Police Accountability Heard in Court, City Council Agenda on Monday


Mayor Jean Stothert speaks about the city’s police union contract on Nov. 11, 2020. Photo by Chris Bowling.

The crowd had thinned by the time Devan Murray approached the microphone, but that hadn’t lessened her anger or frustration.

The North Omaha resident said she’d been to a lot of Omaha City Council meetings over the past few months as issues of policing, budgets and racial inequity have pockmarked the body’s agendas. She never wanted to speak. But she’d had enough of the promises to listen to the community, to meet them halfway.

“Look at yourselves and get your shit together,” she said, asking the city council to vote no on the new police union contract. “Excuse my language but that’s how I feel.”

Only a few hours earlier a lawyer stood in front of a judge in Douglas County District Court, arguing that the executive and legislative branches had failed in protecting protester’s free speech. The judicial branch needed to make a statement on the Omaha Police Department’s conduct.

Adam Sipple, legal director for the ACLU of Nebraska, argued for a preliminary injunction in a lawsuit against the City of Omaha and OPD that alleges officers overstepped their authority in the mass arrest of protesters on July 25.

“It was punitive,” he said Tuesday morning. “All designed to suppress our client’s speech.”

Policing in Omaha, as well as across the nation, has come under intense scrutiny in recent months. From protests to the polls to policy making of legislative bodies, the public’s not turned its attention from the issue.

But after months of arguing, the conversation seems to have tilted in a new direction: “Who has the power to police the police?”

In negotiations for the city’s contract with the police union, no one raised issue with officers slight pay increase, changes to the once controversial pension program or the high deductible healthcare plan. Instead they talked about the arbitration process that had allowed some officers fired for misconduct to be hired back.

“They killed someone, they should not be back on the force,” said Jennifer Carney, speaking specifically about officers involved in the death of Zachary Bear Heels in 2017. “It’s not healthy for the city.”

Citizens also talked about the appointment of a new three-person reprimand committee which would oversee officers charged with misconduct. One person would be appointed by the city and another by the Omaha Police Officers Association with a third being chosen by the first two members. For some that represents a conflict of interest.

“The three people that are on the reprimand committee, they should be independently elected and they should be members of the public,” said Apollo Bythrow.

Those who spoke in support of the proposed contract included representatives from both the Douglas County Republican Party and Douglas County Democratic Party as well as a state senator and several citizens. In total, testimony lasted about four hours.

Council President Chris Jerram said he too did not like the arbitration process, but getting it out of the contract would be impossible as the process works now. If the Omaha City Council were to reject the proposed contract, the State Commission of Industrial Relations would resolve disputes by looking at comparable cities contracts. Every other city around Omaha has a similar arbitration process, said Bernard in den Bosch, deputy city attorney.

Councilmember Pete Festersen also asked Schmaderer questions about the city’s Citizen Complaint Review Board. This contract would make it easier to file a complaint to the seven-member board, as well as the police department or the city’s Human Rights and Relations Department. But the board, which is appointed by the mayor, has been ineffectual in the past. They see very few cases and have little to no ability to affect change in the department.

Festersen pointed out while the contract mentions the citizen board, it does not define it and asked Schmaderer if that means the board, which was created by an executive order, could be amended in the future.

Festersen also asked if the members of the reprimand committee could be approved by city council. Schmaderer had no objection to that.

Others raised issue with the fact OPD would recognize Juneteenth as a paid holiday, costing the city about $400,000. Representatives for the police union argued this is a signal of unity and was brought about by Tony Conner, the police union’s first Black president who could not attend Tuesday’s meeting because he was hospitalized with COVID-19. Citizens said giving police the holiday when Black and other minority communities are overrepresented in police interactions was unimaginable.

“It’s for black emancipation, it’s not for cops to get perks,” said Daniel Knapp. “If you’re going to do it, do it across the city.”

Most councilmembers saved their comments for the vote on the contract in two weeks, but some chose to respond to personal comments made by citizens. Councilmember Ben Gray in particular responded after several people addressed him personally, telling people they needed to get the facts and read the “Omaha Civil Unrest” report, a police-issued document that details police response to protests over the summer. 

Jerram also defended Gray who Jerram said has fought for racial equity in the community for decades as both a journalist at KETV and a member of the Omaha City Council.

As comments wrapped, citizens’ tone was plain: they were pleading to be heard. City Council had voted to approve the city’s budget which bolstered police funding by $2 million despite public outcry. Other measures to address inequality had been unsuccessful, such as getting the state’s ban on affirmative action repealed.

It harkened back to a tense city council meeting when protests started. When council members pledged their commitment to fighting institutional racism, and community members intrepidly followed.

“We’re tired,” said Tamika Mease at an Omaha City Council meeting on June 2. “We’re tired and we’re frustrated, and we are demanding change. We’re willing to work together. Be willing to work with us. But change has to come.”

The lack of action in other governmental branches is why the ACLU of Nebraska brought its lawsuit against the city and its police department. 

“This is about accountability,” said ACLU of Nebraska Executive Director Danielle Conrad on Oct. 5. “When the government infringes about individual civil rights and civil liberties, the courts must step in to check that power, to stop those abuses and to prevent future harm. We cannot accept that police will be allowed to police themselves.”

ACLU of Nebraska Executive Director Danielle Conrad (left) stands with Legal Director Adam Sipple (right) and plaintiffs in their lawsuit against the City of Omaha and the Omaha Police Department on Oct. 5, 2020.

Through its lawsuit it hoped to end the use of chemical weapons such as tear gas and pepper bullets on peaceful protesters. The organization, which is fighting the lawsuit on behalf of organizing group ProBLAC, also wants to redefine what they say is a vague traffic law that has allowed for mass arrests.

The hearing on Tuesday, Nov. 10 was for injunctive relief, meaning the judge would decide whether the plaintiffs’ case would prevail and judicial oversight was the only remedy. Federal judge Joseph F. Bataillon is presiding over the case.

ACLU of Nebraska Legal Director Adam Sipple argued that this was the last opportunity to make sure his clients could protest in peace. Comments made by Schmaderer following July 25 mass arrest, when 125 people were detained on the Farnam Street bridge over Highway 75 following the firing of pepper balls, led Sipple and his clients to believe OPD planned to do this again. They cited a traffic violation that no group may block traffic unless they have a permit or its a spontaneous gathering. While Sipple didn’t argue that his clients blocked traffic, he said the first amendment supersedes this overly broad city ordinance.

“You gotta give the First Amendment room to breathe,” he said.

Michelle Peters, an attorney for the city, said police made repeated calls for the protesters to disburse. Neither Schmaderer nor Captain Mark Metusa, who are named in the lawsuit, were at the hearing.

Peters said police officers arrested the protesters en masse because they posed a danger to themselves and others by walking up the wrong direction on the Farnam Street, which is one-way where they were marching. Peters also argued that police should still be able to use chemical weapons to subdue crowds. The alternatives would be more barbaric tools like clubs, or more lethal weapons like guns.

“Are we really going back to those days?” she asked.

Judge Bataillon asked Sipple about whether there was any other mechanism to solve this issue, possibly a conciliation with the city. Sipple and his clients were not asking for any monetary damages at this time. Bataillon also asked whether the incident on July 25 fit a pattern, or whether it truly was an isolated incident.

After about an hour, the judge said he would begin reviewing submitted evidence along with arguments shared by the attorneys.

 


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