Frank LaMere, left, and Rudi Mitchell wait inside the office of the Douglas County Attorney in Omaha, Nebraska, on March 4, 2019. Photo by Kevin Abourezk

Law | National

'They beat this man to death': Activists question lack of charges against police officers

Tuesday, March 5, 2019

Zachary Bear Heels, 29, died after encounter with police officers in Nebraska

One officer was acquitted; another won't face charges
By Kevin Abourezk

• PHOTOS: Zachary Bear Heels Prayer Walk

OMAHA, Nebraska – A county prosecutor on Monday defended his decision last week to drop an assault charge against a fired police officer who was accused of punching a mentally ill Native American man 13 times before he died in June 2017.

Douglas County Attorney Don Kleine met with two Native American activists – Frank LaMere, a Winnebago tribal citizen, and Rudi Mitchell, former chairman of the Omaha Tribe – and Indianz.Com in the morning in his office to discuss his decision to not move forward with his case against former officer Ryan McClarty.

The meeting became contentious quickly after Kleine said he had no plans to file any new charges against McClarty or Scotty Payne, who was acquitted by a juryin December for shocking Zachary Bear Heels 12 times during the same encounter with him on June 5, 2017.

Kleine said he consulted with several experts in police use of force before making his decision.

“I can’t ethically move forward when all the people say that he was justified in doing what he did,” Kleine said of McClarty.

Indianz.Com Video by Kevin Abourezk: Frank LaMere and Renita Chalepah, Mother of Zachary Bear Heels, Speak

He said McClarty was the last of the four officers who encountered Bear Heels and didn’t know that the Rosebud Lakota man was suffering from a mental health condition. When he saw Bear Heels free one of his hands from a cuff, McClarty began punching him in the head in order to try to control him.

Kleine said McClarty’s punching of Bear Heels was justified because the mentally ill man had freed his hand from a handcuff, thus turning the handcuff into a weapon.

He said he filed the charges against Payne and McClarty because he felt their actions were overly aggressive. However, Kleine said he always thought the case against Payne was a stronger one, considering Payne had shocked Bear Heels several times when Bear Heels was sitting on the ground with his hands cuffed behind his back and demonstrating no aggression toward officers.

“I thought that was the most egregious case quite frankly,” Kleine said. “I’m not happy the way it was handled by the courts.”

"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.

He said District Court Judge J. Russell Derr decided to replace Kleine as prosecutor of the Payne case because he thought Kleine had a conflict of interest in the case. Kleine said he still doesn’t know what that conflict of interest would have been.

LaMere also criticized Kleine for failing to contact Bear Heels’ mother, Renita Chalepah, before the media reached out to her on Friday seeking comment about his decision to drop the charges against McClarty.

“I’m very much disappointed that she would have to hear from the Omaha World-Herald,” LaMere said.

Kleine said his office reached a representative for Chalepah on Friday morning who said she would contact the mother to let her know about Kleine’s decision.

Dr. Rudi Mitchell, a citizen and former chairman of the Omaha Tribe, offers a prayer outside the convenience store where Zachary Bear Heels died after being shocked and beaten by police in Omaha, Nebraska, on June 5, 2017. Photo by Kevin Abourezk

Mitchell asked why the officers who encountered Bear Heels on the night of June 5, 2017, didn’t place him in emergency protective custody. He said Bear Heels was clearly suffering from a mental health episode. His mother had even called police earlier that day to let them know her son was missing, was suffering from bipolar disorder and schizophrenia, and hadn’t taken his medication.

“Somebody dropped the ball,” Mitchell said.

Kleine said he agreed officers failed to protect Bear Heels that night, and he criticized the decision of three other officers who encountered Bear Heels the previous afternoon to let him go.

“They handled things so poorly here,” he said. “They gave him some water, and they just left him.”

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

LaMere told Kleine he should have tried the case against McClarty, even if he thought he might lose, because it was the right thing to do.

“I’ve been in a hundred battles, lost most of them, but was never afraid,” he said. “Good God, sometimes you have to fight whether you win or lose. You didn’t fight and a lot of people have issues with that.”

LaMere told Kleine that he planned to call for a U.S. Department of Justice investigation into the police department’s treatment of Bear Heels and the failure of prosecutors and judges to deliver justice to the officers who beat and shocked him.

“Something is wrong here,” he said. “They beat this man to death and they electrocuted him and we’re not going to do anything.”

Kleine said he agreed it would be a good idea to reach out to federal investigators, and even suggested that LaMere contact the U.S. Attorney’s Office in Nebraska.

As LaMere and Mitchell left Kleine’s office on Monday, an attorney from Kleine’s office told LaMere that his frustration was understandable.

“You know you’re beating our kids to death in this town,” LaMere told him. “That could’ve been my child, and I don’t think you understand, and don’t tell me you understand.”

#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.