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86. Marvin McClarty, James Patterson and Robert Dacus, interview in Omaha,

Dec. 8, 1981.

87. Ibid.

88. Gary Troutman, interview in Omaha, Dec. 9, 1981.

89. Marvin McClarty, James Patterson, Robert Dacus, interview in Omaha,

Dec. 8, 1981.

In commenting on the draft, Mr. Troutman said that the

personnel department had offered to review the tests but had no response.

However, the department believes it could be of some assistance and is ready

to give assistance, Gary Troutman, comments on draft, Apr. 28, 1982.

90. Gary Troutman, interview in Omaha, Dec. 9, 1981.

91. Gary Troutman, interview in Omaha, Dec. 9, 1981 and Omaha World-Herald,

Nov. 11, 1981.

92. Gary Troutman, interview in Omaha, Dec. 9, 1981.

93. Marvin McClarty, James Patterson and Robert Dacus, interview in Omaha,

Dec. 8, 1981.

94. Gary Troutman, interview in Omaha, Dec. 9,

1981.

95. Gary Troutman, interview in Omaha, Dec. 9, 1981.

96. Marvin McClarty, James Patterson, Robert Dacus, interview in Omaha,

Dec. 8, 1981.

97. James Patterson, Robert Dacus and Marvin McClarty, interview in Omaha,

Dec. 8, 1981 and Omaha Police Manual, Vol. I, Trng 4-1, p. 1, November 1977.

98. Omaha Police Manual, Vol. I, Trng 4-1, p. 1, November 1977. 99. National Advisory Commission on Criminal Justice Standards and Goals, Police (1973), p. 392.

100. U.S. Commission on Civil Rights, Who Is Guarding the Guardians? (October

1981), p. 25.

101. James Patterson, Marvin McClarty and Robert Dacus, interview in Omaha,

Dec. 8, 1981.

102. Ibid.

103. Erven McSwain, interview in Omaha, Dec. 9, 1981.

104. Gary Troutman, interview in Omaha, Dec. 9, 1981.

105. Lt. Raymond P. Sorys, inter-office communication to Coordinator Alfred P.

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110. Francis Smith and others, interview in Omaha, Aug. 27, 1981.

111. Alvin M. Goodwin, Jr., telephone interview, Nov. 5, 1981 and Luke

Nichols, interview in Omaha, Aug. 27, 1981.

112. Mary Larsen, interview in Omaha, Aug. 26, 1981.

113. Ibid.

CHAPTER 4

USE OF FORCE

The National Advisory Commission on Criminal Justice Standards and Goals

has stated that:

Every police agency should define situations in which force is permitted, establish a range of alternatives to its use, and restrict it to the minimum amount necessary to achieve lawful police objectives.l

Deadly Force

The importance of policies on use of force, especially deadly force, was

stressed by the U.S. Commission on Civil Rights in its report on police

practices:

Clearly-defined policies and guidelines are vital in the sensitive area of police use of deadly force because an officer may not have even a few seconds in which to assess the situation and decide whether to fire. There is little opportunity to determine the nature of the offense committed, the identity and age of the suspect, the reason for his flight, or whether he is carrying a weapon. Snap judgments on these factors often lead to tragic, unnecessary shootings and loss of life. Moreover, since this is a fleeing suspect, authorizing the officer to shoot essentially makes a police officer the prosecutor, jury, sentencing judge, and executioner, all in one moment. 2

Use of firearms, deadly force, by police officers has always been a matter

of concern for minorities. Paul Takagi, commenting in Crime and Social

Justice on the disproportionate number of black persons killed by police officers nationwide, stated that "police have one trigger finger for whites and another for blacks."-3

Nebraska is one of the States which has adopted the Model Penal Code on use of force.4 This means that the decision to use deadly force is based on the danger presented by the actions of the suspect, not the crime committed.

This contrasts with the common law rule which allows deadly force to be used

against any person suspected of committing a felony. The problem with the

common law rule which has been codified by many States, is that today there are many more crimes than in the past, some not dangerous, that are classified The Nebraska law states that deadly force is not justified unless:

as felonies.

(a) The arrest is for a felony;

(b) Such person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer;

(c) The actor believes that the force employed creates no substantial risk of injury to innocent persons; and

(d) The actor believes that:

(i) The crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or

(ii) There is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.5

Adoption of the Model Penal Code by the State in 1972 has not prevented

Omaha police from being involved in controversial incidents regarding the use

of force.

In January 1974 a police officer shot and wounded a 15-year-old who was

fleeing from a stolen car. Eyewitness accounts of the incident varied.

Some

stated that the officer firing the shot was within grabbing distance of the

youth when he fired. Others stated that another officer chasing the youth was

in grabbing distance.

One person stated that the officer who fired the shot

had yelled a racial slur at the youth before firing. Then Chief Richard

Andersen stated that the officer was authorized to fire because he was

attempting to prevent escape of a felony suspect, even though he acknowledged

such offenses are frequently reduced to misdemeanor charges. He asserted that

"If the crime later is determined to be less than a felony, that does not take away the officer's right to make a felony arrest.16

There was a series of incidents in the summer of 1974.

On June 6 the

police were involved in a shootout with a sniper in the course of which one officer was killed and several others seriously wounded. 7 In the aftermath,

a black woman was shot by an officer in the course of her arrest for

disorderly conduct.

The officer was accused by the division of not giving an

8

accurate account of the shooting and dismissed.

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

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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

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