The reinstatement of Omaha police officer Aaron Pennington by an arbitrator is an outrage that defies logic, undermines standards of police professionalism, and sets a dangerous precedent for the future.
Previously, an arbitrator reinstated officer Jackie Dolinsky for her participation in the beating of Robert Wagner outside the Creighton Medical Center on May 29, 2011. A security video camera recorded both Pennington and Dolinsky kicking Wagner while he was already on the ground.
The entire episode raises several serious issues involving both the arbitration process and the outcomes that command our attention.
Under the Omaha police union contract the arbitration process is completely secret. We cannot know what evidence and arguments the city’s lawyers made in defense of the two firings or the details of the arbitrator’s reasoning.
This secrecy is wrong. Why should disciplinary actions in such a serious case be a secret? Court proceedings are public, as they should be. The secrecy provision is dictated entirely by the union contract, which the City of Omaha agreed to. It is not required by any law. The arbitration process can and should be eliminated in a future contract negotiation.
The results of the arbitrator’s decisions in the two cases are also very troubling.
I defy anyone to provide an existing police department policy from anywhere in the United States that authorizes or justifies kicking a criminal suspect. It is a vicious act that serves no useful law enforcement purpose. In fact, policies in many (possibly even most) departments specifically prohibit strikes to the head by police batons, radios or any other piece of equipment. A police officer’s boot is no different in terms of its potential for inflicting serious and unnecessary harm.
At the time of the kicking, Mr. Wagner was on the ground, and even if he was not cooperating he posed no serious danger to any police officer that would justify the use of extreme force. The circumstances in no way meet the standard set by the Supreme Court in Graham v. Connor (1989) regarding the objectively reasonable justification for the use of force. (The case was mentioned in the World Herald story about the Dolinsky reinstatement.)
Because the arbitration proceedings are secret, we cannot know what evidence and arguments the City’s attorneys made in the case, and in particular what rebuttals they made to the officers’ attorneys. The only conclusion we can draw is that the City’s attorneys are incompetent and do not know how to defend the firing of these two officers. Did they cite policies from the best police departments? Did they call good expert witnesses? Do they really understand Graham v. Connor? We can never know.
In the World Herald story of January 1 Omaha Police Union President John Wells says that there were some “mitigating circumstances” regarding the officers’ actions “that you’ll read about in the decision.” But we can’t. The decision is secret.
And this raises an interesting question. The World Herald reporter quotes directly from the decision. Where did he get a copy of it? Clearly, someone leaked him a copy in violation of the contract. Does he have an obligation to release the report (post it on the WH web site) so that we can read it?
There is yet one more issue. The World Herald story says that Chief Hayes was under pressure to act because there is a deadline for imposing discipline on an officer. Why should there be such a short deadline, particularly in difficult cases (not necessarily this one) that might require lengthy investigation? This is yet another union contract provision that the police union has obtained for itself – and which employees in other occupations do not enjoy.
The police union has a valid argument on one point. According to his own testimony, Chief Hayes viewed the video recording of the beating early in the investigation but did not fire the two officers until the video became public. That, however, represents misconduct on the part of the chief, but it in no way exonerates the officers for their unjustifiable use of force.
Two officers who committed completely unjustified use of force, documented by video evidence, are now back on the force. Every officer who is fired now knows that choosing the arbitration process will likely win reinstatement. These two decisions seriously undermine discipline and accountability in the Omaha Police Department.
The entire episode highlights two needed reforms. The police union contract needs to be renegotiated to eliminate the arbitration process for discipline cases and the short time line for imposing discipline on officers also needs to be renegotiated.
Sam Walker is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha. His web site is http://samuelwalker.net/