Click here to watch surveillance video of Robert Wagner's 2011 arrest.
Jackie Dolinsky's police career hinged on three kicks.
Security camera footage from May 29, 2011, showed the Omaha police officer's right foot kicking Robert Wagner three times as she and other officers struggled to arrest him outside Creighton University Medical Center.
Were Dolinsky's kicks a form of police brutality and an excessive amount of force? Or were they an appropriate police technique used against a combative suspect?
Video of Wagner's arrest inflamed community-police tensions in parts of Omaha.
It also became critical evidence this spring as Dolinsky waged a closed-door battle for reinstatement after then-Police Chief Alex Hayes dismissed her and Officer Aaron Pennington for their actions that night.
A special arbitrator, Sharon K. Imes, overturned Dolinsky's termination after weighing the video, depositions from police and expert witnesses, and evidence from the internal police investigation.
The arbitration case for Pennington, who is seen in the video punching, kicking and stomping Wagner, is pending.
The Wisconsin-based arbitrator's 15-page report on Dolinsky has not been made public. But Imes' report, obtained by The World-Herald, provides a rare window into the secretive appeals process for discipline given to city employees.
Whether Dolinsky's kicks amounted to an excessive use of force or a properly employed police tactic was a key issue for the arbitrator.
The ruling, as it turns out, was based on several factors:
» Strikes properly delivered to the “peroneal nerve” in the upper leg are an accepted police tactic to help control combative suspects.
» Use-of-force experts for both the city and police union agreed the tactic would be appropriate in circumstances such as those seen during the struggle outside the hospital.
» The only witness to testify to having a direct view of Dolinsky's kicks was her sister and former beat partner, Officer Jodi Sautter, who said the strikes were to the peroneal nerve area. Sautter's statement countered testimony by Hayes, who said he believed the second and third kicks were to Wagner's chest and side.
Those factors, combined with a “lack of proof provided by the surveillance video” about where Dolinsky's kicks landed, led Imes to overturn the termination, according to her report.
It is difficult to see exactly what transpired the night of the arrest, based on the security footage. The image is occasionally distorted as the camera's angle shifts from place to place and zooms in and out. And with five to six officers in the scrum, and others crowding around them, individual actions are occasionally obstructed.
The footage, however, clearly shows Dolinsky deploying a Taser, then pulling back and kicking Wagner three times. What isn't clear is just where she kicks him.
The footage also shows Officer Pennington pulling on Wagner's head before delivering punches, kicks and stomps as other officers work to cuff Wagner.
Dolinsky testified that she used a Taser on Wagner, then kicked at his leg after she thought he was trying to reach for a knife in her pocket.
Sautter was the only eyewitness who testified as to where the kicks landed, internal affairs investigators said. She told investigators the kicks were directed at the peroneal nerve in Wagner's leg, which is a common law enforcement tactic taught by the Omaha Police Department to temporarily disable resisting suspects.
Hayes testified he believed that Dolinsky's second and third kicks were directed at Wagner's chest or side area. That would be a clear violation of department procedures for use of force, he said.
In Hayes' Sept. 2 termination letter, he told Dolinsky that her use of force was excessive, that her report to him about the arrest “did not accurately reflect ... actions taken during the incident” and that her conduct was unbecoming of an Omaha police officer.
Discipline for policy violations can include a written reprimand, suspension without pay, demotion or firing.
The two “use of force” experts testified that Dolinsky's actions did not represent excessive force.
The level of force that police use in a struggle is subject to a “use of force continuum” that allows for certain responses, depending on a suspect's actions. Officers are taught to counter a combative suspect with a superior amount of force.
In Wagner's case, experts testified, officers would have acted within their bounds by responding with a peroneal strike.
The report also states that Wagner was not injured.
The city argued Dolinsky didn't use the proper method of administering the strike. Such blows are supposed to land between the knee and hip.
Imes dismissed arguments that Dolinsky's strikes were out of control.
“While the Police Chief believes, based upon his review of the surveillance video, that the second and third kicks made by (Dolinsky) were to Wagner's chest and side, the evidence in the record does not support his belief,” Imes wrote.
“The only witness to the incident would testify that she observed the kicks landing in the peroneal nerve area and the surveillance does not prove otherwise.”
Imes' ruling cannot be appealed, under the city's police union contract.
Dolinsky, who returned to work two weeks ago, will be paid back wages in an amount yet to be determined. She will also be disciplined in an unspecified manner and will receive additional training, as part of a reinstatement agreement between the city and police union.
The arbitrator is scheduled to oversee Pennington's appeal in September.
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