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 mounts defense in Native man's death

Thursday, December 6, 2018

Zachary Bear Heels, 29, died after beating by police officers

By Kevin Abourezk

OMAHA, Nebraska – Two nationally recognized experts in the user of Taser guns and the effects of electricity on the body told jurors this week that an officer, who shocked a mentally ill Lakota man who later died, that the officer used his Taser appropriately and could not have seriously injured the Native man.

John G. Peters Jr. of the Institute for the Prevention of In-Custody Deaths and Mark William Kroll, a biomedical scientist, testified in defense of former Omaha Officer Scotty Payne on Tuesday and Wednesday.

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.

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

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.

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.

"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.

Peters, who holds a doctorate in applied management and decisional sciences, told jurors that Payne had few other options for controlling Bear Heels besides his Taser gun. And he questioned Officer Mandee Kampbell, the Omaha Police Department’s Taser coordinator, who told jurors Tuesday that Payne violated department policies by firing his Taser more than the recommended maximum of three times and by using his Taser to try to get Bear Heels to obey his commands.

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.

Peters told jurors this week that there is no scientific basis for limiting the number of times an officer can fire his Taser at the same suspect. Because the electricity produced by a Taser doesn’t build up in a person’s body and only affects people during the brief periods of time that electricity flows through their bodies, firing the weapon at suspects more than three times wouldn’t cause serious bodily injury or death, Peters said.

“You sometimes you have to have it longer because a person is just not going down,” he said.

Winnebago activist Frank LaMere is among those who have seen seeking justice for Zachary Bear Heels, the 29-year-old Lakota man who died after an encounter with police officers in Omaha, Nebraska. Photo by Kevin Abourezk

He said the Taser is meant to be used to stop an aggressive suspect and can be used as many times as necessary in order to control a suspect. And he said Tasers can be used to force suspects to comply.

He said officers should have discretion to decide how best to defend themselves and gain control of suspects.

“Officers are not trained to lose because when you lose you’re dead,” he said.

He said he believed Payne’s use of his Taser to attempt to gain control of Bear Heels was appropriate given the circumstances.

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

As for Payne’s decision to fire his Taser at Bear Heels while the Native man was sitting on the ground with his hands cuffed behind his back while leaning against the rear passenger tire of a police cruiser was justified, considering Bear Heels could be seen kicking toward the officer just before Payne Tased him.

However, when prosecutor Corey O’Brien played video of cruiser footage showing the altercation between Bear Heels and officers, Bear Heels could not be seen making any threatening motion toward officers just before Payne fired his Taser at him.

When asked by Payne’s attorney, Steven Lefler, how much he was paid to testify in the trial, Peters told jurors he had been paid $3,000. However, when questioned by prosecutors about whether he had been paid to review evidence from the convenience store where the altercation with Bear Heels occurred, Peters said he had been paid $5,000 to review those materials.

During his testimony Wednesday, Mark William Kroll, the biomedical scientist, repeated Peters’ assertion that electricity doesn’t build up in the body upon consecutive activations of a Taser gun. Electricity from a Taser enters the body through a probe that pierces the skin and exits the body through a second probe. Both probes are attached by wires to a cartridge attached to the Taser.

Once the electricity passes through the body, a person won’t feel any lasting effects from the Taser, Kroll said.

“It does not linger in the body, like alcohol,” he said.

Because of that, a Taser can’t cause serious bodily injury or death, he said. However, he said, people can be seriously injured or die from becoming incapacitated by a Taser and falling to the ground.

He told jurors he was paid $4,800 to testify on Payne’s behalf.

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

Frank LaMere, a Winnebago activist, questioned the motives of Peters and Kroll considering they were paid to testify this week.

“What I saw today in a Douglas County courtroom was despicable,” he said. “I watched the defense bring to the stand two Taser whores who were paid tens of thousands of dollars to say that Tasing has nothing to do with the death of Zachary Bear Heels. I am beside myself. It was shameful.”

“The Omaha Police Department, through the actions of their officers McClarty and Payne, decided on June 5, 2017, that they would be judge, jury and executioner of Zachary Bear Heels. How can I see it any other way?”

#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.