Trial details Omaha officers’ actions in shooting that inadvertently killed ‘Cops’ sound tech

They arrived at the Wendy’s quickly — perhaps, as fate would have it, too quickly — catching gunman Cortez Washington in the act of robbing the restaurant.

With a “Cops” film crew in tow, Omaha Police Officers Brooks Riley and Jason Wilhelm pulled into the parking lot about 45 seconds after a fellow Omaha police officer, Detective Darren Cunningham, had used the police radio to signal a robbery in progress.

In the back seat of Riley’s cruiser: “Cops” cameraman Mike Lee and sound technician Bryce Dion.

Lee asked Wilhelm to turn on the interior dome light. No one — neither the officers nor the camera crew — said anything else as they descended on the restaurant.

The ensuing footage would have been one of the more dramatic moments in the 30-year-old show’s history. Instead, it made history of a different sort: An Omaha police officer’s gunshot inadvertently hit Dion, making him the first “Cops” crew member killed during filming.

The officers’ actions during the shootout dominated the second day of this week’s trial over a wrongful-death claim brought against the City of Omaha.

Omaha Police Chief Todd Schmaderer testified Tuesday that the city was under no special obligation, per its agreement with the show’s producers, to direct or protect the “Cops” crew.

Dion’s loved ones, brother Trevor and mother Gloria, and their attorneys, Brian Jorde and Christian Williams, argue that Dion was under the care and control of Omaha police and that police had a duty to protect him.

After the trial ends this week, Douglas County District Judge Jim Masteller is expected to take the case under advisement and decide at a later date whether the city will be held liable.

Wednesday was spent in rewind mode as attorneys dissected a video showing officers’ actions.

Dion’s attorneys tried to draw a line of distinction in the lightning-quick chain of events: the time in which Washington was facing the officers and pointing a gun at them versus the time he was running away from them.

Williams noted that the three officers fired 12 times as Washington was facing the officers — and was a clear threat. Officers fired an additional 24 or 27 times — officers have differed on whether the total number of bullets fired was 36 or 39 — as Washington was running out of the restaurant, his back to them.

Schmaderer said he reviewed the case and determined that Washington, who held onto his gun throughout, “never stopped” being a danger to his officers or citizens. He said his officers had a duty to continue firing upon Washington until he was no longer a threat.

“Justifiably so,” Schmaderer said.

As he considers the evidence, Masteller will have to weigh the justification of the shooting versus any duty the city had to protect the “Cops” crew.

Wednesday’s testimony broke down the Aug. 26, 2014, events in slow motion, while shining light on Dion’s abbreviated life.

The officers arrived at the Wendy’s at 43rd and Dodge Streets about 9:20 p.m.

Wilhelm went to the west side of the restaurant — in case the gunman fled out the west doors. He peeked his head through the drive-thru window and saw a man in dark clothes behind the counter. He couldn’t see a gun.

He quickly backed out of view from that drive-thru window out of fear that Washington had spotted him. He made his way into the west doors — and spotted “Cops” cameraman Mike Lee toward the back of the restaurant.

Seconds before, Riley and Cunningham had rushed through the east doors of the Wendy’s.

As they opened the swinging doors that led behind the counter, Washington raised a gun at them. The officers didn’t know it at the time, but the gun was actually a pellet gun.

Riley and Cunningham backed against a hallway wall and opened fire. Both officers said they had no time to sight the target — the familiar pose where an officer braces his gun and stares down the barrel.

Riley said he shifted to his left to try to get a better angle at Washington, over the front counter.

He shot at him. So did Cunningham and Wilhelm. The officers rattled off 12 shots.

But Washington didn’t fall. Fueled in part by PCP, Washington continued running and holding his gun as he bolted out the east vestibule, past Dion. Dion, who typically positioned himself close to Lee, apparently had stopped in the vestibule as shots rang out.

All three officers kept firing, as Washington ran out of the building and north through the parking lot. The officers fired a number of shots through the vestibule glass.

Washington collapsed and died in the parking lot.

It is not clear which officer fired the bullet that hit Dion.

None of the officers said they saw Dion in the very vestibule that they fired through. And Cunningham, the detective who happened upon the robbery in progress, initially told investigators that he assumed Lee and Dion were part of a police SWAT team that had arrived at the restaurant.

“Had you observed Bryce Dion, would you have continued to fire at (Washington)?” an attorney asked Riley.

“Not until I was at least able to reposition myself,” the officer testified.

Court spectators were left with a chilling image. After the hail of gunfire subsided, Lee rushed toward the vestibule to find Dion dying from a bullet that had slipped through the gap in the armpit of his bulletproof vest. He yelled at Wilhelm to get back inside.

Wilhelm — who had gotten to know Lee and Dion well after eight weeks of ride-alongs — frantically ripped off Dion’s bulletproof vest. He checked for a pulse. He couldn’t find one, he said solemnly Wednesday.

“Bryce, are you all right?” Lee desperately asked on the video. “Bryce, are you all right?”

Four years later, his family is decidedly not OK. Trevor said Bryce — the youngest of three Dion boys — was the glue that brought his family together. The Dions are originally from the Boston area. Bryce had moved to California shortly after college and had been working for Langley Productions — the producers of “Cops” — as a sound technician for seven years.

The 38-year-old man was known for his support and spontaneity. From the road, he called all of Trevor’s friends and coordinated a surprise 40th birthday party for his oldest brother. He often popped in on his mom Gloria — asking her if she was ready to go on an adventure.

He offered to buy his mom a house and a car. He wanted to move her out of their childhood home after another brother, Shane, unexpectedly died from a heart attack.

She called her youngest son “B.” He called her “Mama.”

“He loved me dearly,” Gloria Dion said. “He was kind. He was funny. He’d make me laugh. He’d always clutch my arm as we walked anywhere, as if I were 100.”

She paused, dabbing tears.

“I miss him so much,” she said. “I haven’t come to terms with his death.”

Judge now will decide: Did Omaha cops have duty to protect ‘Cops’ crew member?

The attorney for a “Cops” TV crew member inadvertently killed by an Omaha police bullet called the city’s defense to their wrongful-death claim a “House of Coulds.”

As in this: Bryce Dion, 38, could have stayed in the car.

And this: Dion could have escaped the vestibule where he died.

And this: The three Omaha police officers who opened fire 36 times could not see Dion.

Brian Jorde, who represents Dion’s brother Trevor and mother Gloria, told a judge in closing arguments Thursday to focus on what Omaha police should have done when they rushed to a report of a robbery at the Wendy’s at 4308 Dodge St. in Omaha.

Officers should have told Dion, a sound technician for the show, and cameraman Mike Lee, to stay in the cruiser. Absent that, they should have scanned the restaurant to make sure they had an accounting for the two men they knew were with them. They should have stopped firing after the robber, Cortez Washington, had his back to them, Jorde said.

Jorde asked Douglas County District Judge Jim Masteller to award Dion’s estate $2 million. Masteller asked each side for legal briefs and will likely take a couple of months to rule.

Jorde noted that officers fired 24 times as Washington ran out of the restaurant, his back to them. It was likely then that one of the officers’ bullets struck Dion, who had stopped in the vestibule upon hearing gunfire.

“While they are scanning for Washington, they could have seen Bryce Dion — and they should have,” Jorde argued.

An attorney and a law-enforcement expert hired by the city disagreed.

Assistant City Attorney Ryan Wiesen said Omaha police’s “entire use of force was reasonable.” Washington — who, unbeknownst to officers, was actually brandishing a pellet gun — still posed a threat to the officers and to anyone else he encountered. He never surrendered and he never dropped the gun, which looked real.

“A person who has used a gun still maintains a threat to you, even if trying to run away,” Wiesen said.

Further, Wiesen argued, no one forced the television crew into the restaurant. Once inside, he said, Dion had about eight seconds to exit the restaurant after shots first rang out.

And Wiesen noted that Dion and Lee both wore bulletproof vests.

“You don’t wear a bulletproof, ballistic vest unless you know there is a possibility that you could get shot,” he said.

By that Aug. 26, 2014 evening, the “Cops” crew had ridden along with Omaha police for eight weeks. In turn, Omaha police officers Brooks Riley and Jason Wilhelm had considered Lee and Dion friends.

On the other hand, Omaha police detective Darren Cunningham, who had arrived at the robbery before the others, had no idea who the two were. He believed the two, dressed in dark clothing with bulletproof vests on, were members of the police department’s SWAT team or gang unit, he said.

Within seconds, the officers and the film crew would become part of history, and tragedy. Dion, 38, became the first “Cops” crew member killed in the line of work when an Omaha police officer’s bullet pierced his armpit, in a gap of his bulletproof vest.

The knowledge that Lee and Dion were there — or the mistaken belief that they were fellow officers — should have caused the officers to continually scan the restaurant for them and other innocent citizens as they fired upon Washington, Jorde said.

A law enforcement expert, hired by the city, said the officers acted appropriately and reasonably in the face of what they believed to be deadly force. Robber Washington had raised a gun and opened fire on the officers at close range.

All three officers said they didn’t see Dion in the path of their guns.

Jorde asked the question Thursday: Did the officers have a duty to see him?

He questioned how officers could see Washington in the vestibule and in a dark parking lot but couldn’t spot Dion. Dion was found in the very vestibule where officers had fired through the glass at Washington as he ran through the parking lot.

David Klinger, the city’s expert and a criminal justice professor at the University of Missouri-St. Louis, said it’s understandable why officers didn’t spot Dion. He pointed to various studies of people suffering from tunnel vision.

In one study, a classroom of people was asked to watch a video and give an exact count of how many times a team passed a basketball. A costumed gorilla walked into the middle of the video. Half of the observers were so focused on counting the passes that they didn’t see the gorilla walk into the play, Klinger said.

Klinger noted that the officers were mindful of the citizens and employees in the restaurant. At one point, Riley said he stepped to the side to ensure that he could shoot Washington without hitting a clerk at the cash registers.

Those same officers couldn’t account for someone they couldn’t see, Klinger testified.

Klinger noted that Washington never dropped his weapon and, in the officers’ minds, could have easily fired at them, again and again.

Ballistic reports indicate that police officers fired 36 times — Wilhelm 6, Cunningham 11 and Riley 19. (Previous testimony incorrectly put that number at 39.)

“So you’re saying every single shot was reasonable and appropriate?” Jorde asked.

“Yes sir,” Klinger said.

Jorde zeroed in on several shots that were fired through the outer glass of the vestibule as Washington ran into the parking lot.

Even as Washington ran away, gun in hand, the threat remained, Klinger said.

“The officers’ lives were in jeopardy at that moment,” Klinger said. “If police officers can put bullets through glass, suspects can put rounds through glass as well.

“Officers are trained to fire until the threat has ceased.”