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Judge says ex-LPD officer's statement can be used against him at assault trial

From the What you missed this week in notable Southeast Nebraska crimes and court cases series
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In a win for the prosecution, a district court judge says a former Lincoln police officer's report can be used against him at his upcoming assault trial. 

The Lancaster County Attorney's Office had sought review of a county court judge's decision to suppress the document in Benjamin Rieker's case, a rarely seen move.

Benjamin Rieker

Benjamin Rieker

Rieker, 34, is accused of assaulting a 51-year-old man while working off-duty Oct. 31, 2020, at a Lincoln hospital and giving false information to an investigator looking into the allegation.

Both are misdemeanors. 

Rieker, who resigned while under investigation, has pleaded not guilty.

In September, his attorney, Carlos Monzón, filed a motion asking the judge to suppress two statements Rieker made in the investigation: an additional case investigation report he wrote about the incident, and an hourlong interview he had with an investigator with the Lancaster County Sheriff's Office. 

At issue was whether the so-called Garrity standard applied, referring to a 1967 U.S. Supreme Court decision in a New Jersey case involving an investigation into officers allegedly fixing traffic tickets. 

The officers were told they could refuse to answer but would be subject to removal from office if they did. Then, the statements were used against them at trial. 

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The Supreme Court ultimately found their statements, therefore, hadn't been made voluntarily.

In Rieker's case in late January, Lancaster County Court Judge Matt Acton ruled that the interview could be used against Rieker, but the additional case investigation report couldn't because he was required to complete it as part of an excessive-force investigation by internal affairs under threat of losing his job.

In a ruling this week, District Court Judge Kevin McManaman reversed the ruling, saying the report could go before the jury because Rieker had "neither a subjective nor an objectively reasonable belief that he would be fired if he declined to write the ACI report," the test required under Nebraska case law.

Rieker had testified that he believed he would be disciplined and could be terminated if he didn't. Even if he subjectively believed he would be fired for not writing the report, that wasn't reasonable, the judge said. And therefore not enough to satisfy the test.

Also, when Rieker wrote the report, an excessive-force complaint hadn't yet been made, an important distinction, McManaman said.

On Oct. 31, 2020, while working off-duty as a police officer at Bryan West Campus, Rieker allegedly pushed the Lincoln man who allegedly made a threat while walking out of the ER. The man lost his balance, fell and hit his head.

Rieker was put on a 30-day leave of absence as a result of an excessive-force complaint and later resigned. He had been an officer for about a year and a half. 

The man he is accused of assaulting, Jan Noch, later was charged and convicted of attempted second-degree assault and terroristic threats for stabbing his neighbor Nov. 26, 2021, then running to get him help. He pleaded guilty and is set for sentencing next week. 


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Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger

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Public safety reporter

Lori Pilger is a Norfolk native and University of Nebraska-Lincoln graduate who has been a public safety reporter for the Journal Star since 2005.

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