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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

17 but no injuries or fatalities were recorded for the year.

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

18 continued approaching the officers with a loaded shotgun. 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 innecessarily.

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
a person whom the officer knows or has reasonable grounds to believe has
committed a felony, when the crime for which the arrest is made involves
conduct including use or threatened use of deadly force or when there is
a substantial risk that the person to be arrested will cause death or
serious bodily harm if his apprehension is delayed when : [sic]
(1) Such force may only be exercised when all reasonable alternatives

have been exhausted and must be based only on facts or what
reasonably appear to be the facts known to the officer at the
moment he shoots. It is not practical to enumerate specific
felonies and state with certainty that the escape of the
perpetrator must be prevented at all costs or that there are
other felonious crimes where the perpetrator must be allowed to
escape rather than shoot him. Such decisions are based upon

sound judgment, not arbitrary check lists.
(2) An officer shall not shoot at a fleeing felon whom he has

reasonable grounds to believe is a juvenile. However, when the
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. 20°

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

The

residents alleged excessive force was used when they were arrested. 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

31 reported that two of the officers accused were injured in the incident. The case is still in the discovery stage.

32

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.

Chemical mace should be used only if physical strength and skill are ineffective or impractical.

In instances where physical strength and skill or mace are ineffective or their use might constitute a danger to the officer or a third party, the officer is justified in using the baton or sap to overcome resistance and to end the conflict.

The application of the baton is considered the most drastic form of nondeadly force. It must be used judiciously and only if lesser methods have failed or their use would be impractical.34 As a basic rule, firearms should be utilized only (original emphasis) in self-defense or in defense of another against death or grievous bodily harm.35

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