Testimony continues in case of officer on trial for death of Native man

Thursday, November 29, 2018  

Officer testifies about encounter with Zachary Bear Heels, 29, who later died
By Kevin Abourezk

OMAHA, Nebraska – The officer pulled up to the curb beside a corrugated metal building.

The day was hot, nearly 94 degrees, and Sgt. Eric Picht had been looking for a dark-skinned man dragging a red suitcase who had been seen looking in the windows of businesses near the busy city intersection.

The eight-year veteran officer stepped out of his cruiser and walked up to a man who fit the description of the man he was seeking, joining two female officers already talking to him.

The man spoke quietly and seemed agitated, disoriented.

“How long you been outside?” Picht asked the man.

The dull roar of passing traffic overpowered the man’s response.

“Can you talk a little bit louder for me?” the sergeant asked.

But in a police recording of the encounter, the man’s voice could not be heard.

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The interaction between the Omaha police sergeant and the man, Zachary Bear Heels, was seen by a dozen jurors Wednesday during the second day of testimony in the trial of a former Omaha police officer accused of assaulting Bear Heels before his death last year.

Scotty Payne is charged with felony second-degree assault and is accused of shocking Bear Heels 12 times with a Taser on June 5, 2017. Another former officer, Ryan McClarty, is accused of punching Bear Heels 13 times in the head.

Bear Heels died about an hour after being shocked and punched by the two officers.

Payne, McClarty and two female officers – Jennifer Strudl and Makyla Mead, who also were involved in the encounter with Bear Heels – were fired by Omaha Police Chief Todd Schmaderer for their roles in the encounter.

Bear Heels, 29, was traveling from South Dakota to Oklahoma City when he was kicked off the bus in Omaha for erratic behavior. His relatives have said he had schizophrenia, was bipolar and wasn’t taking his medication.

After the two officers found him, they attempted to put him in a police cruiser. Payne began shocking him after he refused to get into the cruiser and even after he was sitting on the ground, handcuffed, near the back passenger tire of a police cruiser. McClarty began punching Bear Heels after he got a hand free from his cuffs.

A coroner’s physician who conducted an autopsy on Bear Heels later concluded his death was attributable to “excited delirium” and not necessarily related to his injuries or shocks.

During testimony Wednesday, jurors heard from several witnesses who encountered Bear Heels in the Omaha in the hours leading up to his death, and jurors were shown video footage of Bear Heels as he wandered the city’s streets after being forced off the bus to Oklahoma.

One video clip from a bank ATM machine showed Bear Heels, shirtless, standing outside the bank. In the clip, he can be seen running up to the building and jumping toward it. He can also be seen doing exercises of some kind before eventually grabbing his red suitcase and walking away.

Another video clip from a business’s security camera showed Bear Heels standing outside the building and approaching it several times to peer inside. He appeared to be waiting outside for someone to come out.

Wayne Shaw, a semi-trailer driver from Omaha, encountered Bear Heels on the afternoon of June 4, 2017, outside the Bucky’s convenience store where Bear Heels later met Payne and McClarty.

Shaw was at the station to get gasoline for his truck and get a car wash. After pre-paying for his gas, he walked outside the front entrance to smoke a cigarette. As he did so, he noticed a dark-skinned man walk across the street and into the parking lot.

He said he still clearly remembered Bear Heels’ bright blue and white shoes.

“My 9-year-old nephew sure would have love to have a pair of shoes like that,” he said.

But Shaw also noticed Bear Heels’ behavior. He said he saw him do a “rain dance” outside the convenience store and became concerned Bear Heels might cause problems for the store’s customers.

“He seemed to have a conversation with nobody there,” Shaw said.

#NativeLivesMatter: Native Americans are more likely to be killed by law enforcement

Eventually, a clerk came outside and began talking to Bear Heels, and Shaw left to wash his truck.

Another person who encountered Bear Heels that day was Todd Amberson, a campus security officer for the University of Nebraska at Omaha.

He said he drove to Bucky’s around midnight on June 4 last year, less than an hour before police were called to the store. Amberson said he parked a few stalls from the main entrance and waited in his marked cruiser for his trainee to go inside and get coffee.

He said he began hearing strange noises from a man sitting on the curb near the store’s entrance.

“Hey, are you okay?” he called out to the man. He received no response, and he drove away after his trainee got back in his cruiser.

Amberson said he was never concerned for his or his trainee’s safety.

“It didn’t seem like it was at that level,” he said.

Shortly before 4pm on June 4, 2017, three officers were dispatched to find a dark-skinned man seen licking the windows of a nearby business. They met Bear Heels a few blocks from the Bucky’s convenience store and approached him.

Bear Heels was uncooperative and even told the officers to “fuck off,” said Sgt. Eric Picht.

“It was apparent that he did have a mental health issue,” he said.

Much of the cross-examination of Picht Wednesday by Payne’s attorney, Steve Lefler, focused on the term “excited delirium.”

Lefler introduced into evidence descriptions of excited delirium from the Omaha Police Department’s own policies and procedures manual. Those descriptions included signs such as superhuman strength, an inability to feel pain, high body temperature, aggression toward reflective surfaces like mirrors and windows, extreme paranoia and hyperactivity.

However, Picht said Bear Heels didn’t seem to be a threat to anyone or himself and he declined an offer to be taken to the hospital by ambulance. Picht said Bear Heels also didn’t meet the requirements for being taken into emergency protective custody involuntarily by police, including making suicidal or homicidal statements.

He said his encounter with Bear Heels was fairly typical of his past encounters with mentally ill people and he didn’t seem to exhibit many signs of excited delirium.

“Having a mental illness is not a crime,” Picht said. “You can’t take away someone’s civil rights just because they have a mental illness.”

One of the last people to encounter Bear Heels before police were called to Bucky’s was the store’s clerk on the early morning of June 5, 2017.

David Bendorf began his shift at midnight and was told by the clerk who had worked the previous shift that Bear Heels had been there for several hours and had been acting erratically, though he hadn’t threatened anyone. Eventually, Bear Heels came inside and began dancing and asked Bendorf for a cigarette. Bendorf asked him to leave, but he said Bear Heels refused.

After the Native man finally walked out of the convenience store, Bendorf called 911. Not long after, officers Strudl and Mead arrived, followed by Payne and McClarty.

“There was a struggle, and they just Tased him out of nowhere,” Bendorf said.

He said the officers dragged Bear Heels by his hair and tried to get him in their cruiser. One of the officers repeatedly punched him in the face as they did so.

An ambulance and fire truck eventually arrived, and paramedics loaded Bear Heels inside and drove away.

Testimony in Payne’s trial is expected to continue Thursday morning.

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Former police officer on trial for death of Native man (November 27, 2018)
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Fired police officer won't go to trial for death of Native man until next year (April 20, 2018)
Grand jury seeks another charge against officer accused in Native man's death (December 6, 2017)
Native community demands justice for Lakota man who died in police encounter (November 29, 2017)
Two police officers charged with assault for death of Rosebud Sioux citizen (July 27, 2017)
Rosebud Sioux man dies after being tased and struck by police officers (July 17, 2017)