middle school student brought a Ruger pellet rifle to the school and pointed it at officers before being shot and killed, was at the center of a day during which thousands of local citizens, including students, teachers, parents and greater community members, worked to grapple with panic, uncertainty, and ultimately the death of a young community member. While some questions will never be fully answered, the statement issued by Ozanne sheds light on much of what happened that day.

Over the past three months, the District Attorney received briefings from investigators, inspected the shooting scene, reviewed investigative reports, diagrams, photographs and video evidence. Just minutes after Ozanne’s announcement Monday, the Wisconsin Department of Justice’s Division of Criminal Investigation released a vast library of documents, including a 1,602-page investigative report, a 12-page cover letter, and 41 digital records including videos and photos collected after the shooting. The documents also include detailed diagrams, information about the weather, warrants, and pages of interviews with people who knew the student or were there that day. One teacher described him as “quirky” but said he appeared to interact well with his peers.

On May 1 and in the ensuing days, wild rumors and conjecture about the incident spread rapidly on social media. According to the statement issued by Ozanne as well as the case file, here is what actually happened:

On May 1, just after 11 a.m., a 911 caller indicated they saw a person walking past their home wearing a backpack and carrying a gun. Dispatch informed Mount Horeb officers that a person with a gun was seen by the tennis courts near the tree line, which is east of the middle school. A Mount Horeb police officer was in his squad driving through the parking lot behind the high school heading towards E. Garfield St. in the direction of the middle school. As the officer approached E. Garfield St. he saw a large number of students sprinting from a door at the middle school toward the baseball field. These students “were not smiling or goofing around, but instead appeared to be in fear and running for their lives.” The report said the officer saw that the children were “in pure fear and running for their lives.”

As the officer exited the parking lot turning right onto E. Garfield Street he observed an individual, with what appeared to be a rifle, pulling on a door of the middle school. The officer indicated the subject was wearing an oversized green jacket and tattered pants. The subject appeared to be an adolescent but the officer couldn’t tell at the time if the subject was male or female. The subject had what appeared to be a black rifle with a synthetic stock, black barrel. The officer feared the subject would get into the middle school and harm students inside. The officer stopped his squad facing eastbound on E. Garfield Street and exited with his rifle. At this time the officer was approximately 40 to 50 yards from the subject and was standing on the driver’s side of the squad. The officer immediately began to yell commands to the subject to drop the rifle and to move away from the school.

The subject did not comply with the demands to drop the rifle and instead turned to pull on the door of the school again.

The subject then began to walk toward the officer. The officer moved toward the back of the squad. At this time the subject had the rifle across his body. As the subject continued toward the officer he pointed the rifle toward the officer. The officer continued to give commands to the subject to not point the rifle at him and to put the rifle down. As the subject got closer, the officer could tell he was a male. The subject pointed the rifle at the officer’s face. The officer said he believed he was going to die and would never see his children again. The officer continued to move around the squad for cover as the subject continued to move toward the officer. The officer fired one to two shots at the subject from about 20 yards away. The subject moved and the officer tried to keep the squad between them. The subject continued to not follow commands. The officer saw two squads with lights activated to the west on E. Garfield St. The officer believed shots were fired by other officers or the subject. The officer heard shots fired and then the subject flinched, appearing to have been hit in the back or on the side.

The subject then fell. The subject got up and moved around the squad and pointed the rifle at the officer. Shots were fired and the subject fell again near the curb on the north side of E. Garfield Street. While the subject was on his back he had the rifle across him and appeared to attempt to bring the rifle up when the officer heard additional shots, and fired his rifle at the subject on the ground. Officers approached the subject, removed the rifle from his body, and handcuffs were placed on the subject. The rifle had “Ruger” written on the stock. It was later determined the subject’s rifle was a Ruger air rifle. The subject was identified as a juvenile with the initials DSCH, date of birth: 12-22-09.

“Firearms are dangerous weapons and pose a grave danger of bodily harm and/or death to an individual. Under these circumstances the air rifle DSCH possessed appeared to be a real firearm and the action of pointing it directly at law enforcement while advancing toward law enforcement was perceived to be a direct threat to the life of an officer,” said Ozanne. “Responding to that threat with deadly force is permitted under the law.”

Under Wisconsin law, which applies equally to members of law enforcement and to those who are not, any person may use deadly force to respond to a genuine fear of deadly force to that person or any other person. In this case, the Mount Horeb police officers were compelled to use deadly force when confronted by what they believed was evidence of a person with a firearm pointing the gun directly at an officer while advancing toward the officer’s position and not responding to commands to drop the firearm, according to Ozanne.

The role of the District Attorney’s Office in a case of this type is limited to a review of the facts to determine “whether further investigation is merited and, after all available evidence is obtained, whether criminal charges could be merited for any individual who has survived the incident.” Police executives and supervisors have the exclusive responsibility of establishing appropriate training and protocols for use in response to crisis events, and of selecting from among the tactical options available to police in responding to particular events.

This investigation was conducted by the Division of Criminal Investigation (DCI). In the case of a death caused by an officer, Wis. Stat. § 175.47 requires that at least two investigators from outside agencies or agencies not involved in the critical incident/Officer Involved Shooting (OIS) lead the investigation.

The Wisconsin State Crime Laboratory (WSCL) Field Response Team was requested for scene processing and evidence collection after the shooting. Control and security at the scene were maintained continually from the time of the initial response on May 1 until the conclusion of the scene examination at approximately 10:12 p.m. that evening. Control and security at the scene were maintained through the constant presence of the Mount Horeb Police Department, Dane County Sheriff’s Office, additional mutual aid departments, and/or DCI Agents conducting the scene examination. The Dane County Sheriff’s Office maintained a scene log which was included in the documents released to the public this week.

During the investigation, officials gathered a long list of items, including what appeared to be Molotov cocktails and fireworks containing shrapnel. Some of those objects were found in a backpack that had belonged to the student.

“The backpack would remain at that location until we were ready to render it safe, as we were heading to clear the car that the suspect had crashed prior to the incident at the school,” stated one of the investigators in the report. “The car was described to be containing a black bag and propane tank.”

The items included apparent firework debris, a pellet gun rifle, knives, lighters, tissue paper, glass bottle with clear liquid, swabs of apparent blood, unfired cartridge, fired cartridge casings, bullet fragments, and clothing. The identified items were labeled and photographed by the WSCL.

A statement written August 9 by Attorney General Josh Kaul stated: “The Dane County District Attorney determined there is no basis to prosecute the law enforcement officers involved, and DCI is releasing its case file pursuant to Wis. Stat. § 175.47(5)(b).” While the vast majority of the case file was released to media and the public, Kaul said that some material – including “Graphic images in photographs and video recordings of [the teen] at the incident scene and the Medical Examiner’s office, as well as reports of [his] injuries and the aid provided to him” – were not released to the public out of respect for the dead teen’s family and in accordance with state law.

Shortly after the District Attorney’s announcement, Mount Horeb Chief of Police Doug Vierck issued his own statement. In it, he offered condolences, hoped for healing, and cautioned that revisiting the incident could lead to additional trauma for some.

“The release of the decision by Dane County District Attorney Ozanne and the release of documents by the Department of Justice, marks another step forward in our community toward healing,” said Vierck. “We want to remind everyone that while there is information contained in the report that may help with understanding and healing, there are also clearly documented studies showing that watching videos and reading this material can cause further trauma for some. We urge you to make decisions about this released information on what is best for you. The police department would like to offer our support and sympathy to anyone struggling or affected by this incident. We understand that the healing is not over, but every step forward can lead to healing for our community.”

“School staff is preparing for students to return to school in a few weeks,” Vierck continued. “They have training, support, and activities ready to help with this transition. The police department will continue to work in partnership, as we have all along, to keep the students, staff, and community safe. This incident highlights the importance of collaboration, preparedness, and planning. Mount Horeb Police Department and Mount Horeb Area School District have prioritized school safety efforts, training, and school safety drills. In this situation, an armed individual was unable to access the school building.”

“We cannot thank the staff, students, and administration of the Mount Horeb schools enough for the cooperation in this investigation and the steps taken to ensure everyone was safe and accounted for,” Vierck concluded. “This tested the abilities of all law enforcement agencies within Dane County and beyond. We cannot express how proud we are of the courage all the officers and first responders displayed that day. They responded to an armed subject on school grounds and did not hesitate or delay. The response showed how many remarkable people are willing to put their lives on the line for our children and the community.”

Superintendent Dr. Steve Salerno called the account of what happened “a difficult, heartbreaking read” but added, “however, it repeatedly emphasizes the heroism of so many.”

Wisconsin Statute § 175.47 requires that, in the event of the death of an individual that results directly from “an action or an omission” of a law enforcement officer, the ensuing investigation must be conducted by an investigative team from an independent law enforcement agency. The Department of Justice (DOJ) Division of Criminal Investigation (DCI) served as that independent agency following the incident at Mount Horeb Middle School May 1. DOJ/DCI provided a complete report to the prosecutor for review.