Duke Behnke

USA TODAY NETWORK-Wisconsin

NEENAH - Police officers gave hostage Michael L. Funk no warning to drop his handgun before they shot and killed him Dec. 5 outside Eagle Nation Cycles, according to video evidence obtained exclusively by USA TODAY NETWORK-Wisconsin.

A prepared statement that was issued by Neenah Police Chief Kevin Wilkinson about 10 hours after the shooting said Funk was shot after he didn’t obey police commands to drop his handgun.

In addition, the criminal complaint against accused hostage-taker Brian T. Flatoff stated Menasha police officer Raymond Berna heard officers yell, "Police, show me your hands" or "Police, drop the gun" before officers shot Funk.

The video, which was recorded by a dashboard camera of a Neenah police car, contradicts those statements.

Wilkinson acknowledged that point Thursday afternoon after the video was made public.

"The video does not give any indication that there was a verbal command given directly to Michael Funk before he was shot," he said.

Neenah police shoot hostage Michael L. Funk | Extended footage

Neenah police shoot hostage Michael L. Funk | Full video

Wilkinson said the Dec. 5 information about Funk ignoring police orders came from witness statements. "If it turns out that there were no commands, as we don't hear in this video that you posted today, then that would indicate that those witnesses were wrong," he said.

The police chief said there is no legal or policy requirement for officers to give a warning before shooting when there is an imminent threat.

The Wisconsin Department of Justice is investigating the shooting but has not released its findings. Wisconsin law requires that an independent agency investigate when police kill a person.

USA TODAY NETWORK-Wisconsin filed public records requests for video with the DOJ, Neenah Police Department, Winnebago County Sheriff's Department and Winnebago County District Attorney's Office. None of the requests have been granted.

Wilkinson previously said he wanted video evidence released to the public but that his hands were tied by the DOJ. He said that from his perspective and training, the video appears to show that officers "acted in accordance with their training."

"Ultimately, what I think is not as important as what the Attorney General's Office thinks, obviously," Wilkinson said. "They are the ones who will make the ruling whether it was a justified shooting or not."

City attorney Jim Godlewski declined to comment on the police actions shown in the video when reached by telephone Thursday. He said the city was leaving the analysis of the shooting to experts.

"The concern that we have is trying the matter in the press," Godlewski said. "We have consulted with experts in police operations, and they're the ones who really are able to say what was the proper approach, and also what the DOJ is going to end up saying."

Godlewski confirmed Wilkinson's statement that officers aren't required to give a warning before shooting.

"The policy or state law does not require a warning because they were facing immediate danger," Godlewski said.

The Neenah Police Department’s use of force policy states an officer may use deadly force:

To protect him/herself or others from what he/she reasonably believes would be an imminent threat of death or serious bodily injury.

To stop a fleeing subject when the officer has probable cause to believe that the person has committed, or intends to commit, a felony involving the infliction or threatened infliction of serious bodily injury or death, and the officer reasonably believes that there is an imminent risk of serious bodily injury or death to any other person if the subject is not immediately apprehended. Under such circumstances, a verbal warning should precede the use of deadly force, where feasible.

Johnny Koremenos, the DOJ's director of communications and public affairs, declined to answer questions about the video or the investigation.

"As I’ve said before, we do not comment on ongoing investigations, and public records will be released when the investigation concludes," Koremenos said in an email Thursday.

Funk, 60, and two other men were held hostage by Flatoff in a dispute over a motorcycle. A so-called hasty team of five Neenah police officers tried to enter the building through a back door to rescue the hostages but were driven back by gunfire from Flatoff, who was armed with a machine pistol, according to the criminal complaint.

Neenah police officer Craig Hoffer was shot in the helmet and knocked to the ground during the gunfight. The officers retreated from the building and scattered in two directions.

Soon after, an out-of-breath officer radioed his assessment of the ordeal.

"We're not sure if these were actually hostages, or if it's a bait pile (trap for police), so we backed out," the officer said.

Minutes later, Funk escaped out the back door while Flatoff shot at him. No police were in the immediate vicinity. Funk either fell or dove to the ground and quickly got to his feet. He pulled a handgun from the small of his back as he took cover by Flatoff's truck and pointed the gun at the door in the direction of Flatoff. Funk had a concealed carry permit.

Funk then turned and took one or two steps and was shot multiple times by police officers, who were stationed about 75 feet away at the corner of Vicky's Beauty Shop. Some of the shots were fired after Funk fell to the ground.

Funk didn’t point his gun at police and didn’t fire a shot.

About 3½ minutes passed before police learned that the shooter was still inside.

The video confirms previous reporting by USA TODAY NETWORK-Wisconsin that Funk died at the scene and lay in the alley for at least 25 minutes, contrary to the Dec. 5 police statement that he received medical care and later died at a hospital.

Police brought an armored vehicle into the alley after Funk was shot, but they made no attempt to help him.

When Neenah acquired its armored military surplus truck in May 2014, police justified the acquisition to elected officials by saying it could be used for protection when confronting armed, barricaded suspects. They also said it could be used to evacuate people from an unsafe scene.

The video also shows three men exit Eagle Nation Cycles after the shooting. The first was identified as George and is believed to be George Fuerte, a tattoo artist who works in the building. The others were hostages Ryan Moderson and Mike Petersen.

In the early minutes of the video, police apprehended a driver on nearby Smith Street, thinking he might be the shooter. Shortly thereafter, Flatoff warned that if police were called, the hostages would be killed. Police were receiving information through an open telephone line.

Officers had Flatoff's name and description and knew he was armed with a machine pistol before they stormed the building. They also knew there were three or four hostages inside. The decision to enter came after police got word through a dispatcher that if Flatoff's demands weren't met "within the next minute or so, everyone is going to die."

Flatoff, 46, of Stevens Point faces 11 felony charges, including felony murder and attempted first-degree intentional homicide, in connection with the standoff and shooting that led to Funk's death. He also faces five felony charges in the case for a disturbance that preceded the standoff.

In March, Howard Schoenfeld, attorney for Funk's widow, Theresa Mason-Funk, filed a $3.5 million wrongful death claim against Neenah and three Neenah police officers.

Schoenfeld declined Thursday to comment on the video obtained by USA TODAY NETWORK-Wisconsin.

"I conduct the important and private business of my clients in the privacy of my office or in the courtroom," he said. "That way a level playing field is ensured for all parties involved in this unfortunate and tragic situation."

FULL COVERAGE: Eagle Nation Cycles shooting

Duke Behnke: 920-993-7176, or dbehnke@postcrescent.com; on Twitter @DukeBehnke