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The Nebraska law states that deadly force is not justified unless:

(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.

1,6

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. ? 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

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.

ar. 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

18 continued approaching the officers with a loaded shotgum. 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
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

25 for police officers to follow. Clyde Christian alleged that in the last

26 two years there had been an increasing number of incidents of brutality. 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

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