accurate account of the shooting and dismissed. 8 In an unrelated incident on June 9, a black man was fatally shot by a police officer during the course of an investigation of a disturbance. The officers stated the man fired at them first. His wife gave conflicting evidence; she told police she was asleep throughout the incident but she told the press the officer had fired first, and for no apparent reason.9 In August 1975 two Omaha police officers answering a call of a burglary in progress at a service station shot and killed Roy Lee Landrum as he fled from the scene. Landrum's mother filed a civil rights action pursuant to 42 U.S.C. sec. 1983(1976) against the two officers. Neither officer ever asserted that Landrum had used or threatened to use deadly force in commission of a felony or that he posed a threat to their safety or the safety of anyone else. The officers based their defense on a good faith reliance on the police division's policy then in effect. This policy, in contradiction of the State law, allowed firearms to be used when the officer had reasonable grounds to believe a felony had been committed. The appellate court determined that under the State law, excessive force had been used by the officers but that the validity of their good faith defense was a jury issue. A new trial was ordered.10 The case was settled, though, before it came to trial again.11 In 1976 a police officer who shot at a fleeing car from his cruiser was accused of "poor judgment" by then Police Chief Andersen but was cleared of violating police procedures. Chief Andersen stated that while shooting at a fleeing felon was appropriate, doing so when there was minimal chance of hitting him was not.12 The incident provoked protests from north Omaha residents who contended that the chief's characterization of the shooting as "poor judgment" would encourage "dangerous, unprofessional actions."13 In January 1977 a police officer fatally shot a suspect fleeing from an investigation. The chief attempted to fire the officer for failing to run a license check that would have disclosed the suspect was wanted on a felony conviction. The personnel board voted to reinstate the officer.14 According to statistics provided by the Omaha police division there were no fatal firearm discharges in 1978. However in 1979 there were two fatalities.15 In August 1979 the fatal shooting of a black Omaha resident again sparked controversy, although the police ruled that the officer acted in self defense. In September 1979 two officers, responding to a report of a gun having been fired, fatally shot a northside Omaha resident after he fired and wounded one of them.16 Statistics provided by the Omaha police division indicate there were six incidents in 1980 when officers fired their weapons. Two of the incidents were categorized as "animals destroyed." There was one accidental discharge but no injuries or fatalities were recorded for the year. 17 There were three incidents in 1981 when firearm discharges caused injuries or death. In September a plainclothes detective was shot by another officer who mistook the detective for a fleeing burglary suspect. In October a burglary suspect was shot and killed by officers after an extensive chase. The suspect had shot at police during the chase and was fired upon when he continued approaching the officers with a loaded shotgun.18 Later in October an officer was accidentally shot by another officer during an exchange of fire with a burglary suspect and police. The suspect was fatally wounded. 19 The Omaha police division has a written policy on the use of firearms, dated March 1981, which follows the State law and gives specific guidelines. The guidelines, found under the rules of conduct in the police manual, provide: The sidearm is a Police Officer's professional tool. He must keep himself as adept and skillful in its use as possible for the protection of the public as well as his own personal protection. He must exercise the greatest caution in the use of such firearm, not only to avoid injuring innocent persons, but to avoid firing unnecessarily. An officer of the Omaha Police Division may use his firearm in the performance of duty for any of the following reasons: (a) To defend himself from death or serious injury. (b) To defend another person from death or serious injury. (c) To effect the arrest or capture, or prevent the escape or rescue, of (2) An officer shall not shoot at a fleeing felon whom he has escape of such a suspect can reasonably be expected to pose a serious threat to the life of another person, then, under these circumstances, an officer may shoot to prevent the escape of such person. (3) A locally stolen vehicle that is not connected with any other felonious crime should not be considered a violation which would permit the "use of deadly force." Deadly force should not be used in effecting the arrest or capture of perpetrators of this crime. (4) The "use of deadly force" is prohibited in the apprehension of parties suspected of felony traffic violations. 201 Nondeadly Use of Force While arguably the city has sufficient policies on the use of deadly force to prevent unnecessary use of firearms, there is no written policy on the use of nondeadly force. Another section in the rules of conduct provide what little guidance can be found in the police manual: No officer or employee of the Division shall abuse, orally or physically, any person in his custody, or any other person during the performance of his duty. He shall use only such force as may be reasonably necessary to effect an arrest, to defend his person, or to defend the person of another.21 Nebraska State law regarding use of force generally provides that the use of force is justifiable if the officer believes such force is immediately necessary to effect a lawful arrest. Under the statute the use of force is not justified unless: (a) The actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and (b) When the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.22 Acting Chief Jack Swanson told staff that the officers are indoctrinated and trained regarding the amount of force necessary to effect arrest and maintain the peace. He said that rather than depend on detailed written policies, he preferred to rely on the discretion of the individual officers and their knowledge of the law. Acting Chief Swanson summarized his interpretation of the requirements on the use of force by saying that officers can use whatever force is necessary to prevent injury to themselves and others.23 George Ernce, president of the police union, when asked about the police division's written policies on use of force stated that he personally relied on the State law. He did not believe the division needed any more written policies on the use of force.24 Some Omaha residents disagree. A.B. "Buddy" Hogan said that he thought there were situations where more force than necessary had been used by the police. Mr. Hogan complained that there are no escalation of force provisions for police officers to follow. 25 Clyde Christian alleged that in the last two years there had been an increasing number of incidents of brutality.26 Wilda Stephenson said she thought confrontations between the police and blacks had increased in the recent months.27 Wayne Tyndall, director of the American Indian Center of Omaha, alleged that police officers use excessive force when arresting American Indians. He also asserted that, when there is no other reason to arrest an American Indian suspect, officers will harass suspects until they physically react and then arrest them on assault charges. 28 Within the last several years the Omaha World-Herald has reported several incidents of alleged use of excessive force. In a 1977 incident, white residents alleged excessive force was used when they were arrested. The police division officially cleared the officer of any wrongdoing.29 In 1980 a black motorist, arrested for disorderly conduct, driving without a license and resisting arrest, alleged that the arresting officer used excessive force. The officer was cleared by the police division of any wrongdoing. The same officer was involved in a shooting incident in 1977 which left the black suspect dead. He was cleared by the police division of any wrongdoing in that episode.30 A north side Omaha man, charged in 1980 with use of terroristic threats, brought suit in mid-1981 against six Omaha police officers for excessive use of force. The charges against the plaintiff were dismissed. The police reported that two of the officers accused were injured in the incident. The case is still in the discovery stage. 32 31 While written policies on escalation of force will not end confrontations between police and the minority community, the policies may decrease the allegations of use of excessive force when those confrontations occur. In Model Rules for Law Enforcement Officers, A Manual on Police Discretion, copyrighted in 1974 by the International Association of Chiefs of Police, model rules governing escalating use of force are indicated. Whenever a police officer finds it necessary to use nondeadly force to achieve a lawful police objective, it shall be incumbent upon that officer to exhaust every reasonable means of employing the least [original emphasis] amount of force to effect the purpose before escalating to the next, more forceful method. However, nothing in this rule shall be interpreted to mean that an officer is required to engage in prolonged hand-to-hand combat or struggle rather than resort to that method which will most quickly and safely bring the arrestee under control.33 The lowest, least drastic method of a police officer using force would be physical strength and skill (holding, throwing, restraining, pushing, pulling...) Physical prowess is a reasonable method of overcoming the resistance of a person who is unarmed or simply failing to abide by the officer's lawful command to submit. There are few situations where an officer should resort to any force greater than physical prowess. |