The Milwaukee police officer who fatally shot Sylville Smith, setting off violent protests in the Sherman Park area in 2016, was acquitted of homicide charges, but that didn't inoculate him against a federal civil rights lawsuit from Smith's parents.

The judge in that 2017 case recently rejected the city's claim that the former officer, Dominique Heaggan-Brown, was protected by qualified immunity and the suit should be thrown out. The city has now appealed that ruling, a move that will likely delay any trial for months.

U.S. District Judge Lynn Adelman agreed with the plaintiffs that there are too many disputed facts to throw out the case, like whether the officers, in fact, called out warnings, and may have been looking to provoke a confrontation.

Adelman said at this stage in the case, viewing the facts in a light most favorable to the Smiths, a jury could find that Heaggan-Brown violated Smith's clearly established constitutional rights when he chose to use deadly force against the 23-year-old.

Adelman said that the totality of the circumstances suggests an unreasonable use of force, in part because the officers did not originally engage Smith in response to a report of a serious crime

"Indeed, under plaintiff’s version of events, there was no illegal conduct on Smith’s part that would have warranted any police scrutiny, much less a crime involving the infliction (or threatened infliction) of serious physical harm necessary to justify deadly force."

The judge also noted police radio discussions among the officers about trying "to see if we can get another foot chase," suggesting they were trying to provoke an altercation, which would bar them from the benefit of qualified immunity.

"Perhaps the officers did not themselves create the danger they perceived, but really were simply anticipating a foot chase; however, I cannot rely on that interpretation when viewing the facts in favor of the plaintiff at summary judgment, particularly where the plaintiffs’ interpretation is the seemingly obvious one based on the actual statements caught on audio."

Even the fact Smith had a gun did not create "an irrebuttable or ironclad presumption" that he posed an imminent threat, Adelman found. He said however reasonable the officer's first shot might have been, the second, while Smith was unarmed, on his back with his hands over his head, raises questions for a jury.

The city's appeal will likely delay the case for several months.

Car parked too far from curb

Heaggan-Brown and two other officers were doing overtime patrol Aug. 13, 2016, before the start of their regular 4 p.m. shifts.

They pulled up on a car parked too far from the curb on North 44th St. near West Auer Ave. that they suspected of being involved in a drug transaction. Smith ran from the car with a gun and turned into a gangway between two nearby homes when he fell at a fence and dropped his gun.

Heaggan-Brown, who was chasing Smith on foot along with another officer, shot him once in the arm as Smith rose from the ground, grabbed the gun and turned partly toward the officers as he threw the gun over the fence. Less than two seconds later, after Smith had fallen to his back, Heaggan-Brown shot Smith in the chest

Heaggan-Brown was tried on a charge of reckless homicide and a jury found him not guilty. His attorney argued the officer acted in self-defense.

While he was under investigation in the Smith shooting, Heaggan-Brown was charged with unrelated sex crimes and fired for those offenses. He was convicted and sentenced in 2018 to three years in prison.

Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.