Case Law & Resources: Nebraska
Citation
Issue Presented & Facts
Wagner v. City of Omaha, 236 Neb. 843, 464 N.W.2d 175 (1991)
Whether the district court, in affirming the disciplinary order of the Omaha Personnel Board for excessive use of force by Officer Wagner, erred.
​
Officer Wagner arrived on scene with officers and suspects already present and yelled at the victim suspect to drop to the ground, but Officer Nimps had just told the victim suspect to put his hands behind his back. Officer Wagner ran toward the victim suspect and poked him at least once in the abdomen with his nightstick, and the victim suspect went down on his knees. Wagner and Nimps then completed handcuffing the victim suspect.
None of the officers, including Wagner, contended that the victim suspect exhibited any provocative conduct toward any of them which required the use of force.
Two civilians witnessed this event, and both testified that they could see no reason for the use of force toward the victim suspect. Their version of what happened was substantially similar to that of the police officers, although one witness said that Wagner hit the victim suspect at least four times.
Holding
Under the provisions of § 28–1412, a police officer in making an arrest must use only reasonable force, which is that amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the situation of the arresting police officer would have deemed necessary under the circumstances.
​
Reference to Neb. Rev. St. § 28-1412.
State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993)
In part, whether excessive force was used in a search of a suspect, and if so, whether such excessive force rendered the subsequent search unreasonable.
​
Officer Perez ordered a suspect to open his mouth based on suspicion that the suspect was hiding drugs in his mouth. After the suspect resisted, Officer Perez placed the suspect in a "lateral vascular neck restraint," causing the suspect to lose consciousness. While the suspect was unconscious, police searched the suspect's mouth.
Excessive force was not used to effect search when officer used choke hold on defendant, causing him to lose consciousness.
​
Reference to Neb. Rev. St. § 28–1412.
Case Law
Resources
Citation
Summary and Notes
DE-ESCALATION - Lincoln, NE Police Department polices regarding the use of force.
RESISTANCE CONTROL CONTINUUM - Lincoln, NE Police Department polices regarding the use of force.
USE OF LETHAL FORCE; EXHAUSTION OF REASONABLE ALTERNATIVES - Lincoln, NE Police Department polices regarding the use of force.
VERBAL WARNING - Lincoln, NE Police Department polices regarding the use of force.
DUTY TO INTERVENE - Lincoln, NE Police Department polices regarding the use of force.
MOVING VEHICLES - Lincoln, NE Police Department polices regarding the use of force.
CHOKEHOLDS - Lincoln, NE Police Department polices regarding chokeholds.
Relevant Excerpt
I. POLICY. Lincoln Police Officers may use control measures when authorized by law. Employees are expected to use de-escalation strategies, when possible, in order to minimize the need for the use of control techniques. The application of any control technique will cease when the purpose justifying its use has been accomplished.
​
II. C. 1-2. The department has adopted a resistance control continuum as a conceptual model for the use of control techniques. A chart depicting the continuum is contained in the General Order. The continuum is found on the principle that officers should: (a) attempt to de-escalate the situation first, whenever possible; (b) respond to the resistance level with a level of control that is sufficient to overcome the resistance, but is reasonable and necessary under the circumstances; (c) select a type and degree of control in consideration of the particular circumstances at hand ...; (d) escalate the level of control if the present level is ineffective or if the subject escalates the resistances; de-escalate the control as the subject is brought under control.
​
II. B. 1. ... In no case shall an officer discharge a firearm, or apply any other method of lethal force, until all other reasonable means have been exhausted or would be clearly ineffective.
​
II. B. 2. If doing so would not increase the danger to the officer or others, an officer shall give a verbal warning before discharging a firearm or using other deadly force. When issuing a verbal warning, the officer should make reasonable efforts to communicate the warning to the individual to whom the warning is directed prior to using deadly force.
​
II.C. 1-2. When in a position to do so, employees must intervene when they know that another employee of any agency is clearly using illegal or excessive force or control, and the efforts to intervene, to a supervisor. Employees must promptly report any excessive force or control, and the efforts to intervene, to a supervisor.
​
II. B. 6. Officers shall not shoot at or into moving motor vehicles except in cases where the officers have no other reasonable alternative to protect their lives or the lives of other human beings.
​
IV.C.4.a Chokeholds shall be banned except in cases where lethal force would be considered reasonable. b. Vascular neck restraints are permissible as a control technique when faced with active aggression or lethal force resistance.
USE OF FORCE - Omaha, NE Police Department polices regarding police use of force.
MOVING VEHICLE - Omaha, NE Police Department polices regarding police use of force.
TRAINING TOPICS - Omaha, NE Police Department policies regarding officer training.
It is the policy of the Omaha Police Department (OPD) that officers will use only that amount of force which is objectively reasonable to take a subject into custody, or otherwise bring an incident under control, while protecting the safety of the officer and others. It is the policy of the OPD that officers will use appropriate de-escalation techniques during potential use of force situations, will safely intervene when possible to stop any observed unreasonable force incidents, and will promptly report any observed unreasonable force incidents to a supervisor. Whether a use of force is reasonable is tested by balancing the type and quality of intrusion on the individual's rights against the governmental interests at stake. ... Descalation: The strategic slowing down of an incident in a manner that allows officers more time, distance, space and tactical flexibility during dynamic situations ... Officer Priorities, Variables, and Options: The OPD’s highest priority is the sanctity of human life. In all aspects of their conduct, OPD officers shall act with the foremost regard for the preservation of human life and the safety of all persons involved. When safe under the totality of the circumstances, and when time and circumstances permit, officers will use or attempt to use de-escalation techniques consistent with their training to provide themselves with more time, distance, space, and tactical flexibility in potential use of force situations.
​
VI. The OPD policy outlines 5 types of subjects, and outlines the use of force permitted in connection with such categories. (1) As a subject’s behavior changes during the interaction, the officer’s response must escalate or de-escalate accordingly; (2) The officer’s response to the subject interaction may be lower than the responses listed for the subject category. (3)The officer’s response will use the least amount of force necessary to control the subject. (4) Officers shall be cognizant that not all persons respond to use of force and/or pain compliance techniques in the same manner. When any officer response technique, after repeated attempts, does not appear to be effective, officers will consider alternative officer response techniques or methods, including de-escalation, to control the subject/situation.
​
V.B.2. Officers shall not discharge their firearm at or from a moving vehicle unless one of the following situations exists: (a) a person in the vehicle is immediately threatening the officer or another person with deadly force by means other than the vehicle; (b) the vehicle is being used as a weapon to cause a mass casualty event (i.e., driving into a crowd); (c) the officer is unable to retreat for a reason that is clearly articulable. NOTE: The moving vehicle itself does not presumptively constitute a threat that justifies an officer's use of deadly force. An officer threatened by an oncoming vehicle will, when possible, move out of its path instead of discharging a firearm at the vehicle or any of its occupants.
​
III.B All sworn OPD employees will receive annual instruction in the following areas: …(2) Use of force policies …(5) vehicle pursuits; (6) Bias-Based Profiling policy.