'I can't breathe!': Video shows moments before Native man's death

Monday, December 3, 2018  

Zachary Bear Heels, 29, died after beating by police officers
By Kevin Abourezk

OMAHA, Nebraska – The first week of trial for a former Omaha police officer accused of shocking a mentally ill Lakota man who later died ended Friday with testimony from a police sergeant and another former officer who was involved in the fight.

Sgt. Erik Forehead of the Omaha Police Department and former Omaha officer Makyla Mead offered their version of the altercation last year that ended with the death of Zachary Bear Heels, a 29-year-old Rosebud Lakota man.

Forehead was the duty sergeant who oversaw the officers involved in the scuffle with Bear Heels, and Mead was one of the officers sent to find Bear Heels after a convenience store clerk called police to ask them to remove him from the property.

Former officer Scotty Payne is charged with felony second-degree assault and is accused of shocking Bear Heels 12 times with a Taser before his death 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 Mead – were fired by Omaha Police Chief Todd Schmaderer for their roles in the encounter.

Only Payne and McClarty have been charged. Native activists have called on Strudl and Mead to be held accountable in connection with Bear Heels’ death.

Bear Heels was traveling from South Dakota to his home in 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 Payne, Strudl and Mead found him outside the Bucky’s convenience store, 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, who arrived just before the altercation began, started 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.

Forehead told jurors on Friday that he first heard from the officers who were sent to the convenience store to find Bear Heels when Strudl called him to ask whether she should place Bear Heels in emergency protective custody.

Forehead said he asked Strudl whether Bear Heels met the requirements for involuntary emergency placement, including whether he posed a risk to himself or others.

“She seemed pretty certain that he was not somebody we could commit,” Forehead said.

The sergeant responded to a claim that Strudl made during her testimony Thursday. Strudl told jurors that Forehead made a derogatory remark when she told him that Bear Heels wasn’t making any sense.

“Oh, you got a fucking retard,” she said Forehead told her.

“I didn’t say that, no,” Forehead told the jury on Friday.

When he arrived at the convenience store, he said he saw four other officers holding Bear Heels down. He spoke briefly to Payne.

“He told me that he had Tased Mr. Bear Heels and that it had no effect,” Forehead said.

He noticed Bear Heels kicking his legs and told the other officers to bind his legs with flex cuffs, hard plastic adjustable binds. As they did so, other police arrived at the scene and proceeded to help the officers already there hold down Bear Heels.

At that point, Bear Heels was yelling and moving, Forehead said. He was lying on his stomach on the ground with his hands cuffed behind his back and his legs bound.

An ambulance arrived a few minutes later, and officers began picking up Bear Heels to put him on a gurney. As they did so, Forehead noticed Bear Heels wasn’t moving anymore and appeared to have stopped breathing.

Not long after he was loaded into the ambulance, Forehead learned Bear Heels had died as medics attempted to perform CPR on him.

“I couldn’t believe it,” he said. “I couldn’t understand how we could go from transporting a guy to the bus station and now he was … yeah, I was upset.”

Payne and McClarty rode in the ambulance with Bear Heels to the hospital, Forehead said.

He said he had been concerned the cause of Bear Heels’ death might be excited delirium syndrome, a condition the sergeant had learned about during police training, after learning Bear Heels had demonstrated no response to being shocked, superhuman strength and incoherent speech.

While he had refused to allow his officers to place Bear Heels in emergency protective custody, Forehead said he might have changed his mind if he had seen Bear Heels in person and saw his erratic behavior, as jurors did last week after watching video from inside the back of the police cruiser where Bear Heels had been detained that night.

Forehead also told jurors that he didn’t think the officers at the convenience store were necessarily right in handcuffing Bear Heels in the first place, considering he had committed no crime.

“I told them specifically we had no reason to hold him,” he said.

After he learned Bear Heels died, he became angry at Officer Jennifer Strudl – who, as the first officer to arrive at the convenience store, was considered the primary officer at the scene.

“I yelled at Strudl, and I had to apologize to her afterwards, too,” Forehead said.

He also admitted that the officers who held down Bear Heels prior to his death might have caused his asphyxiation.

“Maybe somehow it did happen,” he said.

On Friday, an officer who was directly involved in the altercation with Bear Heels and later was fired for failing to stop Payne and McClarty shared her version of the incident with jurors.

Much like others who testified this week, Makyla Mead said Bear Heels spoke incoherently and seemed under the influence of a drug when she first encountered him outside Bucky’s.

She said she called Forehead that night – after Strudl had spoken to him and to Bear Heels’ mother – to ask the sergeant once again whether she and Strudl could place Bear Heels in emergency protective custody. She said she felt like it was the best option for the mentally ill man, even after Strudl had agreed with his mother to take him to the bus station.

“We weren’t comfortable with the fact that there wasn’t anything we could do,” she said.

But Forehead again declined to allow them to do so, and Strudl walked around to Bear Heels’ door, opened it and tried to put his seatbelt on him.

That’s when Bear Heels stood up and got out of the cruiser, leading to the scuffle with police that ended with his death.

Prosecutor Corey O’Brien showed jurors a video Friday taken from the backseat of Strudl’s cruiser after officers handcuffed Bear Heels outside Bucky’s and detained him in her car. Unlike a video shown Thursday that also showed the back of Strudl’s cruiser but was accompanied by audio from the cruiser’s front seat, the video shown Friday also showed the cruiser’s back seat but was accompanied by audio from the cruiser’s back seat, where Bear Heels sat that night.

The video shows Bear Heels sitting facing the rear passenger window, his ponytail protruding from his backward Yankees baseball cap. He can be heard mumbling and cursing quietly, his words only occasionally becoming intelligible.

“I’m fucking dehydrated and fucking need something to drink!” he yelled at one point. Strudl, the only other person in the car, sat in the front seat talking to Bear Heels’ mother by phone and didn’t seem to catch the occasional comprehensible phrases he uttered.

“Oh, I can’t fucking breathe!” he yelled.

Eventually, Strudl got out of the car, walked around to Bear Heels’ window and put her phone up to it so he could hear his mother’s voice on speaker phone.

“Zachary, Zachary,” his mother said.

He continued mumbling and cursing, and Strudl walked back to the front of the car.

After hanging up, Strudl tried to explain to Bear Heels what she and his mother had decided to do with him.

“I’m going to take you to the bus station,” she said, before getting out of the car and walking to the back again to put Bear Heels’ seatbelt on him before they drove away.

As she opened his door and reached in to put his seatbelt on him, Bear Heels stepped out of the car and began walking away.

“No, no, no,” Strudl yelled at him.

Prosecutor O’Brien ended the video at that point Friday, and Mead continued with her testimony.

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

Not long after Bear Heels got out of Strudl’s cruiser, she said, McClarty arrived in his cruiser, got out and began helping Mead, Strudl and Payne get Bear Heels under control.

Payne initially tried to apply pressure to a sensitive area on Bear Heels’ neck, but the still handcuffed Bear Heels didn’t respond, Mead said. The other officers also worked to hold him down and briefly got him under control as Bear Heels leaned up against a pallet of water bottles near the main entrance to the convenience store.

After Bear Heels broke free again, he scuffled with officers until McClarty wrestled him to the ground, where the Lakota man lay on his stomach. The officers then attempted to lift him off the ground to carry him back to the cruiser, but Bear Heels began kicking his legs and struck Mead in her head as he did so, she said.

Asked by the prosecutor whether she thought Bear Heels intended to kick her, Mead said she didn’t think so.

“No, I just think he was trying to get free from our hold,” she said.

The blow phased her, however, and she dropped his leg to the ground. Bear Heels then managed to stand up again and began kicking. That’s when Payne first decided to deploy his Taser, Mead told jurors.

“Taser, Taser, Taser,” he said, pulling the trigger. She said she then heard the pop of the Taser, following by the crackling buzz of electricity.

Although Bear Heels then slid down the glass of the convenience store front window, the Taser didn’t seem to have much effect on him, Mead said.

“My perception of it was he didn’t react at all,” she said.

Payne then shocked him again, though Bear Heels again didn’t seem to respond.

At that point, McClarty knocked Bear Heels down and began dragging him by his hair toward Strudl’s cruiser.

“I didn’t like that he grabbed his hair,” Mead said.

The officers managed to prop Bear Heels up against the rear passenger tire of the cruiser, and he sat there with his hands still cuffed for a few minutes. But eventually, Bear Heels managed to pull his right hand out of the cuffs and began swinging his cuffed hand around.

That’s when McClarty began punching him repeatedly in the head until he became still again and the officers managed to cuff his hands again. Payne then got on his radio to call for more backup.

A few minutes later, other police officers began arriving. As they arrived, they tried to help the four officers there hold down Bear Heels, who lay on his stomach on the ground.

As they lifted him to put him on a gurney, Mead noticed he wasn’t moving.

Questioned by defense attorney Steven Lefler about whether she ever intended to harm Bear Heels or became angry at him at any point, Mead fought back tears.

“No,” she said, her voice cracking.

Asked whether Bear Heels ever seemed to feel pain, Mead said she heard him screaming but said she didn’t know what was causing him to scream.

“I don’t know if that was because of pain or his mental illness or what,” she told jurors.

She said she wished Sgt. Forehead had allowed her and Strudl to place Bear Heels in emergency protective custody. Asked whether she could have gone to her sergeant’s supervisor to request permission to place Bear Heels in emergency protective custody, Mead said that would have been difficult.

“He’s a sergeant so whatever he says goes,” she said.

Payne’s trial is scheduled to resume Monday and is expected to last until at least the end of next week.

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Jury watches video of Native man getting shocked and beaten (November 30, 2018)
Testimony continues in case of officer on trial for death of Native man (November 29, 2018)
Former police officer on trial for death of Native man (November 27, 2018)
'We do not go away': Native community protests racism and aggression (May 14, 2018)
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)