Wagner v. City of Omaha

• Decision Date: 04 January 1991
• Docket Number: No. 89-1384,89-1384
• Citation: 464 N.W.2d 175,236 Neb. 843
• Parties: Allen WAGNER, Appellant, v. CITY OF OMAHA, a Municipal Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 175

464 N.W.2d 175

236 Neb. 843

Allen WAGNER, Appellant, v. CITY OF OMAHA, a Municipal Corporation, Appellee.

No. 89-1384.

Supreme Court of Nebraska.

Jan. 4, 1991.

Syllabus by the Court

1. Administrative Law: Appeal and Error. In an error proceeding to review an administrative agency decision, both the district court and the Supreme Court review the decision of the administrative agency to determine whether the agency acted within its jurisdiction and whether the decision of the agency is supported by sufficient relevant evidence.

2. Administrative Law: Evidence: Appeal and Error. Evidence supports an administrative agency's decision reviewed in an error proceeding if the agency could reasonably find the facts for the agency's decision on the basis of the relevant evidence contained in the record before the agency.

3. Administrative Law: Appeal and Error. In an error proceeding to review an administrative agency's decision, the reviewing court is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact.

4. Administrative Law: Appeal and Error. A proceeding in error removes the record from an inferior tribunal to a superior tribunal in order for the superior tribunal to determine whether the judgment or final order of the inferior tribunal is in accordance with law.

5. Appeal and Error. In the absence of plain error, where an issue is raised for the first time in the Supreme Court, it will be disregarded inasmuch as the district court cannot commit error in resolving an issue never presented and submitted for disposition.

6. Constitutional Law: Appeal and Error. If questions of constitutionality have not been raised properly in the district court, generally they will be considered to have been waived.

7. Police Officers and Sheriffs: Arrests. Under the provisions of Neb.Rev.Stat. § 28-1412 (Reissue 1989), 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.

8. Administrative Law: Words and Phrases. Arbitrary and capricious action has been defined by this court with reference to administrative agencies as action taken, in disregard of the facts or circumstances of the case, without some basis which would lead a reasonable and honest person to the same conclusion.

9. Appeal and Error. This court does not substitute its judgment for that of the trial court regarding matters of evidence such as credibility of the witnesses or disputes and conflicts in testimony of the witnesses.

10. Administrative Law: Evidence: Appeal and Error. This court reviews, on appeal, the evidence to determine if the evidence is sufficient to support the decision of the agency and the action taken.

11. Evidence: Words and Phrases. Competent evidence is evidence that tends to establish the fact in issue.

Daniel W. Ryberg, for appellant.

Herbert M. Fitle, Omaha City Atty., and Kent N. Whinnery, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

PER CURIAM.

Allen Wagner, an Omaha police officer, received a 15-day suspension by the public safety director of the City of Omaha for excessive use of force in the performance of his duties. On appeal to the Omaha Personnel Board, following an evidential hearing, the order of suspension was modified to 4 days, and, as modified, the order of suspension was affirmed. Wagner filed a petition in error in the district court, following which the order of the personnel board was affirmed. Wagner now appeals to this court.

Error is assigned in that the trial court (1) based its decision on an unconstitutional standard of review, (2) erred in failing to determine that the decision of the personnel board was based on an erroneous interpretation of the law on use of force, and (3) erred in failing to determine that the personnel board misapplied the law to the facts and, therefore, the decision was arbitrary and capricious. We affirm.

In an error proceeding to review an administrative agency decision, both the district court and the Supreme Court review the decision of the administrative agency to determine whether the agency acted within its jurisdiction and whether the decision of the agency is supported by sufficient relevant evidence. Olson v. City of Omaha, 232 Neb. 428, 441 N.W.2d 149 (1989); Wadman v. City of Omaha, 231 Neb. 819, 438 N.W.2d 749 (1989); Trolson v. Board of Ed. of Sch. Dist. of Blair, 229 Neb. 37, 424 N.W.2d 881 (1988). "Evidence supports an administrative agency's decision reviewed in an error proceeding if the agency could reasonably find the facts for the agency's decision on the basis of the relevant evidence contained in the record before the agency." Wadman v. City of Omaha, supra, 231 Neb. at 820, 438 N.W.2d at 751. In an error proceeding to review an administrative agency's decision, the reviewing court is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact. Olson v. City of Omaha, supra; Wadman v. City of Omaha, supra; Coffelt v. City of Omaha, 223 Neb. 108, 388 N.W.2d 467 (1986).

Wagner has 5 years' experience on the Omaha police force. In addition to his regular duties as a uniformed officer, he is specially trained and certified as a member of the emergency reaction unit, which is designed to handle hostage, barricaded gunmen, and other major threat situations. During his 4 months as a member of that special force, he had been observed to conduct himself with restraint and control in hostage and barricaded gunmen situations. As part of his training, he was certified in the use of a "PR-24," which is a type of nightstick. It differs from a regular nightstick in that it has a perpendicular handle about one-third of the way from the end of the stick and is used to jab rather than to club. The jabs are to be to areas of the body, such as the abdomen, which "deflate" the suspect and make such suspect more amenable to control.

During the early morning hours of February 10, 1989, Billy Higgins, an Omaha police officer, was in pursuit of a vehicle in the area of 38th and Webster Streets. Wagner heard a call over the police radio of this pursuit, and he joined in the chase.

In the meantime, the occupants of the vehicle being chased abandoned the vehicle, and Higgins continued the chase on foot. Higgins caught up with one of the suspects, placed him under arrest, and started to handcuff him. He then noticed another suspect, who was the victim of the claimed use of excessive force by Wagner. Higgins handcuffed the arrested suspect to a steel fence and ran after the other suspect. He caught that suspect and was bringing him back to the location of the handcuffed suspect. Both the officer and the person he had caught were winded from the chase. Higgins had no other handcuffs to use.

About that time, Officer Gary Nimps arrived at the scene and saw that Higgins and the second suspect were standing close together and both were leaning forward with their hands on their knees, apparently trying to catch their breath. Higgins told Nimps to handcuff the second suspect. While Nimps was in the process of bringing the victim suspect's left arm behind him, Wagner arrived at the scene, observed Higgins bending forward, and saw the victim suspect standing nearby, but did not see Nimps. Wagner yelled at the victim suspect to drop to the ground, but Nimps had just told the victim suspect to put his hands behind his back. 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.

Wagner's first assignment of error is a trifle difficult to follow. He seems to be saying that the district court based its decision on an unconstitutional standard of review because it decided the matter on the basis of error appearing in the record. He then points to Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988), in which opinion, he says, this court implied that an appeal from a state agency can be brought either by appeal for review or by a petition in error. Thus, he argues, a law enforcement officer employed by the state could choose his or her standard of review, whereas a city police officer is limited in a review to error proceedings. However, at the time this proceeding was filed in the district court, May 31, 1989, the standard of review for the district court was whether the agency acted within its jurisdiction and whether...