A Nebraska cop who chased a man into his home after he had video recorded cops arresting his brother, confiscating his camera and later admitting to throwing the memory card away, received a year of probation this week after his charge was reduced from a felony to misdemeanors, proving once again that the system will always side with the cops, even in cases like this one where the prosecutor talks a big game.
James Kinsella was part of a mob of cops from the Omaha Police Department who chased a man inside his home without a warrant last year after the man attempted to video record them abusing his brother, a scene that was captured on a camera by a neighbor from an upstairs window in a shocking video that went viral.
But what took place inside the home was even more egregious, according to Douglas County Attorney Don Kleine, who called a press conference last year to announce he was charging Kinsella with felony tampering with evidence – a rare move by any prosecutor when it comes to cop deleting footage.
However, Klein later reduced the charge to two misdemeanor counts of obstruction of government operations because the cop claimed there was no video on the memory card.
Klein also dropped charges against another cop he had charged last year, Aaron Von Behren, a sergeant who was facing two misdemeanors, accessory to a felony and obstruction of government operations, for orchestrating the coverup by ordering his officers to keep hush about the disposal of the memory card – which they claim contained no video evidence anyway.
Why would he knowingly commit a felony if there was nothing incriminating on the phone that he and other officers illegally searched through?
“He gets there, and he finds a melee,” Fabian said. “He does what he’s directed to do: secure a residence. He retrieves the cellphone. He determines that there is no video on the phone.
“Because he’s angry, he decides, ‘I’m going to take this memory card and stick it in my pocket.’ It was done out of frustration,” Fabian said. “He made a comment, ‘He won’t be using this any more.’ ”Fabian said his client believed in public service and had received a chief’s commendation for corralling a suicidal person before he could jump off of an Interstate 480 bridge. He also volunteered with the Special Olympics.“My point is this: The events that were involved in this incident were regrettable,” Fabian said. “But my client didn’t strike anyone, didn’t kick anyone, didn’t abuse anyone, didn’t threaten anyone.”
Kleine said, prosecutors had a few obstacles in prosecuting Von Behren. Much of the information gleaned about Von Behren’s instructions came from an Omaha police internal affairs investigation, Kleine said.
By law, authorities cannot use any admissions or statements made in such internal investigations because officers don’t have the right to refuse interviews with their supervisors. That prevented prosecutors from using officers’ statements to internal affairs about Von Behren’s purported instructions.
And because Kinsella no longer faced a felony, Von Behren could no longer be considered an accessory to a felony.
Meanwhile, a civl lawsuit against the department and the officers is still pending.
Here is the video captured by the upstairs neighbor.