Jackson Free Press

A Milwaukee police officer charged with killing a black man in August fired the fatal shot after the man had thrown his gun away and was unarmed, according to court documents.

Dominique Heaggan-Brown, who is also black, was set to appear in court Friday on a charge of reckless homicide in the Aug. 13 death of Sylville Smith, which sparked two days of riots on Milwaukee's north side. In the days after the shooting, both the police chief and the mayor had said that police video clearly showed Smith had a gun and was turning toward officers when he was shot. Thursday's criminal complaint echoed that, but went on to describe a second shot, fired into Smith's chest after Smith no longer had his gun.

Police Chief Edward Flynn called the charge "a little difficult to understand" and said he hadn't seen any obvious wrongdoing by Heaggan-Brown in the footage.

Heaggan-Brown, who was fired in October over an unrelated sexual-assault case, shot Smith following a traffic stop. After fleeing police, Smith turned with a gun and was shot once in his bicep, according to the complaint. The second shot occurred less than two seconds later, after Smith was lying on the ground with his hands near his head, according to the complaint.

Milwaukee County District Attorney John Chisholm said in the complaint that the video shows Smith throwing the gun over a fence after the first shot. Heaggan-Brown told state agents that he believed Smith's gun "flew" out of his hand over a fence after the first shot. The officer said he thought Smith was reaching for another weapon in his waistband so he fired the second shot.

Chisholm did not take any questions from reporters Thursday. His office said the video would not be released.

His attorney, Jonathan Smith, said that he hasn't seen any of the state's evidence but a read of the criminal complaint raises "issues." He didn't elaborate but promised a "vigorous" defense.

Smith's family issued a statement thanking Chisholm.

"We appreciate that the District Attorney has shown independence and sound judgment in prosecuting the officer who shot and killed Sylville," the statement said.

His mother, Mildred Haynes, told the Milwaukee Journal Sentinel the charge should have been tougher.

"He shot him in the arm and shot him again in the chest. ... To me, he shot to kill," she said.

Flynn said on the day after the shooting that Heaggan-Brown opened fire after Smith turned toward the officer and began to raise his gun despite warnings to drop it. The chief did not mention that Smith was unarmed when the second shot was fired and said it appeared to him the shooting was lawful.

Flynn reiterated that stance Thursday. He called the confrontation a "combat situation" and said the brain needs time to tell the finger to stop pulling the trigger. He said he hopes Chisholm has more evidence that hasn't been released because he doesn't want his officers to face deadly offenders and get no allowance for stress.

"The officer doesn't get to act in slow motion," Flynn said.

Mayor Tom Barrett said on the day after the shooting that he had seen a still photo from the video that showed Smith facing Heaggan-Brown with a gun in his hand. Barrett told reporters on Thursday that he still hasn't seen the video and called on prosecutors to release it.

Flynn, who first saw the video in August, said he wasn't going to pressure Chisholm to release it, saying jurors should see the footage with fresh eyes.

The night of the shooting, demonstrators burned six businesses and a police squad car and threw rocks and bottles at police. More violence broke out the next night, with one man being shot and injured and protesters again throwing rocks and bottles at officers. Police arrested about 40 people over the course of three nights. Flynn blamed protesters from outside of Milwaukee for much of the unrest.

Newly elected state Rep. David Crowley, a Democrat whose district includes the predominantly black neighborhood where Smith was shot, called the charge "a step toward accountability when it comes to officer-involved shootings."

The case that led to Heaggan-Brown's firing stemmed from an incident the night of Aug. 14. According to a criminal complaint, Heaggan-Brown and another man went to a bar where they drank and watched television coverage of the unrest. The man told investigators that Heaggan-Brown bragged that he could do anything he wanted without repercussions and he woke up to Heaggan-Brown sexually assaulting him.

Heaggan-Brown also was charged with soliciting two other people for sex several times since December 2015 and with sexually assaulting another unconscious person in July 2016 and photographing that victim naked.