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Ex-Neb. corrections officer appealing his firing over use-of-force in inmate assault

The CO is asking the court to reverse the board’s decision, removing the termination letter from his personnel file and giving him back pay


Lancaster County DOC / Facebook

By Lori Pilger
Lincoln Journal Star, Neb.

LINCOLN, Neb. — A former corrections officer at the Lancaster County Department of Corrections has filed a lawsuit appealing his firing in February over his use of force against an inmate who was assaulting him.

Scott Schaefer is asking the district court to enter an order setting aside and reversing the Lancaster County Personnel Board’s decision earlier this month, removing the termination letter from his personnel file and giving him back pay.

It was the second time within four months that the personnel board had considered his firing over separate incidents where he delivered closed-fist strikes to an arrestee’s upper body or head.

The first time, on Dec. 7, the board gave him back his job with a three-one vote, according to meeting minutes.

But on April 4, when Schaefer went before the board again, members unanimously voted to sustain his termination, prompting Schaefer’s petition filed last week in Lancaster County District Court.

In it, attorney Thomas McCarty, who represents Schaefer and the Fraternal Order of Police Lodge No . 32 to which he belongs, said the case involves an inmate unexpectedly attacking Schaefer in a vestibule area at the jail on the night of Feb. 5.

He said the inmate threw about six punches at Schaefer, some of which landed on Schaefer’s torso and upper arm, before swinging his fist at the corrections officer’s head.

In response, McCarty said, Schaefer tried to deliver three closed-fist strikes to the inmate’s torso. But, because the inmate was moving, two of the strikes landed on the left side of his neck and collarbone. A third landed on the inmate’s left shoulder.

“Officer Schaefer delivered all three strikes in a span of approximately 1.86 seconds,” McCarty wrote in the lawsuit.

He said the inmate stopped swinging at Schaefer but continued resisting efforts to control him for about 44 seconds. Schaefer ultimately was able to bring him to the ground and use his body weight to subdue him until backup officers arrived.

He said the inmate, who isn’t named in the lawsuit, suffered no injuries — no bruises, cuts or even red marks — from the incident.

Prosecutors since have charged the man, 34-year-old James Wagner, with third-degree attempted assault on an officer, a felony, according to a search of Nebraska court records.

In the lawsuit, McCarty said Schaefer’s supervisor reviewed video immediately after the incident and concluded that though it was a “pretty hefty use of force,” it appeared justified.

County Corrections Director Brad Johnson placed Schaefer on unpaid investigatory suspension four days later and notified him he was proposing to terminate his employment, which he later did on Feb. 23, because he believed the video showed he had intentionally punched the inmate three times in the head.

On April 4 , the personnel policy board sustained his termination but said Schaefer had used an “untrained strike,” which is a swing punch, not a straight punch, and that he had not intended to punch the inmate in the head.

“The board’s decision fails to account for the department’s deficient training, the realities facing Officer Schaefer (tense, uncertain, and rapidly evolving circumstances), the totality of the circumstances, reaction time, stress and human factors,” McCarty said in the lawsuit.

The Lancaster County Attorney’s Office has not yet responded to the lawsuit in court.

Contacted by the Journal Star, Chief Deputy County Attorney Chris Turner said: " The Lancaster County Attorney’s Office is unable to comment on personnel matters and pending litigation.”

According to documents attached to the personnel policy board’s Nov. 30 agenda, Johnson had tried to terminate Schaefer on Oct. 27 for a number of alleged policy violations in connection to an incident Sept. 21.

In that case, Schaefer tried to help Lincoln police remove an arrestee from a cruiser and into the jail and ended up taking him to the ground, wrestling with him and deploying a stun gun to his lower back to get him into a safety restraint chair.

When the inmate, who was handcuffed behind his back, began thrashing around and pushing his legs against the door, Schaefer used his stun gun on his abdominal area. And when the inmate kicked, making contact with Schaefer’s thigh, Schaefer delivered two or three closed fist strikes to his upper body and head area, according to the records.

Johnson said the strikes were in violation of department policies and training.


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