Document: Read the arbitrator's decision
A labor arbitrator has reinstated the second of two Omaha police officers who were fired last year after a controversial arrest, a decision that largely concludes months of legal battles over the incident.
Sharon K. Imes, a Wisconsin-based arbitrator, said city attorneys did not submit persuasive evidence that Officer Aaron Pennington used excessive force during a forceful May 29, 2011, arrest outside Creighton University Medical Center.
Plus, Imes wrote in her decision, “the city acted arbitrarily when it decided termination was the appropriate degree of discipline to impose.”
The head of Omaha's police union said Monday that then-Police Chief Alex Hayes' decision to fire Pennington and Dolinsky was “politically motivated.”
Hayes moved in September 2011 to fire Pennington and Officer Jackie Dolinsky for their roles in the videotaped fight outside Creighton University Medical Center. Imes reinstated Dolinsky to the force earlier this year.
Controversy erupted after security video footage from the 2011 incident showed officers forcefully taking Robert A. Wagner into custody.
A crowd had gathered at the hospital after a reputed gang member was shot and killed in northeast Omaha. Many in the crowd initially thought police had shot the man. Officers reported the crowd was hostile.
Officers told Wagner to leave, but a brawl ensued when Wagner refused and allegedly punched one officer in the head.
Video from a hospital security camera showed Pennington pulling on Wagner's head before delivering punches, kicks and stomps as other officers worked to cuff Wagner.
But nothing in the record establishes where Pennington's strikes landed, Imes concluded in her report. The video evidence wasn't sufficient to prove that Pennington used excessive force or that his kicks landed on Wagner's head, she wrote, also concluding that interviews with other witnesses were unreliable.
Part of the city's argument was that Pennington's kicks were directed at Wagner's head and neck area. Such techniques are unreasonable and aren't taught to officers in the police academy, the city argued.
“It was clearly very unorthodox,” Wells said of Pennington's actions, “but there were some mitigating circumstances, that you'll read about in this decision, that explains why he did what he did.”
Imes wrote that Wagner was showing high levels of resistance during the arrest, and she concluded the officers' reactions were reasonable.
She reached similar conclusions when deciding to give Dolinsky her job back last year.
Her written decision about Pennington details how the Police Department's investigation unfolded: A police shift supervisor expressed concerns about Dolinsky's and Pennington's use of force after reviewing the tape shortly after the arrest. By June 11, 2011, an internal investigation was approved by the chief. Under the police union contract, discipline against an officer must be imposed within a certain time frame. A portion of the video of Wagner's arrest was leaked to the public Aug. 30, as Hayes reviewed a summary of the investigation's findings. Two days later, Hayes ordered internal affairs investigators to interview the police academy's defensive tactics training instructor. He also unsuccessfully asked the union for more time to complete the investigation. Hayes notified Pennington of his firing in a Sept. 2 letter. “... One must seriously question why (Hayes) did not immediately suspend (Pennington) pending results from an investigation since he testified that he had reviewed the video shortly after the incident occurred when he was asked to authorize an investigation of the incident and since he considered (Pennington's) conduct serious enough to warrant termination,” Imes wrote in her decision. Sgt. John Wells, the police union president, said Monday that Hayes “actually waited until this video was released publicly to take any action as far as discipline.” “That's been one of our points all along, that this was politically motivated, that it wasn't excessive force,” Wells said. “No, the video doesn't look good to the public eye,” Wells said. “But if you break that video down into its components it is certainly explainable.” Hayes, who retired in March, did not return calls Monday seeking comment. In the past, he has said the timing of the officers' firing was coincidental to the public uproar over the video. The arbitrator's decision cannot be appealed. It's not clear when exactly Pennington, who has served with the department since 2006, will return to work. He'll undergo some training before returning to the street. He likely won't immediately return to work in the city's northeast precinct. “Obviously, it's probably not in the department's or the community's best interest at this point — because of the volatile nature of it and just the emotionally charged situation — for him to immediately go back and work the northeast precinct,” Wells said. “And I think Officer Pennington recognizes that as well.” Pennington is entitled to back pay for months of missed work, though he'll be docked two days' pay. That penalty is for failing to include information in a report to the chief about two kicks Pennington delivered to Wagner. Wagner has a pending federal lawsuit against the city and a number of police officers, alleging that his civil rights were violated during the arrest. Wells said Pennington “looks forward to becoming a productive officer of the Omaha Police Department again and moving on with his career.”
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Video of Robert Wagner arrest