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.”
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.