NEENAH, Wis. (AP) - Wisconsin Attorney General Brad Schimel said Friday that he won’t file criminal charges against two police officers who shot and killed a hostage during a gun battle at a motorcycle shop last year, saying prosecutors wouldn’t be able to overcome a likely self-defense argument in court.
The officers mistakenly but honestly believed Michael Funk was a threat because he was armed and they had taken fire moments earlier as they tried to storm the shop, Schimel said.
“They were motivated to protect and preserve life,” Schimel said during a news conference. “Any jury would consider their actions were altruistic and would give them the benefit of the doubt.”
The state Department of Justice has been investigating Funk’s December death, speaking with 40 witnesses and reviewing audio and video recordings of the incident, Schimel said.
Agents believe 46-year-old Brian Flatoff arrived at Eagle Nation Cycles in Neenah, a city of 25,000 people about 100 miles northwest of Milwaukee, on Dec. 5 looking to confront a man he thought had stolen his motorcycle, Schimel said. According to a search warrant affidavit, the shop is a gathering point for the Hell’s Lovers, an offshoot of the Outlaws motorcycle club.
Dispatchers received a 911 call reporting a hostage situation at the shop. A person inside left his phone open as the situation continued. As police arrived, dispatchers relayed that the captor had told the hostages that if the person he wanted to talk to didn’t arrive within five minutes, he would start shooting.
A team of Neenah officers that included Robert Ross and Craig Hoffer immediately tried to storm the shop, shouting that they were police officers and to get on the ground. They were met with gunfire. Hoffer was hit in his helmet but wasn’t seriously hurt. At least one member of the team returned fire before the officers retreated down the alley. The officers told investigators that they began to believe the call was an ambush because the people inside were spread out and seemed too relaxed to be hostages.
Another burst of gunfire came from the shop. Moments later the officers saw Funk come out the door. Schimel said Flatoff had shot Funk in the buttocks as he fled.
Funk drew his own gun, Schimel said. Ross and Hoffer told agents they thought he was looking for targets and was a threat. As he turned toward them they opened fire, hitting him eight times. An autopsy showed Funk died immediately, said Assistant Attorney General Shelly Rusch.
Hoffer told agents that he thought he told Funk to show him hands before firing, but realized after watching Ross’ body camera footage that he yelled the warning after Funk was down. Schimel said training standards recommend a verbal warning before using force, but that it’s not always possible.
A negotiator eventually talked Flatoff into surrendering. He faces 16 felony counts, including attempted first-degree homicide.
Winnebago County prosecutors left it to Schimel to decide whether to charge the officers to avoid any conflicts of interest.
Investigators recovered a pistol from the alley that they identified as Funk’s. But Schimel said that in hindsight the officers were wrong to think Funk was a threat. Still, the attorney general said, the evidence shows their beliefs were reasonable given the situation.
Funk’s widow, Theresa Mason-Funk, has filed a $3.5 million claim against the city. Kay Reetz, who wore an Eagle Nation shirt to the news conference, described herself as a friend of Funk’s. She called Schimel’s decision not to charge the officers “absurd,” saying he relied too heavily on officers’ statements.
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