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Repeal effort leaders still seek toput it before voters
Soonest initiative could get on ballot is 2022; it's too late this year to introduce issue in Legislature

AFFIRMATIVE ACTION BAN

Leaders of an effort to repeal Nebraska's ban on affirmative action will keep pushing to remove it from the state constitution, even though they were unable to put the issue before voters this fall.

Omaha City Councilman Ben Gray and Douglas County Board member Chris Rodgers had launched a hurried effort to get a repeal of the ban onto the November ballot. They were hoping that an urgency to address racism would help reverse Nebraskans' overwhelming vote — 58% to 42% — to adopt the measure, Initiative 424, in 2008.

The City Council and County Board both passed resolutions in mid-July asking the Nebraska Legislature to put an initiative on the November ballot to repeal the amendment. But it was too late, even if legislation could have cleared a steep uphill climb during a pandemic-shortened session. The language needed to have been submitted by July 2, Nebraska Secretary of State Bob Evnen said.

Now the soonest that the issue could be put before voters would be November 2022, the next general election in Nebraska. Rodgers said it may be better to wait even longer, until the next presidential election in 2024, and in the meantime make greater use of measures currently available.

"Right now, emotions are high," Gray said. "The anger is great, but you know how that goes. A lot of times that lasts for a month and it goes away. But those of us who are committed to this, we're going to keep this going. I'm hoping that it'll be a whole group of us, but if it's just a few of us, we're still going to keep it going, because it's an important discussion we've got to have."

State Sen. Ernie Chambers said the Legislature is not likely to put a repeal on the ballot.

"There was no way that whatever little affirmative action they may have had going on harmed white people in any way," he said. "So by having been conceived in racism, and executed on that basis, this legislature inmy opinion is not going to put that on the ballot for people to vote for it because they don't want to look like they favor it."

State Sen. Justin Wayne was willing to try to introduce a bill in the Legislature this month, but decided not to when it became clear it was too late. He said he would focus instead on Legislative Bill 1218, which seeks to make minority-owned businesses more likely to obtain state contracts.

Also, the ballot in Novemberwill include two measures sponsored by Wayne: additional time for people to pay back tax-increment financing in high-poverty areas, and an amendment to remove language in the Nebraska constitution that allows people to be enslaved as punishment for a crime.

Nebraska had a lively debate on the affirmative action ban 12 years ago.

Initiative 424 was promoted by the out-of-state American Civil Rights Institute and local supporters. They formed an organization, the Nebraska Civil Rights Initiative, with the backing of an anti-affirmative action California businessman named Ward Connerly. He had successfully promoted similar measures in California, Washington and Michigan.

Supporters sought to prohibit programs that offered public higher education scholarships or government contracting and jobs to minorities and women. They contended that those practices amounted to discrimination, and that banning them would put everyone on an equal footing.

A petition drive collected 136,589 valid signatures, more than the 112,152 needed to put the proposal on the ballot in 2008. The 58-to-42% margin of victory for the initiative was the same in Douglas County as it was statewide — in a presidential election in which metropolitan Omaha's Congressional District 2 gave its electoral vote to Barack Obama.

The initiative survived a lawsuit claiming that thousands of the signatures were fraudulently collected.

Gov. Pete Ricketts, who donated money to the Initiative 424 campaign before he became governor, remains a supporter today.

"Governor Ricketts is opposed to racial discrimination, and especially state-sponsored discrimination, which is why he continues to support the amendment which the people of Nebraska passed in 2008," said his spokesman, Taylor Gage. "Rather than recycling the failed policies of the past that divide communities, the governor is focused on bringing people together and working with communities around the state to help more Nebraskans take great opportunities that will help them achieve their dreams."

As adopted, Nebraska State Constitution Article I-30 says, "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

Opponents argue that banning affirmative action doesn't create equal opportunity; rather, it preserves inequality and prevents equal opportunity. They say Black people and other people of color face discrimination in education, business and employment, and that affirmative action is needed to overcome historical disadvantages so that they can compete equally.

The initiative was opposed by the Greater Omaha Chamber of Commerce and Warren Buffett.

Critics contend that the wording of Initiative 424 was misleading and that the advertising for it was deceptive.

"The ban has perpetuated disparities, racial injustice and systematic racism in our state and represents a barrier to improving diversity, inclusion and equity at local government and community levels," said Vickie Young, president of the Omaha chapter of the NAACP.

Young was one of about 30 people who testified in support of the repeal resolutions at the Omaha City Council or Douglas County Board. Another person who testified, Willie Barney, noted how diverse the supporters were — white, Black, Hispanic, young, old. They included a white man who said he knows from personal experience that discrimination still exists because he got a truck driving job over a Black applicant who was more qualified.

Barney, president of the Empowerment Network in Omaha, called it "huge" that the local legislative bodies passed the resolutions and that Omaha Mayor Jean Stothert said she supports repealing the affirmative action ban. Barney interpreted the public hearing testimony as a sign that public opinion on Nebraska's affirmative action ban is shifting. He said he has had many conversations with business people and other Omahans acknowledging racial disparities and looking for ways to overcome inequality.

"What was really encouraging was the overwhelming support from individuals, organizations from around the city, across race, across geography, across age, that recognized that this is something that has to be addressed," he said. "Secondly … this is just one tool of many, one opportunity of many. It's not the whole answer. It's really about looking at every avenue possible to really close those gaps."

Rodgers said he will work with Gray and others to use and improve currently available tools, such as the Small and Emerging Business Program that the City of Omaha created after the affirmative action ban passed. Rather than considering race, the program aims to increase city contracting and purchasing with businesses from low-income neighborhoods, many of which are in parts of the city with majority Black or Hispanic populations.

The death of George Floyd in Minneapolis and protests that followed "have opened the eyes of people, and right now we have to take every opportunity we can to chip away at systemic racism."

In what could be a sign of shifting public opinion, a conservative University of Nebraska-Lincoln chemistry professor who supported Initiative 424 — so much that he helped collect signatures for it — now supports repealing the constitutional amendment it created.

"My views on it are not what they were in 2008," Professor Gerard Harbison said by email this week. "America has changed, and so have I. … Back in 2008 I thought racism was mostly a thing of the past. That was incredibly naive of me, as the last 10 years have proven."

chris.burbach@owh.com, 402-444-1057 twitter.com/CHRISBURBACH


Local
alert
Computer problems blamed for delays in release of Omaha protesters

Computer problems at the Douglas County Jail early Sunday led to a lengthy delay in releasing protesters arrested after a Saturday night demonstration in midtown.

Adding to the confusion was the inability of family and friends to reach some of those who had been jailed.

Several people called The World-Herald on Sunday to say they didn’t understand why it was taking so long to have their friends and family members released from the jail at 710 S. 17th St.

Regan Johnson said her fiancé, Riley Wilson, 31, had been in custody for more than 14 hours. About 10:45 p.m. Sunday, a county spokeswoman said that the remaining protesters would be out of jail by midnight Sunday, barring the unexpected.

“He is a second-year law student at Creighton, and he was there as a legal observer,” Johnson said. “He was wearing a neon traffic vest and had a notebook to record interactions between the police and protesters.”

Another protest occurred Sunday in midtown, spurred in part by what happened Saturday.

Among those at Sunday evening’s protest was Omahan Johnny Redd, who is worried about a friend who is bipolar and had been jailed Saturday night without his medications.

“Who knows where that will go,” Redd said.

Sunday’s computer problems resulted from routine maintenance followed by an unplanned outage, according to a press release from the Douglas County Board of Commissioners.

From Saturday night into Sunday morning, 109 people were booked into the jail, and about 75% of them were connected to the protest, according to the county. The rest were booked on suspicion of a variety of infractions, from domestic violence to driving while intoxicated.

Michael Myers, the director of the jail, said that the booking process involves multiple steps and that even when things go smoothly, it’s time-consuming. Jail employees have to check each person for warrants, Myers said. There are also medical screenings to be conducted.

“Even if the system is up and running, the process takes multiple steps,” he said.

The problems began about 3:30 a.m., when the computer system was taken down for routine maintenance. (Myers said the jail’s computer system is routinely taken down for maintenance on Sunday mornings because that’s usually a quiet time.) After the computers were updated, some functions failed to come back online. That further delayed the process.

Myers said that to work around the computer problems, jail employees reverted to the paper process.

“Several small groups have already been released, and we continue to work as fast as possible,” he said late Sunday afternoon.

“It is truly horrible timing that we h

ad an IT problem during an unexpectedly busy time,” he said.

The Saturday protest, which started at 7:30 p.m. at Turner Park, was organized to shine a light on the “horrific slaying of our brother James Scurlock” and to “stand in solidarity with Portland” and other cities, according to a Facebook post. On May 30, bar owner Jake Gardner shot and killed 22-year-old James Scurlock during protests in the Old Market.

Cole Christensen, 28, was one of the f

irst people arrested Saturday night, and while he was able to post bail quickly, there were other protesters who as of Sunday afternoon had paid their bail and were still waiting to be released.

“We’re just very concerned for our friends who cannot leave even though they’ve done everything that has been asked of them,” he said.

The Omaha man said he was near the front of the protest line and was crossing the Farnam Street overpass at 28th Street when officers moved in.

“We were in sight of our vehicles. We were getting ready to disperse and leave,” he said. “It was the end of our march.”

Christensen said he bled through his shirt while waiting in jail from injuries he suffered when officers repeatedly fired projectiles.

Omaha Police Capt. Mark Matuza said the Saturday protest started peacefully.

About 9:15 p.m., the crowd started walking east on Farnam in the westbound lanes, obstructing traffic. Police were also seeing Facebook posts about possible damage to be done downtown.

“It leaned toward the potential of getting violent,” Matuza said, so police declared the gathering an unlawful assembly.

A spokesman for the Omaha Police Department said that “numerous announcements were made to disperse” via police cruiser public address systems, starting when protesters entered the traffic lanes on Farnam. The announcements continued throughout the evening, he said.

“The protesters were walking eastbound, against westbound traffic flow, and continuing throughout the remainder of the protest,” said the spokesman, Officer Michael Pecha.

Hannah Theobald’s mother posted her bail at 4:50 a.m. Sunday. The 29-year-old was released about 4 p.m., more than 11 hours later.

“When they first brought us in, they just sat us in the parking lot of the jail for hours with our zip ties on, not telling us what we were charged with, if we were able to leave,” Theobald said. “It took probably three hours just to get booked into the jail.”

Theobald said the cell she and about 40 other women were held in had a capacity of 14 posted on the door.

“We got a chance to use the phone, but they weren’t telling us that bail was posted,” she said. “They told us it was because a computer system was down, they told us another time it was because a copier was broken. At one point, they said that they were just hoping to teach us a lesson by keeping us in there.”

Redd has been participating in protests since this spring and said that the treatment of protesters by police has reinforced Redd's belief that police are the aggressors.

“The police have been provoking us, they’ll shout orders, we’ll be confused, and then they’ll use that to suppress our voices,” Redd said. “I wish they would step back and let us have our protest.”


Photos: Our best staff images from July 2020

Photos: Our best staff images from July 2020

State-and-regional
alert
Despite shutdown of two bars, Railyard commons, most Lincoln residents complying with mask mandate

LINCOLN — The owner of Tavern on the Square and the Other Room in Lincoln’s Haymarket estimates that 85% to 90% of the patrons entering his bars willingly wear masks when indoors.

Matt Taylor said he or another employee ask the other 10% to 15% of bar patrons, who aren’t so willing, to put one on. Since last Monday when Lincoln’s mask mandate took effect, Taylor has made masks available for purchase.

Before that, both of the downtown locations recommended masks indoors but did not require them.

“We take this very, very seriously, and more than anything, I want the health of my employees,” Taylor said.

Most Lincoln residents are abiding by the city’s new directed health measure and wearing masks, says the head of the Lincoln-Lancaster County Health Department. “The majority of people in Lincoln have been focused on doing the right thing in helping Lincoln move forward,” Pat Lopez, interim director of the Health Department, said via email Friday.

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However, on Saturday, Iguana’s Pub, Longwell’s and the Railyard commons — all popular drinking spots in downtown Lincoln — were ordered by the Health Department to close for 24 hours for violations of the new directed health measure requiring masks in Lincoln.

The three establishments were not allowed to operate from 5 p.m. Saturday to 5 p.m. Sunday. A Health Department investigation found “significant” violations of the mandate at the locations.

Iguana’s Pub, a popular college bar on O Street, and the other two Haymarket locations, which draws a broader crowd, were ordered to close after attempts to educate and work with them failed, according to a Health Department press release.

A spokeswoman for the Railyard said the area is still navigating how to enforce the health measures in an outdoor space, the Lincoln Journal Star reported.

“We plan to work with the Health Department to follow the directed health guidelines to keep the community safe,” said Katy Martin of Hurrdat, the marketing company that manages the Railyard.

The department said Friday that many Lincoln businesses were reporting more customers wearing face masks.

The number of positive cases reached its highest one-week total, as the Health Department reported 340 new cases in Lancaster County for the week ending Saturday. The department also upgraded its risk dial from low-orange to mid-orange to indicate that the risk of spreading the virus is high.

Omahans could see a similar mask requirement, as Douglas County Health Director Adi Pour announced that the County Board of Health, along with the city, is exploring a similar mandate. The health board has called a special meeting Monday to discuss the mandate.

Pour said she decided to consider a mandate after seeing what Lincoln “has been doing and how well it has been perceived in that community.”

The requirement to wear masks in Lincoln amid the ongoing pandemic came from Lincoln Mayor Leirion Gaylor Baird. The mandate — which may draw a legal challenge from Gov. Pete Ricketts — requires masks to be worn indoors, unless 6 feet of separation can be maintained, for Lincoln residents over age 5.

Exceptions can be made, including while exercising or while seated in a bar or restaurant eating or drinking.

About 35 complaints had been filed with the Health Department about noncompliance with the mask mandate as of Friday. Lopez said that wasn’t many, and the department has staff reviewing the complaints with the goal of educating those who aren’t in compliance.

At least some Lincoln businesses were already requiring masks before the mandate took effect.

Goldenrod Pastries, a bakery near Union College, has required masks since it reopened in May.

“It’s definitely gotten a lot easier for us to enforce,” said Goldenrod owner Angel Garbacz.

The Lincoln bakery also has a second location between the University of Nebraska-Lincoln’s City and East Campuses, which opened in March.

Garbacz said the vast majority of her customers have worn masks, and Goldenrod has had fewer than 10 customers refuse to wear masks.

“It’s so hard as a business owner when you’re trying to have a really welcoming environment for your guests to really put your foot down and say, ‘If you do not follow this rule, you are not welcome,’ ” Garbacz said.

During a walk-through of Lincoln’s Haymarket on Friday, many restaurant and bar patrons were observed wearing masks when ordering food and moving around restaurants. They took the masks off when dining, as is allowed under the directed health measure.

“Not ideal, but I’ll live with it,” said Lincoln resident Randy Forst of the mandate. “If the Lincoln mayor says, ‘You gotta have it,’ I’ll go with it.”

For Pam and Dale Rassmussen — a Ceresco, Nebraska, couple who were visiting Lincoln to dine Friday — they’ve been wearing masks since the pandemic began in March.

“It just makes logical sense if we’re going to end this thing,” Pam Rassmussen said.


Photos: The faces of the mask effort

Photos: The faces of the mask effort

Crime-and-courts
topical alert
Use of force rare among Omaha police; decrease in shootings 'impressive,' expert says

It’s no surprise that Omaha police officers’ use of tear gas and pepper balls has dramatically increased this year in light of their response to the massive protests in May and June.

Officers used pepper ball guns 157 times in the first half of 2020 — more than the previous seven years combined. They deployed chemical agents, which include tear gas and pepper spray, 37 times this year — already more than the full-year totals for any of the past seven years.

Yet a closer look at the Omaha Police Department’s recorded instances of force shows that officers rarely use force. Such incidents occur fewer than two times per 10,000 resident contacts with police.

Omaha Police Chief Todd Schmaderer said ongoing training and de-escalation techniques should help decrease use-of-force incidents among officers.

The department reviews officers’ use of force, the type of force they used and whether the officer properly applied it.

“I’m comfortable with our use of force in the city and I’m comfortable that we analyze and vet those appropriately,” Schmaderer said in an interview with The World-Herald. “Our overall desire for an agency is to minimize the use of force as much as possible.”

The total instances of force increased 28% from 2015 to 2019 — an additional 107 times. Schmaderer noted that the city added 100 more officers during that period and 911 calls went up, which would account for a slight statistical increase.

The number of unique officers who used force in one year has ranged between 182 in 2017 and 212 last year. Counting each time an officer used force — for example, one officer used force two different times in one year — that number increases to a high of 372 in 2019.

The Omaha Police Department keeps track of its officers’ use of force by counting types of force per incident per officer. For example, if an officer uses a hand strike, a tackle and a Taser during one call, all three uses of force are counted. But if an officer discharges a Taser four times and uses three elbow strikes, only one Taser use and one elbow strike are counted. Those details can, however, be found in the chief’s report of the incident.

Because the department’s use-of-force numbers are so low, it’s difficult to determine whether year-to-year changes are meaningful, said Justin Nix, an associate professor in the School of Criminology and Criminal Justice at the University of Nebraska at Omaha.

But one metric is clear: The number of times an officer shot a person has plummeted, from 11 victims in 2010 to one last year to zero so far this year.

“It’s impressive,” Nix said. “I’ve been working with officer-involved shooting data for years now. I’m just amazed at how rare officer-involved shootings are here for a city this size.”

A use-of-force report is not filed in Omaha when an officer draws their gun but does not shoot. Nix said tracking such incidents has been shown in other departments to decrease fatal police shootings. But because Omaha has so few of those shootings, Nix said he wasn’t sure such a policy would have an impact here.

While officer shootings are down, Taser use has increased: from a low of 57 times in 2014 to 102 times in 2019. Last year, 588 officers were certified to carry a Taser, which includes all patrol officers.

Schmaderer said the reduction in the use of firearms directly relates to officers’ increased use of Tasers.

“We wanted to provide every officer with a less-lethal option,” he said. “If you take away less-lethal options, the officers will have to go to their firearms more and as an agency, we’re trying to minimize that.”

In June 2017, Zachary Bear Heels died after he was shocked with a Taser and repeatedly punched. A coroner said the main cause of Bear Heels’ death was excited delirium. At the trial of then-Officer Scotty Payne, data recorded by the Taser showed the Taser prongs didn’t work on most of the 12 Taser trigger pulls. A jury acquitted Payne in December 2018.

Schmaderer fired Payne, and his removal was upheld by a third-party arbitrator this spring.

The summer Bear Heels died, all officers in the department received refresher training on Taser use.

“An incident like that can sort of shock the system. It’s certainly fresh in the department’s memory, I’m sure,” Nix said.

Tasers are meant to keep distance between officers and members of the public, Nix said, preventing a wrestling match or fistfight.

Although they’re considered a less-lethal option, Nix said 50 to 60 people die each year in the U.S. after they are shocked with a Taser.

“Accidents and mistakes will happen,” he said. “All in all, the data tells us that the Taser results in taking people into custody more safely than it does harm when it’s used appropriately.”

Nix serves as a research partner for Project Safe Neighborhoods, a federal initiative that evaluates how law enforcement can reduce violent crime in the community.

The Omaha Police Department requires all officers to go through 48 hours of training throughout the year. The curriculum often is tailored to lessons learned from recent situations, such as the Bear Heels case. Classes also address trends that command staff have noticed across the country.

Last Monday, the department started one-day training for every officer on several topics, including Taser use, suicide by cop, de-escalation, positional asphyxiation, impartial policing and “a duty to intervene.”

Officers also talk about the death of George Floyd, who was killed in May after a Minneapolis police officer knelt on his neck for about eight minutes.

“A lot of it’s going to be discussion about things that we can learn from and how we can be better as a department, also how it affects our community, country and the world,” said Officer Ken Fox, the Omaha Police Department training academy commander.

Nix said that while training is essential, equally important are clear, detailed policies describing use of force and when to use it.

“It’s when policies are vague or leave things open to interpretation and invite human discretion where we see levels of force on average that are higher,” Nix said.

The Omaha Police Department’s use-of-force policy is several pages long, explaining the types of force and dividing the various mechanisms into five levels of severity based on the reaction of the person an officer has encountered, from cooperative to life-threatening/serious injury.

In June, Schmaderer updated the policy to expressly ban officers from using their knees to pin someone’s neck to the ground, require officers to move people up from a prone position and use a carotid restraint only if an officer is attacked or if deadly force is involved.

The carotid restraint technique involves pressure on the sides of a person’s neck and causes the person to pass out. Officers are trained to handcuff the person afterward and immediately “wake them up,” Schmaderer said.

The chief reiterated that officers are prohibited from using a chokehold. The department also has moved away from another type of neck restraint, the lateral vascular neck restraint, or LVNR.

The carotid restraint is “a sounder technique that would alleviate some potential risk to the offender,” said Deputy Chief Greg Gonzalez.

Nix said the carotid restraint is very dangerous and should be used as a last resort. He said, however, that it’s good that Schmaderer has clearly stated when it can be used.

“It makes it easier for him to evaluate the appropriateness of it,” Nix said, “because he’s made it clear when his officers are allowed to use it.”

One policy change that some activists say would be easy to adopt is to prohibit police officers from shooting at moving vehicles. Schmaderer said the Omaha Police Department’s policy on that is as narrow as possible. Those who want to forbid it, he said, don’t “understand the nuances of criminal apprehension.”

“Somebody in that vehicle could be shooting at you with a gun. That vehicle could be used as a weapon of mass destruction. You have to be able to parse all of that out,” he said. “You do have to maintain (the officers’) safety. They’re not going to concede their life to anything.”

Schmaderer is analyzing about 30 events that occurred during the Omaha protests. Officers on a safety review committee are watching thousands of hours of body camera footage to scrutinize officers’ use of force “to a level of detail you would be shocked about,” he said. Incidents that raise concern will be forwarded to Internal Affairs for further investigation and discipline.

Schmaderer said he hopes to present a full report on officers’ behavior during the protests to the public and city officials by October.

“We’re going to lay out what went well and what we can do better,” he said. “And we’ve already identified several of those.”

Photos: Omaha protesters come out again on first night curfew is lifted