Regret, tears as ex-officer is found not guilty in Zachary BearHeels’ death

Regret, tears as ex-officer is found not guilty in Zachary BearHeels’ death
Scotty Payne (center) World-Herald News Service

Zachary BearHeels should not have died on June 5, 2017.

On that virtually everyone agrees.

At the same time, a Douglas County jury decided Monday that it wasn’t former Omaha Police Officer Scotty Payne’s fault that BearHeels was hurt, let alone that he died that June morning.

A jury of six men and six women voted unanimously to acquit Payne, 39, of charges of second-degree assault and weapon use. Payne was accused of acting unreasonably in pulling the trigger on a Taser 12 times.

As District Court Clerk John Friend read the verdict, Payne dropped his head and began crying. One of his attorneys, Steve Lefler, buried his head in his hands and went to a knee behind the defense table. He later said he was overcome because Monday’s verdict came on the two-year anniversary of the sudden death of Lefler’s adult daughter, Angela.

“This has absolutely taken the biggest toll on (Payne’s) life, and you can imagine,” said Matt Burns, Lefler’s son and a member of Payne’s defense team. “He’s lost 35 pounds. He doesn’t sleep. He can’t eat. This was a good, Christian man who was put in an unfair position.

“This was, second to the death of Mr. BearHeels, the greatest tragedy in this whole thing.”

Wiping away tears, Payne hugged his family and attorneys. The former officer then approached prosecutors Corey O’Brien and Jason Bergevin and thanked them “for the professional job you did.”

As she made her way out of the courtroom, a female supporter of BearHeels’ family called out: “Someday, you’ll pay for this.”

Outside court, Payne was asked if he wanted his job back.

“Of course — I love the City of Omaha and the Police Department,” he said, before leaving with his family.

Whether he gets his job back will be up to an arbitrator. Payne and three other officers are appealing Chief Todd Schmaderer’s decision to fire them over their handling of BearHeels. The 29-year-old Native American had been stranded in Omaha after getting kicked off a bus on his way from an aunt’s house in South Dakota to his mother’s house in Oklahoma City.

BearHeels’ mother, Renita Chalepah, watched Monday’s results in tears. Chalepah had begged Omaha police to take BearHeels to a hospital — telling officers he was bipolar and schizophrenic. Omaha Police Sgt. Erik Forehead denied officers’ request to declare BearHeels mentally ill and dangerous and hospitalize him under emergency protective custody.

Instead, officers devised a plan to take BearHeels back to a bus station. After BearHeels barged out of the back of a cruiser, his hands cuffed behind his back, officers tried to corral him. Payne pulled the trigger on a Taser 12 times during that encounter.

“It breaks my heart right now because that was my baby,” Chalepah said.

Frank LaMere, a Native American activist from South Sioux City, Nebraska, said he plans to go to the Mayor’s Office on Tuesday and wants to talk to Schmaderer about officers’ callous behavior.

LaMere expressed outrage at flippant comments Forehead was accused of making after he was told of BearHeels’ behavior that night. “Oh you’ve got a (expletive) retard,” Forehead said, according to an officer who spoke to him. Forehead denied using the term.

“There was nobody on earth that night that needed help more than Zachary BearHeels,” LaMere said. “He was in need of help, and we did not give it to him.

“We should be shamed.”

Payne’s defense team noted that regret doesn’t equal guilt in excessive-force cases. Under U.S. Supreme Court rulings, police use of force must be “objectively reasonable” — based on the split-second decisions the officer had to make, not based on hindsight.

O’Brien, head of the criminal division of the Nebraska Attorney General’s Office, noted that a grand jury of 16 citizens reviewed nearly identical evidence last year before returning an indictmentagainst Payne. However, such grand jury proceedings do not include any presentation by the defense.

As the trial wore on, prosecutors had an uphill climb.

  • For one, a coroner determined that BearHeels did not necessarily die because of any Taser shocks. Rather, Dr. Michelle Elieff determined that BearHeels died of excited delirium. In fact, evidence indicated that BearHeels had been showing symptoms of excited delirium 10 hours before his death.
  • At most, Payne’s Taser worked four of 12 times, experts said. The first worked to immobilize BearHeels. The three other connections — while BearHeels was seated with his hands cuffed behind his back against a cruiser tire — had minimal effect, according to data that was downloaded from the device.
  • Several defense experts — and even one prosecution expert — testified that, at most, only one or two of Payne’s Taser trigger pulls were questionable. Those occurred while BearHeels was handcuffed behind his back and seated on the ground against a tire.

Even with those questionable Taser pulls, all but one expert said Payne’s actions were reasonable — considering the chaos of the scene, the number of times BearHeels struggled with Payne and Payne’s relative inexperience. He had been on the force for four years.

“I really feel for Zach BearHeels and his family and I hope that Zach BearHeels will not die in vain,” O’Brien said. “I think the Omaha police and law enforcement across the state of Nebraska realize that there were some major failures that took place that night. … There’s gonna be some positive change … in the way (police) deal with the mentally ill.

“This man needed help. He didn’t get the kind of help that he needed.”

Schmaderer and Omaha Mayor Jean Stothert issued a joint statement after the verdict.

“We respect the jury’s verdict. The jurors heard and considered the evidence presented and made a decision. We again offer our condolences to Mr. BearHeels’ family. Now is the time for the city to heal and work together.”

Among the officers under scrutiny were the four officers who handled BearHeels just before his death and two sergeants who declined to seek an emergency hospitalization for BearHeels.

Former Officer Ryan McClarty is awaiting trial on a count of third-degree assault for punching BearHeels 13 times in 15 seconds after BearHeels freed his hand from a handcuff. McClarty also could be seen trying to get BearHeels into a cruiser by dragging BearHeels by an arm and his ponytail.

Forehead wasn’t criticized just for allegedly making callous comments about BearHeels. An expert — a former deputy chief in Springfield, Missouri — said Forehead should have gone to the scene more quickly. The scene “was begging for a supervisor to come,” said the expert, Stephen Ijames.

And then there was Payne himself. A State Patrol sergeant in charge of training said he played video of Payne’s use of the Taserfor 12 state troopers who are certified to use Tasers.

“Not one of them felt it was appropriate,” Sgt. Thomas Meola said. “And that’s the crew I run with.”

The crew Payne runs with — the Omaha police union — are working to help Payne, McClarty, Jennifer Strudl and Makyla Mead get their jobs back.

Tony Conner, president of the Omaha Police Officers Association, addressed Forehead’s alleged use of a derogatory term for the disabled.

“There’s times that officers, just like every other human being, will say things that they regret,” Conner said. “I’m sure that (the) sergeant regrets using that language.”

Conner said the union will work with Schmaderer to get officers additional training.

“Whether it’s Taser training, excited delirium training, there’s a whole gamut we have to do,” Conner said. “Before this incident, we had one hour of training. After this, we had an additional hour.

“To me, there’s a failure there. We have to have more training.”

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