Don't Get Arrested in Omaha
Controversial arrest of Robert Wagner outside the Creighton University Medical Center. Happened in May 2011.
Anger boiled over at Wagner arrest
The crowd was livid.
Jimmy Levering, an infamous leader of the 29th Street Bloods street gang, had just been gunned down outside a northeast Omaha bar and pronounced dead at Creighton University Medical Center.
Between 30 and 50 family members, friends and gang associates filled the lobby of Creighton's emergency room. Many of them believed that a police officer fired the fatal round, though authorities later said that wasn't true.
That was the situation when the controversial arrest of Robert Wagner unfolded just past 3:30 a.m. on May 29, 2011.
The basic outline of the disturbance has been known for months, based on earlier reports, video footage from the scene and testimony from Wagner's trial on an assault charge.
Jimmy Levering
But new details about the night's volatile environment at the medical center have been revealed in depositions and interview excerpts cited in an arbitrator's ruling, which was obtained by The World-Herald.
According to that report, officers who were called to the hospital for crowd control reported that the group was angry and agitated. Some people were making statements like “(Expletive) the police” and “Kill the police.”
An agitated Robert Wagner, one of Levering's cousins, was pacing in the lobby, police said.
Officer Jackie Dolinsky — called back to work because a series of “help an officer” distress calls had spread police ranks thin — was among those at the hospital.
She testified she saw Wagner with his left hand in his waistband and thought he might have a weapon, although police found out later he did not.
Officers testified that Wagner got even more upset at the sight of City Councilman Ben Gray in the emergency room. Gray spent much of the night in a nearby waiting room with Levering's family.
Officers testified they told Wagner to leave the hospital after he cursed at Gray and called him an “Uncle Tom.”
A detective testified that Wagner started to leave, moved just outside the doors, but then turned and cursed at officers and made more threatening comments. So the detective ordered his arrest.
Officer Scott Zymball testified he grabbed Wagner's left wrist. Wagner pulled away and swung with his right arm, striking Zymball in the head, the officer testified.
Other officers pounced. Two Tasers were deployed. One officer said he struck Wagner's leg with a baton as others piled on.
Another officer said it took his entire body weight to bring the 6-foot-4, 320-pound Wagner under control.
Dolinsky testified that she used a Taser on Wagner, then kicked at his leg when she thought he was trying to reach a knife in her pocket.
Officer Aaron Pennington testified he thought Wagner pulled at his gun belt. Surveillance camera footage shows Pennington pulling on Wagner's head before delivering punches, kicks and stomps as police worked to handcuff Wagner.
As officers scuffled with Wagner outside, the crowd inside rushed to the lobby doors. Two State Patrol troopers held the doors shut as irate onlookers pounded on the glass.
“I thought for sure that the glass was going to break,” Officer Ruben Soto testified.
Wagner was charged with felony assault on a police officer. The case ended in a mistrial in April, and Wagner subsequently pleaded no contest to attempted assault on an officer, a misdemeanor.
An Omaha police officer involved in the forceful arrest of an Omaha man last year can return to work.
An independent labor arbitrator ruled to reinstate Officer Jackie Dolinsky, a four-year veteran of the department, one year after she was involved in the controversial arrest of Robert Wagner outside the Creighton University Medical Center.
Former Police Chief Alex Hayes moved in September to fire Dolinsky and Officer Aaron Pennington for their roles in the videotaped scuffle.
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.
Dolinsky’s reinstatement cannot be appealed. The decision ends her months-long, closed-door process to fight her termination. Arbitration hearings on the issue ended late last month.
As part of a reinstatement agreement between the city and the police officers union, Dolinsky will be disciplined in an unspecified manner and could receive additional training.
It’s still unclear when she will return to work, said Sgt. John Wells, head of the city’s police union.
It is also unclear where Dolinsky will be assigned. She won’t return to her post in the city’s northeast precinct, authorities with knowledge of the situation told The World-Herald.
Pennington’s arbitration proceedings are scheduled to begin later this summer.
Dolinsky’s reinstatement is sure to be welcomed by officers who felt the firings were unjustified, and it’s likely to be decried by members of the community who raised concerns about the officers’ perceived use of excessive force.
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. “But my day’s not ruined because of (this). I’m still going on with my life.”
Controversy erupted after security video footage showed officers forcefully taking Wagner, 35, into custody on May 29, 2011, outside Creighton University Medical Center after he allegedly had refused orders to leave the hospital and punched one officer in the head.
At one point in the approximately five-minute clip of the incident, an officer kicks Wagner repeatedly while several officers pin him on the ground. Officers also used a Taser to subdue Wagner.
After the footage became public, outraged community activists renewed calls to revive the city’s dormant public safety auditor position. Hayes has said that command officers immediately flagged the incident for review.
Dolinsky and Pennington were placed on administrative leave at the beginning of September and were informed of Hayes’ decision to pursue their termination. Dolinsky has served with the department since 2007; Pennington, since 2006.
Under the 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.
The arbitrator’s decision to reject Dolinsky’s firing was largely based on a 1989 U.S. Supreme Court decision holding that an officer’s use of force is permissible if it is “objectively reasonable.”
“That’s basically the lens that you look at this action through,” Wells said of the court decision.
“In this case, we’ve pretty much stated all along that we looked forward to stating all the facts because we feel the use of force is justified,” he said. “(The ruling) just reinforces that what officers believe to be the approach to their jobs is actually correct.”
