May 6th, 2013

Two Nebraska Cops Facing Felony Evidence Tampering Charges After Stealing Man's Memory Card and Throwing it Away 54

By Carlos Miller

James Kinsella and Aaron Von Behren2

Although cops delete footage or dispose of memory cards on a regular basis to prevent evidence of their wrongdoings to see the light of day, they rarely get disciplined for it.

Until today, that is, when a Nebraska prosecutor filed criminal charges against two fired cops who collaborated to steal a man’s memory card after he had recorded them beating his brother.

The two officers, James Kinsella and Aaron Von Behren, were fired from the Omaha Police Department last month along with two other officers after another citizen had recorded them chasing the man into his home in March, then posting the video on Youtube.

The story went viral on PINAC because it was shocking to see a swarm of cops chase a man into his own home without a warrant when all he was doing was video recording them arresting his brother.

But Douglas County Attorney Don Kleine said what took place inside the home was even more shocking with Kinsella pulling the memory card out of the phone and later throwing it away and Von Behren conspiring to help cover it up.

According to KETV:

At a news conference Monday, Kleine said former Officer James Kinsella faces a felony charge of tampering with evidence, as well as obstructing governmental operations and theft by unlawful taking.

Kleine said while the conduct of officers outside the home is troubling, what happened inside the home is “much more disturbing.”

Kleine said Kinsella disposed of a memory card taken from a cellphone that had been used to record video of the incident by one of Johnson’s brothers.  A

uthorities said Kinsella did this in the presence of other officers and then attempted to cover up what he had done.

Former Sgt. Aaron Von Behren faces charges of being an accessory to a felony and obstructing governmental operations.

Kleine said Von Behren was aware that the memory card was taken. Kinsella and Von Behren will be allowed to turn themselves in Tuesday morning and will be scheduled for arraignment.

The Omaha World-Herald has more details and quotes as well as a video, which I embedded below, from today’s press conference.

Comments from Douglas County Attorney Don Kleine Kleine’s overview:

“The conduct inside after the officers went inside (the house) is much more disturbing” than what’s on the YouTube video.

Kleine on memory card: He said the knowledge that the memory card was taken by Officer James Kinsella “comes from Officer Kinsella himself and what he said to other officers.”

Kleine: ”The officer’s conduct in taking that memory card is so out of line, it’s criminal conduct. We don’t know what’s on that memory card” and that’s what we want to find out.

On OPD trying to hide misbehavior: ”It’s of tremendous concern to the chief and it’s a concern to us. We can’t have this type of conduct. It’s a betrayal of public trust.”

If only more prosecutors had the guts to pursue criminal charges in these types of cases. Meanwhile, the two other cops who were fired are fighting to get their jobs back.


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  • Calamity Jane

    Cops are so accustomed to abusing citizens with impunity and behaving as if they are above the law they actually forget that they need to cover up their crimes.

    • USMCMatt82

      I think many police officers are simply not aware of how damaging their actions can be to their profession and to democracy. I believe many officers (and I’m basing this only on my own anecdotal experiences) don’t understand why they aren’t allowed to bend (or break) the rules as they believe they are doing it for the greater good. The road to hell is paved with good intentions and all that.

      • jackobean

        absolutely on all accounts

      • Difdi

        There are several crimes that public officials can commit that private citizens cannot, as private citizens lack official authority. Title 18, Chapter 13, Sections 241 and 242 are good examples of this. Police officers are occasionally convicted on conduct unbecoming charges as well.

        18USC241/242 make it a federal crime to use official authority to deny someone their constitutional, civil or statutory rights. A year in prison for the basic offense is a misdemeanor by most standards, but the statutes include enhancements for various force levels. Threat of a dangerous weapon (and what cop is unarmed in the field and on the job?) elevates the penalties to 10 years in prison (a felony by any standard). Multiple officers conspiring to violate rights can also enhance the penalties.

        A simple oral directive to stop exercising a constitutional right is worth a year in federal prison. Resting a hand on a holstered weapon (not necessarily a firearm, a TASER counts as dangerous) while issuing the oral directive is worth 10 years in prison, assuming the mere fact of being visibly armed doesn’t in itself constitute a threat of a dangerous weapon.

        It’s extremely easy for a police officer to trip over that one — So easy in fact I’m constantly amazed it’s not usually part of academy training.

  • http://www.facebook.com/kenbankers Kenneth Bankers

    Damn you beat me to it. Was just gona send this to you.

  • Lloyd

    It is a great start to holding public servants accountable for their actions. I am glad someone has the fortitude to bring charges against cops. Maybe the word will get out and make cops think before they break the very laws they swore to uphold.

  • SwimmingTowardsPie

    If it’s anything like the last OPD cops who were canned, they’ll eventually wind up getting their jobs back.

    • Evil Creamsicle

      Not if they’re convicted felons though…

  • http://twitter.com/AntonioBuehler Antonio Buehler

    Where were the good cops to protect these victims of police abuse? Oh right, that’s a fairy tale.

    • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

      Just like you can trust the word of a West Pointer. Not.

      • Baron_of_Greymatter

        I’d trust a Military School grad over a porker any day. Porkers live by a code of silence, not a code of honor.

        • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

          I’m basing it on personal experience with West Pointers. You can trust who you want, but most of the West Pointers I have known were not trustworthy. I never had an issue with the Annapolis or Colorado Springs grads, they were upright individuals. I had the same experience with Aggies, Norwich, the Citadel, and VMI grads, they were honest to a fault.

          Let me put it another way. The only military officer I ever saw try to shift the blame from himself to an enlisted specialist was a West Pointer.

          • USMCMatt82

            If it makes you feel any better, I’ve seen an O-2 shift blame to an E-6 in the Marines. The difference I’ve seen in the military versus the police is that there is always a way to go up the chain of command to seek redress. I’ve had to request mast to get it done, but it got done. The buddy-buddy stuff doesn’t work in the military.

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            It infuriates me that an officer would shift blame for his mistake to an enlisted man. I’ve seen it exactly one time. I did time as both enlisted and officer and I can think of nothing more despicable and lacking in honor.

            Thankfully, there were enough soldiers, including some damn good NCOs that stood up for the soldier. The West Pointer left the service shortly thereafter. I inferred that his OER wasn’t very good.

          • Francisco_dAnconia

            This matches my personal experience as well.

      • jackobean

        I’m confused by your reply here, are you saying there were “good” cops watching these asshole beat the memory card out of the citizen? What’s your point?

        • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

          Antonio Buehler is a West Point grad, who, because he had a bad experience with police officers, has decided that there are no good police officers.

          There are no absolutes. There are plenty of good officers out there. I’m not making a statement about the ones here, I don’t have access to all the statements and evidence, but they are filing felony charges on two of the officers for what they did.

          People want to have officers that violate the law held to account, that is what is happening here, and the investigation was conducted by other police officers.

          That, in itself, proves Buehler’s statement was incorrect.

          • Proud GrandPa

            One would seem to reach the opposite conclusion. Did not police admins themselves fire the two bad cops? Yes, proving there are good cops who are willing to enforce the law against bad cops.
            .
            We need more like the good cops in police admin. They command our respect and are worth every tax dollar.

          • Difdi

            Agreed. Unfortunately, the amount of oversight and accountability in most departments is sorely lacking. Police who commit acts that would see a private citizen arrested on the spot often suffer no consequences. Only ridiculously over-the-top abuses seem to get reactions, every day violations of the law are ignored.

            On a scale of 0 to 10, with 10 being treason and 0 being perfect lawfulness, most citizens can get away with 1s and 2s, because police don’t see them…but if police do, the citizen is cited or arrested. If a citizen’s behavior reaches a 3, police seek them out. But police often commit offenses that run as high as 3 or 4 on the scale right in front of fellow officers — and nothing is done.

            A guy exercises a constitutional right, officers freak out and attack him, he flees fearing (rightly) that he’s about to be the victim of a violent felony and a dozen officers chase him down and commit that felony (either directly or as accomplices)…that’s about a 7 or an 8 on the scale…that gets an admin response and it should get one. But an officer who is only committing 3s is also breaking the law and his oath, and is often ignored by police admin and fellow officers.

            That’s a major reason why police are losing trust with the general public. If the law is the law and everyone is subject to it, why are those sworn to the law allowed to break it while those not sworn are held to a higher standard?

          • jackobean

            i agree about there being no absolutes, But all 12 of those cops DID storm into the house and let it happen. And, you have to admit, this story is an anomaly. I hold out hope good cops exist. I grew up liking them and even have a friend or two on the force, but all the egregious criminal behavior that I’ve seen on video that has gone unchecked has shaken my belief/hope that there are very many.

          • Difdi

            Given the way laws work with regards to conspiracies, accomplices, official malfeasance and obstruction, it’s hard to imagine a normal workplace culture of any kind and good police officers coexisting in a single department with even one bad cop.

            As a private citizen, if I knew my roommate was committing crimes and I so much as handed him a sandwich, I could be charged with a number of things, that would be taken seriously by a judge. But police officers can offer far more substantial aid and comfort to fellow officers that a reasonable officer would KNOW are breaking the law, and suffer no consequences. What consequences do occur seem to mostly happen to officers who actually do as their duty demands and blow whistles.

          • Francisco_dAnconia

            Is the nonexistence of absolutes an absolute in and of itself?

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            LOL, I’m sure there is an exception to the nonexistence of absolutes, but yeah, I see your point.

  • Longtooth

    Every photo or video I take with my camera is immediately copied up to an Internet storage site. Dropbox….Look into it. You can delete or take my memory card, but you are not going to get it from all the sources synched to the box….

    • Prisoner416

      How? What model of camera, and how do you ensure internet access?

      • http://twitter.com/TurnkeyEnterp Turnkeys

        I love dropbox, it’s definitely worth looking into. For what Longtooth is referring, it’s an android app for a smartphone. Not applicable to other devices.. yet. Still I recommend it to everyone.

      • anon

        there are several point-and-shoot digicams on the market, just take a step inside your local Best Buy, or Wal-Mart.

        http://gizmodo.com/5903007/the-best-inexpensive-point+and+shoot-camera-with-wi+fi

      • Cyber-Anarchist

        Prisoner416:
        You will need a WiFi memory card and a smartphone capable of acting as a wireless access point. You need a service plan that allows you to tether other devices to your phone for internet access. I am sure Longtooth can tell you exactly what APP he has been using.

  • steveo

    I’m glad the “management” is finally doing something about the abuse that we get from the leos, but I think it’s still too little too late.

  • jackobean

    This is great news. If police obstruct justice, commit felonies (or other crimes), they need to go down hard. They do this type of thing all the time, and it undermines all public trust in them, the legal system, America… Record the police, it’s probably the most patriotic thing you’ll do all day

  • http://www.hisnameistimmy.com Tim in SF

    Wow! This is a great development.

    Citizens recording police misconduct is becoming commonplace. I wonder if the tide is finally turning.

    The end result of all this citizen involvement will be a more professional police force.

  • Dmatthews3

    So they beat the man outside but they did not beat him enough to warrant a police abuse charge. Wow that’s just not right. They beat a man and punch him repeatedly and still no charges for that, they only violated rules of the code of conduct.

    • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

      Did you read the article in the Omaha paper? The suspect on the ground is yelling “shoot him” and trying to get up. The IA found a violation of policy, but not of law. That’s entirely consistent with the video, even though I thought the later strikes were unwarranted also.

      The more important issue is the destruction of evidence.

      • Difdi

        Very good advice there. If the cops have you on the ground, right or wrong, you do your friends and family no favors whatsoever by screaming at them to attack the cops.

        If you scream for your brother to shoot the cops, you will get him gang-tackled too. Assuming you don’t simply get him killed. If he runs into the house after you scream at him to shoot cops, it’s reasonable to assume he’s going for a gun and react accordingly. The brother is quite lucky he didn’t get shot a few dozen times in the back over that.

        On the other hand, if the brother didn’t hear the demand/order to shoot cops, and saw the cops moving to engage him, apparently for filming the arrest, his flight from them is also legally justifiable. They were about to make him the victim of a violent felony (18USC241, 18USC242) after all.

        • Evil Creamsicle

          to shoot him ‘a few dozen times in the back’ for something he ‘may or may not’ be doing on the guise that he ‘might be about to commit a crime’ would most definitely be murder, and a felony.

          You said it might have happened, which is true. You did not say how you felt about it, so I’m going to give you the benefit of the doubt in assuming you agree, and were not advocating the police behave in that manner.

      • Francisco_dAnconia

        Is there any evidence of the suspect yelling those things? I don’t understand why the officers would destroy the video card in question if this is what happened.

        • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

          From what I gather, it was from the statements gathered, including those of non-police witnesses.

          The officers weren’t thinking the video would clear them, they thought it would harm them.

          • Evil Creamsicle

            Not to mention that the ‘bad apple’ cops generally don’t like being recorded, regardless of what is on the video. I’ve seen similar situations develop from routine traffic stops being recorded.

  • Rich

    They cant possibly charge them excop law student explained why extensivly in the original comment section ex cop lawyer enlisted man officer previous member of the french foreign legion candy styper and caddygolfpro

    • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

      Are you an idiot?

      I’ve explained many times on this blog how tampering with evidence is a criminal offense, typically a felony. I’ve also pointed out how officers could be, and in many cases should be, charged with that offense for deleting photographs and video.

      I explained extensively why officers could not be charged with battery for making an arrest, and how the theft/robbery charges were BS.

      If Carlos has a problem with who I am or what I say, all he has to do is ask, and I can support anything that I’ve said, given an assurance of confidentiality.

      • Francisco_dAnconia

        The first rule of dealing with internet trolls: don’t feed them. Nobody gives a damn what this dude says and you’re only encouraging him.

      • Rich

        I think you argue just to argue over subtle unnecessary points like choices of words like robbery or theft by unlawful taking. I think you do it to misdirect people from the topic, I think you are a troll working for the government.Perhaps[s Maybe you just don’t have a full understanding of the LAW, as did the prosecutor in this case who easily came up with the crime he did commit. I think your a arrogant ASS who doesn’t really have a full grasp of the law and your not humble enough to admit it. You end up coming off as a know it all asshole. Just my opinion.

        • Rich

          Cops twist and change words and argue over unnecessary point all the time, mental judo so that the person making a valid point will get thrown off topic, its what bullies do have done since kindergarten. Its what you do here often. We see it in many of these videos. This is why we NEVER talk to the police. Maybe your A reformed asshole trying to do better, but the stink of pork is still about you, You do make some valid points here. I am glad your here. I just think your sort of a douch.

          • RaymondbyEllis

            I’m 180 from you. ECLS just points out that you have to work within the law. He says the same thing about cops. His replies against robbery or battery charges are how the law works. The elements have to be there sufficiently to make it a crime. It’s not twisting or diversion by unnecessary points, it’s how the law works. CDL Blawgs make these points all the time.

            Also, even good cops can do bad things (Crowley-Gates comes to mind) and if those rise to criminal, they should be punished. But it only makes them human, flawed, not forever bad from the day they put the badge on. I use the same standard on all people in all walks of life. I think ECLS does too, but he can correct me if I’m wrong.

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            No Raymond, you are correct. I am glad that tampering charges have been filed. No one should be able to destroy evidence and expect to walk away as nothing has happened.

            As to the other charges, if you cannot prove the elements, as written and as previously interpreted by the courts, you cannot convict someone of a crime, period. It’s the same whether it is the BS robbery allegations or the BS interference allegations made against a photographer. If the elements aren’t there, it’s BS. As you noted, it is how the law works.

            The problem is that many in this arena are firmly on one side or the other and don’t care to look at things objectively. Their personal bias color their evaluation, and cause them to press for extralegal remedies.

      • Evil Creamsicle

        …Cops can be charged with battery for making an arrest if the arrest is unlawful.

        • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

          Really? Most states provide that officers can use force to effect the arrest, whether lawful or not.

          Do you have case law or a statute citation that says otherwise?

          This has been covered, over and over again.

  • http://www.facebook.com/nathan.bonsal Nathan Bonsal

    I commend the prosecutor’s office and the police department in living up to their missions and to the public good. There is no time when a police officer is entrusted to destroy evidence in the field.

  • Haeshu

    Wow! I loved to see a prosecutor forced to go after corrupt cops. Thank goodness a second citizen was filming. Everyone should be filming all the time if any of us want any justice in a world filled with criminal cops.

  • anonymous

    use qik lite on any android smartphone I don’t know if it works on I phones or not.. you can upload the video to the internet LIVE even if a cop steals your memory card the video is already online ….. Also Most phones come with a Youtube App that lets you upload video while you are recording….

  • http://www.facebook.com/people/Ron-Klug/100000236845855 Ron Klug

    How many lives have the corrupt James Kinsella and Aaron Von Behren Ruined?

    • Evil Creamsicle

      If someone breaks into your car and steals your wallet, does it ruin your life? No, I’d say not. Is it still a crime? Most definitely yes.
      If the burglar was arrested do you think that ‘Hey, I didn’t ruin his life’ would be an acceptable defense?

      From minor inconvenience all the way up to loss of life, it is irrelevant, if they commit a crime, they should be held accountable like anyone else. Cops are civilians too. They don’t get a pass just because they’re at work.

  • Michael Chaney

    Well, a couple of charges is a great start. How about the burglary (breaking into the home without a warrant), robbery (taking of the memory card by force), etc.? I always find it interesting that if a cop commits a crime we charge them lightly and rarely charge the accomplices. If a normal person commits a crime like this the prosecutor will pile charges on until they plead to something.

  • d.buckeye

    Unfortunately, this story is not an anomaly. Look at the last 6 -12 months of this website, Google police brutality, go to copwatch, etc…. and you’ll how prevalent it is. Or specifically, look for the very recent conviction of the Milwaukee cop doing illegal body cavity searches on males, looking for drugs. Two? other cops were fired and several reprimanded for roles they played holding people down or for having knowledge that is was happening. Or at Atlantic City where 5 cops antagonized one person, chased him down, beat him and then stood by as a K9 was released onto him at the end of the beating. And so on…. And these are only the stories that are reported. How many more go unreported or are dropped for “lack of collaborating evidence?” Its very disturbing…..

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