Update: Two former Omaha police officers accused of criminal wrongdoing made their first appearances on Tuesday. A Douglas County Judge set bail for James Kinsella at $5,000, meaning the ex-officer must post $500 – or 10 percent – to be released from jail.
Kinsella turned himself in at the jail at 7:45 a.m. on a felony charge of evidence tampering and misdemeanor obstruction and theft. He is accused of throwing away a memory card containing video of the arrest of the Johnson brothers near 33rd and Seward Streets.
He appeared in court in the orange jumpsuit worn by all jail inmates.
Fired Sgt. Aaron Von Behren faces two misdemeanor counts — that he obstructed a government operation and that he was an accessory to a felony. He received a citation earlier Tuesday and was allowed to remain free on his own recognizance.
It's hard to know whether any of the allegedly criminal activity by two Omaha police officers on March 21 would have been exposed without the 6-minute, 11-second video a neighbor posted on YouTube, Douglas County Attorney Don Kleine said.
But one thing is clear: It's what went on outside the view of the camera lens — and in the hushed conversations of the officers involved — that led to charges Monday.
Fired Officer James Kinsella is charged with felony evidence tampering and misdemeanor obstruction and theft. Kleine said Kinsella admitted to throwing away a memory card containing video of the arrest of the Johnson brothers near 33rd and Seward Streets.
Fired Sgt. Aaron Von Behren faces two misdemeanor counts — that he obstructed a government operation and that he was an accessory to a felony. Von Behren tried to coordinate the stories of his officers and tried to cover up their actions, Kleine said.
Kleine said the public must know that no officer is above the law.
If convicted, Kinsella would face up to five years of probation or 20 months to five years in prison on the felony, and up to 18 months in jail on the misdemeanors. Von Behren would face up to two years on probation or a year in jail on each charge.
“We can't have this type of conduct — it's a betrayal of public trust,” Kleine said. “It is a stain on all good persons involved in law enforcement and a strain on their relationships in our community.”
While the charges were welcomed by some, including Councilman Ben Gray, the mother of the Johnson brothers said she was disappointed that Kleine did not charge another of the fired officers, Bradley Canterbury.
“It's a slap in our face,” Sharee Johnson said. “The man had his knee on Octavious' neck with no air. He couldn't even breathe.”
Before announcing the charges against Kinsella and Von Behren, Kleine detailed why he hadn't charged Canterbury.
The prosecutor's overview shed new light on what was a chaotic scene that day, with more than a dozen officers eventually responding to what had started as the simple towing of vehicles with expired plates.
Canterbury's actions had caused considerable consternation among many who viewed the YouTube video. In the video, he strikes one of the brothers, Octavious Johnson, several times after Johnson is cuffed and pinned on the ground.
Kleine said his investigators had three national experts on use of force review the video, and all three concluded that Canterbury's actions fell within what's known as “the use of force continuum.”
Kleine said other factors also led to Canterbury not being charged with assault. For one, Octavious Johnson said Canterbury didn't hurt him when he punched him in the back and ribs.
For another, Kleine said, Johnson admitted that he tried to get up because he thought Canterbury had let pressure off of his back and was about to stand him up and walk him to a cruiser. Canterbury mistook that for resistance, Kleine said.
And there were competing versions of what Octavious Johnson had been yelling at Canterbury, Kleine said. A tow truck driver at the scene said Octavious Johnson had been combative and had been yelling at his brother Juaquez: “Get these fools.”
Kleine said Officer Matthew Worm, who is seen on the video, had a different version of Octavious Johnson's alleged words. “Kill these guys — get my gun!” was Worm's version.
Sharee Johnson said Octavious didn't threaten the officers.
“We don't have a gun, and we've never had a gun,” she said. “There was never any threats made or any gun, and he never told anyone to get a gun.”
Sharee said Octavious asked the tow truck driver to turn his cellphone camera on.
“He said to the gentleman with the tow truck, 'Hey, man, you see what he's doing? Turn your camera on, man.' That's it.”
On the video, Octavious Johnson can be heard yelling, but his words are not discernible, Kleine said.
Right after Johnson's outburst, Kleine said, the video shows the tow truck driver scramble around to the other side of his truck.
Kleine said the yelling provided some context to other actions seen on video: namely, why officers chased Juaquez Johnson into the house.
After Canterbury took Octavious Johnson to the ground, Officer Worm told Juaquez Johnson to stay out of the street where his brother was being arrested.
Juaquez filmed and screamed repeatedly: “That's abuse, that's abuse.” Worm, in turn, can be seen holding up his hand and directing Juaquez back to the curb. Finally, Kleine said, Worm told Juaquez that he would be arrested for obstruction if he stepped into the street again.
Juaquez did. Worm walked toward him. Juaquez ran into his house. Worm gave chase.
The scene inside the house became just as chaotic. Juaquez Johnson hid behind a wheelchair-bound relative — using the woman as a shield from the officers who were closing in. As officers tried to arrest him, the woman was knocked over.
As that went on, another camera was rolling. A third brother, Demetrious Johnson, was filming the scene inside the house with the camera on his cellphone. Kinsella seized the cellphone in the kitchen area of the Johnson home and removed the memory card, Kleine said.
A week or so later, when the State Patrol went to serve a search warrant on Kinsella's home, he told them they wouldn't find the memory card because he had thrown it away, Kleine said.
He made a similar comment to a fellow officer, Kleine said.
“We have looked high and low for that phone,” Kleine said. “We haven't found it.”
Nor have they found the small video camera that Juaquez Johnson was using to film the events outside the house, Kleine said.
“There's nothing that tells us the police took that (video camera),” he said. “But we don't have any idea where it is.”
Fortunately, Kleine said, authorities have the outside video from the neighbor across the street. Unfortunately, he said, it doesn't tell the whole story.
Kleine said he will rely on witnesses to tell that story — including officers who were inside the house. Two officers are cooperating with the investigation and have not been charged, Kleine said.
Fired Officer Justin Reeve has spoken to investigators, as has Officer John D. Payne, who was placed on paid administrative leave after the incident.
“What took place inside the house is a lot more disturbing than what took place outside,” Kleine said.
Later, Von Behren, the supervising sergeant, tried to coordinate the stories of the officers who were in the kitchen — saying they all had to “stick together,” Kleine said.
Kleine alleged that Von Behren instructed officers to lie — and sent text messages with similar instructions. Those text messages have been deleted, Kleine said, but authorities are attempting to see if they can recover their contents through cellphone providers.
Kleine said he supported Omaha Police Chief Todd Schmaderer's decision to fire Kinsella, Von Behren, Canterbury and Reeve. The county's top prosecutor said there's a difference between whether an act is criminal and whether it is unprofessional.
As to those ethical questions, Kleine said, the officers' behavior is sure to haunt prosecutors in court.
Already, a defense attorney has called Von Behren to the stand in a murder case. Von Behren had little involvement in the investigation — he helped to secure the shooting scene. Still, Assistant Public Defender Kelly Steenbock asked Von Behren if he had been fired as a result of the Seward Street investigation.
“Yes, ma'am,” Von Behren said, his cheeks flushed.
A jury convicted the gunman anyway. But questions will persist, Kleine said.
“This kind of perversion of justice is going to have to be dealt with for a while,” Kleine said. “It's so out of line. Every time there's a case, I assume there's something that will come up about this.”
World-Herald staff writers Kevin Cole, Maggie O'Brien and Juan Perez Jr. contributed to this report.
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Reaction to criminal charges being filed against two fired police officers
“I applaud Don Kleine for taking these necessary steps. … I would like to see a healing between the police department and the community it serves. I really think the relationship has been damaged and I think we need to move to heal the damage.”
— Willie Hamilton, executive director of Black Men United
“I'm not surprised that they've been charged. I'm a little surprised there's only two (who were charged), but I'm on the outside looking in like everyone else.”
— Omaha City Councilman Ben Gray
“As I have said before, the actions by some officers at 33rd and Seward do not reflect the professionalism demonstrated by personnel of the Omaha Police Department on a daily basis.”
— Omaha Police Chief Todd Schmaderer
“It makes you wonder what other cases have been affected and how many people have been locked up (because of inappropriate police actions).”
— Robert Wagner, whose videotaped arrest at Creighton University Medical Center in 2011 caused an uproar over Omaha police officers' use of force
• Other Omaha police firings
• Timeline: March 21 events at 33rd and Seward Streets
• May 1: Police sergeants to get extra training after excessive-force probe, officers' firings
• April 24: 2 fired Omaha police officers to fight for their jobs
• April 11: City prosecutor holding off on charges against 3 brothers in videotaped arrest
• April 8: Fired officers have avenues back to the force
• April 7: Rush of chaos as police entered Seward Street home
• April 7: 18-year-old has no regrets about recording arrests that led to police firings
• April 6: Cover-up by Omaha police officers alleged
• April 6: State Patrol serves search warrant in hunt for cellphone
• April 2: Police supervisor among 3 put on leave during probe of excessive violence allegations
• March 28: Experts say Omaha arrest video raises questions
• March 26: Omaha officer moved to paid leave during investigation of police brutality