A tape of an Omaha police arrest has raised questions about excessive force. But authorities say the tape doesn't depict the whole story — and a review by the city prosecutor ended with no charges against the officers.
The tape, shown Tuesday on public access TV, shows police using force while taking Robert A. Wagner, 35, into custody outside Creighton University Medical Center shortly after Wagner's cousin was shot and killed on May 29. At one point, a female officer kicks Wagner repeatedly as he lies on the ground.
But authorities note that the tape doesn't show what happened before the arrest. Wagner is accused of pushing one officer and punching another, said Omaha City Prosecutor Marty Conboy.
Wagner is charged with felony assault of an officer in connection with the incident. A pretrial hearing in the case was scheduled for Wednesday morning, but was postponed. Wagner declined to comment.
Conboy said the officers involved in the incident will not face criminal charges.
The tape shows a female officer kicking Wagner three times in the right shoulder or head area. Conboy said it also shows what looks like Wagner taking a swing as he enters into the view of the hospital's security camera.
"The problem with this video is you don't see everything that was going on before," Conboy said.
The police report says that Wagner was asked to leave the hospital due to disorderly contact. He was cussing, yelling, and egging others in the waiting room to yell, the report said. At one point, Wagner was heard screaming, "You are a bunch of killers."
Wagner eventually walked into the hospital's parking lot, where he continued to yell. Officer Scott Zymball approached and tried to grab Wagner's arm. Wagner turned and pushed Zymball, yelling at the officer to take his hands off, the report said.
Zymball again tried to grab Wagner's arm. Wagner then punched the officer in the back of the head, the report said.
Officers used a Taser on Wagner as a struggle involving six to eight officers ensued.
Wagner was one of several family members at Creighton after the fatal shooting of gang member Jimmy Levering.
A family member of Levering and Wagner said Wagner was very emotional, as was everyone that night at the hospital. The family member said Wagner walked out on his own after yelling at City Councilman Ben Gray, who is involved in the city's gang intervention efforts.
Gray said he didn't take Wagner's comments personally. He also didn't see the parking lot incident with police.
Douglas County Attorney Don Kleine said his office will monitor the case to determine if the U.S. Attorney's Office should become involved.
Conboy said that Wagner was not injured and did not file a formal police complaint.
Conboy said he decided not to file criminal charges against the officers after Police Chief Alex Hayes had his department's internal affairs unit turn over the tape. Conboy received the tape on June 21 and made his decision on June 28.
Conboy said under Nebraska law, people can meet force with whatever level they feel is necessary. It's a subjective standard, he said.
In this case, Conboy said, it is hard to gauge the mind frame of the officers at the time of the incident.
"My decision is not based on if it is appropriate but if it is criminal," he said.
Police spokeswoman Lt. Darci Tierney said any time officers use force they are required to submit additional reports for the department's safety review committee. In this case, the review prompted an internal investigation that is ongoing. The investigation is expected to be completed in the next few weeks, Tierney said.
The names of the officers involved in the incident are not being released, and they all remain on the job, she said.
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