Scotty Payne, far right, is seen with supporters at the Douglas County courthouse in Omaha, Nebraska, on December 7, 2018. Payne was fired from the police force in Omaha and was charged with assaulting a Native man who later died.

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'They're on trial, too': Fired officer blames Native man's family for death

Monday, December 10, 2018

Jury hears closing arguments in historic trial

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

OMAHA, Nebraska – An attorney for a fired police officer who is accused of shocking a Lakota man who later died told jurors during his closing statements in a courtroom here on Friday that the mentally ill man’s family also should be held responsible for his death.

Omaha Attorney Steven Lefler, who represented Scotty Payne during his trial over the past two weeks, said the family of Zachary Bear Heels – four of whom listened to his presentation in court Friday – were culpable for Bear Heels’ death on June 5, 2017, for not ensuring he was taking his medications for his mental illness.

“They’re on trial, too,” Lefler said, motioning toward Bear Heels’ family – including his mother, who sat in the back row of the Douglas County courtroom where Payne’s trial has been held.

Lefler told jurors that Payne was being prosecuted for trying to help a mentally ill man whose own family failed to help him. And he implored jurors to help protect police officers, like Payne, who are unfairly accused of committing crimes while carrying out their duties.

“They do the stuff that even Bear Heels’ family didn’t want to do,” he said.0

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

The defense for Payne ended its arguments Friday, and jurors are expected to return to the Douglas County Courthouse at 9am Monday to begin their deliberations.

Payne is charged with felony second-degree assault and use of deadly weapon to commit a felony. He 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, a 29-year-old Rosebud Lakota man, died less than 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.

"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.

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.

Bear Heels’ family plans to hold a prayer walk starting at noon Saturday in Omaha starting at the Greyhound bus station near 16th and Jackson streets where he was kicked off the bus and ending at the Bucky’s convenience store at 60th and Center streets, where he lost his life later that night.

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

Before offering his closing statements Friday, prosecutor Corey O’Brien called two rebuttal witnesses to the stand.

The first, Omaha Officer Fredric James, told jurors that another witness – who testified earlier this week that police showed remarkable restraint during their encounter with Bear Heels at the Bucky’s convenience store – had misrepresented his initial statement to police about the incident. James said Dwight Jensen, a former Marine, told him that he left the convenience store during the incident because he thought Bear Heels tried to call out to him for help.

Jensen denied giving that statement to police during his testimony on Wednesday.

And O’Brien also called Sgt. Thomas Meola of the Nebraska State Patrol to testify Friday.

Meola, a 24-year veteran and defensive tactics expert for the State Patrol, told jurors that he was asked by Omaha Police Chief Todd Schmaderer to review the incident involving Bear Heels last year and offer his opinion on whether Payne’s use of his Taser gun was appropriate.

He said Payne’s Taser usage fell outside the guidelines for Taser use that have been established by the company that produces the weapon and by the Nebraska State Patrol.

He said Payne should not have fired his Taser gun at Bear Heels as he sat on the ground with his hands cuffed behind his back against the rear passenger tire of a police cruiser. He said Bear Heels showed no intention of trying to harm officers before Payne fired his Taser at him for the sixth time that night.

Scotty Payne, 39, a former police officer in Omaha, Nebraska, is charged with one count of second-degree assault and one count of use of a weapon to commit a felony in connection with the death of Zachary Bear Heels in June 2017. Photo: Douglas County

Meola said both the International Association of Chiefs of Police and Taser, the company, have guidelines that say Taser users should never fire the weapon more than three times for a total of 15 seconds of electrical “exposure.” Payne fired his Taser 12 times for a total of 68 seconds of exposure on Bear Heels.

“When you’re continually pulling the trigger, you’re not giving him time to comply,” Meola said.

He described an incident he encountered in which a suspect refused to get into a patrol cruiser and fought three patrol troopers and a sheriff’s deputy for several minutes. However, despite his resistance, the deputy, who had a Taser gun, never shocked the suspect.

He said Payne and McClarty had other options for using force to get Bear Heels into a police cruisers besides shocking and punching repeatedly. They could have bound his legs, called for backup or tried different holds to force Bear Heels to comply, Meola said.

He told jurors that he had spoken to a dozen other State Patrol troopers who agreed that Payne’s Taser usage violated most standards for use of the weapon. Lefler objected to Meola’s statement, and U.S. District Court Judge J. Russell Derr told jurors to disregard it.

“All I can is talk from my perspective,” Meola said.

In his closing arguments Friday, prosecutor Corey O’Brien said officers deserve respect and admiration for their efforts to protect society from danger.

“However, that admiration and respect does not entitle our defenders to do as they please,” he said.

He implored jurors to focus on the most pertinent facts of the case, and he directed them to especially consider the sixth, seventh and eighth Taser shocks that Payne delivered to Bear Heels. He conceded that the first Taser shock, as well as the ninth through 12th shocks, were probably justified considering Bear Heels was clearly resisting officers’ efforts to control him at those times.

However, he said, each Taser shock that Payne delivered needed to be justified, and before the sixth, seventh and eighth shocks, Bear Heels never demonstrated any intent to resist or harm officers. And he zeroed in on the sixth shock to Bear Heels, saying the mentally ill man showed absolutely no signs of resisting before that shock.

“I didn’t see him do anything before that shock,” O’Brien said. “That is not okay, under anybody’s definition.”

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

He said Lefler had attempted to portray Bear Heels as a “monster” over the past two weeks, whose bizarre and threatening behavior had forced officers to attempt to detain him.

But O’Brien said three other officers had actually encountered Bear Heels earlier that afternoon and had talked with him and even offered him a bottle of water. Bear Heels never demonstrated any threatening behavior during that encounter with police, and the officers who met him didn’t handcuff, Tase or punch him, O’Brien said.

“They talked to him,” he said. “They reasoned with him. They recognized that this was a man who needed help.”

He said Payne clearly appeared to be punishing Bear Heels for not getting into the police cruiser by shocking him as he sat complacently up against the cruiser’s rear tire. And he lamented the eventual outcome of the encounter considering how it began that morning of June 5, 2017.

“Sixty-eight seconds of electricity for a man who wasn’t wanted for first-degree murder, but for a man who was getting a ride to the bus station, for a man who needed help,” he said.

He implored jurors to focus on Payne’s actions and not be misguided by Lefler’s attempts to get them to focus on the actions of other officers that night or the failures of the Omaha Police Department to adequately train Payne or Bear Heels’ own family to provide him with his medications.

“This is Scotty Payne’s trial and Scotty Payne’s trial alone,” he said.

Indianz.Com Video by Kevin Abourezk: Calling for Justice in Nebraska

In his closing arguments Friday, Lefler said the altercation with Bear Heels might never have happened if the three officers who met him earlier that afternoon had had him involuntarily committed to a psychiatric facility, a process known as emergency protective custody.

He said it was Payne’s first use of force incident.

“He is not a rogue cop,” Lefler said.

He said Payne was simply trying to protect himself and the other three police officers at the Bucky’s convenience store, as well as Bear Heels himself.

He called on jurors to consider the often thankless efforts of police to protect society from dangers and to disregard the state’s attempts to punish one of them for doing his duty.

“Cops got our backs,” he said. “Today, you have their back.”

And he said it wasn’t fair for jurors to consider the sixth, seventh and eighth shocks that Payne delivered to Bear Heels out of the context of the entire encounter. He said Bear Heels had resisted officers’ efforts to control him up to that point and even managed to get his hand free after those three Taser shocks.

During his opening statements on November 27, Lefler had promised jurors that Payne would testify in his own defense, though Payne never actually testified in the coming days. Lefler told jurors on Friday that he had decided not to allow Payne to testify and to allow jurors to try to understand his actions that night through other testimony and depictions of statements Payne made that night at the hospital after Bear Heels died.

He said Payne had expressed bewilderment after the encounter that his Taser hadn’t proved more effective at controlling Bear Heels.

“This has been hell for Mr. Payne for the last year and a half,” he said. “What we want is to have Officer Payne restored to the life that he had before.”

He laid blame on Omaha and Nebraska officials for wanting to make Payne a scapegoat in order to signal to the Native community in Omaha that officials were taking Bear Heels’ death seriously.

“This case should not be in this courtroom,” he said. “Please give Officer Payne his life back.”

#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.