Renita Chalepah, far right, takes part in a prayer walk on December 8, 2018, to honor the life of her son, Zachary Bear Heels, who died June 5, 2017, after being shocked and beaten by police officers in Omaha, Nebraska. Photo by Kevin Abourezk

Law | National

Judge delays trial for fired police officer accused in Native man's death

Monday, January 14, 2019

'Justice delayed is justice denied'

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

• PHOTOS: Zachary Bear Heels Prayer Walk

Native people and advocates in Nebraska are decrying a judge’s recent decision to postpone the trial of a former Omaha police officer accused of assaulting a mentally ill Native American man who later died.

The trial of Ryan McClarty, who was fired after he allegedly punched Zachary Bear Heels in the head 13 times during an encounter on June 5, 2017, was scheduled to begin Monday in Douglas County District Court.

Instead, Judge J. Russell Derr decided last week to postpone McClarty’s trial for misdemeanor third-degree assault until April 29, nearly two years after the incident that led to his firing and the firing of three other officers involved in the incident last year.

Winnebago activist Frank LaMere, far right, speaks to the family of Zachary Bear Heels outside the bus station in Omaha, Nebraska, where the Native man first arrived on June 5, 2017. He later died after being beaten by police officers. A prayer walk took place in his honor on December 8, 2018. Photo by Kevin Abourezk

Frank LaMere, a Winnebago activist, criticized Derr’s decision this week, saying he’s concerned the judge is hoping Native people will forget about a jury’s acquittal last month of another former officer involved in the Bear Heels incident by the time McClarty’s trial begins.

“Perhaps it was to let the dust settle after the turmoil of the Scotty Payne acquittal or to maybe it is planned so that the Omaha community would forget the brutal beating and electrocution of Zachary Bear Heels,” LaMere said. “I am certain that a rational and reasonable explanation will be shared by the judge and Douglas Court officers, but I won’t buy it.”

“Justice delayed is justice denied, and to this point I have seen no semblance of justice in any Douglas County courtroom for the Bear Heels family and for Native people in Omaha and in Nebraska!”

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

In a court document, Derr explained the reason for the trial’s delay. He said he originally was told McClarty’s trial would last four days but has since been told it will last eight to nine days.

“The Court’s schedule cannot accommodate the extended trial schedule due to other matters that are already scheduled,” he wrote.

He said the April 29 trial date will allow for eight to nine days of testimony.

Following the encounter last year, Schmaderer fired Payne and McClarty, as well as two female officers involved in the incident, Jennifer Strudl and Makyla Mead.

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

Former police officer Ryan McClarty, right, and his attorney await the arrival of Douglas County Judge Russell Derr during a hearing in Omaha, Nebraska, on April 19, 2018. McClarty is accused of punching Zachary Bear Heels 13 times before he died. Photo by Kevin Abourezk

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.

Rudi Mitchell, former chairman of the Omaha Tribe, said he had planned to attend McClarty’s trial and was surprised to learn it had been rescheduled. He said he believes the decision to postpone the trial was based more out of concern for negative public opinion than anything else.

“We’re not going to forget,” he said.

"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.

Bonnie Cosentino-Welsch, a Hispanic woman who has advocated for the prosecution of Payne and McClarty, said she believes the decision to postpone the trial is an attempt to make Bear Heels’ supporters lost interest in McClarty’s trial.

“We will not forget, and we will not go away,” she said. “Police brutality, injustice and ignorance are costing innocent people their lives, and we will keep fighting for justice and for change.”

She lamented the fact that enormous resources have been spent protecting Payne and McClarty from prosecution, while few resources were available to Bear Heels on the night he died.

“Imagine if Zachary Bear Heels had one percent of the help and protection that is being given to these officers,” she said. “There was no delay for consideration, much less understanding that night for Zachary Bear Heels. There were no experts called, no legal or medical advocacy for him, just 13 brutal blows in 15 seconds to his head by Omaha Police Officer Ryan McClarty while Bear Heels was sitting on the ground, slumped over against the rear tire of a police car.”

LaMere said he would like to see the U.S. Department of Justice investigate Bear Heels’ death and the prosecution of Payne and McClarty.

“I am tired of comforting mothers and children,” he said. “What do we have to do for someone to step in to ask the (Omaha Police Department) about the pattern of mistreatment and killing of vulnerable citizens?”

“The pattern of abuse is clear,” LaMere said. “It has been clear for decades but no one has the nerve to act!”

#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.