Video: Click here to see video of Robert Wagner arrest.
The decision to reinstate an Omaha police officer fired for her involvement in a forceful arrest of a local man was welcomed by the city's police union and decried by activists concerned about the perceived use of excessive force.
An independent labor arbitrator ruled to reinstate Officer Jackie Dolinsky, a four-year veteran of the Police Department, the city and police union announced Thursday.
The decision came one year after Dolinsky was involved in the controversial arrest of Robert A. Wagner outside Creighton University Medical Center.
Former Police Chief Alex Hayes elected to fire Dolinsky and Officer Aaron Pennington for their roles in the videotaped scuffle.
The police union contract, however, allows officers to appeal disciplinary actions publicly to the city's Personnel Board or, as Dolinsky did and Pennington will do, privately before an independent arbitrator. The arbitrator's decision cannot be appealed.
Three days of private hearings were held at City Hall late last month. Documents or rulings related to arbitration proceedings are not released publicly.
Dolinsky will be disciplined in an unspecified manner and will receive additional training, as part of a reinstatement agreement between the city and police union. In two years, Dolinsky can ask to have any record of her discipline removed from her personnel file.
It's unclear when she will return to work, said Sgt. John Wells, head of the police union.
It is also unclear where Dolinsky will be assigned. She won't immediately return to her post in the city's northeast precinct, a person with knowledge of the situation told The World-Herald.
Pennington's arbitration proceedings are scheduled to begin later this summer.
Sam Walker, a professor emeritus of criminal justice at the University of Nebraska at Omaha, called Dolinsky's reinstatement “outrageous.”
“There is no legitimate law enforcement purpose for her kicking him,” he said. “I defy people to show me the law enforcement policy that justifies kicking.”
Wells, the union president, said: “The use of force is never this clean, exact science. Street fights just aren't. In this case, we've pretty much stated all along that we looked forward to stating all the facts because we feel the use of force is justified.”
Wagner said he wasn't surprised by Dolinsky's reinstatement.
“They (police officers) do what they're allowed to get away with,” he said, and their superiors should be the ones held accountable.
Wagner pleaded no contest in May to attempted assault of a police officer, a misdemeanor, for his role in the incident. He faces up to a year in prison, a $1,000 fine or both when he is sentenced later this month.
“I never felt that the situation was fair, it's just how things played out,” he said.
Controversy erupted after security video footage showed officers forcefully taking Wagner, 35, into custody on May 29, 2011, outside the medical center.
An emotional crowd had gathered at the hospital after Jimmy Levering was pronounced dead there shortly after he was shot outside a northeast Omaha bar. Wagner, one of Levering's cousins, allegedly refused orders to leave the hospital and punched one officer in the head.
Video doesn't show the punch but does show Dolinsky using a Taser on Wagner, then delivering a series of kicks as other officers struggled with him. Pennington is seen pulling on Wagner's head before delivering punches, then kicks and stomps as other officers worked to cuff the man.
After the footage became public, outraged community activists renewed calls to revive the city's dormant public safety auditor position.
Dolinsky and Pennington were placed on administrative leave at the beginning of September and were later informed of Hayes' decision to terminate them. Dolinsky joined the department in 2007; Pennington, in 2006.
Under the city's police contract, officers can be disciplined for offenses including abusive or improper treatment to a person in custody unless the action was necessary for self-defense, to protect the lives of others or to prevent a suspect's escape.
Discipline can include a written reprimand, suspension without pay, demotion or firing.
Any discipline, though, can be appealed. In Dolinsky's case, the decision to reinstate her fell to a lawyer certified as an arbitrator by the Federal Mediation and Conciliation Service. The arbitrator's name was not made public.
Arbitration hearings, though private, largely resemble court proceedings. Both sides can introduce evidence to support their case, call witnesses and conduct cross-examinations.
“One of the problems with the arbitration process is that arbitrators like to ‘split the baby,'” Walker said. “When you have a termination case, splitting the baby means the person gets their job back. I think that's just wrong.”
Though the written ruling won't be made public, the city and police union said it referenced a 1989 U.S. Supreme Court decision that an officer's use of force is permissible if it is “objectively reasonable.”
In a joint statement issued Thursday, the city and police union said that court held that the reasonableness of any use of force “must be judged from the perspective of a reasonable officer on the scene.”
“The application of 20/20 hindsight is not acceptable,” the statement said. Allowances must be made for the fact that officers must often make split-second judgments in rapidly evolving circumstances, it said.
“(The ruling) just reinforces that what officers believe to be the approach to their jobs is actually correct,” Wells said.
World-Herald staff writer Sam Womack contributed to this report.
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