The trial of a former police officer accused of assaulting a Native man who later died is taking place in a Douglas County courthouse in Omaha, Nebraska. Photo by Kevin Abourezk

Law | National

Fired police officer violated policy by repeatedly shocking Native man

Wednesday, December 5, 2018

Zachary Bear Heels, 29, was tasered 12 times in less than 3 minutes

Lakota man died after encounter with police
By Kevin Abourezk

OMAHA, Nebraska – The first two days of testimony this week in the trial of a former police officer accused of shocking a mentally ill Lakota man who later died included competing views from two Omaha officers about the accused officer’s use of a Taser gun during the incident last year.

On Monday, Officer David Staskiewicz, the former Taser coordinator for the Omaha Police Department and the only master Taser trainer in Nebraska, offered jurors his views of former Officer Scotty Payne’s use of his Taser during the altercation last year. And on Tuesday, the Omaha Police Department’s current Taser coordinator, Officer Mandee Kampbell, offered a much different interpretation of Payne’s Taser usage.

Payne is charged with felony second-degree assault and is accused of shocking Zachary 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, a 29-year-old Rosebud Lakota man, died about an hour after being shocked and punched by the two officers.

Payne, McClarty and two female officers – Jennifer Strudl and Makyla 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.

Zachary Bear Heels, 1987-2017, is seen on the left in a photo posted on social media.

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 shortly after 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.

Officer David Staskiewicz told jurors on Monday that he was initially asked by Douglas County Attorney Don Klein to examine evidence from the Cubby’s convenience store – where the altercation between the officers and Bear Heels occurred in Omaha – in order to form his own opinion about whether Payne had committed a crime through his use of his Taser. However, before he was able to present his opinion to Klein, he was kicked off the task force charged with investigating Bear Heels’ death, he said.

He said he learned Omaha Police Chief Todd Schmaderer had removed him from the task force.

Later in court on Tuesday, prosecutor Corey O’Brien asked District Court Judge J. Russell Derr to allow him to subpoena Schmaderer in order to ask him to respond to Staskiewicz’s assertion that he removed the officer from the investigation. However, Derr refused, saying he didn’t consider it a relevant question.

"Loving Son, Brother, Grandson, Nephew, Uncle" -- Zachary Bear Heels was laid to rest in Apache, Oklahoma, following his death in Omaha, Nebraska, in June 2017. His headstone is seen in this courtesy photo.

Among the evidence that Staskiewicz examined as part of his investigation was information collected from Payne’s Taser gun, which included basic information such as times when the gun was deployed, the lengths of time each deployment lasted and when the weapon was taken out of or put in safe mode.

Using information from the Taser and synchronizing that with footage from the cruiser video cameras, Staskiewicz was able to establish a timeline for when Payne used the weapon on the morning of June 5, 2017.

He said Payne first fired the Taser shortly after 1:38 a.m. that morning. The shock lasted 5 seconds. About eight seconds later, Payne fired the Taser again for 18 seconds. Staskiewicz said the deployment wasn’t effective at incapacitating Bear Heels, according to the weapon’s internal data.

Payne then fired his Taser three more times over the span of 13 seconds as two of the other officers at the scene, McClarty and Mead, struggled to get control of Bear Heels.

About 27 seconds later, he fired the Taser again at Bear Heels as the man sat on the ground with his back up against the rear passenger tire of Strudl’s cruiser. At the time, Bear Heels seemed calm and didn’t appear to be resisting the officers.

“I’m not sure why it was deployed at that time,” Staskiewicz said.

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

About 57 seconds later, shortly after 1:40 a.m., Payne fired the Taser again for 5 seconds, again while Bear Heels was sitting by the cruiser. He fired it again 12 seconds later for 4 seconds.

About 24 seconds later, he fired the Taser again, not long after Bear Heels had managed to pull his left hand out off the handcuffs and McClarty had begun punching him.

Payne then began stunning Bear Heels directly with the weapon, an action called a “dry stun.” He shocked Bear Heels three times directly with the Taser.

In all, Payne fired his Taser a dozen times at Bear Heels.

However, Staskiewicz said, only the first activation of Payne’s Taser likely had any effect on Bear Heels, according to the weapon’s internal data.

Staskiewicz said he also watched footage from Payne’s body camera that showed Payne at the Nebraska Medical Center, where Bear Heels’ body was taken after the altercation. He said that footage showed Payne saying to someone at the hospital that he didn’t think the Taser was effective on Bear Heels during the encounter.

“It shows the mentality of the officer and the thought process of the officer,” Staskiewicz said. “That’s pretty important to me.”

Staskiewicz said, during high-stress situations that last for relatively long periods of time, officers can sometimes get stuck in a mental loop in which they become unable to consider other methods of addressing the situation.

The struggle between Mead, Strudl, Payne, McClarty and Bear Heels lasted nearly 14 minutes. Staskiewicz described the altercation as the “perfect storm” as officers became tired and failed to get Bear Heels under control through traditional means.

He said Payne may have gotten stuck in a mental loop in which he failed to consider other means of controlling Bear Heels other than his Taser.

“I don’t know if I’ve ever been in a fight that lasted more than 2 minutes,” Staskiewicz said.

Considering all of the circumstances of the altercation, he said Payne’s use of force “didn’t look so bad.”

Indianz.Com Video by Kevin Abourezk: Native Community Demands Justice for Zachary Bear Heels

The Omaha Police Department’s current Taser coordinator, Officer Mandee Kampbell, testified Tuesday and offered a much different interpretation of Payne’s actions on June 5, 2017.

She said Payne violated several department policies and training guidelines in his use of his Taser, including attempting to use his Taser to force Bear Heels to comply with his commands. She said the Taser is meant to be used to incapacitate a suspect in order to give an officer time to get them under control or detail them.

Kampbell said Payne also activated his Taser far more than the recommended maximum of three times.

“At that point, if you can’t gain control of them, move on to something else,” she said. “It’s clearly not working.”

She said the department also tells officers not to use deploy a Taser on a suspect who isn’t a threat or a flight risk.

In other testimony this week, Dr. Michelle Elieff, a forensic pathologist who conducted the autopsy on Bear Heels’ body, told jurors on Tuesday that she found no evidence of internal bleeding, fractures, organ damage, brain hemorrhaging or other natural diseases.

“I did see injuries to his body but not to the degree that would cause his death,” she said.

She also said she found no evidence of illicit, prescription or over-the-counter drugs in his system, besides nicotine. She said she doesn’t believe the Taser shocks or the strikes to Bear Heels’ head caused his death. She said she also doesn’t believe he died from strangulation or positional asphyxiation, injuries that he might have received from being held down by several officers.

After excluding all other possible causes of death and reviewing video footage from the convenience store, Elieff said she determined Bear Heels’ death was associated with excited delirium syndrome, a mental condition that has become a point of contention for many in the medical community.

While Douglas County and Omaha police and medical professionals largely agree that excited delirium is an actual mental condition, other organizations, such as the American Medical Association and the American Psychiatric Association, have not recognized it as a legitimate diagnosis.

Elieff said she has studied medical literature, including several studies of the condition, and believes it is a legitimate condition. She said excited delirium can cause death by interfering with the autonomic nervous system, or the part of the nervous system that controls bodily functions that aren’t consciously directed, such as breathing and the heartbeat.

Excited delirium, she said, is more common in people who suffer from mental illness, such as schizophrenia and bipolar disorder. She said it is fatal in between 8 to 17 percent of those who experience it.

In her testimony Tuesday, Elieff also described injuries she found on Bear Heels’ body that she believes were caused by Payne’s Taser gun, including two puncture wounds from the Taser’s probes and electrical burns from the circuit created by the two probes.

Also on Tuesday, Officer Anthony DeSciscio told jurors that he was one of the officers who went to the Bucky’s convenience store that night to help get Bear Heels under control.

When he arrived, he saw several officers trying to hold down the Native man, who was lying face down on the ground. He replaced one of the officers who had been trying to hold down Bear Heels and who seemed tired.

“He was yelling, and I could tell they were fatigued and kind of tired,” DeSciscio said.

After a while, an ambulance arrived, and DeSciscio helped several other officers lift Bear Heels onto a gurney. He said he noticed Bear Heels had stopped moving and seemed calm.

He said he didn’t think the officers holding Bear Heels down might suffocate him as he heard him grunting and yelling and saw him kicking his legs and trying to get up and roll over. DeSciscio said he even checked Bear Heels’ pulse as the officers held him down and was able to find one.

DeSciscio, who is about 6-foot-1-inch tall and 275 pounds, said Bear Heels was so strong that he had to use his own weight to hold him down.

He said he didn’t learn that Bear Heels had died until he returned to his precinct headquarters later that morning.

On Tuesday, the state rested its case against Payne, and Payne’s attorney, Steven Lefler, asked Judge Derr to dismiss the case against his client saying the state had failed to prove his client had committed a crime or intended to harm Bear Heels.

However, Derr declined that request, saying it would be up to jurors to decide Payne’s guilt or innocence.

#NativeLivesMatter

Native Americans are more likely to be killed by law enforcement than any other racial or ethnic group, according to the Center on Juvenile and Criminal Justice.